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[Cites 13, Cited by 0]

Delhi District Court

Sh. H.L.Srivastava vs Sh. Vijay Kumar on 17 October, 2011

                                          //1//

IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
                                 COURTS, DELHI.
                                    E­662/07
Sh. H.L.Srivastava,
S/o Sh. M.K.Lal Srivastava,
Presently residing at 
8­C, Pocket U & V, Block­B,
Shalimar Bagh, Delhi­110088.
                                                                           ...Petitioner
                                       VERSUS
Sh. Vijay Kumar,
S/o Sh. Kure Lal,
R/o 2089, Katra Gokul Shah,
Kucha Aquil Khan, Bazar Sita Ram,
Delhi­110006.
                                                                  ...Respondent
       Petition U/s 14 (1) (e) r/w Section 25­B of Delhi Rent Control Act
1. Date of institution of the case         :       24.03.2007
2. Date of Judgment Reserved               :       12.10.2011
3. Date of Judgment pronounced             :       17.10.2011


JUDGMENT

The brief facts of the case are that the suit premises consisting of a room and small kitchen on the first floor of property no. 2089, Katra Gopal Shah, Kucha Aquil Khan, Bazar Sita Ram, Delhi was let out to the respondent by the previous owner and the petitioner has purchased the entire property bearing no. 2089, Katra Gopal Shah, Kucha Aquil Khan, E­662/07 Page 1 of 15 //2// Bazar Sita Ram, Delhi on 28.09.2000 and a notice for attornment was also issued to the respondent on 24.06.03 and the said property is required by the petitioner for his bonafide need. The petitioner is residing with his family at property no. 8­C, Pocket­U & V, Block­B, Shalimar Bagh, Delhi which belongs to his wife. The petitioner is having his business of invitation cards on the ground floor of the suit property since 1989 and now the first floor portion is required by him for his bonafide need as on account of his growing age and his heart problem he was unable to travel daily from Sita Ram Bazar to Shalimar Bagh and otherwise also that accommodation at Shalimar Bagh is not suitable to the petitioner. It is important to mention here that leave to defend application of the respondent was allowed vide order dated 01.12.2007.

2. Written statement filed on behalf of the respondent wherein he denied that the petitioner is the owner of the suit premises. It is stated that the respondent is the owner of entire first floor with roof of the property bearing no. 2089, Katra Gokul Shah Kucha Aquil Khan, Bazar Sita Ram, Delhi­6 vide agreement to sale dated 07.05.90 and 27.07.84 and paid entire consideration amount vide receipt dated 22.10.84 for Rs. 75,000/­ receipt dated 27.07.84 for Rs. 10,000/­ receipt dated 08.06.85 for Rs. 15,000/­ and E­662/07 Page 2 of 15 //3// receipt dated 07.05.90 for Rs. 25,000/­ executed by Smt. Prakash Kaur w/o Sh. Kartar Singh, the erstwhile owner of the property in question. It is further stated that initially before purchase of property by the respondent, tenancy premises were let out for residential cum commercial purposes by earlier landlord and the premises has been used for the same since then. It is further stated that the flat no. 8C, Pocket U­V, Block B, Shalimar Bagh, New Delhi is available for residence of the petitioner and is suitable for the petitioner. All other averments made in the petition were denied.

3. Replication filed on behalf of the petitioner wherein the averments made in the written statement of the respondent were denied and the contents and averments of the petition were reiterated and reaffirmed.

4. To prove his case the petitioner has examined himself as PW­1 and his evidence by way of affidavit is Ex. P­1, one Sh. S.Mehto, Medical Record Technician was examined as PW­2 and one Sh. Paras Nath as PW­3.

5. The documents exhibited are the sale deed Ex. PW­1/1, site plan Ex. PW­1/2, certified copy of the notice dated 04.06.2003 Ex. PW­1/3, certified copy of the postal receipt of registered AD Ex. PW­1/4, certificate E­662/07 Page 3 of 15 //4// of posting Ex. PW­1/5, certified copy Ex. PW­1/6, documents of treatment of petitioner Ex. PW­1/7 (colly.), certified copy of orders of slum courts, petition and written statement Ex. PW­1/8 (colly.) and copy of order of Sh. B.K.Garg, Commercial Civil Judge Ex. PW­1/9, record of medical treatment Ex. PW­2/1 (page no. 1­26), I card of Sh. S.Mehto Ex. PW­2/A.

6. On the other hand the respondent has examined himself as RW­1 and his evidence by way of affidavit Ex. RW­1/A and one Sh. Ramanand Verma as RW­3 and his evidence by way of affidavit Ex. RW­3/A. No witness was examined as RW­2.

7. The documents exhibited are the certified copy of the agreement to sale dated 27.07.84 Ex. RW­1/1, certified copy of the agreement to sale dated 07.05.90 Ex. RW­1/2, certified copy of the receipt dated 22.10.84 Ex. RW­1/3, certified copy of the receipt dated 27.07.84 Ex. RW­1/4, certified copy of the receipt dated 08.06.85 Ex. RW­1/5, certified copy of the receipt dated 07.05.90 Ex. RW­1/6, photocopy of electricity Bill dated August, 04, Jun, 2006, April, 2001, August, 2000, October, 2000 and December, 2001 alongwith receipt of payments are Ex. RW­1/7 (colly.), photocopy of ration card Ex. RW­1/8, photocopy of passport Ex. RW­1/9, E­662/07 Page 4 of 15 //5// photocopy of voter I.D Card is Ex. RW­1/10, certified copy of suit alongwith all documents Ex. RW­1/11 (colly.), certified copy of the legal notice Ex. RW­1/12, certified copy of the receipt dated 08.06.1985 Ex. RW­2/1, the certified copy of the agreement dated 27.07.1984 Ex. RW­2/2 and agreement/ikrrarnama dated 07.05.90 Ex. RW­2/3. It is important to mention here that the petitioner has expired during the pendency of this petition and his legal heirs have been brought on record.

8. Arguments heard. Record perused and considered.

9. Ld. counsel for the petitioner relied upon the following rulings :­

(i) Ved Prakash Ahuja Vs Raj Rani Chhatwal & Ors,168(2010)DLT 691.

(ii) Parkash Kaur Vs. Everest Construction Co., 1991 RLR 19.

(iii) K.W.Swaminathan Vs. E.V.Padmanabhan, 1991 RLR (SC) 140.

(iv) Om Prakash Gupta Vs. Rattan Singh and another, 260 SCR (1964).

(v) Sarwan Kumar and another Vs. Madan Lal Aggarwal, AIR 2003 Supreme Court 1475.

(vi) Mrs. D. David Vs. Miss R. Mukha, 1972 RCR 253.

(vii) Jeewan Kumar Khanna Vs. Ajudhia Pershad Murgai and others, VI 1988 (1) AIRCJ 724.

E­662/07 Page 5 of 15

//6//

(viii) Smt. Prativa Devi Vs. T.V.Krishnan, (1996) 5 SCC 353.

10. Ld. counsel for the respondent relied upon the following rulings :­

(i) S. Makhan Singh Vs. Smt. Amarjeet Bali, 154 (2008) DLT 211 (DB).

(ii) Nand Kishore Vs. Ved Prakash, 1999 (1) RCR 243.

(iii) Rajendra Tiwary Vs. Basudeo Prasad, 2002 (1) RCR 190.

(iv) Som Nath Vs. Smt. Krishna Devi Nayal, 1997 (1) RCR 693.

(v) Dhalu Ram and others Vs. Jessa Ram, 2004 (2) RCR 192.

(vi) Kilambi Vijayalakshmi vs. M.V. Seetha Devi (died) per LRs, 1998 (1) RCR 84.

11. The present petition has been filed u/s 14 (1) (e) r/w Section 25­B of DRC Act and in order to succeed in such a petition, petitioner has to prove

(i) Ownership of the suit premises; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) Bona fide requirement;. Let the same be discussed in detail.

Ownership and purpose of letting

12. PW­1 deposed that he was the owner/landlord of entire property bearing no. 2089, Katra Gokul Shah, Kucha Aakil Khan, Bazar Sita Ram, E­662/07 Page 6 of 15 //7// Delhi­110006 having purchased the same under registered sale deed dated 18.09.2000 from its original owners Sh. Surender Singh and others for valuable consideration. The tenanted portion in possession of the respondent shown red on the first floor in site plan Ex. PW­1/2. The respondent was old tenant in the suit premises prior to purchase by him on a monthly rent of Rs. 300/­. PW­1 further deposed that he had sent a notice dated 04.06.2003 upon the respondent informing him about the purchase of the property and the grounds of his eviction.

13. PW­1 deposed in his cross examination that he knew the respondent since 2004 as he was residing in the suit property as tenant. In the year 1989, Sh. Surender Singh and Usha Arora were the owner of the property. PW­1 further deposed that the notice was served for vacating the property and not for enhancement of rent. No rent had been paid by the respondent till date. He demanded rent only once from the respondent but he had refused to pay on the ground that he had purchased the property. The respondent was asked to vacate the property after one year of purchasing the same but he refused to vacate on the ground that he was owner of the property. PW­1 further deposed that Smt. Parkash Kaur become the owner of the property after the death of her husband Sh. Kartar Singh but he was E­662/07 Page 7 of 15 //8// not aware, if release deed dated 16.07.1987 was executed. The respondent is in possession of the suit premises with his family since 1983. The petitioner examined PW­2 to prove that he was suffering from ailments but as petitioner has expired, therefore, his medical record and deposition of PW­2 is immaterial. PW­3 is witness from the court of Competent Authority (Slum) and only brought the summoned file of case pending between the same parties in said court. The said documents were already exhibited by PW­1.

14. RW­1 deposed in his evidence that he was owner/landlord of the entire first floor with roof of property bearing no. 2089, Katra Gokul Shah, Kucha Aquil Khan, Bazar Sita Ram, Delhi­110006 and there was no relationship of landlord and tenant between the petitioner and respondent. He had purchased the abovesaid property from Smt. Parkash Kaur through agreement of sale dated 27.07.1984 in the presence of witness Sh. Prem Narayana and Sh. Ramanand Verma. The signature of Smt. Parkash Kaur is at point B and signature of Prem Narayana and Ramanand Verma at point C and D on Ex. RW­1/1. Agreement to sale dated 07.05.90 is also signed by Smt. Parkash Kaur at point B and witnessed by the said witness at point C and D and he had also signed at point A and the same is Ex. RW­1/2. RW­1 E­662/07 Page 8 of 15 //9// further deposed that he had paid the consideration amount to the previous owner vide receipt dated 22.10.84, 27.07.84, 08.06.85 and 07.05.90 and the said receipts were issued by Smt. Parkash Kaur which is Ex. RW­1/3 to RW­1/6 respectively. RW­1 further deposed that he has been in possession of the suit premises since the date of purchase and enjoying the possession as owner with the knowledge of the previous owner as well as of the petitioner. RW­1 further deposed that initially before the purchase of the suit premises by him the suit premises were let out to him by previous owner for residential cum commercial purposes.

15. RW­1 deposed in his cross examination that none of the documents Ex. RW­1/1 to RW­1/6 were on stamp paper. It is agreed that there is no date at point C on Ex. RW­1/4. RW­1 further deposed that Sh. Kartar Singh was the original owner of the property when he came into the suit property. He died and after his death his wife Smt. Parkash Kaur became the owner of the suit property. He did not know how many legal heirs were left by Sh. Kartar Singh but only Smt. Parkash Kaur and Sh. Majeet Singh were residing in the first floor. He never paid rent to Smt. Parkash Kaur. He came in the property in the year 1985 as owner of the same. RW­1 admitted that the notice Ex. PW­1/3 was served upon him by the petitioner but he did not E­662/07 Page 9 of 15 //10// remember whether he had sent any reply of the said notice or not. He did not know after how many years he had filed civil suit and denied that the civil suit no. 444/07 filed after 23 years. RW­1 denied that the original of RW­1/1 to RW­1/6 have been forged by him. RW­1 further deposed that he was not aware whether entire property bearing no. 2089, Katra Gokal Shah, Kucha Aqil Khan, Sita Ram Bazar, Delhi­6 was purchased by the petitioner from the owners.

16. RW­3, Sh. Ramanand Verma deposed that he knew Smt. Parkash Kaur, the previous owner of the property in question and her family members and also knew Sh. Vijay Prakash. Sh. Vijay Prakash is owner of two rooms set on the first floor i.e suit premises which he purchased vide agreement to sale dated 07.05.90 and made payment through receipts. RW­1 further deposed that he was attesting witness of payment receipt executed on 08.06.85 by Sh. Manjeet Singh and the same bears the signature of Manjeet Singh at point A and his signature at point C in Ex. RW­2/1. RW­3 further deposed that he is also attesting witness of agreement dated 27.07.84 which bears his signature at point A as witness no. 2, Sh. Manjeet Singh at point B as witness no. 1. Smt. Parkash Kaur and Sh. Vijay Parkash both signed at point C and D respectively on Ex. RW­2/2. E­662/07 Page 10 of 15

//11// RW­3 further deposed that he is also attesting witness to the receipt of payment of Rs. 25,000/­ dated 07.05.90 and agreement/Ikrarnama dated 07.05.90 which bears his signature at point A and also signed by Smt. Parkash Kaur at point C in his presence and the same is Ex. RW­2/3. RW­3 deposed in his cross examination that he was doing the work of manufacturing of jewellery and used to do his work in his house. The respondent is his son in law and he knew Smt. Parkash Kaur through the respondent. He did not know how many daughters Smt. Parkash Kaur had but she had only one son.

17. The petitioner is claiming himself to be the owner of the suit property on the basis of registered sale deed Ex. PW­1/1. On the other hand the respondent is claiming himself to be the owner of the suit premises on the basis of agreements to sale and payment of receipts Ex. RW­1/1 to RW­1/6. It is not in dispute that Late Sh. Kartar Singh was the original owner of the suit property and he died in the year 1971. There is also no dispute that Sh. Kartar Singh had not executed any Will in favour of any of his legal heirs, therefore, after death of Late Sh. Kartar Singh all his legal heirs become co­owners of the suit property. The contention of the respondent that he had purchased the suit premises from Smt. Parkash Kaur w/o Late E­662/07 Page 11 of 15 //12// Sh. Kartar Singh, who was owner, on the basis of agreements to sale Ex. RW­1/1 and RW­1/2 and he had also made the payment of the same to her has no substance as the respondent has failed to bring on record that after the death of Sh. Kartar Singh his wife Smt. Parkash Kaur became the sole owner of the suit property. Smt. Parkash Kaur had only undivided share in the suit property. Even, otherwise the respondent has not taken any steps, since 1984 till the death of Smt Prakash Kaur in 1993 and till further the filing of the present petition by the petitioner for eviction against him, to get registered the sale deed in his favour in respect of the suit premises. On the other hand there is a registered sale deed in favour of the petitioner which was duly executed by the legal heirs of Late Sh. Kartar Singh.

18. Considering all these facts, I am of the considered view that the respondent is still tenant in the suit premises and as the petitioner had purchased the suit property including the suit premises from its owners, therefore, the respondent become tenant under the petitioner. Hence this ingredient is decided in favour of the petitioner and against the respondent.

19. So far the purpose of letting is concerned, after the judgment of the Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) E­662/07 Page 12 of 15 //13// SLT 553, an eviction petition is maintainable on the ground of bona fide requirement in respect of the property which were let our for commercial purpose.

Alternative accommodation & bonafide requirement.

20. PW­1 deposed that he needed the suit premises for his residential purposes to live alongwith his family members. He was residing in property bearing no. 8­C, Pocket U & V, Block­B, Shalimar Bagh, Delhi­110088 on the second floor which was in the name of his wife. PW­1 further deposed that he was carrying on the business of sale and purchase of wedding invitation card on the ground floor of the suit premises since the year 1989 and purchased the suit premises with the intention to live in the same on upper portion of the property on account of his growing age and also on account of the reason that he had suffered heart problem as he had been operated twice. PW­1 deposed in his cross examination that the property at Shalimar Bagh was purchased for about 3 lacs by his wife in 1992. He has paid consideration for the flat in the name of his wife at Shalimar Bagh.

21. The respondent has not deposed anything about alternate accommodation and bonafide requirement of the petitioner in his affidavit E­662/07 Page 13 of 15 //14// for evidence. As stated above the petitioner has expired during the pendency of this petition and his legal heirs have been brought on record. The present petition was filed by the petitioner on the requirement of himself and his family members for living in the suit premises as the petitioner was doing his business from the ground floor of the suit property. The death of petitioner itself proves that his needs was genuine on medical ground. I am of the considered view that it was not only bonafide requirement of the petitioner to live in the suit premises but also of his family members, therefore, even after his death it is the bonafide requirement of his wife and children to live in the suit premises as his wife is doing the business on the ground floor under the suit premises. It is well settled law that neither the court nor the tenant can force the landlord to live in the property in which landlord does not wish to live. It was held by Hon'ble Supreme Court in M/s John Impacts Pvt. Ltd. Vs. Surender Singh, 2007 (1), RCR 509 that the landlord is best judge of his requirement and a tenant cannot dictate terms on which the landlord should live. Hence the ingredients regarding alternative accommodation and bonafide requirement are decided in favour of the petitioner and against the respondent. The rulings relied upon by the Ld. counsel for the respondent are not applicable to the facts of the present case.

E­662/07 Page 14 of 15

//15//

22. In view of the above discussions as all the ingredients of section 14 (1) (e) of DRC Act are proved therefore, the LRs of petitioner are entitled for an eviction order against the respondent. Accordingly the petition u/s 14 (1) (e) r/w section 25­B of DRC Act is allowed in favour of the LRs of petitioner and an eviction order is passed against the respondent in respect of property in question i.e a room and small kitchen on the first floor of property no. 2089, Katra Gopal Shah, Kucha Aquil Khan, Bazar Sita Ram, Delhi more specifically shown in red colour in site plan Ex. PW­ 1/2. However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.

File be consigned to Record Room.


(Announced in the open court 
on 17.10.2011)                                                                (Pritam Singh)
                                                                       ARC/Central/Delhi




E­662/07                                                                        Page 15 of 15