Delhi District Court
Bilaqis Fatima vs Syed Sabir Ali Nizami on 18 October, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 64/2008
ID No.: 02403R0961802007
1. Bilaqis Fatima
wd/o late Sh. Zulfiqar Ali Manna
2. Jawad Ahmed
s/o late Sh. Zulfiqar Ali Manna
3. Mohd. Hanif (Thekedar)
s/o late Sh. Ahmed Hussain
4. Mohd. Irfan Ahmed
s/o Sh. Abrar Ahmed
All R/o House No. 115 (Old)
77 (New) Basti Hazrat Nizamuddin,
New Delhi 110013. ... Appellants.
Versus
1. Syed Sabir Ali Nizami
(deceased) through legal heirs
(a) Gulshan Nizami (widow)
(b) Adil Fawad Nizami (son)
(c) Tania Sabrin (minor daughter)
Minor daughter through her mother and natural
Guardian Mst. Gulshan Nizami All R/o 90 (old),
51, Basti Hazrat Nizamuddin, New Delhi 110013.
ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 1 of 21
2. Syaed Makhdoom Ali Nizami
3. Syaed Mijahid Ali Nizami
4. Syaed Wajid Ali Nizami
5. Syed Nasir Ali Nizami
6. Syed Asad Ali Faisal Nizami
7. Syeda Nizhat Bano (deceased) through LR
(a) Dr. Mujeeb Ahmad
(b) Mohd. Mazhar Ahmad through guardian
Dr. Mujeeb Ahmad,
Both R/o 6198, Kucha Shiv Mandir, Fatehpuri, Delhi6.
8. Syed Talat Bano d/o late Syed Mohd. Aqil Nizami
9. Syed Kabir Bano
w/o late Syed Mohd. Aqil Nizami
All R/o H. No. 90 (Old)
51 (New) Basti Hazrat Nizamuddin,
New Delhi 110013. ... Respondents.
Instituted on: 07.12.2007
Judgment reserved on: 12.10.2011
Judgment pronounced on :18.10.2011
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as "DRC Act") is directed against judgment dated 07.11.2007 passed by Sh. Amit Kumar, Additional Rent Controller (ARC), Delhi in eviction case no. E292/2007 (2003) to the extent it found the respondents having ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 2 of 21 brought home the case for order of eviction against the appellants on the grounds under Sections 14(1) (b) & (j) of DRC Act in respect of tenanted premises described as property no. 115 (old) 77 (new), Basti Hazrat Nizamuddin, New Delhi 110013 more particularly shown in colour red in the site plan Ex. PW 1/A (hereinafter referred to as the demised premises).
2. Noticeably, in the impugned judgment the ARC had also held the respondents to have succeeded in proving the case for eviction under Section 14(1)(a) of DRC Act and consequently passed an order under Section 15(1) of DRC Act directing the appellants no. 1 to 3 to pay or deposit arrears of rent in respect of the demised premises at the rate of Rs. 30/ per month with effect from 01.05.1997 to 31.10.2007 within the period of 30 days of the said order, this apparently to avail the benefit of protection under Section 14 (2) of DRC Act, it being the case of first default. It has been mentioned in the memorandum of appeal that arrears in terms of the said order under Section 15(1) of DRC Act have been deposited with the ARC on 26.11.2007. During the course of arguments, it was fairly conceded by the respondents through counsel that no further or adverse order needs or can possibly be passed under Section ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 3 of 21 14(1)(a) of DRC Act, in view of the compliance under Section 15(1) of DRC Act.
3. The appeal challenging the directions/order under Section 14(1)
(b) &(j) of DRC Act has been resisted by the respondents.
4. During the course of hearing, the appellants moved three applications, two of them dated 07.10.2009 and the third dated 12.10.2011. One of the applications dated 07.10.2009 prayed for calling for the record of the court of ARC in respect of eviction case E134/72 decided by the Rent Controller and the other filed under Order 41 Rule 27 CPC in which it has been, interalia, claimed by the appellants that in terms of the decision in the said earlier eviction case, the respondents have lost their title as landlord. At the final hearing, the appellants also claimed that the property in question was an evacuee property and that it fell within the jurisdiction of competent authority(slums) and was also part of estate of Waqf. It has also been argued that the entire proceedings were incompetent, the proper permissions/ clearances from the competent authorities under the Evacuee Property Act, Slum Clearance Act and Waqf Act having not been applied for or taken at any stage. Interalia, with this objective the application moved on 12.10.2011 sought ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 4 of 21 directions to the respondents to answer certain interrogatories and produce, for inspection, certain documents, mainly to prove their title in respect of the property in question.
5. Since reference has been made to eviction case E134/72 which was a litigation earlier in terms of time to the litigation at hand, the facts thereof may be taken note of at the out set.
6. A copy of the eviction petition registered as E134/72 has been placed on record as Ex. PW 1/7. It was a petition brought by Syed Mohd. Aqil Nizami, admittedly the predecessorininterest of the respondents herein. The said eviction case was preferred against Zulfiqar @ Manna and Mohd. Haneef Thekedar. While Sh. Mohd. Haneef Tekedar continues to be the respondent in proceedings from which the present appeal arises, he having been arrayed as respondent no.3 there (he is now appellant no.
3), Sh. Zulfiqar @ Manna has since died, he having been succeeded by appellants no.1 and 2 (who were arrayed in the eviction petition before the ARC as respondent no.1 and 2.).
7. In eviction case no. E132/72, the predecessorininterest of the respondents sought an order of eviction against appellant no.3 and predecessorininterest of appellants no.1 and 2 on the ground of bonafide need of the premises for his own residential ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 5 of 21 purposes under Section 14(1)(e) of DRC Act. The said petition would allege that the premises was let out to the said two persons jointly on 27.03.1961 at the rate of Rs. 30/ per month. The premises was shown and described as two rooms, tinshed and latrine, it having been depicted in site plan Ex. PW 1/11C. Both the said respondents in the eviction case no. E134/72 contested the case through their joint written statement Ex. PW 1/8. Noticeably, the facts of joint tenancy and the extent of the tenanted premises, as indeed the rate of rent, were admitted, the contest essentially being to the claim of bonafide need.
8. The eviction petition no. E132/72 admittedly came to be dismissed by the court of ARC vide judgment dated 18.10.1976. A copy of certified copy whereof has been submitted by the appellants with the application under Order 41 Rule 27 CPC dated 07.10.2009, the genuineness of which document has not been disputed by the opposite side. A perusal of the said copy of the judgment dated 18.10.1976 would show that the petition was dismissed for the reasons the ARC was not satisfied about the bonafide requirement of the petitioners of that case.
9. The eviction petition out of which the present appeal arises was preferred by the respondents, and arrayed appellants no.1 and 2 ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 6 of 21 as the successorininterest of Zulfiqar @ Manna including appellant no.3 Mohd. Haneef Takedar, for the reason they were joint tenants. It was alleged that the said appellants no. 1, 2 and 3 had neither paid nor tendered the arrears of rent for preceding about 10 years inspite of repeated requests. It was claimed that notice of demand dated 11/13.08.1998 had been issued and served and inspite of the same the arrears have neither been paid nor tendered for the period legally recoverable. It was further claimed that the appellants no.1 to 3 had unauthorisedly constructed one room on the ground floor and two rooms on the first floor of the property without the consent of the landlord or sanction from the Municipal Corporation of Delhi (MCD) and that as a result of the said additional unauthorised construction cracks had appeared in the walls of the premises on the ground floor due to extra load added on the upper floor, it being beyond the capacity of the ground floor portion to bear. It was also alleged that respondents no.1 to 3 had sublet, assigned or parted with possession of the two additional rooms, additionally constructed on the first floor in favour of appellant no.4 without the consent in writing of the respondents herein.
10.The appellant no.2 chose to suffer the proceedings before the ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 7 of 21 ARC exparte.
11.The appellants no. 1 and 3 contested the case before ARC through separate but almost identical written statements. They questioned the relationship of landlord and tenant between the parties, denying the claim of the respondents herein to be the owner. It was claimed that late Sh. Zulfiqar @ Manna husband of the appellant no.1 was a tenant on the ground floor and that after his death besides the appellants no.1 and 2, three daughters had also succeeded his estate and since they had not been impleaded as party to the case, the petition was liable to be dismissed. The appellants no.1 and 3 denied having received any legal or valid notice. The liability to pay the rent to the respondents was disputed and it was claimed that nothing was due towards the said party on account of rent.
12.It was claimed in the written statement that appellant no.4 was in occupation of the two rooms on the first floor. But it was denied that he had been inducted as subtenant by the appellants no. 1, 2 and 3. the allegations of unauthorised construction and it having resulted in property being adversely affected or cracks having developed was also disputed. It was claimed that the said portion had been constructed by appellant no.2 in ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 8 of 21 197778 with the consent, knowledge and permission of the original landlord.
13.The appellant no. 4 through his own separate written statement dated 06.02.2001 claimed, interalia, that he had been in exclusive possession of the first floor since 197778 after constructing it himself with the consent of the original landlord, having incurred expenditure to the tune of Rs. 14,200/ which had been agreed by the predecessorininterest of the respondent to be adjusted towards rent payable in respect of the said portion at the rate of Rs. 50/ per month. He claimed that the said expenditure stood adjusted towards rent till November, 2000, where after he was ready to pay further rent to the rightful owner.
14.The case was put to trial by the ARC without a formal order under Section 15(1) of DRC Act having been passed, it having been deferred for the reasons set out in the order dated 15.01.2002.
15.In the course of evidence, the respondents examined respondent no.2 as PW1 on the basis of his affidavit Ex. P1. In addition to this respondent no.3 appeared as PW2 with Ms. Adesh Jain, advocate through whom notice dated 09.09.1998 ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 9 of 21 Ex. PW 1/6 had been issued also being examined as PW3.
16.On the other hand, the appellant no.1 appeared as RW1, on the strength of her affidavit dated 27.03.2003. In addition to that, the appellants examined Nizam Ahmed, a local resident as RW2 on the basis of his affidavit Ex. RW 2/X, besides one Wiqar Ahmed appearing as RW3 on the basis of his affidvit Ex. RW 3/X and appellant no.3 as R3W1 deposing through his affidavit dated 28.05.2003. The appellant no. 4 also examined himself as RW4 tendering his affidavit Ex. RW 4/X.
17.The parties to the case appearing as their own witnesses more or less stood by their respective versions in their examinationin chief. All the said witnesses were crossexamined by the opposite side.
18.On conclusion of the evidence of both sides, the learned ARC heard arguments and, thereafter, passed the judgment dated 07.11.2007 which has been impugned through the appeal at hand to the extent it granted relief to the respondents on the grounds under Sections 14(1)(b) & (j) of DRC Act. Noticeably, the appellant no.4 who had put in a separate contest before the ARC has joined the other parties as coappellant in this appeal.
19.I have heard Sh. Sanjay Gupta, advocate for the appellants and ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 10 of 21 Sh. S. H. Nizami, advocate for the respondents on the appeal as well as on the three applications mentioned above at length. I have gone through the record.
20. No purpose would be served by calling for the record of earlier eviction case registered as E134/72 in as much as the certified copy of the pleadings which are sought to be referred by the appellants have already come on record of the trial court. Therefore, application dated 07.10.2009 with a prayer to that effect stands disposed of.
21.The copy of the judgment dated 18.10.1976 passed by ARC dismissing the eviction of case no. E134/72 has been filed by the appellants and the correctness thereof has not been disputed. I do not find any observation in the judgment as could be construed as an adjudication resulting in the respondents loosing their title as landlord in respect of the demised premises as has been claimed in the application dated 07.10.2009 under Order 41 Rule 27 CPC. The judgments in case of Wadi V. Amilal & ors [JT2002(6) SC 16], Adil Jamshed Frenchman Vs. Sardar Dastur School Trust and others [AIR 2005 SC 996] and Jaipur Development Authority Vs. Kailashwati ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 11 of 21 Devi [AIR 1997 SC 3243] in context of prayer under Section 41 Rule 27 CPC do not help their case. Therefore, the said application is found devoid of merits and is dismissed.
22.Though in the pleadings before the ARC, it had been claimed by the appellants no.1 and 3 that the demised premises was part of estate of Delhi Waqf Board. Inspite of sufficient opportunity, no evidence in that regard was adduced. In absence of any evidence worth the name having been brought on record, the said contention seems to be a plea made just for the sake of contest and, therefore, no credence can be given to it.
23. It has never been the case of the appellants at any earlier stage that the property is part of an area declared to be Slum or in the nature of Evacuee Property. Therefore, contentions to that effect must be repelled.
24.The nonjoinder of the three daughters of the original tenant Zulfikar @ Manna was agitated before the ARC, who, however, rejected the said plea in view of the admission of appellant no.1 in her evidence that the said three daughters were married and had been living separately, they, thus, having impliedly surrendered their tenancy rights. In taking this view, ARC relied upon 1989(2) RCJ 629. The said finding has not been ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 12 of 21 challenged by the appellants any further.
25.The appellants no.1 to 3 did deny the relationship of landlord and tenant. They would question the title of the respondents vis avis the demised premises. But, it is apparent that the said denial was for the sake of denial. The appellants no.1 to 3 have claimed the tenancy rights visavis the demised premises in terms of the original letting out by late Syed Mohd. Aqil Nizami. The fact that respondents are successorsininterest of the said original landlord having not been disputed and it being an admitted case of the appellants that the parties were locked in litigation earlier through the eviction petition no. 134/72 resulting in above mentioned judgment dated 18.10.1976, wherein the jural relationship was admitted, it does not lie in their mouth to deny the status of landlord and tenant between the parties.
26.If any doubts were to persist the same would stand put to rest in view of the admission by PW2 about the tenancy having been taken initially by the appellant no.3 joining with the predecessorininterest of appellants no.1 and 2. Further admission came during the crossexamination of R3W1, though in the context of the partition wall having been raised at the ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 13 of 21 ground floor level dividing the demised premises at the ground floor between the appellant no. 3 at one hand and the appellant no. 1 and 2 on the other. In the face of above mentioned evidence, I am unable to find any fault with the view taken by the learned ARC in the impugned judgment.
27.I am, thus, satisfied that the respondents were successful in bringing home their case to the extent they had pleaded the relationship of landlord and tenant between them on one hand and appellants no.1, 2 and 3 on the other.
28.It may be added here that in the face of the admission of the relationship of landlord and tenant, it is not even otherwise open to the appellants to question the title of the respondents qua the property in view of the rule of estoppal contained in Section 116 of the Evidence Act. Further, for purposes of Section 14(1)(b) & (j) of DRC Act, the question of title was irrelevant, it being sufficient for the petitioners before the ARC to prove the status of landlord. It is not understood as to how, the appellants could continue to persist with this objection even in this appeal having conceded the judgment of ARC on the ground under Section 14(1)(a) of DRC Act.
29.In the above facts and circumstances, the application under ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 14 of 21 Section 11 CPC moved on 12.10.2011 praying for direction for interrogatories to be answered or documents to be produced for inspection is found to be frivolous and is, therefore, dismissed.
30.The facts and evidence submitted in support of the grounds of subletting and substantial damage to the demised premises have a bearing on each other. As mentioned earlier the litigation in eviction case no. E134/72 was on the basis of petition Ex. PW 1/7 and written statement Ex. PW 1/8. The tenancy was described in the said petition as comprising of two rooms, tin shed, courtyard and latrine. It was depicted similarly in the site plan Ex. PW 1/11C. Noticeably, in the written statement Ex. PW 1/8, the said extent of the tenanted premises was not specifically disputed. The copy of the judgment passed in the said case submitted by the appellants themselves confirms that there was no issue raised about the extent of the tenanted premises in those proceedings. Therefore, it is clear that at the time of inception of the tenancy and the conclusion of earlier case vide judgment dated 18.10.1976, the tenanted premises was in the shape as depicted in the said site plan only.
31.In the petition from which this appeal arises, which was filed on 31.05.2000, the landlord alleged additional construction ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 15 of 21 having been created in the form of two rooms on the first floor and one additional room on the ground floor, all unauthorisedly and with no consent of the landlord or sanction from the MCD having been obtained. It was also alleged that the said additional structure on the first floor has resulted in extra load being created causing cracks in the walls.
32.The existence of the two rooms on the first floor was not denied by the appellants. It was conceded that the said two rooms on the first floor were in the occupation of appellant no.
4. The allegations of substantial damage or cracks having appeared was refuted. The case of the respondents mainly was that the two rooms on the first floor had been constructed by the appellant no.4 with the consent, knowledge and permission of the landlord. Thus, the appellants no. 1, 2 and 3 would disown having any role to play in the said structure having been added or they having inducted respondent no.4 in the said portion, thus to also dispute the case of the landlord about the subletting or parting with the possession of the tenanted premises.
33.Though in the course of the trial, the parties which appeared as witnesses on either site of the divide have, by and large, spoken ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 16 of 21 along the lines of their respective case, certain very crucial admissions came out during crossexamination which clinch the issues in favour of the landlord.
34.R3W1, who is appellant no.3, during his crossexamination conceded that at the time of the earlier litigation (eviction case no. E 134/72), there was no room in existence on the roof. He admitted that the partition wall has been created at the ground floor in the tenanted premises without the permission of the landlord. Though he would claim in his statement on 02.12.2003 that the said partition wall was constructed 35 years back, he cannot be believed in that regard in the face of site plan Ex. PW 1/11C pertaining to the earlier case. He would place the construction on the first floor to be about 15 years old. This admission itself shows that the said structure was built subsequent to the earlier litigation and definitely after the letting out of the premises.
35. RW3 Wiqar Ahmed is a local resident and brother of the predecessorininterest of appellants no.1 and 2. During his crossexamination, he admitted that the tenanted premises as let out was a singlestoried structure and that it was appellant no.1 who had allowed appellant no.4 to occupy the roof of the ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 17 of 21 property in disputed, whereupon the appellant no. 4 had raised construction on that floor after the death of the original tenant Zulfikar (predecessorininterest of appellants no.1 and 2). During crossexamination of appellant no.1 (RW1), it came out that appellant no.4 is her real nephew (Bhanja).
36.Appellant no. 4, in his effort to prove the case of he having raised the construction with the consent of the landlord claimed that he had incurred expenses to the tune of Rs. 18,000/ to 19,000/ for constructing the two rooms on the first floor and that in consideration of the said effort he was inducted as tenant in his own rights at the rate of Rs. 50/ per month to be adjusted as expenditure. While I agree with the view taken by ARC in the impugned judgment that this kind of arrangement are highly improbable in that no prudent man would allow such construction to be raised at such a cost to be adjusted over a period of over 20 years, in the face of admission as noted above on the part of the appellant no.1, appellant no.3 and RW3, there need not be any reason to doubt the claim of the respondents that the structure on the first floor was allowed to be brought about not with the consent of the landlord but at the behest of the appellant no.1.
ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 18 of 21
37.The above admissions, thus, leave no room for doubt that the two rooms on the first floor level were constructed by or at the instance of the tenant where after they allowed appellant no.4, a stranger, to occupy the same. Since by their own admission, it is clear that the tenants (appellants no. 1 to 3) had not taken the consent of the landlord for such purpose, this act of commission on their part amounts to subletting or parting with possession of a portion of the premises within the meaning of Section 14(1)(b) of DRC Act. The appellants no.1 to 3 are thus, liable to suffer eviction order under that provision of law.
38. The admission about creation of partition wall in the premises on the ground floor as made by appellant no.3 has alredy been taken note of. Similar admission was made even by appellant no.1 (RW1) in the course of her crossexamination. She conceded that the suit premises, as originally let out, was up to the ground floor only. She admitted that the partition wall has been constructed between the portion held by her and the portion in the occupation of appellant no.3. Though she would claim that this partition wall may have been constructed after her husband may have obtained permission from the landlord, this is mere speculation rather than stated as fact. She further ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 19 of 21 conceded that verandah in front of the ground floor has also been covered with sheets. She admitted the fact that appellant no.4 had constructed the two rooms on the first floor and that this was done without the tenant having obtained permission from the landlord.
39.When the respondents witness PW1 was under cross examination, at the instance of the appellant no. 4, it was suggested to him that cracks had appeared in the wall due to construction of the rooms at the first floor. PW1 admitted this suggestion as incorrect, though clarifying "no further damage"
had been caused to the demised premises. This suggestion carries within an implied admission on the part of appellant no. 4 that the additional structure built on the first floor level has resulted in cracks developing in the walls of the ground floor portion which had been originally let out. Apparently, the cracks would have appeared on account, and as a result, of extra load having been added at the first floor level.
40.The construction on the first floor being undoubtedly in the nature of unauthorised structure, it not being the case of the tenants that any sanction had been obtained from the municipal authorities, these facts lead to the irresistible conclusion that the ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 20 of 21 value and utility of the tenanted premises has been impaired and substantial damage caused thereto within the mischief of Section 14(1)(j) of DRC Act.
41.In above facts and circumstances, the view taken by the learned ARC in the impugned judgment concerning the prayer for order of eviction under Section 14(1)(j) of DRC Act cannot be faulted.
42.Thus, the appeal is found devoid of merits and is dismissed.
43. The case was decided on 07.11.2007 by ARC then sitting at Tis Hazari Courts. Delhi has since been divided into 9 civil Districts. The jurisdiction over the matter now vests in the Rent Controller (South). Therefore, the trial court record be returned with copy of this judgment to Sh. Sandeep Yadav, Rent Controller (South) who shall make it over to the successor court of the ARC who decided the case. File of the appeal be consigned to Record Room.
Announced in open Court today on this 18th day of October, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT No. 64/08 Bilaqis Fatima Vs. Syed Sabir Ali Nizami & anr. 21 of 21