Delhi District Court
Anup Singh vs Sushil Kumar Bansal on 6 February, 2017
34
IN THE COURT OF SH. BHUPINDER SINGH, ADMINISTRATIVE
CIVIL JUDGECUMARC (NORTH WEST), ROHINI COURTS,
DELHI
New E. No. 5421/16
Old E.No. : 54/15
Anup Singh
S/o. Late Sh. Kunje Lal
R/o. Flat no. 127,
Canara Apartments,
Group Housing Society,
Sector13, Rohini,
Delhi.
...Petitioner
Versus
Sushil Kumar Bansal
S/o. Sh. Raj Kishore Bansal
R/o. Flat no. 271,
Canara Apartments,
Group Housing Society,
Sector13, Rohini,
Delhi.
...Respondents
Date of Institution : 13.09.2011
Date of Arguments : 16.01.2017
Date of Judgment : 06.02.2017
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34
34
PETITION FOR EVICTION OF TENANT/RESPONDENT UNDER
SECTION 14 (1) (e) READ WITH SECTION 25B OF THE DELHI
RENT CONTROL ACT, 1958
JUDGMENT
1. Initially, the petition was filed under Section 14 (1)(e) and (h) of the DRC Act r/w/s 25B of the DRC Act. However, the petitioner vide his statement dt. 13.09.2011 withdrew his relief qua Section 14 (h) of the DRC Act and as such the petition has been pursued only under Section 14 (1) (e) of the DRC Act.
2. The brief facts are that the petitioner is stated to be the owner of the tenanted premises i.e. Flat no. 271, Canara Apartments, Sector13, Rohini, Delhi110 085 having purchased from one Smt. Abha Rana by way of a notarized agreement to sell dt. 03.12.2004. It is stated that most of the consideration amount was paid to Smt. Abha Rana who informed the respondent about such disposal of the tenanted premises and directed him to pay the future rent to the petitioner directly. It is submitted that thereafter the respondent used to pay the rent to the petitioner directly. It is stated that on 13.06.2011 an agreement to sell was entered in between the petitioner and Smt. Abha Rana which was duly registered before the subregistrar. It is stated that the respondent became the tenant of the petitioner w.e.f.
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 December 2004 and started paying rent to him exclusive of other charges. It is stated that the rent was paid in cash and since the respondent never demanded any rent receipt, no such receipt was ever issued by the petitioner.
3. Further, it is stated that the respondent paid the rent till December 2009 and stopped paying the same thereafter and as such has defaulted in payment of the rent till date. It is submitted that a legal notice dt. 16.07.2011 was sent by the petitioner through his counsel for termination of the tenancy of the respondent. The said notice is stated to have been duly received by the respondent who replied vide letter dt. 30.07.2011 in which he is stated to have admitted the rent of the premises to be Rs. 2700/ per month exclusive of other charges but claimed that the rent has been paid upto that date. It is stated that the actual rate of rent was Rs. 10,000/ per month but to avoid any technicality/controversy, the rate of rent is accepted to be Rs. 2700/. It is stated that in the said reply, the respondent tried to portray daughters of the petitioner as the owner of the tenanted premises which is factually incorrect. It is stated that as of now the petitioner who is above 80 years of age and is suffering from various old age ailments is residing with his younger son at Flat no. 127, Canara Apartments, Rohini, Delhi. Another son of the petitioner Sh. Narender Mann is stated to be residing at flat no. 20, Canara Apartments, Sector13, Rohini who is not E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 ready to keep the petitioner in his flat. The flat wherein petitioner is residing with his son Sh. Yogesh Mann is stated to be a MIG Flat, not sufficiently big to accommodate his family members which consists of his wife and one marriageable aged boy who is likely to be married soon. It is stated that after the demise of wife of the petitioner, the behaviour of his son and daughter inlaw is changed and he is treated as a burden upon them. It is stated that due to lot of humiliation and insult at the handed of his son and daughterin law, there is no possibility to further reside in the flat of Sh. Yoginder Mann/son of the petitioner.
4. Further, it is stated that for such reasons, the petitioner wants to reside in his own accommodation without any pressure from any corner. It is stated that the flat owned by the other son of the petitioner is on second floor which creates lot of problem to the petitioner while climbing up and down the stairs and as such the tenanted premises which is on the first floor is more suitable and convenient to him. It is stated that sufficient space is required by the petitioner to accommodate his married daughter, relatives friends etc. who come to see him occasionally and as such the tenanted premises are required bonafidely by him. It is stated that the respondent who was initially inducted as tenant by erstwhile owner Smt. Abha Rana has also acquired a share in property bearing no. E142, Prashant Vihar, which is E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 sufficient for his use.
5. Leave to defend was filed by the respondent wherein he submitted that the petitioner is not the owner of the tenanted premises since the documents relied upon by him in support of his ownership are only an agreement of sell and power of attorney and there being no registered sale deed having been executed, the petitioner cannot to said to be the owner of the tenanted property. It is stated that the petitioner is also not the landlord since the rent is being paid to the real owner/landlady Ms. Abha Rana @ Abha Rathi through her brother and agent Sh. Narender Mann.
6. Leave to defend was granted to the respondent vide order dt. 03.08.2012 and respondents were directed to file the WS. After completion of pleadings, evidence was led wherein the petitioner examined himself only. The respondent did not enter into the witness box himself and got examined four witnesses in defence.
7. I have heard Sh. Vivek Gupta, adv. for the petitioner and Sh. Neeraj Gupta adv. for the respondent. Record perused.
Ld. Counsel for the petitioner submitted that the petitioner has been able to prove that he is the landlord as well as the owner of the E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 tenanted premises which are required bonafidely by him. In support of his contentions he has relied upon the following judgments :
I) J.C.Mehra Vs. Kusum Gupta, passed by Delhi High Court on 26.05.2003 II) Jagdish Chander Gulati vs. Ram Chander Lakram, passed by Delhi High Court on 11.11.1991 III) Bishambhar Dayal Gupta Vs. Naresh Kumar Sharma, passed by Delhi High Court on 21.07.2014 IV) Mohd. Ayub & Anr. Vs. Mukesh Chand, passed by Apex Court on 05.01.2012 V) Kashmiri Lal Kataria Vs. Navneet Gupta, passed by Delhi High Court on 10.07.2014 VI) Anil Bajaj & Anr. Vs. Vinod Ahuja, passed by Apex Court in the year 2014 VII) Kranti Kumar Parakh Vs. M/s. Annraj Narain Dass, passed by Delhi High Court on 30.06.2015 VIII) Plastichemicals Company Vs. Ashit Chadha & Anr. passed by Delhi High court on 31.08.2004 E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 IX) Indian Institute of Finance Vs. Shakti Power (P) Ltd., passed by Delhi High Court on 10.10.2006 X) Vidhyadhar Vs. Manikrao & Anr., passed by Delhi High Court on 17.03.1999.
8. It has been submitted by Ld. Counsel for respondent that the petitioner has miserably failed to discharge the onus upon him. It is stated that the documents relied upon by the petitioner, nowhere reflects that at the time of execution of such documents, the respondent was a tenant therein which is an admitted fact. It is further submitted that no attornment/notice of purchase of the tenanted premises was ever given to the respondent and it is not even mentioned in the agreement to sell etc. It is further submitted that Sh. N.S.Mann, through whom the tenanted premises was given on rent, was never examined. It is further submitted that the house tax receipts relied upon i.e. Ex.PW1/1, Ex.PW1/2 and Ex.PW1/3 are all of later dates. Ex.PW1/4, Ex.PW1/14 and Ex.PW1/15 are stated to be forged and fabricated. It is submitted that on Ex.PW1/4, which is account statement of Ms. Abha Rana, neither her parentage nor address are mentioned. Further that in Ex.PW1/14, which is agreement of sell dt. 03.12.2004, the serial number of notary is not there. Further in Ex.PW1/15, which is registered E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 agreement to sell, the same is stated to be valued at Rs. 15,82,000/, however, the total consideration of Rs. 2,90,000/ is only stated to have been paid. Further that on the back of page 3 of Ex.PW1/15, stamp is over the thumb impression which is not possible and the back of the last page of the agreement to sell and the GPA as well neither bears the signatures of either parties nor their photographs. Further that the GPA Ex.PW1/16 and the agreement to sell Ex.PW1/15 were executed on different dates i.e. 26.06.2011 and 27.06.2011 respectively which is not done usually. The judgments filed by the petitioner in support of his contentions were tried to be distinguished by the Ld. Counsel for respondent mainly on the ground that the title of the tenanted premises cannot be transferred just on the basis of an unregistered agreement to sell and that registered GPA should have been there. Further that the judgments touching the aspect of bonafide requirement cannot be taken into consideration unless the petitioner proves himself to be the landlord which is not a case in the present petitioner since no rent was ever tendered to petitioner. He also relied upon the judgment titled Satish Bansal Vs. Neelam Gupta of Hon'ble High Court of Delhi R.C.REV. No. 470/12 DOD 04.10.2012.
9. Before adjudicating the petition on the basis of the requirements of Section 14(1) (e) of the DRC Act, I deem it appropriate to discuss E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 whether the petition is hit by provisions of 14 (6) of the DRC Act as argued by Ld. Counsel for respondent submitting that since the agreement to sell dt. 03.12.2004 which is Ex.PW1/14 is unregistered, five years have to be calculated from 27.06.2011 wherein the petitioner and previous owner Ms. Abha Rana entered into fresh agreement to sell Ex.PW1/15 which was registered.
10. The judgment of Hon'ble High Court of Delhi in J.C. Mehra Vs. Kusum Gupta cited as 117 (2005) DLT 506 is relevant here wherein it was held :
"16. The court held that in order to evict a tenant under Section 14 (1) (e), the period of five years begins from the date when the person makes an agreement to sell and power of attorney (purchase) in his favour. The expression owner has not been defined in the DRC Act and by reference to judicial pronouncements including judgment of the Supreme Court, it has held that the expression ''owner' is not an owner in an absolute sense but the expression refers only to a person who has right/title more than the tenant.
17. Section 14 (6) of the Delhi Rent Control Act was enacted to ensure that an owner, who cannot evict a tenant should not be allowed to transfer the property so that now owner can evict the tenant. New owner may be genuinely needing the premises for his bonafide needs but E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 the legislature thought that the mischief by transfer of property to a new owner is greater than the restriction placed on the new owner and a five years ban was imposed on the new owner from evicting the tenant.
18. It is clear from the aforesaid that the concept of power of attorney sale has been recognized as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied by other documents including GPA, Wills, Affidavits and payment of full consideration and transfer of possession. On a perusal of documents shows that power attorney was for consideration within a meaning of Section of 202 of the Contract Act. Interest was thus created in the property in favour of the respondent in the year 1993. Possession was also handed over so was the right to recover rent. Thus the respondent acquired the premises by transfer in part performance of agreement to sell and got notional possession of the premises, which continued to be in possession of tenant, for all intends or purposes. Execution of a conveyance deed is a subsequent event after the acquisition of the premises by the respondent by virtue of power of attorney sale. The respondent thus became a landlord on the date when agreement to sell was executed and he got symbolic possession of the suit premises. Section 14 (6) of the Delhi Rent Control Act will not stand in the way of the respondent in asking of recovery of possession on the basis of power of attorney sale. Because the period has to be reckoned not from the date of conveyance but from the date of power of attorney sale was made."
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34
11. Ld. Counsel for the respondent argued that this judgment cannot be applied to the present facts as in the said judgment, agreement to sell was coupled with GPA. However, the said contentions are misconceived as herein, the agreement to sell is coupled with consideration, handing over of original chain of papers and possession of the tenanted premises. Even if no perfect title has been conferred upon the petitioner by way of such agreement to sell, an interest in the same has nevertheless been created in his favour. Subsequent to execution of agreement to sell dt. 03.12.2004 which is Ex.PW1/14, Ms. Abha Rana has not exercised any right contradictory to that of the petitioner and has received entire consideration and thus had created an interest in the favour of the petitioner on 03.12.2004 itself. As such Section 14 (6) of the Delhi Control Act in no way obstructs the petitioner in filing the present petition since the prescribed period of five years has to be reckoned from 03.12.2004 and not from the date of registered agreement to sell dt. 27.06.2011.
Even otherwise, the Hon'ble High Court of Delhi in Tahira Begum Vs. Sumitar Kaur & Anr., 166 (2010) DLT 443 has gone a step further in holding that if during the pendency of the petition under Section 14 (1) (e) of DRC Act, the time period of five years approach, the bar of Section 14 (6) of the DRC Act would not be available to the respondent. In the present case though the registered agreement to sell dt. 27.06.2011 has E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 not been relied upon for the purpose of transfer of ownership in favour of the petitioner, even then five years have expired since then. As such the petition is not hit by Section 14 (6) of the DRC Act.
12. The petition under Section 14 (1) (e) and leave to defend filed under Section 25 (B) of DRC Act has to be decided on the following parameters :
i) The relationship of landlord and tenant between the parties and the landlord being the owner of the premises
ii) Bonafide requirement of the landlord for the tenanted premises and
iii) No other alternative accommodation being available with the landlord so as to satisfy his/her requirement
13. It is pertinent to mention that leave to defend was granted to the respondent as the court at that time was of the view that whether the land lordship qua the respondent exists in favour of the petitioner or not and the ownership of the property were such issues that required evidence to be led by the parties. After the evidence was led by both the parties, the contentions of the petitioner raised in the petition has to be seen/reassessed in the light of the evidence.
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 RELATIONSHIP OF LANDLORD AND TENANT AND OWNERSHIP THEREOF
14. In his testimony, the petitioner has deposed that he is the owner as well as landlord of the tenanted premises. Further that the respondent was paying rent to him w.e.f. December 2004 till December 2009. The petitioner in his crossexamination denied the suggestion so given by the Ld. Counsel for respondent that the documents on the basis of which he is claiming the ownership of the tenanted premises are forged and fabricated and that Ms.Abha Rana never sold the property to him.. He also denied the suggestion that the respondent was never his tenant and volunteered to say that the same was paid to his son Sh. N.S. Mann. In his crossexamination, the petitioner admitted that he never got the possession of the tenanted premises as mentioned in Ex.PW1/22 and volunteered to say that he did not receive the possession as the respondent did not leave the same.
The relationship of landlord and tenant has been disputed by the respondent. It has been submitted that the petitioner is neither the landlord nor the owner of the tenanted premises. However, apart from giving mere suggestions to the petitioner in his crossexamination which remained unshaken, no positive evidence to prove his contentions has been brought by the respondent who even himself did not enter the witness box to state his E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 averments on oath. The respondent only tried to make out his case from the testimony of the petitioner. It is submitted that the documents relied upon by the petitioner, in particular Ex.PW1/4 and Ex.PW1/15 are forged and fabricated and as such do not confer any title upon the petitioner.
Section 2 (e) of the Delhi Rent Control Act defines the term landlord as under:
"Landlord means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person, or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant."
15. It is well settled that for the purpose of Section 14 (1) (e) of the DRC Act, the petitioner is not required to prove his absolute ownership and has to show that he has a title better than that of the respondent/tenant i.e. he has to be something more than a tenant. Further the onus is upon the respondent who alleges so, to tell that if not the petitioner then who else is the owner. The onus that someone else is the owner of the tenanted premises was upon respondent who failed to discharge the same. In his WS, the respondent stated that one Ms. Abha Rana @ Abha Rathi is the owner/landlady of the tenanted premises and he has been paying rent to her E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 through her brother/agent Sh. Narender Mann. The respondent never appeared in the witness box to depose and as such his averments made in his WS remains unproved. As such nothing has come on record as to who as per the respondent is the actual owner/landlord. No evidence has been led by the respondent to show that he has been actually paying rent to such Ms. Abha Rana and has failed to bring on record any proceedings that have been alleged to have been taken against Ms. Abha Rana seeking injunction against her as averred in the WS. As per definition of landlord provided Section 2 (e) of the DRC Act, landlord includes a person who receives or is entitled to receive the rent of the tenanted premises. Though the respondent has denied that no rent has been paid to the petitioner, still there is nothing on record to suggest that the petitioner is not entitled to receive rent. If Ms. Abha Rana would have chosen to exercise her right to claim the rent, she would have claimed the same in appropriate proceedings. By not claiming the rent, she has honoured the right of the petitioner to claim rent on the basis of documents executed between them.
16. Section 101 Act of Indian Evidence Act provides that onus to prove a fact is on the party who asserts it. It was the contention of the respondent that it is Ms. Abha Rana and not the petitioner who is the landlord/owner of the tenanted premises. As such, onus was upon the E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 respondent to examine Ms. Abha Rana failing which an adverse inference can be drawn against him. Only after the respondent would have led evidence to show that Ms. Abha Rana was landlord/owner, the onus to disprove the said fact would have fallen on the petitioner. Reliance is placed on the judgment of High Court of Delhi in case titled as Kranti Kumar Parakh Vs. M/s. Annraj Naraian Dass & Ors., RC.REV.217/2014, DOD 30.06.2015 wherein it was held as under :
"12......As regards nonexamination of Sohan Lal whom the respondents stated to be the tenant, no material was placed by the respondents for this claim. Section 101 of the Evidence Act provides that onus to prove a fact is on the party who asserts it. The assertion was of the respondents that Sohan Lal is a tenant and except a bald averment no material was placed. As against, the petitioner replied that Sohan Lal was only a caretaker looking after the property and his family did not reside in the suit property. Since the assertion of Sohan Lal being a tenant was of the respondents an adverse inference could not be drawn against the petitioner for nonexamining Sohan Lal. Only after the respondents would have led evidence to show that prima facie Sohan Lal was tenant for which they were granted leave to defend, the onus to disapprove the fact that Sohan Lal was not a tenant but a caretaker would have fallen on the petitioner......"
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34
17. It is pertinent to mention that that the documents regarding transfer of ownership of the tenanted premises from erstwhile owner Sh. M.Eaknath (original allottee) to Ms.Abha Rana have been filed on record by the petitioner and the same have not been challenged. Vide agreement to sell dt. 03.12.2004 which is Ex.PW1/14 Ex.PW1/14 which reflects that the whole consideration has been paid, Ms. Abha Rana have transferred all the rights, title or interest to the petitioner. The respondent has termed agreement to sell dt. 03.12.2004 as forged and fabricated just on the basis that it does not bear the serial number of the notary public. Further that the same by itself does not confer any ownership upon the petitioner. As mentioned earlier, the petitioner is not required to prove his absolute ownership and has to show only that he has a title better than that of the tenant. The identity/signature of Ms. Abha Rana has not been termed as forged. As has come in the WS, the respondent has obtained injunction against her. It goes to show that Ms. Abha Rana is well aware of the present proceedings and the very fact that she has not challenged the present petition reflects that she also honours the documents that have been relied upon by the petitioner to have been executed between them. Since the entire consideration of Rs. 2,90,000/ has been paid vide demand drafts as mentioned in the agreement to sell dt. 03.12.2004 and reaffirmed by Ms. Abha Rana in her affidavits Ex.PW1/17 and Ex.PW1/19 both dt.
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 13.06.2011, original documents being in possession of the petitioner, intention of Ms. Abha Rana to transfer the ownership of the tenanted premises in 2004 itself is evident.
18. The respondent has no business to question the interse arrangement between the parties regarding the transfer of the tenanted premises. Whether the mode of transfer is valid as per law or suffers from any defect is a question alien to the respondent. He cannot be allowed to question or test the veracity/authenticity of such title documents. The present petition is not to declare the authenticity of the documents or to decide title to the tenanted premises.
19. The contentions of Ld. Counsel for the respondent that he has never attorned the petitioner to be his landlord and that the petitioner never got the possession of the suit property is without any basis. The said contention has been adjudicated by Hon'ble High Court of Delhi in the judgment titled as J C Mehra Vs. Kusum Gupta decided on 26.05.2003, wherein the issue as to whether a person who purchases a property by means of an agreement to sell for consideration along with possession (or the right to recover rent), and power of attorney can seek to evict the person E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 after five years of execution of such documents in his favour has been discussed. It has been held as under :
"It is not right to say that it needs a tenant's consent to attornment before the delivery of possession takes place.
Once possession or right to recover rent has been handed over, it is sufficient delivery of possession. Delivery of possession does not have to be physical. In these circumstance, i.e for power of attorney sales, so long as the right to recover rent has been handed over, it is sufficient. The question is transfer of that right. Whether consequent to such transfer, the transferee exercises these rights or not is not germane because it is transfer of that right and not exercise of it that is relevant or matters.......................................................
The law Lexicon by P. Ramantha Aiyer, 2nd Edition 1997 (Page 1848) defines symbolic delivery as under:
"Symbolic delivery is a substitute for actual delivery when the latter is impracticable and leaves the real delivery to be made afterwards. As between the parties, the whole title passes by such delivery, when that is their intention."
Further in para 20 of the said judgment , it has been held that :
"If .................................. If a property is tenanted , the sale thereof by any accepted mode does not have to be E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 dependent or await attornment by the tenant. It depends on the agreement to sell, full payment and transfer of right to recover the rent as distinct from sending a letter of attornment to the tenant. The contention of the petitioner that asking the tenant to attorn is imperative, may now be tested. If attornment letter is not sent by the purchaser would it mean that only after giving information the power of attorney sale would be complete or that the statutory authorities would assess the previous owner and not the purchaser as the owner. The answer to each is in negative. To my mind omission to ask the tenant to attorn cannot be fatal or postpone the actual sale till that is done."
20. Only Ms. Abha Rana could have challenged the transfer of the title of the tenanted premises from her to the petitioner, that too in appropriate proceedings. The discrepancies that have been pointed out by the Ld. Counsel for respondent that the agreement to sell Ex.PW1/14 being unregistered, genuineness of the MCD receipts Ex.PW1/1, Ex.PW1/2 & Ex.PW1/3, statement of account of Ms.Abha Rana Ex.PW1/4, GPA Ex.PW1/16 and agreement to sell Ex.PW1/15 having been executed on different dates are not of much importance for the purpose of deciding the present petition. Whether the consideration exchanged between the parties for the transfer of title of the tenanted premises is adequate cannot be allowed to be questioned by the respondent. A part consideration amounting to Rs. 1,00,000/ as mentioned in agreement to sell dt. 03.12.2004 which is E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 Ex.PW1/14, has been proved by DW1 who deposed that a demand draft of Rs.1,00,000/ was prepared on 03.12.2004 by debiting account number 008420 of the petitioner. It is not the requirement of law that the entire consideration has to be paid from the purchaser only.
21. In Ram Kumar Vs. S K Gulati decided by the Hon'ble High Court of Delhi on 16.09.2013, in para 28, it has been observed that :
"It is the settled position in law that in a suit between landlord and tenant, it is only the title as landlord which is relevant and not the title as "owner". Further in para 31 it is further observed that " this is as aforesaid, a litigation between the person claiming to be having rights as owner in an apartment, and the tenant in occupation of the apartment. Once it is found that the person claiming rights in the apartment has rights as per the practice prevalent, even if there may be any imperfections under the law with respect to such title, the said imperfections cannot vest the tenant with a benefit against a person claiming such rights in the apartment and such imperfections would not come in the way of such persons having rights in the apartment, exercising his rights as landlord thereof".
Further in para 35 of the same judgment, it has been held that " I am afraid that the aforesaid contention is also in oblivion of the settled legal position". It has been held in Nalakath Sainuddin Vs Koorikadan Sulaiman , E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 (2002) 6 SCC 1, Mahendra Raghunath Dass Gupta Vs. Vishwanath Bhikaji Mogul (1997) 5 SCC 329 and Mohar Singh Vs. Devi Charan (1988) 3 SCC 63, that on transfer of tenanted premises by the landlord , the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and tenant is not dependent upon any overt act on the part of the tenant . In the present case , no document of rights if any in the said shop in favour of any other heir of Sh. K R Jolly is shown and thus payment of rent even if any by the appellant / defendant to any other heir of Sh K R Jolly would be of no avail ; as aforesaid it has been established that it was Smt. Chander Mohini Jolly who was the owner of the said shop and who has assigned the same in favour of the respondent / plaintiff and it is thus the respondent / plaintiff alone who will be the landlord.
22. There is mere denial to the effect that petitioner is not the owner and no such disclosure about the name of the owner has been made in evidence. Reliance is placed upon AIR 1987 SC 2008, 85 (2000) DLT 197. Petitioner did not get the opportunity to cross examine the respondent on this averment. As such the plea of the respondent that the petitioner is not the owner of the premises in question is not tenable since for the purpose of Section 14 (1) (e) of the DRC Act, the petitioner is not required to prove his absolute ownership and it is sufficient if it is shown that he is more than a E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 tenant which he has been able to.
Hence the issue of landlordtenant and ownership, for the purpose of this petition is decided in favour of the petitioner and against the respondent.
BONAFIDE REQUIREMENT OF THE LANDLORD
23. That, regarding the bonafide requirement of the landlord has to be judged on the basis of parameters set by series of pronouncements of Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. In this regard, it is pertinent to note the observation of the Hon'ble Appex Court in case titled as Sarla Ahuja Vs Union of India, 1998(2) RCR 533, wherein it was held that the crux of the ground envisaged in clause(e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bonafide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by Courts that it is not for the tenant to dictate terms of the landlord as to how else he can E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
In the case of Roop Lal Mehra v. Kamla Soni, the scope of the term "bona fide requirement" was considered and it was held that in determining the personal requirement of a residential premises the Court has to find out whether or not the requirement of possession is bonafide and whether or not the premises already in possession of the landlord afford a reasonably suitable alternative accommodation. It was observed that it would be incorrect to suggest that the question of accommodation in possession of the landlord being reasonably suitable is to be judged solely in the context of the physical sufficiency of the accommodation and that the Court may hold that accommodation insufficient having regard to various circumstances, such as the social status of the family or the traditions and customs observed by it. It was further held that so long as the landlord was able to establish that he in good faith and genuinely wished to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, if would not be open to the controller to weigh the claim of the landlord in a fine scale and that the suitability of the other accommodation will have also to be considered from the standpoint of a E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 reasonable landlord. It was also observed that the law did not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises with a tenant and for deciding whether or not the alternative accommodation available to the landlord is suitable, the social customs, conventions and habits, usage and practices of the society cannot be approached from the point of view of a reasonable man and not that of a whimscale landlord. It was thus observed that "the decision of the landlord would be both subjective and objective".
24. In the present case in hand, the premises are sought by the petitioner who is over 85 years of age and stated to be suffering from various old aged ailments including joint pain. In his testimony, the petitioner deposed that he is presently residing with one of his sons Sh. Yoginder Mann in a MIG Flat consisting of two bed rooms, one drawing, two toilets, a kitchen and a balcony . The family of Sh. Yoginder Mann is stated to be consisting of his wife, one boy of marriageable age. Petitioner in his testimony has deposed that after the death of his wife on 25.06.2010, the behaviour of his son and daughterinlaw has not been good and proper. It has been deposed that he is illtreated by his son and daughterinlaw and considered as a burden. It has been deposed that there is no possibility of him residing with them and he also requires some private space to perform E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 his daily chores like performing of pooja, meeting with relatives. friends who visit him occasionally. Further that his married daughter also visits him and he has no space to accommodate such guests. It has also come in his testimony that the flat where he is residing as of now is on second floor and the tenanted premises which is located on the first floor is much suitable and convenient to him. In his crossexamination, he denied the suggestion that he is not suffering from any kind ailments. The age of the petitioner is not disputed and as such in the opinion of the court, he was not required to furnish his medical records. Certain ailments, in particular joint pains, do occur at such later stage of life which may not even be consulted with any medical practitioner and may not have any medical record. As such this contention of Ld. Counsel for the respondent is misconceived. Tenanted premises on a lower floor is more suitable to the petitioner. Further, it was contented by Ld. Counsel for the respondent that the averments of the petitioner that he is not taken care of by his daughterinlaw and son is false as Ex.PW1/15 i.e. the agreement to sell has been witnesses by his daughter inlaw with whom he is residing and in his crossexamination the petitioner has admitted that his sons are respectful and caring towards him and that he made only a generalize statement i.e. nowadays daughterinlaws do not take care of their inlaws. First part of the said argument is not factually correct. The said agreement to sell has been witnesses by Smt. Indu Bala w/o. Sh.
E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 N.S. Mann, the other son of the petitioner and not the one with whom he is stated to be residing. Further the petitioner was not required to specify each and other aspect of the illtreatment he has alleged to have been met with. Even a single incident of being even ignored is sufficient for a man of self respect to get hurt. The petitioner has deposed that he is not being properly treated by his son with whom he is residing and it is not expected that he would give it a 'try' by residing with his second son in the hope that he will be treated better there. The petitioner is a retired police officer owning a separate accommodation and as such his wish to stay in such a separate accommodation with comfort and peace, independently cannot be termed as unjustified.
In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna &Anr.
153 (2008), DLT 652 it was held that :
"it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background".
25. No crossexamination has been done on the point of number of family members. As regarding the space available in the said flat wherein E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 the petitioner is residing with his son Sh. Yoginder Mann i.e. 127, Canara Apartments, Sector13, Delhi, suggestion was put to the petitioner that a room has been built after covering the balcony of the said flat which was denied by him. It has been argued that no site plan of the flat has been filed. Judicial notice can be taken of the fact that an MIG Flat consists of 2 BHK only. Though the factum of balcony being converted into a room has not been proved by the respondent, even otherwise, admitting the contention of Ld. Counsel for the respondent that a balcony has been converted into a room, nothing has come on record that such balcony is sufficiently big for being used as a separate room. As such one bedroom each for his son/daughterinlaw and for his grand son is bare minimum requirement. A drawing room for entertaining the guests is also a need and as such there is no space left for the petitioner to have his own area of comfort than by encroaching upon the privacy of others. The wish of the petitioner to live with dignity on his own, without being dependent on others, in the opinion of the court is most bonafide reason for which the tenanted premises are required. In Atma S.Berar Vs. Mukhtiyar Singh (2003) 2 SCC 3 while dealing with the requirement of landlord, it was held :
"7......A retired government servant, accompanied by his oldaged life companion, is shuttling between India and Canada in search of a shelter and settlement in the evening of life so as to peacefully pass the balance of E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 his life and to breathe his last in his own house which is the only property which he had built on his own by investing his earnings and his toil. It is true that the appellant has a good number of kith and kin settled in Canada and the thickness of relationship with them tempted him to try a settlement in Canada but his links and moorings in his motherland were not all lost. It is very natural for an ageing Indian to witness his sentiments for the motherland and the birthplace gaining more strength and bondage becoming thicker with the advancement in age. His desire to convert the house, which he has built himself, into a home so as to live peacefully therein with his wife, cannot be said to be unnatural and certainly not wishful merely or whimsical."
Accordingly, the requirement of the petitioner to live independently in an accommodation of his own, in the evening of his life span is in no way can be termed as malafide. In the backdrop of the facts as has come in the evidence, the same is the most bonafide one and justified.
In view of the above, this issue is decided in favour of the petitioner and against the respondent.
ALTERNATIVE ACCOMODATION
26. The last factor which has to be considered is that no other E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 reasonable alternative accommodation being available with the petitioner for satisfying his requirement. The petitioner has categorically stated that apart from the tenanted premises he has no other residential accommodation available with him for satisfying his requirement.
27. The respondent has neither stated nor argued that the petitioner is having any other alternative accommodation. Only suggestion was given in the crossexamination of the petitioner that he is having other accommodation available with him except the present one which he denied. After such denial, no evidence has been led by the respondent to prove the same. Except this suggestion, the entire crossexamination of the petitioner by Ld. Counsel of respondent was limited to the petitioner's claim of landlord/owner of the tenanted premises and bonafide requirement. No arguments were led on this aspect. During arguments itself, Ld. Counsel for the respondent stated that factum of alternate accommodation is not at issue. As such, this issue requires no considerations and is accordingly decided in favour of the petitioner and against the respondent.
28. In view of above said reasons, I am of considered opinion that the petitioner has been able to discharge the burden of proof upon him. Accordingly, the present petition under Section 14 (1) (e) of DRC Act is E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 allowed.
The respondent is directed to vacate the tenanted premises i.e. entire Flat no. 271, Canara Apartments, Group Housing Society, Sector13, Rohini, Delhi110 085.
File be consigned to Record Room.
Announced in the open court (BHUPINDER SINGH)
on 06.02.2017 ACJCUMARC NORTHWEST
ROHINI COURTS/ DELHI.
(This judgment contains thirty one pages and each page bears my signature.) E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 Eviction no. 54/15 New no. 5421/16 Anup Singh Vs Sushil Kumar Bansal 06.02.2017 Present : None for the petitioner Respondent in person with Ld. Counsel Sh. Neeraj Gupta Certified copy of order dt. 05.04.2016 in CS No. 152/13 passed by Ld. ACJCumARC, North District, Rohini Courts has been filed by the petitioner on 02.02.2017. Since the arguments have already been advanced by both the parties and the same is not coupled with any application, hence, the same is not taken on record.
Ld. Counsel for respondent has discussed the judgments filed by the petitioner on 18.01.2017, copy of which were supplied to the respondent on 23.01.2017. Ld. Counsel for respondent has distinguished the judgments so furnished by the petitioner on the grounds that the same are applicable only when registered GPA along with agreement to sell is in favour of the petitioner which is not in the present case. Further that first the petitioner has to prove that he is is landlord then only the judgment on the aspect of bonafide requirement can be considered.
The relevant paragraphs as read by Ld. Counsel for respondent has been highlighted by way of blue ball point pen. Ld. E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 Counsel for respondent has also relied upon one judgment tilted as Satish Bansal Vs. Neelam Gupta of Hon'ble High Court in RC.REV.470/2012 DOD 04.10.2012 and same is taken on record.
Put up for clarification, if any/orders at 4.00 p.m. (BHUPINDER SINGH) ACJcumARC (N/W District) Rohini Courts, Delhi/06.02.2017 E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34 34 New E. No. 5421/16 Old E.No. : 54/15 Anup Singh Vs. Sushil Kumar Bansal At 4.00 p.m. 06.02.2017 Present: None Vide separate judgment of even date, the petition under Section 14 (1) (e) of the petitioner is allowed. The respondent is directed to vacate the tenanted premises i.e. entire Flat no. 271, Canara Apartments, Group Housing Society, Sector13, Rohini, Delhi110 085.
The order of eviction shall not be executable for the period of six months from today in terms of Section 14 (7) DRC Act.
File be consigned to Record Room.
(BHUPINDER SINGH) ACJcumARC (North West) Rohini Courts, Delhi/06.02.2017 E. No. 5421/16 Anup Singh Vs. Sushil Kumar Bansal 34