Delhi District Court
Unknown vs Sh. Jai Chand Sharma on 20 January, 2015
IN THE COURT OF SH. RAJINDER SINGH, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER-CUM-
COMMERCIAL CIVIL JUDGE (NORTH-EAST),
KKD COURTS, DELHI.
E. No. 109/11 (Old No. 65/04)
Unique Case ID No.: 02402C020163272004
In the matter of :
1. Smt. Sanjavati Gaur
W/o Sh. R.S. Gaur
(since deceased) through LRs
1(A) Smt. Pushpa Devi
D/o Sh. R.S. Gaur
& Late Smt. Sanjawati,
R/o House No. 1/11832,
Subhash Park, New Delhi.
1(B) Sh. Naresh Gaur
S/o Sh. R.S. Gaur
& Late Smt. Sanjawati,
R/o House No. 1/11660,
Subhash Park, Panchsheel Garden,
Naveen Shahdara, Delhi.
1(C) Sh. Mahesh Gaur
S/o Sh. R.S. Gaur
& Late Smt. Sanjawati,
R/o House No. N-23,
Uldhanpur,
Naveen Shahdara, Delhi.
2. Smt. Radha Gaur
W/o Late Sh. S.C. Gaur
3. Sh. Chander Gaur
E. No. 109/11 Page 1 of 32
s/o Late Sh. S.C. Gaur
4. Sh. Ajay Gaur
s/o Late Sh. S.C. Gaur
All R/o N-23,
Naveen Shahdara, Delhi.
Delhi-110032.
5. Smt. Vandana Gaur
W/o Sh. Navin Kaushik
D/o Late Sh. S.C. Gaur
R/o 5, Kailashpuri,
Meerut, U.P.
6. Smt. Pratibha Gaur
W/o Sh. Amleshwar Sharma
D/o Late Sh. S.C. Gaur
R/o House No. 1100, Brahmpuri,
Meerut, U.P.
7. Smt. Renu Gaur
W/o Sh. Pawan Sharma
D/o Late Sh. S.C. Gaur
R/o A-1/35, Peepal Wali Road,
Mohan Garden,
New Delhi-110059.
.......Petitioners/Landlord
Versus
1. Sh. Jai Chand Sharma
S/o Late Sh. Har Lal Sharma
R/o H.No. M-46, Naveen Shahdara,
Delhi-110032.
Also at:
House No. 1619/C-1 (Old)/1/11701,
Panchsheel Garden,
E. No. 109/11 Page 2 of 32
Naveen Shahdara, Delhi-110032.
2. Sh. Ram Chander Kaushik
S/o Pt. Harish Singh Kaushik
R/o A-4C/55, Janakpuri,
New Delhi-58
(Since deceased though his LRs)
2(A) Sh. Ashwani Sharma
S/o Late Sh. Ram Chander Kaushik
2(B) Sh. Anil Sharma
S/o Late Sh. Ram Chander Kaushik
2(C) Ms. Neelam Sharma (now deceased)
Through her husband Sh. Sunil Sharma
The only LR
D/o Late Sh. Ram Chander Kaushik
2(D) Ms. Achla Sharma (now deceased)
Through her husband Sh. Alok Agnihotri
The only LR
D/o Late Sh. Ram Chander Kaushik
2(E) Ms. Anila Sharma
D/o Late Sh. Ram Chander Kaushik
All /o 531/12, Krishna Colony,
Gurgaon, Haryana.
3. Sh. Ved Prakash Kaushik
S/o Pt. Hari Singh Kaushik
R/o A-4C/55, Janakpuri,
New Delhi-58.
......Respondents/Tenants
E. No. 109/11 Page 3 of 32
Date of Institution : 17.07.2004
Date of reserve for order : 19.12.2014
Date of Pronouncement : 20.01.2015
APPLICATION FOR EVICTION UNDER SECTION 14 (1)(a)(b)
(c) & (j) OF THE DELHI RENT CONTROL ACT, 1958
JUDGMENT :
1. Initially the present Eviction Petition was filed only against respondent no. 1. In view of the order dated 02.4.05 of the Ld. ARCT, Karkardooma Courts, the legal heirs of late Ms. Kalawati were also directed to be joined as respondents in the present case. On 18.11.05 Ld. Counsel for the LRs of Ms. Kalawati appeared and submitted that as per his information respondent no. 2 expired on 03.6.05. Written statement on behalf of the respondent no. 3 was filed. Vide order dated 29.7.08 it was observed that the petitioner no. 1 Ms. Sanjavati Gaur has expired on 14.7.08. Vide order dated 22.12.08 the LRs of petitioner no. 1 were allowed to be joined as parties in this case. In the order dated 14.7.10 it is observed that two respondents have expired. An application under Order 22 rule 4 CPC for impleading the LRs of these respondents was moved. Vide order dated 14.12.10 LRs of respondent no. 2(C) and 2(D) were allowed to be served through the newspaper "Rashtriya Sahara". Vide order dated 20.12.08 this matter was sent to the court of Ld. ARC, North East. Since the E. No. 109/11 Page 4 of 32 landlord-tenant relationship between the petitioner and respondent no. 1 is disputed, vide order dated 09.3.09 it was observed that the order u/s 15(1) of the DRC Act shall be deferred. An application under Order 1 rule 10 CPC was moved by one Ms. Ranu Khanna. The same was dismissed.
2. The present Eviction Petition was filed by the LRs of late Sh. Suresh Chand Gaur u/s 14(1)(a)(b)(c) and (j) of the DRC Act.
2.1. It is the case of the petitioners that Sh. Suresh Chand Gaur (son of petitioner no. 1)(husband of petitioner no. 2 and father of rest of the original petitioners) purchased property measuring 450 sq. yards, Khasra No. 99 and 100, Village Uldhanpur, Panchsheel Garden, bearing Old No. 1619/C1 and New No. 1/11701, Panchsheel Garden, Naveen Shahdara, Delhi-110032 (hereinafter referred as tenanted premises), from Ms. Kalawati vide GPA, Agreement to Sell, Affidavit and Receipt, all dated 29.7.85. These documents were executed by Ms. Kalawati (owner of the suit property), in favour of Sh. Suresh Chand Gaur. In this regard a receipt for an amount of Rs. 60,000/- was also executed by Ms. Kalawati. All these documents were got registered. Sh. Suresh Chand Gaur expired on 14.11.2000. Thereafter, the present petitioners became the owner of the tenanted premises.
3. At the time of purchase of the tenanted premises E. No. 109/11 Page 5 of 32 one Sh. J.S. Walia was the tenant therein. He was got evicted without any court intervention. Thereafter on 01.8.85 respondent no. 1 was inducted as a tenant in the tenanted premises, by Sh. Suresh Chand Gaur. The rate of rent was fixed at Rs.400/- p.m. At that time there were only four rooms in the tenanted premises.
4. On account of some mutual understanding between Sh. Suresh Chand Gaur and Ms. Kalawati it was agreed that she will collect the rent from respondent no. 1 and remit the same to Sh. Suresh Chand Gaur. At that time Ms. Kalawati was residing at 1/6710, main Badarpur Road, Rohtash Nagar, Shahdara, Delhi-32. This appointment of Ms. Kalawati was cancelled by Sh. Suresh Chand Gaur. Notice was also served in this regard. It is stated that Ms. Kalawati in collusion with respondent no. 1 tried to deny the title of late Sh. Suresh Chand Gaur, to the tenanted premises. In this regard notice dated 02.7.93 was also issued to Ms. Kalawati. At the time of issuance of notice dated 30.6.93 to the respondent no. 1 the rent w.e.f. 01.02.91 was also due. Thus arrears of rent were also demanded from the respondent no. 1 through this notice.
5. It is submitted that after service of notice dated 30.6.93 the respondent no. 1 has demolished four rooms at the tenanted premises and has raised one unauthorized tin shed without the consent of Sh. Suresh Chand Gaur. In this E. No. 109/11 Page 6 of 32 manner the respondent no. 1 has caused substantial damage to the tenanted premises. In this regard one civil suit was also filed by Sh. Suresh Chand Gaur against respondent no. 1 in the year 1991.
5.1. Since Ms. Kalawati also started denying the title of Sh. Suresh Chand Gaur to the tenanted premises, a suit for permanent and mandatory injunction was filed by Sh. Suresh Chand Gaur against her in the year 1995. After the death of Sh. Suresh Chand Gaur, his LRs are prosecuting these two suits.
6. The respondent no. 1 has sub-let a portion of the tenanted premises to his brother Sh. Ram Dutt Sharma, who was doing the business of selling milk at the tenanted premises. That portion is now lying sealed by the MCD. The respondent no. 1 after issuance of notice dated 30.6.93 has again sub-let the suit property without due consent to a firm namely Shanti Leasing and Finance Company, in which the respondent no. 1 has only a 20% share. The respondent no. 1 has also inducting another another sub-tenant a firm by the name of Shanti Marbles, in which he has only a 10% share. The tenanted premises was let to the respondent no. 1 for residential purpose. However, the respondent no. 1 has unauthorizedly used the same for commercial purpose.
7. The respondent no. 1 is in arrears of rent w.e.f. 01.02.91 @ Rs.400/- p.m. In this regard notice dated 30.6.93 E. No. 109/11 Page 7 of 32 was issued to the respondent no. 1. Further, another legal demand notice dated 21.4.04 was also issued to respondent no. 1. The notice dated 21.4.04 was served upon the respondent no. 1 on 23.4.04. Despite service of the notice the respondent no. 1 has failed to pay the entire arrears of rent alongwith interest for the last three years.
8. Written statement filed by respondent no. 1. It is stated that the respondent never entered into any contract of tenancy with late Sh. Suresh Chand Gaur. It is denied that Sh. Suresh Chand Gaur is entitled to receive any rent from the respondent with regard to the tenanted premises. The landlord-tenant relationship between the petitioners and respondent no. 1 is denied. It is stated that suit no. 157/04 for recovery of arrears of rent w.e.f. 01.5.01 to 30.4.04 filed by the petitioners is also pending in the court of Sh. R.L. Meena, Ld. Civil Judge, Delhi (at the time of filing of Written statement of respondent no. 1). This fact has been deliberately concealed by the petitioners.
9. Vide registered Will dated 30.9.06 Ms. Kalawati bequeathed the tenanted premises, to the respondent no. 1. Ms. Kalawati expired on 17.11.96. The petitioners have no right, title or interest in the tenanted premises. It is denied that respondent no. 1 was inducted as a tenant in the tenanted E. No. 109/11 Page 8 of 32 premises by late Sh. Suresh Chand Gaur. The respondent no. 1 is the absolute owner of the tenanted premises w.e.f. 17.11.96 i.e. the date of death of Ms. Kalawati. It is denied that Sh. Suresh Chand Gaur had any other authority to let out the tenanted premises to anybody.
10. The documents, if any, in favour of Sh. Suresh Chand Gaur were nothing but a camouflage. It is very much in the knowledge of the petitioners and was also in the knowledge of late Sh. Suresh Chand Gaur that the GPA dated 29.7.85 has been cancelled by Ms. Kalawati vide cancellation deed dated 31.8.98. The said cancellation deed was got registered. The respondent no. 1 has also mentioned about the pendency of the suit titled as "Sh. Suresh Chand Gaur vs. Ms. Kalawati" pending in the court of Ld. Civil Judge, Karkardooma Courts. It is denied that Ms. Kalawati received any consideration with regard to the tenanted premises from Sh. Suresh Chand Gaur. The possession of the tenanted premises was never delivered to Sh. Suresh Chand Gaur. The GPA, etc., all dated 29.7.85 were executed by Ms. Kalawati in favour of Sh. Suresh Chand Gaur only with a view to befool the other co-owners of the tenanted premises. At that time there was litigation and several disputes with regard to the tenanted premises between Ms. Kalawati and the other co- owners. Sh. Suresh Chand Gaur was aware about these disputes and litigations. Due to this reason he never took any E. No. 109/11 Page 9 of 32 steps to take physical possession of the tenanted premises. He also never gave any notice of purchasing the tenanted premises, to the other persons concerned with the said property. He never acted as landlord of the tenanted premises. Sh. Suresh Chand Gaur did not join proceedings in Civil Suit no. 201/84 filed by Ms. Kalawati on 12.10.84 seeking partition of the properties including the tenanted premises. The answering respondent filed suit no. 327/86 on 26.6.86 against Ms. Kalawati and Sh. Radhey Shyam Khanna seeking to restrain them from forcibly dispossessing respondent from the tenanted premises. The said suit is still pending. Eviction Petition no. 96/93 was filed on 24.5.93 by Sh. Radhey Shyam Khanna against Sh. J.S. Walia, Ms. Kalawati and the present respondent. The same is still pending. The petitioners and Sh. Suresh Chand Gaur never contested the said Eviction Petition. No suit for specific performance regarding the Agreement to Sell dated 29.7.85 was filed by Sh. Suresh Chand Gaur. Sh. Suresh Chand Gaur also did not get the tenanted premises mutated in his name in the records of the local authorities neither he paid any taxes regarding the tenanted premises. It is denied that the notice dated 30.6.93 was served upon the respondent no. 1.
11. Sh. Ram Dutt Sharma, the alleged sub-tenant in the tenanted premises is the brother of the respondent. By virtue of being the owner of the tenanted premises the E. No. 109/11 Page 10 of 32 respondent has every right to deal with the same in the manner he likes. Further, the respondent no. 1 has denied the case of the petitioners.
12. No Written statement was filed on behalf of the respondent no. 2.
13. Written statement on behalf of respondent no. 3 filed. It is denied that Ms. Kalawati, mother of respondent no. 3 ever sold the tenanted premises to late Sh. Suresh Chand Gaur. The possession was also never delivered to him. The amount of Rs.60,000/- has also been repaid to Sh. Suresh Chand Gaur and all the account between Ms. Kalawati and Sh. Suresh Chand Gaur settled. Sh. Jai Chand Sharma was inducted as a tenant in the tenanted premises w.e.f. 03.12.85 by Ms. Kalawati. The petitioners are seeking declaration of title in the garb of the present Eviction Petition. Ms. Kalawati remained the absolute owner of the tenanted premises during her life time. Vide registered Will dated 30.9.96 Ms. Kalawati bequeathed the tenanted premises to respondent no. 1. Ms. Kalawati expired on 17.11.96, since then respondent no. 1 is enjoying the tenanted premises as absolute owner. The tenanted premises was let out to respondent no. 1 for commercial purpose. The rent was being received by Ms. Kalawati. Sh. Suresh Chand Gaur never received any rent of the tenanted premises from respondent no. 1 Vide notice E. No. 109/11 Page 11 of 32 dated 26.11.90 Sh. Suresh Chand Gaur was informed regarding the cancellation of GPA dated 29.7.85. The averments regarding the pending litigation between Sh. Suresh Chand Gaur, Ms. Kalawati and respondent no. 1 is a matter of record. Further, respondent no. 3 has denied the case of the petitioner.
14. Replication filed on behalf of the petitioners wherein the allegation to the contrary have been controverted and averments made in the petition have been re-affirmed and reiterated.
Petitioners' evidence
15. The petitioners examined Sh. Ajay Gaur, petitioner no. 4 as PW 1. He tendered his affidavit Ex.PW1 in evidence. He supported the case of the petitioners. He relied upon the documents, such as, GPA EX.PW1/1, Agreement to Sell EX.PW1/2, Affidavit of Smt. Kalawati EX.PW1/3, Receipt EX.PW1/4, The old original site plan at the time of letting of the suit premises EX.PW1/5, Earlier site plan showing the changed position of structure EX.PW1/6, Certified copy of original complaint lodged by late Sh. Suresh Chand Gaur vide DD No. 5A dated 21.4.94 EX.PW1/7, E. No. 109/11 Page 12 of 32 Certified copy of Invitation Card of Jai Chand Sharma, respondent no. 1 for the inauguration of 'Shanti Marbles' on 02.5.95 EX.PW1/8, Certified copy of notice dated 30.6.93 EX.PW1/9, Certified copy of envelope received back with AD EX.PW1/10, Certified copy of AD card in respect of above envelope EX.PW1/11, Certified copy of the complaint dated 15.9.93 lodged by Sh. Naresh Gaur to the Commissioner, MCD and Director (Vigilance), MCD, EX.PW1/12, Certified copy of three AD cards in respect to above complaint EX.PW1/13, EX.PW1/14 and EX.PW1/15, Certified copy of postal receipts are EX.PW1/16, Certified copy of kalandra u/a 107/151 Cr.P.C. showing Bishan Dutt, Kishan Chand & Ram Dutt as 1st Party and Naresh Gaur & Ravinder Kashyap as 2nd party, EX.PW1/17, Certified copy of complaint dated 19.7.93 lodged by Sh. Naresh Gaur to the SHO P.S. Shahdara EX.PW1/18, Photocopy of newspaper publication dated 07.7.93 from Indian Express EX.PW1/19, Certified copy of judgment/order dated 16.8.93 in the appeal titled "Sh. Jai Chand vs. Municipal Corporation of Delhi" of Sh. M.A. Khan, the then Appellate Tribunal, MCD, Delhi in appeal no. 384/ATMP/93 EX.PW1/20, Certified copy of original of complaint dated 14.02.94 lodged E. No. 109/11 Page 13 of 32 by Sh. Suresh Chand Gaur with the Z.A.C., MCD, Naveen Shahdara, Delhi, on which the deponent identifies the signature of Sh. Suresh Chand Gaur being his father, EX.PW1/21, Certified copy of kalendra u/s 145(1) Cr.P.C. EX.PW1/22, Certified copy of complaint dated 06.6.94 lodged by Sh. Suresh Chand to ADC, Shahdara regarding unauthorized construction in the said property EX.PW1/23, Certified copy of complaint dated 06.6.94 lodged by Sh. Suresh Chand to SHO, P.S. Shahdara (in which signature of Sh. Suresh Chand Sharma identified by PW1) EX.PW1/24, certified copy of the original newspaper cutting of Dainik Jagran dated 03.9.94 EX.PW1/25, Certified copy of legal notice from the Advocate of Sh. Suresh Chand Gaur to late Ms. Kalawati EX.PW1/26, Certified copy of postal receipts are EX.PW1/27 & EX.PW1/28, Certified copy of AD card Is EX.PW1/29, Certified copy of Envelope received back EX.PW1/30, Certified copy of complaint of late Sh. Suresh Chand Gaur against the respondent no. 1 dated 21.4.94 regarding demolition of property of Sh. Suresh Chand Gaur EX.PW1/31, certified copy of the reply filed before the SDM dated 24.01.94 EX.PW1/32, Certified copy of legal notice dated 07.4.95 from the E. No. 109/11 Page 14 of 32 Advocate of Sh. Suresh Chand Gaur to late Ms. Kalawati EX.PW1/33, Certified copy of postal receipts of the said notice are EX.PW1/34 & EX.PW1/35, AD card is EX.PW1/36, Photocopy of certified copy of Judgment & Decree Sheet dated 03.01.2004 passed by Sh. V.K. Jain, ADJ, Delhi in suit no. 153/14 in the matter of Sh. Jai Chand Sharma vs. Sh. Naresh Gaur & Ors. EX.PW1/37, Certified copy of the plaint in suit titled as "Sh. Suresh Chander Gaur vs. Smt,. Kalawati, which was pending in the concerned court of Civil Judge, Delhi EX.PW1/38 Certified copy of the written statement filed by Smt. Kalawati in the abovesaid suit in the said court EX.PW1/39 Certified copy of the plaint in suit titled as "Sh. Suresh Chand Gaur vs. Sh. Jai Chand Sharma, which was pending in the concerned court of Civil Judge, Delhi EX.PW1/40 Certified copy of the written statement in the suit filed by the respondent no. 1 EX.PW1/41, Certified copy of the order of Sh. T.D. Keshav, Ld. ACMM, Shahdara, Delhi in the case titled as 'State vs. Hari Singh, etc. in FIR No. 322/86 P.S. Shahdara, EX.PW1/42, Photocopy of certified copy of the Sale deed (in Urdu) registered as document no. 4830, in Addl. Book No. Volum no. 3110 on pages 161 to 165, registered on 1.5.1957 in the office E. No. 109/11 Page 15 of 32 Sub-Registrar, Sub District No. 1, Delhi EX.PW1/43, Photocopy of the reply dated 24.5.04 sent by the respondent through his counsel R.N. Oberoi, Advocate to the notice of Sh. P.C. Kaushik, Advocate dated 21.4.04 EX.PW1/44 Photocopy of death certificate of Smt. Sanjawati Gaur EX.PW1/45, Carbon copy of notice dated 21.4.04 sent by Sh. P.C. Kaushik, Advocate to the respondent on behalf of the petitioner EX.PW1/46, Original copy of certificate of posting dated 21.4.04 of the notice dated 21.4.04 addressed to respondent EX.PW1/47, Original copy of postal receipts No. 8553 & 8554 both dated 21.4.04 in respect of this notice EX.PW1/48 & EX.PW1/49 Photocopy of GPA dated 22.01.01 made by the petitioners no. 1,2,4,5,6 and 7 in favour of petitioner no. 7 EX.PW1/50, Photocopy of partnership deed dated 14.6.93 between Sh. Anil Sharma, Sh. Jitendra Garg, Sh. Jai Chand Sharma and Smt. Archana Sharma EX.PW1/51, Photocopy of party statement of M/s Shanti Leasing & Finance Co. EX.PW1/52, Blank letter head of Shanti Leasing & Finance Co. EX.PW1/53, Site plan EX.PW1/54.
15.1. It is observed that Sh. Vikas Kumar, the then E. No. 109/11 Page 16 of 32 Ahlmad in the court of Sh. Devender Garg, Ld. Civil Judge- cum-ARC and Sh. Rampat Singh, have been inadvertently given serial no. PW-2. For the sake of convenience and clarity, Sh. Vikas Kumar be referred as PW-2A. 15.2. The petitioners examined Sh. Rampat Singh as PW-2. He tendered his affidavit Ex.PW2/A in evidence. 15.3. The petitioners examined Sh. Hans Kumar Gupta as PW-3. He tendered his affidavit Ex.PW3/A in evidence. 15.4. The petitioners examined Sh. Naresh Gaur (brother of Sh. Suresh Chand Gaur) as PW-4. He tendered his affidavit Ex.PW4/A in evidence. He supported the case of the petitioners.
15.5. All the PWs were duly cross-examined on behalf of respondent no. 1.
15.6. Vide statement dated 28.01.10, Ld. Counsel for the petitioners closed P.E. Respondents' evidence
16. The respondent no. 1 examined himself as RW 1. He tendered his affidavit Ex. RW1/A in evidence. He relied upon the documents, such as, revocation deed EX.RW1/1 (OSR) and Will dated 30.9.96 EX.RW1/2 (not written in the evidence recorded of RW-1 in the court).
16.1. The respondent no. 3 examined himself as RW 2. He tendered his affidavit Ex. RW2/A in evidence.
E. No. 109/11 Page 17 of 3216.2. Both the respondents were duly cross-examined on behalf of the petitioners.
16.3. Vide Statement dated 23.4.10, the respondent no. 1 closed R.E. Petitioners' arguments :
17. Arguments heard.
17.1. It was argued on behalf of the petitioners that late Sh. Suresh Chand Gaur purchased the property from Ms. Kalawati vide GPA, Agreement to Sell and Affidavit, all dated 29.7.85. In view of Section 202 of the Indian Contract Act since the GPA was for a consideration of Rs. 60,000/- the same could not have been cancelled by Ms. Kalawati. PW-2 stated that respondent no. 1 was inducted as a tenant in the tenanted premises by Sh. Suresh Chand Gaur in his presence. At the time of purchase of the property Sh. J.S. Walia was the tenant therein. He was got evicted without the court intervention. After the death of Sh. Suresh Chand Gaur the present petitioners being the LRs of Sh. Gaur have become the owners of the tenanted premises. Till 1991 the petitioners received rent from Sh. Jai Chand Sharma. It was admitted that the electricity and water connection installed at the tenanted premises have not been got transferred in the name of late Sh. Suresh Chand Gaur. The same is the case with mutation record. Notices were sent by Sh. Suresh Chand Gaur to the respondent no. 1 as well as Ms. Kalawati E. No. 109/11 Page 18 of 32 whereby the appointment of Ms. Kalawati for collection of rent was terminated w.e.f. 30.6.93. Sh. Suresh Chand Gaur filed civil suit against Ms. Kalawati. One of the suits was decided by the court of Sh. Saurabh Kulshreshta, the then Ld. Civil Judge. It was held that Sh. Suresh Chand Gaur became the owner of the property (tenanted premises) during lifetime of Ms. Kalawati. The certified copy of the said judgment is on record. PW-2 admitted the execution of documents EX.PW1/1 to EX.PW1/4 i.e. the GPA, Agreement to Sell, Affidavit and receipt executed by Ms. Kalawati regarding the suit property in favour of Sh. Suresh Chand Gaur. The relationship of landlord-tenant between the petitioners and the respondent is more important than the issue of ownership in an Eviction Petition under the DRC Act. Ms. Kalawati cannot cancel the GPA dated 29.7.85. The respondent no. 1 claims to have inherited from Ms. Kalawati, he is also bound by the rights and liabilities to which Ms. Kalawati was subjected.
Symbolic position of the tenanted premises was given to Sh. Suresh Chand Gaur. No suggestion was given to PW-2, to the effect that possession was not given in his presence. The judgment of the Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr., 2011(4) CCC 558 (SC) decided on 11.10.2011, does not apply to the present case since the petitioners are not claiming ownership of the tenanted premises but only claiming the right as a E. No. 109/11 Page 19 of 32 landlord against the respondent no. 1.
17.2. Ld. Counsel for the petitioner also relied upon the following judgments:-
1. J.C. Mehra vs. Kusum Gupta, 117 (5) DLT 506, High Court wherein it was held that sale of property by way of Power of Attorney amounts to handover Symbolic Possession of the Property. Consent of the tenant is not required. Omission to ask the tenant to attorn cannot be fatal.
2. H.L. Malhotra vs. Nanak Jai Singhani, 1986 Rajdhani Law Reporter (Note) 89, wherein it was held that, where a person enters into a sale agreement of party. For consideration and becomes attorney by execution of irrevocable Power of Attorney, then the owner cannot cancel the said Power of Attorney and injunction can be granted to the said purchaser.
3. Kuldip Singh Suri vs. Surinder Singh, 1999 Rajdhani Law Reporter page 20, wherein it was held that Power of Attorney sales in Delhi is a common mode of sale of immovable properties. When Power of Attorney is for consideration followed by delivery of possession then the transaction is complete. Even the Power of Attorney buyers can apply for conversion of the property into freehold.
Reliance was also placed on Section 202 of Indian Contract Act.
4. Asha M. Jain vs. The Canara Bank & Ors., 2002 E. No. 109/11 Page 20 of 32 (61) DRJ 101 (DB), DHC.
Respondents' arguments :
17.3. It was argued on behalf of respondent no. 1 that vide order dated 09.3.09 it was observed that due to the denial of landlord-tenant relationship between the petitioners and respondent no. 1, the order u/s 15(1) of the DRC Act was deferred. The petitioner himself admits that Ms. Kalawati was allowed to collect rent from the tenant i.e. respondent no. 1.
There is no evidence on record to show that Ms. Kalawati ever remitted this rent to Sh. Suresh Chand Gaur. Respondent no. 1 was inducted as a tenant by Ms. Kalawati. In the order dated 11.11.93 Sh. T.D. Keshav, the then Ld. ACMM held that receipts dated 03.12.85, 05.02.86, 01.3.86 and 01.4.86 were issued by Ms. Kalawati being the co-owner of the tenanted premises. The said order is EX.PW1/42. The suit filed by Sh. Suresh Chand Gaur against Ms. Kalawati seeking injunction was dismissed by the court of Sh. Achal Tyagi, the then Ld. Civil Judge. Certified copy of the said judgment dated 03.5.14 is on record. The written statement filed by Ms. Kalawati in that case stated that Sh. Jai Chand Sharma was her tenant. The said written statement is EX.PW1/39. PW-1 in his cross-examination admitted that Ms. Kalawati, the original owner of the tenanted premises continued to deal with the suit premises as she did not want to give an impression to the other co-owners that she had sold E. No. 109/11 Page 21 of 32 the suit property. PW-1 also admitted that he has not placed on record any documents to show that the tenanted premises was let out to respondent no. 1 by Sh. Suresh Chand Gaur or that Ms. Kalawati remitted the rent to Sh. Suresh Chand Gaur. PW-4 also admitted that he has no documentary evidence to show the remittance of rent by Ms. Kalawati to Sh. Suresh Chand Gaur. Even in his notice dated 30.6.93 EX.PW1/9 Sh. Suresh Chand Gaur admitted that Ms. Kalawati was collecting the rent. Despite issuing demand notice the petitioners never filed any earlier eviction petition against the respondent no. 1. In the notice EX.PW1/26 dated 02.7.93 Sh. Suresh Chand Gaur admitted that Ms. Kalawati continued to act as a landlady of the tenanted premises. In the notice dated 07.4.95 EX.PW1/33 Sh. Suresh Chand Gaur complained to Ms. Kalawati that she was still impersonating as the owner of the suit property. In the plaint EX.PW1/38 Sh. Suresh Chand Gaur admitted that Ms. Kalawati was impersonating as a landlady of the tenanted premises. However, despite these developments Sh. Suresh Chand Gaur did not take any legal action to enforce his rights regarding the tenanted premises. The petitioners have not challenged the Will dated 30.9.96 executed by Ms. Kalawati in favour of respondent no. 1. RW-2 is an attesting witness on the said Will. He has been examined. As such, the Will is proved. The electricity and water connection in the tenanted premises after the year 1996 E. No. 109/11 Page 22 of 32 stand in the name of respondent no. 1. During his lifetime Sh. Suresh Chand Gaur never challenged the Will dated 30.9.96. The suit for partition filed by Ms. Kalawati was pending. Sh. Suresh Chand Gaur never tried to join the proceedings in the said suit. He never got the water and electricity connection at the tenanted premises transferred in his name. The rent was paid to Ms. Kalawati till her death.
17.4. Written submissions perused.
18. For deciding an eviction petition u/s 14(1)(a) and also u/s 14(1)(b),(c) & (j) of the DRC Act, the first point to be considered by the court is, whether there is a landlord-tenant relationship between the petitioner and the respondent (alleged tenant).
18.1. In the present matter the alleged tenant respondent no. 1 has denied the landlord-tenant relationship between himself and Sh. Suresh Chand Gaur (including his LRs).
18.2. To decide this point it is to be seen what documents and matter the petitioners are relying upon to claim that Sh. Suresh Chand Gaur was the owner of the tenanted premises and the landlord of respondent no. 1. The petitioners have relied upon documents EX.PW1/1 to EX.PW1/4, i.e. GPA, Agreement to Sell, Affidavit and Receipt, all dated 29.7.85, stated to have been executed by Ms. E. No. 109/11 Page 23 of 32 Kalawati in favour of Sh. Suresh Chand Gaur with regard to the tenanted premises.
18.3. On the other hand, the respondents have stated that vide notice dated 26.11.90/cancellation deed dated 30.8.11 Ms. Kalawati cancelled the GPA which was executed in favour of late Sh. Suresh Chand Gaur. In this regard it was contended on behalf of the petitioners that since the GPA dated 29.7.85 was issued for a consideration of Rs.60,000/-, Ms. Kalawati could not have cancelled the same. It is observed that RW-2 son of Ms. Kalawati, during his cross- examination admitted the execution of the documents EX.PW1/1 to EX.PW1/4, including the said GPA. RW-2 is also an attesting witness on these documents. He admitted his signatures on these documents. It is pertinent to mention that respondent no. 1 did not seek any opportunity to cross- examine respondent no. 3/RW-2 with regard to the execution of the afore-mentioned documents. In view of this it is proved that the documents EX.PW1/1 to EX.PW1/4 were in fact executed by Ms. Kalawati in favour of Sh. Suresh Chand Gaur with regard to the tenanted premises. The respondent no. 3 in his written statement stated that the amount of Rs.60,000/- given by Sh. Suresh Chand Gaur to Ms. Kalawati was paid back and everything was settled. It is again observed that even on this point respondent no. 1 did not cross-examine respondent no. 3/RW-2. In such circumstances, the onus is E. No. 109/11 Page 24 of 32 upon the respondents to show that the amount of Rs.60,000/- paid by Sh. Suresh Chand Gaur to Ms. Kalawati for execution of the GPA dated 27.9.85 was paid back to him. The respondents have not led any evidence in this regard. They have failed to discharge this burden. Accordingly, it is proved that the GPA dated 29.7.85 executed by Ms. Kalawati in favour of Sh. Suresh Chand Gaur with regard to the tenanted premises was for consideration.
19. Section 202 of the Indian Contract Act reads as follows :
"202. Termination of agency, where agent has an interest in subject-matter. -- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself E. No. 109/11 Page 25 of 32 out of the price, the amount of his own advances.
A cannot revoke this authority, nor is it terminated by his insanity or death."
20. In view of the above, it is clear that even after the death of Ms. Kalawati the Power of Attorney EX.PW1/1 would survive and the same could not have been cancelled by Ms. Kalawati through the cancellation deed dated 31/08/1998 and notice date 26/11/1990.
20.1. The next important question for consideration is what rights did the GPA EX.PW1/1 and other documents EX.PW1/2 to EX.PW1/4 gave to Sh. Suresh Chand Gaur with regard to the tenanted premises.
20.2. I have perused the GPA EX.PW1/1. Therein authority is given to Sh. Suresh Chand Gaur to collect rent from the tenants.
To let out the said property to anyone else and to recover the rent from the tenants. It is a question of fact whether Sh. Suresh Chand Gaur inducted Sh. Jai Chand Sharma/respondent no. 1 as his tenant in the tenanted premises. The respondent no. 1 has denied that he was inducted as a tenant by Sh. Suresh Chand Gaur. It is stated by respondent no. 1 that he was inducted as a tenant by Ms. Kalawati. PW-2 stated that the tenancy in favour of respondent no. 1 was created in his presence.
E. No. 109/11 Page 26 of 3221. It is admitted on behalf of the petitioners that late Sh. Suresh Chand Gaur during his lifetime did not get transferred the electricity and water connection at the tenanted premises in his name. Even in municipal records he did not get his name substituted or entered in place of Ms. Kalawati with regard to the tenanted premises. It is alleged on behalf of the petitioners that initially there was an agreement between Sh. Suresh Chand Gaur and Ms. Kalawati that she would collect the rent from respondent no. 1 and remit the same to Sh. Suresh Chand Gaur. However, no credible evidence except for the word of mouth has been led by the petitioners in this regard. The petitioners have also not led any evidence to show that respondent no. 1 ever paid the rent to Sh. Suresh Chand Gaur or any of his other family members including the petitioners. In view of this it appears improbable that Sh. Suresh Chand Gaur inducted respondent no. 1 as his tenant in the tenanted premises. 21.1. It is alleged that in the year 1993 the respondent no. 1 as well as Ms. Kalawati started denying the title of Sh. Suresh Chand Gaur with regard to the tenanted premises. However, despite these developments the present petition was filed in the year 2004. There is no explanation offered by the petitioners for this delay. Although no period of limitation is prescribed for filing the Eviction Petition, such long period of E. No. 109/11 Page 27 of 32 delay has to be explained by the petitioners. 21.2. Where a principal appoints an agent to do certain acts on his behalf, it does not automatically lead to the presumption that the said principal will not do all those acts (for which the agent is appointed) on his own. In the present case it is observed that even if Sh. Suresh Chand Gaur was given authority to induct tenant(s) in the tenanted premises and collect rent therefrom, it does not preclude Ms. Kalawati from inducting any tenant in the tenanted premises.
22. Section 2 (e) of the DRC Act defines the term landlord. It includes any person who actually receives the rent from the tenant, either in his own capacity or on behalf of the somebody else. Further, it includes any person who would be entitled to receive the rent if the property was let out. It is the admitted case of the petitioners that initially Ms. Kalawati was collecting the rent from respondent no. 1. There is no credible evidence to show that she remitted the rent to Sh. Suresh Chand Gaur or that she was receiving the rent from respondent no. 1 on behalf of Sh. Suresh Chand Gaur. 22.1. The sole claim of the petitioners with regard to the tenanted premises is upon the basis of the documents EX.PW1/1 to EX.PW1/4. None of these documents transfers the immovable property, in this case the tenanted premises in favour of Sh. Suresh Chand Gaur. The judgments relied upon E. No. 109/11 Page 28 of 32 by the petitioner would not apply to this case, in view of the judgment of the Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr., (Supra). In an Eviction Petition the court is not required to decide the ownership of the tenanted premises. It is observed that in most cases the owner would be entitled to receive the rent if the property was let out. As already observed above, the documents relied upon by the petitioners do not transfer any immovable property in favour of late Sh. Suresh Chand Gaur.
23. The parties have also relied upon the judgments delivered in the suits filed by late Sh. Suresh Chand Gaur. The certified copies of these judgments are on record. It is observed that in none of these judgments the ownership of the tenanted premises was an issue. Suits filed by Sh. Suresh Chand Gaur were only seeking injunctions. It is observed that judgment in injunction matters is not a judgment in rem. It was argued on behalf of the petitioners that in the judgment delivered by the court of Sh. Saurabh Kulshreshtha, the then Ld. Civil Judge, Sh. Suresh Chand Gaur was held to be owner of the tenanted premises. It is pertinent to observe that this was a suit for permanent and mandatory injunction. Therein the issue with regard to the ownership of the tenanted premises was not directly and substantialy in issue. In that matter issues were framed on 10.12.10. No issue with regard E. No. 109/11 Page 29 of 32 to the ownership of the tenanted premises was framed. It is further observed that this judgment was delivered by the Ld. Court on 16.8.11 i.e. before the judgment of the Hon'ble Supreme Court delivered in Suraj Lamp & Industries Pvt. Ltd., (Supra) Accordingly, the judgments relied upon by the petitioners are of no help to their case. It is observed that in para no. 41 of the judgment dated 16.8.11 the Ld. Court relied upon the judgment of the Hon'ble High Court of Delhi titled as Asha M. Jain vs. The Canara Bank & Ors., (supra). This judgment has been specifically overruled by the Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. (Supra) decided on 11.10.11. At the cost of repetition it is stated that the afore-mentioned judgment relied upon by the petitioners does not help their cause.
24. It is contended on behalf of respondent no. 1 that vide Will dated 30.9.06 the tenanted premises was bequeathed in favour of Sh. Jai Chand Sharma. Ms. Kalawati expired on 17.11.96. The said Will is EX.RW1/P2. RW-2 has identified the signature of Ms. Kalawati on the said Will. During cross-examination RW-2 stated that at the time of execution of the said Will his mother Ms. Kalawati was of sound mind. No consideration was taken in this regard. It is the last Will of Ms. Kalawati. The Will executed on 30.9.96 by Ms. Kalawati in favour of respondent no. 1 with regard to the E. No. 109/11 Page 30 of 32 tenanted premises is EX.RW1/P2. It bears signatures of RW-2 as an attesting witness at point A. Without going into the validity of the Will it is observed that at least one attesting witness with regard to the Will has been examined before the court as provided by the Indian Evidence Act. Since Ms. Kalawati expired on 17.11.96. The Will EX.RW-1/P2 would come into force being testamentary document. It is further observed that the petitioners have so far not challenged the said Will in any way. The existence of irrevocable GPA EX.PW1/1 does not bar Ms. Kalawati from executing a Will with regard to the tenanted premises.
24.1. The petitioners have failed to prove that either Sh. Suresh Chand Gaur or the petitioners (in their own capacity or on behalf of Sh. Suresh Chand Gaur) ever collected the rent of the tenanted premises from respondent no. 1 or they were entitled to receive the rent in their own account or on behalf of, or for the benefit of any other person or they are the persons entitled to receive the rent if the tenanted premises was let to a tenant.
25. In view of the above, the petitioners have failed to show the existence of landlord-tenant relationship, either between Sh. Suresh Chand Gaur or the petitioners and the respondent no. 1. Since the petitioners have failed to prove this relationship, there is no need to delve further into this E. No. 109/11 Page 31 of 32 matter. The petitioners have failed to prove the basic ingredient required to succeed in an Eviction Petition under the DRC Act.
26. In view of the above, the present Eviction Petition filed by the petitioners is dismissed. No order as to costs.
27. File be consigned to Record Room after due compliance.
PRONOUNCED IN OPEN COURT 20.01.2015 (RAJINDER SINGH) ACJ/ARC/CCJ (NE)/ KKD COURTS, DELHI.
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