Delhi District Court
Shri Nawal Kishore vs Shri Mohd. Yakub on 9 August, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT Appeal No. 10/2011
Unique ID No. 0240IC0048672011
IN THE MATTER OF:
Shri Nawal Kishore
S/o Late Sh. Trilok Chand,
R/o 18/3747-A, 1st Floor,
Regar Pura, Karol Bagh,
New Delhi - 110 005.
. . . Appellant
Versus
Shri Mohd. Yakub,
S/o Mohd. Usman,
Shop No. 3743-44, Gali No.19,
Ragharpura, Karol Bagh,
New Delhi-110 005.
. . . Respondent
Date of institution of appeal : 02.02.2011.
Date when final arguments were heard: 23.07.2012
Date of pronouncement of judgment :09.08.2012.
AND
RCT Appeal No. 13/2011
Unique ID No. 0240IC0056402011
Shri Mohd. Yakub,
S/o Mohd. Usman,
Shop No. 3743-44, Gali No.19,
Ragharpura, Karol Bagh,
New Delhi-110 005.
. . . Appellant
Versus
(RCT Appeal No.10/2011 & 13/2011) (Page 1 of 35)
Shri Nawal Kishore
S/o Late Sh. Trilok Chand,
R/o 18/3747-A, 1st Floor,
Regar Pura, Karol Bagh,
New Delhi - 110 005.
. . . Respondent
Date of institution of appeal : 07.02.2011.
Date when final arguments were heard: 23.07.2012
Date of pronouncement of judgment :09.08.2012.
JUDGMENT :-
By this common judgment, I shall dispose of two appeals, bearing RCT No. 10/2011 and RCT No.13/11, as both the appeals have been preferred, feeling aggrieved by the order dated 13.01.2011 passed by the Addl. Rent Controller.
2- Before coming to the grounds of appeals, it will be in the fitness of things to narrate the circumstances leading to the filing of the present appeals. An eviction petition under Section 14(1)(a)(b) & (j) of the Delhi Rent Control Act (hereinafter to be referred as "DRC Act") was filed by Shri Nawal Kishore against Mohd. Yakub initially on 19.02.1994 inter alia on the allegations that one shop forming part of property No. 3743-44, Gali No.19, Ragharpura, Karol Bagh, New Delhi-5 was let out to respondent on the basis of Rent agreement dated 15.12.1978 at the rate of Rs.60/- per month exclusive of electricity and water charges. It was alleged that the respondent has not paid the arrears of rent w.e.f.
(RCT Appeal No.10/2011 & 13/2011) (Page 2 of 35) 01.07.1993 onwards inspite of repeated requests and demands. He has neither tendered nor paid the legally recoverable arrears of rent within two months from the date of receipt of notice of demand dated 04.11.1993 served upon him, as provided under Section 106 of the Transfer of Property Act.
3- It was further alleged that the respondent has illegally sublet, assigned and otherwise parted with possession of the suit shop to his son Mohd. Sahid without the consent in writing of the petitioner.
4- Eviction was also sought on the ground that respondent has caused and permitted to have caused substantial damage to the suit shop by making additions, alterations as a result of which the foundation of the property has weakened. The property in question is a four storeyed building and respondent has illegally and wrongfully constructed basement without consent of petitioner and Municipal Corporation of Delhi (hereinafter referred to as the MCD) and has dug the floor to the extent of more than 8' to 10' and by constructing the basement, he has damaged the entire construction existing on the said building as a result whereof, several cracks have appeared in building and foundation of building has become weak. The respondent has removed the pillars which were in existence in the said building and has also removed the Almirah, Kolki, Alla and has also made illegal alterations (RCT Appeal No.10/2011 & 13/2011) (Page 3 of 35) in the other portions of the tenanted premises. He has also constructed Duchhatti in the said shop. For the purpose of constructing Duchhatti, the respondent has also constructed tin-shed in front of the shop measuring 13' x 14' without consent of the petitioner and also of MCD and by constructing the said tin-shed, the respondent has disfigured the shop. He has also made various illegal alterations in the suit shop without consent of the petitioner. The petitioner approached the respondent to bring the tenanted shop to its original condition in which it was let out, but he has not bothered to bring the shop in its original condition. Hence the eviction petition.
5- The eviction petition was contested by respondent, who in the written statement took preliminary objections inter alia on the ground that petition is not maintainable. There is no relation of landlord and tenant between the parties. The respondent never attorned to the petitioner and never paid any rent to him. Petitioner is not the owner of premises in dispute. Premises belonged to Smt. Prabhati Devi and Shri Puran Chand and these persons never transferred the property to petitioner. As such, petitioner has no locus standi to file the present petition. On merits, it was reiterated that respondent is not the tenant of the petitioner, but is tenant of Smt. Prabhati Devi and Shri Puran Chand. It was denied that respondent has not paid the arrears of rent w.e.f. 01.07.1993. The respondent was not liable to pay rent to the petitioner as he failed to satisfy (RCT Appeal No.10/2011 & 13/2011) (Page 4 of 35) his own title in the premises in dispute. The petitioner was unable to produce any document of title to show his ownership. The respondent has paid rent to Smt. Prabhati Devi and Shri Puran Chand upto 30.06.1993. The petitioner then served a notice dated 04.11.1993 alleging therein that he became the owner/ landlord as per family settlement. The respondent approached Smt. Prabhati Devi and Shri Puran Chand to give in writing accepting the alleged family settlement. He also called upon the petitioner to give a copy of the alleged family settlement but he failed to provide the same. Under these circumstances, the respondent did not attorn to the petitioner and deposited the rent in the court of Shri P.C. Ranga, then Addl. Rent Controller, Delhi on 22.12.1993. In the said petition besides the petitioner, Smt. Prabhati Devi and Shri Puran Chand were also parties. The rent was deposited within two months of the notice dated 04.11.1993 in the court. As such, even if, it is proved by the petitioner that he has become owner of the property in dispute and was entitled to recover rent w.e.f. 01.07.1993, the ground of non-payment of rent is not available to him.
6- It was denied that respondent has caused and permitted to be caused substantial damage to the suit shop by making additions, alterations or as a result of the said additions and alterations, foundation of property has weakened. It was denied that the property in question is four storeyed building and that the respondent has illegally (RCT Appeal No.10/2011 & 13/2011) (Page 5 of 35) and wrongfully constructed basement without the consent of the petitioner and MCD and has dug the floor to the extent of more than 8' to 10'. It was denied that while constructing basement, respondent has damaged the entire construction existing on the entire building as a result, several cracks appeared in the building and foundation of the building has become weak. It was also denied that respondent has removed the pillars which was in existence in the said building. It was alleged that whatever additions and alterations have been made, the same have been made with the knowledge of Smt. Prabhati Devi and Shri Puran Chand. The petitioner has intentionally and deliberately not disclosed the real facts. The real facts are that upto 1987, the building was double storeyed building. Besides the shop, one Kolki was also in the tenancy of the respondent. In 1987, a settlement took place between the respondent and Smt. Prabhati Devi and Shri Puran Chand whereby the respondent surrendered his Kolki to them and they included the said Kolki in the adjoining shop. The building was double storeyed at that time. Smt. Prabhati Devi and Shri Puran Chand allowed the respondent to make additions and alterations in consideration of the respondent surrendering the tenancy and for allowing them to raise unauthorised construction on the first floor, second floor, third floor and fourth floor. In the first instance the respondent surrendered the Kolki and Smt. Prabhati Devi and Shri Puran Chand took the possession of Kolki. With their consent, the respondent constructed the basement (RCT Appeal No.10/2011 & 13/2011) (Page 6 of 35) after providing very strong foundation to bear the load of four storeys which the said landlords were to construct. After carrying out additions and alterations, respondent made the building strong to bear the load of four storeyed building to be constructed by the landlords over the shop of the respondent. Thereafter the landlord reconstructed the first floor and raised construction of second floor, third floor and fourth floor. The building became five storeyed only after the additions and alterations made by respondent in the shop in dispute. Since the additions and alterations were made with the consent of the aforesaid landlords, the petitioner has no right to raise any objection. Moreover, no damage has been caused to the building. The alleged tin-shed is in existence since long on the Municipal land. Whatever additions and alterations were made in the shop, the same were with the consent and knowledge of the earlier landlords. The petitioner was not the landlord in 1987 and as such, there was no occasion for the respondent to seek his permission. It was further alleged that the petitioner is living in the same building. Smt. Prabhati Devi is also living in the same building. Shri Puran Chand was living in a nearby building. No objection was taken at any point of time although, the additions and alterations were made in 1987. The petitioner is estopped by his own conduct from raising any objection of the said additions and alterations.
7- It was denied that respondent has illegally sublet, (RCT Appeal No.10/2011 & 13/2011) (Page 7 of 35) assigned and parted with possession of the said shop to his son Mohd. Sahid without the consent in writing of the petitioner. It was submitted that respondent is carrying on business of meat with the assistance of his son. As such, it was submitted that petition is liable to be dismissed.
8- Petitioner filed replication wherein it was submitted that respondent was tenant under Smt. Prabhati Devi and Shri Puran Chand in respect of premises in dispute and in terms of the family settlement dated 12.04.1989, the said premises fell into the share of the petitioner, who became the owner/landlord of the said premises and an intimation thereof was given by the previous owner to the respondent on 03.01.1994 to accept the petitioner to be the owner/ landlord of the said property. As such, the petitioner has locus standi to file the petition. It was denied that the previous owner Smt. Prabhati Devi and Shri Puran Chand had permitted the respondent to carry out any additions or alterations in the premises. It was denied that upto 1987, the building was double storeyed or that respondent has surrendered kolki to Smt. Prabhati Devi and Shri Puran Chand. In fact, respondent was the tenant of shop and kolki in the property in dispute and he has illegally sublet, assigned or otherwise parted with the possession of the said kolki to Shahbuddin, another tenant of shop No. 3745, Gali No.18, Ragharpura, Karol Bagh, New Delhi. It was denied that in the first instance, the respondent surrendered the kolki to Smt. Prabhati Devi and Shri Puran Chand and (RCT Appeal No.10/2011 & 13/2011) (Page 8 of 35) they took possession of the said kolki or that thereafter respondent has constructed the basement after providing very strong foundation to bear the load of the four storeyed building or that thereafter the landlord reconstructed first floor and raised construction on second floor, third floor and fourth floor in the said property. In the notice, sent by respondent, he did not take the plea that the said construction was raised with the consent or knowledge of Smt. Prabhati Devi and Shri Puran Chand, rather, he has taken a plea that no basement has been constructed and no alterations have been made. The construction was raised by respondent illegally in October, 1993 when Smt. Prabhati Devi and Shri Puran Chand were having no right in the suit premises. It was also denied that respondent is assisted by his son Mohd. Sahid in running the meat shop. It was alleged that Mohd. Sahid is in exclusive possession of the tenanted shop and respondent has never carried on business in the said shop. As such, he is liable to be evicted from the suit shop.
9- During pendency of the proceedings, petitioner filed an application under Order VI Rule 17 CPC for amending the petition for alleging that the respondent has removed the pillar which was in existence in the building and has also removed almirah, kolki and Alla and has made illegal alterations in other portions of the tenanted premises. He has also constructed Duchhatti in the said shop. After removal of the kolki from the tenanted premises, he has (RCT Appeal No.10/2011 & 13/2011) (Page 9 of 35) parted with possession of said kolki to Shri Shahbuddin, another tenant of the adjoining shop. This application was allowed and thereafter amended petition was filed incorporating these facts. The same were controverted by respondent by filing the written statement to the amended petition.
10- In order to substantiate his case, petitioner examined himself as AW1. He examined Shri Sat Prakash Singh Chaddha, Draftsman as AW2; Shri Anil Kumar Gupta, Architect as AW3; and Shri Misri Lal as AW4.
11- On the other hand, respondent examined himself as RW1; Shri B.P. Singh, Architect as RW2; and Mohd. Sahid as RW3.
12- After hearing learned Counsel for the parties, vide impugned order, learned Addl. Rent Controller came to the conclusion that the petitioner has succeeded in proving that there exists relationship of landlord and tenant between the parties and that respondent was in arrears of rent. Although in pursuance to the legal notice of demand, he has deposited the arrears of rent but he did not deposit the interest on rent. As such, it was not complete compliance of the legal notice of demand. As such, it was proved that the respondent failed to pay or tender complete rent despite service of legal demand notice Ex.AW1/6. As (RCT Appeal No.10/2011 & 13/2011) (Page 10 of
35) such, grounds under Section 14(1)(a) of the DRC Act was made out. As regards the ground under Section 14(1)(b) of the DRC Act is concerned, it was observed that the petitioner has failed to prove that the respondent has given the legal possession of the suit shop to his son. As such, he has failed to prove the ground under Section 14(1)(b) of the DRC Act. Similarly, as regards the ground under Section 14(1)(j) of the DRC Act, it was held that the petitioner has failed to prove that the respondent has made additions or alterations in the tenanted shop without the consent of previous owner. As such, ground under Section 14(1)(j) of the DRC Act is not made out.
13- Feeling aggrieved by the dismissal of eviction petition on the grounds under Section 14(1)(b) & (j) of the DRC Act, the petitioner filed the present appeal under Section 38 of the DRC Act, bearing RCT No.10/11; whereas tenant Mohd. Yakub challenged that part of the order passed by the learned Addl. Rent Controller, whereby it was held that the tenant has failed to pay interest alongwith arrears of rent, therefore it cannot be said that he has paid the legally recoverable arrears of rent within two months from the date of receipt of notice and hence, ground under Section 14(1)(a) of DRC Act is made, by filing appeal under Section 38 of the DRC Act, bearing RCT No.13/11.
(RCT Appeal No.10/2011 & 13/2011) (Page 11 of
35) 14- Notices of both the appeals were given to the opposite parties and trial court record was summoned.
15- I have heard the landlord Shri Nawal Kishore in person as well Shri C.P. Wig, Advocate for him and Shri Sanjay Aggarwal, Advocate for tenant Mohd. Yakub at great length and have perused the record.
16- I shall take up each of the ground of eviction one- by-one:
Grounds u/s 14(1)(a) of DRC Act:
When an eviction petition is filed under Section 14(1)(a) of DRC Act on the ground of non-payment of rent, it is incumbent upon the landlord/petitioner to establish the following ingredients:
i) there exists relationship of landlord and tenant between the parties;
ii) the respondent is in arrears of rent;
iii) a legal notice of demand claiming
arrears of rent, is duly served upon
the tenant;
iv) Despite service of legal notice of
demand, the tenant failed to pay or
tender the legally recoverable arrears of rent within two months.
17- It is not in dispute that Mohd. Yakub is a tenant in respect of the suit premises under Smt. Prabhati Devi and (RCT Appeal No.10/2011 & 13/2011) (Page 12 of
35) Shri Puran Chand. However, he has disputed the title of the petitioner on the ground that the petitioner claims to have become owner of the suit property by virtue of a family settlement. It was vehemently argued by the learned Counsel for Mohd. Yakub that this family settlement required compulsory registration inasmuch as it was not only a memorandum of settlement between the parties but in fact by virtue of this family settlement, the entire settlement took place and, therefore, it required registration. Since the family settlement is not registered as required under the Registration Act, therefore, the petitioner does not derive any title to the suit premises by virtue of this family settlement.
18- Per contra, it is the case of the petitioner that the tenant has no locus standi to challenge the title of the petitioner inasmuch as in a proceeding under the DRC Act, the landlord is not required to prove his absolute ownership over the suit property. It is enough if he is able to prove that he is more than a tenant. The respondent cannot get any benefit even if the family settlement is unregistered one. Such a dispute could have been raised by the family members amongst whom the settlement had taken place but this plea is not available to the tenant. For raising this plea, reliance was placed on:
i) 155 (2008) DLT 383 - Rajender Kumar
Sharma & Ors. v. Leela Wati & Ors;
ii) 157 (2009) DLT 450 - Ramesh Chand
(RCT Appeal No.10/2011 & 13/2011) (Page 13 of
35)
v. Uganti Devi;
iii) AIR 2006 SC 376 - E. Parashuraman
(deceased by L.Rs.) v. V. Doraiswami
(deceased by L.Rs.).
19- This plea of landlord has substantial force inasmuch as it is settled law that under DRC Act, it is not necessary for a landlord to prove his absolute ownership over the suit property. Landlord has merely to show that he is more than a tenant. The tenant himself is not claiming to have become owner of the property. It is the case of tenant also that premises were let out to him by Smt. Prabhati Devi and Shri Puran Chand who are none else but the mother and brother respectively of the petitioner. Smt. Prabhati Devi and Shri Puran Chand had sent a notice dated 03.01.1994 Ex.AW1/14 to the effect that as per family settlement, the property in question devolved upon the petitioner and he alone is entitled to receive the rent from him. He was called upon to pay rent to petitioner w.e.f. 01.07.1993 onwards. Prior to that petitioner had also sent a notice dated 04.11.1993 Ex.AW1/6 claiming arrears of rent. It is also not in dispute that after 01.07.1993, neither Smt. Prabhati Devi nor Shri Puran Chand claimed any rent from the tenant. Under the circumstances, irrespective of the fact that the family settlement is unregistered one, the petitioner became entitled to receive rent from respondent. In Rajinder Kumar Sharma (supra) it was held that the landlord is not supposed to prove absolute ownership as (RCT Appeal No.10/2011 & 13/2011) (Page 14 of
35) required under the Transfer of Property Act. He is required to show only that he is more than a tenant. In Ramesh Chander (supra) it was held that imperfectness of title of premises cannot stand in way of eviction petition. Neither tenant can be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant paying rent to the landlord. Section 116 of Evidence Act creates estoppals against such a tenant. In view of the aforesaid discussion, it was rightly held by the learned Addl. Rent Controller that by virtue of family settlement, the petitioner became landlord of the suit premises qua the respondent.
20- As regards rate of rent being Rs.60/- per month exclusive of water and electricity charges, there is no dispute.
21- Similarly there is no dispute that respondent paid rent upto 01.06.1993 only to Smt. Prabhati Devi and Shri Puran Chand 22- There is also no dispute that a legal notice of demand dated 04.11.1993, Ex.AW1/6 was sent by petitioner claiming arrears of rent w.e.f. 01.07.1993 to which reply Ex.AW1/9 was sent by respondent and thereafter rent was deposited under Section 27 of the DRC Act in the court of Shri P.C. Ranga, Addl. Rent Controller, (RCT Appeal No.10/2011 & 13/2011) (Page 15 of
35) Delhi. Record reveals that when legal notice of demand dated 04.11.1993, Ex.AW1/6 was sent by the petitioner, claiming arrears of rent on the ground that as per the family settlement, the portion in possession of the tenant has fallen to his share and as such, he has become owner/ landlord in respect of the shop in question, the respondent /tenant sent a reply dated 13.12.1993 Ex. AW1/9 wherein it was stated that after the service of the notice he met the petitioner and called upon him to give a copy of alleged family settlement but he failed to furnish the same. The original owners Smt. Prabhati Devi and Shri Puran Chand also did not serve him any notice calling upon him to pay any rent to the petitioner. There is nothing on record to show that after service of this reply the petitioner supplied him with the copy of family settlement. There is also no dispute that although the family settlement took place on 12.04.1989 but till June 1993 Smt. Prabhati Devi and Shri Puran Chand continued realising rent from the respondent and never served any notice upon him to attorn to the petitioner. It was only subsequently that they sent a letter dated 03.01.1994 calling upon the respondent to attorn to the petitioner by virtue of family settlement. Even to this letter the respondent sent a reply stating therein that since the copy of family settlement was not supplied to him despite demands, as such he has deposited the rent in the Court of Addl. Rent controller, Delhi. Under the circumstances, it (RCT Appeal No.10/2011 & 13/2011) (Page 16 of
35) becomes clear that although by virtue of family settlement dated 12.04.1989 premises in question falls to the share of petitioner but till June 1993, the erstwhile owner continued realising rent from the respondent and never informed him about the family settlement. Even thereafter when the notice was served upon the respondent, claiming arrears of rent, despite demand he was not supplied with copy of family settlement. Prior to 1994 erstwhile owner never called upon the respondent to attorn to the petitioner, as such there was a bonafide dispute as to who was entitled to claim arrears of rent and, therefore, petitioner deposited the rent under Section 27 of the DRC Act before the Additional Rent Controller.
23- The learned Addl. Rent Controller, however, observed that the respondent had deposited the rent in the court without interest, therefore, it cannot be said that he has complied with the notice. Reliance was placed by him on two judgments of the Hon'ble High Court of Delhi, reported in 128 (2006), DLT 299, Harvans Kumari & Ors. v. Sharda Aggarwal & Ors. and 126 (2OO6) DLT 6 Prof. Ram Prakash v. D.N. Srivastava for observing that even if the rent is tendered within two months but it is without interest, then it is not complete compliance of the legal demand notice and it was held that respondent has failed to pay or tender complete rent despite service of legal demand notice. With due respect, both these (RCT Appeal No.10/2011 & 13/2011) (Page 17 of
35) authorities are not applicable inasmuch as in these cases, interest was also claimed in the notice and tenant only remitted the amount of rent as claimed in notice but not the interest. As such, question arose, "whether the amount of interest which is claimed by the petitioner is inclusive in Rent" ? It was held by Hon'ble High Court that interest on arrears is part of rent required to be deposited by the tenant. However, facts of those cases are distinguishable from the present case. A perusal of notice Ex.AW1/6 dated 04.11.1993 sent by petitioner to the respondent goes to show that the petitioner called upon the tenant: "to pay all the arrears of rent w.e.f. 01.07.1993 upto date @ Rs.60/= per month within one week of the receipt of this notice". As such, by virtue of this notice, the landlord did not ask the tenant to pay interest also alongwith arrears of rent. Therefore, although under Section 26 of the DRC Act, the landlord is entitled to interest @ 15% per annum in case of failure to pay the rent in time, but since the same was not claimed in the legal notice of demand, therefore, even if the tenant did not pay interest while depositing the rent under Section 27 of the DRC Act in the court of learned Addl. Rent Controller, it cannot be said that he did not comply with the notice of demand because it is undisputed case of the parties that the arrears of rent as claimed in the notice of demand, were deposited by him in the court of learned Addl. Rent Controller. That being so, since the tenant has complied with the notice of demand by (RCT Appeal No.10/2011 & 13/2011) (Page 18 of
35) depositing the arrears of rent within two months of the notice of demand, there was no cause of action for the landlord to file eviction petition on the ground of non- payment of rent, and therefore, the petition was liable to be dismissed on this ground. That being so, the impugned order in regard to the findings under Section 14(1)(a) of the DRC Act is set aside and the appeal bearing RCT No.13/11, filed by the tenant is allowed.
Grounds u/s 14(1)(b) of DRC Act:
It is undisputed case of the parties that the premises in question were let out to respondent. It is the case of petitioner that now the respondent is not doing the business in the suit shop. He has given the business to his son Mohd. Sahid, who is exclusively running the business. Although the petition was silent as to since when Mohd. Sahid was exclusively doing the business in the suit premises. However, the petitioner in his deposition has stated that the tenant has given the business to his son Mohd. Sahid, who is running the business for the last 8 years and it is Mohd. Sahid who is opening and closing the shop and is under his control. The petitioner admitted in the cross-examination that respondent has four sons and he has also a meat shop at Pitampura besides a meat shop in the premises in dispute. He could not say if the respondent and his four sons are residing together and have a common mess. AW-4 also deposed that respondent has sublet, (RCT Appeal No.10/2011 & 13/2011) (Page 19 of
35) assigned or parted with the possession of the suit shop to his son Mohd. Sahid who is in possession of shop and carrying on the meat shop for the last more than 15-16 years. Mohd. Sahid opens the shop in the morning close the shop in the evening as he conduct the business and overall control over the shop is with Mohd. Sahid and respondent is not carrying on any business in the said shop.
However, in the cross-examination, he stated that only Yakub sits in the shop.
24- On the other hand, respondent deposed that he has four sons namely - Mohd. Harun, Mohd. Shamim, Mohd Sahid and Mohd. Nasim. Besides the shop in dispute, he is also having a shop at Pitampura. Out of four sons, one or two sons help him in carrying on the business at the premises in dispute. Sometime, Sahid assist him in carrying on the business and sometimes other sons assist him. All the four sons are residing with him at T-240, Idgah Road, Qasabpura, Sadar Bazar, Delhi and they have a common mess. Sahid has no interest whatsoever in the tenancy in shop. He never sublet, assigned or otherwise parted with possession of the shop in dispute to Sahid at any time. The shop is still in his possession and control. The business carried out in the shop is also his own business. The licence for running the meat business is also in his name and the shop in dispute has always remained under his possession and control. Mohd. Sahid appeared (RCT Appeal No.10/2011 & 13/2011) (Page 20 of
35) as RW3 and also deposed that he assist his father who is an old man, in running the business. Besides the shop in dispute, his father has another shop at Pitam Pura and sometimes he and sometimes his other brothers assist his father in running the shops.
25- The aforesaid evidence led by the parties, goes to show that no cogent evidence has come on record to prove that the tenant has divested himself of physical as well as legal possession of the shop in question or has sublet the shop to his son Mohd. Sahid or that Mohd. Sahid is in exclusive control of the shop in question. The mere fact that Mohd. Sahid, being son of the tenant assists him in carrying on the business, does not by any stretch of imagination, leads to the conclusion that the tenant had either sublet, assigned or parted with possession of the suit premises.
26- Clause (b) to proviso to sub-section (1) of Section 14 of the DRC Act uses three expression, namely "sub letting", "assigning" and "parting with possession" of the whole or part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to different circumstances. In sub letting, there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instance of letting or the tenancy (RCT Appeal No.10/2011 & 13/2011) (Page 21 of
35) must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression "parting with possession"
undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself or in other words, there must be vesting of the possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession. This law has been laid down in:-
- Hazari Lal v. Giani Rani, 1972 RCR 74;
- Jagannath (deceased) through L.Rs v. Chander Bhan & Ors., AIR 1988 SC 1362; and
- Vishwa Nath v. Chaman Lal, (1989) 3 SCC 56.
27- It was further held by Hon'ble Supreme Court in Jagdish Parshad v. Angoori Devi, AIR 1984 SC 1447 that merely from the presence of a person other than the tenant in the shop, subletting cannot be presumed.
(RCT Appeal No.10/2011 & 13/2011) (Page 22 of
35) 28- In Gurdial Singh v. Brij Kishore, 1970 RCJ 1001, it was held that what has to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee. Though a person may be absent from the premises at a time, yet if he has an intention to return to them, it may fairly be said that he is still actually in possession and, therefore, entitled to be protected. If a lessee retains legal possession at all times he does not commit a breach of the covenant against parting with the possession by allowing other person to use the premises. A covenant against the parting with possession is not broken by sharing the possession with another. It is quite possible in law that a man can permit anyone to occupy and at the same time remain in possession. Where the tenant remained in control of each of the companies and the facts shows that he was really and easily carrying on the business of others at his own premises which remained his from first to last, then he cannot be said to have parted with possession. The mere fact of letting other persons into the possession by the tenant and permit them to use the premises for their own purpose is not, so long as he retains the legal possession himself, a breach of the covenant. It is not the law that no sooner does any person other than a lessor occupy a premises, it must be held that the tenant has parted with the (RCT Appeal No.10/2011 & 13/2011) (Page 23 of
35) possession of the demised premises.
29- In Sohan Lal v. Sri Pal & Others, 48 (1992) DLT 65, it was held that possession does not mean the physical possession only but it should be legal possession also. The mere user by other person is not parting with possession so long as the tenant retain the legal possession himself. In the instant case, absolutely no evidence has come on record that the respondent has given the possession of shop to his son in lieu of payment of some rent or compensation or that the respondent has divested himself of the physical and legal possession of the shop and gave the same to his son. Under the circumstances, learned Addl. Rent Controller rightly came to the conclusion that the petitioner has failed to prove the ground of subletting under Section 14(1)(b) of the DRC Act. This finding does not call for any interference.
Grounds u/s 14(1)(j) of DRC Act:
In order to seek eviction on this ground it is imperative upon the landlord to establish :-
i) the tenant had made the construction;
ii) the construction was without the
consent of landlord;
iii) the said construction has materially effected the premises; and
iv) the construction which has been (RCT Appeal No.10/2011 & 13/2011) (Page 24 of
35) carried out by the tenant did materially alter the premises.
30- The legislature while incorporating this ground intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenants eviction and hence it had taken care to use the words "materially altered the accommodation".
31- In Charan Singh v. Ananthi 1966 (68) PLR 780 it was held by the Hon'ble Supreme Court that it is not every act of waste, which entitles the landlord to ask for eviction, but it is only that act of waste, which causes substantial damage to the premises. The onus is upon the landlord to prove that tenant has caused substantial damage to the premises. He has not only to prove that the tenant has caused damage to the property but also to prove that such act has caused substantial damage to the property.
32- In Om Pal v. Anand Swarup (dead) by L.Rs., 1988(2) RCJ 612 (SC) the Hon'ble Supreme Court has decided as to what would amount to substantial damage. It was held that "it is not every construction or alteration that would result in material impairment to the value of the utility of the building. In order to attract Section 13(2)
(iii) of East Punjab Urban Rent Restriction Act, 1949 the (RCT Appeal No.10/2011 & 13/2011) (Page 25 of
35) construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature".
33- Hon'ble Mr. Justice Mahmood Ali Khan of Delhi high Court summarized the law on this point in case titled as Suraj Prakash Chopra Raj Kumar v. Baij Nath Dhawan & another 103 (2003) DLT 645. He observed that:
(i) The onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) Landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) Tenant has made the construction without the consent of the landlord;
(iv) The said construction has materially effected the tenancy premises and further that the construction which had been carried out by the tenant had material altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) Landlord has to prove it by cogent (RCT Appeal No.10/2011 & 13/2011) (Page 26 of
35) evidence and wherever necessary expert witness should be examined;
(vii) An eviction order under clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises.
(viii) Every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building;
(ix) A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) Every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under clause (j) and that each case would depend upon its own facts; and
(xi) The impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant.
In determining the question the court must address itself to the nature, character of the construction and the extent to which they make changes in the front and structure of the (RCT Appeal No.10/2011 & 13/2011) (Page 27 of
35) accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The legislature intended that only those constructions, which bring about substantial change in the front and structure of the building should provide a ground for tenant's eviction, it took care to use the words, "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a chabutra, almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such construction the front and structure of the building may remain uneffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation."
34- This being the legal position, let us turn to the case in hand.
35- In the eviction petition as originally filed it was alleged by the appellant/ petitioner that the respondent has (RCT Appeal No.10/2011 & 13/2011) (Page 28 of
35) caused substantial damages to the suit shop by making additions and alterations as a result of which the foundation of property has weakened. The respondent has illegally and wrongfully constructed the basement without consent of the petitioner/ owner/ landlord and dug the floor as a result of which several cracks have appeared in the building. He has also removed the pillars which were in existence in the said building and has also removed the almirah, kolki and Alla. He also constructed Duchhatti in the shop. He has also constructed tin-shed in front of the shop. In the written statement the respondent denied that he has caused and permitted to be caused substantial damages to the suit shop by making additions and alterations as a result of which foundation of the property has weakened. It was alleged that whatever additions and alterations have been made, the same was made with the knowledge and consent of Smt. Prabhati Devi and Shri Puran Chand. It was further alleged that upto 1987 the building was double storeyed building. Besides the shop, one kolki was also in the tenancy of the respondent. In 1987 a settlement took place between respondent and Smt. Prabhati Devi and Shri Puran Chand whereby respondent surrendered the kolki which was included by them in the adjoining shop. After surrendering the kolki, Smt. Prabhati Devi and Shri Puran Chand allowed the respondent to construct the basement and thereafter with the permission of the tenant, they reconstructed the first floor and also (RCT Appeal No.10/2011 & 13/2011) (Page 29 of
35) raised construction of second floor, third floor, and fourth floor. The tin-shed was in existence since long on the Municipal land.
36- Therefore, as regards construction of basement is concerned, same is not disputed by the respondent. However his defence is that the same was constructed with the consent of previous owner Smt. Prabhati Devi and Shri Puran Chand and the construction was raised in 1987. Thereafter further construction upon the premises was done by Smt. Prabhati Devi and Shri Puran Chand. Petitioner denied these facts and according to him when he was away to Rajasthan on account of death of his grand father then in between 18.10.1993 to 01.11.1993, the construction was raised by the respondent. The best person to prove the fact as to whether the basement was constructed in the year 1987 with the consent of Smt. Prabhati Devi and Shri Puran Chand, were Smt. Prabhati Devi and Shri Puran Chand because at that time the petitioner had not become the owner of the property as the family settlement itself took place on 12.04.1989. Smt. Prabhati Devi and Shri Puran Chand were none else but the mother and the brother of the petitioner and in order to disprove the defence of the respondent he could have very conveniently examine them but these witnesses were neither cited in the list of witnesses nor examined by the petitioner. In AIR 1968 SC 1413, Gopal Krishanji v.
(RCT Appeal No.10/2011 & 13/2011) (Page 30 of
35) Mohd. Haji; AIR 1960 Patna 223, Devji Shivji v. Mohan Lal; AIR 1968 Punjab & Haryana 72, Subedar Somander Singh v. State; AIR 1978 Delhi 199, Bharat Bhushan v. Ved Prakash; AIR 1976 Calcutta 389, M/s. Burn & Company Limited v. State; and AIR 1988 Delhi 332, Niranjan Kaur v. M/s. Delhi Hotels Ltd., it was held that when a party in possession of best evidence which would throw light on the issue in controversy withhold it, court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him and further that such party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to prove it. As such, for non-examination of material witnesses by petitioner, an adverse inference has to be drawn against him. Except for the oral testimony of the petitioner and the respondent, there is no other cogent evidence available on record to prove as to whether the construction of basement was carried out in the year, 1987 or 1993.
37- In any case, in order to invoke this ground of eviction, it is not the construction simplicitor which is material, it is also to be proved that the construction has impaired the utility of the building. The appellant/ petitioner has examined Shri Anil Kumar Gupta, who has given his report as Ex.AW3/1 stating therein that the construction has caused substantial damages to the (RCT Appeal No.10/2011 & 13/2011) (Page 31 of
35) property.
38- Report Ex.AW3/1 goes to show that this report is on the letter head of Gupta & Associates, Architects, Engineers, Valuers, Estimators and Registered Building Supervisors, however in cross-examination the witness admitted that he has merely done diploma in draftsmanship and is neither an Engineer nor an Architect. Moreover, a perusal of report goes to show that it was prepared at the instance of the petitioner inasmuch as at various stages of report, it has been mentioned that the construction was raised without the permission of the owner and MCD. It is not understandable as to how this witness, who is a stranger to the parties, could mention in his report as to whether the construction was with or without the consent of owner or MCD. Further in his report, he has stated that tenant has constructed a duchhati and has caused damage to the property by making holes and fitted iron girder in duchhati. In cross-examination, he could not say about dimension of girders or their number or number of holes and their sizes. He admitted that he did not enter the premises at the time of report. If that is so, how can be say about any construction or structural stability of the building. Under these circumstances, no reliance can be placed on the report submitted by this witness. On the other hand, respondent has examined RW2 Shri B.P. Singh, Engineer who inspected the ground (RCT Appeal No.10/2011 & 13/2011) (Page 32 of
35) floor shop and basement and gave his report Ex.RW2/2, opining that building is safe and sound. He further deposed that landlord did not allow him to go up stairs, therefore, he could not give any opinion regarding structural stability of remaining portion.
39- As regards demolition of kolki is concerned, it is pertinent to note that when legal notice was served upon the respondent prior to filing the eviction petition, there was absolutely no mention as to whether the kolki formed part of tenanted premises or that the same was demolished by the respondent. So much so, even the original eviction petition was silent in this regard. It was only subsequently that the petition was amended and this fact was incorporated in the amended petition.
40- Here also, it is the case of respondent that Kolki which was in his tenancy, was surrendered by him to Smt. Prabhati Devi and Shri Puran Chand and it was demolished by them and not by the respondent. Here again at the cost of repetition, it may be mentioned that non production of Smt. Prabhati Devi and Shri Puran Chand to disprove this defence, taken by the respondent, raises an adverse inference against the petitioner.
41- As regards construction of two Almirah shops, the petitioner himself admitted in his cross-examination that (RCT Appeal No.10/2011 & 13/2011) (Page 33 of
35) there was no almirah shops towards Gali No.19 in the Wall of Mohd. Yakub when Mohd. Yakub was inducted as a tenant and now there are two almirah shops. He denied the suggestion that these shops were built by Smt. Prabhati Devi and Shri Puran Chand in 1987 but went on stating that these shops were built by him in October, 1992 with the consent of Mohd. Yakub.
42- As regards the tin-shed is concerned, it has come in evidence that the same has since been demolished.
43- The result of the aforesaid discussion is that the onus of proving the factum of raising construction by respondent and thereby impairing the utility or causing substantial damages to the premises was upon the petitioner. However, the petitioner has failed to prove the same. In fact, the entire record goes to show that the petitioner has tried to make improvement time and again inasmuch as in the legal demand notice Ex.AW1/6, it is no where stated when basement and other construction was raised by respondent. Further more, as stated above, there was no mention about demolition of kolki in the legal notice or in the original eviction petition. It was only subsequently, that these facts were added either by way of amendment in the eviction petition or in the evidence. Moreover, if the testimony of petitioner is believed as correct that during his absence, this construction was (RCT Appeal No.10/2011 & 13/2011) (Page 34 of
35) raised by the respondent, why no complaint was made by him to the Police or any other authorities in November, 1993. Under the circumstances, the petitioner has failed to prove that the construction of basement by respondent was without the consent of owner or that the other alterations/ additions materially impaired the value and utility of premises. As such, the essential ingredients of Section 14(1)(j) of the DRC Act were not proved. Learned Addl. Rent Controller has considered the entire evidence and material on record while deciding this ground of eviction and there is nothing to interfere in the same.
44- To sum up while the appeal (RCT-13/11) filed by Mohd. Yakub qua the findings in regard to Section 14(1)
(a) of DRC is allowed and the impugned order in that regard is set-aside; the appeal (RCT No.10/11) filed by Nawal Kishore qua the findings in regard to Section 14(1)
(b) & (j) of the DRC Act is dismissed. Parties are left to bear their own costs.
Copy of the order be placed in the appeal filed by Mohd.Yakub (RCT-13/11) and a copy of the order be sent to the trial Court alongwith record. Appeal files be consigned to record room.
Announced in open
court on 09.08.2012 (SUNITA GUPTA)
Rent Control Tribunal:
Delhi
(RCT Appeal No.10/2011 & 13/2011) (Page 35 of
35)