Delhi District Court
Smt. Anisa Bano vs Gulzar on 23 March, 2015
IN THE COURT OF MS BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E - 33/2014
Unique Identification No.02402C0124122014
Smt. Anisa Bano
W/o late Sh. Zahiruddin,
R/o 1347, Bazar Chitli Qabar,
Matia Mahal, Delhi. .....Petitioner
Versus
Gulzar
S/o Not Known,
R/o H. No. 889, First Floor,
Khasra No.258260, Gali No.13,
Maujpur, Vijya Mohalla,
Delhi110053. .....Respondent
Application for Eviction of tenant under Section 14 (1) (e) of the
Delhi Rent Control Act, 1958
Petition filed on : 25.04.2014
Order reserved on : 10.02.2015
Date of Order : 23.03.2015
Decision : Leave to defend application of the
respondent dismissed and eviction order passed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 1 of 15 of the Delhi Rent Control Act, 1958 (herein after referred to as the 'DRC Act').
2. The petitioners Ms. Anisa Bano filed a petition under Section 14 (1) (e) of the DRC Act. Summons under prescribed format were served upon the respondent on 28.05.2014. An application seeking leave to defend the petition was filed on 01.07.2014.
3. (a) The petitioner has sought an eviction against the respondent stating that the petitioner is an old and poor widow of about 60 years of age and she is the owner/landlord of the property bearing no.889, Khasra No.258260, Gali No.13, Maujpur, Vijya Mohalla, Delhi110053 measuring about 50 sq. yds. consisting of ground, first and second floor. The ground and second floor are in possession of the petitioner. It is submitted that the respondent is a tenant at a monthly rent of Rs.2500/ in respect of entire first floor consisting of two rooms, kitchen and toiletbathroom in the above said property, more specifically shown with red colour in the site plan attached. It is submitted that the tenanted premises is let out to the respondent about 7½ years back and it was an oral tenancy coupled with delivery of possession.
(b) It is further submitted that the petitioner's family consists of herself, 5 sons, 5 daughters and 1 daughterinlaw and two E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 2 of 15 grandsons. It is submitted that elder son of the petitioner named Nooruddin is married and is having his wife and two children aged about 8 years and 4 years respectively. The petitioner is having two daughters who are married. The petitioner alongwith her elder son's family, 2 unmarried sons and two daughters is residing at 1347, Bazar Chitli Qabar, Matia Mahal, Delhi110006, which is a custodian property measuring just about 80 sq. yds. approx. in which 7 families are residing, and the petitioner has just one room measuring 4' x 6' and a small temporary mezzanine room (in which her married son Nooruddin lives with his family) in her possession and the said property is very old and is in a dilapidated condition. It is submitted that except the married daughters, all the aforesaid children of the petitioner, including the married son and his family are dependent upon her for residence. In fact, the petitioner's aforesaid married daughters alongwith their families also keep visiting the petitioner and stay with her.
(c) It is submitted that due to big and growing family of the petitioner, the tenanted premises are required bonafide by the petitioner for her and the family members dependent upon her for residence as the total accommodation available with her is not sufficient for her and the family members dependent upon her for E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 3 of 15 residence. The petitioner's three sons, named Rehman, Wahabuddin and Salma, are of marriageable age but due to paucity of space, the petitioner is not able to arrange their marriages. As submitted earlier, the property bearing no.889, Khasra No.258260 is consist of ground floor, which is a hall, first and second floor. The petitioner has stored her goods etc. in the hall on the ground floor, as there is no other place for her to store her goods etc. and some portion of the hall is used by her two sos named Wahabuddin and Salman for doing job work of printing marriage cards etc. and they alongwith one unmarried daughter of the petitioner named Aisha are staying on the second floor which has got just one room, toilet bathroom and verandah. The tenanted premises i.e. the first floor consists of two rooms, kitchen and toiletbathroom. It is submitted that the petitioner has got no other accommodation available with her for her family members except the tenanted premises. It is, therefore, prayed to pass an eviction order against the respondents.
4. Ld. counsel for the respondent has argued through his leave to defend application that there is no relationship of landlord and tenant between the parties. It is further argued that the petitioner mortgaged the first floor of the property bearing no.889, Khasra No.258260 to the respondent on 10.02.1999 against a sum of Rs.3,00,000/ before E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 4 of 15 the marginal witnesses namely Sh. Sameer Khan S/o Sh. J.K. Khan R/o A432B/249, Gali No.7, Chauhan Banger, New Seelampur, Delhi110053 and Sh. Irshad Ali s/o Sh. Meharban Ali R/o H.No.1113, Gali No.39/5, Jafrabad, Delhi110053. It is argued that the petitioner also permitted the respondent to reside at the mortgaged first floor of her said house and the petitioner assured the respondent that she will got released her mortgaged floor on or before 09.02.2001 and she has failed to do so then she will have not have any right and title in connection with the mortgaged floor and the respondent will be the owner of the mortgaged floor. It is submitted that the petitioner has handed over the possession of the mortgaged premises to the respondent on 10.02.1999 itself and the respondent started to reside at the said mortgaged first floor. It is submitted that the petitioner did not make payment of Rs.3,00,000/ to the respondent on or before 09.02.1999 and did not get released her mortgaged floor from the possession of the respondent.
Thus, it is argued on behalf of the respondent that he has raised triable issues and the respondents are entitled to leave to defend.
5. The petitioner filed reply to the application seeking leave to defend and denied the contentions of the respondent reaffirming the averments made in the petition.
E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 5 of 15
6. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provisions under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation which read as under:
14. Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
7. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 6 of 15 dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
8. In the present case the petitioner has filed the present petition stating that she is the owner/landlord of the tenant/respondent in respect of entire first floor consisting of two rooms, kitchen and toilet bathroom in the property bearing no.889, Khasra No.258260, Gali No.13, Maujpur, Vijya Mohalla, Delhi110053. The petitioner has also claimed that the reason for eviction is a bonafide requirement for residential purpose of herself as well as for her family members. she has no other property except the present property in the vicinity of Delhi.
9. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
10. The objection/ground on which leave to defend is sought is that there is no relationship of landlord and tenant between the parties. It is further argued that the petitioner mortgaged the first floor of the property bearing no.889, Khasra No.258260 to the respondent on E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 7 of 15 10.02.1999 against a sum of Rs.3,00,000/ before the marginal witnesses namely Sh. Sameer Khan S/o Sh. J.K. Khan R/o A432 B/249, Gali No.7, Chauhan Banger, New Seelampur, Delhi110053 and Sh. Irshad Ali s/o Sh. Meharban Ali R/o H.No.1113, Gali No. 39/5, Jafrabad, Delhi110053. It is aruged that teh petitioner also permitted the respondent to reside at the mortgaged first floor of her said house and the petitioner assured the respondent that she will got released her mortgaged floor on or before 09.02.2001 and she has failed to do so then she will have not have any right and title in connection with the mortgaged floor and the respondent will be the owner of the mortgaged floor. It is submitted that the petitioner has handed over the possession of the mortgaged premises to the respondent on 10.02.1999 itself and the respondent started to reside at the said mortgaged first floor. It is submitted that the petitioner did not make payment of Rs.3,00,000/ to the respondent on or before 09.02.1999 and did not get released her mortgaged floor from the possession of the respondent.
11. The whole argument of the respondent that there is want of landlord and tenant relationship, is irrelevant as firstly, he does not dispute that petitioner is the owner of the property in question. The respondent cannot at this stage, deny the ownership of the petitioner. E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 8 of 15 Secondly, for the purpose of DRC Act, what has to be established is the landlord tenant relationship, which is not denied here. Under the DRC Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show that he is more than tenant (Rajender Kumar Sharma & Ors. vs. Leelawati & Ors., 155 (2008) DLT 383). Thirdly, by its own admission, the respondent has admitted that the petitioner is entitled to part of the Estate of her deceased husband/landlord, though only a part of it, and under the Delhi Rent Control Act, it is sufficient if one of the coowners files a petition under Section 14 (1) (e) of the DRC Act. It is also been held in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. Thus, it is not necessary that all the co owners should be part of the eviction petition. The petitioner does not have to prove absolute ownership under Transfer of Property Act, but for the purpose of Delhi Rent Control Act. It was held in Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 9 of 15 He is required that he is more than a tenant". It was also held in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant." Even otherwise, under Section 116 of the Indian Evidence Act, the tenant is precluded from denying the title of the landlord and for the purpose of DRC Act as held in Sushil Kanta vs. Rajeshwar Kumar, cited as 1999 Rajdhani Law Reporter 289, "an owner U/s. 14 (1) (e) need not be an absolute owner requiring registered Sale Deed in his favour contemplated by the general law in S. 54, TPA. It is enough if he has paid for and built tenancy premises".
Thus, it is clear that the petitioner and the respondent share landlordtenant relationship and the argument of the respondent in this regard is not acceptable.
12. As regards the ground of objection that the tenanted floor has been mortgaged by the petitioner to the applicant/respondent for payment of loan of Rs.3,00,000/ and since payment not made, the applicant/respondent became the owner of the tenanted floor by E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 10 of 15 default and if not by default by virtue of adverse possession, no triable issue can be set to have arisen in the light of embargo enshrined under Section 59 of Transfer of Property Act which speaks of necessary requirement to be followed in case of transfer of immovable property by mortgage. Section 59 of the Act of 1882 further provides that where the principle money secure is Rs.100/ or upwards, a mortgage other than by deposit a title deeds can be effected by a registered instrument signed by the mortgagor and attested by at least two witnesses. The substance of the provision is that if the parties i.e. mortgagor and mortgagee transfers interest in the specific immovable property for the purpose of securing the payment of advance or to be advanced by way of loan, an existing or future debt, of the performance of an engagement which may give right to a pecuniary liability, where delivery of the possession having taken place and the consideration is Rs.100/ or upwards, the same must be by registered instrument. Coming to the case in hand, it is the contention of the applicant that the petitioner while handing over the possession, has mortgaged the first floor of the tenanted property against a sum of Rs. 3,00,000/ on 10.02.1999 before the two marginal witnesses assuring to make repayment/release of her mortgaged floor on or before 09.02.2001 failing which she would loose right title or interest in the E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 11 of 15 tenanted property. Admittedly, the consideration for the mortgaged value a sum more than Rs.100/ and as per Section 59 of Transfer of Property Act, the same is required to be in writing and be registered as same has not been done in the present case. No right title or interest in the tenanted floor by way of mortgage has ever been created. It is further observed that as per para 6 of the affidavit of the applicant, it is stated that the petitioner did not make the payment of Rs.3,00,000/ to the respondent on or before 09.02.2001 and did not get release her mortgaged floor. Therefore, the applicant became the owner of the tenanted floor by virtue of adverse possession since 09.02.2001. The contentions of the applicant are itself contradictory as the loan amount is stated to have been tendered on 10.02.1999 and the date for release/repayment is stated to be 09.02.2001. To say more, the remedy (assuming there being the terms of mortgage as raised above in registered instrument) in the present case for the alleged mortgagee, the applicant herein, is by foreclosure and not by sale (Section 67 of Transfer of Property Act). No triable issue is raised for the purpose of proceeding further in trial in as much as no cogent material in the form of mortgage deed (as per the mandatory requirement of Section 59 of Transfer of Property Act), has ever been filed to substantiate the contention raised above. As regards the claim of the applicant for E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 12 of 15 recovery of loan amount of Rs.3,00,000/, the applicant is directed to adopt legal course available to him as per law. Further, a person who has come into possession by virtue of licence/permission, his permissive possession not being disturbed/denied cannot be said to be in "adverse possession".
13. The petitioner has specifically denied the contentions of the applicant/respondent and has also filed documents i.e. GPA etc. dated 23.03.1985 in support of her landlordship/ownership. In absence of any cogent documentary material, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition. In Naval Kishore Khandelwal vs. Kunti Devi 2013 (1) CLJ 295 Delhi while following case of Rajender Kumar Sharma vs. Leelawati, 155 (2008) DLT 383, it was held that mere assertion made by a tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for the grand of leave to defend. If this is allowed, the whole purpose of Section 25B of the Act shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of statute. The Rent Controller is, thus, precluded from considering the material placed before it by the landlord in response E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 13 of 15 to leave to defend to show that the tenant's assertions and averments were totally false. In Prithpal Singh vs. Satpal Singh (D) through LRs (2010) 2 SCC 15, it was held that mere bald assertion made without any basis cannot create a triable issue. Conclusion:
14. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
15. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to E - 33/14 Smt. Anisa Bano. vs. Gulzar Page 14 of 15 raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus dismissed with costs.
16. Consequently, an eviction order is passed under Section 14D and 14 (1) (e) of the DRC Act against the respondent in respect of entire first floor consisting of two rooms, kitchen and toilet bathroom in the property bearing no. 889, Khasra No.258260, Gali No.13, Maujpur, Vijya Mohalla, Delhi110053 as shown in red colour in the site plan filed by the petitioner in this case.
17. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
18. The parties are left to bear their own costs.
19. File be consigned to Record Room after due compliance.
(Announced in the open (Bhawani Sharma)
Court on 23.03.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 15 pages.) Karkardooma Courts, Delhi.
E - 33/14
Smt. Anisa Bano. vs. Gulzar Page 15 of 15