Delhi District Court
Mst. Gulnar Begum vs Sh. Sohan Pal on 9 February, 2016
IN THE COURT OF SH. TARUN YOGESH,
SCJCumRC (Central Distt.), DELHI.
E. No. : 24/15
Unique ID No : 02401C0134642008
Mst. Gulnar Begum
W/o Sh. Sharif Ahmed,
R/o House No. 6496,
Bara Hindu Rao, Delhi.
(Through her General Attorney
Sh. Sharif Ahmed) .......... Petitioner
VERSUS
Sh. Sohan Pal,
S/o Sh. Chottey Lal,
R/o H. No. 10497,
Hari Chand Chowk,
Manak Pura, New Delhi - 110 005 ........... Respondent
Date of Institution of case : 18.11.2008
Date on which judgment was reserved : 09.02.2016
Date on which judgment was pronounced : 09.02.2016
JUDGMENT
1. Petitioner Mst. Gulnar Begum has filed eviction petition U/s 14 (1) (e) read with section 25B of Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) against respondent Sh. Sohan Pal for seeking his eviction from property bearing no. 10497 forming part of large property no. 10496 to 10498, Hari Chand Chowk, Manak Pura, New Delhi110 005 more specifically shown in red colour in the site plan filed by petitioner.
1.1 Demised portion comprising one room and one tin shed verandah on the ground floor is stated to have been let out to respondent by erstwhile owner prior to purchase of property vide registered sale deed dated 25.03.1992 and respondent is averred to Mst. Gulnar Begum Vs. Sohan Pal Page 1 of 15 be paying monthly rent of Rs. 10/ excluding other charges. Respondent is also alleged to have unauthorizedly constructed roof over the tin shed and one room on the first floor of property alongwith a staircase without petitioner's permission. 1.2 Petitioner claims herself as owner of property by virtue of registered sale deed dated 25.03.1992 and has spelt out her bonafide need of demised premises for use as residence for herself and her family members dependent upon her. She has also mentioned her requirement for at least 10 rooms for accommodating her family besides claiming that no other reasonable and suitable accommodation is available with her for use as residence. 1.3 Petitioner's family is mentioned to be comprising herself, her husband Sh. Sharif Ahmed and three sons namely Sh. Umar Sharif, Sh. Azhar Sharif and Sh. Saad Sharif (aged 21 years, 20 years & 17 years respectively in 2008). Her eldest son being married is engaged in the business of cardboard whereas her second son of marriageable age and youngest are engaged in studies. Petitioner claims to be residing with her family in rented accommodation comprising one room, common latrine and bathroom in property no. 6496, Peerjee Chowk, Bara Hindu Rao, Delhi under the legal heirs of late Sh. Iqbal Ahmed who are pressing her to vacate the tenanted room.
1.4 Besides her family, petitioner has also averred about her three married sisters and two married sisters of her husband in addition to other near relatives who often visit and stay with them on occasion of festivals for lamenting about lack of drawing room, dining room and separate rooms for study and living for her family and relatives.
1.5 She has also disclosed about her other property bearing Mst. Gulnar Begum Vs. Sohan Pal Page 2 of 15 no. 708187 situated at Beriwala Bagh, Delhi which is fully occupied by tenants besides mentioning about possession of six small rooms measuring about 8 ft. x 10 ft. (all less than 100 sq. ft) in property no. 10496 10498 for claiming that demised portion occupied by respondent is more suitable for her and her family members being adjacent to the portion handed over by other tenant namely Sh. Ramesh. Remaining portion of property is averred to be occupied by different tenants whereas aforesaid six small rooms are not sufficient being very small (less than 100 sq. ft.) and not fit for residence.
2. Notice of eviction petition in prescribed form as per Third Schedule was served upon respondent and leave to defend application was filed by respondent for seeking unconditional leave to contest his eviction inter alia upon following grounds : 2.1 That petitioner has concealed material facts from the court and her petition is liable to dismissed under Order VII Rule 11 CPC for want of cause of action.
2.2 That petitioner is neither owner nor landlady and there is no relationship of landlordtenant between the parties besides composite nature of tenancy for residentialcumcommercial purpose and as such eviction petition is not maintainable. 2.3 That petitioner has not filed proper and correct site plan describing the tenanted portion having concealed about one temple, chopal and store situated at the entrance of property no. 10497 shown in orange colour in the site plan which is under care and custody of public of area.
2.4 That petitioner is owner in possession of property no. 7848, 8749, 7850 and 8751 (old number 708187), Ward No. XIII, Beriwala Bagh, Pul Bangush, Delhi - 110 006 besides being owner of 10 to 15 houses in Bara Hindu Rao and Beriwala Bagh in addition to Mst. Gulnar Begum Vs. Sohan Pal Page 3 of 15 seven vacant rooms in property no. 10497 and her husband is the joint owner of property bearing no. 6490 and 6496, Bara Hindu Rao, Delhi 110 006.
2.5 That a portion of property under tenancy of one Sh. Kundal Lal after being vacated was given on rent to Mohd. Naeeam and was thereafter again got vacated which shows that petitioner and her family members have sufficient residential accommodation. 2.6 That respondent's father was tenant in premises comprising one room and one covered verandah cum kitchen (concrete not tin shed) and staircase on the ground floor and one room, verandah with kitchen and staircase on the first floor and after his death respondent and his family members were in adverse possession of premises shown in red colour enjoying possession of property on the ground floor and first floor without any interference from any side.
2.7 That LRs of late Om Prakash Saini were not receiving rent of premises and they have no legal authority or right to sell or transfer the property to anyone as respondent and his family members were enjoying the portion of property without any interference from any side.
3. Petitioner filed her reply for assailing respondent's averments disputing her title and ownership of property besides composite nature of tenancy for residentialcumcommercial purpose.
4. Respondent thereafter filed his rejoinder for reasserting the grounds raised in his leave to defend application for seeking unconditional leave to contest his eviction.
5. After hearing submissions addressed by ld counsels, Ld. Predecessor Judge vide order dated 01.06.2011 dismissed respondent's application for leave to defend by holding that no triable Mst. Gulnar Begum Vs. Sohan Pal Page 4 of 15 issue could be raised in view of respondent's failure to disclose about alternate accommodation available to petitioner for meeting her family's requirement for residence.
6. Eviction order dated 01.06.2011 was assailed by respondent by filing his revision U/s 25 B (8) of DRC Act which was allowed by Hon'ble High Court of Delhi vide order dated 09.04.2015 passed in RC. Rev. 466/2011 & CM 21225/2011 by setting aside eviction order and directing respondent to file his written statement within four weeks besides direction to court to expedite the proceeding for concluding trial preferably within one year.
7. Respondent / his LRs, nonetheless, have been loathe in filing his written statement within four weeks as directed by Hon'ble High Court of Delhi and his written statement was filed on 13.08.2015 after more than four months since order dated 09.04.2015.
8. Petitioner has filed her application under Order VIII Rule 1 & 10 read with section 151 CPC on 07.09.2015 for seeking eviction order against respondent in view of noncompliance of direction of Hon'ble High Court of Delhi as written statement was filed by respondent on 13.08.2015 much beyond prescribed period of 30 days without any explanation or application for condoning the delay.
9. Respondent's counsel Adv. Sh. Arvind Kumar thereafter filed his application U/s 5 of Limitation Act read with section 151 CPC on 01.12.2015 for condoning the delay in filing written statement by mentioning about loss of respondent's file alongwith original documents coupled with long leave of Presiding Officer as a result of which he could not make his submissions before court for seeking extension of time to file written statement.
10. Petitioner has filed her reply for seeking dismissal of application filed by respondent's counsel and respondent's counsel Mst. Gulnar Begum Vs. Sohan Pal Page 5 of 15 has thereafter filed his additional submissions.
11. Having heard their submissions upon application filed by respondent's counsel, it would be apt to record that notwithstanding his plea about loss of main file due to renovation of his office / residence coupled with long leave of Presiding Officer, respondent's counsel has not ascribed any reason for not inspecting the judicial record or obtaining certified copies thereof for preparing his written statement. It is also pertinent to note that notwithstanding his plea about loss of original document, no such document except photographs and photocopies of aadhar card, election ID card, ration card, caste certificate, electricity bills and rent receipts were filed alongwith written statement on 13.08.2015.
12. It is also pertinent to note that respondent late Sohan Pal in para no. 11 of his leave to defend application read alongwith para no. 9 of his affidavit had averred that his father was tenant in the portion of premises on the ground floor and first floor under erstwhile landlord Sh. Om Prakash Saini which has been reiterated by his LRs in para no. 13 of their written statement for disputing landlordtenant relationship and for claiming their title through adverse possession. It would, therefore, be prudent to refer to the gist (kernel) of defence raised by LRs of late Sohan Pal in their written statement which are enumerated below : 12.1 That petitioner is not the owner of property being housewife and unemployed lady with defective ownership as benami property was purchased in her name.
12.2 That respondent's father was tenant in premises comprising one room and covered verandahcumkitchen and staircase on the ground floor and one room, verandah with kitchen and staircase on the first floor and after his death respondent and his Mst. Gulnar Begum Vs. Sohan Pal Page 6 of 15 family members were in adverse possession of premises shown in red colour enjoying possession of property on the ground floor and first floor without any interference from any side.
12.3 That LRs of late Om Prakash Saini despite being landlord were not receiving rent of premises and they had no legal authority or right to sell or transfer the property to anyone as respondent and his family members were enjoying the portion of property without any interference from any side.
12.4 That registered sale deed dated 25.03.1992 executed in favour of petitioner was neither legal nor admissible in evidence being defective, void and invalid on account of absence of any site plan mentioning the dimension / measurement of property and Sh. Hardeep Kumar Saini and late Om Prakash Saini were not actual owner / LRs of late Manak Chand Saini, so, petitioner could not claim herself as owner of disputed property.
12.5 That petitioner had not filed proper and correct site plan whereas respondent's site plan correctly disclosed the tenanted premises in red colour on the ground floor. Further, erstwhile owner had given only one room and verandah (including bathroom and kitchen) alongwith common staircase whereas concrete first floor was constructed by respondent with his personal funds without any interference and obstruction from the petitioner which remained under his adverse possession for more than 22 years and petitioner could not claim possession of constructed portion from the respondent. 12.6 That one temple, chopal and store for temple are situated at the entrance of property bearing no. 10497 (shown in orange colour in the site plan filed by respondent) which is under care and custody of public who are praying since long and petitioner's husband being property dealer / builder alongwith his associates wants to construct a Mst. Gulnar Begum Vs. Sohan Pal Page 7 of 15 mutistorey residentialcumcommercial complex and a mosque after demolishing the present structure alongwith old public temple which may create communal riots in the area.
12.7 That petitioner is owner in possession of property bearing no. 7848, 8749, 7850 and 8751 (old number 708187) ward no. 13, Beriwala Bagh, Pul Bungash, Delhi110 006 besides owning 10 to 15 houses in Sadar Bazar, Azad Market, Bara Hindu Rao and Beriwala Bagh, Delhi and her husband is joint owner of property no. 6490 and 6496, Bara Hindu Rao in addition to seven vacant portions including rooms, courtyard and bathrooms on the ground floor and first floor of property bearing no. 10497.
13. However, aforesaid plea of defence raised by LRs of respondent in their written statement do not constitute any valid defence against eviction of tenant.
14. Having averred about respondent's father being tenant under erstwhile owner Sh. Om Prakash Saini, LRs of late Sohan Pal, nonetheless, have disputed petitioner's ownership by assailing registered sale deed dated 25.03.1992 besides legal authority and right of LRs of late Om Prakash Saini (erstwhile owner) to execute sale deed which do not require any trial in view of well settled principle of law that for the purpose of section 14 (1) (e) of DRC Act a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act.
15. Hon'ble High Court of Delhi in case titled "Rajender Kumar Sharma & Ors Vs. Smt. Leelawati & Ors." 155 (2008) DLT 383 has held :
"It is settled law that for the purpose of section 14 (1) (e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as Mst. Gulnar Begum Vs. Sohan Pal Page 8 of 15 required under Transfer of Property Act. He is required to show only that he is more than a tenant."
16. In its later judgment delivered in case titled "Tahira Begum Vs. Sumitar Kaur & Anr." 166 (2010) DLT 443 Hon'ble High Court of Delhi has referred to decision of Hon'ble Supreme Court of India in "Shanti Sharma Vs. Ved Prabha" 33 (1987) DLT 80 (SC) = AIR 1987 SC 2028 for holding :
"For the purpose of section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership, but only as a title better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, a title better than the respondents."
17. Similarly, in para no. 6 of its earlier judgment delivered in case titled "Mrs. Meenakshi Vs. Ramesh Khanna etc." 1995 Rajdhani Law Reporter 322, Hon'ble High Court of Delhi has observed " ..Mere denial of ownership of the landlord does not mean that every case must be sent for trial involving years. The Controller has to assess the strength of the case of tenant regarding denial of ownership of the petitioner. For this, guidelines have already been laid down in various decisions. Mere denial of ownership is no denial at all."
"....Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on Mst. Gulnar Begum Vs. Sohan Pal Page 9 of 15 basis of such vague pleas, it will encourage the tenants to deny ownership of petitioners in every case. The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have a positive approach in such matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
18. Hence, plea qua defective ownership of petitioner by disputing the authority of Sh. Hardeep Kumar Saini for assailing registered sale deed dated 25.03.1992 do not constitute any defence which requires any evidence to be led during trial.
19. Similarly, their contention about construction of concrete first floor without any interference and obstruction from petitioner for more than 22 years for claiming title through adverse possession does not require any trial as law does not permit any tenant to claim his title in respect of any unauthorized construction.
20. Even otherwise, it is well settled principle of law that permissive possession, however long, cannot by itself be said to have become hostile by a long lapse of time for setting up title on the basis of adverse possession as held by Hon'ble Supreme Court of India in its judgment titled "State of Punjab & Ors Vs. Brigadier Sukhjit Singh 1993 SCC (3) 459.
21. Hon'ble Punjab & Haryana High Court in its judgments titled "Gurcharan Singh & Ors. Vs. Mukhtiar Singh & Ors." 2010 (4) Civil Court Cases 302 (P&H) and "Jeet Singh through LRs Vs. Mst. Gulnar Begum Vs. Sohan Pal Page 10 of 15 Molu Ram through LRs" 2010 (4) Civil Court Cases 417 (P&H) have held that a tenant cannot set up title by adverse possession by alluding to well settled principle "once a tenant always a tenant" as mere non payment of rent will not mean that relationship of landlord and tenant has ceased to exist and tenant cannot claim his possession over tenanted premises as open and hostile to the owner just because of non payment of rent for seeking declaration of title on the basis of adverse possession.
22. As regards their plea about temple, chopal and store of temple situated at the entrance of property no. 10497 (shown in orange colour) which is under care and custody of public for offering prayers since long time and petitioner's intention to demolish the structure including old public temple for constructing a multistorey residentialcumcommercial complex and mosque, such averments are irrelevant and immaterial being unconnected with the tenanted portion under occupation of LRs of respondent.
23. With respect to allegation about concealment of other properties owned by petitioner which would attract action for perjury, it is pertinent to note that other than properties no. 708187, Ward No. XIII, Beriwala Bagh, Pul Bangush and its sale deed dated 11.04.1994, respondent / LRs have not furnished any description of 10 to 15 houses averred to be owned by petitioner in Sadar Bazar, Azad Market, Bara Hindu Rao and Beriwala Bagh, Delhi. As regards property no. 6496, Bara Hindu Rao which is alleged to be jointly owned by petitioner's husband, no document / material has been filed alongwith written statement for verifying their contention about property no. 6496 being jointly owned by petitioner's husband Sh. Sharif Ahmed.
24. It is also apt to note that petitioner has disclosed about Mst. Gulnar Begum Vs. Sohan Pal Page 11 of 15 property no. 708187, Ward No. XIII, Beriwala Bagh, Pul Bangush and property no. 10496 to 10498, Hari Chand Chowk, Manak Pura, New Delhi in her petition for claiming that whole property no. 708187 and remaining portion of property no. 10496 to 10498 were occupied by tenants except six small rooms situated at different places. As per petitioner's case, she is occupying one room, common latrine and bathroom in property no. 6496 under the tenancy of LRs of late Iqbal Ahmed (brother of her husband) whereas except mere assertion with respect to property no. 6490 and 6496, Bara Hindu Rao, Delhi, respondent / LRs have not filed any document or material to substantiate their averments.
25. Hon'ble High Court of Delhi in para no. 11 of its judgment in case titled "Rajender Kumar Sharma & Ors. Vs. Smt. Leelawati & Ors" 155 (2008) Delhi Law Times 383 has held: "Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material. Mere assertions made by tenant in respect of landlord's ownership of other building and in respect of alternate accommodations are not to be considered sufficient for grant of leave to defend".
26. Finally, with respect to respondent's averment about vacant seven portions (including rooms, courtyard and bathrooms) on the ground floor and first floor of property no. 10497 being available to petitioner as shown in his site plan, petitioner claims that those vacant six small rooms being less than 100 sq. ft. are not fit for residence besides her averment about residing alongwith family in rented accommodation under the LRs of late Iqbal Ahmed.
Mst. Gulnar Begum Vs. Sohan Pal Page 12 of 1527. It is, therefore, necessary to allude to case titled "Kailash Chand & Ors. Vs. Chand" 75 (1998) DLT 734 wherein Hon'ble Delhi High Court has held: "If an owner is living in tenanted premises, he is entitled to seek eviction of his tenant and this desire cannot be held to be imaginary, fanciful and unnatural".
28. Similar observations were made in "Surjit Singh Kalra Vs. Union of India (UOI) and Anr" and "Mahendra Raj Vs. Union of India (UOI) and Colonel Ashok Puri" 43 (1991) DLT 447 (SC)=JT 1991 (1) 417 wherein Hon'ble Courts have observed: "The landlord cannot be denied possession of his premises under Section 14 B when he is residing in a rented accommodation".
29. Since respondent's eviction is being sought by petitioner for residence for herself and her family members as demised portion occupied by respondent is adjoining the portion handed over by Sh. Ramesh, so, requirement of more room in addition to rooms vacated by other tenants would not impinge upon her bonafide requirement for premises to be used for residence.
30. Hon'ble High Court of Delhi in para no. 19 of its judgment titled as "Sudesh Kumari Soni & Anr. Vs. Prabha Khanna & Anr"
153 (2008) DLT 652 has referred to "Prativa Devi (Smt.) v. T. V. Krishnan, (1996) 5 SCC 353 wherein Hon'ble Apex court has held :
"If the landlord wishes to live with comfort in a house of his own, the law does not command or Mst. Gulnar Begum Vs. Sohan Pal Page 13 of 15 compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy".
31. Hon'ble Supreme Court of India in its judgment titled Sarla Ahuja Vs. United India Insurance Company Ltd. (1998) 8 SCC 1919 has similarly held: "That the Rent Controller should not proceed on the assumption that the landlord's requirement is not bonafide. When the landlord shows a prima facie case a presumption that the requirement is bonafide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite necessary to make an endeavour as to how else the landlord could have adjusted himself."
32. Hence, besides noncompliance of direction of Hon'ble High Court of Delhi by filing written statement within four weeks of order dated 09.04.2015, malafide intention of LRs of respondent to delay proceedings is also evident from their frivolous plea of defence. The gist (kernel) of defence enumerated in para no. 12.1 to 12.7 do not require any evidence as such frivolous defence if allowed will amount to abuse of process of law besides wastage of precious judicial time.
33. Order VIII Rule 10 CPC is reproduced in verbatim for reference:
"10. Procedure when party fails to present Mst. Gulnar Begum Vs. Sohan Pal Page 14 of 15 written statement called for by Court. Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
34. Therefore, taking into account failure of LRs of respondent to file their written statement within four weeks as directed vide order dated 09.04.2015 coupled with failure of their counsel to inspect the judicial file or obtain certified copies for preparing written statement within the time frame, application U/s 5 of Limitation Act read with section 151 CPC stands dismissed. Petitioner's application filed under Order VIII Rule 1 & 10 read with section 151 CPC is allowed and eviction order is accordingly passed against respondent Sh. Sohan Pal in respect of property bearing no. 10497 forming part of large property no. 10496 to 10498, Hari Chand Chowk, Manak Pura, New Delhi 110 005 more specifically shown in red colour in the site plan filed by petitioner (which includes original demised premises viz. one room and one tin shed verandah on the ground floor and unauthorized roof of tin shed and one room on first floor of property). This order shall however not be executed within a period of six months from today as per section 14 (7) of DRC Act.
File be consigned to record room.
Announced in open court (Tarun Yogesh)
Dated 09th February, 2016 SCJCumRC (Central)
Tis Hazari Courts Delhi.
Mst. Gulnar Begum Vs. Sohan Pal Page 15 of 15