Delhi District Court
Sh. Jankesh vs Sh. S. L. Khadoria on 28 September, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI.
E-230/11
Sh. Jankesh
S/o Sri Nahar Singh
R/o 2359, Khampur Main Patel Road,
New Delhi.
......Petitioner
VERSUS
Sh. S. L. Khadoria
S/o Sri G. D. Khadoria
R/o 2359, Khampur, Main Patel Road,
New Delhi.
......Respondent
Date of institution : 06/08/2004
Date of decision : 28/09/2012
JUDGMENT
Vide this judgment, I shall dispose off a petition U/s 14 (1) (a) of DRC Act filed by the petitioner against the respondent. Brief facts of the case are as under:
1. The petitioner has alleged himself to be the owner and landlord of the tenanted premises consisting of a Khokha in property no. 2359, Khampur, Main Patel Road, New Delhi, let out to the respondent on the monthly rent of Rs. 15/-
per month excluding other charges. It is further alleged that the tenancy was oral and no written agreement was executed, however rent receipts were being issued by the previous owner to the respondent and even the respondent has been paying the rent to the petitioner, which was been entered into a note book. It is E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 1/12 further alleged that the petitioner has purchased suit property from the erstwhile owner on 07/09/2000 and respondent has became the tenant of the petitioner by the operation of law. It is further alleged that the respondent is an habitual defaulter in making the payment of rent and has not paid the rent from 01/07/2003 onwards despite the service of legal notice dated 04/02/2004, which was duly received by the respondent. It is further alleged that the respondent has not complied with the legal notice, hence present petition.
2. The respondent was duly served and has filed Written Statement thereby alleging that the present petition is barred U/o 2 rule 2 CPC as the petitioner has already filed a similar petition against the respondent which is still pending. It is further alleged that present petition is not maintainable being without cause of action and even the petitioner has suppressed the material facts. It is further alleged that the respondent is in possession of a vacant piece of land on which he has built up a shop about 35 years ago and now has became the owner of the said place by virtue of adverse possession. It is further alleged that the Metro line passed though the said place and a survey was conducted under the notification of Govt. of NCT of Delhi, Land & Building Department and shop of the respondent has been shown at sl. no. 40 in the said notification. It is further alleged that the shop of the respondent was partly demolished by Metro Authorities and thereafter it has been reconstructed by the respondent. It is further alleged that the petitioner wants to grab the shop of the respondent due to a complaint was lodged with the concerned Police on 09/01/2004. It is further alleged that the shop did not belong to Sh. Paltoo Ram as alleged by the petitioner and the petitioner has forged the documents of the shop in connivance with Sh. Dharam Vir. It is further alleged that the respondent has garbed the land in the near vicinity of the respondent and also wants to grab the shop of the E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 2/12 respondent. It is further alleged that the petitioner and his associates had brutally assulted the respondent and the respondent sustained injuries and lodged a complaint against the petitioner. It is further alleged that the petitioner is not the owner of the property in question and has forged the documents. The respondent has denied all the allegations of the petitioner and has alleged that the alleged Mr. M. S. Chauhan was not the owner of the suit property and even the respondent was never let out any Khokha on the monthly rent of Rs. 15/- per month as alleged. The respondent has denied even receipt of legal notice or any relationship and has prayed that the petition is liable to be dismissed.
3. The petitioner has denied all the allegations of the respondent by filing the replication and has reaffirmed his pleadings.
4. To prove the case, the petitioner has examined himself as PW1, Sh. Dharamvir Singh Rajput as PW 2 and Sh. Anil Kumar Rana as PW3 and closed the PE. During the pendency of the petition, the respondent was proceeded ex- parte and a judgment dated 18/07/2009 was passed against the respondent, but it was set aside by the Appellate Court vide order dated 12/05/2011. Thereafter, the respondent has examined himself as RW1 and closed RE.
5. I have heard the arguments and perused the record. Present petition is a rent petition has been filed U/s 14 (1) (a) of DRC Act. To decide a rent petition the relationship of landlord and tenant between the parties is a necessary ingredient. The relationship of landlord and tenant is to be proved by the petitioner / landlord who is invoking the jurisdiction of this Court. As per the pleadings of the parties, the respondent has denied the ownership of the petitioner and even relationship of landlord and tenant between the parties. It is a settled position of law that mere denial of relationship is not sufficient to oust the E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 3/12 jurisdiction of this Court. The testimony of the parties are to be considered to adjudicate the relationship of landlord and tenant between the parties. The testimony of PW1 is relevant to be considered. PW1 has deposed in his examination in chief that he is the owner and landlord of the property bearing no. 2359, Khampur, Patel Nagar, New Delhi, which was originally owned by one Sh. Paltoo Ram, and after his death by Sh. Dharamvir Singh. It is further deposed that Sh. M. S. Chauhan purchased the property vide documents Exh. PW1/3 to Exh. PW1/7 and Sh. M. S. Chauhan sold out the suit property to him vide documents Exh. PW1/8 to Exh. PW1/15. It is further deposed that the suit property has been mutated in his name in the MCD record and even assessment record is Exh. PW1/1 and Exh. PW1/2. It is further deposed that the respondent is the tenant in a Khokha shown in the site plan as Exh. PW1/16 on the monthly rent of Rs. 15/- per month. It is further deposed that the property in question is situated on the main Patel Nagar Road and the work of Metro Rail Track has been laid towards the railway line from Bara Khamba Road to Dwarka and the part of the property has been acquired by the Government and now remaining premises is measuring 3.5' X 6'. It is further deposed that the premises was let out to the respondent for the residential premises by the previous owner and even the rent receipts were also issued, but the respondent stopped making the payment of the rent and the rent has been paid only up to 30/06/2003 against the entires made in the note book of the respondent. It is further deposed that the respondent has converted the residential premises into commercial and running a business of tyre puncture, due to petitioner has filed another petition to this effect. It is further deposed that the respondent had submitted a rent receipt Exh. PW1/18 with the NDPL to obtain an electricity connection. It is further deposed that the petitioner has served a legal notice Exh. PW1/19 through postal receipts Exh. PW1/20 to Exh. PW1/21, but the notice through registered post has been received back E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 4/12 unserved vide Exh. PW1/22, but UPC has been served. It is further deposed that the respondent has failed to pay rent despite service of legal notice.
PW2 Sh. Dharamvir Singh has deposed that he was the owner of the suit property inherited by him from his father and after the death of his father the same was assessed in his name in the MCD records. It is further deposed that he has paid the House Tax to the MCD and the certified copy of the same are already Exh. PW1/1 & Exh. PW1/2. It is further deposed that he sold out one portion of the property to one Sh. M. S. Chauhan against the documents Exh. PW1/3 to Exh. PW1/7 and possession was also handed over to Sh. M. S. Chauhan. It is further deposed that he started collecting rent from the tenants and respondent was his tenant in a Khokha shown in site plan Exh. PW1/16, on the monthly rent of Rs. 15/-. It is further deposed that he used to issue rent receipt to him and maintained counter foil and the same is Exh. PW2/1. It is further deposed that the petitioner has purchased the property from Sh. M. S. Chauhan on 07/09/2000. It is further deposed that the respondent has converted the residential premises into commercial premises and running a tyre puncture shop. During the cross- examination, PW2 has deposed that he has not seen the documents filed by the petitioner including site plan. It is further deposed that all the documents exhibited by him are pertaining to the suit property sold out to Sh. M. S. Chauhan, but he does not have original Will and GPA executed in his favour. It is further deposed that his father encroached upon the village land like other villagers, but it might have been encroached upon by his father or forefather. It is further deposed that this land was neither allotted to his father by the Gram Sabha or any other authority nor it was purchased. It is further deposed that his father encroached upon a total land measuring 375 yards and he sold out 110 sq. yards, out of this total land, to Sh. M. S. Chauhan and the same was consisting of five Kothries. It E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 5/12 is further deposed that most of the Kothries were measuring 16' X 16' and one was measuring less situated in the corner. It is further deposed that all the Kothries were single storied and let out to different tenants. It is further deposed that he has not brought the counterfoil of rent receipt Exh. PW3/2. PW3 has also deposed that electricity meter of the respondent was installed in the premises against application Exh. PW3/1 and respondent filed a rent receipt to show the proof of residence and receipt is Exh. PW3/2. It is further deposed that electricity tariff was changed from domestic to commercial w.e.f. 02/08/2011 and electricity bill was filed as a proof of residence alongwith other documents. Indeminity bond was also filed which is Exh. PW3/3 and affidavit is Exh. PW3/4. It is further deposed that the respondent had also filed an agreement and test report which are Exh. PW3/5 and Exh. PW3/6. During cross-examination, PW3 has deposed that the Indemnity bond and affidavit filed by the respondent were trusted by the department to be correct and connection was sanctioned. It is further deposed that he cannot say as to whether the contents were compared with the original application for sanctioning the connection. It is further deposed that he cannot say if in the original application the respondent had shown himself to be the owner of the premises. It is further deposed that documents in support of tenancy or ownership is to be filed while applying for a connection. It is admitted that the rent receipt was filed with the application. It is further admitted that rent receipt was not filed with any application as there is no communication on record on behalf of the respondent alongwith which the rent receipt was filed. It is further deposed that in the original application word "rent receipt" has been mentioned on top and the same is Exh. PW3/R1, but he cannot say who has written it. It is further deposed that he cannot say as to whether this word has been added later on. It is further deposed that it is correct that record of all the correspondence should be maintained date wise. It is further deposed that the file has been arranged page E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 6/12 wise but the documents are not in serial as per page, but the paging in the file has been done in month of December 1978. It is further deposed that the original application is not on record by which connection was sanctioned. PW4 has produced the summoned record of the assessment Exh. PW1/1 to Exh. PW1/2 and the certified copy of the same are Exh. PW4/1 & Exh. PW4/2.
RW1 has deposed in his cross-examination that he does not know English Language, but he has signed the Written Statement in English. It is denied that the premises was let out to him on rent by Sh. Dharmavir Singh Rajput on the monthly rent of Rs. 15/-. It is further deposed that he does not remember as to when he applied for electricity connection in suit premises. It is further deposed that he does not remember as to whether he got installed a domestic or commercial connection. It is further deposed that Exh. PW3/1 is not bring his signatures at point A. It is denied that he had produced a rent receipt Exh. PW3/2 at the time of applying the electricity connection. It is further deposed that he did not file any application for change of tariff from domestic to commercial. It is further deposed that he does not remember who applied for the electricity connection in his name for the suit premises. It is further deposed that he does not know the meaning of adverse possession and even does not know who is the owner of the suit property and against whom he has claimed the adverse possession. It is further deposed that no rent receipt was ever issued by Sh. Dharamvir Singh Rajput to him towards receipt of rent. It is further deposed that an electricity connection has been installed in the premises in question, but he does not remember the name of the consumer in whose name electricity bill has been paid. It is further deposed that he has no original electricity bills nor he can produce. It is further deposed that he cannot say as to whether the bill Mark 'A' was for the period of March 2001 paid by him and deposited with electricity E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 7/12 department. It is denied he has ever paid the rent to Sh. M. S. Chauhan from June 1996 onwards. It is denied that Sh. M. S. Chauhan sold out the property to the petitioner in the month of September 2000 or respondent attorned him landlord by paying rent. It is further deposed that he does not know as to whether the property has been assessed to the house tax since 1957 and even he has no knowledge that the MCD officials surveyed this property in the year 1976-77 and 1987-88. It is denied that in the survey conducted by the MCD, he has been shown as tenant in a Khokha on a monthly rent of Rs. 15/- and he has not taken any action against the MCD after the examination of official of MCD. It is denied that the tenanted premises was let out as built up Khokha to the respondent and he got issued a ration card in respect of the suit property, but can produce the same only after verifying from his children. It is further deposed that he got prepared his voter I-card from this address, but he can produce the same only after verifying form his children. It is admitted that he has filed a WS and signed the WS, but the contents of the WS were not explained to him by his counsel. It is further deposed that he does not remember that his affidavit in evidence, which is Exh. RW1/1, was read over to him before putting his signatures. It is further deposed that he does not remember whether this affidavit was got attested as he did not appear before the Oath Commissioner. It is further deposed that the property bearing no. 840, S-Block, Mangolpuri, New Delhi is owned by Sh. Naradji Khadoria, who is his son, but he does not remember the year in which his son purchased this property. It is denied that he is residing in this property. It is denied that he deliberately refused to receive the summons.
6. I have heard the arguments and perused the record. By the testimonies of both the parties it is clear that the parties are having a dispute of relationship of landlord and tenant between them. The petitioner has claimed the E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 8/12 ownership as well as title of landlord-ship on the basis of a document which is rent receipt allegedly filed by the respondent with application of electricity connection. The said rent receipt has been proved as Exh. PW3/2. I have gone through this receipt. This rent receipt has been singed by one Sh. Dharamvir Singh and respondent signed it in the back of the receipt. This receipt was filed before the electricity authorities alongwith documents Exh. PW3/3 to PW3/6. These documents are contradictory to each other. First of all the document Exh. PW3/2 has not been signed by the tenant in the front side and back side has been denied by him. Further the Indemnity Bond and affidavit are having contents which are contradictory to the rent receipt. In the Indemnity Bond, the respondent has claimed himself to the owner and occupant of the property for the last 45 years. The contents of this document proved by the petitioner are against the case of the petitioner. It is beyond explanation if a person is applying connection with Indemnity Bond as well as affidavit thereby claiming himself to be the lawful occupant and owner of the premises, then why he would file a rent receipt to claim himself a tenant, which is totally contradictory to the Indemnity Bond and affidavit. PW3 has deposed during cross-examination that this rent receipt was not filed alongwith any document and purpose of filing of this document was also not clear from the record. Even he has failed to depose as to what was the requirement of filing of this document. In the absence of any accompanied communication on record, the existence / genuinity of this document became doubtful. The document Exh. PW3/R1 has the endorsement that the affidavit was filed on record and in the top of the document, a 'rent receipt' has been mentioned, but it is no where mention as to why and alongwith which document it was filed. In fact, no presumption can be raised about the genuinity of this document. As such, on the basis of this document alone, it is not sufficient to conclude that the respondent filed this rent receipt and accepted himself to be the tenant of Sh. Dharambir E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 9/12 Singh. Besides it no other document has been produced by the petitioner to prove the tenancy. Though the respondent has denied all the documents with regard to electricity connection, yet he has been paying electricity bill of electricity consumption and mere denial does not disprove this fact. However, this fact is not sufficient to raise an adverse infrance against him. The relationship was to be proved by the petitioner and just by this rent receipt it could not be proved.
Further, the testimony of PW2 is relevant. PW2 has allegedly sold out the premises to one Sh. M. S. Chauhan against the document Exh. PW1/3 to Exh. PW1/7 and Sh. M. S. Chauhan further sold out to the petitioner against the documents. PW2 has also relied upon the counter foil Exh. PW2/1. During cross- examination, PW2 has deposed that the father or fore-fathers of the petitioner encroached upon a Government land and no Authority allotted the land to them. It is further deposed that the land was not alloted to his father by Gram Sabha or any other Authority, but he has sold out the land measuring 110 sq. yards, out of the total land measuring 375 yards, to Sh. M. S. Chauhan and land was consisting of five Kothries measuring 16 X 16 feet and one was measuring less, which was situated in the corner. It is further deposed that all the Kothries were single storey let out to the different tenants. PW2 has failed to produce the counter-foil book of Exh. PW3/2. The testimony of PW2 also make it clear that he was not having any title to sale out the premises to Sh. M. S. Chauhan and even was not aware about the documents by which the premises was sold out to Sh. M. S. Chauhan. However, the title of the parties is not to be proved in this petition, but in the absence of producing original counter-foil of alleged rent receipt, the rent receipt Exh. PW3/2 could not be proved. As such, PW2 could not prove that the suit premises was let out to the respondent by him or petitioner.
E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 10/12
7. The petitioner has claimed that the suit property was assessed to the MCD and the assessment orders Exh. PW1/1 and Exh. PW1/2 have been proved by PW4 as Exh. PW4/1 & Exh. PW4/2. These assessment orders are containing the name of the respondent at sl.no. 2 in Exh. PW4/1 and at sl.no. 6 Exh. PW4/2. Both the documents are reflecting that room and Kothri were assessed by the assessment officer of MCD, but this case has been filed for Khokha. The PW2 has also deposed that a Khokha was let out to the respondent, whereas the respondent has claimed that he has occupied the land and a shop was constructed later on. Infact, formation of suit property is also disputed. It is settled law that even the ex-parte case is to be proved by the petitioner without the Aid of the respondent. The petitioner has alleged that the respondent attorned him as landlord and rent paid by respondent was entered into a note book, but no such note book has been produced before this Court to prove that the respondent ever paid any rent to the petitioner. As such, attornment of the petitioner as landlord also could not be proved on record. Even MCD assessment of respondent vide Exh. PW1/1 & Exh. PW1/2 also could not prove that the assessment of the respondent was done for the same premises. As such, these documents could not prove the relationship between the parties. It has been held by Hon'ble High Court of Delhi in Vidhyawti Vs. Takan Dass (Delhi), 1974 RCR 47 that the rent petition is to be contested on the pre-supposed relationship of landlord and tenant between the parties and the rent Controller Court has no jurisdiction to decide the relationship of landlord and tenant between the parties. In view of this judgment, it is clear that the relationship of landlord and tenant between the parties is not to be decided by this Court and the same is to be decided by Civil Court only. As such, petitioner has failed to prove that the parties are having relationship of landlord and tenant.
E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 11/12
8. So far the case of the respondent is concerned, the respondent has claimed adverse possession of the suit premises, but this plea of adverse possession is available only before the Civil Court and not before this Court, due to this plea cannot decided by this Court. Further the petitioner has alleged that he got the possession of the tenanted premises from Sh. M. S. Chauhan by the virtue of various documents, but none of the documents is containing any particulars with regard to the tenanted premises tenancy, due it could not be proved that any symbolic possession of the premises was even taken over by the petitioner. As such, respondent has proved that the parties are not having relationship of landlord and tenant between them.
9. So far other facts like rate of rent is concerned, the parties are not having any relationship of landlord and tenant between them, due to it also could not proved that the rent of the tenanted premises was Rs. 15/- per month. However, the legal notice was sent to the respondent through postal receipts Exh. PW1/20 & Exh. PW1/21, but the same was received back with the report 'intimation delivered' or 'not met', which it is deemed service. But, the respondent was not liable to comply with the legal notice as he was not under obligation to pay any amount to the petitioner. As such, the petitioner has failed to prove this case and the petition of the petitioner is hereby dismissed. File be consigned to Record Room after due compliance.
Dated:-28/09/2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
E-230/11 Sh. Jankesh Vs. Sh. S. L. Khadoria 12/12