Delhi District Court
Smt. Sindharo Devi (Deceased) vs Ambey Pershad Jagan Nath Trust on 29 October, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI
RCT No. 30186/2016
1. Smt. SINDHARO DEVI (DECEASED)
REPRESENTED BY LEGAL HEIRS
a) Shri TRILOK CHAND S/o Shri KANHAIYA LAL
B-108, SURYA VIHAR, OPP. SECTOR-4, GURGAON
b) NISHA, R/o DLF, PHASE-III, GURGAON
c) AMITA R/o 21H, SHIVALIK APTT. SECTOR-6,
DWARKA, NEW DELHI 110075
d) Mrs. SUJATA, W/o Shri DEV DUTT
e) ANKUR, S/o Shri DEV DUTT
f) Ms. MEENAKSHI, D/o Shri DEV DUTT
g) Ms. TANU, ALL (d to g) R/o 1943, STREET No. 41,
NAIWALA KAROL BAGH, NEW DELHI
h) Ms. MARIDULA, D/o Dr. M.C. VASHISHT
R/o 120, GAURI PURA, MEERUT, UP
i) GAURAV, S/o Dr. M.C. VASHISHT
R/o 120, GAURI PURA, MEERUT, UP
2. Shri D.P. KALYAN
S/o Late Shri KANHAIYA LAL
R/o 1943, STREET No. 41,
NAIWALA, KAROL BAGH
NEW DELHI 110005
....APPELLANTS
VERSUS
1. AMBEY PERSHAD JAGAN NATH TRUST
HAVING ITS OFFICE AT
298, KUCHA GHASI RAM
CHANDNI CHOWK, DELHI 110006
2. Mrs. GAYATRI DEVI
W/o Shri MANMOHAN LAL SHARMA
RCT/ARCT No. 30186/2016 Page 1 of 18 pages
Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA
Digitally signed by GIRISH KATHPALIA
Date: 2021.10.29 20:19:39 +05'30'
3. Shri MANMOHAN LAL SHARMA
S/o Shri MADAN GOPAL SHARMA
4. Shri RAJIV SHARMA
S/o Shri MANMOHAN LAL SHARMA
5. Shri VIJAY SHARMA
S/o Shri MANMOHAN LAL SHARMA
RESPONDENTS NO. 2 TO 5 ARE
R/o 461, STREET No. 14
JOSHI ROAD, KAROL BAGH,
NEW DLEHI 110005
.......RESPONDENTS
Date of filing : 30.07.2015
First date before this court : 04.06.2019
Arguments concluded on : 12.10.2021
Date of Decision : 29.10.2021
APPEARANCE : Shri Rajiv Vig, counsel for appellant
Shri V.K. Malhotra, counsel for respondent
JUDGMENT
1. This appeal under Section 38 of the Delhi Rent Control Act assails order and judgment dated 29.06.2015 of the learned Additional Rent Controller whereby the eviction petition filed by the present respondents under the provisions of Section 14(1)(b), (d) &
(h) of the Delhi Rent Control Act was allowed. Originally, the impugned eviction order was passed against Smt. Sindhara Devi (tenant) and Shri D.P. Kalyan (subtenant). But after filing of this appeal, Smt. Sindhara Devi (named in the appeal as Smt. Sindharo Devi) passed away, so she was substituted with her legal RCT/ARCT No. 30186/2016 Page 2 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:19:03 +05'30' representatives. Upon service of notice, respondents entered appearance through counsel to oppose this appeal. I heard learned counsel for appellants and examined the written arguments filed on behalf of respondents.
2. Briefly stated, the circumstances leading to this appeal are as follows:
2.1 The present respondents, claiming themselves to be landlord of premises bearing no. 1943, Street no. 41, Naiwala, Karol Bagh, New Delhi (hereinafter referred to as "the demised premises") filed eviction petition against the appellants Smt. Sindharo Devi and Shri D.P. Kalyan, alleging that the appellant Smt. Sindharo Devi being the tenant in the demised premises unauthorisedly inducted the appellant Shri D.P. Kalyan and his family as sub-tenant therein in the year 1997. In the said eviction petition, the present respondents pleaded that originally, it is Shri Kanhaiya Lal, husband of Smt. Sidharo Devi who had been inducted as a tenant in the demised premises by way of rent note dated 06.08.1942. It was further pleaded by the present respondents that since the entire demised premises were unauthorisedly sublet in the year 1997 by Smt. Sidharo Devi to Shri D.P. Kalyan, who is in possession thereof to the exclusion of Smt. Sindharo Devi, the eviction petition deserves to be allowed under Section 14 (1) (b) of the Delhi Rent Control Act; that since the tenant Smt. Sindharo Devi has been residing at 56, Sawan Park Extension and has not been living in the demised premises RCT/ARCT No. 30186/2016 Page 3 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:18:42 +05'30' eversince 1997 and in any case for the period more than six months immediately prior to the presentation of the petition, the eviction petition deserves to be allowed under Section 14 (1) (d) of the Act;
and that since Smt. Sindharo Devi, who had been accepted as tenant in the demised premises after death of her husband Shri Kanhaiya Lal, has acquired alternate accommodation which is 56, Sawan Park Extension, Delhi and also 12-A, Sawan Park Extension, Delhi, the eviction petition deserves to be allowed under Section 14 (1) (h) of the Act. It was further pleaded by the present respondents that prior to the present petition, they had filed proceedings under Section 19 of the Slum Area (Improvement and Clearance) Act but during pendency of the same, the demised premises got denotified so those proceedings were withdrawn.
2.2 The appellants filed a joint written statement, denying the pleadings of the present respondents. The appellants denied that the demised premises got denotified as slum area. The appellants pleaded that the original tenant in the demised premises being Shri Kanhaiya Lal, after his death all his legal heirs became tenants by operation of law, so the eviction petition without impleading all of them is liable to be dismissed. According to the appellants, the appellant no. 1 Smt. Sindharo Devi never acquired nor lived at 56, Sawan Park Extension, which is a commercial property and that the appellant no. 1 never lived in any premises other than the demised premises. Appellants denied that appellant no. 1 had unauthorisedly inducted the appellant no. 2 Shri D.P. Kalyan as sub-tenant and RCT/ARCT No. 30186/2016 Page 4 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:18:21 +05'30' pleaded that appellant no. 2 has been living in the demised premises eversince his birth, being son of Shri Kanhaiya Lal. According to the appellants, both of them are co-tenants, being legal heirs of the original tenant Shri Kanhaiya Lal. Appellants denied having acquired any property bearing no. 12-A, Sawan Park Extension. As regards property no. 56, Sawan Park Extension, the appellants pleaded that the same admeasures 200 square yards, out of which 100 square yards is commercial and in possession of tenants while the other 100 square yards is residential and the same has been sold away, so the appellants never acquired any vacant possession. Therefore, the eviction petition is liable to be dismissed according to the present appellants.
2.3 The present respondents filed replication, thereby denying the contents of written statement and reaffirmed the petition contents. In their replication, the present respondents pleaded that after death of Shri Kanhaiya Lal, the tenancy devolved upon his widow Smt. Sindharo Devi who was financially dependent upon him, therefore, she was accepted as solitary tenant; that at no point of time any of the legal heir of Shri Kanhaiya Lal ever objected to Smt. Sindharo Devi being treated as solitary tenant; that it is Smt. Sindharo Devi who had deposited rent in court by filing petition under Section 27 of the Delhi Rent Control Act, in which she claimed herself to be the solitary tenant. The present respondents further pleaded in their replication that Smt. Sindharo Devi filed petition under Section 14 (1) (e) Delhi Rent Control Act against a tenant Rakesh Kumar in RCT/ARCT No. 30186/2016 Page 5 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:17:59 +05'30' respect of premises number 56, Sawan Park Extension, Delhi, describing her residential address to be 56, Sawan Park Extension, Delhi.
2.4 On the basis of above pleadings, trial was conducted before the learned Additional Rent Controller in which two witnesses were examined on behalf of the present respondents while from the side of appellants, three witnesses including Smt. Sindharo Devi and Shri D.P. Kalyan were examined.
2.5 On the basis of material on record, learned Additional Rent Controller allowed the eviction petition under Section 14 (1)
(b), (d) & (h) of the Delhi Rent Control Act by way of the impugned eviction order, holding that in view of documentary evidence, the area in which the demised premises are situated was denotified during pendency of the proceedings before the competent authority under the Slum Areas (Improvement and Clearance) Act; that after death of Shri Kanhaiya Lal, his widow Smt. Sindharo Devi was attorned as solitary tenant, regarding which none of the remaining legal heirs of Shri Kanhaiya Lal ever objected; that the present appellant no. 2 has been occupying the tenanted premises not as a tenant of the present respondents but as sub-tenant of Smt. Sindharo Devi; that Smt. Sindharo Devi acquired property bearing no. 56, Sawan Park Extension, Delhi and also obtained vacant possession thereof from one of her tenants in proceedings under Section 14 (1)
(e) of the Delhi Rent Control Act; and that Smt. Sindharo Devi RCT/ARCT No. 30186/2016 Page 6 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:17:32 +05'30' herself described her residential address in the other proceedings as house number 56, Sawan Park Extension, Delhi.
2.6 Hence, the present appeal.
3. During final arguments, learned counsel for appellants took me through the above mentioned record and contended that the impugned eviction order and judgment are liable to be set aside. It was argued that since the area in which the demised premises are situated was notified as slum area, the eviction petition was liable to be dismissed for want of the requisite sanction under the Slum Areas Act, so the appeal deserves to be allowed. Learned counsel for appellants argued that since all legal heirs of Shri Kanhaiya Lal were not impleaded, the eviction petition was liable to be dismissed. It was argued that since the proceedings under Section 27 of the Delhi Rent Control Act do not decide rights of the parties, the findings of learned Additional Rent Controller to the effect that there was no tenancy between the present respondents and appellant no. 2 is not sustainable in the eyes of law and accordingly there was no sub- tenancy. It was further argued that since the property no. 56, Sawan Park Extension, Delhi is a commercial property and not a residential one, the present respondents had no case under Section 14 (1) (h) of the Act. In support of his arguments learned counsel for appellants placed reliance on the judgments in the cases of Indra Sharma vs Gopal Dass, AIR 1985 Delhi 118; and Mohd. Azeem vs District Judge, Aligarh, AIR 1985 SC 1118.
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4. On behalf of respondents, in the written submissions, the impugned eviction order was supported. In the written submissions, learned counsel for the present respondents enlisted certain judicial precedents pertaining to the issues in this appeal. Specifically speaking, the respondents placed reliance on the judgments in the cases of Sham Lal vs Baroo Mal, 66 (1997) DLT 444 to show that once tenant acquires alternate residential accommodation, he loses protection, irrespective of his decision to shift; Joginder Singh Sodhi vs Amar Kaur, (2005) 1 SCC 31 to show that once the landlord establishes presence of third party/son, onus would shift on the tenant to explain how his son is occupying the tenanted premises as the relationship between the tenant and sub- tenant is immaterial; Kapil Bhargava vs Subhash Chander Aggarwal, (2001) 6 SCC 645 to show that if any sub-tenant is occupying the residential premises, it means that the tenant has vacated the premises; Prakashwati vs Manish Dewan, 1996 (2) RCR 378 to show that where one of the legal representatives of tenant starts paying rent, the remaining legal representatives are deemed to have surrendered tenancy.
5. In view of above pleadings and evidence, the questions before this court are whether the eviction petition was liable to be dismissed for want of sanction under the Slum Areas (Improvement and Clearance) Act; whether the eviction petition was liable to be dismissed for failure to implead all legal heirs of Shri Kanhaiya Lal;
RCT/ARCT No. 30186/2016 Page 8 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:16:36 +05'30' whether Smt. Sindharo Devi was accepted as solitary tenant in her individual capacity, and if so, whether Shri D.P. Kalyan was unauthorisedly inducted as sub-tenant; whether Smt. Sindharo Devi acquired possession of premises no. 56, Sawan Park Extension, Delhi and had not been residing in the demised premises for a period of six months immediately preceding the institution of the eviction petition.
6. As regards the clearance under the Slums Act, during trial the present respondents examined as AW2 an official from the competent authority, who proved on record copy of the petition filed by the present respondents under the Slums Act as Ex. AW2/1; copy of the written statement filed by Smt. Sindharo Devi as Ex. AW2/2; copy of the statement of learned counsel for the present respondents seeking withdrawal of the petition under the Slums Act as Ex.AW2/3. Despite opportunity, learned counsel for the present appellants opted not cross-examine AW2.
7. Subsequently, even during pendency of this appeal, my learned predecessor, vide order dated 16.04.2018, summoned the concerned official from the Slums Authority to produce the relevant records showing as to whether the demised premises fall under a notified Slum Area or not. In compliance, on the next date 24.05.2018, an official appeared and placed on record a copy of Gazette Notification dated 27.03.2001 according to which the entire Western Extension Area of Ward no. XVI has ceased to be Slum Area. According to the status report dated 24.05.2018 of the Survey RCT/ARCT No. 30186/2016 Page 9 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:16:09 +05'30' Officer of the Delhi Urban Shelter Improvement Board, Government of NCT of Delhi accepted by my learned predecessor, the demised premises specifically mentioned therein do not fall within notified area under Section 3 of the Slum Areas (Improvement and Clearance) Act, 1956 vide Gazette Notification number LB/2106/1/84/2001 dated 27.03.2001.
8. Therefore, it cannot be said that the eviction petition was not sustainable in the eyes of law on account of lack of sanction under the Slum Areas (Improvement and Clearance) Act, 1956.
9. In the case of Indra Sharma (supra) relied upon by learned counsel for appellant, the Hon'ble Delhi High Court held that on the death of the tenant, all his legal heirs would inherit tenancy and would become co-tenants and not joint tenants; and that the letter of attornment issued subsequent to death of the tenant only to the widow of the tenant cannot be held to result in terminating the rights of the co-tenants; and that since the rent demand notice was served only on one of the legal representatives of the deceased tenant and no order under Section 15 (1) of the Delhi Rent Control Act was passed against anyone except widow of the tenant, the ejectment application must be held not maintainable.
10. In the case of Mohd. Azeem (supra) relied upon by learned counsel for appellant the Hon'ble Supreme Court held that where one of the legal representatives of the deceased tenant builds a RCT/ARCT No. 30186/2016 Page 10 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:15:40 +05'30' house and shifts into the same, tenancy of the remaining legal representatives does not get terminated under the effect of Section 12 (3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which provision stipulates that : "in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situated, he shall be deemed to have ceased to occupy the building under his tenancy". It is in specific context of Section 12 (3) of the U.P. Act of 1972 that the Hon'ble Supreme Court held that after death of the tenant, all his legal heirs became tenants, so one of those co-tenants building a house and shifting into it shall not lead to terminating the tenancy of the remaining co-tenants under Section 12 (3) of the U.P. Act.
11. In the case of Prakashwati Bali (supra) relied upon by the learned counsel for respondents, the Hon'ble Delhi High Court reiterated the doctrine of implied surrender of tenancy, as laid down by the Hon'ble Supreme Court in the case of Pushpa Rani & Ors. vs. Bhagwanti Devi & Anr., holding thus:
"15. In view of the admitted facts that after the death of Chaman Lal, Sushil Kumar alone was issued rent receipts in respect of the premises by the respondents-landlords; other heirs never asserted their tenancy rights and could not produce any rent receipts issued by the respondents-landlords in their favour; Sushil Kumar as alone was carrying on business in the shop; and other facts, the only inevitable conclusion which can be drawn is that the conduct RCT/ARCT No. 30186/2016 Page 11 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:15:15 +05'30' of the parties is inconsistent with the continuance of lease of the other heirs of Chaman Lal after his death and is in conformity with creation of new relationship of tenant and landlord between Sushil Kumar and the respondents. Therefore, I uphold the contention of the learned counsel for the respondents-landlords and endorse the findings of the learned Tribunal that Sushil Kumar was alone attorned as tenant after the death of Chaman Lal and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly."
In the present case also, as mentioned above, stand of the present respondents is based on the doctrine of implied surrender of tenancy.
12. It is trite that pleadings consist of plaint and written statement. But it is equally trite that the replication, once taken on record, forms part of pleadings. In the replication, the present respondents specifically pleaded that after death of Shri Kanhaiya Lal, his widow Smt. Sindharo Devi who was financially dependent upon him was accepted as solitary tenant and at no point of time, any of the remaining legal heirs of Shri Kanhaiya Lal objected to treating Smt. Sindharo Devi as solitary tenant; that it is Smt. Sindharo Devi only who deposited rent in court by filing petition under Section 27 of the Delhi Rent Control Act, claiming only herself as a tenant. The appellants could have sought but did not seek opportunity to file supplementary written statement in order to rebut the replication claim of doctrine of implied surrender of tenancy, which doctrine appears to have been raised in order to meet the claim of the RCT/ARCT No. 30186/2016 Page 12 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:14:45 +05'30' appellants in the written statement that tenancy had devolved upon all the legal heirs of Shri Kanhaiya Lal.
13. Coming to the evidence adduced on record, the documents Ex. AW1/6, Ex. AW1/8, Ex. AW1/10 and Ex. AW1/11 are certified copies of petitions filed in the court of Rent Controller for deposit of rent pertaining to the demised premises, and in all those documents, Smt. Sindharo Devi was shown as solitary applicant/tenant. Although, AW1, one of the trustees of the present respondent no. 1 was extensively cross-examined, but her testimony as regards the said rent deposit petitions was not challenged. Rather, in her cross-examination, AW1 stated that it is Smt. Sindharo Devi who had informed the present respondents about death of Shri Kanhaiya Lal and thereafter rent receipt was issued in her name as she had not disclosed about children of Shri Kanhaiya Lal. Even Smt. Sindharo Devi in her cross-examination as DW1 admitted that in rent deposit applications Ex.AW1/6, Ex.AW1/8, Ex.AW1/10 and Ex.AW1/11 filed by her, she never pleaded that the rent was being deposited on behalf of all legal representatives of Shri Kanhaiya Lal.
14. Further, in her testimony Ex.DW1/P3, recorded in eviction proceedings Ex.DW1/P2 under Section 14 (1) (e) of the Delhi Rent Control Act against Shri Rakesh Kumar, pertaining to 56, Sawan Park Extension, Delhi, Smt. Sindharo Devi as AW1 admitted that the demised premises of the present case were earlier in the RCT/ARCT No. 30186/2016 Page 13 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:14:21 +05'30' tenancy of her husband and thereafter, the rent receipt of the same was being issued in her name.
15. Subsequently, the present respondent no. 2 Shri D.P. Kalyan filed rent deposit application Ex. DW1/P4 for the demised premises pertaining to the period from 01.01.2002 to 31.12.2004 and in the objections Ex.DW1/P5, the present respondent took a clear stand that Shri D.P. Kalyan had never been accepted as a tenant and had never paid any rent earlier, rather it is Smt. Sindharo Devi who was tenant under the present respondent and had been depositing rent. By way of detailed order dated Ex.DW1/P6 the learned Additional Rent Controller dismissed the rent deposit application of Shri D.P. Kalyan on the ground that relationship of tenancy was denied. Apparently, that order Ex.DW1/P6 of the Additional Rent Controller, having not been challenged, has attained finality.
16. Most importantly, in his cross-examination as DW2, the appellant no. 2 Shri D.P. Kalyan specifically admitted that after death of Shri Kanhaiya Lal, none of his sons or daughters ever claimed tenancy rights in respect of the demised premises. None of the remaining legal representatives of Shri Kanhaiya Lal stepped into the box to claim tenancy rights in favour of himself or herself after the death of Shri Kanhaiya Lal.
17. Therefore, the obvious inference is that after death of Shri Kanhaiya Lal, all his legal representatives except Smt. Sindharo RCT/ARCT No. 30186/2016 Page 14 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:13:56 +05'30' Devi surrendered their tenancy rights and consequently, Smt. Sindharo Devi was the solitary tenant. That being so, there is no defect of failure to implead remaining legal representatives of Shri Kanhaiya Lal as party to the eviction petition.
18. In view of above discussion, argument of learned counsel for appellants based on the judgment in the case of Mohd. Azeem (supra) must fail because in the present case legal heirs of Shri Kanhaiya Lal other than Smt. Sindharo Devi had surrendered their tenancy rights, so there is no scope for the argument that acquisition of premises No. 56, Sawan Park Extension by Smt. Sindharo Devi does not terminate tenancy of the remaining legal heirs.
19. Coming to the aspect of the alleged sub-tenancy, as mentioned above, according to the appellants, appellant no. 2 Shri D.P. Kalyan has been living in the demised premises in his capacity as co-tenant, being son of Shri Kanhaiya Lal and not as sub-tenant unauthorizedly inducted by Smt. Sindharo Devi. But as discussed above, Smt. Sindharo Devi was the only legal representative of Shri Kanhaiya Lal, who continued as solitary tenant while remaining legal representatives of Shri Kanhaiya Lal, including Shri D.P. Kalyan had implicitly surrendered their tenancy rights.
20. Admittedly, Shri D.P. Kalyan has been residing in the demised premises and it is nobody's case that he was residing in the demised premises alongwith Smt. Sindharo Devi, being her son. As RCT/ARCT No. 30186/2016 Page 15 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:13:37 +05'30' would be discussed hereafter, Smt. Sindharo Devi during her lifetime was resident of 56, Sawan Park Extension, Delhi and not a resident of the demised premises even according to her own previous pleadings Ex. DW1/P1. Going by the law discussed in the case of Joginder Singh Sodhi (supra), mother-son relationship between Smt. Sindharo Devi and Shri D.P. Kalyan is inconsequential, and Smt. Sindharo Devi failed to explain as to how Shri D.P. Kalyan is occupying the demised premises. The only inference is that the appellant no. 2 Shri D.P. Kalyan was inducted as a sub-tenant by Smt. Sindharo Devi or Smt. Sindharo Devi otherwise parted with possession of the demised premises and that was without consent of the present respondents.
21. Therefore, I am unable to find any infirmity in the impugned eviction order under Section 14(1)(b) of the Act.
22. As regards ground under Section 14(1)(h) of the Act, according to the present respondents since Smt. Sindharo Devi had acquired premises No. 56, Sawan Park Extension, Delhi and had also obtained vacant possession thereof, the present respondents are entitled to eviction order. On this aspect, stand of the appellants was that premises No. 56, Sawan Park Extension, Delhi admeasures 200 sq yards out of which 100 sq yards is commercial and in possession of tenants while the other 100 sq yards is residential and the same had been sold away.
23. In her cross examination as DW1 Smt. Sindharo Devi specifically admitted that premises no. 56, Sawan Park Extension, RCT/ARCT No. 30186/2016 Page 16 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.29 20:13:14 +05'30' Delhi is in her name and against one of the tenants Shri Rakesh Kumar she filed an eviction petition giving her residential address as House No. 56, Sawan Park Extension, Delhi; that another tenant Shri Jai Chand left the premises No. 56, Sawan Park Extension, Delhi after handing over possession to her; that she does not own any house except House No. 56, Sawan Park Extension, Delhi.
24. Therefore, as regards findings related to Section 14(1)(h) of the Act also I find no infirmity in the impugned eviction order.
25. As regards ground under Section 14(1)(d) of the Act, going by the legal position discussed in the case of Kapil Bhargava (supra), since Shri D.P. Kalyan is occupying the demised premises, it can be inferred that Smt. Sindharo Devi vacated the same, especially in the absence of evidence to the contrary. Further, Smt. Sindharo Devi herself stated in her cross examination as DW1 that she had filed an earlier eviction petition Ex. DW1/P1, disclosing her residential address as premises No. 56, Sawan Park Extension, Delhi. The said eviction petition Ex. DW1/P1 was instituted on 11.11.1992, while the eviction petition out of which the present appeal has arisen was instituted on 07.02.2005 and there is nothing on record to establish that in the intervening period, Smt. Sindharo Devi started residing in the demised premises. Therefore, there is no doubt that Smt. Sindharo Devi, the solitary tenant was not residing in the demised premises for a period of six months immediately before filing of the eviction petition.
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26. Therefore, I am unable to find any infirmity in the findings arrived at by the learned Additional Rent Controller as regards ground under Section 14(1)(d) of the Act.
27. In view of above discussion, the impugned eviction order is upheld and the appeal is dismissed.
28. Trial court record be sent back along with copy of this judgment. Appeal file be consigned to records leaving the parties bear their own costs.
Announced in open court on this GIRISH Digitally signed by GIRISH KATHPALIA 29th day of October, 2021 KATHPALIA Date: 2021.10.29 20:11:45 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQs) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT/ARCT No. 30186/2016 Page 18 of 18 pages Sindharo Devi (now deceased) vs Ambey Pershad Jagan Nath Trust