Delhi District Court
Rashpal Kaur vs Asha Rani Walia on 10 October, 2018
BEFORE DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR No. DLCT010000632011
RCT No. 30195/2016
Rashpal Kaur
W/o Sh. Mohan Singh
R/o 8721, Gali Aram Ganj
Rohanara Road, Delhi .....Appellant
Versus
Asha Rani Walia
D/o Late Ramji Dass
R/o 811, Amelia Courts
Grays Lake, Illinois60030,
Chicago, USA
At present:
8742A, Rahat Ganj,
Roshanara Road, Delhi .....Respondent
Date of filing of Appeal :09.12.2011
Date of reserving Order : 12.09.2018
Date of Order : 10.10.2018
ORDER ON APPEAL UNDER SECTION 38
OF THE DELHI RENT CONTROL ACT, 1958
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 1 of 7
Appellant have filed the present appeal against impugned judgment dated 21.11.2011 passed by Ld. ARC (North) whereby eviction petition of the respondent filed under Sections 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) was allowed.
2. Originally appeal was filed against landlady Smt. Raj Rani but during pendency of present appeal, respondent died and thus her sole legal heir (daughter) Smt. Asha Walia was brought on record.
3. Notice of the appeal was issued to respondent. Trial Court Record was summoned.
4. I have heard Ld. Counsel for both the parties and perused the record. Written submissions have also been filed on behalf of respondent and I have considered the same.
5. Ld. Counsel for the appellant has submitted that mother of the respondent was not the landlady; appellant was allowed to use the premises by the owner Smt. Beero W/o Sh. Ramji Dass out of love and affection as appellant was taking care of her; Smt. Beero had executed a Will dated 10.08.1993 in favour of the appellant and she was living in the property in question as an owner but not as a tenant. There was no relationship of landlady and tenant between the parties; no demand notice was served upon the appellant; impugned order is based on surmises and conjectures; the appellant is owner of the premises in question as after death of Sh. Ramji Dass (original RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 2 of 7 owner), his wife Smt. Beero Devi became absolute owner and she had executed a Will dated 10.08.1993 in favour of appellant and the appellant obtained Probate of the said Will.
6. In the written submissions filed on behalf of respondent, it is submitted that Smt. Raj Rani, mother of respondent, was legally weeded wife of Sh. Ramji Dass as held in a judgment dated 31.10.2012 passed by Ld. ADJ, Delhi (Ex.PW1/J) in case titled "Raj Rani vs. Rashpal Kaur @ Jaspal Kaur" in suit No. S251/97 and the appellant herein, who was defendant in the said suit, had not preferred any appeal against said judgment, hence, that judgment has attained finality. It is further submitted that appellant had obtained Probate of the Will allegedly executed by Smt. Beero Devi without impleading Smt. Raj Rani or her daughter Smt. Asha Rani Walia after coming to know that a Probate was issued, the respondent had filed a petition under Section 263 of the Indian Succession Act for revocation of the said Probate granted to appellant and said Probate was revoked; the appellant had filed an F.A.O. against revocation of the Probate but no stay was granted to the appellant in the said FAO, hence, on the basis of Will, the appellant cannot claim to be owner. Smt. Raj Rani, mother of the respondent, being the legally weeded wife of Sh. Ramji Dass has succeeded to the property in question and was owner and now the respondent is owner. Reliance has been placed on following judgments:
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 3 of 7(1) Kalu Ram vs. Sita Ram 1980 RLR (Note) 44 wherein it has been held that if plaintiff before filing suit makes serious assertions in a notice to defendant, then defendant must not remain silent by ignoring to reply and if he does so then adverse inference may be raised against him.
(2) The Oriental Insurance Co. Ltd. vs. Meenakshi Khosla (RFA No. 218/2012 decided by Hon'ble High Court of Delhi on 18 th May, 2012) in which Kalu Ram vs. Sita Ram (Supra) was relied upon.
7. In the present case, an eviction petition under Section 14(1)
(a) of the DRC Act was filed by landlady Smt. Raj Rani against tenant Mrs. Jaspal Kaur stating therein that tenanted premises were let out to tenant on 01.09.1993. It was stated that earlier Smt. Biro, elder wife of Sh. Ram Ji Dass was residing in the abovesaid property and she died on 18.08.1993 and thereafter the petitioner let out said portion to the tenant on 01.09.1993; the tenant stopped paying rent w.e.f.
01.06.1995; demand notice dated 31.10.1995 was sent to the tenant but of no avail, hence, eviction petition was filed.
8. In the written statement, an objection was taken by tenant that the petitioner was not her landlady and that respondent was not a tenant; Smt. Beero, who was landlady, had executed a Will in favour of socalled tenant and thus she was living in the property as an owner.
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 4 of 79. Main controversy between the parties was with regard to Will allegedly executed by Smt. Beero Devi in favour of the appellant. On coming to know about the Probate of the Will, the landlady filed a petition under Section 263 of the Indian Succession Act Ex.PW1/6 for revocation of the said Probate and and operation of grant of probate was stayed vide order dated 05.10.1999 passed by Sh. M.A. Khan, the then Ld. District & Sessions Judge, Delhi. Thereafter, petition of the landlady under Section 263 of the Indian Succession Act was allowed. Though, the appellant has filed an FAO in Hon'ble High Court of Delhi against order revoking Probate but there is no stay against operation of the said order. Hence, at present there is no Will in favour of the appellant.
10. The appellant had raised objection that Smt. Raj Rani was not wife of Sh. Ramji Dass and that Smt. Beero; Devi was his wife. PW1 Sh. Virender Jain, Public Heealth Officer, Civil Zone, MCD was examined and he proved birth Certificate AWP1 in which date of female child is mentioned as 27.07.1959. In the said Certificate, name of mother of female child is mentioned as Raj Rani W/o Sh. Ramji Lal. It is not the case of the appellant that property in question was self acquired property of Smt. Beero Devi. Moreover, in Civil Suit titlted "Raj Rani v. Rashpal Kaur @ Jaspal Kaur", this issue has been already decided in favour of Raj Rani by Ld. ADJ as detailed in para no.6 above. Since Smt. Raj Rani was legally wedded wife of Sh.
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 5 of 7Ramji Dass and so, after his death the property devolved upon Smt. Raj Rani. As far as the tenant is concerned, she even did not disclose as to when she came in possession of the premises in dispute.
11. The landlady Smt. Raj Rani had filed a suit for possession, mesne profits injunction against Smt. Rashpal Kaur seeking possession of property No. 8721, Gali Aram Ganj, Roshanara Road, Delhi. In the said suit, it was claimed that the Smt. Rashpal Kaur was tenant and was not paying rent w.e.f. 01.06.1995; the said suit was decreed in favour of Smt. Raj Rani vide judgment dated 31.10.2002 passed by Sh. Suresh Chand Rajan, the then Ld. ADJ, Delhi.
12. RW1 in her crossexamination dated 10.05.2005 had admitted that she had received Ex.PW1/2 (demand notice) and that she never paid rent to the petitioner after receipt of the said notice. When the appellant has failed to prove any document that she is owner of the property in question; even she did not disclose as to when she came in possession of the property in question and on the other hand, stand of the Smt. Raj Rani was consistent throughout in the eviction petition as well as in the civil suit filed against the appellant that appellant was her tenant; despite service of the demand of notice, no rent or arrears of rent was paid by the tenant, hence, eviction petition under Section 14(1)(a) of the DRC Act was rightly allowed. There is no merit in the appeal. Same is accordingly dismissed. TCR be sent back along with copy of the order.
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 6 of 7Appeal file be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.10.15
21:44:28 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 10th October, 2018 District & Sessions Judge (HQs)
Rent Control Tribunal
Tis Hazari Courts : Delhi
RCT No. 30195/16 Rashpal Kaur v. Asha Rani Walia Page 7 of 7