Delhi District Court
Shri Prem Nath Sachdeva vs Shri Phool Chand Sharma on 19 October, 2012
IN THE COURT OF MS. SUGANDHA AGGARWAL,
ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI
E.No.560/2006
[U/s 14(1)(a), (b), (h) & (hh) of DRC Act, 1958]
Unique Case Identification No. 02404C0062822006
Shri Prem Nath Sachdeva,
Son of Late Sh. Khem Chand,
R/o D3/17, First Floor, Model TownIII,
Delhi - 110009. ... Petitioner
Versus
1 Shri Phool Chand Sharma,
Son of Shri Chandan Lal Sharma,
R/o D101, Narvana Apartment,
Patparganj, Delhi - 110092.
2 Shri Sunit Kumar Sharma (deceased through LRs)
(i) Smt. Krishna Sharma
Wife of Late Shri Sunit Kumar Sharma
(ii) Ms. Manika Sharma,
Daughter of Late Shri Sunit Kumar Sharma.
(iii) Ms. Kanika Sharma,
Daughter of Late Shri Sunit Kumar Sharma.
All R/o D3/17, Ground Floor, Model TownIII
Delhi.
... Respondents
Date of Institution: 1.10.2003
Date of Arguments : 1.10.2012.
Date of Decision: 19.10.2012.
E. No. 560/2006/03 Page No. 1 of 34
JUDGMENT:
1. The present petition has been filed by the petitioner seeking eviction of the respondent on grounds as envisaged under Section 14(1)(a), (b), (h) & (hh) of Delhi Rent Control Act, 1958. The petitioner has averred in the petition that initially ground floor of premises No.D 3/17, Ground Floor, Model TownIII, Delhi - 110009 (hereinafter to be referred as 'the suit premises') were let out to the respondent No.1 by Smt.Karma Devi on 1.5.1975 at the rate of Rs.500/ per month excluding electricity and water charges. It is averred that at present the rate of rent is Rs.660/ per month. Subsequently a rent note dated 13.10.1979 was also executed between respondent No.1 and Smt. Karma Devi. It is further contended that Smt.Karma Devi expired on 6.1.1991 and after her death the suit premises were bequeathed in favour of Khan Chand by way of registered Will dated 3.5.1988. It is further contended that respondent No.1 also attorned Sh. Khan Chand as landlord and owner and started paying rent to Khan Chand.
2. It is further contended that Sh. Khan Chand also expired on 11.9.1999 and the suit premises devolved on the petitioner by a registered E. No. 560/2006/03 Page No. 2 of 34 Will dated 24.2.1994. It is contended that by virtue of the said Will petitioner is the owner of the suit premises.
3. It is further contended that respondent No.1 has sublet the suit premises and has parted with the possession of the suit premises in favour of respondent No.2 without obtaining the prior permission of petitioner and therefore is liable for eviction under Section 14(1)(b) of Delhi Rent Control Act, 1958.
4. It is averred that the respondent is in arrears of rent since 1.7.1999. However, in the present petition, the petitioner has claimed rent at the rate of Rs.660/ per month excluding other charges since 1.7.2000 upto date alongwith interest @ 15% per annum. A composite legal demand notice dated 5.7.2003 thereby demanding arrears of rent and terminating tenancy was sent by registered post. But despite service of notice, neither respondent No.1 has paid the rent nor he has vacated the suit premises. Therefore, it is contended that the respondent No.1 is liable to be evicted under Section 14(1)(a) of Delhi Rent Control Act, 1958.
5. It is further contended that the respondent No. 1 is also liable to be evicted as per the provisions of Section 14(1)(h) and (hh) of Delhi E. No. 560/2006/03 Page No. 3 of 34 Rent Control Act, 1958. It is stated in the petition that the respondent No.1 has also built or acquired vacant possession of a residence i.e. Flat No. D101, Narvana Apartment, Patparganj, Delhi and is in occupation of the same. It is averred that the respondent No.1 has build the aforesaid residence more than ten years back. Under these circumstances, the present petition has been filed by the petitioner seeking eviction of the respondent.
6. A joint written statement has been filed on behalf of all the respondents. Respondents have taken preliminary objections stating that the petition is not maintainable as present petitioner has no title or interest in the suit premises. He is neither the landlord nor the owner of the suit premises. It is admitted by the respondents that the original landlady and owner of the suit premises was Smt. Karma Devi. However, respondents have averred that Smt. Karma Devi had a real brother namely Shri Mohan Lal who was residing in Bombay. Rent was being paid to Shri Khan Chand occasionally when Smt. Karma Devi was out of station as per the instructions of Smt. Karma Devi. It is further contended that all the Wills relied upon by the petitioner are false and fabricated. E. No. 560/2006/03 Page No. 4 of 34 Smt.Karma Devi never executed any Will in favour of Shri Khan Chand, therefore, there is no question of Shri Khan Chand executing any Will in favour of petitioner. Respondent No.1 has further contended that respondent No.2 is a family member and residing with them since childhood. Respondent No.2 got married from the suit premises itself and Late Smt. Karma Devi attended his marriage. Late Smt. Karma Devi had the knowledge that respondent No.2 is residing with respondent No.1 and never objected for the same. Therefore, there is no question of subletting or parting of the possession in favour of respondent No.2 by respondent No.1. All other averments of the petitioner are specifically denied by the respondents in their written statement. However, respondents have admitted that respondent No.1 was inducted as a tenant in the suit premises by Late Smt. Karma Devi.
7. Replication has been filed on behalf of the petitioner thereby denying all the averments made in the written statement and reiterating the contents of petition.
8. After completion of pleadings, parties led their evidence. Petitioner examined Shri Arjun Singh, LDC from Civil Lines Zone of E. No. 560/2006/03 Page No. 5 of 34 MCD who has identified the mutation register, as per which the suit premises stands mutated in the name of the petitioner. Relevant entry is Ex.PW1/1, Assessment Order is Ex.PW1/2, Mutation letter dated 29.8.2000 is Ex.PW1/3, FormA is Ex.PW1/4 and Payment receipt is Ex.PW1/5. PW1 was crossexamined and discharged.
9. PW2 Smt. Kamlesh Aneja, Senior Section Supervisor, MTNL, Shalimar Bagh has identified the record of telephone No.27245605 installed in the name of Sh. S.K. Sharma at the suit premises i.e. application moved for installation of telephone connection as Ex.PW2/1, acknowledgment slip as Ex.PW2/2, specimen signatures slip as Ex.PW2/3, photocopy of a bill as MarkA and payment voucher as Ex.PW2/4. PW2 was crossexamined and discharged.
10. PW3 Sh. R.N. Chauhan, Senior Section Supervisor, MTNL, Preet Vihar has identified the record of telephone No.22046278 in the name of Sh. Phool Chand Sharma i.e. Respondent No.1 installed at D 101, Nirvana Apartment, Patparganj, Delhi i.e. letter dated 4.12.2004 as Ex.PW3/1. PW3 deposed that the said telephone connection is still working. PW3 was crossexamined and discharged.
E. No. 560/2006/03 Page No. 6 of 34
11. Petitioner examined himself as PW4. He filed affidavit Ex.P4 in his examinationinchief wherein he has reiterated and reaffirmed the contents of petition on oath. He has relied upon the following documents:
1. Will dated 24.2.1994 as Ex.PW4/1.
2. Original writing/agreement executed between Smt.Karma Devi and respondent No.1 as Ex.PW4/2.
3. Rent note dated 13.10.1979 as Ex.PW4/3.
4. Original death certificate of Smt.Karma Devi as Ex.PW4/4.
5. Conveyance Deed dated 5/7.1.1957 as Ex.PW4/5
6. Will dated 3.5.1988 as Ex.PW4/6
7. Power of attorney dated 23.2.1985 as Ex.PW4/7.
8. Death certificate of Sh.Mohan Lal as Ex.PW4/8.
9. Mutation letter favouring petitioner as Ex.PW4/8A.
10.Death certificate of Shri Khan Chand as Ex.PW4/9.
11.Legal demand notice dated 5.7.2003 as Ex.PW4/11.
12.Postal receipt as Ex.PW4/12.
13.Certificate of posting as Ex.PW4/13.
14.Certified copy of Form A as Ex.PW4/14.
15.Original payment receipt as Ex.PW4/15.
16.Site plan of the suit premises as Ex.PW4/16.
17.House Tax receipt as Ex.PW4/17
18.Certified copy of judgment dated 3.5.1977 in Suit No.159/1977 as Ex.PW4/17.
E. No. 560/2006/03 Page No. 7 of 34
12. During crossexamination, PW4 maintained his stand and thereafter he was discharged.
13. PW5 Kuldip Raj is the attesting witness to Will dated 3.5.1988 who filed his affidavit in examinationinchief wherein he has deposed that the Will dated 3.5.1988 was executed in his presence and was signed by Smt.Karma Devi out of her own will. He further deposed that Shri Amar Khanna was also the attesting witness to Will when the same was signed by Smt.Karma Devi. PW5 was crossexamined wherein he has deposed that he met Smt.Karma Devi for the first time in the year 1980 and she was a Sadhvi and prior to 3.5.1988, he had never seen Smt.Karma Devi signing any document. PW5 further deposed that at the time of signing of Will Smt.Karma Devi was carrying her Will dated 30.09.1985. PW5 was discharged after crossexamination.
14. PW6 Shri Devender Kumar is attesting witness to Will dated 24.2.1999. He has filed his affidavit in examinationinchief wherein he deposed that Shri Khan Chand had signed the said Will out of his own volition and without any force or coercion. Shri D.P. Singh is also attesting witness to the said Will. PW6 was crossexamined and E. No. 560/2006/03 Page No. 8 of 34 discharged. Thereafter, PE was closed.
15. Respondent No.1 examined himself as RW1. He filed affidavit in his examinationinchief wherein he has reiterated and reaffirmed the contents of written statement on oath. During crossexamination, RW1 has deposed that his grandson is residing in Narvana Apartments and he occasionally visits Narvana Apartments. He further deposed that Smt.Karma Devi used to issue rent receipts. He was discharged after crossexamination.
16. RW2 Smt.Krishan Sharma is the wife of respondent No.2. She has filed her affidavit in examinationinchief wherein she has deposed that she got married with respondent No.2 when he was residing in the suit premises alongwith respondent No.1. At the time of her marriage, Smt.Karma Devi was alive and attended the marriage functions. After marriage, she came to the suit premises and both respondent no.2 and RW2 were residing as family members with respondent no.1 in the suit premises. It is further deposed in the affidavit that all the birth certificates, school certificates and college certificates of both daughters of respondent No.2 and RW2 bears the address of the suit premises and the respondent E. No. 560/2006/03 Page No. 9 of 34 No.2 was residing in the suit premises alongwith respondent No.1 since the inception of tenancy. It is further deposed that Smt.Karma Devi has never objected upon respondent No.2 residing in the suit premises and respondent No.1 has never sublet, assigned or parted with possession of the suit premises exclusively in favour of respondent no.2. RW2 has further deposed that Shri Khan Chand was residing in the adjoining property of the suit premises and has no relations with Smt.Karma Devi or her husband. Smt.Karma Devi was a Sadhvi who used to reside at Haridwar with her husband and both of them used to occasionally visit the suit premises. She has further reiterated and reasserted the contents of written statement on oath. RW2 was crossexamined during which she maintained her stand. During crossexamination, RW2 has deposed that she does not know as to who performed the last rites of Smt.Karma Devi as she was at her home when Smt.Karma Devi expired. Smt.Karma Devi expired in the hospital and she never attended the cremation of Smt.Karma Devi. RW2 was crossexamined and discharged.
17. RW3 N.S. Kharayat, RW4 Upender Kumar and RW5 J.P. Sharma filed their affidavits Ex.PW3/A, Ex.PW4/A and Ex.PW5/A E. No. 560/2006/03 Page No. 10 of 34 respectively in their examinationinchief and have deposed that respondent No.2 was residing in the suit premises and got married from the suit premises. Respondent no.1 was looking after the family of respondent No.2 after the death of natural father of respondent No.2. RW3, RW4 and RW5 were crossexamined and discharged.
18. RW6 Shri R.P. Janiya is a summoned witness who has produced the service book of respondent No.2 from CBI and identified the copy of his biodata as Ex.RW6/1, declaration as Ex.RW6/2 and nomination form as Ex.RW6/3. He was crossexamined and discharged.
19. RW7 Shri Laxmi Narain is a summoned witness from Chief Electoral Office. He has identified the electoral rolls for the years 1980, 1987 and 1993 as Ex.RW7/1, Ex.RW7/2 and Ex.RW7/3 respectively. He was crossexamined and discharged.
20. RW8 Shri Ramesh Mohan Lal has filed his affidavit Ex.PW8/A in examinationinchief. In the affidavit, RW8 has deposed that the suit premises was owned by Smt.Karma Devi. She expired on 6.1.1982. She does not have any other legal heir except the father of RW8 who was real brother of Smt.Karma Devi. He further deposed that Smt. Karma Devi E. No. 560/2006/03 Page No. 11 of 34 executed a registered Will dated 5.8.1963 and a Will dated 23.2.1985. By the Will dated 23.2.1985, Smt.Karma Devi has bequeathed the suit premises in favour of father of RW8 i.e. Mohan Lal. RW8 has further deposed that after the death of Shri Mohan Lal, RW8 and other legal heirs of Shri Mohan Lal have inherited the ownership rights in the suit premises in view of Wills dated 5.8.1963 and 23.2.1985. It is further deposed that the petitioner is residing in the adjoining property and the ground floor is under the tenancy of respondent No.1. After the death of Smt.Karma Devi, respondent No.1 has attorned Shri Mohan Lal i.e. father of RW8 as landlord and started paying rent of the suit premises to the father of RW8 till his death. It is further deposed by RW8 that they have filed a separate civil suit challenging the Wills dated 26.09.1985 and 3.5.1988 as the same were never executed by Smt. Karma Devi. Shri Khan Chand was not a relative of Smt.Karma Devi and has no ownership rights in the suit premises. RW8 was crossexamined at length. During crossexamination RW8 stated that the suit premises were selfacquired property of Smt.Karma Devi. He further deposed that his father expired on 4.3.1995. He has shown his inability to show whether any house tax E. No. 560/2006/03 Page No. 12 of 34 has been paid in respect of the suit premises or not. Further RW8 has deposed that he has never received any rent of the suit premises. RW8 was discharged after crossexamination.
Thereafter, respondent's evidence was closed.
21. Final arguments were heard on behalf of both the parties.
22. Learned counsel appearing on behalf of the petitioner has argued that the petitioner is claiming ownership on the basis of the Will dated 24.2.1994 and Shri Khan Chand became the owner of the suit premises by virtue of Will dated 3.5.1988 executed in his favour. Both the said Wills were registered. The attesting witnesses to the said Wills have already been examined by the petitioner. Therefore landlordship and ownership of petitioner has been duly proved. Counsel for petitioner has further argued that the rent has not been paid by the respondent No.1 and a notice dated 5.7.2003 was sent. It is further argued that all the averments have been duly proved by the petitioner's witnesses. Hence petitioner has duly proved his case and therefore eviction order shall be passed in favour of petitioner and against the respondents.
23. Counsel for respondents has argued that there are four Wills E. No. 560/2006/03 Page No. 13 of 34 executed by Smt.Karma Devi. First Will was in the year 1963 which was executed in favour of Shri Mohan Lal (brother of Smt.Karma Devi) and his wife. Thereafter, the second Will was executed on 23.2.1985 which was executed only in favour of Shri Mohan Lal. The reason for executing Will was that the wife of Shri Mohan Lal has expired. It is further argued that in the Will dated 23.2.1985 Shri Khan Chand was himself an attesting witness but the said Will was not registered. Thereafter, third Will was executed on 30.09.1985 which was in favour of Shri Khan Chand and Shri Mohan Lal. After that on 3.5.1988 another Will was executed which was only in favour of Shri Khan Chand. The said Will was not executed out of the free will of Smt.Karma Devi. It is further argued that Shri Mohan Lal was only successor of Smt.Karma Devi. There was no reason why Smt.Karma Devi will execute a Will in favour of a complete stranger. In the Will dated 3.5.1988, the witness at the time of registration are different from the witness at the time of its execution. The witnesses who were present at the time of execution of Will have not been examined in the Court. Therefore the Will dated 3.5.1988 cannot be relied upon. It is further contended that even if it is taken that Shri Khan Chand E. No. 560/2006/03 Page No. 14 of 34 has become the owner of the suit premises then why since 3.5.1988 Shri Khan Chand has not taken any steps to evict respondent No.1 from the suit premises in view of contents of the Will. Further Shri Khan Chand has never intimated the respondents that he has become the owner or landlord of the suit premises by virtue of the Will. It is further argued that petitioner is not the real son of Shri Khan Chand. Since childhood, no Adoption Deed was executed and an Adoption Deed was executed only in the year 1985. It is further argued that date of birth of petitioner is 12.2.1944 and petitioner is unable to explain as to why there was a requirement of executing Adoption Deed in the year 1985. All this shows petitioner is not the landlord or owner of the suit premises and therefore not entitled for eviction.
24. I have considered the rival contentions of both the parties and have carefully scrutinized the record.
OWNERSHIP OF PETITIONER WITH RESPECT TO THE SUIT PREMISES
25. The petitioner has claimed ownership over the suit premises on the basis of Will dated 24.2.1994 executed in his favour by his father Late Shri Khan Chand. It is averred by the petitioner that Late Shri Khan E. No. 560/2006/03 Page No. 15 of 34 Chand became the owner of the suit premises by virtue of Will dated 3.5.1988 and thereafter by virtue of Will dated 24.2.1994, he bequeathed the suit premises in favour of petitioner. It is further averred that Shri Khan Chand expired on 11.09.1999 and after his death petitioner has become the owner of the suit premises. Petitioner has placed on record both the Wills dated 3.5.1988 and 24.2.1994. In order to prove the Will dated 3.5.1998, petitioner has examined PW5 Sandip Raj who is the attesting witness to the said Will. PW5 in his testimony has stated that Smt.Karma Devi has signed the Will in his presence. PW5 was cross examined at length but nothing material could come during his cross examination. PW6 Devinder Kumar was examined by the petitioner who was attesting witness to Will dated 24.2.1994. PW6 has stated that Shri Khan Chand has signed the Will in his presence. He was also cross examined at length but nothing material could come during his cross examination.
26. Respondents have challenged the ownership of the petitioner stating that Will dated 24.2.1994 executed in favour of petitioner by Shri Khan Chand is not a valid will as Shri Khan Chand was never the owner E. No. 560/2006/03 Page No. 16 of 34 of the suit premises. It is further contended that as Shri Khan Chand was not the owner, he could not pass a better title in favour of petitioner than he himself had. Respondents have further contended that Will dated 3.5.1988 in favour of Shri Khan Chand was not a valid Will and the same was obtained by fraud and deceit.
27. Learned Counsel for respondent has argued that it is an admitted fact that Smt.Karma Devi was the original owner of the suit premises. There were four Wills executed by Smt.Karma Devi. The first Will was executed on 1.9.1963 which was in favour of Shri Mohan Lal and his wife. Shri Mohan Lal was the real brother of Smt.Karma Devi. Second Will was executed on 23.1.1985 in the name of Shri Mohan Lal only as the wife of Shri Mohan Lal expired. Thereafter, third Will was executed on 30.09.1985 in favour of Shri Khan Chand and Shri Mohan Lal and finally the fourth Will dated 3.5.1988 has been produced by the petitioner which has been executed in favour of Shri Khan Chand. Counsel for respondent has argued that Smt.Karma Devi did not have any issue and Shri Mohan Lal being her real brother was the only successor of Smt.Karma Devi. Shri Khan Chand was merely a neighbour and had no E. No. 560/2006/03 Page No. 17 of 34 relations with Smt.Karma Devi, therefore, there was no reason why Smt. Karma Dev will bequeath the property in favour of Shri Khan Chand. Counsel for respondent has further argued that when the Will dated 23.02.1985 was executed Shri Khan Chand was a witness to the said will and it is at that time that Shri Khan Chand thought that he can grab the property and by fraud he obtained the Will dated 30.09.1985 and finally the Will dated 3.5.1988. He has further argued that the witnesses for the Will dated 30.5.1988 at the time of execution is different from the one who were present at the time of registration. Further learned counsel has relied upon the judgments passed by the Hon'ble Delhi High Court in Surender Kumar Vs. State 166 (2010) DLT 760 and K.V. Muthu Vs. Angamuthu AIR 1997 SC 628.
28. In Surender Kumar's case (supra) itself, it has been held by Hon'ble Delhi High Court that if only one attesting witness has been examined and both attesting witnesses were not examined then the same is sufficient to prove the execution of Will. Ld. Counsel for respondents has relied upon the judgment because it has been observed that when the propounder of the Will take active participation in the execution of Will E. No. 560/2006/03 Page No. 18 of 34 then the Court has to scrutinize the documents carefully so as to see that the document has been executed validly. It is contended in the present case also, as per crossexamination of PW5, Shri Khan Chand was present at the time of execution of Will and therefore he has influenced Smt.Karma Devi and the Will has been obtained by deceit and fraud.
29. PW5 is the attesting witness to the Will dated 3.5.1988. During crossexamination, PW5 has admitted that signatures of Smt.Karma Devi are different at three different places. However, during crossexamination PW5 has constantly stated that Smt.Karma Devi had signed the Will in his presence. Nowhere PW5 has stated that Smt. Karma Devi was under any undue influence while signing the Will dated 3.5.1988. Further the Will dated 3.5.1988 is duly registered which means that the parties have signed the Will in presence of SubRegistrar which further rule out any possibility of fraud or deceit.
30. Ld. Counsel for respondents has argued that the witnesses at the time of execution are different from the witnesses at the time of attestation of Will. The said argument also is not relevant as the attesting witness has stated that Smt.Karma Devi has signed the Will in his E. No. 560/2006/03 Page No. 19 of 34 presence. Therefore, even if the contents of Will have been written in presence of different witnesses, that is not relevant because the Will becomes operational only as and when it is signed by the executant.
31. Ld. Counsel has raised certain arguments that there was no reason for Smt.Karma Devi to bequeath the property in favour of Shri Khan Chand as Mohan Lal was the successor being the real brother of Smt.Karma Devi. In the Will dated 3.5.1988 which is Ex.PW5/2A, Smt. Karma Devi has specifically mentioned about the earlier Wills executed by her and has stated that in her last days, Shri Khan Chand is helping her and serving her, therefore, she is cancelling her earlier Wills and executing the present Will in favour of Shri Khan Chand. Therefore, the argument of Ld. Counsel for respondent is not good as to reason why the property has been bequeathed in favour of Shri Khan Chand has been explained in the Will Ex.PW5/2A itself. It cannot be stated that Smt.Karma Devi was not aware about the earlier Wills as in Will Ex.PW5/2A she has specifically given the details of earlier Wills and stated that the same stand cancelled which shows that she had the knowledge that there were earlier Will in favour of Shri Mohan Lal and E. No. 560/2006/03 Page No. 20 of 34 she deliberately cancelled the same.
32. Furthermore, RW2 in her crossexamination has admitted that Shri Khan Chand was dharam bhai of Smt.Karma Devi. She also admitted that Shri Khan Chand only performed all last rites of Smt.Karma Devi. RW8 in his crossexamination admitted that they were not present at the time of death of Smt.Karma Devi and her last rites were not performed by them. The said testimony of the witnesses corroborates the stand taken by Smt. Karma Devi in Will Ex.PW5/2A and the reason as to why she has executed the said Will in favour of Shri Khan Chand.
33. Counsel for respondents has further argued that the Will Ex.PW5/2A has been obtained by deceit and fraud but how the said fraud has been played has not been explained by the respondents. It is a settled law that if a party pleads that fraud has been played, then it has to be specific as to the modusoperandi of fraud and evidence is to be led in this regard.
In the case of Ranganayakamma Vs. K.S. Prakash (D) by LRs 2008 (8) JT 510, the Hon'ble Supreme Court observed as under : "When a fraud is alleged, the particulars thereof are required to be pleaded. No particulars of the alleged fraud or misrepresentation E. No. 560/2006/03 Page No. 21 of 34 has been disclosed.
We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representation. When such representations were made, what was the nature of representation, who made the representations and what type of representations were made, not have not been stated."
In the case of Kohli Housing and Development Pvt. Ltd. Vs. Convenience Enterprises Pvt. Ltd. 2009 (159) DLT 177, the Hon'ble Delhi High Court has held as under : "It is trite to say that an allegation of fraud must be clear, definite and specific and general allegations unaccompanied by particulars are insufficient to amount to an averment of which judicial notice can be taken."
34. In the present case also, a bald allegation has been made by the respondent stating that the Will dated 3.5.1988 i.e. Ex.PW5/2A is not valid. It is not even averred that a false representation was made to Smt.Karma Devi while executing Will Ex.PW5/2A. A Will can be executed in favour of a complete stranger also. It is not essential that the beneficiary should be a successor of the executant of Will. The property in question is selfacquired property of Smt.Karma Devi. Smt.Karma Devi has explained the reason in Will Ex.PW5/2A as to why she is E. No. 560/2006/03 Page No. 22 of 34 executing the Will in favour of Shri Khan Chand. As discussed above, how the fraud has been played has not been explained by the respondent and therefore, the vague plea taken by the respondent cannot be entertained. Will Ex.PW5/2A is duly registered and PW5 has proved the said Will on record. Therefore, I do not find any reason to hold that Will Ex.PW5/2A dated 3.5.1988 is not a valid Will.
35. As Shri Khan Chand has become the owner of the suit premises by virtue of Will dated 3.5.1988, he has all the rights to execute the Will in favour of any person with respect to the suit premises. Petitioner being the son of Shri Khan Chand has received the suit premises by virtue of Will dated 24.2.1994 which is Ex.PW6/2A. The said Will has been proved by the testimony of PW6. Respondent has not raised any objection to execution of Will Ex.PW6/2A. Hence from the above discussion, it is duly established that petitioner is the owner of the suit premises.
36. In the present eviction petition, petitioner has sought eviction of the respondent on the following grounds :
1. Nonpayment of rent under Section 14(1)(a) of Delhi Rent Control Act, 1958.
E. No. 560/2006/03 Page No. 23 of 34
2. Subletting under Section 14(1)(b) of Delhi Rent Control Act, 1958.
3. Acquisition of alternate accommodation and building of residence under Sections 14(1)(h) & (hh) of Delhi Rent Control Act, 1958.
37. All the aforesaid grounds being distinct in nature, the same are dealt hereinafter separately.
PETITION UNDER SECTION 14(1)(a) OF DELHI RENT CONTROL ACT, 1958.
38. As per the case of petitioner, respondent has not paid the rent of the suit premises since 1.7.1999 but the claim being time barred, the petitioner in the present petition has claimed arrears of rent since 1.7.2000 at the rate of Rs.660/ per month alongwith interest @ 15% per annum. It is further stated by the petitioner that a legal notice dated 5.7.2003 was served on the respondent but despite the service of notice, respondent failed to pay the rent and therefore the present petition has been filed.
39. In the written statement, respondent has stated that petitioner is not the owner/landlord of the suit premises. Respondent further stated that original owner of the suit premises is Smt.Karma Devi. She reside at Haridwar. The rent is being paid to Smt.Karma Devi only and at times at the instructions of Smt.Karma Devi, the rent is being paid to Mohan Lal E. No. 560/2006/03 Page No. 24 of 34 who is real brother of Smt.Karma Devi or to the petitioner. It is further contended that rent upto December, 2003 has been paid to Shri Mohan Lal who is residing in Bombay and after the death of Shri Khan Chand, Shri Mohan Lal represented to respondent No.1 that he will be realizing the rent on behalf of Smt.Karma Devi and therefore rent is being paid to Shri Mohan Lal.
40. In order to prove its averment, petitioner has examined himself as PW4. He has filed his affidavit in examinationinchief wherein he has reiterated and reaffirmed the contents of petition on oath. PW4 has been crossexamined on the said point but he maintained his stand during crossexamination. The respondent No.1 has also examined himself as RW1. As per the testimony of RW1, rent is being regularly paid to children of Shri Mohan Lal, brother of Smt.Karma Devi. However, RW8 Ramesh Mohan Lal who is one of the sons of Shri Mohan Lal has deposed, during crossexamination, that his father Shri Mohan Lal expired in 1995. He further categorically denied that that any rent is being paid to him till date by the respondent No.1. As per the averments of the respondent, rent is being paid to Shri Mohan Lal till 2003 and it is Shri E. No. 560/2006/03 Page No. 25 of 34 Mohan Lal who came to him and told him that rent shall be paid to him after the death of Shri Khan Chand. As per the averments of the petitioner, Shri Khan Chand expired in 1999 and as per the cross examination of RW8 who is son of Shri Mohan Lal, Shri Mohan Lal expired in the year 1995. This Court is unable to understand that if Shri Mohan Lal predeceased Shri Khan Chand, then how it is possible that after the death of Shri Khan Chand, Mohan Lal attorned himself as the landlord of the suit premises. Further RW8 has specifically stated that he has not received any rent of the suit premises till date. Therefore, the plea taken by the respondent that rent is being paid to children of Mohan Lal does not inspire confidence.
41. From the above discussion, it is clear that the respondent has never paid any rent to petitioner. Further the plea of respondents that they have paid rent to Shri Mohan Lal has also not been proved. Neither any rent receipt has been placed on record by the respondent, therefore, it is clear that respondents have not paid any rent since 1.7.2000 and are in arrears of rent since 1.7.2000 at the rate of Rs.660/ per month. Hence the petition under Section 14(1)(a) of Delhi Rent Control Act, 1958 is E. No. 560/2006/03 Page No. 26 of 34 allowed.
PETITION UNDER SECTION 14(1)(b) OF DELHI RENT CONTROL ACT, 1958.
42. Petitioner has contended that Respondent No.2 was not a family member of respondent No.1. Respondent No.1 has sublet the suit premises to respondent No.2 without prior permission of the petitioner and the original landlady Smt.Karma Devi. Respondent no.1 on the other hand has contended that respondent No.2 is family member of the respondent No.1. He is residing in the suit premises from the very beginning.
43. In order to prove his averments, petitioner has examined himself as PW4. He has filed his affidavit in examinationinchief wherein he has reiterated and reaffirmed the contents of petition on oath. No other witness has been examined by the petitioner in this regard. On the other hand, respondents have examined themselves as RW1 and RW2. Both RW1 and RW2 have deposed that respondent No.2 was residing in the suit premises with the respondent No.1 from the very beginning. After the death of natural father of respondent No.2, he has been looked after by respondent No.1. During crossexamination, RW2 has deposed that she E. No. 560/2006/03 Page No. 27 of 34 got married from the suit premises only and during her entire life she has been staying in the suit premises and her family has been looked after by respondent No.1. RW3 N.S. Kharayat, RW4 Upender Kumar and RW5 J.P. Sharma have also been examined by the respondents on this point, who have also stated that father of respondent No.2 was in police and after his death, respondent No.2 was residing with respondent No.1 and he was being looked after by respondent no.1 only.
44. Ld. Counsel for the petitioner has argued that respondent has failed to prove that respondent no.2 was a foster son of respondent No.1. Respondent No.1 has already parted with the possession of the suit premises in favour of respondent no.2 and therefore onus was on the respondent no.2 to prove that the respondent No.2 is not in possession of the suit premises. Even if it is taken that at present family of respondent no.2 is in possession of the suit premises then from the testimony of respondents' witnesses, it is clear that respondent No.2 was residing with respondent No.1 since childhood as a family member of respondent No.1. Respondent no.1 has performed all the duties towards respondent no.2 as a father and being a family member, respondent no.2 was residing in the E. No. 560/2006/03 Page No. 28 of 34 suit premises.
45. Photographs Ex.PW4/X to Ex.PW4/Z and Ex.PW4/A to Ex.PW4/J placed on record shows that respondent No.2 got married from the suit premises. As per crossexamination of RWs, original landlady Smt. Karma Devi attended the marriage of respondent no.2 which took place in the suit premises which shows that respondent No.2 was not residing in the suit premises without the permission of Smt.Karma Devi. Hence respondents have duly proved that the possession of the suit premises has never been handed over to respondent No.2 and his family is residing in the suit premises being a family member and not as a sub tenant.
46. In view of above discussion, I am of the considered opinion that there is no ground made out for passing eviction order on the ground of subletting and the petition under Section 14(1)(b) of Delhi Rent Control Act is accordingly dismissed.
PETITION UNDER SECTION 14(1)(h) and (hh) OF DELHI RENT CONTROL ACT, 1958.
47. Petitioner has contended that respondent no.1 has acquired an alternate accommodation which is D101, Narvana Apartments, E. No. 560/2006/03 Page No. 29 of 34 Patparganj, Delhi and it is further averred that the respondent No.1 has build the aforesaid residence and ten years have already elapsed since then till the filing of the present petition. Respondent has categorically denied the same in his written statement.
48. In order to prove his averments, petitioner has examined himself as PW4. He has filed his affidavit in examinationinchief wherein he has reiterated and reaffirmed the contents of petition on oath. Further petitioner has also examined PW2 Smt.Kamlesh Aneja and PW3 Mr.R.N. Chauhan. As per the testimony of PW3, there was a telephone connection installed in premises no. D101, Narvana Apartments, Patparganj, Delhi in th name of respondent no.1. He further deposed that respondent No.1 moved an application on 3.2.1988 for installation of said telephone connection and accordingly the said telephone connection was granted. PW3 was crossexamined. During crossexamination, PW3 has stated that in the entire file, there is no document to show the ownership or tenancy rights to show the occupation of respondent No.1 in Premises no.D101, Narvana Apartments, Patparganj, Delhi. Respondent has denied that he has acquired the possession of D101, Narvana Apartments, Patparganj, E. No. 560/2006/03 Page No. 30 of 34 Delhi. In his testimony, RW1 has stated that the said premises are in possession of his grand son and he occasionally visits the said premises. He has shown his inability to give reasons as to why the telephone connection has been installed in the said premises in his name.
49. It is a matter of common knowledge that in order to get a telephone connection, proof of ownership is to be furnished in the Department then only telephone connection can be installed. PW3 has brought the original record which clearly shows that a telephone connection has been installed in the name of respondent No.1 in premises no. D101, Narvana Apartments, Patparganj, Delhi. Further PW4 has deposed on oath that the said house is in possession of respondent No.1. On the other hand, respondent No.1 has failed to explain as to why the said telephone connection exists in his name and is installed in his name at the said premises when the same is in possession of his grandson.
50. Therefore, from the above discussion, it is clear that respondent no.1 has acquired an alternate accommodation which is D101, Narvana Apartments, Patparganj, Delhi. Hence the respondent is liable for eviction from the suit premises as per provisions of Section 14(1)(h) of Delhi Rent E. No. 560/2006/03 Page No. 31 of 34 Control Act, 1958.
51. However, there is not even an iota of evidence on record that the respondent No.1 has got constructed the aforesaid residence more than ten years back. Hence the respondent is not liable for eviction from the suit premises as per provisions of Section 14(1)(hh) of Delhi Rent Control Act, 1958.
RELIEF
52. In view of aforesaid discussion, the petition for eviction on ground under Section 14(1)(b) and (hh) of Delhi Rent Control Act, 1958 is dismissed and the petition for eviction on grounds under Section 14(1)(a) and (h) of Delhi Rent Control Act, 1958 is allowed.
53. However, as per the provisions of of Delhi Rent Control Act, 1958, in case a tenant is evicted for nonpayment of rent under Section 14(1)(a) of of Delhi Rent Control Act, 1958, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit under Section 14(2) of Delhi Rent Control Act, 1958.
54. Hence as per the provisions of Section 15(1) of DRC Act, respondent is directed to pay arrears of rent with effect from 1.7.2000 @ E. No. 560/2006/03 Page No. 32 of 34 Rs.660/ per month till date within a period of one month from today.
55. The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of consideration of benefit under section 14(2) of DRC Act. Put up on 23.11.2012. A copy of this judgment be kept in the separate miscellaneous file.
( SUGANDHA AGGARWAL) Addl. Rent Controller (NW) Rohini, Delhi Announced in the open Court on this 19th day of October, 2012 E. No. 560/2006/03 Page No. 33 of 34 E. No. 560/2006/03 19.10.2012 Present: Petitioner in person.
None for respondents.
Vide separate judgment passed and announced in the open court today, the petition for eviction for ground under Section 14(1)(b) & (hh) of Delhi Rent Control Act, 1958 is dismissed and the petition for eviction on grounds under Section 14(1)(a) & (h) of Delhi Rent Control Act, 1958 is allowed.
However, as per the provisions of of Delhi Rent Control Act, 1958, in case a tenant is evicted for nonpayment of rent under Section 14(1)(a) of of Delhi Rent Control Act, 1958, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit under Section 14(2) of Delhi Rent Control Act, 1958.
For the reasons contained in the judgment, respondent is directed to pay arrears of rent with effect from 1.7.2000 till date @ Rs.660/ per month within a period of one month from today.
The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of consideration of benefit under section 14(2) of DRC Act. Put up on 23.11.2012. A copy of this judgment be kept in the separate miscellaneous file.
(Sugandha Aggarwal) A.R.C./NW/Rohini/19.10.2012 E. No. 560/2006/03 Page No. 34 of 34