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7. In the reply on merits, defendant submitted that Sh. Ram Dayal was a tenant in respect of two Baithaks and one bath room situated on the ground floor of property bearing no. 5770, Jogiwara, Nai Sarak, Delhi. It was denied that the ground floor of the property was occupied by other tenants who were using the latrine, bathroom and open courtyard being the common amenity. It was submitted that the remaining portion of the ground floor was let out for godown purpose and there was no residence on the ground floor except that of Sh. Ram Dayal. The latrine was common for all the occupants but the bath room was under the exclusive tenancy of Sh. Ram Dayal and some part of the tenanted premises and the said bath room was never used by any person. It was denied that the contractual tenancy of Sh. Ram Dayal was duly terminated by the plaintiff vide notice dated 08.02.1993. It was averred that the alleged notice was not served upon Sh. Ram Dayal and receipt and AD were manufactured and forged. It was contended that after the demise of Sh. Ram Dayal the tenancy devolved upon all the heirs of Sh. Ram Dayal including the defendant and was inherited by the defendant along Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 6/34 with other heirs of the deceased Sh. Ram Dayal.

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Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 23/34

28. Thus upon the death of Late Ram Dayal, his widow Smt. Bharpai Devi succeeded to the tenancy to the exclusion of the other LRs of Late Ram Dayal and since the right of the Smt. Bharpai Devi to succeed to the tenancy was personal to her, it did not devolve upon her heirs. The notice issued to Smt. Bharpai Devi dated 05.03.2005 alongwith the postal receipts and AD Card were proved by PW1 as Ex. PW1/5 to Ex. PW1/8. Admittedly, Ex. PW1/8A dated 24.03.2008 is the reply sent to the said notice. Now, PW1 also proved the letter dated 16.04.2008 Ex. PW1/9 issued by him to Smt. Bharpai Devi acknowledging the receipt of her reply (Ex. PW1/8A) and pay order for Rs. 573/­ which, he informed in the letter, that he would get encashed without prejudice to his rights. Ex. PW1/10 is the postal receipt, Ex. PW1/11 is the AD Card, Ex. PW1/12 is the U.P.C. in proof of delivery of the letter Ex.PW1/9. PW1 denied that Ex. PW1/10 to Ex. PW1/12 were manipulated documents. The defendant in the written statement has denied that this letter was sent to Smt. Bharpai Devi but interestingly, DW1 perhaps unwittingly aided the plaintiffs' case when in his cross examination dated 25.07.2013 he voluntarily deposed that the rent used to be sent by money order and used to be received by Sh. Shiv Shanker Rustagi (erstwhile plaintiff) under protest. DW1 also admitted that the money orders were alway sent in the name of his mother Smt. Bharpai Devi and that defendant's brothers i.e. Sh. Vijay Kumar, Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 24/34 Uma Shankar and the defendant himself tried to tender the rent to the erstwhile plaintiff Sh. Shiv Shanker Rustagi but he refused to accept the rent tendered by them therefore they used to send the rent by way of money order in the name of Smt.Bharpai Devi. DW1 also brought the originals of receipts of three money orders sent by him to Sh. Shiv Shanker Rustagi, the photocopies of which were exhibited as Ex. DW1/PA colly and deposed that these were not accepted by Sh. Shiv Shanker Rustagi. Though DW1 denied the suggestion that the tenancy only devolved upon his mother or that for this reason only the rent was sent in the name of his mother however the testimony of the defendant itself shows that PW1 used to accept the rent tendered by or on behalf of Smt. Bharpai Devi only that too under protest, the tenancy of Late Ram Dayal as per Section 2 (l) DRC Act, only devolved upon Smt. Bharpai Devi, who admittedly died, thereafter the occupation in the said premises by the defendant was as an unauthorized occupant.

29. The defendant also admitted receiving the notice dated 10.05.2011 Ex. PW1/13 to which the defendant apparently sent no reply as is claimed by him. Late Ram Dayal having died as a statutory tenant, the tenancy which was residential only devolved upon Smt. Bharpai Devi to the exclusion of all other LRs of Late Ram Dayal and upon the death of Smt. Bharpai Devi, the defendant and other LRs of the Late Ram Dayal and Smt. Bharpai Devi did Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 25/34 not inherit the tenancy. Since the defendant is merely an unauthorized occupant in the suit property, the bar of Section 50 DRC which bars the jurisdiction of the civil court in case of tenancies covered under the Act, does not apply.

This issue is thus decided in favour of the plaintiff and against the defendant.

Issue No. 3 Whether the plaintiff is entitled for a decree of possession as prayed for? OPP

30. The plaintiffs have proved the termination of the tenancy of Late Ram Dayal vide the legal notice Ex. PW1/2. The defendant has neither pleaded nor proved that the tenancy was a commercial one. The tenancy thus devolved only upon Smt. Bharpai Devi as per Section 2(l) of the DRC Act and the rent tendered by her vide the reply to the legal notice Ex. PW1/8A was accepted by the erstwhile plaintiff PW1 without prejudice to his rights as spelt out by him in his letter Ex. PW1/9. Admittedly, Smt. Bharpai Devi died. Upon the death of Smt. Bharpai Devi , the erstwhile plaintiff PW1 admittedly sent legal notice Ex. PW1/13 to the defendant. In the legal notice Ex. PW1/13 the plaintiff stated that the defendant was an illegal occupant in the premises in question and defendant was called upon to vacate the same. The defendant in cross examination while admitting that his wife received the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 26/34 notice and handed over the same to him and that he read the contents thereof evasively responded that he did not remember whether he had replied to the notice and could not even admit or deny the suggestion that he did not send any reply to the notice. No such reply was placed on record by the defendant and adverse inference must be drawn against the defendant that in fact no reply was even sent by him to the legal notice of the plaintiff. The defendant did not vacate the suit property even after receiving the legal notice from PW1. The fact that PW1 was the landlord of the suit property was not denied by the defendant. One defence taken by the defendant was that the suit was bad for non­joinder of necessary parties i.e. the other LRs of Smt. Bharpai Devi. In fact, Smt. Bharpai Devi was not a contractual tenant and the statutory tenancy of Late Ram Dayal only devolved upon her as provided U/s 2 (l) of the DRC Act. The plaintiff argued that it was only the defendant and his family members who were in possession of the suit property. The onus was on the defendant to prove that other LRs of Late Bharpai Devi were also residing in the suit premises but he failed to adduce any evidence whether independent oral testimony or documentary evidence in this regard; in his cross examination, DW1 deposed that his brothers were residing in the suit property along with their wives but he did not know if his brothers had any ration card, gas connection or election I card showing the address of the suit Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 27/34 premises. He deposed immediately thereafter that a gas connection in his father's name was still continuing in the suit property but that is of no consequence since DW1 was asked specifically about documentary proof to show that his other brothers were also residing in the suit property. He evasively deposed that he did not know whether the address of the suit property had been provided by his brothers in the school records of their children and he also deposed that he did not know if his brothers owned or possessed any other premises or property for residence. The defendant's evasive testimony must be read against him especially since he has neither produced any of his brothers in evidence to prove that they were also residing in the suit property nor has he adduced any documentary evidence in this regard; not even when the counsel for plaintiff coaxed him in cross examination regarding documents showing the alleged possession of the brothers of the defendant of the suit property. The defendant has thus miserably failed to establish that the suit is bad for non joinder of necessary parties.