IN THE COURT OF SHRI [ENTITY], SENIOR CIVIL JUDGE, RENT CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI Eviction Petition No. 15/13 Unique Identification Number:02402C0200622012 Smt. [ENTITY] W/o Sh. Shyam Kumar R/o141142, Ist Floor, Guru Ram Dass Nagar Delhi92 Petitioner Versus 1. Sh. [ENTITY] S/o Sh. Jawahar Lal Sapru R/o 346, 2nd Floor, West Guru Angad Nagar Delhi92 2. Smt. [ENTITY] W/o Sh. [ENTITY] Bhat R/o 22A, Karan Nagar, Jammu, J&K. Both also at: 353, West Guru Angad Nagar, Laxmi Nagar, Delhi110092 Respondents Date of institution of case 18.07.2012 Arguments heard on - 04.06.2014 Date of Order - 09.07.2014 ORDER
1. This order shall decide the question whether the respondent [ENTITY] be granted leave to contest the instant eviction application under [SECTION] of the [ACT] (for short 'the Act').
2. Vide a registered sale deed dt. 25.09.2006 petitioner purchased property bearing no. 353, West Guru Angad Nagar, Laxmi Nagar, Delhi92 (measuring 25 sq. yards) from one Ms. [ENTITY]. Ms. [ENTITY] had in turn purchased it from one [ENTITY] vide GPA sale documents dt. 08.07.1994. This property has two shops at its ground floor. One of the two shops is stated to be under respondents' occupation. The adjoining shop is stated to be under the occupation of [ENTITY].
3. Petitioner avers that Ms. [ENTITY], the previous owner, had duly intimated the respondents, in her presence on 25.09.2006 itself, about transfer of the property, including the two shops, vide sale deed dt. 25.09.2006 and that they were required to henceforth pay the monthly rental of Rs. 325/ with effect from 01.10.2006 to her (petitioner). She further avers that respondents started paying monthly rental of Rs. 325/ to her (petitioner) with effect from 01.10.2006. She goes on to aver that respondents have paid rent to her till December, 2009, last rent being paid on 10.12.2009. Petitioner places reliance upon a rent deed dt. 08.07.1994 which purports to have been executed between Ms. [ENTITY] and the two respondents.
4. Besides the aforesaid property, petitioner owns a flat bearing no. 141142, 1st floor, Guru Ram Dass Nagar, Delhi92 measuring 70 sq. yards, which is a two plus one room set flat.
5. Petitioner's husband is a retired MCD employee. Apart from her husband, petitioner has in her family, widow of her predeceased son [ENTITY] with her son [ENTITY] aged 20 years and two minor daughters. She also has a married son namely [ENTITY], his wife and his two minor daughters. Family of predeceased son [ENTITY] lives at 141142, 1st floor, Guru Ram Dass Nagar, Delhi92, whereas [ENTITY]'s family lives in the property in question. Petitioner and her husband, however, at times stay with son [ENTITY] and at times stay with the widowed daughterinlaw.
6. Petitioner submits that she requires the tenanted shop under respondents' tenancy for her son [ENTITY]. [ENTITY], aged about 42 years, is stated to be a diploma holder in photography and doing odd jobs at present. Petitioner states that her son [ENTITY] is interested to run photography business if a shop is made available to him. She thus seeks to evict the respondents from the shop in question.
7. Both the respondents were served with the summons under [SECTION] of the Act on 26.07.2012. Respondent [ENTITY] had accepted the summons of respondent Ms. [ENTITY]. However, only the respondent no. 1 [ENTITY] filed his affidavit along with his application seeking leave to contest.
8. Respondent [ENTITY], in the affidavit accompanying his application seeking leave to contest, at the very outset, states that there does not exist any relationship of tenantlandlord between him and the petitioner and that he is in occupation of the shop since 1994 in his 'individual capacity' and 'independent capacity'. He also states that he was neither the tenant of [ENTITY] nor that of Ms. [ENTITY] and that he never paid any rent to them. He goes on to state that at no point of time he paid any rent even to the respondent. He avers that on 18.02.1993 his maternal aunts Ms. [ENTITY] and [ENTITY] had paid a sum of Rs. 1,30,000/ on his behalf to the then owner Sh. [ENTITY], who had executed a receipt in lieu thereof. His averments in this regard, in para 1 (b) of his affidavit, are as follows:
Because on 18/2/93 the then owner of the property Mr. [ENTITY] received a sum of Rs. 1.30 lakh from Ms. [ENTITY] & [ENTITY] for respondent [ENTITY] maternal nephew physically handicapped in order to settle him in after leaving J.&K. State during militancy and executed a receipt thereto for receiving of the said amount and similarly Mr. [ENTITY] paid a sum of Rs. 1.25 lakh to the then owner [ENTITY] wherein after constructing the first floor only, the rights were transferred by [ENTITY] in favour of [ENTITY] wife of Mr. [ENTITY] in July 1994. Though, the money was paid by respondent in the year 1993 when property itself valued somewhere around 5.00 lakhs of rupees, the sub division in the property was not permissible and no subdivision sale could have been registered at that point of time as the property itself is 25 sq. yards. This fact was even not in the knowledge of the respondent who is only XIIth at that point of time.
9. Respondent [ENTITY] thus asserts that he is operating from the shop in his 'independent capacity' with an electricity meter in his own name and having paid the 'consideration' to [ENTITY]. He goes on to assert, "Since this fact was known to [ENTITY] and [ENTITY] no eviction proceedings have been preferred by them in last almost 20 years." He further states that petitioner has neither filed any letter of attornment in her favour nor has she filed any rent receipt to show the existence of landlordtenant relationship. In paragraph 1 (n) of his affidavit, which is reproduced as under, respondent asserts that he rather has 'ownership' right in the shop.
Because respondent in order to protect his occupancy and ownership has paid due consideration on 18/2/1993 the then owner of the property Mr. [ENTITY] received a sum of Rs. 1.30 lakh from Ms. [ENTITY] & [ENTITY] for respondent [ENTITY] maternal nephew physically handicap in order to settle him in after leaving J.K. State as migrant and has not paid a single penny as rent thereafter and is enjoying the property in independent capacity.
10. The respondent also questions the genuineness the registered sale deed executed by Ms. [ENTITY] in petitioner's favour. He alleges that Ms. [ENTITY]'s signatures on all the six pages thereof are forged because 'signatures on the sale deed goes upward in ascent in all six pages whereas in rent note so executed by [ENTITY] in the case of [ENTITY] on both pages signature descents/goes downward, whereas in the case of respondent the signature on rent deed is in straight line and there is clear cut overwriting on the signatures in the formation of 'p . He also alleges that his signatures on the rent deed dt. 08.07.1994 are 'manipulated'. Not only this, he goes on to allege in para 1 (g) of his affidavit:
That the sale deed which has been placed on court record by the present petitioner is for a consideration of Rs.1.00 lakh whereas way back in 1992 [ENTITY] paid Rs.1.25 lakhs for the shop in question and respondent has paid Rs.1.30 lakh in 1993 to [ENTITY] prior to transferring first floor in the name of [ENTITY] in the 1994. This fact of purchase of first floor was very much in the knowledge of [ENTITY] and because of no subdivision in the property is permissible that is why no proceeding of any nature was initiated by her. Some property dealer under the garb of present petitioner is preferring the present petition through legal aid counsel in which no rent of any nature has ever been paid by the respondent to petitioner, which further proves malafides of petitioner.
11. Respondent points out that in para 14 of her petition, the petitioner stated that the shop had been let out to him with effect from 01.10.2006, whereas in para 18 (a) of her petition she stated that he was inducted as tenant by the previous owner Ms. [ENTITY]. He therefore urges that this suffices to grant unconditional leave to contest in his favour.
12. Respondent goes on to state that petitioner has 'ample space' as she purchased the property on 'as is where basis'. He avers that in case of paucity of space the petitioner can very well raise further construction of additional floors which would then suffice to meet her space requirement. Petitioner also questions petitioner's bonafide requirement on the premise that she is negotiating with a builder to sell out the property. He also states that the petitioner has 'alternate sufficient accommodation'. On these averments respondent [ENTITY] seeks leave to contest the instant eviction petition.
13. Petitioner filed her reply to the leave to defend application along with her counteraffidavit. She states that respondent has made contradictory averments by stating on the one hand that he occupied the shop in 1994, and on the other hand stating on the basis of receipt dt. 18.02.1993 that he took the shop in 1993 on payment of pagri. She avers that the receipt does not confer any ownership right and that it amply reflects that the shop in question was agreed to be given on monthly rent of Rs. 325/ and as such, his plea of 'individual capacity' is without substance. She further states that the respondent himself admits that [ENTITY] had transferred the property in Ms. [ENTITY]'s favour in July 1994. She asserts that the respondent has failed to raise any triable issue. Denying other averments she seeks dismissal of the leave to defend application.
14. Respondent [ENTITY] filed his rejoinder wherein he reiterated his averments as set out in his leave to defend application and the affidavit and refuted those made by the petitioner. In addition thereto, he states that he paid 'charges for occupying the ground floor' to the previous owner [ENTITY] and for this reason no rent receipt was ever issued to him. Denying other averments, he seeks dismissal of the eviction petition.
15. I have heard arguments at bar and perused the record of the case.
16. The very first question that falls for decision is the capacity in which the respondents are occupying the shop. Respondent [ENTITY] states that he is in occupation of the shop since 1994 in his 'individual' and 'independent capacity'. But, what precisely does he mean by the two phrases 'individual capacity' and 'independent capacity' is not at all clear. Under the law 'individual capacity' and 'independent capacity' by itself does not convey any sense. Under the [ACT] (for short '[ACT]') there is no such acquisition of property in, what the respondent terms as, 'individual capacity' and 'independent capacity'. The capacity of a person in occupation of a property can be either as a mortgagee, lessee, licencee, trespasser or its owner. The respondent, as per his own averment, is certainly not a mortgagee as the amount of Rs. 1,30,000/ that was paid was not given as a 'loan'. Even otherwise, a mortgage cannot be created without the mandatory legal requirements as envisaged in [SECTION] of [ACT]. Respondents are also not licensees. They are neither trespassers in the property. On a holistic reading of respondent's affidavit it does appear that his claim is that he is the virtual owner of the shop after payment of Rs. 1.30 to Sh. [ENTITY] on his behalf. However, these claims to ownership and to 'individual' and 'independent' capacities rest on a foundation of sand. This is for the simple reason that under the law a title to an immovable property does not pass without following the requirement of [SECTION], [ACT]. In other words, ownership of an immovable property vests on the basis of a document called sale deed registered with the SubRegistrar. Respondent has no document whatsoever evidencing transfer of ownership of the shop in his favour. All that he has is a receipt. But this receipt would not at all suffice, under the law, to vest title qua the shop in his favour. In a nutshell, his claims to ownership and 'independent' and 'individual' capacities are without any substance.
17. After having deciphered that the capacity in which the respondent [ENTITY] is in occupation of the shop is not that of a mortgagee or a licencee or a trespasser or an owner, it now requires to be determined whether he is in occupation as a lessee. The respondent refers to a receipt executed by [ENTITY] in lieu of Rs. 1,30,000/, paid on his behalf, which purported to give him an 'independent capacity' visavis the shop. Copy of this receipt has been placed on record by respondent himself. This receipt is in vernacular Punjabi and the respondent furnished its translated version. Its translated version reads as follows:
"I [ENTITY] s/o [ENTITY], House No. West Guru Angad Nagar, Delhi92.
I, [ENTITY] w/o [ENTITY] and [ENTITY] w/o [ENTITY] above mentioned, Rs. 10,000/ it half comes Rs. 5,000/, one shop with single side whose PAGRI has been fixed at Rs. 1,30,000/ (Rupees one lakh and thirty thousand only) and there is time for 1 months and rent will be Rs. 325/ per month, in which after adding amount of earnest money, balance comes at Rs. 1,20,000/ (Rupees one lakh and twenty thousand only) and balance amount will be paid on 9.3.93."
18. The aforesaid receipt reveals something very very vital. And the revelation is that the shop had been taken on payment of pagri amount and on payment of monthly rent of Rs. 325/. It was a common practice amongst the people at large in Delhi to let out their properties on a hefty pagri to some tenant. The payment of pagri, as per the common practice, used to be associated with letting out premises on rent. This practice was sought to be curbed by [SECTION] of the Act. What is absolutely clear to me is that the transaction whereby [ENTITY] let out the shop on monthly rent of Rs. 325/ was a lease under [SECTION], [ACT]. It is therefore beyond doubt that the shop in question was taken on monthly rent of Rs. 325/. The respondent [ENTITY] asserts that [ENTITY] and Ms. [ENTITY] had paid the pagri amount, on his behalf, and then he (respondent [ENTITY]) came into occupation of the shop. That is to say, he came into occupation of the shop which was taken on pagri, paid on his behalf, and the monthly rental of which was fixed at Rs. 325/. It bears repetition to state that the receipt clearly reflect that the 'rent will be Rs. 325/ per month'. And therefore, the respondent [ENTITY] occupied the shop of which the rent was to be Rs. 325/ and for which [ENTITY] and Ms. [ENTITY] had paid the pagri amount on his behalf. The payment of the pagri by [ENTITY] and Ms. [ENTITY] is a transaction contrary to law. However, the occupation of respondent [ENTITY] since inception on monthly rental of Rs. 325/ is certainly a lease as envisaged under [SECTION] of [ACT]. In this view of the matter, [ENTITY], who had let out the shop, became the landlord and respondent [ENTITY] who had occupied the shop on monthly rental of Rs. 325/ became the tenant. This being his legal status there can be no manner of doubt that the respondent had come into occupation of the shop as a lessee. His legal character of a lessee qua the shop would not change to that of an owner without undergoing the requirement of law. A tenant continues to be a tenant and the mere fact that he has been in occupation of the shop for the last about 20 years will not convert his status to that of an owner.
19. In so far as the fact that [ENTITY] had transferred the property to Ms. [ENTITY] is concerned, the respondent admits it, albeit to the limited extent that the transfer was only qua the first floor. However, the assertion that the shop on the ground floor was not transferred is not a correct one in the face of the fact that there is no document of transfer in favour of the respondent and that GPA sale documents in favour of Ms. [ENTITY] makes a mention of the transfer of the entire property. That apart, there are enough judicial rulings to hold that 'ownership', in the context of the Act, does not mean absolute ownership. The only requirement is that the landlord must have better title than the tenant and must have rights in the premises that are more than that of a tenant. Delhi High Court, interpreting the word 'owner' in [SECTION] of the Act in [PRECEDENT], observed as under:
The word 'owner' as used in this clause has to be construed in the background of the purpose and object enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by definition of the word 'landlord' as contained in [SECTION] of the Act which is wide enough to include a person receiving or entitle to receive the rent of any premises on account of or on behalf of or for the benefit of any other person "
20. This interpretation of the word 'owner' was approved of by Apex Court in Smt. [ENTITY] & Ors. vs. Smt. Ved Prabha & Ors. (1987)4 SCC 193. Further, in the matter of [PRECEDENT], relying on [ENTITY] (supra), it was observed, "For the purpose of [SECTION] of the Act, ownership is not to be understood as absolute ownership, but only as a little better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, the title better than the respondents"
21. Therefore, Ms. [ENTITY] certainly had a better claim to ownership qua the property, including the shops, than the respondent. Ms. [ENTITY], transferred the property to the petitioner vide the aforesaid registered sale deed and consequently the latter is now the title holder of the property in question. [ENTITY] the respondent, petitioner stands in the position of owner of the shop. The contention that Ms. [ENTITY]'s signatures on the registered sale deed is not genuine is perfunctory at best. The sale deed is a registered one and consequently there is a presumption under the law that it was duly executed.
22. The legal position now is that the respondent is the tenant of the shop and the petitioner its owner. In terms of [SECTION] of the Act which defines 'landlord' the petitioner is entitled to receive the rent of shop and consequently, she is the landlord of the shop in question and the respondent is the tenant. The fact that there is no rent receipt to evidence payment of monthly rental cannot persuade me to take a different view.
23. Insofar as respondent Ms. [ENTITY] is concerned, she has not filed her application seeking leave to defend thereby controverting petitioner's averments.
24. It was argued that [ENTITY], the previous owner, is required to be examined to prove the respondent's contentions. But his evidence cannot and would not traverse the legal position that a mere transfer of Rs. 1.30 lacs vide the aforesaid receipt would not at all suffice to confer ownership. He would at the most 'prove' the contents of the receipt. But the fact of the matter is that the receipt records an illegal transaction visavis the pagri. It is rather unusual that the respondent has set out an illegal transaction as his primary defence.
25. It was the contention that the petitioner can meet her requirement of additional accommodation by raising further construction on the first floor. This ground merits rejection at the very outset. A tenant cannot ask his landlord that he cannot evict him and that he must meet his growing needs and requirements of space by making investments in construction of additional structure. I have not come across any judicial decision which holds that landlord's bonafide need and requirement for space can be defeated on the ground that he can very well make investments in the premises in the form of additional structures. I see no reason as to why the landlord must be asked by the Court to spend money in raising constructions to meet his growing needs and requirements if such need and requirement can be met from the tenanted premises. If this argument of the tenant is taken to its logical limits, then the tenant can very well argue that the petitioner may as well purchase another property by spending money to meet his growing needs and requirements. Bonafide need and requirement cannot be considered from the point of view of what the landlord can possibly at some future date construct or purchase. Such bonafide need and requirement has to be considered as on the date of filing of the case. Apex Court in the matter of [PRECEDENT] held , "In our judgment, the law is fairly settled. The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of filing of the suit, ordinarily he will not be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Conversely no relief will normally be denied to the plaintiff by reason of any subsequent event, if at the date of institution of the suit he has a substantive right to claim such relief." Therefore, the tenant is not correct in arguing that the landlord can very well spend money and raise construction to meet her requirement.
26. It was urged that the petitioner has ample space and that she has alternate sufficient accommodation. However, it has not been specified as to where does that ample space lie. There are only two shops in the premises and both the shops are under tenancy and therefore, it is rather difficult to accept this defence that the petitioner has ample space to meet her requirement. Similarly, the respondent has not specified as to where does the alternate sufficient accommodation lie for carrying out the business. Such a business certainly cannot be carried out from one's own bedroom.
27. It was also contended that the respondent does not have any letter of attornment in her favour. Under the law there is no requirement of obtaining any letter of attornment in writing after purchasing the property from the previous owner. In this regard the respondent may take note of [SECTION], [ACT].
28. The respondent sought to point out that the petitioner had made conflicting averments in paras 14 and 18 (a) of her petition. The averments in the two paragraph are not contradictory. All that the petitioner means to say in para 14 of her petition is that the respondents came under her tenancy with effect from 01.10.2006. This is fortified by a holistic reading of the entire petition.
29. The next ground is that petitioner's motive is merely to get the shop and then transfer out the same through a dealer. This ground raises no triable issue. In the event of the petitioner not putting the shop to use, as stated in the petition, recourse to [SECTION] of the Act can very well be taken. Decisions reported as [PRECEDENT] and [PRECEDENT] in this context can be referred to.
30. On the issue of bonafide requirement, respondent has failed to raise any triable issue. Petitioner asserts that she requires the shop under respondents' occupation so that her son [ENTITY], aged about 42 years, who is a diploma holder in photography, can set up shop to run photography business. The fact that [ENTITY] is a diploma holder in photography lends assurance that he genuinely contemplates such a business idea. The respondents have thus to vacate the shop in question to meet this bonafide requirement of the petitioner.
31. In the light of the aforesaid discussion, I have no hesitation to hold that the respondent [ENTITY] has failed to raise any triable issue. I am of the opinion that the respondent [ENTITY] has failed to disclose such facts as would disentitle the petitioner from obtaining an order for recovery of possession of the tenanted shop. Resultantly, respondent [ENTITY]'s application seeking leave to contest the instant eviction petition stands dismissed. Eviction order qua the shop measuring 13' X 6' 9 forming part of property no. 353, West Guru Angad Nagar, Laxmi Nagar, Delhi92 (as shown bounded in red colour in the site plan annexed with the petition which is exhibited as Ex. C1 while dictating the present order for the purpose of identification) in petitioner's favour and against the respondents is passed. File be consigned to record room.
Announced in the open court ([ENTITY]) Dated:09.07.2014 Senior Civil Judge/Rent Controller (East) Karkardooma Courts, Delhi