1 In the court of Sh. [ENTITY] CCJ Cum Additional Rent Control (North District) Tis Hazari Courts, Delhi. [CASE NUMBER] [CASE NUMBER] In the matter of : [ENTITY], S/o Late Sheikh [ENTITY], R/o House no.814, Katra Hiddu, [ENTITY], Delhi06. Petitioner Versus 1. [ENTITY] S/o Late Mohd. Ismial, R/o House no. 747, [ENTITY], [ENTITY], Delhi. (deceased) Through LRs: (i) Mst. [ENTITY], widow of Late [ENTITY] (ii) [ENTITY] (iii) [ENTITY] (iv) [ENTITY] (v) [ENTITY] (vi) [ENTITY], all sons of Late [ENTITY] (vii) Shahida, daughter of Late [ENTITY] (viii) Saeeda, daughter of Late [ENTITY] 2. [ENTITY] 3. [ENTITY] Page 1 of 18 [CASE NUMBER] 2 4. [ENTITY] 5. [ENTITY] 6. [ENTITY] 7. [ENTITY] 8. [ENTITY] 9. [ENTITY], all sons of Late [ENTITY], 10.Mst. [ENTITY], widow of Late [ENTITY] [since deceased] 11. [ENTITY] 12. [ENTITY] 13. [ENTITY] 14. [ENTITY], 15. [ENTITY] 16. [ENTITY], all daughters of Late [ENTITY] All R/o House no. 747, [ENTITY], [ENTITY], Delhi110006. Respondents APPLICATION FOR EVICTION OF TENANT UNDER [SECTION] OF THE [ACT] Date of Institution: 10.10.1991 Final arguments heard/case reserved for Judgment: 24.09.2012 Date of Judgment: 29.09.2012 Decision: Allowed JUDGMENT:
1. This is an eviction petition filed by the petitioner u/[SECTION] and
(j) of the [ACT] [in short "the Act"]. The brief facts, as mentioned in the last amended petition, are that the respondent no.1 [ENTITY] was inducted as tenant in the entire 1st floor, as shown in red and yellow shade, and part of 2nd floor, as shown in green shade in the site plan filed alongwith the the petition of property no.747, [ENTITY], [ENTITY], Delhi110006 [hereinafter referred to as 'tenanted premises'], in 1948 at rate of rent of Rs. 40/ p.m. excluding electricity charges. Further it is mentioned that respondent no.1 unlawfully sublet or otherwise parted with the possession of the portion of his tenanted premises comprising of one room, one kitchen and the courtyard, as shown in yellow colour in the said site plan, at the first floor [in short 'disputed premises'] to [ENTITY] in 1961. It is further mentioned that [ENTITY] died on 01.01.1989 and his widow respondent no. 10 Mst. [ENTITY] (since expired) and his daughters [ENTITY] and [ENTITY], respondent no.14 and 15 are occupying the aforesaid disputed premises. It is further mentioned that the respondent no.1 has further unlawfully sublet a [ENTITY] and the courtyard, as shown in green colour in the said site plan [in short 'disputed premises'] to respondent no. 2 [ENTITY] and respondent no.5 [ENTITY] in 1969. Further it is mentioned that the respondent no.1 has sublet, assigned or otherwise parted with the possession of the disputed premises without the consent in writing of the landlord. In the original petition, it was also alleged that respondent no. 1 has caused or permitted to be caused substantial damage to the tenanted premises. In view of above, it is prayed by petitioner that an order for eviction of the respondent no.1 and the respondent no.2 to 16 may be passed in favour of the petitioner in respect of tenanted premises.
2. Summons of the petition was served on all the respondents. None had appeared for respondent no. 1 and therefore, he was proceeded exparte vide order dated 22.02.1999. Respondent no. 2, 5, 6, 7, 8, 10 to 16 filed written statement to the effect that they are lawful subtenants at the premises comprising of one room, one [ENTITY] at rent @ Rs.10/ per month under respondent no.1 since 01.04.1950 and since this premises was sublet much before 09.06.1952, there was no need to take written consent of the landlord in this regard. It is also denied that respondent no.1 had unlawfully sublet, assigned or parted with the disputed premises to [ENTITY] in 1961. It is also mentioned that the petitioner had implied notice of the lawful subtenancy of the deceased [ENTITY] as petitioner was residing in the same gali. Further it is mentioned that petitioner has not taken required permission u/[SECTION] of the [ACT], for filing the present petition for eviction against the respondents. It is also mentioned that petitioner is required to submit better particulars to show alleged nature of damage done by the respondents in the disputed premises. With these facts, the aforesaid respondents prayed for dismissal of the petition.
3. Petitioner produced seven witnesses in support of his case. 3(a). PW1, [ENTITY], deposed on the lines of petition.
Further he proved following documents: (I) The High Court order dt. 20.01.83 Ex. PW1/A (II) House Tax receipts Ex. PW1/B & 1/C (III) Rent receipt issued in the name of [ENTITY] Ex.PW1/D & 1/E (IV) Order dt. 08.02.1991 of competent authority Ex. PW1/F (V) Site Plan Ex. PW1/H & PW1/I
3(b) PW2, [ENTITY], Record keeper, MCD, City Zone, House Tax Department, Delhi, produced house tax record of the premises H. No. 747, [ENTITY], [ENTITY], Ward no.7, Delhi, of the year 1958 & 1959 Ex. PW2/A. During crossexamination, he stated that the name of tenant mentioned in the record is [ENTITY] on ground floor, [ENTITY] on first floor and widow of [ENTITY] (on first floor). 3(c). PW3, [ENTITY], UDC, Election office, produced voter list of the year 1987 Ex.PW3/A showing name of some of the respondents. 3(d). PW3(?), [ENTITY], testified that he know parties of this case as he was a resident of premises bearing no. 7[SECTION], [ENTITY], [ENTITY], Delhi, till 1984 and thereafter he shifted from there but his family members are still residing there and therefore, he usually visited this place. Further it is mentioned that [ENTITY] resided at the 1 st floor of the property no.747, [ENTITY], [ENTITY], Delhi, as tenant. In 1961, [ENTITY] permitted [ENTITY] for sometime to live in one room on the 1st floor for the treatment of his ailing wife. Further he testified that 89 years thereafter, landlord objected for the same and there used be quarrels between the landlord, [ENTITY] and [ENTITY]. It is also mentioned that petitioner also objected [ENTITY] as to how he allowed subletting without their written consent. Further he mentioned that many times petitioner collected rent from [ENTITY] in his presence. He also mentioned that after death of [ENTITY], father of petitioner, in 1961, [ENTITY] delivered the possession of one room to [ENTITY]. 3(e). PW4, [ENTITY], Architect, deposed that on 20.02.2002 he accompanied the petitioner to the property no.747, [ENTITY], [ENTITY], ward No.7, Delhi, and prepared the site plan Ex. PW1/H. 3(f). PW5, [ENTITY], UDC, Minto Road, City Zone, MCD Office, New Delhi, brought the record pertaining to property no.747, [ENTITY], [ENTITY], ward No.7, Delhi, of the year 1958 Ex.PW5/A and year 196162 Ex.PW5/B1 and Ex.PW5/B2.
3(g). PW6, [ENTITY], Asst. Grade III, BSES, YPL, Delhi, deposed that [ENTITY] applied for electricity connection on 14.05.1969 vide application Ex.PW6/A in the tenanted premises and in this regard complaint Ex. PW2/B was sent by [ENTITY]. Further he mentioned that electricity connection on the 2nd floor of the property no.747, [ENTITY], [ENTITY], ward No.7, Delhi was installed in the name of [ENTITY] on making payment on 13.03.1985.
4. Respondent side produced 3 witnesses in support of their case. 4(a). RW1, [ENTITY], deposed on the lines of his written statement. Further he placed on record certified copies of proceedings/judgment Ex.RW1/1 to Ex. RW1/3 pertaining to previous litigation between [ENTITY] and [ENTITY].
4(b). RW2, [ENTITY], testified that he has been living in house no. 736, Katra Dhobian, [ENTITY], Delhi, and [ENTITY] is residing in property no.747, [ENTITY], [ENTITY], ward No.7, Delhi. Further it is mentioned that father of the [ENTITY], Sh. [ENTITY] came to said house no.747 in 1950 and now his family members are residing there. Further it is mentioned that he visited the house of [ENTITY] number of times.
4(c). RW3, [ENTITY], testified that he has been living in house no. 772, 1st floor, [ENTITY], [ENTITY], Delhi06 since 1947 and knows [ENTITY], [ENTITY] and their children. Further he deposed that [ENTITY] shifted to the ground floor of property no.747, [ENTITY], [ENTITY], Delhi, in 1984. It is further mentioned that [ENTITY] was residing at 1st Floor of property no. 747 with his family since 1948 and [ENTITY] used to reside at 1st floor and 2nd floor of the same property since 1950. Further he deposed that he was on visiting terms with [ENTITY] and [ENTITY]. Further he deposed that to his knowledge [ENTITY] had given portion of property to [ENTITY] on rent with the consent of father of petitioner [ENTITY]. Further he mentioned that all the sons and daughters of [ENTITY] except [ENTITY] and [ENTITY] were born in the said property no.747, [ENTITY], [ENTITY], Delhi.
5. I have heard the arguments advanced by Sh. [ENTITY], Ld. Counsel for the petitioner and Sh. [ENTITY], Ld. Counsel for the respondents no. 2, 7 and 8 and also gone through the judicial file.
6. For succeeding in a petition for eviction filed under Section 14 (1)
(b) of the Act, the petitioner is required to prove
i) That the tenant has sublet, assigned or otherwise, parted with possession of the whole or any part of the tenanted premises;
ii) subletting was done on or after 09.06.1952 and it was done without obtaining the consent in writing of the landlord.
7. In the case in hand, there is no dispute about subletting of disputed premises, which is part of tenanted premises. It is admitted position that the respondent no. 1 had sublet the part of the tenanted premises in favour of [ENTITY], whose LRs i.e. respondents no. 2 to 16, are at present in physical or legal possession. It is also not an issue that no consent in writing of the petitioner or his father was taken by the respondent no. 1 for subletting this premises. Thus, the prime question for consideration is whether the disputed premises was sublet by respondent no. 1 in favour of [ENTITY] before 09.06.1952 or thereafter.
8. The petitioner has claimed that the respondent no. 1 sublet disputed premises of 1st floor to [ENTITY] in 1961 and further the disputed premises of second floor was sublet to [ENTITY] and [ENTITY] in 1969 without his consent in writing and thus, all the respondents are liable to be evicted out of the tenanted premises. Per contra, the respondents no. 2, 5 to 8 and 10 to 16 have pleaded that the tenanted premises was sublet by respondent no. 1 in favour of [ENTITY] on 01.04.1950 and therefore, there was no requirement of taking consent of the petitioner in writing and therefore, the petition is liable to be dismissed. In support of his case, the petitioner reiterated the contentions mentioned in the present eviction petition. Further, he produced PW2 from the House Tax Department of MCD to show that the [ENTITY] was not in occupation of any portion of the property no. 747, [ENTITY], [ENTITY], Delhi in 195859. One independent witness, [ENTITY] (PW3), also testified that respondent no. 1 permitted [ENTITY] for sometime to live in one room on the first floor for treatment of his ailing wife in 1961 and when [ENTITY] did not vacate for 8 9 years, the quarrels used to take place between the petitioner, respondent no. 1 and [ENTITY]. During crossexamination, he has mentioned that he shifted to property no. 747 in 1949 and he was having friendly terms with the petitioner and respondent no. 1. He also replied that he has no knowledge as to whether any notice was issued on behalf of the petitioner to [ENTITY] or his father or Late. [ENTITY]. This witness is found to be reliable as he has withstood the test of cross examination and his veracity couldn't be impeached. PW5 also produced the MCD record of the tenanted premises for the year 1958 and 196162. It is noteworthy that in the record of the year 1958, Ex. PW5/A, [ENTITY] is shown as occupier of ground floor, [ENTITY] is shown as occupier of two rooms on first floor and widow of [ENTITY] is shown as occupier of one room on first floor, whereas, in the record of the year 196162, Ex. PW5/B1 & PW5/B2, [ENTITY] and [ENTITY] are reflect as occupiers of ground floor, [ENTITY] is shown as occupier of one room on first floor, [ENTITY] is shown as occupier of one room of first floor and [ENTITY] is reflected as occupier of one room on first floor. PW6 was produced to show that [ENTITY] applied for electricity connection much later in 1969 and electricity connection was issued in the name of [ENTITY] on second floor in the year 1985. In my view, by leading convincing oral and documentary evidence, the petitioner has shifted the onus on respondents to show that they are subtenants since 1950.
9. The respondent side has produced three witnesses to prove the fact that the disputed premises was sublet by respondent no. 1 in favour of [ENTITY] on 01.04.1950. During crossexamination, RW1 has testified that he does not know in what capacity respondent no. 1 was residing in the tenanted premises, however, he mentioned that respondent no.1 was residing with [ENTITY]. He has also replied that he had not sent the rent by Money Order or deposited the same in the court in favour of the petitioner at any point of time. He has also replied that he has no document to show that the tenanted premises was sublet by respondent no.1 to [ENTITY] at the rent @ Rs. 10/ per month. He has also admitted that [ENTITY] never admitted that [ENTITY] was his tenant in the previous litigation between them. He also mentioned that copy of Ration Card produced on record by him does not reflect the address of Ration Card holders. The independent witness [ENTITY] (RW2) testified that he has visited the house of [ENTITY] in 1950 as he was a tailor by profession, however, he failed to give any specific reply to the question put by the court to the effect that how do you know you visited the house of [ENTITY] in 1950. Thus, the testimony of this witness does not inspire any confidence. RW3, [ENTITY], has admitted in his crossexamination that he was 1012 years old in 1955, which means he was 57 years old in 1950 when [ENTITY] allegedly came into the tenanted premises. Considering his tender age at the relevant time, it wouldn't be safe to believe the facts stated by him. Moreover, this witness failed to produce any document to show that he or his parents were residing in neighbouring property no. 772 in 1950. Thus, his deposition also cannot be relied upon to great extent. In view of this, it can be seen that the respondent side has not been able to lead convincing evidence to prove that [ENTITY] came in the disputed premises in 1950. The independent witnesses produced by them were not found to be very reliable and no substantial documentary evidence has been produced by them in support of their plea.
10. Another piece of evidence on which respondents have heavily relied upon is judgment dated 31.10.1969 Ex. RW1/1 passed in the suit filed by [ENTITY] for mandatory injunction against [ENTITY] and judgment dated 17.02.1979 Ex. RW1/3 passed in suit for possession filed by [ENTITY] against [ENTITY] and [ENTITY]. In both these cases, it was held that [ENTITY] is subtenant of the respondent no. 1 and since it was also discussed that [ENTITY] is in possession since 1950, it was argued that there remains no doubt that respondent no. 1 sublet the tenanted premises in favour of [ENTITY] in 1950 and not in 1961 and 1969 as alleged by the petitioner.
11. The law relating to the admissibility of judgments in evidence is to be found in [SECTION], [ACT]; of these Sections only [SECTION] is to the point:
43. Judgments, orders or decrees, other than those mentioned in [SECTION], [SECTION] and [SECTION], are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.
The one of the other provisions of the Act which makes these judgments relevant under [SECTION] is [SECTION] of the same Act :
13. Where the question is as to the existence of any right or custom, the following facts are relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
In "[PRECEDENT]", it was laid down that :
"Accordingly, the conclusion to be reached from the case law on the subject would seem to be that a judgment is certainly not admissible to prove the truth of the fact which it states, much less is any fact, stated as part of the reasoning in arriving at the fact in issue, evidence of the truth of the fact. Where however as here, the right of a party has already been concluded by a previous judgment, that fact can be proved by production of the judgment since in these circumstances the existence of the judgment itself is relevant."
12. It may, therefore, be taken to be fairly settled that judgment in a previous suit, though not interpartes, is admissible to a limited extent, i.e., in proof of a previous or particular instance in which a right in question was asserted and recognized or denied. Now, even if the judgment Ex. RW1/1 & RW1/3 are held admissible in evidence, but the finding given thereby would not be binding on the petitioner herein as he was not party to those lis. Even otherwise, there is no dispute about sub tenancy. Moreover, it is important to note down here that the commencement period of subtenancy was not an issue in those judgments and therefore these are of no help to case of respondents.
13. It was also argued by Ld. Counsel for respondents that petitioner has not taken permission of Competent Authority u/[SECTION] of The [ACT], for filing eviction petition against respondents no. 2 to
16. However, it is evident that order Ex. PW1/F passed by Competent Authority against respondent no. 1 refers to (unauthorised) subtenancy of [ENTITY], [ENTITY] and [ENTITY]. Thus, I don't see any merit in the plea of counsel for respondents and petition is, therefore, held maintainable against all the respondents.
14. It is well settled that the standard of proof in civil cases and criminal cases is quite different. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. As per [SECTION] of the [ACT], a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the defendant and persuades the court to believe the same to be more probable and true than that of the defendant then it can be held that the plaintiff has proved his case by preponderance of probability. Reference may be made to the judgments titled as [PRECEDENT] and [PRECEDENT]. Further the Supreme Court in the judgment titled as "[PRECEDENT] has laid down that:
" Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus the plaintiff's burden of proof can safely be deemed to have been discharged "
15. In view of above mentioned evidence led by both sides and the case laws, it may be summed up that tenant [ENTITY] (respondent no.1) was residing in two rooms on the first floor and one widow of [ENTITY] was residing in one room of the first floor of property no. 747 in the year 1958 and [ENTITY] was not in possession of any portion on the first floor till that time. Document Ex. PW5/B1 and PW5/B2 leave no room for the doubt that [ENTITY] came in possession of one room of 1st floor in 1961, as claimed by petitioner. The independent witness PW3 also corroborated stand of the petitioner. Moreover, the respondent no. 1 has not appeared to rebut the case of the petitioner and thus, it would be deemed that the respondent no. 1 has nothing to challenge the claim of the petitioner that he had sublet the disputed premises to other respondents in the year 1961and 1969 and not in the year 1950 as alleged by other respondents. Thus, a clear picture emerges that the disputed premises was not sublet to [ENTITY] by respondent no. 1 in 1950.
16. The petitioner has also alleged substantial damage to tenanted premises at the hands of respondents and had prayed for eviction u/[SECTION] of the Act in original petition. However, the last amended petition is silent on this aspect and moreover, no evidence has been led by petitioner in this regard. Therefore, no ground for eviction u/[SECTION] of the Act is made out.
17. In view of above made discussion, petition u/[SECTION] is allowed and petition u/[SECTION] is dismissed. The petitioner is held entitled for recovery of possession of the tenanted premises, i.e., entire 1st floor, as shown in red and yellow shade, and part of 2nd floor, as shown in green shade in the site plan Ex. PW1/H of property no.747, [ENTITY], [ENTITY], Delhi110006, from the respondents. No order as to costs.
Announced in open Court ([ENTITY]) on 29th Day of September, 2012. CCJ cum ARC (North District) [This judgment contains 18 pages] Tis Hazari Courts, Delhi