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2006 DIGILAW 2317 (DEL)

HARI SHANKAR v. RAM PARSHAD

2006-12-13

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioners as landlords filed an eviction petition against respondent no. 1/tenant under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) for non payment of rent in respect of one room and chowk opposite the said room forming part of House No. 730, Bhola nagar, Kotla Mubarakpur, New Delhi. The premises were stated to be let out for residential purposes at the rate of Rs 150/- per month. The property was stated to be recorded in the name of Sh. Niader Mal and Sh. Ram Richpal, predecessors in interest of the petitioners. ( 2 ) THE petitioners claimed that rent was not tendered from 01. 06. 1990 despite service of notice dated 13. 05. 1995 issued by late Sh. Niader Mal. After the demise of Sh. Niader Mal, respondent no. 1 even started disputing the title and the petitioners had got issued a notice of demand dated 04. 05. 1999. ( 3 ) THE defence of respondent no. 1 was that his father had encroached on the piece of land beneath the demised premises about 40 years ago and constructed a jhuggi type room where he resided with his family till his demise. A plea of adverse possession was raised. The relationship of landlord and tenant was denied. Respondent no. 1 claimed that the premises were being used also for commercial purposes ( 4 ) THE parties led their evidence and in terms of the order dated 18. 08. 2003, the Additional Rent Controller (hereinafter referred to as ARC) found respondent no. 1 in default of rent and directed deposit of arrears of rent with effect from 01. 08. 1996 to 31. 08. 2003 within one month of the order. Respondent no. 1 was held entitled to the benefit of Section 14 (2) of the said Act as it was a case of first default. ( 5 ) THE ARC considered the plea of the respondent of the absence of any title documents. It was found that there was no appropriate cross examination in this behalf by respondent no. 1 and respondent no. 1 was thus deemed to have accepted the version of the petitioners. ( 5 ) THE ARC considered the plea of the respondent of the absence of any title documents. It was found that there was no appropriate cross examination in this behalf by respondent no. 1 and respondent no. 1 was thus deemed to have accepted the version of the petitioners. This was on the basis of the legal proposition that in case of a dispute about correctness of the statement of a witness, an opportunity must be given to him to explain his statement by drawing his attention to the part of it which was being objected to as untrue, otherwise you cannot impeach his credit. In this behalf, reference may be made to the judgment of the Apex Court in Rajinder Pershad v. Darshana Devi; (2001) 7 SCC 69 . There was also no question put to the witnesses about the father of respondent no. 1 having occupied the land and constructed a jhuggi thereon. Respondent no. 1 was also found not to have pleaded all the essential ingredients of adverse possession nor was appropriate evidence led in that behalf. ( 6 ) RESPONDENT no. 1 aggrieved by the aforesaid order preferred an appeal before the Rent Control Tribunal and the Additional Rent Control Tribunal (herein after referred to as ARCT) allowed the appeal in terms of the order dated 03. 11. 2004 in this behalf, it may be noticed that an appeal to the Tribunal lies only on a question of law under Section 38 of the said Act. The question of law framed by the ARCT in para 5 is ?whether the finding of fact returned by the Trial court primarily as to the existence of relationship of landlord and tenant between the parties is against the weight of evidence. ? ( 7 ) THE ARCT found that the petitioners had failed to indicate since when respondent no. 1 was a tenant and there was no written rent agreement or rent receipt. The notice of demand issued during the life time of the predecessors in interest of the petitioners was not acted upon till 1998 and respondent no. 1 had not replied to the earlier notice as well the subsequent notice issued by the petitioners. 1 was a tenant and there was no written rent agreement or rent receipt. The notice of demand issued during the life time of the predecessors in interest of the petitioners was not acted upon till 1998 and respondent no. 1 had not replied to the earlier notice as well the subsequent notice issued by the petitioners. The ARCT was of the view that the ARC could not have decided the matter solely on account of want of reply to the notice of demand and the question whether respondent no. 1 had become the owner of the premises by adverse possession was beyond the scope of eviction proceedings. It was held that there was no correct appraisal of evidence and the relationship of landlord and tenant was against the weight of evidence. In such a case, it was held that the remedy may be by a civil suit for possession of the premises where the issue of adverse possession could be effectively determined. ( 8 ) LEARNED counsel for the parties were heard and on consideration of the submissions, I am of the view that the impugned order of the ARCT dated 03. 11. 2004 cannot be sustained as it suffers from a patent error and improper exercise of jurisdiction by the ARCT. ( 9 ) IT has to be kept in mind that the ARCT was only required to interfere on a question of law. As to what constitutes a question of law has been discussed inter alia in a recent judgment of the Apex Court in Hero Vinoth (Minor) v. Seshammal; (2006) 5 SCC 545 . If the court below has ignored material evidence or acted on no evidence, has drawn wrong inferences from proved facts by applying the law erroneously or has wrongly cast the burden of proof, it could be said that a question of law would be raised which would entitle the Appellate court to interfere. ( 10 ) IT was found by the ARC that the property in question was mutated in the name of the predecessors in interest of the petitioners. Rent was also demanded from respondent no. 1 by the predecessors in interest of the petitioners, and after their demise, by the petitioners. The notice remained unreplied. ( 10 ) IT was found by the ARC that the property in question was mutated in the name of the predecessors in interest of the petitioners. Rent was also demanded from respondent no. 1 by the predecessors in interest of the petitioners, and after their demise, by the petitioners. The notice remained unreplied. There was no cross examination of the witnesses of the petitioners on the crucial aspects of adverse possession or in respect of the version of the petitioners about their ownership. In such a situation it can hardly be said that the ARC had drawn a wrong inference from the facts by applying law erroneously. No material evidence was ignored nor was there absence of evidence on the part of the petitioners. In fact there was absence of evidence on the part of respondent no. 1 to establish his plea of adverse possession. The order of the arc thus did not call for an interference nor a question of law was raised as set out in para 5 of the impugned order. ( 11 ) IN my considered view the ARCT fell into an error by seeking to really re-appreciate the evidence and by observing that the remedy lay by filing a civil suit for possession where the plea of adverse possession could be properly determined. Once the testimony of the petitioner had established that there was a landlord-tenant relationship, the notices for demanding rent had remained unrebutted and the respondent had failed to lead any evidence of adverse possession, the order of eviction was naturally to follow as held by the ARC. ( 12 ) THE impugned order of the ARCT dated 03. 11. 2004 is accordingly set aside and the order of the ARC dated 18. 08. 2003 is restored. The petition is allowed leaving the parties to bear their own costs.