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2015 DIGILAW 2606 (DEL)

Manish Kumar v. Chaman Lal

2015-12-11

V.K.SHALI

body2015
JUDGMENT : V.K. Shali, J. 1. This is a revision petition filed against the order dated 10.7.2014 passed by the learned Additional Rent Controller in Eviction Petition No.44/12 titled Chaman Lal vs. Manish Kumar & Ors. whereby the leave to defend of the petitioner herein has been rejected and an order of eviction is passed. 2. Briefly stated the facts leading to filing of the present petition are that the respondent/landlord (Chaman Lal) filed an eviction petition against the petitioner, Manish Kumar, Ashish Kumar, Pankaj Kumar and one married daughter of late Hanuman Prasad alleging therein that the respondents are the tenants in respect of shop No.742, Khasra No.264/84/1, Jheel Khurenja, Delhi, more particularly shown in red in the site plan. It was stated that originally Hanuman Prasad, father of the petitioner, Manish Kumar and respondent Nos.2 to 4 were the tenants; however, on account of death of Hanuman Prasad, all the legal heirs, who are four in number, that is, the petitioner in the present petition and respondent Nos.2 to 4 inherited the tenancy. 3. It has been stated that the premises are required by respondent No.1/landlord for his bona fide use for commercial purpose. It is alleged by him that respondent No.1/landlord (Chaman Lal) is handicapped person having 51 per cent disability and the property in question originally belonged to Risalo Devi, mother of respondent No.1; however, after her death, the respondent/landlord inherited the premises. It has been alleged that Hanuman Prasad, the predecessor-in-interest of the petitioner and respondent Nos.2 to 4 had incurred expenses on the construction of the shop which was to the extent of Rs.3,500/- being 50 per cent of the construction cost which was to be adjusted for the period 14.5.1986 to 30.6.1991 @ Rs.80/- per month; however, from 1.7.1991, the tenant Hanuman Prasad was liable to pay the rent at the said rate. It has been alleged that after the death of Hanuman Prasad, Manish Kumar is using the shop for running a cattle feed godown in the premises in question while as Ashish and Pankaj Kumar, respondent Nos.2 and 3 respectively, were running big computer and electric shops in their house at Krishna Nagar while as respondent No.4 is the married daughter. 4. 4. The respondent No.1/landlord claimed that he requires the shop for his own benefit as he wants to improve his economic condition because he has two sons one of whom is married and is having wife and two children, who are staying with him in the same property along with married daughters to be looked after. The respondent/landlord has also stated that he has in his possession two rooms and a kitchen apart from one bathroom and toilet on the first floor of the tenanted premises. The respondent No.1/landlord, in support of his case, has also filed documents to show his ownership. 5. The present petitioner filed his leave to defend application and contested the eviction petition being the legal heir of Hanuman Prasad. It was stated by the present petitioner, Manish Kumar, that he has never attorned Chaman Lal as his landlord nor has he paid any rent at any point of time to Chaman Lal. He also disputed the transfer of ownership of the suit property in favour of Chaman Lal. So far as the bona fide requirement of respondent No.1 is concerned, that was also contested. Respondent No.1 filed his reply to leave to defend and contested the claim of the present petitioner. It was stated by him that he is claiming to be the owner of the property on the basis of general power of attorney, agreement to gift and Will executed by his mother Risalo Devi in his favour. 6. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents. It has been contented by the learned counsel for the petitioner that the order of rejection of leave to defend passed by the learned ARC is totally erroneous inasmuch as no reasonable person could have arrived at such a finding with regard to the points raised by the petitioner regarding ownership of respondent No.1, his bona fide requirement and availability of alternate accommodation. It has been contended that the petitioner has raised triable issues which, if permitted to be proved, would disentitle the petitioner from claiming the suit premises. This has been contested by the learned counsel for the respondents. 7. I have considered this submission of the learned counsel for the parties and have gone through the record. It has been contended that the petitioner has raised triable issues which, if permitted to be proved, would disentitle the petitioner from claiming the suit premises. This has been contested by the learned counsel for the respondents. 7. I have considered this submission of the learned counsel for the parties and have gone through the record. So far as this question of existence of landlord and tenant relationship between the parties is concerned, the petitioner has stated specifically in the leave to defend that the petitioner has at no point of time attorned Chaman Lal as landlord by payment of rent. The learned counsel for the respondents has drawn the attention of the court to the photocopy of the counter foil of the rent receipt purported to have been issued by Risalo Devi in favour of Hanuman Prasad, father of the petitioner. This receipt does not take the court anywhere to conclude that the present petitioner has at any point of time attorned Chaman Lal as a landlord. It is not in dispute that Risalo Devi, predecessor-in-interest of Chaman Lal had inducted Hanuman Prasad as tenant. The case which has been setup by respondent No.1, Chaman Lal is that Manish, Ashish, Pankaj and their married sisters are the co-tenants in the capacity of legal heirs. They had inherited the tenancy rights of Hanuman Prasad. But Manish Kumar, petitioner herein, is stated to be carrying on the business alone from the tenanted premises and at no point of time he has attorned Chaman Lal as his landlord. That being the position, the relationship of landlord and tenant between the parties, that is, Manish and Chaman Lal does not get established prima facie. It is admittedly not the case of the petitioner that Hanuman Prasad was the tenant and the death of Hanuman Prasad resulted in limited inheritance of the tenancy rights by Manish and others. That being the position, this question of existence of relationship of landlord and tenant has to be established as a pre-condition for getting an eviction under Section 14(1)(e) of the DRC Act which can be done only after the parties are permitted to adduce evidence as there is no evidence produced by the respondent to prove the existence of such a relationship and this raises a triable issue. 8. 8. Since the relationship of landlord and tenant has not been established, the petitioner is well within his right to challenge the ownership of Chaman Lal. Regarding the ownership, the documents on the basis of which ownership is claimed by him are general power of attorney purported to have been executed by Risalo Devi when admittedly she has died, the general power of attorney ceases to have any relevance. The other documents are the agreement to gift which has no value because gift is a document which becomes operational immediately after the death of the donor and has to be compulsorily registered because no right, title or interest in any immoveable property can be transferred unless and until the document is registered as per Section 17(1)(a) of the Registration Act, 1908. Therefore, this agreement to gift is also of no consequence. The third document is a Will which has not been probated. Therefore, this document of Will also does not help the respondent/landlord in any manner whatsoever. 9. In totality of these circumstances, the question of ownership which is also one of the essential ingredients under Section 14(1)(e) of the DRC Act, has to be established which also raises a triable issue. Since there is a triable issue raised by the petitioner in respect of both these points, I feel that it is a fit case where the leave to defend ought to have been given to the petitioner rather than being rejected summarily. There is no point in going further in order to determine whether any triable issue with regard to bona fide requirement is also made out or not. 10. With these observations, the impugned order dated 10.7.2014 is set aside and leave to defend is granted to the petitioner. The petitioner shall file his written statement within 30 days from today with an advance copy to the respondent, who may file replication within 30 days thereafter. Both the parties are directed to appear before the learned Additional Rent Controller on 20th January, 2016. 11. In view of the aforesaid directions, the petition stands disposed of.