Saturday, 26 January 2019

Whether tenant can claim that he has become owner of tenanted premises by adverse possession?

The only issue raised before me qua ownership has been duly
answered by the learned Additional Rent Controller on the facts so
brought before him. The petitioners even in this petition have not filed
any title documents viz. GPA etc to show they had actually purchased the
property from the late father of the respondent. Rather, admittedly, the
petitioners have not paid the entire consideration and neither till date
have filed any suit for specific performance of any alleged contract.
8. Admittedly, the property was converted into free-hold and a
conveyance deed dated 16.01.2012 was executed in favour of the
respondent, yet the petitioners slept over the matter and failed to file any
suit for cancellation of the conveyance deed which the petitioners now
allege was wrongly executed in favour of the respondent. Can they now
file such suits? It appears to be doubtful.
9. Lastly it was argued since the petitioner are in possession of
premises for more than 20 years hence are owners by adverse possession.
This is a baseless argument. Admittedly the petitioners entered the
premises as tenant. Their entry was never forceful. They rather failed to

assert their alleged ownership rights, legally by filing relevant suits etc., hence they cannot allege adverse possession.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 08th January, 2019
RC.REV. 319/2018 and CM APPL.28108/2018

THOMAS GERVASE Vs RAVIN MEHR

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA



1. This revision petition is against an order dated 01.05.2018 passed
by learned Senior Civil Judge-Rent Controller, North-West District,
Rohini Courts, Delhi (the learned Trial Court) in RC No.50/2017 titled
as Ravin Mehra vs Thomas Gervase & Another.
2. The respondent herein claiming to be an owner of the premises had
instituted the petition for eviction on account of bonafide requirement
under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (DRC Act)
in respect of MIG DDA Flat No.379, Ground Floor, Pocket R(U),
Pitampura, Delhi – 110034 (subject property) on the following grounds:-
That the Petitioner is the owner of the premises bearing No.DDA Flat
No. 379, Ground Floor, Pocket R(U), MIG, Pitam Pura Delhi-ll0034
and the same was let-out by the father of the petitioner jointly to the
respondents for residential purpose at monthly rent of Rs1,000/- per
month. No rent agreement was written between the parties
Subsequently the rent was increased from time to time and the last rent
@ Rs 2500/- , was paid by the respondent.

Sh. P. N. Mehra father of –the petitioner died on 08.02.2008. After the
death of Sh. P.N. Mehra the suit property was transferred in the name
of the petitioner vide conveyance Deed dated 16.01.2012, DDA and as
such the petitioner became the absolute owner of the suit property.
After the death of Sh. P N Mehra respondent had attorned in favour of
the petitioner. The respondent had paid a sum of Rs 30,000/- to the
petitioner in August 2008 after the demise of the father of the petitioner
in August 2008 as part payment of arrear of rent for 17 months @
Rs.2500/. Thereafter no payment towards rent has been made by the
respondent to the petitioner till date.
It is submitted that presently the petitioner is residing at Pune and is
working as General Manager Finance and Commercial with JBM MA
Automotive Pvt. Ltd C-11/2 MIDC, Chakan Talegaon Road, Chakan
District Pune-410510.
The petitioner, as per the retirement policy of the company has already
attained, the retirement age of 58 years. The petitioner is about 60 or
above and the petitioner is currently working on extension till
31.10.2017.
That the petitioner has filed the present eviction petition through his
attorney Sh. Madhav Khanna' as he is not presently residing in Delhi
and is working in Pune. The petitioner has authorized Sh.Madhav
Khanna vide SPA dated 21.08.2015 to conduct the proceedings before
this Hon'ble Court.
That the suit premises i.e. DDA Flat No. 379, Ground Floor, Pocket
R(U), MIG, Pitam Pura Delhi-110034 under tenancy of the respondent
is bonafidely required by the petitioner Sh. Ravin Mehra for his
personal use to reside with his family after his extension period of
service expires on 31.10.2017.
The petitioner has alongwith him, his wife and married daughter in. his
·family. One of the daughter of the petitioner had already expired.
The other daughter of the petitioner is residing with her family in
Faridabad Haryana and the petitioner wants to shift in ,suit premises
from Puna so that he and his wife are near to his daughter and other
close relatives during the last stage of their lives and are being looked
after by their daughter in their old age.
That the petitioner, the owner has no any other vacant premises eitherin
Delhi or NCR to live and the suit property is the only premises which
are required by the petitioner bonafiedly for his and family's personal'
use as stated hereinabove.
3. The petitioners did not file any leave to defend application, but
rather filed a reply to the eviction petition wherein the petitioners rather
allege themselves to be absolute owners of the subject property. It was
alleged they have purchased the subject property from the father of the

respondent for an amount of Rs.4.00 Lac, but since they were having
only Rs.2.35 Lac at the relevant time so they paid the same and got
executed a set of GPA, Affidavit, Receipt etc dated 24.02.1999 and
24.12.1999 from the father of respondent and promised to pay him the
balance amount, but could not pay the same; but now are inclined to clear
the same. It is alleged they had also paid Rs.30,000/- to the respondent
after the death of his father and had further promised to pay full and final
consideration amount only on the execution of final sale deed of the
property. However, they have admitted the suit property was given to
them, initially, on rent by the father of the respondent, but later they
allegedly purchased in the manner stated above.
4. Admittedly, the petitioner have not filed any purchase documents
viz. GPA, Agreement to Sell, Receipt etc before the learned Trial Court
along with their reply to the petition. Admittedly they have not paid the
entire consideration. Thus the sale transaction, if any, was never
complete. Even today they are allegedly to pay balance amount of
Rs.1.05 Lac towards alleged sale consideration which with interest may
be huge sum.
5. The petitioners had filed on record various letters viz dealings
between them and the DDA, copies of challans to say after the purchase
of the property they have been paying the instalments to the DDA as also
the house tax of the premises and have also relied upon a receipt dated
24.12.1999, Annexure -4, which give details of the amount they have
paid to the father of the respondent viz. a sum of Rs.2.70 lac and
promised to pay further sum of Rs.1.30 Lac at the time of the execution
of the sale deed, which sum was never paid. On the other hand the

respondent’s case is since he was stationed in Pune so whatever
documents were sent by the DDA in the premises were taken over by the
petitioners and they without any authority had started dealing with DDA
on their own. He denied execution of any sale-purchase documents and
alleges the payment of sum of Rs.30,000/- was only on account of arrears
of rent.
6. In this scenario, let me see how the learned Trial Court has dealt
with the contentions raised by the petitioners. Following paragraphs are
relevant:-
“18. The respondents have claimed that they are the owner of the suit
property in question. It is further claimed that they have purchased the
tenanted suit premises for Rs. 4 lacs from the father of the petitioner
and even a sum of Rs. 2,35,000/was
paid at that time about 20 years
ago. It is further stated that all the construction work, electricity and
water connections are in the name of respondent No.2. On the other
hand same is vehemently denied by the petitioner.
19. In rent control legislation, the landlord can be said to be owner if
he is entitled in his own legal right, as distinguished for and on behalf
of someone else, to evict the tenant and then to retain, control, hold and
use the premises for himself. In M.M.Quasim Vs Manohar Lal Sharma
[(1981) 3 SCC 36] it was observed by the Apex Court that an
“ownerlandlord” can seek eviction on the ground of his personal
requirement is one who has a right against the whole world to occupy
the building in his own right and exclude anyone holding a title lesser
than his own.
It was observed in Shanti Sharma Vs. Smt Ved Prabha [AIR
1987 SC 2028] that the term "owner" has to be understood
in the context of the background of the law and what is contemplated
in the scheme of the Act. The Act has been enacted for protection of the
tenants. But, at the same time, it has provided that the landlord under
certain circumstances will be entitled to eviction and bona
fide requirement is one of such grounds. Ordinarily, the
concept of the ownership may be absolute ownership in the land as
well as of the structure standing thereon. But in the modern context,
where all lands belong to the State, the persons who hold properties
will only be lessees or the persons holding the land on some term from
the Government or the authorities constituted by the State. The
legislature, when it used the term "owner" in s. 14(1)(e), did not think
of ownership as absolute ownership. The meaning of the term "owner"
is visavis
the tenant i.e. the owner should be something more than the
tenant. The object of the requirement contained in Clause (e), that the
petitioner should be owner of the premises, is not to provide an
additional ground to the tenant to delay the proceedings by simply
denying ownership of the landlord of the premises and thereby putting
him to proof by way of full fledged trial. The object is to ensure that the

provision is not misused by people having no legal right or interest in
the premises. The proceedings under the Act cannot be converted and
utilized by a tenant to prevent eviction merely on the ground that he
seeks to cast doubt on the title of the property, which has been
acquired, when there is really no one else claiming right to the
property.
20. In the present case, the petitioner has placed on record a copy of
allotment letter in favour of his late father Sh. Kanwal Nath Mehra
and subsequent conveyance deed dated 16.01.2012 in favour of
petitioner by the DDA. Further, in so called leave to defend
application itself it is admitted by the respondents that initially suit
property was given on rent to the respondents by the late father of
petitioner at a monthly rent of Rs. 1000/per
month. Thus it is the
admitted position that the respondents entered into the suit property
as tenants. But they claimed that later they purchased the same from
the late father of the petitioner. But no sale deed in this regard is
placed on record by the respondents despite having sufficient
opportunities to do so. In fact it is admitted by the respondents in their
alleged leave to defend application that they even failed to pay whole of
the sale consideration of Rs. 4 lacs. On the other hand the petitioner
has placed on record the conveyance deed in his favour. In fact the
respondents have denied such ownership of the petitioner for want of
knowledge. Further, it is pertinent to note that so far the respondents
did not take any steps to complete the alleged sale transaction in their
favour. As such, such stand taken by the respondents appears to be an
after thought. In any case, having regard to the copy of conveyance
deed placed on record by the petitioner it is held that he is the owner
of the suit property in question for the purpose of present petition.
21. On a bare perusal of the alleged leave to defend application it is
clear that there is no averment at all disputing the bonafide
requirement of the petitioner nor there is any averment regarding any
alternative suitable accommodation available with the petitioner at
Delhi.
22. In the judgment titled as Ragavendra Kumar v. Firm Prem
Machinary [AIR 2000 S.C.534], the Hon’ble Supreme Court held that
it is settled position of law that the landlord is best judge
of his requirement for residential or business purpose and he has got
complete freedom in the matter.
23. xxx
24. As already noted ,it is submitted that the petitioner is residing at
Pune at present and is working as General Manager in a
Private Limited Company and is about to retire. As such after
retirement , he requires the tenanted suit premises for his residence
along with his wife. It is further stated that his daughter is residing
nearby Delhi. It is further stated that the petitioner does not have
any other residential property in or around Delhi except the tenanted
suit premises. Both such facts are not disputed at all by the
respondents. Therefore, in view of above mentioned position of law, it
is held that the respondents do not raise any triable issue of such a
nature that would disentitle the landlord from obtaining an order for
the recovery of possession of the tenanted suit premises.

Relet
at higher rate of rent
25. It may also be noted at this stage that regarding the apprehension
that petitioner with malafide intention wants to get vacated the
tenanted suit property from the respondents and then to relet
the same
to the new tenant for earning handsome amount, it was held by Hon'ble
High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh [1982
(2) RCR (Rent) 715] that in all applications for leave to defend the
common defence raised by almost all the tenants, is that the landlord
wanted to enhance the rent or to sell the property after getting it
vacated. It was observed by the High Court that such types of
allegations are without any foundation and that after an order of
eviction is passed under section 14 (1)(e), the tenant is granted six
months time to vacate the premises and the landlord is required to
occupy the same within two months and the landlord is further
disentitle
for reletting
or alienating the whole or any part of the
premises within three years from the date of obtaining possession from
the tenant. Thus, the landlord is not in a position either to sell or relet
the tenanted premises for a period of three years.”
7. The only issue raised before me qua ownership has been duly
answered by the learned Additional Rent Controller on the facts so
brought before him. The petitioners even in this petition have not filed
any title documents viz. GPA etc to show they had actually purchased the
property from the late father of the respondent. Rather, admittedly, the
petitioners have not paid the entire consideration and neither till date
have filed any suit for specific performance of any alleged contract.
8. Admittedly, the property was converted into free-hold and a
conveyance deed dated 16.01.2012 was executed in favour of the
respondent, yet the petitioners slept over the matter and failed to file any
suit for cancellation of the conveyance deed which the petitioners now
allege was wrongly executed in favour of the respondent. Can they now
file such suits? It appears to be doubtful.
9. Lastly it was argued since the petitioner are in possession of
premises for more than 20 years hence are owners by adverse possession.
This is a baseless argument. Admittedly the petitioners entered the
premises as tenant. Their entry was never forceful. They rather failed to

assert their alleged ownership rights, legally by filing relevant suits etc., hence they cannot allege adverse possession.
10. Thus considering the submissions on record, I see no reason why I should differ from the decision of the learned Additional Rent Controller. The impugned order do not suffer from any illegality/infirmity and hence there is no reason to set it aside.
11. Accordingly, the petition is hereby dismissed being devoid of merit.
12. Pending application, if any, is also dismissed.
YOGESH KHANNA, J. JANUARY 08, 2019 M
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