Sunday, 22 December 2019

Whether in eviction proceeding landlord is required to prove absolute ownership?

Qua the challenge to ownership of the respondent as also to relationship of owner-tenant between the parties, the learned Trial Court has noted the respondent has purchased the subject property from one Jitender Kumar Sachdeva and Smt. Iqbal Kaur, predecessors in title vide registered a sale deed dated 02.06.2012. A copy thereof has been placed on record and thus the respondent has become the sole and absolute owner of the premises in question. Admittedly, the petitioner has not denied the execution of the sale deed in favour of the respondent by the predecessors in title. His assertion that the respondent was unemployed and a student at the time of the purchase of the property and hence the transaction is hit by the provisions of the Benami Transactions (Prohibition) Act is a frivolous argument. All that the respondent need to show in these proceedings is the respondent/owner has a better title than the tenant/petitioner and nothing more. The respondent is not obliged to prove absolute ownership as is required under the Transfer of Property Act, since this is not a lis determining his title.

IN THE HIGH COURT OF DELHI

RC. Rev. 398/2018 and CM Appl. 33400/2018

Decided On: 10.01.2019

 Neelam Sharma Vs.   Ekant Rekhan

Hon'ble Judges/Coram:
Yogesh Khanna, J.

Citation: 2019(1) RCR(Rent) 464


1. This petition challenges an order dated 16.02.2018 passed by learned Additional Rent Controller/Pilot Court, Central District, Tis Hazari Courts, Delhi (the learned Trial Court) in Eviction Petition No. E-594/2017 titled Ekant Rekhan vs. Neelam Sharma.

2. The respondent instituted an eviction petition under Section 14(1)(e) of Delhi Rent Control Act for seeking eviction/possession in respect of corner shop bearing No. 12-A/2, built on Plot No. 2, in Block 12-A, situated at WEA, Karol Bagh, New Delhi, admeasuring 10 x 12 sq. ft. (hereinafter as 'shop in question') against the petitioner, leave to defend application of the petitioner having been dismissed.

3. The eviction petition was filed by the respondent on account of bonafide requirement stating inter alia:-

a) The petitioner is the owner/landlord of corner shop bearing No. 12-N2, built on Plot No. 2, in Block 12-A, situated at WEA, Karol Bagh, New Delhi, admeasuring 20 x 12 sq. ft., as shown in red colour in the site plan;

b) The deceased husband of the respondent, namely, Sh. Rattan Kumar was the original tenant in respect of the suit property inducted by predecessor-in-interest and after his death, his legal heirs have inherited the tenancy rights and the respondent is now running a confectionery shop in the suit property in the name and style of "Gujrat Stores".

c) The property bearing No. 12-A/2, Built on Plot no. 2, in Block 12-A, situated at WEA, Karol Bagh, New Delhi, admeasuring 256 Sq. Yds. in Khasra No. 5050/2619 was purchased by the petitioner from Sh. Jitender Kumar Sachdeva and Smt. Iqbal Kaur, predecessor in title vide Sale Deed dated 02.06.2012. The copy of the Sale Deed is annexed with the petition.

d) The petitioner is residing at E-4/23, Model Town-I, Delhi alongwith his family. The said property is jointly owned by the father of the petitioner, namely, Sh. Pawan Rekhan and other paternal uncles, namely, Rajinder Rekhan and Subhash Rekhan. All are living in the said property alongwith their family members.

e) The petitioners started his business of Fancy lights in the name and style of "Concept Lighting Solutions" from his residence which is jointly occupied by other family members. The petitioner does not have any office space, facility of displaying lights as well as godown and the suit premises is urgently required for the business of the petitioner.

f) The petitioner wants to open a showroom in the premises bearing No. 12-A/2, built on Plot No. 2, in Block 12-A, situated at WEA, Karol Bagh, New Delhi, part of which is a tenanted shop. As per the proposed site plan of the showroom got prepared from the architect, the petitioner required 1800 sq. ft. area on the ground floor for the said purpose. The proposed site plan is also annexed by the petitioner with the petition.

g) The petitioner is the owner of the suit premises which is a comer plot on the main road, visible to public at large and is best suitable for running a showroom of fancy lights.

h) The petitioner is already in possession of first floor, which will be used as a godown for keeping the goods and the ground floor will be used as a showroom for selling the said goods. The ground floor area will be used for display of goods, bill counter, office, waiting area, as per the proposed site plan.

i) The suit property is located at Karol Bagh, which is a famous commercial market and the suit property is having a good location and is most appropriately located to start the showroom of fancy lights.

j) The petitioner does not have any other suitable, 'alternative, appropriate commercial accommodation available with him to start his showroom at ground floor except the present suit property. The adjoining shop in the suit property, which is 'occupied by one tenant, namely, Sh. Jagdish Nath Kapoor and for which another separate petition for eviction under Section 14(1)(e) of the DRC Act has been filed by the petitioner for his bonafide requirement of a showroom-cum-office."

4. Summons were served upon the petitioner and she filed the leave to defend application wherein she took various objections including qua the ownership of the respondent; bonafide need; respondent had alternative accommodation; portion of the property in question being sealed since is situated in residential area etc.

5. The learned counsel for the petitioner alleged as per the petition the respondent requires a total area of 1800 square feet on the ground floor whereas the area with him presently on the ground floor is much more than that required by him, further now since one of the shop on the ground floor has also been got vacated by him and its possession being taken over by the respondent, thus the respondent has more than 1800 square feet of vacant space on the ground floor as is required by him and hence the need for vacating the petitioner herein for more space is a fake need.

6. Secondly, in his leave to defend application, the petitioner has given details of various properties owned by HUF of which respondent is a member and hence it is argued since some of these properties are still vacant, including the one which is opposite the shop in question, the requirement of the petitioner can be met by utilizing such properties and hence his need is not bonafide.

7. The learned counsel for the respondent on the other hand argues the area of 1800 square feet is required only for the purposes of showroom i.e., for displaying electrical items, but he also require the space for his office cabin, bill counter, waiting area on the ground floor which need is described in the petition itself and hence even the vacation of adjoining premises by another tenant, would not satisfy the requirement bonafide need of the respondent.

8. Further the opening of a showroom/shop on the ground floor would attract more customers as it is always preferable than the shops/offices on the first or upper floor. Since the property is at a good location, i.e., in a market, hence is most suitable to start a showroom of fancy lights. Thus the need of the respondent cannot said to be flimsy or not bonafide. The respondent has rather placed on record Form DVAT 07 dated 31.05.2017, showing him a proprietor of M/s. Concept Lighting Solutions and presently he is not having any showroom anywhere. The respondent being an owner of the property has every right to open the showroom in a portion which he thinks would be more feasible for him and would attract more customers. Neither the Court nor the tenant can dictate their own versions to the landlord as to how he should deal with his own property.

9. To the contention the respondent belong to HUF and that his family has as many as seven properties in Western Extension Area, Karol Bagh, the respondent has categorically stated he has no concern with any such properties, since is not in a joint family business but is engaged in his personal business under the name and style of M/s. Concept Lighting Solutions from his residence. Hence the respondent is not having any other alternative suitable accommodation for his showroom/shop/godown/office. The respondent has categorically averred he has no concern with any of other properties as alleged and such properties are even otherwise, not possessed by him, hence, even if are allegedly lying vacant, since are not owned by the respondent, those cannot be said to be alternative suitable accommodation available to him. The respondent has averred he shall use the rooms on first floor as godown and, admittedly, the second floor has no accommodation as is a mumti. The petitioner on the other hand, has not filed any site plan contradicting to the site plan filed by the respondent in eviction proceedings.

10. A reference of the petitioner to the photographs annexure P9 viz. the space purportedly to be used as showroom is lying sealed, since the property is in a residential locality is incorrect as such photographs depict firstly there are shops in adjoining properties and secondly the notice of New Delhi Municipal Council, affixed on the property is not qua any alleged misuser, but is qua non payment of the property tax. It is averred by the respondent he is already seized of the matter and is pursuing with the concerned department. Even otherwise, the petitioner should have no concern with the dispute a landlord has with his assessing authorities.

11. Qua the challenge to ownership of the respondent as also to relationship of owner-tenant between the parties, the learned Trial Court has noted the respondent has purchased the subject property from one Jitender Kumar Sachdeva and Smt. Iqbal Kaur, predecessors in title vide registered a sale deed dated 02.06.2012. A copy thereof has been placed on record and thus the respondent has become the sole and absolute owner of the premises in question. Admittedly, the petitioner has not denied the execution of the sale deed in favour of the respondent by the predecessors in title. His assertion that the respondent was unemployed and a student at the time of the purchase of the property and hence the transaction is hit by the provisions of the Benami Transactions (Prohibition) Act is a frivolous argument. All that the respondent need to show in these proceedings is the respondent/owner has a better title than the tenant/petitioner and nothing more. The respondent is not obliged to prove absolute ownership as is required under the Transfer of Property Act, since this is not a lis determining his title.

12. The respondent has proved his title by filing a copy of the registered sale deed dated 02.06.2012 on record. The issue qua attornment raised by the petitioner is no longer res-integra and is settled in Krishna Devi Sharma thr. LRs & Anr. vs. Yadukul Guglani & Ors. RC. Rev. 568/2015. Further in Gopal Kishan vs. Ram Saroop RC. Rev. No. 443/2017 and in Vijay Sharma vs. Namita Aggarwal RC. Rev. 422/2017 the Court has rather held the attornment is not required.

13. Qua the contention the husband of the petitioner had paid refundable securities in the sum of Rs. 5.40 Lac (for two shops i.e. Rs. 40,000/- in the year 1975 and Rs. 5.00 Lac in the year 1988) to the predecessor in title, but there is nothing on record to prove the said allegation. Rather in his reply to the notice issued by the respondent, the petitioner has admitted she became a tenant in respect of shop in question after the death of her husband and has not whispered anything about alleged two tenancies. Even otherwise, as rightly observed in Govind Ram vs. Godha Ram 1979 (2) RCR 255 even two rooms let out at different occasions under separate rent notes can be got evicted on a single application for eviction which was found to be maintainable.

14. Yet another contention is after the death of Mr. Rattan Kumar, the tenancy rights had devolved upon the petitioner, her son and her two daughters who all are carrying commercial activities, but are not impleaded, is also of no use since the landlord is not required to implead all the LRs of deceased tenants, as interests of all the legal heirs who have inherited the tenancy as joint tenants can be duly represented by one legal heir who rather acts as an agent of others. The legal heirs are not tenants in common, thus if any of the legal heirs is not made a party to the proceedings, the heir who is on board would represent the tenancy.

15. The possession of the shop in question, admittedly, is taken over by the respondent on 30.08.2018 in execution proceedings, hence even otherwise, this petition has become infructuous.

16. I see no infirmity in the impugned order passed by the learned Trial Court. The petition being devoid of merit, is accordingly dismissed. The pending application also stands disposed of.


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