Mr. Daulat Ram, Deceased Through ... vs Mr. Dhanpat Rai & Ors
2010 Latest Caselaw 447 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

             + RC. REV. 133/2009 and CM No.17344/2009

                                              Decided on 27.01.2010

IN THE MATTER OF :

MR. DAULAT RAM, DECEASED THROUGH LRs
                                                   ..... Petitioners
                        Through: Mr. O.P. Gulabari, Adv.

                   versus

MR. DHANPAT RAI & ORS             ..... Respondents
                   Through: None.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                   No

     2. To be referred to the Reporter or not?            No

     3. Whether the judgment should be                    No
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present petition is directed against the order dated

18.07.2009 passed by the learned Additional Rent Controller on a

petition preferred by the petitioners/tenants under Section 14 (1)(e)

read with Section 25-B of the Delhi Rent Control Act, whereunder an

eviction order was passed against him and in favour of the

respondents/landlords in respect of the tenanted premises, i.e., one

hall on the first floor of premises bearing No.2915/13, Bahadurgarh

Road, Teliwara, Delhi-110 006 along with roof thereof and staircase as

shown in the site plan(Ex.PW-1/1).

2. The petitioners/tenants have assailed the impugned order

on two counts. It is firstly stated by the counsel for the petitioners/

tenants that respondents/landlords deliberately failed to place on

record the site plan of property bearing No.4013, Gali Barna, Basti

Mansa Ram, Sadar Bazar, Delhi-110006 presently under their

occupation to show the extent of accommodation available with them.

Counsel for the petitioners/tenants states that the aforesaid argument

was taken by him before the learned Additional Rent Controller as

recorded in para 6 of the impugned order.

3. A perusal of the impugned judgment shows that in the

opening paragraph, the learned Additional Rent Controller took notice

of the averment of the petitioners (respondents herein) that they were

residing in the aforesaid premises at Sadar Bazar, which comprises of

one room and kitchen on the ground floor, two rooms on the first floor

and two rooms on the second floor with facility of toilet and bathroom.

Thereafter, the number of the petitioners (respondents/landlords),

their family members and their marital status was taken into

consideration, on the basis of the averments made in the eviction

petition.

4. In para 11 of the impugned judgment, the learned

Additional Rent Controller opined that the petitioners

therein(respondents/ landlords herein) had been able to show the

extent of accommodation available with them by giving the testimony

of PW-1 and that the respondents therein(petitioners/tenants herein)

were unable to assail the testimony of the PW1 by producing any

cogent and reliable evidence.

5. On inquiry from the counsel for the petitioners/tenants as

to whether the petitioners/tenants had either called upon the

respondents/landlords at any stage to produce the site plan of the

premises under their occupation or filed any application to the said

effect before the learned Additional Rent Controller, counsel for the

petitioners/tenants replies in a negative. That PW-1 stated in his

evidence the extent of accommodation available with the respondents,

is borne out from a perusal of the impugned order itself. PW-1 having

stated so in his deposition, the onus shifted upon the petitioners to

demolish the said testimony by producing evidence to the contrary,

either oral or documentary. Having failed to do so, there was no

reason for the Court below to disregard the testimony of PW-1 in that

regard. It therefore cannot be held that the respondents deliberately

did not file the site plan of the premises under their occupation to

establish the extent of accommodation available with them.

6. The second argument urged by the counsel for the

petitioners/tenants is that the learned Additional Rent Controller did

not take into consideration the fact that two separate tenancies were

created in respect of the premises in question in favour of the

predecessor-in-interest of the petitioner, Shri Daulat Ram (Deceased)

and Shri Hot Chand, respectively. In this regard, he seeks to rely on

the testimony of RW-1, Shri Hot Chand. Pertinently, the

petitioners/tenants have not placed on record a copy of the testimony

of RW-1. However, the testimony of RW-1 has been dealt with at

length in para 7 of the impugned judgment, wherein it was observed

by the learned Additional Rent Controller as below :

"7. Now let us discuss first, the issue of relationship of landlord and tenant. In the Written Statement filed on record the respondents have categorically submitted that mother of the petitioner nos.1 to 7 and petitioner no.8 had created the tenancy. The respondents have stated that subsequently a partition took place and thereafter two separate tenancies were created. In this regard, RW1, who is the only material witness examined by the respondents, has submitted in his cross- examination that he has not seen any partition deed in between Shanti Devi and Maya Devi. RW1 has further stated in cross-examination that no partition wall was raised and the premises are in the same situation in which it were let out. RW1 has stated further that he cannot say if the suit premises had never been partitioned in between Shanti Devi and Maya Devi till date. RW1 has admitted it to be correct that for the convenience of both the said ladies they used to pay rent separately @ Rs.50/- per month to Shanti Devi and Maya Devi. As such, I am of the opinion that Ld. counsel for the petitioners has rightly pointed out in written final arguments filed on record that there is no evidence of creating two tenancies and so called alleged partition. It has been further argued that respondents who have admitted about their induction as a tenant are estopped under law

from challenging the title the petitioners by virtue of Section 116 of the Indian Evidence Act. As such, I am of the opinion that relationship of landlord and tenant has been overwhelmingly proved by the petitioners on record."

7. Counsel for the petitioners/tenants states that the aforesaid

deposition of RW-1, Shri Hot Chand was made under some bona fide

confusion, he being an elderly person and that as a matter of fact, rent

was being paid separately by him and the petitioners @ Rs.50/- each

per month. In the teeth of the testimony of RW-1 himself that he was

not aware if the suit premises had been partitioned between Smt.

Shanti Devi, the predecessor-in-interest of respondents No.1 to 7 and

Smt. Maya Devi, respondent No.8, and that it was only for the

convenience of the ladies that the rent was being tendered separately

to them, the learned Additional Rent Controller was justified in turning

down such a plea sought to be raised by the petitioners. He cannot be

faulted in concluding that the petitioners/tenants were estopped in law

from claiming that there were separate lettings in respect of tenanted

premises. This Court finds no reason to differ with the aforesaid

conclusion of the learned Additional Rent Controller. The deposition of

RW-1 is clear and cannot be brushed aside on the ground of any

purported confusion on his part.

8. No other ground has been taken by the counsel for the

petitioner/tenant, apart from those noted herein above. It is therefore

held that the impugned order dated 18.07.2009 does not suffer from

any illegality, arbitrariness or perversity, which deserves interference.

The impugned order dated 18.7.2009 is upheld and present petition is

dismissed as being devoid of merits, along with the pending

application.

                                                        (HIMA KOHLI)
JANUARY 27, 2010                                          JUDGE
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