Surinder Kumar & Ors. vs Bhagwan Dass Nasa Through Lrs. & ...
2011 Latest Caselaw 4022 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 18.8.2011


+ CM (M) No.1556/2010 & CM Nos.11091/2005, 15042/2010




SURINDER KUMAR & ORS.                           ..........Petitioners
                Through:              Mr.J.C.Mahendroo, Advocate.

                    Versus

BHAGWAN DASS NASA THROUGH L.Rs. & ORS.
                            ..........Respondents

                           Through:   Mr.Himal       Akhtar           with
                                      Mr.Arshad Ali, Advocate.

                           AND


CM (M) No.1557/2010 & CM Nos.14257/2005, 16013/2009,
1504/2010
CM (M) No.1558/2010 & CM Nos.14282/2005, 15040/2010
CM (M) No.1559/2010 & CM Nos.14262/2005, 15042/2010



BRIJ BHUSHAN SETHI                          ...........Petitioner
                Through:              Mr.J.C.Mahendroo, Advocate.

                    Versus

BHAGWAN DASS NASA THROUGH L.Rs. & ORS.
                                  ..........Respondents
               Through: Mr.Himal       Akhtar      with
                        Mr.Arshad Ali, Advocate.




Cm(m) Nos.1556-1559/2010                               Page 1 of 15
 CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. These are the four petitions preferred under Article 227of

the Constitution of India impugning the common order passed by

the learned Additional Rent Control Tribunal (ARCT ) dated

13.5.2005. Learned ARCT had endorsed the findings of the

Additional Rent Controller (ARC) dated 14.5.2003.

2. Facts as emanating are as follows:

i.Nanak Singh was the erstwhile owner and landlord of the

suit premises i.e. the property being No.2, Shivpuri,

Patpatganj, Delhi which compromises of tenanted

accommodation. He had agreed to sell this property vide

agreement to sell dated 16.12.1981 for a consideration of

Rs.76,000/- to Ajit Singh; thereafter he had entered into a

subsequent agreement to sell with Brij Bhushan Sethi, for

which a separate suit being suit No.235/1981 had been filed.

Nanak Singh expired on 06.5.1981. His sole surviving

daughter Gurmeet Kaur compromised the civil suit.

Pursuant thereto Brij Bhushan Sethi returned all documents

relating to this transaction back to Gurmeet Kaur. Gurmeet

Kaur had thereafter sold this property to Bhagwan Dass

Nasa through her attorney holder Ram Kishan. The new

owner i.e. Bhagwan Dass Nasa along with Gurmeet Kaur

had thereafter filed the present eviction petitions( six in

number) against their tenants under Sections 14(1)(a) and

14(1)(j) of the Delhi Rent Control Act (hereinafter referred

to as 'the DRCA').

ii. Brij Bhushan Sethi in his defence did not dispute that he

had in fact entered into a compromise arrangement with

Gurmeet Kaur pursuant to which the documents purported

to have been executed by the parties had been taken back

by Gurmeet Kaur; this was vide a deed of compromise dated

16.5.1981 (Ex.A-37).

iii. Record further shows that a will dated 10.8.1973 had

been executed by Nanak Singh in favour of his daughter

Gurmeet Kaur; this document has been proved as Ex.A-47

vide Ex.A-38. Nanak Singh had addressed a communication

to Brij Bhushan Sethi (dated 31.8.1973) informing him that

by a General Power of Attorney executed in favour of his

daughter Gurmeet Kaur; she had been authorized to collect

all rents of the aforenoted suit property on his behalf;

further request was that all payments henceforth be made to

her. As noted supra this communication is of the year 1973.

iv. Oral and documentary evidence was led. The fate of the

six eviction petitions was as follows:-

i. Eviction Petition no.10/1983 Bhagwan Dass Nasa Vs.Brij Bhushan Sethi-

This was a petition under Sections 14(1)(a) and

14(1)(j) of the DRCA. The claim under Section 14(1)(j)

had been dismissed; notice Ex.A-2 dated 4.10.1982

had not been denied; respondent had also noted

denied that he was in arrears of rent w.e.f. 01.6.1981.

Admittedly respondent has not paid or tendered the

rent within two months from the date of the service of

this demand notice; 14(1)(a) stood proved against him;

on 16.4.1985 orders under Section 15(1) of the DRCA

had been passed directing the tenant to pay the rent.

However, since this was a case of first default; benefit

of section 14(2) of the DRCA had been granted.

ii. Eviction Petition No.11/1983, Bhagwan Dass Nasa Vs. Brij Bhushan Sethi -

This petition has been filed under Section

14(1)(a) and 14(1)(c) of the DRCA. Grounds under

Section 14(1)(c) stood dismissed; demand notice Ex.A-

5 and its receipt Ex.A-6 had stood proved. The

deposition of RW-1 had evidenced that rent had been

paid by the tenant only up to 01.6.1981. Order under

Section 15(1) of the DRCA had been passed on

16.3.1985; this being a case of first default benefit

under Section 14(2) of the DRCA had been granted to

the tenant.

iii. Eviction Petition No.12/1983 Bhagwan Dass Nasa Vs. Surinder Singh (substituted by his LEGAL HEIRS Brij Bhushan Sethi) -

This petition had been filed under Section

14(1)(a) of the DRCA. Demand notice Ex.A-11 dated

04.10.1982 had been served upon the tenant; AD card

and certificate of posting had been proved as Ex.A-12

to Ex.A-14. Testimony of RW-1 showed that the rent

had been paid only up to 01.6.1981; order under

Section 15(1) of the DRCA had been passed on

16.3.1985; however this being a case of first default

the matter had been kept for consideration of benefit

under Section 14(2) of the DRCA.

iv. Eviction Petition No.23/1983, Bhagwan Dass Nasa Vs. Ajit Singh-

This eviction petition had been filed under

Section 14(1)(a) and 14(1)(j) of the DRCA. On both

counts the landlord was granted eviction order; this

was under Section 14(1)(a) as also under Section

14(1)(j) of the DRCA was decreed. The ARC on the

basis of the evidence led had noted that in spite of

notice dated 08.10.1982 rent has not been tendered

by the tenant from September 1981; benefit of Section

14(2) of the DRCA had already been given to the

tenant in an earlier eviction petition i.e. Eviction

Petition No.261/1970 vide order dated 08.10.1970

which has been proved as Ex.PX-P10. The ARC had

further noted that on 16.3.1985 order under Section

Section 15(1) of the DRCA had been made. In spite of

the demand notice dated 08.10.1982 no rent was paid

by the tenant; in fact no rent was paid after

September 1981; benefit of first default had already

been given to the tenant vide order dated 08.10.1970

(Ex.PX-P10). This is not disputed by the tenant. The

tenant thus being in arrears of rent for three

consecutive months and the rent not having been

tendered within two months from the date of the

service of the notice as also the fact that the benefit of

Section 14(2) had already been given to the tenant,

the ARC had passed eviction order under Section

14(1)(a) of the DRCA. On the ground of substantial

damage contention of the landlord was that the tenant

had constructed two rooms measuring 20x3 feet and

17x6 feet; Civil Suit for mandatory injunction i.e. the

Suit No.839/1975 had been filed which had been

decreed on 25.8.1977; the tenant had been directed to

demolish this unauthorized construction. The appeal

against this order had led to a compromise; appeal

was disposed of in terms of this compromise dated

05.12.1978 wherein the tenant had agreed to pay

Rss.1380/- as damages as also licence fee of Rs.40/-

per month for this additional construction with a

further undertaking that he would not raise any other

construction or encroachment upon any other portion

of the property. Further contention of the landlord

was that even thereafter unauthorized construction

was raised on the first floor of the premises by putting

asbestos sheets; bathroom and latrine was made. This

unauthorized construction has been depicted in the

site plan Ex.PW-7/6 in green colour. Evidence led on

this score had been held to be substantiated and was

relied upon by the ARC. This evidence as noted supra

led by the landlord had been held to be credible and

eviction order under Section 14(1)(j) had also been

passed against the tenant.

3. The other two eviction petitions i.e. the Eviction Petition

No.13/1983 and Eviction Petition No.52/1996 are not the subject

matter of the present case.

4. All these findings of the ARC were endorsed in toto by the

ARCT. ARCT had again examined the respective cases of the

parties as put forth by them and had endorsed the finding of the

ARC.

5. The aforenoted petitions under Article 227 of the

Constitution have now been preferred impugning the order of the

RCT. The main grievance of the petitioner is that the proceedings

before the Rent Controller can be entertained only once it is

agreed between the parties that there does exist a relationship of

landlord and tenant between the parties; this was a disputed

factum; contention of the tenant is that after the death of Nanak

Singh although Gurmeet Kaur had put forth herself as the sole

legal heir of Nanak Singh yet this was not correct and the other

legal heirs whose affidavits had been filed on record had not been

proved in accordance with law; they had not come into witness

box; the title of Gurmeet Kaur was under a cloud; her subsequent

sale of this property in favour of Bhagwan Dass Nasa was thus a

void transaction; the tenant did not recognize either Gurmeet

Kaur or Bhagwan Dass Nasa as his landlord; these being disputed

questions of fact, they could not be decided by the ARC; they

could only be adjudicated upon by a Civil Court. To support this

submission learned counsel for the appellant has placed reliance

upon a judgment of the Apex Court reported in V(2004) SLT 187

Vijay Lata Sharma Vs. Rajpal & Anr. Reliance has also been

placed upon 1998 X AD(SC0 105 Satish Kumar Grover Vs.

Surinder Kumar Grover; as also another judgment reported in AIR

1982 (SC) 1213 Devi Das Vs. Mohan Lal; for the same proposition

reliance has also been placed upon 2005 1 AC(Delhi) 83 MCD Vs.

Harish Chander & Ors. Submission is that where the original

landlord has died, and there is a dispute about the title of the next

new landlord, this dispute cannot be adjudicated upon by the

ARC; the Civil Court alone could have decided this; ARC delving

into this controversy has committed an illegality; this finding has

been upheld by the RCT which finding being illegal is liable to be

set aside.

6. Arguments have been refuted. It is pointed out by learned

counsel for the respondent that apart from the fact that this Court

is sitting in a supervisory jurisdiction under Article 227 of the

Constitution, it is not an appellate forum; even otherwise on

merits, the two concurrent findings of fact call for no interference.

7. Record has been perused. Admittedly Nanak Singh was the

owner of the entire property i.e. 2 Shiv Puri, Patpatganj, Delhi.

He had left a will dated 10.8.1973 in favour of his sole surviving

class-I legal heir i.e. his daughter Gurmeet Kaur. As per her

averment she was his only legal heir. This was substantiated by

Ex.A-38 dated 31.8.1973 which was communication written by

Nank Singh to Brij Bhushan Sethi confirming that vide a power of

attorney his sole legal heir Gurmeet Kaur would be entitled to

receive rents on his behalf and henceforth all rents should be paid

to her. This document as noted supra is of the year 1973. That

apart the brothers and sister of Nanak Singh had also filed their

affidavit (mark H,I,J & K) to support this submission that Nanak

Singh had left behind no other class-I legal heir. The tenant in

these circumstances had no right to lay any challenge to the will

executed by deceased Nanak Singh in favour of Gurmeet Kaur;

the will had also been duly proved as Ex.A-47. One attesting

witness had been examined as PW-3 Kartar Singh. PW-6 Didar

Singh was yet another attesting witness. In the judgment

reported in 1991 RLR 322 Ishwar D. Rajput Vs. Chaman P.Puri a

Bench of this Court relying upon the observation of the Supreme

Court in a judgment reported in 1977(2) SCC 814 Kanta Goel Vs.

B.P.Pathak had held that the Rent Controller has no jurisdiction

to allow a tenant to lay challenge to a will of the deceased

landlord. Gurmeet Kaur being the sole surviving legal heir of her

deceased father had thereafter vide sale deed Ex.A-23 sold this

property in favour of Bhagwan Dass Nasa in November 1982. This

was a registered document and was proved through the version of

PW-2, who had been summoned from the Office of the Sub-

Registrar, Kashmere Gate.

8. The notices of demand in all the eviction petitions (as noted

supra) had been proved; in Eviction Petition Nos.10/1983, 11/1983

and 12/1983 benefit of Section 14(2) of the DRCA had been

granted as this was a case of first default.

9. In Eviction Petition No.23/1983 benefit under Section 14(2)

of the DRCA already being been given to the tenant in an earlier

eviction petition {no.261/1970 decided on 08.10.1970 (Ex.PX-

P10)} and this being a case of three consecutive defaults eviction

order under Section 14(1)(a) of the DRCA had been passed. A

decree under Section 14(1)(j) of the DRCA had been passed;

substantial damage to the property had been proved through the

testimony of PW-4 and Pw-7; the site plan Ex.A-17 had depicted

the unathorised construction.

10. The RCT had noted all these facts in the correct perspective;

it had endorsed the finding of the ARC noting that the registered

will of Nank Singh Ex.A-47 stood proved coupled with the

intimation (Ex.A-38) given by Nanak Singh to his tenants during

his lifetime that even during his life time Gurmeet Kaur as his sole

legal heir was entitled to receive the rents of the property being

his daughter; RCT had rightly noted that Gurmeet Kaur had the

right to transfer this property she had done so by executing

Ex.A-23 in favour of Bhagwan Dass Nasa. Further Gurmeet Kaur

had been arrayed as a petitioner only by way of an abundant

precaution.

11. As a last ditch effort, learned counsel for the

tenant/petitioner has submitted that the suit for mandatory

injunction filed by the plaintiff had been decreed on 25.8.1977;

this decree had been modified by the appellate court on

05.12.1978; in terms thereof this had created a fresh tenancy;.

the eviction order passed in the eviction petition suffers from an

infirmity as new terms of tenancy had now been created. To

support this submission learned counsel for the petitioner has

drawn attention of this Court to the order dated 05.12.1978

passed by the appellate court where for the user of the

unauthorized construction the tenant had agreed to pay Rs.40/-

per month.

12. This submission of the learned counsel for the petitioner is

bereft of any force. The tenant in terms of this compromise had

agreed to pay a sum of Rs.40/- per month as user charges for the

additional construction which had admittedly been carried out by

him; that additional construction which had been made had been

condoned by the landlord up to that extent; this order of the

appellate court creating a fresh tenancy between the parties does

not arise.

13. It has further been urged by the learned counsel for the

petitioner that this ground had also been urged before the ARCT

but was not answered. An appeal before the ARCT is an appeal

under Section 38 of the DRCA which is an appeal only on a

substantial question of law; facts cannot be looked into by the

ARCT; these facts were thus rightly not adverted to by the ARCT.

14. This court is sitting in supervisory jurisdiction. It is not an

appellate forum. The right of second appeal under Section 39 of

the DRCA has now been abrogated; the supervisory jurisdiction of

this court is not a substitute for an appellate forum; unless and

until there is a patent illegality or a manifest error apparent on

the face of the record which has caused a grave injustice to

another, interference is not warranted. This is not one such case

where interference is called for.

15. The judgments relied upon by the learned counsel for the

appellant are all distinct. In the judgment of Vijay Lata Sharma

(supra) the Apex Court had noted that where the original landlord

had died and there was a dispute inter se between the legal heirs;

it was not for the tenant to make a final decision as to who would

be his landlord. This judgment is wholly inapplicable. The

judgment of Satish Kumar Grover (supra) is also distinct; this was

a case where again there was a dispute inter se between the legal

heirs of the deceased; in the present case there is only one class-I

legal heir; apart from Gurmeet Kaur no one is staking any claim to

the property of Nanak Singh. In the judgment of Devi Dass

(supra) the Apex Court had noted that where the purchase was

based on a sham transaction the tenant was held entitled to stake

his objections to it. In the case of Harish Chander (supra) there

were again rival claims to the title of the property of the erstwhile

landlord; in these circumstances court had noted that the proper

court would be the Civil Court to adjudicate on such a disputed

title. This is not so in the instant case.

16. Petitions are without any merits. Dismissed.

INDERMEET KAUR, J.

AUGUST 18, 2011 nandan