Alexender vs Bhawani Shanker
2012 Latest Caselaw 1907 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on : 15.03.2012
                            Judgment delivered on : 20.03.2012

+                 C.R.P. 351/1996


ALEXENDER                                            ..... Petitioner
                           Through:   Mr.Sameer Deewan, Advocate.

                  versus


BHAWANI SHANKER                                      ..... Respondent
                           Through:   Mr.Manoj Goel and Mr.
                                      Jagmohan Sharma, Advocates.



      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 The impugned judgment is dated 02.01.1996. The eviction

petition filed by the landlord Alexender seeking eviction of his tenant

Bhawani Shanker from the premises bearing No. 91, New Lahore

Colony, Shastri Nagar, Patpar Ganj Road, Delhi under Section 14 (1)(e)

of the Delhi Rent Control Act (DRCA) on the ground of bonafide

requirement had been dismissed.

2 Record shows that the petitioner claims himself to be the

owner/landlord of the aforenoted premises; premises have been tenanted

out to the tenant at a monthly rent of Rs.25/-; letting out was on

01.01.1972 for a residential purpose; contention of the petitioner in the

eviction petition was that the petitioner requires the premises for himself

and for his family members; he has no other alternative accommodation;

further contention was that the tenant is also a habitual defaulter in

payment of rent; eviction petition was accordingly filed.

3 Written statement had opposed these submissions. Contention

was that the petitioner has no locus-standi to file the petition; further

contention being that the respondent had come into possession of the

vacant land and invested a sum of Rs.2,000/- on the construction of this

room; it was denied that the landlord was the owner of the disputed

premises; contention being that the tenant is in occupation of the suit

premises since 1968 and with his money he had constructed a room

upon it where he is living since the year 1968. Petition is not

maintainable.

4 Thereafter certain subsequent facts were brought on record which

were to the effect that the petitioner had sold the property No. 88, New

Lahore Colony, Shastri Nagar to one Raj Rani; that property had been

constructed on a plot of 100 square yards whereas the present premises

is only on a plot of 50 square yards; the father of the petitioner along

with his wife are residing in Chandigarh; the petitioner also has a

property at Chandigarh as also a three bed room flat at Dilshad Garden

which he had purchased after the sale of his property No.88, New

Lahore Colony, Shastri Nagar, Patpar Ganj Road, Delhi. In reply to this

application, these contentions had been denied; it was contended that

house No. 88, New Lahore Colony, Shastri Nagar, Patpar Ganj Road,

Delhi was in the name of M. James who was his father who had expired

on 30.07.1991; it was denied that the petitioner is living in Chandigarh

or his acquired a three bed room flat at Dilshad Garden; contention

being that this property is owned by his father; further contention being

that he is living in house No. 230, GTB Enclave, Nand Nagar, Delhi

along with his mother.

5 Oral and documentary evidence was led. Relevant would it be to

state that the petition was initially dismissed by the ARC on 02.04.1981

but in revision the High Court vide order dated 06.07.1983 remanded

the matter back to the ARC which has led to the impugned judgment.

Gamut of the evidence which was led including the testimony of the

petitioner himself, six other witnesses besides him had been examined.

The respondent has examined five witnesses.

6 The contentious issue was that whether the parties shared a

landlord-tenant relationship. The petitioner (AW-1) had examined

himself in the first instance; his testimony was to the effect that he had

let out the premises to the tenant on 01.01.1972 at a monthly rent of

Rs.25/-. Ex. AW-1/10 was a notice purported to have been issued by the

petitioner to his tenant on 06.02.1975 wherein it was stated that the

respondent was a tenant there for the last four years i.e. since

January/February, 1971; arrears of rent in the sum of Rs.300/- had been

demanded w.e.f. 01.02.1972 to 31.01.1975 which at the rate of Rs.25/-

would only be arrears for one year whereas this notice Ex. AW-1/10 had

specifically quantified that the petitioner was in arrears of rent for the

last three years; this uncertain and confused stand of the petitioner was

noted by the ARC; in his cross-execution he had stated that in the

beginning tenant had paid him rent for 5-6 months which was contrary

to his earlier stand wherein he had stated that the tenant had paid him

rent only for January 1972 and never thereafter; Kundan Lal (AW-5)

who had deposed that the parties were known to him; he was living in

the No.91 (front portion) house; he had purportedly thus purchased

house from Pawan Kumar in 1972; as per his version, the respondent

was inducted as his tenant about two years prior thereto; meaning

thereby that he was his tenant from 1970 two years prior to 01.1.1972;

this was in clear contrast to the version of the landlord (AW-1) who had

stated that the respondent was inducted as a tenant w.e.f. 1.1.1972;

AW-5 had also purchased his portion in 1972; as such the respondent

being the tenant in his house in 1970 (i.e. prior to his purchase) is

clearly a false stand. Testimony of witnesses on both sides had been

marshaled by the trial Judge; it has also been noted that Bal Kishan

Aggarwal (PW-1), had also not supported the stand of the petitioner;

PW-1 had stated that AW-5 had in fact let out his portion to Bhawani

Shankar (i.e. the tenant); his testimony was rightly discredited. The

testimony of Pyare Lal (PW-2) was also contradictory and was thus

rejected; he having no right, title or interest in the property was not in

position to settle the rent on behalf of the landlord. Testimony of M.

James (PW-5), the father of the petitioner was in contrast with the

testimony of the petitioner on the period for which rent has been paid by

the tenant; testimony of Sant Lal (AW-4) could not be read as although

he was examined in chief but his cross-examination could not be

concluded.

7 Ex.AW-1/1/ is the sale deed dated 14.11.1970 which has been

vehemently relied upon by the petitioner to substantiate his submission

that he is the owner of this property; perusal of this document also

shows that this makes a reference to a plot of land; vendor owning this

plot of land No.91 having purchased it from Himmata Ram; even

presuming that this document is a valid document, it only show that on

14.01.1970 the petitioner had purchased a plot of land from the vendor;

his further contention was that he had built the premises i.e. one room

with a latrine bathroom and thereafter w.e.f. from 01.01.1972 he had

tenanted out this property to the respondent; his submission was that this

construction had been carried out by his father James; his father James

(AW-5) and the petitioner (AW-1) had taken different stands on the

period for which rent had been paid; AW-5 had stated that the tenant

had paid rent only for the month of January, 1972 and thereafter he did

not pay any rent; rent receipt even of January, 1972 was not placed on

record. AW-1 in his cross-examination had however stated that the

tenant had initially paid rent for 5-6 months. Per contra, the contention

of the respondent was that he was in possession of this property since

the year 1968; he had placed on record an electoral roll for the year

1971 showing that even at that time he was a resident of the aforenoted

disputed premises. This document had been the subject matter of

scrutiny before the High Court on 06.7.1998 (on an application filed by

the tenant under Order 41 Rule 27 of the Code) seeking to place on

record the aforenoted electoral roll; concession had been given by the

landlord before the High Court wherein he had admitted that the tenant

was in possession of this premises even prior to 1972 but he was

occupying these premises as a tenant of Kundal Lal. Relevant extract

of the order of the High Court in this count reads herein under:

"In reply to the said application the respondent has not disputed that the appellant was in possession of the premises prior to 1972 but he was occupying the premises as a tenant of one Kundal Lal who had purchased a part of the premises No.91 Kundal Lal has appeared as A.W.5 but he had not stated that the appellant was his tenant any point of time. In these circumstances I am of the opinion that the application under Order 41 Rule 27 of the Code of Civil Procedure has to be allowed and the documents filed by the appellant have to be taken on record. The appellant obviously could not produce the said documents at an earlier point and he has categorically stated that they were not available to him and came into his possession very

recently. The documents are certified copies of the official records and cannot be doubted. In these circumstances I have no hesitation in allowing the said application."

8 It is thus clear that the version of the landlord was that prior to

1972 the tenant was a resident of the tenanted premises but in his

capacity as a tenant of Kundal Lal, Kundan Lal as noted supra has come

into witness box and has stated that he had purchased this property in

1972 from Pawan Kumar and the present tenant was his tenant two years

prior thereto i.e. w.e.f. 1970; this version of Kundan Lal was rightly

discarded by the courts below as he having purchased this property only

in 1972 could not have inducted a tenant in the premises in the year

1970. The electrol roll taken on record had proved the presence of the

tenant even in the year 1971. RW-1 had also produced documentary

evidence which was the birth certificate of his son (Ex.RW-1/1)

showing that the son of the respondent who was born in the year 1970

was borne at this residence i.e. the disputed premises establishing his

submission that he was residing in this property since 1968.

9 The sale deed relied upon by the petitioner Ex. AW-1/1 to

substantiate his submission that he had purchased this property from

Pawan Kumar was also disbelieved for the reason that Pawan Kumar

had not deposed a single word that he had handed over the vacant

possession of the land to the petitioner; moreover the sale deed was of a

'plot' and not a 'premises'; the provisions of DRCA were not attracted.

10 After a detailed appreciation of the evidence, the trial Judge had

returned a finding that there was no relationship of landlord-tenant

between the parties; the petitioner having failed to discharge this onus.

For want of a relationship of landlord-tenant between the parties, this

petition had been dismissed.

11 This Court is sitting in its power of revision. The Apex

Court in AIR 1999 SC 2507 Shiv Sarup Gupta Vs. Dr. Mahesh Chand

Gupta, the Apex Court in this context had noted herein as under:-

"The revisional jurisdiction exercisable by the High Court under Section 25-B (8) is not so limited as is under Section 115 CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it may enter into re-appraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one

that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub- Section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

12 In this background the impugned judgment holding that the

parties did not share a relationship of landlord-tenant which thus vested

no jurisdiction in the Rent Controller suffers from no infirmity. Petition

is without any merit. Dismissed.

INDERMEET KAUR, J MARCH 15, 2012 A