Sh. Ram Kumar vs Sh. S.K. Gulati
2013 Latest Caselaw 4164 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 16th September, 2013

+                            RFA No.438/2013
       SH. RAM KUMAR                                      .....Appellant
                   Through:            Mr. G.S. Raghav and Mr. Pankaj
                                       Kumar, Advs.

                                   Versus
       SH. S.K. GULATI                                    ..... Respondent

                      Through:         Mr. Sanjeev Sindhwani, Sr. Adv. with
                                       Mr. Siddhart Aggarwal, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

Caveat No.810/2013.

1. The counsel for the caveator appears. The caveat stands discharged.

CM No.14445/2013 (for exemption).

2. Allowed, subject to just exceptions.

3. The application stands disposed of.

RFA No.438/2013 & CM No.14444/2013 (for stay).

4. This appeal impugns the judgment and decree dated 8 th August, 2013

of ejectment of the appellant from shop No.103-B, 1st Floor, Meghdoot

Building, 94 Nehru Place, New Delhi earlier in the tenancy of the

appellant/defendant and for recovery of mesne profits/damages for use and

occupation from the appellant/defendant.

5. The counsel for the appellant/defendant on enquiry states that copies

of the entire relevant Trial Court record have been filed along with the

Memorandum of Appeal. With the consent of the counsels the appeal has

been heard finally.

6. The counsel for the appellant/defendant has argued that the

respondent/plaintiff is not entitled to a decree for ejectment because (i) the

respondent/plaintiff is not the owner of shop No.103-B supra in the tenancy

of the appellant/defendant; (ii) the respondent/plaintiff is not the landlord of

the shop in the tenancy of the appellant/defendant; and, (iii) the tenancy of

the appellant/defendant has not been determined.

7. Even though the aspect of termination of tenancy ordinarily ought to

be discussed after the aspect of existence of relationship of landlord-tenant

but considering the way the argument thereon has turned, I am taking up the

aspect of determination of tenancy first.

8. The counsel for the appellant/defendant has argued that the Addl.

District Judge has on the aspect of determination of tenancy relied on

Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) 2011

(183) DLT 712 laying down that service of summons of the suit is sufficient

service of the notice upon the defendant of the landlord not wanting to

continue with the defendant as a tenant.

9. Upon attention of the counsel for the appellant/defendant being

invited to the fact that Jeevan Diesels & Electricals Ltd. supra is based on

the judgment of the Supreme Court in Nopany Investments (P) Ltd. Vs.

Santokh Singh (HUF) (2008) 2 SCC 728, also followed by the Division

Bench of this Court in Sri Ram Pistons & Rings Ltd. Vs. C.B. Agarwal

HUF MANU/DE/2381/2008, the counsel for the appellant/defendant though

not controverting the said position contends that Nopany Investments (P)

Ltd. is a judgment of a two Judge Bench of the Hon'ble Supreme Court and

though has noticed the earlier judgment of the seven Judge Bench of the

Supreme Court in V. Dhanapal Chettiar Vs. Yesodai Ammal (1979) 4 SCC

214 but in so far as holds so is contrary to V. Dhanapal Chettiar. Attention

is invited to paras 5 & 6 of V. Dhanapal Chettiar to contend that the same

lays down that until and unless the lease is determined, the lessee is entitled

to continue in possession. It is argued that the law as laid down in Nopany

Investments (P) Ltd. to the effect that no determination of tenancy prior to

the institution of the suit is necessary, is contrary to the judgment of the

Constitution Bench in V. Dhanapal Chettiar and this Court should follow V.

Dhanapal Chettiar and not Nopany Investments (P) Ltd. Else, it is not

disputed that Supreme Court in Nopany Investments (P) Ltd. has held that

filing of an eviction suit under the general law itself is a notice to quit on the

tenant and that no notice to quit under Section 106 of the Transfer of

Property Act, 1882 was necessary in order to enable the respondent in that

case to get a decree for eviction against the appellant.

10. The question, for determination of which a Bench of seven Judges

was constituted in V. Dhanapal Chettiar, was whether in order to get a

decree of eviction against a tenant under any State Rent Control Act it was

necessary to give a notice under Section 106 of the Transfer of Property Act.

The said question was answered by holding that no notice to quit under

Section 106 of the Transfer of Property Act was necessary to enable the

landlord to get an order of eviction under the State Rent Control Act. While

holding so, the Supreme Court observed:-

"that the action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order or decree for eviction; until then, under the extended definition of the word

„tenant‟ under the various State Rent Acts the tenant continues to be a tenant even though the contractual tenancy has been determined by giving a valid notice under Section 106 of the Transfer of Property Act ....... The giving of the notice, therefore, is a mere surplusage and unlike the law under the Transfer of Property Act it does not entitle the landlord to evict the tenant"

11. It would thus be seen the question, whether filing of an eviction suit

under the general law itself is a notice to quit on the tenant, as answered in

affirmative in Nopany Investments (P) Ltd. did not arise for consideration in

V. Dhanapal Chettiar. It is a settled principle of law that a judgment is a

precedent on what is for decision therein and what it decides and not on

what can be inferred thereform. (See Bhavnagar University Vs. Palitana

Sugar Mill Pvt. Ltd. (2003) 2 SCC 111, Bharat Forge Co. Ltd. Vs. Uttam

Manohar Nakate (2005) 2 SCC 489 and Inderpreet Singh Kahlon Vs. State

of Punjab AIR 2006 SC 2571)

12. I am therefore unable to find any case of inconsistency in the two

judgments, as is argued.

13. Moreover it is not the case of the appellant/defendant that he has a

registered contract for continuing as a tenant in the premises. In the absence

thereof, the tenancy of the appellant/defendant would be a month to month

tenancy, terminable by 15 days notice. The purpose of such a notice of

determination of tenancy is to inform the tenant that the landlord does not

desire to continue with the tenancy and to give time to the tenant to vacate

the premises and deliver possession thereof. The suit from which this appeal

arises was filed in or about October, 2008 and has finally been decreed after

nearly five years on 8 th August, 2013. The appellant/defendant immediately

on service of summons of the suit, which may have happened in

October/November, 2008, had notice that the landlord was not wanting to

continue with him as a tenant. The appellant/defendant has had more than

sufficient notice of such intent and desire of the landlord i.e. of nearly five

years instead of 15 days only as required by law and cannot after five years

be heard to say that he has not had notice. Service of notice is after all means

to an end and when the Courts find that the tenant during the long pendency

of the suit has had enough notice, it would be travesty of justice to non-suit a

landlord after so many years on the ground of service of notice of

determination of tenancy having not been proved. Notice, in such a situation,

in my view becomes a surplusage. The only effect of non-proof of notice in

such a case can be to disentitle the landlord from mesne profits/damages for

use and occupation at a rate higher than the last paid rent for the period till

the service of the summons of the suit, and no other. In the present case the

mesne profits/damages for use and occupation have been awarded at the rate

of last paid rent only and thus that question also does not arise.

14. Be that as it may, the learned Addl. District Judge in the present case

has not based the finding on the aspect of determination of tenancy on

Jeevan Diesels & Electricals Ltd. alone. The judgment and decree have

been made after recording of evidence and on the basis of which evidence a

finding of fact of service on the appellant/defendant by registered post AD

of a notice of determination of tenancy has been rendered. The AD card of

delivery of the said notice on the appellant/defendant bearing the signatures

of one Shri Rakesh was returned to the Advocate for the respondent/plaintiff

who had issued the said notice. It has come during the cross examination of

the appellant/defendant that Shri Rakesh is the brother of the

appellant/defendant. The only plea of the appellant/defendant and which has

not been accepted by the learned Addl. District Judge is that the said Shri

Rakesh had no authority to receive the postal articles in the name of the

appellant/defendant.

15. I have as such enquired from the counsel for the appellant/defendant

as to what is wrong with the aforesaid factual finding. The rules of the Post

Office allow delivery of registered postal articles on adult family members.

Once the notice has been delivered at the premises of the

appellant/defendant and has been received by the brother of the

appellant/defendant, the same is due service of notice.

16. The counsel for the appellant/defendant candidly admits that he has no

argument to challenge the aforesaid factual finding and his only argument is

of the notice given by the respondent/plaintiff being defective for the reason

of the respondent/plaintiff being not the landlord.

17. Once that is so and a notice of determination of tenancy is admitted to

have been served on the appellant/defendant, the challenge on the ground of

inconsistency between Nopany Investments (P) Ltd. and V. Dhanapal

Chettiar even otherwise disappears.

18. The respondent/plaintiff in the plaint, on the aspect of relationship of

landlord and tenant, had pleaded:-

(a). that initially the entire shop No.103 was taken on rent by the

appellant/defendant and the respondent/plaintiff jointly at a

monthly rent of Rs.20,000/- from Smt. Chander Mohini Jolly

and her son Shri Poonam Kumar Jolly;

(b). that the said shop was later on divided between the

appellant/defendant and the respondent/plaintiff and both of

them began to pay rent separately for their respective portions

and the rent was increased to Rs.12,000/- per month and the

appellant/defendant had so paid the rent till 31st March, 2008;

(c). that Smt. Chander Mohini Jolly, the allottee/owner of the shop

transferred the entire shop to the respondent/plaintiff and

informed the appellant/defendant of the same vide letter dated

25th March, 2008 and also asked the appellant/defendant to pay

rent to the respondent/plaintiff;

(d). that the appellant/defendant thus became a tenant under the

respondent/plaintiff, liable to pay rent at Rs.12,000/- per month

w.e.f. 1st April, 2008 and which he failed to pay; and,

(e). that the respondent/plaintiff thereafter as aforesaid determined

the tenancy.

19. The appellant/defendant in his written statement:-

(i). denied any relationship of landlord and tenant with the

respondent/plaintiff and claimed that he had never attorned to

the respondent/plaintiff as he never paid rent to him;

(ii). challenged the sale of the shop in favour of the

respondent/plaintiff;

(iii). pleaded that Shri K.R. Jolly was the owner of the premises

who died leaving behind his widow Smt. Chander Mohini Jolly,

five sons including Shri Poonam Kumar Jolly and three

daughters; Shri Poonam Kumar Jolly also died leaving behind

his widow Smt. Nupur Jolly and two sons;

(iv). the sons and daughters of Shri K.R. Jolly had not sold the shop

to the respondent/plaintiff; and,

(v). that Smt. Nupur Jolly was the landlady of the

appellant/defendant who used to receive rent from him and had

so received rent till 17 th March, 2008; prior to her, her husband

Shri Poonam Kumar Jolly used to receive rent.

20. The respondent/plaintiff in his replication inter alia pleaded, that Shri

K.R. Jolly had died in the year 1983 while the shop was initially let out to

the appellant/defendant and the respondent/plaintiff in the year 1994; that

though Smt. Chander Mohini Jolly had let out the shop but on her request

the rent was sometimes paid in the name of her son Shri Poonam Kumar

Jolly; that Smt. Nupur Jolly never had any right, title or interest in the

property and the rent if any paid to Shri Poonam Kumar Jolly or Smt. Nupur

Jolly did not make them landlords as the said payments were as per the

directions of Smt. Chander Mohini Jolly.

21. During the pendency of the suit, Smt. Nupur Jolly made an

application for being impleaded as a party to the said suit but which

application was dismissed vide order dated 20th October, 2009. The counsels

inform that neither Smt. Nupur Jolly nor any other heir of Shri K.R. Jolly or

Smt. Chander Mohini Jolly has since then asserted any rights as

owner/landlord of the part of the shop in the tenancy / occupation of the

appellant/defendant.

22. Vide the same order i.e. of 20th October, 2009 the application filed by

the respondent/plaintiff under Order 15A of the CPC (as introduced in

Delhi) was also allowed and the appellant/defendant was directed to pay

arrears of rent and future rent/ occupation charges and it is informed, has so

paid.

23. It has been enquired whether Smt. Nupur Jolly or any other member

of her family has laid any claim on the said rent.

24. The answer is in the negative.

25. The respondent/plaintiff in his evidence proved an agreement of

allotment of the said shop No.103 by the builder of the multi-storied

building in which the said shop is situated in favour of Smt. Chander Mohini

Jolly. The said agreement also contains notation of assignment of rights of

Smt. Chander Mohini Jolly therein and in shop No.103 in favour of the

respondent/plaintiff on 27th March, 2008.

26. The learned Addl. District Judge has on the evidence led held the

respondent/plaintiff to have proved a better title qua the property in his

favour and held it to have been established that Smt. Chander Mohini Jolly

was the owner of the shop and had assigned the same to the

respondent/plaintiff and the respondent/plaintiff was thus the landlord. It

was also held that the appellant/defendant had failed to examine Smt. Nupur

Jolly to prove in what capacity she was accepting the rent from the

appellant/defendant. Weightage has also been given to the fact that no

challenge to the title of the respondent/plaintiff had been made by any of the

heirs of Shri K.R. Jolly.

27. The counsel for the appellant/defendant relies on Brahma Nand Puri

Vs. Neki Puri AIR 1965 SC 1506 to contend that a plaintiff, to succeed in a

suit for ejectment, has to establish his title and if does not establish title,

must fail.

28. However the suit in the judgment aforesaid was a suit for recovery of

possession on the basis of title. The suit from which this appeal arises is not

for ejectment of the appellant/defendant or for recovery of possession of the

part of the shop from the appellant/defendant on the basis of title but on the

basis of relationship of landlord and tenant. It is the settled position in law

that in a suit between landlord and tenant, it is only the title as landlord

which is relevant and not the title as owner. As far back as in Sri Ram

Pasricha Vs. Jagannath (1976) 4 SCC 184 it was held that under the

general law, in a suit between landlord and tenant, the question of title to the

leased property is irrelevant. Recently also in State of Andhra Pradesh Vs.

D. Raghukul Pershad (2012) 8 SCC 584 it was held that relief of eviction

of a tenant is not based on the title of the landlord to the leased premises and

even if an averment to the said effect, of landlord being owner, is made in

the plaint, as long as no relief of declaration of title is claimed and only the

relief of eviction of tenant on the ground that lease has come to an end is

claimed, the Court is not called upon to decide the question of title. In the

said view of the matter, the reference by the counsel for the

appellant/defendant to Suraj Lamp & Industries P. Ltd. v. State of Haryana

(2012) 1 SCC 656 also is misconceived. In any case the said judgment, the

counsel for the appellant/defendant also agrees has been expressly made

prospective and the transaction in the present case is of a date prior thereto.

29. It is the further contention of the counsel for the appellant/defendant

that there is no registered document of title, neither in favour of Smt.

Chander Mohini Jolly through whom the respondent/plaintiff claims title as

landlord/owner nor from Smt. Chander Mohini Jolly in favour the

respondent/plaintiff.

30. The part of the shop in occupation of the appellant/defendant is an

'apartment' within the meaning of the Delhi Apartment Ownership Act,

1986. Section 4 thereof confers on every person to whom any apartment is

allotted, sold or transferred by the promoter, exclusive ownership and

possession of the apartment so allotted, sold or transferred. The said Act

envisages the execution of a 'Deed of Apartment' in favour of the owners of

the apartments and transfer of apartments through the Deed of Apartment.

Though the said legislation was brought nearly 25 years ago but the process

of execution of Deeds of Apartment in favour of allottees, transferees

purchasers of such apartments has not commenced and which led to filing of

a Public Interest Litigation being W.P.(C) No. 1959/2007 titled O.S. Bajpai

Vs. the Administrator (Lt. Governor of Delhi) in this Court, disposed of

vide judgment dated 28.05.2010 and in which certain other directions were

issued vide order dated 13.07.2012. However even the said directions are yet

to take shape. In the absence thereof, the apartments continue to be

allotted/sold by such documents as exist in favour of the

respondent/plaintiff.

31. This is as aforesaid, a litigation between the person claiming to be

having rights as owner in an apartment, and the tenant in occupation of the

apartment. Once it is found that the person claiming rights in the apartment

has rights as per the practice prevalent, even if there may be any

imperfections under the law with respect to such title, the said imperfections

cannot vest the tenant with a benefit against a person claiming such rights in

the apartment and such imperfections would not come in the way of such

person having rights in the apartment, exercising his rights as landlord

thereof.

32. In the present case not only has the agreement with respect to the said

shop in favour of Smt. Chander Mohini Jolly and assignment by Smt.

Chander Mohini Jolly of rights therein and in the shop No.103 in favour of

the respondent/plaintiff been proved but from the factum of none else

claiming adversely to the respondent/plaintiff with respect to the said shop

now at least for the last five years also, the title of the respondent/plaintiff as

landlord is established.

33. Though the counsel for the appellant/defendant has also referred to

paras 147 and 151 of the judgment of the Full Bench of the Calcutta High

Court in Ratanlal Bansilal Vs. Kishorilal Goenka AIR 1993 Calcutta 144

but neither is the same found applicable to the facts of the present case nor

has the counsel, except for citing the same, attempted to show as to how the

same is applicable.

34. The counsel for the appellant/defendant has next contended that the

respondent/plaintiff is not the landlord because the appellant/defendant has

never paid rent to the respondent/plaintiff or dealt with him as landlord.

35. I am afraid the aforesaid contention is also in oblivion of the settled

legal position. It has been held in Nalakath Sainuddin Vs. Koorikadan

Sulaiman (2002) 6 SCC 1, Mahendra Raghunathdas Gupta Vs.

Vishwanath Bhikaji Mogul (1997) 5 SCC 329 and Mohar Singh Vs. Devi

Charan (1988) 3 SCC 63 that on transfer of tenanted premises by the

landlord, the transferee automatically becomes the landlord of the tenant by

operation of law and the coming into being of the relationship of landlord

and tenant between the transferee and tenant is not dependent upon any overt

act on the part of the tenant. In the present case, no document of rights if

any in the said shop in favour of any other heir of Shri K.R. Jolly is shown

and thus payment of rent even if any by the appellant/defendant to any other

heir of Shri K.R. Jolly would be of no avail; as aforesaid, it has been

established that it was Smt. Chander Mohini Jolly who was the owner of the

said shop and who has assigned the same in favour of the

respondent/plaintiff and it is thus the respondent/plaintiff alone who will be

the landlord.

36. There is thus no merit in this appeal which is dismissed. However the

same having been disposed of expeditiously, no order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

SEPTEMBER 16, 2013 pp