Delhi High Court
Kanchan Kapoor & Ors. vs Sarwan Kumar on 17 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RCR No. 338/2011 & CM Nos. 15924/2011 (stay)
% 17th November, 2014
KANCHAN KAPOOR & ORS. ......Petitioners
Through: Mr. J.S.Vohra, Adv.
VERSUS
SARWAN KUMAR ...... Respondent
Through: Mr. Vijay K. Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This rent control revision petition is filed under Section 25B(8)
of the Delhi Rent Control Act, 1958 (in short 'the DRC Act') impugning the
judgment of the of the Additional Rent Controller (ARC) dated 4.6.2011
which has dismissed the leave to defend application filed by the
petitioners/tenants and has decreed the bonafide necessity eviction petition
filed by the respondent/landlord under Section 14(1)(e) of the DRC Act with
respect to the tenanted premises being two rooms, store, kitchen, bathroom,
W.C on the ground floor together with one mezzanine room between ground
RCR No. 338/2011 Page 1 of 17
and first floor above the garage of the property bearing no. D-95, Kamla
Nagar, Delhi-110007.
2. The facts of the case are a bit curious to say the least inasmuch
as, respondent/landlord claims to be the owner on the ground that he was a
servant working with the owner namely one Mr. Dayal Dass Talwar and his
daughter-in-law Smt. Vidyawati and that the respondent became the owner
of the suit property by virtue of a registered Will dated 17.3.1988 executed
by Smt. Vidyawati who had become the owner of the suit property after the
death of her father-in-law Sh. Dayal Dass Talwar. Respondent/landlord
claims that tenants originally were Sh. Roop Lal Sehgal and his wife Smt.
Kailash Wati and the present petitioners are the legal heirs of Sh. Roop Lal
Sehgal and Smt. Kailash Wati. The bonafide necessity eviction petition was
filed claiming that the tenanted premises are required for the bonafide
residential need of the respondent and his family members.
3. A reading of the impugned judgment shows that the same is
cryptic to say the least because there is lack of adequate discussion in the
judgment with respect to the family members of the respondent, the
accommodation already available and consequent bonafide need and more
importantly as to how the respondent has been held to be the owner of the
RCR No. 338/2011 Page 2 of 17
premises. The only effective discussion with respect to ownership of the
respondent is given in para 10 of the impugned judgment and the same reads
as under:-
"10. The first ground taken on behalf of the respondent for grant of
leave to defend is that petitioner is not owner of the suit
property and only a rent collector. For deciding application
under Section 14(1)(e) of the DRC Act the first question for
determination is whether there exists a landlord-tenant
relationship between the parties and not the question of
ownership. The use of the word owner in clause (e) of the
proviso of sub-section (1) of section 14 of the Delhi Rent
Control Act seems to have been inspired by the definition of the
word landlord as contained in Section 2(e) of the Act which is
wide enough to include a person receiving or entitled to receive
the rent of any premises on account of or on behalf of or for the
benefit of any other person. Construed in the context in which
the word owner is used in clause (e), the concept of ownership
in a landlord-tenant litigation governed by Rent Control Law
has to be distinguished from the one in a title suit. An owner
under section 14(1)(e) need not be an absolute owner requiring
registered sale deed in his favour contemplated by the general
law in section 54 of Transfer of Property Act. A restricted
meaning cannot be given to owner for purposes of the Act. The
meaning of the word owner vis-a-vis the tenant is that the
owner should be something more than the tenant. In the present
case, it is admitted by the respondent that he has been paying
rent to the applicant and the applicant has been collecting the
rent from the respondent which establishes a landlord-tenant
relationship between the parties."
4. Learned counsel for the petitioners/tenants has vehemently
contended that the Additional Rent Controller has wrongly held that the
RCR No. 338/2011 Page 3 of 17
petitioners/tenants have admitted payment of rent to the respondent. More
importantly petitioners rely upon the judgment of the civil court dated
16.3.2011 being the judgment passed by Ms. Aanchal, Civil Judge, North-
05, Room No. 251, 2nd Floor, Tis Hazari Courts, Delhi in Suit No.
1431/2010 between the same parties titled as Sh. Sarwan Kumar Vs. Smt.
Kanchan Kapoor, Manju Nayyar and Param Hans (who are also
petitioners herein) and as per this judgment it has been held by the civil
court that the respondent herein is not the owner of the suit property and
since respondent is not the owner the eviction petition in fact was liable to
be dismissed. This finding that the respondent is not the owner of the suit
property is given in the judgment dated 16.3.2011 by the civil court while
deciding issue no.2 in the subject suit no. 1431/2010. This issue no.2 reads
as under:-
"2). Whether the Plaintiff is the owner of the suit premises? OPD."
5. The relevant findings of the civil court with respect to issue
no.2 in the judgment dated 16.3.2011 are as under:-
" Issue No.2.
RCR No. 338/2011 Page 4 of 17
2) Whether the Plaintiff is the owner of the suit
premises?OPD.
It is the settled law that one who asserts have to prove the facts.
The plaintiff has claimed himself to be the owner and landlord of the
suit property. This fact is specifically denied by the defendants in
their written statement. It is submitted on behalf of the plaintiff that it
is the admitted case of the defendant No.1 & 2 that they are the legal
heirs of late tenant Sh. Roop Lal Sehgal, therefore, the rule of estoppel
shall operate against the defendants and they are stopped denying the
title of the plaintiff and burden lies upon the defendants to prove the
present issue. It is also strongly contended that the present suit is only
in respect to perpetual injunction, wherein as settled preposition of
law, ownership is irrelevant. Thus, this issue also become redundant.
Further the defendants have no right in law to oppose the ownership
of the landlord as late Sh. Roop Lal Sehgal and Smt. Kailashwati used
to pay rent and attorned the plaintiff to be the owner/landlord of the
premises.
On the other hand it is submitted on behalf of the defendants
that at no point of time the defendants have admitted the plaintiff as a
landlord, therefore, rule of estoppel does not apply in the present case.
Further, it is submitted that there is no bar for adjudication of the
question of ownership in the suit of injunction and it is only depend
upon the facts and circumstances of the case in which the question of
ownership may become the irrelevant. But in the present case the
plaintiff is basing his relief being the owner and landlord of the suit
property, therefore, the question of ownership has to be disposed off
in order to effective adjudication of the controversy in issue. Ld.
Counsel for the defendants also relied upon "AIR 2008 Supreme
Court 2033 title Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by
L.Rs. & Ors." in order to substantiate his contention. It is strongly
submitted that the plaintiff has filed an eviction petition against the
defendants on the ground of creation of sub-tenancy and the present
suit is filed just to gather the evidence in order to strengthen his
eviction petition.
Plaintiff is seeking the perpetual injunction in his favour
claiming himself to be the owner/landlord of the suit property. It is
RCR No. 338/2011 Page 5 of 17
specifically denied in the written statement that the plaintiff is owner
or landlord. The plaintiff is stated to be the servant of last owner Sh.
Dayal Dass Talwar. This dispute goes to the root of the controversy as
the injunction can not be granted when the plaintiff has no personal
interest in the matter as per Section 41(j) of the Specific Relief Act or
the Plaintiff has approached the Court by suppressing the material
facts. The plaintiff can have the personal interest in the matter if he is
proved to be the landlord or owner. Thus the present issue is relevant
for the disposal of the present case and it can not be avoided. I also
draw the strength from the judgment relied upon by Ld. Counsel for
the defendant in which it has been specifically observed that:-
17(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property,
as in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and appropriate
issue regarding title [either specific, or implied as noticed in
Annaimuthu Thevar (supra)]. Where the averments regarding title
are absent in a plaint and where there is no issue relating to title, the
Court will not investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit for declaration of
title, instead of deciding the issue in a suit for mere injunction.
d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if
the matter involved is simple and straight-forward, the court may
decide upon the issue regarding title, even in a suit for injunction. But
RCR No. 338/2011 Page 6 of 17
such cases, are the exception to the normal rule that question of title
will not be decided in suits for injunction. But persons having clear
title and possession suing for injunction, should not be driven to the
costlier and more cumbersome remedy of a suit for declaration,
merely because some meddler vexatiously or wrongfully makes a
claim or tries to encroch upon his property. The Court should use its
discretion carefully to identify cases where it will enquire into title
and cases where it will refer to plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the case"
It is deposed by the Defendant No.1 as DW1 that true owner and
landlord of the suit property had been Sh. Dayal Dass Talwar and he
injudcted late Sh. Roop Lal Sehgal as tenant after the death of Sh.
Dayal Dass Talwar, Smt. Vidyawati wife of Prem Kumar Talwar (Son
of Sh. Dayal Dass Talwar) was the landlady and owner and at present
the suit property is jointly owned by Smt. Seema Mehra, Smt. Meenu
Malhotra and Smt. Neelam Sehgal, who are the daughters of Smt.
Bimla. The suit was taken on rent from Sh. Dayal Dass Talwar and
the plaintiff was not even present in this house. He become servant of
late Sh. Dayal Dass Talwar in the year about 1968-69. He did not
bring his wife or family members. He brought his wife and family
members after the death of Sh. Dayal Dass Talwar. She further
deposed in her cross examination that her mother used to pay the rent
to Smt. Vidyawati. Smt. Vidyawati never executed any will regarding
the suit property in favour of the plaintiff.
These facts have not been rebutted by the plaintiff by putting
any question to Defendant No.1 at the time of cross examination.
Not only this it is admitted by the plaintiff in his cross examination
that late Sh. Roop Lal Sehgal was paying rent to Smt. Vidyawati
Talwar till her death and before this he was paying rent to Dayal Dass
Talwar. He was serving late Sh. Dayal Dass Talwar and after his death
Smt. Vidyawati. He was not doing any job in Himachal Pradesh
before 1956, when he joined Sh. Dayal Dass Talwar and he came
alone and his wife joined him in 1965. He also admits that Sh. Dayal
Dass Talwar never sold the suit property to any one during his life
time and he never transferred the possession of this property to any
one during his life time. After the death of Sh. Dayal Dass Talwar,
RCR No. 338/2011 Page 7 of 17
his daughter-in-law Smt. Vidyawati and her daughter namely Bholi @
Bimla resided in this house and Vidyawati Talwar was taking rent
from Late Sh. Roop Lal Sehgal. This deposition of the plaintiff
proves that Sh. Dayal Dass Talwar was the landlord of the suit
property who inducted Sh. Roop Lal Sehgal as tenant and after his
death his daughter-in-law kept on taking the rent as the landlord and
no interest by any document has been created in favour of the plaintiff
in respect of the suit property.
It has also come on record that the plaintiff was serving to Sh.
Dayal Dass Talwar and Smt. Vidyawati. He categorically deposed in
his cross examination that he was like the son of Vidyawati Talwar.
However, there was no adoption deed executed in his favour. He
admits that he was serving Late Sh. Dayal Dass Talwar and after his
death Smt. Vidyawati without any remuneration as their son. He was
not a salaried servant. Defendant No.1 has also relied upon the cross
examination of the plaintiff conducted in the proceeding before Ld.
ARC dated 25.10.2007 and 07.04.2008. Authenticity of these
certified copies has not been disputed by the plaintiff. These
proceedings were pending between the same parties and the question
was regarding the eviction of the present defendants from the suit
premises. In the cross examination conducted on 25.10.2007, it has
been admitted by the plaintiff that he came into the property No. D-
95, Kamla Nagar as a servant in 1956 and at that time owner of the
suit property was Sh. Dayal Dass Talwar and Smt. Vidyawait who
was his daugher-in-law. This property was built up by Dayal Dass
Talwar and by him and he did not sell his property to any person
during his life time. Sh. Dayal Dass Talwar was died in 1984 and he
was serving him form 1956 to 1984. He used to treat him as his son.
But he has no documentary proof to show that he was being treated as
his son. It is also admitted that he was doing service of Vidyawati till
her death. This testimony of the plaintiff proves that he is claiming
the ownership on the basis of his treatment as a son. But the evidence
in totality shows that he came into the property as tenant and he kept
on serving the owner and thereafter his daughter-in-law during her life
time. There is no proof at all as to the basis of the claim of Plaintiff
being owner or landlord as tracing his title from the landlord/owner
who inducted Late. Sh. Roop Lal Sehgal as tenant.
RCR No. 338/2011 Page 8 of 17
The very factum that Sh. Roop Lal Sehgal was inducted as a
tenant by Sh. Dayal Dass Talwar had not been denied by the plaintiff
in his deposition. Thus the fact remains that Sh. Roop Lal Sehgal was
inducted as a tenant by Sh. Dayal Dass Talwar.
Under such circumstances rule of estoppel does not apply in
favour of the plaintiff. Plaintiff has never been accepted as a landlord
and he is also not deriving his title form the landlord Sh. Dayal Dass
Talwar, who inducted Sh. Roop Lal Sehgal as tenant. The plaintiff
has relied upon copies of three rent receipts. Original of these rent
receipt has neither been placed on record nor produced. No reason
has been assigned to produce the secondary evidence and for the
absence for the primary evidence i.e. the originals of these receipts.
These rent receipt are inadmissible in law and can not be looked into.
For these reasons the present issue is decided in favour of the
defendant and against the plaintiff."
6. At this stage, I would like to refer to Section 50 of the DRC Act
and which provides that a judgment which is passed in the proceedings
under the DRC Act deciding questions of title of the premises is not final
and the issue of title has to be finally decided by the civil court. Section 50
reads as under:-
" 50. Jurisdiction of civil courts barred in respect of certain matters -
(1) Save as otherwise expressly provided in this Act, no civil court shall entertain
any suit or proceeding in so far as it relates to the fixation of standard rent in
relation to any premises to which this Act applies or to eviction of any tenant
therefrom or to any other matter which the Controller is empowered by or
under this Act to decide, and no injunction in respect of any action taken or to
be taken by the Controller under this Act shall be granted by any civil court or
other authority.
RCR No. 338/2011 Page 9 of 17
.........
......
(4) Nothing in sub-section (1) shall be construed as preventing a civil court from
entertaining any suit or proceeding for the decision of any question of title to any
premises to which this Act applies or any question as to the person or persons
who are entitled to receive the rent of such premises."
7. Therefore, once the civil court has decided the issue of title
against the respondent holding that the respondent is not the owner of the
suit property, then by virtue of Section 50 of the DRC Act, that judgment of
the civil court will prevail and it has to be held that respondent is not the
owner of the suit premises. In a bonafide necessity eviction petition under
Section 14(1)(e) of the DRC Act, a person who files the eviction petition not
only has to be the landlord, but he also has to be the owner, and once the
respondent herein, petitioner in the eviction petition, is not the owner of the
suit property, not only the leave to defend application has to be allowed but
in fact the eviction petition has to be dismissed.
8. Learned counsel for the petitioners/tenants has filed before this
Court the order dated 11.5.2012 passed by the appellate court hearing appeal
against the aforesaid judgment and decree dated 16.3.2011 which holds that
the respondent herein is not the owner of the suit property, and which order
dated 11.5.2012 shows that the respondent herein simply withdrew the
appeal and consequently the judgment of the civil court dated 16.3.2011
operates as res judicata between the parties that the respondent is not the
owner of the suit property. The statement of counsel for the respondent, and
who was the appellant in the first appeal being RCA 3/2011 alongwith the
order of the court dated 11.5.2012 are given below:-
Statement dated 11.5.2012
"Statement of Sh. Vijay Kumar Gupta, counsel for the
appellant.
At Bar.
In view of the fact that subsequent to the impugned
judgment and decree, an eviction order has been passed by the
court of Dr. Rakesh Kumar-I, Ld. ARC (N), Delhi against the
respondents in a petition preferred by the present appellant and
without prejudice to the contentions and the out come in the
trial court vide impugned judgment, I may be permitted to
withdraw the present appeal."
Order dated 11.5.2012
"Present- Mr. V.K.Gupta & Mr.S.K.Jha, counsels for the
appellant.
Mr. J.S.Vohra, counsel for the respondent.
Counsel for the appellant addressed arguments for about
40 minutes and counsel for the respondent also addressed part
arguments. During arguments, counsel for the appellant made
statement. In view of the statement, the present appeal is
dismissed as withdrawn. Trial court record be sent to the Ld.
Trial Court with a copy of this order. Appeal file be consigned
to record room, after necessary compliance."
9. Incidentally, the counsel who withdrew the first appeal against
the judgment and decree of the trial court/civil court dated 16.3.2011 is the
same counsel who has argued the present petition before me.
10. Learned counsel for the respondent argued before this Court the
following aspects:-
(i) Since the petitioners had admitted the aspect with respect to their
predecessors-in-interest paying rent to the respondent, hence the petitioners
are estopped by virtue of Section 116 of the Indian Evidence Act, 1872 in
questioning the title of respondent/landlord.
(ii) The regular civil first appeal no. 3/11 was withdrawn on 11.5.2012 in
view of the eviction order passed in this suit and therefore it is argued on
behalf of the respondent/landlord that the withdrawal of the appeal is not
unconditional and cannot operate against the respondent.
11. I am unable to agree with any of the arguments urged on behalf
of the respondent in view of the categorical provision of Section 50 of the
DRC Act which provides that it is the judgment of the civil court which will
bind the parties with respect to deciding questions of title of the property and
once the civil court has held that the respondent has no title to the property ie
the respondent is not the owner of the suit premises, the necessary ingredient
of respondent being the owner of the suit property as required by Section
14(1)(e) of the DRC Act is missing, and clearly therefore not only leave to
defend will have to be granted but the eviction petition itself will have to be
dismissed. I do not agree with the arguments urged on behalf of the
respondent that petitioners/tenants are estopped from questioning the title of
the respondent inasmuch as, the issue of estoppel against the petitioners
under Section 116 of the Indian Evidence Act would operate only if there is
no judgment of a civil court binding the parties giving its finding with
respect to the title of the suit property. Once there is a finding of the civil
court with respect to the title of the suit property, the said judgment and the
principle of res judicata will operate against the respondent and in such a
case the issue of estoppel cannot operate against the petitioners/tenants
because the respondent could have urged and was bound to have urged the
issue of estoppel under Section 116 of the Indian Evidence Act as one of his
grounds in the civil suit for the civil suit to be decreed, but once the civil
court has passed a judgment holding that the respondent is not the owner of
the suit premises, all aspects which might or ought to have been urged
before the civil court are deemed to have been urged and rejected in view of
the doctrine of constructive res judicata contained in Section 11 of the Code
of Civil Procedure, 1908 (CPC). The aforesaid has to be taken with the
aspect that the issue of estoppel in the present proceedings are urged only at
the interim stage of grant of leave to defend and is not decided against the
petitioners/tenants in terms of a final judgment of the Additional Rent
Controller, and even if there is a final judgment of a Rent
Controller/Additional Rent Controller, that judgment would not be final on
the question of title of the suit property in view of the provision of Section
50 of the DRC Act as per which the judgment of the civil court prevails with
respect to issue of title of the property. The first argument urged on behalf of
the respondent is therefore rejected.
12. The second argument urged on behalf of the respondent that
there is no unconditional withdrawal of the appeal is again an argument
without any merit because it is clear from the order dated 11.5.2012 and the
statement of the counsel recorded on 11.5.2012 that the appeal has been
unconditionally withdrawn. Giving a reason for withdrawal is different than
the appeal being conditionally withdrawn because conditional withdrawal
means that the respondent herein would have sought liberty either to file a
fresh suit if it was permissible in law or for re-agitating the appeal in certain
circumstances, but that admittedly has however, not been done, and
therefore, giving a reason for withdrawing of the appeal is not enough to
hold that the appeal has not been unconditionally withdrawn. Once the RCA
3/11 filed by the respondent herein challenging the judgment of the trial
court dated 16.3.2011 was unconditionally withdrawn, the judgment dated
16.3.2011 between the parties will hold the field as res judicata between the
parties and respondent is hence not the owner of the suit premises and
consequently, the present eviction petition for bonafide necessity under
Section 14(1)(e) of the DRC Act in fact cannot be filed. Also, whether the
withdrawal of RCA 3/11 is conditional or unconditional, the fact of the
matter is that as of today the judgment of the civil court dated 16.3.2011
stands and which holds that the respondent is not the owner of the suit
property ie till the judgment dated 16.3.2011 is set aside, the respondent has
to be held as not to have ownership/title to the suit property.
13. For the sake of completion of narration I would like to put on
record that I have considered the judgment of the civil court dated 16.3.2011
as it is a subsequent fact coming into existence after a period of 15 days
being the statutory period prescribed for filing of a leave to defend
application as subsequent events can be considered if they happen after the
15 days statutory period and so held by me in the judgment in the case of
M/s Punjab Stainless Steel House & Anr. Vs. Smt. Sangeeta Kedia,
CM(M) 1354/2011 decided on 1.9.2014.
14. I may note that the petitioners/tenants have been evicted in
execution of the impugned judgment and decree dated 4.6.2011, but since
the impugned judgment dated 4.6.2011 is set aside, respondent is ordered to
restitute possession of the tenanted premises to the petitioners/tenants within
a period of four weeks from today. This petition is accordingly allowed and
disposed of in terms of the aforesaid observations.
15. It is clarified that since the present petition has been allowed,
the order passed by the learned Single Judge of this Court dated 7.12.2011
with respect to payment by the petitioners/tenants of interim user charges
also gets vacated because the issue of payment of interim user charges and
not the rent would only have been if the petitioners/tenants would stand
evicted by confirming of the impugned judgment and decree but once the
impugned judgment and decree dated 4.6.2011 is set aside, the
petitioners/tenants surely will not be liable to pay any mesne profits/interim
user charges in terms of the order of learned Single Judge of this Court
dated 7.12.2011. Petitioners/tenants will now file the written statement in
terms of the directions which will be passed by the Rent
Controller/Additional Rent Controller. Any of the parties can revive the
eviction petition by filing of an application before the competent court
annexing therewith a copy of the present judgment.
VALMIKI J. MEHTA, J
NOVEMBER 17, 2014
ib
