Smt. Krishna Chaudhary vs Sh.Sharad Sharma
2014 Latest Caselaw 5334 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RC.REV.No.277/2013

%                                                    29th October, 2014

SMT. KRISHNA CHAUDHARY                                         ......Petitioner
                 Through:                Mr.Pradeep Chhindra, Advocate.



                          VERSUS

SH.SHARAD SHARMA                                             ...... Respondent

                          Through:       Mr.R.K.Bali, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This rent control revision petition is filed under Section 25B(8) of the

Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act')

impugning the judgment of the Additional Rent Controller dated 06.8.2011

by which the Additional Rent Controller has dismissed the eviction petition

filed by the petitioner/ widow /landlady against the respondent/tenant under

Section 14 D of the Act. The suit/tenanted property is flat no.E-29, Gaurav

Apartments, Plot No.1, I.P. Extension, Delhi. The provision of Section 14 D

of the Act allows a bonafide necessity eviction petition to be filed by a

widow when the tenanted premises are let by the widow or her late husband.

2. The eviction petition is filed under Section 14D of the Act on the

ground that the petitioner needs the suit/tenanted premises for her own use

as a residence as she cannot continue to live in the Government quarter

allotted to her.

3. The eviction petition filed by the petitioner was dismissed after trial

on the sole ground that the petitioner has failed to prove the relationship of

landlady and tenant between her and the respondent, though, the Additional

Rent Controller (ARC) holds that the petitioner is the owner of the tenanted

premises.

4. At the outset, I must express my angst not only at the impugned

judgment, but also on the conduct of the respondent in harassing the

petitioner/widow/landlady since the respondent is now sitting in the

suit/tenanted premises at least from 1999 without paying a single rupee to

the petitioner/landlady. The dishonesty of the respondent is so stark in the

present case that I am allowing this petition with penal costs to the

petitioner/landlady. The contumacious attitude of the respondent can be

borne out from the fact that even after the arguments were heard on merits

and it was proposed by the petitioner that forgetting the past, respondent can

vacate the suit/tenanted premises in a short time, but, counsel for the

respondent after obtaining instructions insists that the petition be decided on

merits.

5. The case as set up by the petitioner/landlady was that she is the widow

of one Sh.Kailash Chandra who expired on 20.3.1997. The petitioner

pleaded that she was the owner of the suit/tenanted premises and was

residing in a Government allotted flat at E--1220, Netaji Nagar, Near

Sarojini Nagar, New Delhi along with her son Sachin and daughter Vandana,

and that she bonafidely and immediately required the suit/tenanted premises

for residence of herself and her family members because she had to shift

from the Government accommodation. In the eviction petition it was stated

that the respondent was falsely since long claiming to be owner of the

suit/tenanted premises and was not even paying any rent to the

petitioner/landlady.

6. The respondent filed his written statement and claimed that he was the

owner of the same as he purchased the same from one Sh.Yashpal Singh

Joshia, a first cousin of the petitioner, on 13.7.1999 by virtue of a general

power of attorney dated 22.5.1992 which had been executed by the

petitioner in favour of the said Yashpal Singh Joshia.

7. So far as the aspect that the petitioner is the owner of the suit/tenanted

premises is concerned, this aspect has been held in favour of the

petitioner/landlady by the Additional Rent Controller in terms of the

observations made in paras 11 and 12 of the impugned judgment, and which

paras read as under:-

" 11. It is admitted fact that suit premises is a flat of Society. PW2, the president of Society specifically deposed that petitioner is recorded as owner of suit premises vide membership no.410 of the aforesaid Society. He further deposed that there is no mention of the name of Sh. Sharad Sharma/respondent being owner of said flat either in the share certificate register or in the membership register. PW2 further deposed that if a flat of a Society is intended to be sold by the owner of the flat to a third party then a permission has to be taken from the Society. PW2 further deposed that if the owner of the flat intend to sale the flat then no third party is allowed to purchase the same and in that case the flat will revert back to the Society. PW2 also deposed that till date there is no application of Sh. Sharad Sharma in the Society that he purchased the flat form Smt. Krishna Chaudhary. PW2 further deposed that till date Society has not given permission either to petitioner or respondent for the sale and purchase of the suit premises. The testimony of PW2 is unchallenged as he has not been cross-examined by the respondent.

12. It is admitted fact that petitioner is the original allottee of the suit premises and she herself has not sold the suit premises to the respondent. It is also pertinent that Sh. Yashpal Singh Joshia who allegedly sold the suit premises to respondent being Attorney of petitioner had not obtained the permission of Society to sell the suit

premises to respondent. It is also pertinent that PW1 denied the execution of GPA Ex.DW1/A in favour of RW2. It is also admitted that stamp paper of GPA Ex.DW1/A was purchased for the purpose of affidavit. It is also admitted that the sale deed of the suit premises has not been executed in favour of respondent and he simply holds the GPA of RW2. Under these circumstances, it cannot be said that petitioner is not the owner of the suit premises. In view of aforesaid discussion, petitioner proved that she is widow and owner of the suit premises accordingly issue no.1 stands satisfied."

(Underlining added)

8. In addition to the above observations of the Additional Rent

Controller for holding that the petitioner/landlady is the owner of the

premises, the following aspects are also held in favour of the

petitioner/landlady for concluding that the petitioner is the owner of the

suit/tenanted premises:-

(i) No doubt, the petitioner/landlady had executed the power of attorney

dated 22.5.1992 in favour of Sh.Yashpal Singh, S/o Sh. Jeet Singh (and who

is refereed to also as Sh.Yashpal Singh Joshia), and which power of attorney

is dated 22.5.1992 has been exhibited before the trial court as Ex.DW1/A

(actually the exhibit number should be DW1/B as per the affidavit by way of

evidence of the respondent), however, the respondent can only be the owner

if the agreement to sell and the general power of attorney dated 13.7.1999

executed in favour of the respondent by Sh.Yashpal Singh Joshia can be said

to have resulted in transfer of the title in the suit premises to the respondent.

However, the agreement to sell and general power of attorney dated

13.7.1999 exhibited as Ex.DW1/A in the affidavit by way of evidence of the

respondent did not result in transferring the title of the suit/tenanted premises

to the respondent for various reasons given below, and I hold that the

documents being agreement to sell and general power of attorney dated

13.7.1999 are sham and fraudulent documents. Firstly, if these documents

dated 13.7.1999 were valid documents, then consideration under the same

would have been paid by the respondent to Sh.Yashpal Singh Joshia being

the amount of Rs.5,25,000/-, however, no evidence whatsoever has been led

on behalf of the respondent that this amount of Rs.5,25,000/- was ever paid

by the respondent to Sh.Yashpal Singh Joshia much less that this amount of

Rs.5,25,000/- has been further paid by Sh.Yashpal Singh Joshia to the

petitioner. A reading of the cross-examination of Sh.Yashpal Singh Joshia,

who appeared as a witness/RW-2 on behalf of the respondent, shows that he

could not show from his passbook that any entry was made in his account

for receiving an amount of Rs.6,50,000/-(sic: Rs.5,25,000/-) as claimed by

the respondent to have been paid to Sh.Yashpal Singh Joshia for purchase of

the suit premises by the respondent from the petitioner through Sh.Yashpal

Singh Joshia. In the cross-examination of RW-2 on 18.7.2009, it is

categorically admitted by Sh.Yashpal Singh Joshia that he has no evidence

whatsoever that any amount was ever credited in his account as alleged to

have been paid under the documents dated 13.7.1999 executed by

Sh.Yashpal Singh Joshia in favour of the respondent, and Sh.Yashpal Singh

Joshia has no proof that any amount was paid by him to the present

petitioner. Sh.Yashpal Singh Joshia/RW-2 did try to set up a case that he

paid the amount of consideration to the petitioner after the documents dated

13.7.1999 were executed in cash, however, in his cross-examination he

admitted that he had no proof whatsoever to show that any consideration

amount whatsoever was paid by him (Sh.Yashpal Singh Joshia/RW-2) to the

present petitioner. Therefore, taking the power of attorney dated 22.5.1992

executed by the petitioner in favour of Sh.Yashpal Singh Joshia as correct,

Sh.Yashpal Singh Joshia never legally transferred any title of the suit

property to the respondent herein and the documents after the agreement to

sell and general power of attorney dated 13.7.1999 are clearly fraudulent and

sham documents.

(ii) It is also come on record that the petitioner had in fact taken a loan

from LIC by mortgaging this property. As per the affidavit by way of

evidence filed by the petitioner, she applied to LIC Housing Finance Limited

for the loan and LIC Housing Finance Limited sanctioned a loan to her vide

letter dated 29.8.1990 and 8.8.1991, which have been proved and exhibited

as Exs. P-5 and P-6. The petitioner was working as a Government servant

with the Director General of Health Services and the employer vide its letter

dated 18.12.1995 exhibited as Ex.P-7, approved the loan of Rs.54,500/- to

the petitioner for repaying the loan by the petitioner to LIC Housing Finance

Limited. The tripartite agreements of the petitioner, society and LIC

Housing Finance Ltd. have been deposed to by PW-2 on 18.3.2004 and are

on record as Ex.RW-1/P3&P4

(iii) The fact that the respondent is not the owner of the suit/tenanted

premises becomes clear from the fact that, if really the title had to be

transferred to the respondent by means of documents dated 13.7.1999, then

surely the respondent would have got with him the original share certificate

of the society, original possession letter giving possession of the suit

property to the petitioner by the society, original agreement of the petitioner

with the society giving ownership rights to the petitioner of the suit property

etc etc. Once the respondent does not have with him any original title

documents of the property, and which he was bound to have if really the title

was transferred to him by the documents dated 13.7.1999, there remains no

doubt that the respondent was not the owner of the suit property on account

of his having allegedly purchased the same from the attorney of the

petitioner Sh.Yashpal Singh Joshia.

(iv) It is also an admitted fact appearing on record that the respondent at

no point of time ever sought mutation of his claim with the society as having

purchased the suit property by means of the documents dated 13.7.1999 and

in all the records of the society it is the petitioner who is shown as the

owner. The records of the society showing the petitioner as the owner have

been proved by the President of the Society who appeared as PW-2 and

these documents are Ex.PW2/1 to Ex.PW2/8.

9. In view of the above, I have no hesitation to hold that the Additional

Rent Controller was justified in arriving at a finding and conclusion that the

petitioner was and continued to remain the owner of the suit property and

neither the respondent became the owner of the suit property through the

documents dated 13.7.1999 nor did Yashpal Singh Joshia became the owner

by the alleged GPA dated 22.5.1992.

10 (i) Before me, counsel for the respondent did not urge any argument to

counter the fact that the petitioner was the owner of the suit property and it

was only vehemently argued that since there was no relationship of landlady

and tenant between the petitioner and the respondent there was no

jurisdiction of the Additional Rent Controller under the Delhi Rent Control

Act, 1958 to entertain the eviction petition. Counsel for the respondent has

referred to me various admissions made by the petitioner in her cross-

examination that she had not let out the suit property to the respondent

including the admission made by the petitioner in her cross-examination on

23.7.2005 where the petitioner stated that neither she nor her husband let out

the property to the respondent, and that she had not authorized Sh.Yashpal

Singh Joshia either to let out the property and dispose of the same.

(ii) This argument however urged on behalf of the respondent does not

carry any weight because in the same cross-examination of the petitioner on

23.7.2005, the petitioner in the next few lines has specifically stated that

Sh.Yashpal Singh Joshia had let out the suit property to the respondent on

behalf of the petitioner and not as the owner of the property. In fact, I would

like at this stage to refer to the admission made by RW-2/ Sh.Yashpal Singh

Joshia in his cross-examination on 18.7.2009 when RW-2/ Sh.Yashpal Singh

Joshia specifically admits as correct that whatever rent he received from the

respondent was paid to the present petitioner.

(iii) I must also note that the respondent himself admits that he initially

claimed rights in the premises as a tenant, though of course he claimed his

tenancy under the landlordship of Sh.Yashpal Singh Joshia. According to the

respondent he became a tenant of Sh. Yashpal Singh Joshia on account of

the general power of attorney dated 22.5.1992 executed by the petitioner in

favour of Sh.Yashpal Singh Joshia.

Once the respondent admits that he originally was only a tenant in the

suit premises and the landlord was Sh.Yashpal Singh Joshia, but since

Sh.Yashpal Singh Joshia was admittedly only a power of attorney holder of

the owner/present petitioner/landlady, in my opinion therefore the ownership

of the petitioner stands admitted once the respondent or Sh.Yashpal Singh

Joshia fails to prove that by virtue of the general power of attorney dated

22.5.1992 the petitioner had sold/transferred title in the suit property to

Sh.Yashpal Singh Joshia. Also it is not the case of the respondent and

Sh.Yashpal Singh Joshia that Sh.Yashpal Singh Joshia ever paid any

consideration to the petitioner for the petitioner to have executed the power

of attorney dated 22.5.1992 in favour of Sh.Yashpal Singh Joshia. It is

relevant to note that after all Sh.Yashpal Singh Joshia, as per the admitted

case of both the parties, was the cousin brother of the petitioner/landlady.

The petitioner/landlady therefore has clearly executed the general power of

attorney dated 22.5.1992 in favour of Sh.Yashpal Singh Joshia in trust and

only with the object to manage the suit property on behalf of the

petitioner/landlady including in the act of management of the suit property

for Sh.Yashpal Singh Joshia to let out the suit property to the respondent as a

tenant.

(iv) As stated above, since the respondent admits that he was the tenant

and the tenancy was under the landlordship of Sh.Yashpal Singh Joshia ie

Sh.Yashpal Singh Joshia acted for and on behalf of the present

petitioner/landlady, and since the present petitioner is the owner of the suit

property, therefore by virtue of Section 2(e) of the Act, the

petitioner/landlady will become the owner/landlady of the suit property,

inasmuch as, as per Section 2(e) of the Act an owner is automatically a

landlord because a person who is entitled in law to receive rent i.e an owner

of the property is also a landlord of the suit property.

(v) Therefore, once the respondent admits that he was inducted as a tenant

and it is also admitted on record that he was inducted as a tenant by

Sh.Yashpal Singh Joshia who was the power of attorney holder of the

petitioner under the general power of attorney dated 22.5.1992, and the

petitioner was the owner of the property and continued to remain the owner

of the property because the documents dated 13.7.1999 allegedly executed

by Sh.Yashpal Singh Joshia in favour of the respondent are fraudulent and

sham documents, there arises a relationship of landlady and tenant between

the petitioner as the owner/landlady and the respondent as a tenant in the suit

property.

(vi) Therefore, the sum and substance of the entire facts would be that

Sh.Yashpal Singh Joshia being a cousin brother of the petitioner/landlady

was given the power of attorney dated 22.5.1992 in trust for the management

of the suit property and the respondent was inducted as a tenant in

management of the suit property, but, the respondent in collusion with

Sh.Yashpal Singh Joshia sought to fabricate the documents of transferring

title of the suit property to the respondent by means of the documents dated

13.7.1999, and which documents are clearly fraudulent and sham documents

and thus did not and could not have transferred title of the suit property to

the respondent.

(vii) I therefore hold that the Additional Rent Controller has erred in

holding that the petition has to be dismissed because there is no relationship

of landlady and tenant between the petitioner and the respondent.

11. In view of the above, this petition is allowed with costs of Rs.2 lacs

especially because the petitioner has not received any charges for use and

occupation of the suit property by the respondent since the year 1999 i.e for

around 15 years. Eviction petition of the petitioner under Section 14 D of

the Act will stand decreed in favour of the petitioner and against the

respondent with respect to the suit/tenanted property being the flat no.E-29,

Gaurav Apartments, Plot No.1, I.P. Extension, Delhi-92 (as shown in red

colour in the site plan filed with the eviction petition exhibited as

Ex.PW2/5). Costs be paid by the respondent to the petitioner within a period

of four weeks from today.

VALMIKI J. MEHTA, J OCTOBER 29, 2014 KA