Delhi High Court
Devender Kumar vs Birma Devi @ Brahmo Devi & Ors on 14 January, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. 546/2015 & CM APPL.23318/2015 (stay)
Decided on: 14th January, 2016
JAI PRAKASH ..... Petitioner
Through: Mr. Surender Kumar Gupta, Advocate
with Mr. Dinesh Kumar, Adv.
versus
BIRMA DEVI & ORS ..... Respondents
Through: Nemo
+ RC.REV. 556/2015 & CM APPL.23451/2015 (stay)
DEVENDER KUMAR ..... Petitioner
Through: Mr. Surender Kumar Gupta, Advocate
with Mr. Dinesh Kumar, Adv.
versus
BIRMA DEVI @ BRAHMO DEVI & ORS ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. These are two revision petitions filed by the petitioners/tenants
against the order dated 30.05.2015 passed by the learned
Additional Rent Controller in EV No.87/2014 titled Birma Devi &
Ors. v. Jai Prakash; and EV No.86/2014 titled Birma Devi & Ors.
v. Devender Kumar @ Kaju rejecting the leave to defend
application and passing eviction orders.
2. I have heard the learned counsel for the petitioners/tenants as well
as for the respondents/landlords. I have also gone through the
record.
3. Briefly stated the facts of the case are that the respondents/
landlords filed two separate eviction petitions for eviction of the
petitioners/tenants under Section 14 (1) (e) of the Delhi Rent
Control Act, 1958 (DRC Act) in the capacity of co-owner of
property bearing No.98-E, Hari Nagar Ashram, Delhi.
Respondents No.2 and 3 are the grand children of respondent No.1.
It has been stated in the eviction petition that the suit property
originally belonged to Late Hukum Singh husband of Birma Devi
i.e. Respondent no.1 and after his demise the respondents have
inherited the property. The petitioner/tenant (Jai Prakash) in RCR
546/2015 was let out a shop in the suit property on 24.03.1984 at
the rate of Rs.400/- per month by the previous owner which rent
was increased from time to time and current rent was stated to be
Rs.1900/- per month. Petitioner/tenant (Devender Kumar @ Kaju)
in RCR 556/2015 was let out a shop in the suit property on
13.07.1981 at the rate of Rs.150/- per month by the previous owner
which rent was increased from time to time and the current rent
was stated to be Rs.1200/- per month.
4. The respondent no.1/landlady had stated in eviction petition that
her family consists of herself, one widowed daughter-in-law, one
unmarried granddaughter, i.e. respondent No.2 and two grandsons
Sanjeev Kumar and respondent No.3. In addition to this, the
respondent also has a divorced daughter apart from one married
grand daughter and two more married daughters. It was averred
that the respondents are occupying backside portion of property
with one bedroom, one drawing room, one store, kitchen, toilet and
bathroom on ground floor and one room, one small study room,
toilet and bathroom on the first floor. So far as respondents No.2
and 3 are concerned, for whose benefit eviction was sought, it was
stated that they have completed their education and are presently
unemployed and therefore both of them intend to start business of
readymade garments in a space of 200 sq. ft. Respondent/landlady
also stated that she does not own any other commercial
accommodation.
5. The present petitioners contested the eviction petitions by filing
leave to defend wherein they denied existence of relationship of
landlord and tenant. It was stated that the respondent No.1 had
sold the property to one Mohan Rai in the year 2000 and thereafter
the suit property was purchased by one A. Mohan Dass in the year
2011. It was stated that because of these reasons the respondents
were not the owners of the suit property and therefore, the eviction
petition is not maintainable. On merits of the case it was stated that
the respondents No.2 and 3 do not have any knowledge about the
business of readymade garments and therefore, their requirement is
not genuine. It was stated that both of the respondents are
professionals and it is very unlikely that they are going to start a
readymade garment shop.
6. The learned ARC after hearing the arguments rejected the leave to
defend application of the petitioners on the ground that they do not
raise any triable issue either with regard to the landlord-tenant
relationship or with regard to bona fide requirement of the
respondents and passed the eviction order.
7. Feeling aggrieved by the aforesaid eviction order and observations,
the petitioners/tenants have assailed the same before this Court and
have reiterated the pleas which were taken before the learned ARC.
8. The learned counsel for the petitioners has challenged the rejection
of the leave to defend application as well as the passing of the
eviction orders essentially on two grounds. Firstly, it has been
contended that there exists no relationship of landlord and tenant
between the petitioners and respondent No.1. He has stated that
the petitioners/tenants had learnt recently about the sale of the
property by respondent No.1 to Mohan Rai who in turn had sold it
to A. Mohan Dass in the year 2011 and ever since they learnt about
the same, they stopped payment of rent to the respondent No.1. It
has been further stated that one of the requirements of Section 14
(1) (e) of the DRC Act is that the landlord should be also be the
owner of the suit property. Because of these facts it was stated that
the respondent/landlord not being the owner is not entitled to a
decree of eviction and hence it raises a triable issue.
9. It is not in dispute that the petitioners/tenants had paid rent to the
predecessor-in-interest of the respondents/landlords as well as to
respondent No.1 till 2011. It is only in 2011 that they stopped
paying rent on the ground that respondent No.1 has allegedly sold
the property.
10. Section 116 of the Indian Evidence Act clearly states that a tenant
during the continuance of tenancy is prohibited from challenging
the title of the landlord. In the instant case also since there is no
dispute about the factum that the petitioners were inducted as
tenants by the previous owner and they continued to pay rent to
respondent No.1, therefore, any attempt on their part to challenge
the title of respondent No.1 was not entertained by the learned
ARC for the simple reason that they are estopped from challenging
the same.
11. The learned counsel for the petitioners has contended that this
doctrine of estoppel is applied only during the continuance of the
tenancy and since the petitioners have failed to pay rent to
respondent No.1, therefore, they are not precluded from
challenging the title of respondent No.1.
12. I do not agree with this contention of the learned counsel for the
petitioners that it is only during the period of tenancy that he
cannot challenge the title of the landlord. The very fact that the
petitioners had been paying rent to respondent No.1 they are
precluded from challenging the title of the respondent/landlord.
Moreover, the learned ARC has rightly placed reliance on a
judgment of the Apex Court in case titled Ramesh Chand v. Uganti
Devi; (2007) 15 SCC 384, wherein it has been observed that for
showing the title and right qua the tenant, the landlord need not
have a perfect title to the suit property. The only requirement under
Delhi Rent Control Act is that his title must be superior to the one
of the tenant.
13. In the instant case, the very fact that respondent No.1 was the
owner clearly shows that she has a better title to the property and
the petitioners/tenants cannot be permitted to assail the same. The
petitioners in support of their contention have placed reliance on
some documents i.e. agreement to sell, etc. purported to have been
executed by the respondent no.1 which were filed in a separate suit
for declaration and permanent injunction filed by respondent no.1
against the petitioners herein. In that suit, respondent No.1 had
obtained the opinion of a handwriting expert who had stated in his
report that the alleged thumb impressions of respondent No.1
appearing on sale documents are forged and fabricated. The
petitioners had not raised this plea before the learned Additional
Rent Controller in the leave to defend application. Hence, there is
no reason for this court to consider the same and take a different
view now.
14. Therefore, I am of the considered view that the respondents have
been successful in establishing their ownership to the suit property
and she is entitled to retrieve the possession of the suit property
consisting of shops from the petitioners/tenants.
15. Secondly, with regard to opening of a readymade garments shop,
the counsel for petitioners/tenants has raised an objection that
neither of the two respondents, i.e. respondents No.2 and 3, who
are the beneficiaries of the eviction order, have any knowledge
about the manufacturing or sale of the readymade garments. As a
matter of fact, it was stated that they are professionals and
therefore, it is very unlikely that they will start a new venture of
selling the readymade garments. This plea was also rightly rejected
by the learned ARC by observing that merely because respondents
do not have any knowledge or experience about the business of
readymade garments, it would not prevent them from retrieving the
possession of the suit property for their bona fide requirement.
16. The Supreme Court in a number of cases has categorically
observed that the lack of experience should not become an
impediment to start a new business by any person. Reliance in this
regard was placed on case title Ram Babu Agarwal vs. Jay Kishan
Das; (2010) 1 SCC 164, wherein it was observed:
"......that a person can start a new business even if he
has no experience in the new business that does not mean
that his claim for starting new business must be rejected
on the ground that it is a false claim. Many people start
new businesses even if they do not have experience in the
new business and sometimes they are successful in the
new business also."
17. For the aforesaid reasons, I feel that the learned ARC was
absolutely right in rejecting both the pleas of the petitioners while
refusing them the leave to contest the matter. It is a fit case where
the leave to defend has been rightly denied to the petitioners and
eviction orders have been passed.
18. I order accordingly.
19. Pending applications also stand disposed of.
V.K. SHALI, J.
JANUARY 14, 2016
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