Shri Sanjeev Gupta vs Shri Kul Bhushan Malik
2016 Latest Caselaw 6096 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RSA No. 278/2016

%                                                       19th September, 2016

SHRI SANJEEV GUPTA                                            ..... Appellant
                                Through:   Mr. V.K. Anand, Advocate

                      versus
SHRI KUL BHUSHAN MALIK                                      ..... Respondent

                      Through:             Mr. Tarun Rana and Mr. Puneet
                                           Dhawan, Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CAVEAT No. 820/2016

Since counsel for the caveator has entered appearance, the caveat

stands discharged.

C.M. Appl. No. 34308/2016 (for exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of.

RSA No.278/2016 and C.M. Appl. No. 34307/2016 (for stay, under Section 151 CPC)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/defendant/tenant

impugning the concurrent Judgments of the courts below; of the Trial Court

dated 15.1.2015 and the First Appellate Court dated 21.7.2016; by which the

suit of the respondent/plaintiff/landlord for possession against the

appellant/defendant/tenant has been decreed with respect to the suit/tenanted

premises bearing no.T-44, back portion, second floor, double storey quarters,

West Patel Nagar, New Delhi, as shown in red colour in the site plan attached in

the plaint.

2. The case as per the plaint was that the appellant/defendant was a

tenant at a rent of Rs.4,500/- per month. The appellant/defendant was initially

inducted as a tenant by Smt. Sheela Devi the mother of the respondent/plaintiff

and with whom a Rent Agreement dated 25.10.2011 was executed.

Respondent/plaintiff is the son of Smt. Sheela Devi. Originally, the property

was owned by late Sh. Jeevan Dass the father of the respondent/plaintiff and the

husband of Smt. Sheela Devi. All the four other legal heirs of late Sh. Jeevan

Dass, (father of the respondent/plaintiff) executed a registered Relinquishment

Deed dated 17.4.2014 in favour of the respondent/plaintiff and who therefore

became the sole owner of the suit property. The suit plaint also talks of further

oral agreements for extending the tenancy for different periods of 11 months etc

and the rate of rent ultimately becoming Rs.4,950/- from 5.9.2012 to 4.8.2013.

3. Appellant/defendant contested the suit and pleaded that the rate of

rent was Rs.500/- per month. The appellant/defendant admitted in paragraphs 4

to 6 of his written statement that there was a relinquishment deed in favour of

the respondent/plaintiff by the other four legal heirs of late Sh. Jeevan Dass and

also that appellant/defendant was a tenant whose landlady was Smt. Sheela Devi

and that a rent agreement was executed with Smt. Sheela Devi, and Smt. Sheela

Devi received rent from the appellant/defendant. Suit was thus prayed to be

dismissed as the appellant/defendant had protection of the Delhi Rent Control

Act, 1958.

4. The courts below have decreed the suit under Order XII Rule 6

CPC by observing that the appellant/defendant admits that he is a tenant under

Smt. Sheela Devi, and that the Rent Agreement dated 25.10.2011 is also

admitted to be executed by the appellant/defendant. Appellant/defendant also

admitted the execution of the Relinquishment Deed dated 17.4.2014 by the

other four legal heirs of late Sh. Jeevan Dass in favour of the

respondent/plaintiff but only pleaded that the Relinquishment Deed dated

17.4.2014 was for only first floor of the premises but not for the suit/tenanted

premises at the second floor back portion and that therefore when contents of

the relinquishment deed are read the same show it was not only for the first

floor but for the entire property.

5. Therefore it was admitted position that the appellant/defendant was

a tenant, and once the contents of the relinquishment deed and the rent

agreement are seen it is found that the respondent/plaintiff is the owner or in

any case Smt. Sheela Devi the mother of the respondent/plaintiff would be the

original landlady of the suit property. The Rent Agreement dated 25.10.2011

shows that the rate of rent was Rs.4,500/- per month and therefore the

suit/tenanted premises did not have protection of the Delhi Rent Control Act.

6. The relevant observations of the trial court in this regard are

contained in paragraph 9 of the judgment of the trial court and which reads as

under:-

"9. From the pleadings as noted above, it is seen that the defendant admits himself to be a tenant under the mother of the plaintiff Smt. Sheela Devi with respect to 2nd floor, back portion of the property No.T-44 having been induced vide rent agreement dt. 25.10.2011. It is pertinent to observe that the defendant has not challenged the relinquishment deed. Rather in para 4 of reply on merits of this WS, it is stated that the said Relinquishment Deed is only in respect of Ist Floor of property No.T-44 and not the 2nd floor/tenanted premises and the contents of relinquishment deed may be read. Thus, defendant is also relying upon the said registered relinquishment deed. Before readings the same, it is hereby noted that the plaintiff claims to have become the owner of the entire property No. T-44 which includes the tenanted suit property i.e. back portion of 2nd floor. Now, since the defendant is also relying upon the said relinquishment deed dt. 17.04.2014, there is no dispute as to the shares of other legal heirs being relinquished in favour of the plaintiff and what remains to be seen is that in respect of what property/portions the shares have been relinquished as the defendant has contended that the father of the plaintiff had purchased Ist floor portion of property No. T-44 and not purchased the tenanted portion i.e. back portion of 2nd floor. In this regard firstly, it may be noted that the defendant has not much business to challenge

the ownership by virtue of Section 116 of Indian Evidence Act. It is also so as he has admitted himself to be the tenant under the mother of the plaintiff. Further, reading of the registered relinquishment deed dt. 17.04.2014 reveals that it mentions that the entire property was purchased by Sh. Jeevan Dass i.e. father of the plaintiff vide registered agreement to sell. It is also mentioned in the deed that the Releasors and Releasee are the co-owners in respect of built up of entire property bearing No. T-44 on Ist Floor with terrace roof rights along with proportionate undivided indivisible and impartible ownership rights of the underneath land of the said property with superstructure. Thus, although the description of the property as to depict and include the 2nd floor portion is not clearly mentioned yet the ownership rights of the underneath land has been clearly stated which certainly gives a conclusion that the entire property No. T- 44 along with underneath land belonged to the father of the plaintiff and after his death devolved upon his five legal heirs out of whom four have relinquished their shares in it to the plaintiff. It cannot be comprehended that 2nd floor on the property No. T-44 was not purchased by the father of the plaintiff as the entire land underneath T-44 was purchased and all the constructed floors including terrace form inseparable parts of the property. Thus, the contention of defendant that plaintiff's father purchased only Ist floor portion and not the 2nd floor portion of T-44 is not acceptable. It cannot also be the case that the 2nd floor does not exist as admittedly defendant is a tenant at the back portion of the 2nd floor only and the plaintiff resides at the front portion of the 2nd floor. Thus, by virtue of this document plaintiff is deemed to be the landlord of the defendant and the defendant cannot be allowed to plead that there is no relationship of landlord and tenant between the parties. Admittedly, the rate of rent is above Rs.3,500/- per month. The receiving of legal notice U/s 106 of Transfer of Propety Act dt. 23.08.2014 is not denied. Even the filing of the suit tantamount to legal notice. Defendant has not specifically denied the allegations of plaint para 13 that he was immediately disclosed about the registered relinquishment deed by plaintiff and his mother and was asked to pay rent and arrears only to the plaintiff. Thus, it is taken as an admission under Order VIII rule 5 CPC there being no specific denial. Even otherwise, the knowledge of the relinquishment deed is imputed upon the defendant by way of the present suit also."

(underlining added)

7. In my opinion, the courts below have rightly decreed the suit of the

respondent/plaintiff, inasmuch as, the appellant/defendant admits that he is a

tenant. The issue is therefore only to be seen that what is the rate of rent and

whether the respondent/plaintiff was or was not the owner/title holder of the

suit/tenanted premises. Since the Rent Agreement dated 25.10.2011 was

admitted, when we refer to the same it is found that the rate of rent was

Rs.4,500/- per month and therefore the appellant/defendant did not have

protection of the Delhi Rent Control Act. The relevant portion of the Rent

Agreement dated 25.10.2011 reads as under:-

"RENT AGREEMENT This Rent Agreement is made and executed at New Delhi on 25.10.2011 by and between:-

Smt. Sheela wife of Late Shri Jeewan Dass Malik, R/o T-44, Ist Floor, West Patel Nagar, New Delhi-110008, (hereinafter called the First Party/LANDLORD) AND Shri Sanjeev Gupta son of Late Shri Jagdish Gupta, R/o 32/47, West Patel Nagar, New Delhi-110008, (hereinafter called the Second Party/Tenant), having Permanent r/o B-10, Sector-34 (Uday Giri) Noida - 201301.

And whereas the expression of both the parties which shall includes their legal heirs, nominees, next of kins, successors, administrators etc. And whereas the first party is the owner/occupier and in possession of Property No.T-44, West Patel Nagar, New Delhi - 110008.

And whereas the first party has letout the Back Portion of SECOND FLOOR part of above noted property comprising with one Room Set, to the Tenant/Second party on monthly rent of Rs.4,500/- (Rupees Four Thousand Five Hundred only) excluding water & electricity & Water charges for the use of RESIDENTIAL PURPOSES ONLY w.e.f. 05.10.2011 to 04.09.2012 for a limited period of 11 (Eleven Months) only." (underlining added)

8. So far as the ownership issue of the respondent/plaintiff is

concerned, it is seen that in suits such as the present for possession against the

tenant and thus all that the respondent/plaintiff has to show that he has a title

better than that of the appellant/defendant, and his entitlement to possess the

suit premises. In this regard, it is noted that admittedly the original owner of the

property was late Sh. Jeevan Dass and respondent/plaintiff is the son of late Sh.

Jeevan Dass and hence would be a co-owner even independent of registered

Relinquishment Deed dated 17.4.2014 executed by the four other legal heirs in

favour of the respondent/plaintiff. Infact the appellant/defendant has no locus

standi to question the title of the respondent/plaintiff because the

appellant/defendant admits the mother of the respondent/plaintiff to be the

landlady of the suit/tenanted property and the mother Smt. Sheela Devi is not

disputing the ownership of the respondent/plaintiff/son. I may note that by

virtue of Section 116 of the Indian Evidence Act, 1872 the appellant/defendant

is estopped from questioning the ownership of the suit property of Smt. Sheela

Devi who is admitted by the appellant/defendant to be the landlady.

9. At this stage, counsel for the respondent/plaintiff points out that the

appellant/defendant has not paid the rent now for around 34 months. It is also

stated that the appellant/defendant has also not paid the electricity charges and

water charges with respect to the suit/tenanted property and which have thus

been paid by respondent/plaintiff. It is, therefore, clear that appellant/defendant

lacks bona fides and is guilty of not paying huge amount of rent to the

respondent/plaintiff which as of today would become approximately in the

region of Rs.1,60,000/- at least, besides of course the dues towards electricity

charges and water charges.

10. This second appeal was argued on behalf of the

appellant/defendant by his counsel who after arguments, at the stage of dictation

of the judgment for dismissing of the second appeal, sought a pass over for

taking instructions for vacating the suit premises within a specified time of

course by also clearing the arrears of rent. Counsel for the appellant/defendant

has, however, failed to appear after a pass over. This Court, therefore, is

passing the present judgment.

11. In view of the above, there is no merit in this second appeal and no

substantial question of law arises. The Regular Second Appeal is dismissed. In

view of the less than honest conduct of the appellant/defendant, this second

appeal is dismissed with costs of Rs.25,000/- and which costs shall be paid by

the appellant/defendant to the respondent/plaintiff within a period of four weeks

from today.

SEPTEMBER 19, 2016                                     VALMIKI J. MEHTA, J
AK