Delhi High Court
Surender Kumar Gupta & Ors. vs Mahesh & Ors. on 16 December, 2020
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 16.12.2020
+ RC.REV. 188/2020
SURENDER KUMAR GUPTA & ORS. ..... Petitioners
Through Mr.Ankit Jain, Mr.Mohit
Gupta, Advs.
versus
MAHESH & ORS. ..... Respondents
Through Mr.Varun Yadav, Ms.Shikha
Goyal, Advs. for R-1-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
This hearing has been held by video conferencing.
CM 20063/2020 (exemption)
Allowed, subject to all just exceptions.
RC.REV. 188/2020 & CM 20062/2020
1. This petition has been filed challenging the order dated
21.10.2019 passed by the learned Additional Rent Controller (South),
Saket Courts in Eviction Petition no.35/2017 titled Mahesh & Anr.
vs. Surender Kumar Gupta & Ors., dismissing the application of the
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petitioners seeking Leave to Defend against the above eviction
petition filed by the respondents.
2. The learned counsel for the petitioners has vehemently argued
that the respondents have failed to prove themselves to be the owners
of the shops in question that is Shop Nos.368/2 and 368/3 in property
bearing No.H-368, Ward No.4, Mohalla Imambara, Delhi-110030
(hereinafter referred to as the 'tenanted shops').
3. In this regard, the learned counsel for the petitioners submits
that in the eviction petition filed by the respondents, it was asserted
that the property in question was owned by Late Sh. Hazari Lal,
grandfather of the respondents, however, no document substantiating
such claim was filed by the respondents on record. He submits that in
the eviction petition, it was further mentioned that the property was
thereafter gifted by Late Sh.Hazari Lal to his wife-Smt. Vidyawati
alias Bhuddu. The gift deed which was filed by the respondents on
record, however, is in favour of 'Bhuddu', who has not been identified
in the gift deed as the grandmother of the respondents and therefore,
whether this gift deed in fact named Smt.Vidywati as the owner of the
property will be a disputed question of fact to be determined in the
trial, for which Leave to Defend was to be granted in favour of the
petitioners.
4. The learned counsel for the petitioners further submits that in
the eviction petition, it was further mentioned that the shops in
question have fallen in the share of the respondents under a Family
Settlement. The Family Settlement, which is placed on record, in fact,
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transfers the properties in the in presentine and therefore, would not
confer any title on the respondents to the said shops without the
documents being registered. He submits that therefore, the ownership
of the respondents was a disputed question of fact, which require a
trial and at least Leave to Defend be granted in favour of the
petitioners.
5. As far as the bona fide necessity of the shops set out by the
respondents, the learned counsel for the petitioners submits that the
eviction petition was filed on 20.03.2017. To set up a case of the bona
fide necessity, the respondents placed on record a lease deed dated
21.09.2016, that is a few months prior to the filing of the eviction
petition, to assert that they were tenants in another shop which needed
to be vacated by them. He submits that therefore, an artificial need for
the tenanted shops was set up by the respondents and this could not
have been believed at least at the stage of consideration of application
seeking Leave to Defend.
6. On the other hand, the learned counsel for the respondents,
placing reliance on the judgment of this Court in Harbhajan Singh @
Bhajji vs. Mahavir Singh MANU/DE/0553/2019 and Rajender
Kumar Sharma & Ors. vs. Leela Wati & Ors. MANU/DE/1386/2008,
has submitted that the petitioners cannot challenge the Family
Settlement. He further submits that the predecessor in interest of the
petitioners have in fact admitted to the status of being tenants under
Smt. Vidyawati in form of a compromise that was recorded before the
learned Sub-Judge, Delhi in a Suit filed by Smt. Vidyawati.
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7. He further submits that the petitioners have acted in a mala fide
manner inasmuch as they are not in occupation of the tenanted shops
and in fact are filing this petition merely to retain possession thereof
so as to extract money from the respondents.
8. I have considered the submissions made by the learned counsels
for the parties.
9. As far as the ownership of Smt.Vidyawati is concerned, the
respondents have placed on record the compromise recorded before
the learned Sub-Judge, Delhi in Suit no.608/1958, wherein the
predecessors in interest of the petitioners have admitted themselves to
be tenants under Smt.Vidyawati with respect to the tenanted shops.
The respondents have also placed on record the Gift Deed executed in
favour of Smt.Vidyawati. Though, it may be correct that the same
describes the donee to be 'Buddhu', it also records that 'Buddhu' is
the wife of Sh.Hazari Lal. The insistence of the petitioners qua the
respondents to prove even the ownership of Sh.Hazari Lal cannot be
accepted as a ground to grant them leave to defend. The
landlord/landlady cannot be expected to prove the case to such
exactitude.
10. As far as the family settlement is concerned, as held by this
Court in Harbhajan Singh (supra), the petitioners as tenants cannot
challenge the same for want of registration. I may only quote from the
said judgement as under:
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"4. Yet again the counsel for the petitioner has agitated
these issues before me. It is argued the family settlement dated
30.11.1998 is in fact a deed of partition which requires
registration and since is not registered; could not have been
relied upon by the learned ARC. I disagree with the
contention. Firstly, because even if this partition deed is
ignored still the petitioner is a co-owner of the property as has
inherited from common ancestor; and secondly, in Gopal
Kishan vs. Ram Saroop 243 (2017) DLT 66 the Court held a
tenant has no locus standi to challenge the family settlement so
arrived at between the members of the family of the land lord
even if it is not registered. All that the respondent lastly is to
show he is having a better status than the tenant, may be he is
not an absolute owner of the premises. Admittedly, the
petitioner has been paying rent to the respondent."
11. There is, therefore, enough material on record to substantiate
that the respondents were the owner- landlords of the tenanted shops. I
therefore, find no merit in the submission of the petitioners in this
regard.
12. As far as the bonafide necessity is concerned, the respondents
had pleaded the use of the shop taken on rent by them. The petitioners
apart from stating that the lease deed was executed just prior to filing
of the eviction petition, have not disputed the use of such property by
the respondents. I therefore, find no merit in this submission as well.
13. I further further find merit in the submission of the respondents
that the present petition has been filed with a mala fide intent of
somehow blackmailing the respondents. The respondents in the
eviction petition had asserted that the tenanted shops are not being
used by the petitioners and are in fact in dilapidated condition. The
petitioners in the Leave to Defend admitted that a portion of the shop
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has fallen down and did not dispute that they are not in use of the
tenanted shops. Clearly, the petitioners are wanting to hold on to the
tenanted shops wanting to extract consideration from the respondents
for vacating the same.
14. In view of the above, I find no merit in the present petition The
same is dismissed with cost quantified at Rs.25,000/-.
NAVIN CHAWLA, J
DECEMBER 16, 2020
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