Anwar Kamal v. Subhan Ahmed

1. The grievance of the Petitioner/tenant as articulated in the present Petition is that the order dated 23.07.2024 [hereinafter referred to as “Impugned Order”] passed by the learned ACJ-cum-ARC, Central, Tis Hazari Courts, Delhi with respect to the premises i.e., ground floor of property bearing no. 2162, Rodgran, Lal Kuan, Delhi – 110006 [hereinafter referred to as “subject premises”] has wrongly dismissed the Application for leave to defend in view of the fact that that no triable issues have been raised by the Petitioner/tenant.

2. This Court had heard both the parties in the matter on the last date of hearing and passed a detailed order. It is apposite to set out the relevant part of the order dated 18.11.2024: “4. Learned Counsel for the Petitioner/tenant submits that there is no relationship of landlord-tenant between the parties since the Respondent/landlord is not the owner of the subject premises. It is contended by the learned Counsel for the Petitioner/tenant that the owner of the subject premises is one Smt. Pushpanjali Arora and this contention has been raised on the basis of a rent receipt counterfoil which was produced by the Petitioner/tenant before the learned Trial Court. 4.[1] In addition, it is contended that the Respondent/landlord has an alternate accommodation available including three godowns at Arora Building, Rodgran, Delhi and commercial space at Sheeshmahal, Azad Market, Delhi. 4.[2] Admittedly, the bona fide need of the Respondent/landlord has not been disputed by the Petitioner/tenant.

5. Learned Counsel for the Respondent/landlord submits that, in the first instance, the issues raised before this Court have already been raised before the learned Trial Court and have been dealt with. He further submits that so far as concerns the ownership of the property, it is not disputed that the original owner was one Sh. Khushi Ram who had since died and has bequeathed the property to his wife Smt. Raj Rani. It is the Respondent’s case that he has purchased the property from Smt. Raj Rani. 5.[1] Learned Counsel for the Respondent/landlord further submits that so far concerns the averments of the Petitioner/tenant that Smt. Pushpanjali Arora was the owner of the subject premises, the same was disputed by the Respondent/landlord before the learned Trial Court. He further submits that this contention has already been examined by the learned Trial Court in paragraph 11 and 12 of the Impugned Order and that there is no infirmity with the same.

6. On the aspect of alternate accommodation, learned Counsel for the Respondent/landlord seeks to rely upon paragraph 18 to 20 of the Impugned Order to submit that in the first instance, he has categorically denied in his reply to the Application of leave to defend that he owns the godowns or the commercial space as mentioned by the Petitioner in his Application for leave to defend. In addition, it is also stated that he does not run his business from Ghalib Apartment, Pitampura, Delhi but in fact resides there. 6.[1] Learned Counsel for the Respondent/landlord thus, submits that the Impugned Order does not suffer from any infirmity.

7. An examination of the Impugned Order shows that the submissions raised by the learned Counsel for the Petitioner before this Court have already been previously raised by him before the learned Trial Court and have been examined and the Impugned Order has been passed.

8. As adverted to above, the bona fide need is not being controverted. The availability of suitable alternate accommodation has also been denied by the Respondent/landlord. So far as concerns the issue of ownership of the subject premises, it is settled law that all that the Respondent/landlord has required to show is that he is more than just a tenant. In addition, the Impugned Order also contains a finding that the Petitioner/tenant does not claim to be an owner but does claim to be a tenant.” 2.[1] As can be seen from the above, so far as concerns the landlordtenant relationship between the parties and ownership of the subject premises, the learned Trial Court has given a finding that the Respondent/landlord is the owner of the subject premises. It is however the case of the Petitioner/tenant that the owner of the subject premises is one Smt. Pushpanjali Arora and this contention has been raised on the basis of a rent receipt counterfoil which was produced by the Petitioner/tenant before the learned Trial Court. On the contrary it is the contention of the Respondent/landlord that the subject premises has been purchased by the Respondent/landlord from Smt. Raj Rani. 2.[2] The learned Trial Court examined the issue and has held that the Petitioner/tenant has failed to show how the subject premises was acquired by Smt. Pushpanjali Arora so as to confer it on the Petitioner/tenant. It was further held by the learned Trial Court that all that is required to be shown in an Eviction Petition is that the Respondent is more than a tenant and that the Petitioner/tenant has admitted to being a tenant. The relevant extract of the Impugned Order is set out below: “10…. In the entire application for leave to defend, the respondent has failed to state the exact relationship subsisting between Smt. Pushpanjali Arora and Sh. Khushi Ram Arora. He has just relied upon the counterfoil of a rent receipt dated 05.07.2015, issued in his favour as well as in favour of his brother Ikhlas Ahmed, by Smt. Pushpanjali Arora to claim that it is her who became the owner of the demised premises after the demise of Sh. Khushi Ram Arora, and later the said Pushpanjali Arora had written a letter addressed to him as well as the LRs of his deceased brother Ikhlas Ahmed requiring them to pay rent qua the demised premises to Mst. Husn Ara Begum w.e.f. 01.04.2016. The respondent has failed to elaborate as to how the said title was acquired by the said Pushpanjali Arora. Per-contra, the petitioner has relied upon the registered Sale Deed executed in favour by Sohail Sartaj and Shahar Yaar, the attorney holders of Asha Malik, Roma Arora@ Poonam Arora vide GPA dated 05.08.2016, upon whom the property was bequeathed by their late mother Raj Rani Arora, who inturn was the beneficiary of the Will of her late husband Sh. Khushi Ram Arora. By virtue of the Sale Deed, the petitioner has established that he has some semblance of title over the demised premises, which is better than that of the respondent. Needless to say, the respondent has not claimed to be the owner of the demised premises. He has only disputed the ownership of the petitioner, without specifying as to who is the owner thereof. In view thereof, the case of the petitioner, which is supported by registered Sale Deed in his favour appears to stand on a better footing. While it is true that in terms of Section 116 of Indian Evidence Act, 1872, a tenant can challenge the subsequent title of a transferee of a property, it is equally well settled position of law that when tenant challenges the title of the landlord over the tenanted property, he is also required to state as to who is the actual owner of the property, if not the petitioner…….. 11….. Even for the respondent to claim that Pushpanjali Arora became the owner of the demised premises merely on the basis of the rent receipt is an argument which is unsustainable in law. The said receipt is not a Conveyance Deed or a title document, needless to say. Petitioner has placed reliance on a registered Will, and respondent/tenant has no right to challenge the said Will, since he is not the legal heir of the executant Khushi Ram Arora. (Ret: Aljan Dass Vs. Madan Lal 6 {1970)DLT260). The fact that the Wills executed by Sh. Khushi Ram Arora (who expired on 12.11.1986 as per petitioner) and Raj Rani Arora (who expired on 03.12.2013) were not probated is also not an impediment in them becoming operational upon the deaths of the testators, as per all settled cannons of law. Bearing in mind the fact that the scope of these proceedings cannot be stretched so to convert them into a suit for declaration of title, for the purpose of the proceedings instant it can safely be concluded that it is the petitioner who is the owner of the demised premises. This is more so inview of the fact that even the respondent has nowhere contended that any title dispute with respect to the demised premises is pending between the Pushpanjali Arora or Husn Ara Begum on the one hand and the petitioner or his predecessor-in interest on the other. For the purpose of any proceedings under Section 14 (I) (e) of DRC Act, the scope of the term 'ownership' is only that the petitioner/landlord has to show that he is on a better footing than the respondent and does not have to show perfect title. Reliance at this juncture can be placed upon the judgment titled T.C. Rakhi Vs. Usha Gujral, ILR 1969 Delhi 9. In this endeavor, the petitioner has succeeded by placing reliance on registered instruments in his favour, and is declared to be the owner of the demised premises for the purpose of these proceedings.” [Emphasis supplied] 2.[3] The learned Trial Court has additionally relied upon the rent receipt which has been signed by the Petitioner/tenant and filed by the Respondent/landlord to hold that the Petitioner/tenant has attorned to the Respondent as landlord and is barred from disputing the title of the Respondent/landlord over the subject premises.

3. On the aspect of challenge to the ownership raised by the Petitioner/tenant, in a petition under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 [hereinafter referred to as “Act”], it is a settled law that all that a landlord has to prove is a better title than the tenant to seek eviction from the tenanted premises. The Supreme Court in the case of Swadesh Ranjan Sinha v. Haradeb Banerjee[1], in the context of ownership in an eviction petition, has clarified that: “ 9. All that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The question, however, is whether he has a superior right or interest vis-a-vis the person challenging it….” 3.[1] This Court while discussing the issue of ownership in a Petition filed under Section 25-B(8) of the Act in a case titled R.S. Chadha v. Thakur Dass[2] has held that what a landlord has to prove is a better title than the tenant to seek his eviction for the tenanted premises. The Court relied on the judgment of the Supreme Court in the case of Shanti Sharma vs. Ved Prabha[3] to hold that the term owner has to be understood in the context of the background of the law. The relevant extract reads as follows: “10.[1] It is settled law that what a landlord has to prove is a better title than the tenant to seek his eviction from a tenanted premises under Section 14(1)(e) of the Act. The Supreme Court in the case of the Shanti Sharma v. Ved Prabha has held as follows:… xxx xxx xxx “14. The word “owner” has not been defined in this Act and the word ‘owner’ has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the government or the authorities constituted by the State and in this view of the matter it could not be thought of that the legislature when it used the term “owner” in the provision of Section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term “owner” has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase “owner” thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term “owner” is vis-a-vis the tenant i.e. the owner should be something more than the tenant. Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure….”

4. The learned Counsel for the Petitioner/tenant has not been able to controvert this contention before this Court. The only contention raised by the Petitioner/tenant before this Court is that there was a joint tenancy in the matter and that the legal heirs of the joint tenant were not impleaded.

5. Learned Counsel for the Respondent/landlord submits that this aspect was raised before the learned Trial Court and has already been dealt with in the Impugned Order. He seeks to rely upon paragraph nos. 13 and 14 of the Impugned Order in this behalf. 5.[1] On this aspect, the learned Trial Court has held that the Petitioner was inducted as a co tenant along with his brother in the subject premises and that the Petitioner/tenant has failed to bring anything on record to prove otherwise. The relevant extract of the Impugned Order is reproduced below:

proportion to their share in tenancy, nor were they were issued separate rent receipts. These circumstances impel the Court to raise the inference that both the brothers were joint tenants or co-tenants. Reliance at this juncture can be placed upon the judgment of Hon'ble Supreme Court of India titled Kanji Manji Vs. The Trustees of The Port of Bombay 1963 AIR

468. As such, upon the death of the one of the joint tenants, by way of survivor-ship, tenancy rights devolved upon the respondent alone, right of survivorship being one of the important incidences of joint tenancy. The fact that demised premises are occupied by respondent alone, without any interference from LRs of his brother, also fortifies the conclusion reached by Court. Petition instant cannot be held to be bad in law for non-joinder of LRs of Ikhlas Ahmed, thus.”

6. It is no longer res integra that all legal representatives of a tenant are not required to be impleaded as a party to an Eviction Petition. Reliance is placed on the judgment of the Supreme Court in Suresh Kumar Kohli vs. Rakesh Jain and Another[4] in this regard. The relevant extract is reproduced below: “24. We are of the view that in the light of H.C. Pandey [H.C. Pandey v. G.C. Paul, (1989) 3 SCC 77], the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants. It is not necessary for the landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of the deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.”

7. As was stated on the last date of hearing, on the aspect of bona fide need of the Respondent/landlord, there has been no dispute by the

Petitioner/tenant. The learned Trial Court while examining this aspect has held that Petitioner/tenant has not controverted the averment made by the Respondent/landlord regarding the bona fide need of the subject premises, thus it can be held that no triable issue has been raised in this regard. 7.[1] The need as projected by the Respondent/landlord in paragraph 18(F) of the Eviction Petition is that the Respondent/landlord requires the subject premises for his own business for earning his livelihood. He has further stated that the business premises which he is currently using is very small and that too as a licensee. The relevant extract is set out below: “18(F)The business premises used by petitioner is of small size wherein he is only a licensee of its owner Mr. Vaqar Ahmed, elder brother of petitioner who needs it for his own business and has asking petitioner since long to vacate the same and shift in the tenanted premises which is lying vacant. The petitioner doesn't have any commercial property in Delhi except the tenanted premises in occupation of respondent which he requires bonafidely for his business for earning his livelihood. The petitioner no longer can use the premises in his occupation for business as the same is not owned by him for the reason given herein above which respondent is also aware but demanding a hefty sum to vacate.” 7.[2] Clearly, the need of the Respondent/landlord which is for the use of the subject premises for his own business is bona fide. This Court finds no infirmity with this finding of the learned Trial Court given what is stated above.