Rajinder Bhardwaj v. Vijay Kumar Kaushik & Ors.

5.1. He has placed reliance upon an inspection report dated 25.02.1976 (‘inspection report’) prepared by the Municipal Corporation of Delhi (‘MCD’) wherein the status of the deceased father of the Petitioner herein is shown as a tenant in the tenanted premises.

5.2. He has also placed reliance upon documents filed with the CM APPL. 38028/2019, filed under Order 41 Rule 47 of Code of Civil Procedure, 1908 (‘CPC’), and more specifically the application for electricity connection submitted by the Petitioner in the year 2009, before the BSES Yamuna Power Limited (‘BSES’). He states that in the said application, submitted before BSES, the Petitioner herein has duly declared that Sh. Madan Lal is a tenant in the premises and the landlord/owner is Sh. Khazan Singh Kaushik. He also relies upon the accompanying document filed with the said application by the Petitioner herein. He states that in pursuance to the said application, BSES gave a connection to the Petitioner for the tenanted premises in the year 2009. He states that in view of the said documents, the relationship of landlord-tenant stands proved.

5.3. He states that the Petitioner herein has raised mutually inconsistent pleas, inasmuch as on one hand he is claiming himself to be the owner (by title) of the tenanted premises on the basis of purported receipt dated 19.01.1946 and on the other hand in his leave to defend application he was claiming ownership by adverse possession. He states that therefore, the mutually inconsistent pleas made by the Petitioner falsifies his claim of ownership of tenanted premises. He states that the Respondents herein dispute the Petitioner’s claim of ownership (by title) which has been set up for the first time in the revision petition as it is false. Analysis and findings

6. This Court has heard the learned counsel for the parties and perused the paper book. The arguments in this matter were heard on 31.01.2023 and 13.02.2023.

6.1. The only issue arising for consideration in this matter is with respect to the existence of the relationship of landlord-tenant between the parties.

6.2. The Petitioner has disputed the rent receipts and the rent agreement filed by the Respondent before the Trial Court. He disputes the said documents on the ground that the same do not bear the signature of the deceased father of the Petitioner, late Sh. Madan Lal, in running handwriting, whereas since the father of the Petitioner was an illiterate person, he only used to affix his thumb impression on documents. It has been contended that the original of the rent receipts was not produced before the Trial Court.

6.3. However, to substantiate the existence of relationship of landlordtenant, the Respondents have filed the CM APPL. No. 38028/2019 to place on record the documents filed by the Petitioner herein with BSES for grant of electricity connection along with application dated 17.03.2009. The said documents along with the application were received by the Respondents in another legal proceeding pending between the parties pertaining to the said electricity connection bearing CA No. 10052011[3].

6.4. The Respondent states that a perusal of the record of BSES shows that for obtaining the said electricity connection, the Petitioner herein duly declared before BSES that late Sh. Madan Lal was a tenant in the tenanted premises and late Sh. Khazan Singh Kaushik was the landlord. In fact, in the said application the Petitioner herein submitted the rent receipt dated 12.06.1984 issued by late Sh. Khazan Singh in favour of late Sh. Madan Lal, to evidence relationship of landlord-tenant.

6.5. Notice in the CM APPL. No. 38028/2019 was issued on 26.08.2019 and the Petitioner herein sought an opportunity to file reply on 14.11.2019. The Petitioners filed their reply to the said CM APPL. No. 38028/2019 and stated that the documents annexed with the said application could have been filed by late Sh. Madan Lal (father of the Petitioner) with BSES. It was further stated that however, the said documents, available in the file of BSES, have not been submitted by the Petitioner herein.

6.6. The Respondents have stated that the falsity of the aforesaid stand taken by the Petitioner is evident from the fact that late Sh. Madan Lal had expired in the year 1984 and therefore, the said documents submitted with the BSES in the year 2009, could not have been submitted by the deceased Sh. Madan Lal. It is stated that the said documents were submitted by the Petitioner and relying upon said documents, an electric connection bearing CA No. 10052011[3] was given by BSES on 22.05.2009. Respondents have also placed on record a copy of bill of supply for electricity issued by BSES dated 11.01.2022 which records the energization date of CA No. 10052011[3] as 22.05.2009. It is thus stated that on the basis of the aforesaid documents submitted by the Petitioner to BSES, the relationship of landlord-tenant stands proved.

6.7. The Respondent has also placed reliance on the MCD Inspection Report wherein the status late Sh. Madan Lal (father of the Petitioner) is recorded as tenant and tenant has been shown to be in occupation of two tin shed, which was used by him for carrying on hardware work.

6.8. The Respondent herein placed before the Trial Court the rent agreement and the rent receipts executed between late Sh. Madan Lal and late Sh. Khazan Singh Kaushik, evidencing the existence of relationship of landlord-tenant between the parties. The Respondents have produced before this Court during oral arguments, the originals of the rent receipts for the inspection of this Court. The Respondents have also placed on record before the Trial Court, documents forming part of the record of statutory authorities, which note the name of late Sh. Khazan Singh Kaushik on the receipts of house tax, water bills and electricity bills. The inspection report issued by the municipal authority has already been noted hereinabove. The Trial Court after considering the aforesaid documents forming part of record of statutory authorities, has returned its finding with respect to existence of landlord-tenant relationship between the parties, which reads as under: - “22. Perusal of the record shows that in order to prove their ownership over the premises in question as well as existence of landlord-tenant relationship between the parties, the petitioners have placed on record the certified true copy of the Will in Urdu language along with its English translation executed by Pt. Udey Ram in favour of the father of the petitioners Sh. Khazan Singh Kaushik, whereby he bequeathed all his movable and immovable properties in favour of Sh. Khazan Singh Kaushik. After the demise of Pt. Udey Ram, Sh. Khazan Singh Kaushik became the absolute owner of the properties left behind by Late Pt. Udey Ram including the premises in question and remained in possession of the suit property till his demise in the year 2002 and after his death, his LRs including the petitioner herein became the absolute owner of the suit property, being the LRs of Late Sh. Khazan Singh Kaushik. The petitioner has also placed on record the certified copy of judgment passed by the Circuit Bench of Punjab High Court at Delhi in RFA No. 240 of 1951 titled as Sh. Nem Chand v. Sh. Khazan Singh in regular first appeal from the decree of the Court of the then Ld. Sub Judge, 1" Class Delhi dated 05.03.1951, dismissing the plaintiffs suit for possession declaration, which was related to one house and priestship of two temples, the property of Late Udey Ram wherein the said Sh. Nem Chand was claiming himself to be the adopted son of Pt. Udey Ram. The said appeal was also dismissed by the Hon'ble High Court holding that the plaintiff has failed to prove his adoption by the deceased Pt. Udey Ram. Further, the petitioner has also placed on record the various letters issued by Revenue Department, Water Department as well as MCD in the name of Sh. Khazan Singh at the address of the suit property. The petitioner has also placed on record the MCD Inspection Report wherein the father of. the respondent Sh. Madan Lai is mentioned as (Dakhalkar) and has been shown to be in occupation of two tin shed, which was used by him for carrying on hardware work. Further, to show the existence of landlord tenant relationship between the parties, the petitioners have placed on record the photocopy of rent deed in Urdu language alongwith its translation which was executed between Madan Lai and Sh. Khazan Singh, whereby Sh. Madan Lal (deceased father of the respondent) had taken on rent one vacant land dimensions 10' 20' situated near/adjacent to Mandir Mangla Devi bearing Municipal No. 10333, situated in Pul Mithai, Library Road, Delhi from Sh. Khazan Singh for manufacturing agriculture equipments. The petitioners have also placed on record the photocopy of counterfoils of the rent receipts. which were issued by Pt. Khazan Singh Kaushik in favour of Madan Lai, i.e. father of the respondent, in lieu of rent paid by him with respect to the suit premises. On the other hand, the respondent is making contradictory statements and blowing hot and cold in one breath as on one hand, respondent states that the respondent is in uninterrupted long possession and the same has therefore become adverse to the title holder and on the other hand, himself claims to be the title holder. Further, the respondent has failed to file any title document in his favour qua the suit premises showing that his father Late Sh. Madan Lal was the owner of the suit premises at any point of time. Respondent has merely filed the documents issued by various departments in favour of M/s Madan Lai & Sons bearing address of the suit premises, however, from none of the said documents, it can be said that M/s Madan Lal & Sons is operating its business from the suit premises as owner thereof…… ……Thus, from the documents placed on record by the petitioners, the ownership of the petitioners over the premises in question as well as existence of landlord-tenant relationship between the parties stands duly proved for the purpose of the DRC Act.” (Emphasis Supplied)

6.9. The veracity of the record of the statutory authorities produced by the Respondents has not been disputed by the Petitioner. The veracity of the said MCD Inspection Report is not in dispute. The said record duly records late Sh. Khazan Singh Kaushik as the landlord and late Sh. Madan Lal (father of the Petitioner) as the tenant. In view of the undisputed documents, this Court is of the opinion that there is no error in the aforesaid finding of the Trial Court as regards existence of relationship of landlord-tenant between the parties.

6.10. The documents placed on record by the Respondents evidence that the Electric Connection bearing CA No. 10052011[3] currently available at the tenanted premises is standing in the name of ‘M/s Madan Lal and Sons authorised signatory Rajinder Bhardwaj’, was energized on 22.05.2009. The payment for the said electricity bill is admittedly being paid by the Petitioner herein. In view of the fact that the name of the Petitioner herein i.e., Rajinder Bhardwaj forms part of the billing name for the said electricity connection, the Petitioner herein is bound by the documents submitted to BSES for obtaining the said electricity connection. There is also a presumption that the Petitioner herein has complete knowledge of the documents, submitted to BSES for obtaining the said connection.

6.11. The documents filed with BSES in the year 2009, in support of said application for an Electric Connection duly enclose the rent receipt dated 12.06.1984 issued by late Sh. Khazan Singh Kaushik and other documents acknowledging him as the landlord. Pertinently, the Petitioner has contended that the said documents filed before the BSES in the year 2009, may have been submitted by late Sh. Madan Lal (father of the Petitioner). This plea of the Petitioner amounts to an admission and disentitles him from disputing the relationship of landlord-tenant.

6.12. This Court is of the opinion that in view of the documents filed before the BSES acknowledging the ownership/landlordship of late Sh. Khazan Singh Kaushik and the status of the occupation of the premises by late Sh. Madan Lal in the capacity of the tenant, the relationship of landlord–tenant cannot be disputed in the facts of this case.

7. The Petitioner has set up in this revision petition, for the first time, a claim of ownership (by title) of the tenanted premises and in this regard, he has filed an application bearing CM APPL. 13861/2019 for placing on record a purported unregistered receipt dated 19.01.1946 in support of the said claim of ownership. In the said application it is stated that the existence of said document has been discovered after the passing of the eviction order.

7.1. The said purported unregistered receipt dated 19.01.1946 records that the tenanted premises have been sold by one Mr. Kharku, son of Sh. Ganga Ram to Sh. Madan Lal, father of the Petitioner herein.

7.2. The Respondent herein filed a reply to the aforesaid application and has opposed the admissibility of the said document on the ground that the plea of ownership (by title) was not setup by the Petitioner in the application seeking leave to defend. On the contrary, the Petitioner herein sought to set up a plea of adverse possession in his application seeking leave to defend. It is contended that the documents sought to be placed on record with the aforesaid application are forged and fabricated and have been created to usurp the property of the Respondents. It was also submitted in the alternative that the purported unregistered receipt dated 19.01.1946 cannot transfer or create any right, title or interest in favour of late Sh. Madan Lal in the tenanted premises.

7.3. In the opinion of this Court, the new plea of ownership (by title) set up by the Petitioner in the revision petition on the basis of the documents filed for the first time in this revision petition by virtue of CM Appl. 13861/2019 i.e., an unregistered receipt dated 19.01.1946 fails to raise any triable issue for the following reasons: i. firstly, the said plea was neither raised in the leave to defend and is not corroborated by any independent evidence available with any statutory authority; ii. secondly, the said plea is falsified by the documents of the statutory authorities, which record the name of late Sh. Khazan Singh as the owner/landlord and late Sh. Madan Lal as the tenant as late as in the year 1976; iii. thirdly, the said plea is falsified by the declaration made in the year 2009 before BSES admitting the status of late Sh. Madan Lal as a tenant; iv. fourthly, an unregistered receipt cannot transfer or create any right title or interest in an immovable property; and v. fifthly, the purported unregistered receipt is said to be executed by one Sh. Kharku in favour of late Sh. Madan Lal. However, the legal capacity of Sh. Kharku to execute the purported receipt for the tenanted premises has not been substantiated from the record.

7.4. In the leave to defend, the plea set up by the Petitioner was of adverse possession. The said plea of adverse possession raised in the first instance, lends substance to the plea of the Respondent that the unregistered receipt dated 19.01.1946 is false and fabricated and this plea raised in the revision petition is an afterthought. This Court is therefore not persuaded that the Petitioner or late Sh. Madan Lal became the owner of the tenanted premises on the basis of an unregistered receipt dated 19.01.1946 and rejects as wholly implausible.

7.5. It is settled law that the plea of ownership by transfer of title and adverse possession are mutually inconsistent. A three Judge Bench of the Supreme Court in the case of Narasamma and Ors. v. A. Krishnappa (dead) through LRs, (2020) 15 SCC 218, while referring to various precedents has held that the plea of title and adverse possession cannot be advanced simultaneously and from the same date. The relevant portion of the said judgment reads as under: - “32. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.

33. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."

34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal, which observed in para 4 as under: (SCC pp. 640-41) "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nee vi, nee clam, nee precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

XXX XXX XXX

38. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.

39. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.” (Emphasis Supplied)

7.6. In fact, the Petitioner herein by setting up a plea of adverse possession, is in fact, admitting that the late Sh. Khazan Singh Kaushik was indeed the recorded owner of the subject property. The Supreme Court in the case of Narasamma and Ors. (Supra), has also held that when a plea of adverse possession is projected it is inherent in the nature of it that someone else is the owner of the property and therefore the plea on the title and adverse possession are mutually inconsistent and the latter can begin to operate only when the former is renounced.

7.7. Thus, with the existence of relationship of landlord-tenant being established on record, there is no error or infirmity in the eviction order passed by the Trial Court and the Respondents herein are entitled to the order of eviction for recovery of possession of the tenanted premises. Use and Occupation charges

8. The Respondents have submitted that the tenanted premises have been lying vacant for more than twenty-one (21) years as on date and not being used by the Petitioner. The learned counsel for the Petitioner did not dispute the said submission of the Respondents during the course of hearing.

8.1. The eviction petition was filed on 17.01.2018 and the eviction order was passed on 27.11.2018. However, no use and occupation charges have been paid by the Petitioner to the Respondents after the passing of the eviction order and during the pendency of this petition. This Court is of the opinion that the Petitioner herein has raised false and frivolous pleas of denial of landlord-tenant relationship in order to avoid execution of the eviction order. Thus, the Petitioner has acted to the detriment of the Respondents herein, who had filed the eviction petition for their bona fide need of the accommodation of their family members. Pertinently, no arguments were addressed by the learned counsel for the Petitioner on the issue of bona fide need and there is therefore, no dispute with respect to the said issue.

8.2. The subject matter of the tenanted premises are two shops, one admeasuring 10ft. x 15ft. and other measuring 10ft. x 20ft., both facing the main road of about 30 ft. The Respondent has filed a CM APPL. 38034/2019 for direction to the Petitioner herein to pay use and occupation charges of Rs. 50,000/- per month i.e., Rs. 25,000/- for each shop, in view of the judgment of Supreme Court in Atma Ram Properties Pvt. Ltd. v. Federal Motors Pvt. Ltd., (2005) 1 SCC 705. The Respondents have annexed a rent agreement dated 06.08.2018 to substantiate the rate of rent.

8.3. The Petitioner has filed a reply to this application and stated that the rate of rent for each shop cannot be more than Rs. 6,000/- per month and relied upon a rent agreement dated 11.12.2019 to support the said rate of rent.

8.4. It is relevant to note here that the reply filed by the Petitioner is dated 12.12.2019 and the copy of the rent agreement is dated 11.12.2019. The veracity of the document is suspect considering the conduct of the Petitioner in this matter in raising false defences to obstruct the eviction proceedings.

8.5. This Court is of the view that the use and occupation charges is fixed at Rs. 7,000/- per month for each shop with effect from 01.12.2018 till the date of handing over of possession of the tenanted premises. The legal representatives of the Petitioner are therefore liable to pay a total amount of Rs. 14,000/- per month (Rs. 7,000 x 2).

8.6. The arrears for the period of 01.12.2018 to 31.03.2023 is Rs. 7,28,000/- (52 months x Rs. 14,000/-) within two weeks. The Respondents will be entitled to recover the said arrears and use and occupation charges for the month April, 2023 until the date of handing over of the possession in the execution petition.

8.7. The stay of execution granted vide order dated 27.03.2019 is hereby vacated and the Respondents are at liberty to execute the eviction order forthwith.

9. With the aforesaid directions, the present petition along with pending application, if any, is dismissed. The legal representatives of the Petitioner are directed to pay costs of Rs. 25,000/- to Delhi High Court Legal Services Committee within two weeks.

MANMEET PRITAM SINGH ARORA, J MARCH 17, 2023