Aero Traders Pvt Ltd v. Ravinder Kumar Suri

8. In his written statement, the petitioner has alleged the subject property was purchased in the year 1960 by one Mr.Jagat Ram Suri vide registered sale deed dated 05.02.1960, registered with Sub-Registrar New Delhi. It was averred Mr.Jagat Ram Suri died on 18.10.1972 and in terms of his Will, the property devolved upon his four sons, including the respondent. However vide a power of attorney dated 18.03.1975, duly registered, by Mr.Ranjit Kumar Suri and Mr.Krishan Kumar Suri, the brothers of the respondent, constituted their mother Smt.Savitri Suri as their general attorney in respect of their shares in the property. However vide a deed of relinquishment dated 25.07.1975 both these sons later relinquished their 1/4th share each in favour of Mr.Ravinder Kumar Suri and Mr.Rajan Suri and thus the respondent became owner of the half share in the entire property and whereas Mr.Rajan Suri became owner of the other half.

9. It was further alleged by the petitioner in his written statement Mr.Rajan Suri then sold his share to Mr.Anis-Ur-Rehman vide a registered sale deed 15.10.1982 and hence the respondent owns other half share in the property and for that he too had entered into an agreement to sell dated 03.11.1988 with M/s.Kwality Apartments Pvt. Ltd. (hereinafter referred as ‘KAPL’) in respect of entire ground floor in the property which fell to his share and had put the purchaser in vacant possession thereof against receipt of valuable consideration.

10. It was further alleged after the death of Mr.Anis-ur-Rehman, his legal heirs now hold the balance one-half share in the said Property, which previously vested in Mr.Anis-ur-Rehman and hence they are also necessary and property party in the eviction petition.

11. It was urged since the respondent had not filed any partition suit to partition the property between himself and his brother Mr.Rajan Suri or the transferee Mr.Anis-ur-rehman, hence per Mr.Sattar Mohammad Chaudhari Vs. Gundappa (1996) 6 SCC 373 this petition is not maintainable without the consent or impleadment of the other co-owners of the property.

12. It was further alleged with a view to secure the property for the purchaser, the tenancy of the premises was taken in favour of M/s.Aero Traders Pvt. Ltd. and the lease gave exclusive right/power to the lessee/petitioner to deal with the premises as it deemed fit, including the power to sublet. Pursuant to an agreement to sell with KAPL the respondent constructed a hall on the ground floor for KAPL. On construction thereof, a sum of Rs.2,00,000/- was payable to the respondent by KAPL and under the agreement to sell the said amount was paid by Mr.Avatar Singh who owns shares in KAPL. The said amount was paid on a clear understanding that it would be adjusted against the balance sale consideration payable to the respondent on transfer of the property. The remaining balance amount is thus only payable.

13. The respondent herein in his replication had rather denied Mr.Anis-ur-Rehman was an erstwhile associate of Mr.Avatar Singh. He denied the agreement to sell was for ground floor, the part of first and second floor. It was rather alleged the agreement to sell was executed only for a portion of the share of the respondent and the possession was never given to KAPL under the said agreement to sell as the said company neither offered nor paid the balance sale consideration to the petitioner, hence such agreement to sell was later cancelled by sending a legal notice dated 19.09.1992 to KAPL. Thereafter M/s.KAPL never took any step to pay the balance amount, hence the earnest amount was forfeited by the respondent. The copy of the cancellation notice dated 09.09.1992 is also on record. No suit was filed by M/s KAPL against the respondent till filing of the eviction petition.

14. It is also to be noted yet another eviction petition against this very petitioner was filed under Section 14(1)(a) of the DRC Act on the ground the petitioner was in arrears. An order under Section 15(1) of the DRC Act was passed on 20.12.1999 in the said petition directing the petitioner to pay or deposit the arrears of rent and future rent, which order was later confirmed by the High Court on 09.09.2003 in CM(M) 512/2001. Even the SLP (C) against it was also dismissed. Petitioner herein, however failed to comply with the above orders. The petitioner never denied the factum of the ownership of the respondent in such eviction petition filed under Section 14(1)(a) DRC Act or in revision or in SLP(C) etc., hence now cannot challenge the ownership of the respondent. This answers issue (a) raised above.

15. Further since the respondent, allegedly, was never concerned with the property of Anis-ur-rehman, hence there was no question of impleading the legal heirs of Anis-ur-Rehman in this eviction petition. Admittedly his brother Mr.Rajan Suri had sold his half share after an oral partition on 01.10.1974. The factum of such partition is even noted in sale deed dated 21.10.1982 executed by Mr.Rajan Suri in favour of Anisur-Rehman.

16. The respondent further submitted the premises in fact is residential. The site plan as filed by the petitioner is stated to be false as there is no school functioning on the ground floor of the premises. The respondent rather reiterates after the half portion of the property fell in his share on partition with his brother, there was yet another oral partition between the respondent and his two sons, whereby the portion of the left over property was further divided into two parts right from ground floor to top floor and that one part of it had gone to the share of respondent's elder son namely Mr.Pradeep Kumar Suri and another half from ground to top floor has fallen to the share of respondent and his younger son Mr.Sandeep Kumar Suri, which includes the tenanted shop, hence there exist no accommodation available to the respondent on the ground floor.

17. Another issue raised before this Court by the learned counsel for the petitioner is there does not exist any bonafide need of the respondent, since in the eviction petition he has alleged he require the premises for himself as also for his sons but when in his written statement the petitioner herein disclosed the respondent has in his possession eight (8) rooms on the ground floor after the closure of the school at the said ground floor, pat came the reply of the respondent that the property with him after partition with his brother has been further divided 1/2:1/2 in an oral partition between him and his two sons and the portion where the school earlier existed came to the share of his elder son; and whereas the other portion, including the tenanted premises has fallen to the share of the respondent and his younger son.

18. Admittedly, there has been a history of oral partition between the parties. The brother of respondent had infact sold his portion of the property acting upon such oral partition. If this is so, then considering the age of the landlord, being more than 80 years, it is quite natural for him at this age to distribute his property amongst his sons by partitioning and determining their shares in his life time itself so as to avoid disputes after his demise, hence, it cannot be said the oral partition amongst them is motivated.

19. Needless to further say this oral partition between the respondent and his sons was rather pleaded and was a part of evidence filed on behalf of the respondent but was never challenged in cross-examination. No question was rather asked to PW[1] viz. the respondent, qua the legality of such oral partition or if such oral partition never took place. There is no dispute to the preposition that partition can be oral. In A.K.Nayar vs. Mahesh Prasad 153 (2008) DLT 423 the Court held:

20. Further in G.C.Khanna and Ors. vs. Electric Construction and Equipment Co. Ltd. 139(2007) DLT 128 the Court held:

21. Qua concealment, I may say replication, being a part of the pleadings, the tenant has no right to allege the averments made by the respondent in the replication cannot be read. Admittedly there was an earlier litigation between the parties wherein an issue of ownership was never raised by the petitioner and if in such circumstances an eviction petition was filed without disclosing the details qua ownership, the respondent was fully justified in disclosing those in his replication on denial of his ownership by the petitioner herein in his written statement. The replication thus was an explanation to the denials/issues raised in written statement by the petitioner herein, and hence the petitioner cannot allege concealment on the part of the respondent. A bare perusal of the eviction petition show it contains all necessary ingredients of Section 14(1)(e) of DRC Act. It was only when the petitioner raised issues in his leave to defend application, the respondent clarified all such facts in his rejoinder/replication.

22. Further, admittedly, on record there is a lease deed dated 29.10.1988 and an agreement to sell dated 03.11.1988 which the respondent had with M/s.KAPL. A bare perusal of the leave to defend application and the written statement filed by the petitioner/tenant would rather reveal the tenant/petitioner has copied down paras 1 to 5 of the said agreement to sell deed 03.11.1988 but deliberately had missed out the contents of para 6 of such agreement which duly notes of an oral partition between the respondent and his brother Mr.Rajan Suri. Thus such oral partition was well within the knowledge of the petitioner/tenant. It is even recorded in the sale deed executed in the year 1992 by Mr.Rajan Suri in favour of Anis-ur-Rehman. The site plan annexed to sale deed do show the property was divided into two separate parts between the two co-owners. Hence the respondent is an absolute owner of the portion of the property which fell into his share, including the tenanted premises.

23. Thus the petitioner cannot question the oral partition the respondent had with his sons and there is no concealment, as alleged and hence it cannot be said the need of respondent is not bonafide. In the circumstances I see no reason why should I differ from the decision of the learned Trial Court, also when RW[1] who appeared on behalf of the petitioner did not file any authority to appear and depose on behalf of the tenant/petitioner.

24. The petition stands dismissed in terms of the above. Pending applications, if any, also stands disposed of.

25. No orders as to costs.

YOGESH KHANNA, J. JANUARY 28, 2019 DU