Suresh Chand Jain v. Godavaridevi Jeswani & Ors.

1 The petitioner before this Court is Suresh Chand Jain. He claims himself to the owner and the landlord in all the aforenoted three petitions. Two of the suit properties have been tenanted out to a tenant namely Godavari Devi Jeswani & Others. The third tenant is Rajender Kumar and another. The suit premises qua the tenancy of Godavari Devi Jeswani & OthersisshopNos.SPlL^^^'l^C^i^ai^p^li^^Bazar,Delhi-110006. Thethirdtenanted^|l^^^^a^^^p^^enant^^|^^Kumarisshop e.Gali^^p'^.SadarBazar, •ee shops are No.3910 fbrmin^awbf the^ Delhi. A perusal ofthe site plan De that all these tl adjacent and adjoining one anothe measuring 25.[6] feet. #:v w. iem face a frontfaghde i.e. a road 2 On■14.10.20f%^4ie^twb''»hppugiied^iTf^n^^^^ to defend had been granted to the tenanFGp5W^^.©y4^J|^'aSf^ Others qua thw shop Nos.3911 & 3912. The Trial Court was ofthe view that triable issues have arisen. The third judgment is the judgment dated 10.03.2015. In this case also, the Additional Rent Controller(ARC)was ofthe view that the triable issues have arisen and leave to defend had been granted qua shop NO.3910 as well. C.M.(M)Nos 1116/2014 & 1117/2014&RCRNO.230/2015 Page2of18 V IV

3 The first two petitions i.e. the petitions qua the tenancy ofGodavari DeviJeswani&Others were heard andreservedfor orders.Thethird petition i.e.quathetenancyofRajenderKumarand Anotherwasheardatalater date butalsoreservedfor orders.Allthesethree petitionsshallnow be decided by this commonjudgment.

4 The landlord Suresh Chand.Tain has made common averments in all the shop No, is has been the three eviction petitioipf^ G.^ 3912 m e need%l. It is a nondescrbedinpar^^^^felandl^ premises. The fume has been ? residential purposes. It is bonafi^ r'.fft n atheis'^l^p^erofthesuit ie respondent-telant for non- 4 by the petition# for running ^ss^osflj^eing^hatapartfrom business ofsanitary wag shop No.3912, No.3910&3911 asalsj No.3908(attheback side)for running the business which his son is already doing from Mangol Puri but being a rented accommodation at Mangol Purl, he now wants the presentpremisesfrom whichhe wishesto carry outhisbusiness.Submission being thatthe petitioner has two sons namely Nitesh Jain and Nikesh Jain. These premises are required for his elder son Nitesh Jain aged 36 years and Page3of18 J \') as noted supra,he is already running a shop ofsale oftiles and sanitarjrware from a rented accommodation at 70/1/1, Marble Market, Mangolpuri Kalan, Rohini Delhi. He is carrying out this business for the last several years. It is under the name and style ofM/s Vardhman Tiles. That shop has been taken on rent at a rate ofRs.6,000/- per month. A godown has also been taken for the purpose ofstorage for which a monthly rent ofRs.9,500/- is being paid. Tehse rented premises j^orm outhis business is.^o^lSiilomdiii^ parties are residi^g.«]iMe landl elder son is carrying ffdKS;sd%,Bazar where the ily inclhd&g^iis son Nitesh Jain are living ii property bearif Delhi.The presintproperty i.e. shops No. 3910% 39n|^te \ le mMdfehmhi filed)wouldenableth^^^^§fTh% 1-61, Gall BamaiiSadar Bazar, when co-joinedfvith the other p^^qn^petidbns have been,^edtipnej:J#fnav^ ofabout800-900 square feet which would'Tpbl^gli'uqip^^i^d]^ of carrying on his business. Shop No.3908(for which a separate eviction petition has also been filed) which is on the backside would be suitable for storage purposes. The son of the petitioner is presently carrying on his business from the rented accommodation which beside the factis far from his place ofresidence,even otherwise is not suitable as the area is much smaller;the shop at MangolPurl C.M.(M)Nos 1116/2014& 1117/2014&RCRNO.230/2015 Page4of18 measures 300 square feet.THe present premises are accordingly required for \H the bonafide need ofhis son who is dependent upon his father for his need for accommodation. Submission being that this property being located in Sadar Bazar which is a well known market for wholesale and retail business would be a viable suitable accommodation for the purpose of carrying on business by Nitesh Jain; the petitioner-father also has necessary funds for enabling hissonto do^s^lll^^^^'^e^^i^Sg^^asalso no alternate suitable acconimodalf^%fo^inabhhi?lHS'son carry out this business ofsanit^y^^^if'e whicS^lM!^^^^^on iBroi^^fe^ted place. The eviction petitio: further disclosed Properties which%e owned by the jpetitioner.i|is stated thatshg®i^H is also ownedly him it is a property; this portibh-^c i^ond floors ofthe suit imhen and a bathroom has his death his legal heir Anil Jain is in occupation ofthe same. The second floor of the suit property is in occupation of one Gian Chand Jain. The eviction petition further discloses thatthe wife ofthe petitioner Nisha Jain is the owner ofthe property No. 7036-7041, Gali Tanki Wali, Mandi Ghass, Pahari Dhiraj,Delhi and the same have been tenanted out. C.M.(M)Nos 1116/2014& 1117/2014&RCR No.230/2015 Page5of18 r 5 These facts as disclosed in the present eviction petition are almost verbatim thefacts which are disclosed in the corresponding eviction petitions i.e. C.M.N0T117/2014& R.C.R.No.230/2015.

6 Separate applications seeking leave to defend were filed by all the tenants.In C.M.(M)No.l116/2014 and C.M.(M)No.l117/2014,the tenantis common namely Godavari Devi Jeswani & Others who is in occupation of shop Nos.3911 &3912. The site pland^i^Tlmtbotl The area ofshop^oS^ll co shop No.3912^ approximately (No.3912)is eiKumbered by the|s|! % No.3913. The sfe plan adjoining shop NO shops to one another. 500si^^fe^pt;theareaof ffeet. The portioilof this shop which has a sepai^te municipal lL 910J^'s immediately 39O[8] back lane. The back lane is about6feet feresis^osc 8 The two applications seeking leve to defend filed by Godavari Devi Jeswani & Others has raised identical issues. Submission is that the landlord has failed to prove that he is the owner ofthe suit property. He is claiming his ownership on the basis ofa Will ofAjit Prasad Jain and Chander Wati. The tenant Godavari Devi Jeswani & Others was paying rent to Chander C.M.(M)Nos 1116/2014& 1117/2014 &RCRNo.-230/2015 Page[6] of18 Wati and the rent receipts issued by her in December,1978(filed in the trial Court) clearly show that Chander Wati had signed her name in Hindi. The Will of Chander Wati pursuant to which the landlord is now claiming ownership in the suit property is thumb marked;this document is suspicious as Chander Wati having signed all the rent receipts till the year 1978, it would be difficult to believe that in 1980 when this Will was prepared, she was not in a position to on it. This raises a serious doUbt on th^v^abfty ofi|iS®ocumeri^|^]2^p^wnership of the petitioner doesi^tstWd provif 1^ drawn to the ai umentmut it cannot be Submission beingMhat alt hisv]|^MCM that the petitiofer is admitted! Chander Wati;|attention has ais,J, i: triable is submitted son ofAjitPr^pd Jain and •bption deed. rlooked into as the es^eiiMii^leqlkernents ofa^alisHM^biibn as contained in Section 7 of the Hindu Ao0ihfi®R«hd#>i^^ Act, 1956 (hereinafter refeiTed to as the'HAMA')has not been adhered to. The consentofChadner Wati i.e. the mother ofthe petitioner had not been taken by her husband at the time ofthe so called adoption.This also raises atriable issue.Evidence is required. C.M.(M)Nos 1116/2014& 1117/2014 & RCRNo.230/2015 Page7of18 r 9 The additional triable issue sought to be raised by the tenant in this application seeking leave to defend is to the effect that the premises in question is notrequired bonafide by the petitioner. The petitioner is aged 75; years of age and his elder son for whom this bonafide need has been disclosed is 36 years ofage and by no stretch ofimagination,can it be said thatthe son who is in his mid thirties would be dependentupon hisfather.

10 The application No. 1117/2014 is also by and large ^lie^m^^h sirne«^i^^ssue i.e. qua the ownership ofthe^n;^^d as all^^TOSfefe^fti^^eed hav^jl^ei^raised.

11 The que#on about the v Chander Wati(me parents ofthe fabricated. Attemipn ha^^lg Chander Wati. Su® m re Will of Ajit Prasad Jain and been raised; itis stated to be 5^t re^ipts issued by to the effect that Chander wati used to carrying her thumb impression clearly creates a doubt on the veracity of the document. The bonafide need pleaded by the petitioner also appears to be not genuine as an adult who is in his mid 30's carrying on his own business cannot qualify as 'dependent'upon his father.

12 Arguments have been heard.Record has been perused. C.M.(M)Nos 1116/2014& 1117/2014&RCRNo.230/2015 Page8of18 13 ThepetitionerclaimshimselftobetheadoptedsonofAjitPrasadJain [^ and Chander Wati. The adoption deed dated 28.01.1955 is a registered document by virtue of which Ajit Prasad Jain had adopted the petitioner Suresh Chand Jain as his son. Admittedly Ajit Prasad Jain had only one daughter namely Gurkamal and he had accordingly adopted Suresh Chand Jain not only pursuant to a ceremonial ritual but also by virtue of this registered adoption cost of repetition is dated 28.01.1955 an^beini^ripr iiitfte to the'^Sbh^it ofthe HAMA. The provisions ojSeCTdn 7 ey^ and the consenfof Chander Watdeed invalid. That apart, there is^ notgiven herimra^d coj^^t^c this document do nol lave not?i;^^n|complied with ien taken would'Wot make this suggest that Chander Wati had hs document is not assailable. The petitioner be the adopted son of Ajit Prasad Jain and Chander Wati not only became entitled to the aforenoted properties by inheritance but as also under the testamentary law. The petitioner has relied upon the Will ofhis father Ajit Prasad Jain dated 11.05.1969. This document is also registered. By virtue of this document, Ajit Prasad Jain had given life interest in his property in favour ofhis wife C.M. (M)Nos 1116/2014& 1117/2014&RCRNo.230/2015 Page9of18 r Chander Wati and after her death to the petitioner Suresh Chand Jain, Chander Wati had thereafter executed a Will on 27.12.1981 by virtue of which she had bequeathed all her properties both moveable and immoveable to Suresh Chand Jain. This Will is admittedly thumb marked. Cliander Wati had expired on 04.07.1982 i.e. within less than six months of her having executed this document. in.1^

14 The submission ofth#l^Smt ^thlirespondentthattill 1978 Chander Wati was sjgmng wIJindiiMM rent re^ teing issued by her anditisdifficul^p^plevethat had thumb marlled it which raisel an argument nofed to be rejected.| 80's atthe time when sh|^^ signedtherentrec^^S^^^^ ^n she dS^Jtld her Will,she the veracity ofth|documentis Chander Wati was in her mid esunimg that she had lad been executed rule of ageing is well more than three years lateMi known;a person ages much faster in his later years as compared to his early years and the submission ofthe learned counsel for the petitioner—landlord that at the time when Chander Wati had executed the Will,she was not in a position to pen her signatures is a submission which carries complete force; there is no reason to dis-believe this submission. More so, it is noted that C.M.(M)Nos 1116/2014& 1117/2014&RCRNo.230/2015 Page 10 of18 within less than six months of execution of the Will, Chander Wati had expired.

15 This Court notes that the tenant Godawari Devi Jeswani & Others had disputed the Will ofChander Wati. The tenant Rajender Kumar and another had disputed both the Wills i.e. of Ajit Prasad as well as of Chander Wati. This Court is not in agreement with this submission ofthe learned counsel for the respondents as the^f^SotecWofun^Stg^^ot be made the subject matter ofchallengeJf^fl^tMantjvl|^l^|nqt deny^^hii^^ct does notdeny „'' ' his status as ateadhtOTthe sui®^®gfi®^^uestioriTy^"^ership sought to be raised by|iim would not eviction petiti^ filed under Section 14(l)(e|ofthe Delhi Act(DRCA). Tl^e law on this aspectis clear. %,

16 The Apex Sinsh Vsa^^rdfM^Mi^h in Civil Appeal No.8410/2014hadnotedtj^ftt^^ffl^^^^^pj^lxontainedinSection116 ofthe Evidence Act prevents the tenant who is in occupation ofthe premises from denying the title of the landlord; once the jural relationship of the landlord-tenant exists between the parties is proved, the concept of ownership would fade into oblivion.Therule embodied in Section 116 ofthe Evidence Actprevents the tenantin occupation ofthe premises jfrom denying C.M.(M)Nos 1116/2014& 1117/2014&RCRNO.230/2015 Page 11 of18 \ the title of his landlord. This was the ratio laid down by the Apex Court in the aforenotedjudgment.

17 In another judgment of a Bench ofthis Court reported as 1995 RLR 162Jiwan Lai Vs. GurdialKaur & Others while dealing with the concept of ownership soughtto be raised bythe tenant,the Courthas noted as under:- " There is a tendency on thepartoftenants to deny ownership in cases under Section 14(l)(e). To on the part of the tenantsthe CourtshjfveHuSmedt^iffj^^^houlds^^^^^nd^^seistheowner ofthepremises^i ^^kepetiB^M^SMS^^^sentcSi^f^notsaidasto who else is theiowner. FurtherW^^^^Wunder Section lf^l)(e) are not title cases involving disputes ofti^'^Ml^fproperty. Ownershm is not to be proved in absolut^. ^Sl ^;^ljp^qlaim t§^ owner ofthe V premises.

18 Onthe question oft'fl^&Iigllengyk^^^ by virtue ofwhich the landlord had become the owner ofthe suit property,aBench ofthis Courtin RaviPrakash Gar[2] Vs. Jaswanit Sinsh Jaiswal in R.C.Rev.No.44/2012 had noted that the tenant had no locus standi to challenge the Will by virtue of which the property had been bequeathed in favour ofthe landlord. C.M.(M)Nos 1116/2014& 1117/2014&RCRNo.230/2015 Page 12of18 19 This Courtis thus ofthe considered view thatthis argument raised by the respondent here is a cloud over the ownership of the landlord is an argument which is worthy ofno merit and the Trial Court having noted this as a triable issue has committed agrave illegality.

20 Atthis stage,it would be relevantto note thatthe status ofthe landlord has never been disputed. In fact in the application seeking leave to defend, thestatusofthelandlo^^^iiey^t^yh^piH^gi^^^eonlysubmissionall along being that theJ^^^^perty.In the very firstparagrapho^e^^idavit has admitted that she is the ten No. 3911 & 3I12 and the mon' i Devi & Others she renoted premise^i.e. premises !i las also been disjlosed. In the eviction petition auath^ ^nd another, again the concept of.tenancy^^^^^©f^en_^^ll^e|i^ifj^^the status ofthe landlord as the owner rent receipts which are admitted documents and which have been relied upon by the tenant himselfand which have been placed on record clearly show thatthe rent was being paid to Suresh Chand Jain. These rent receipts are ofthe years 1987 and 1988.They are also a part ofthis record and are notin dispute.

21 This argumentthus raises no triable issue. C.M.(M)Nos 1116/2014& 1117/2014&RCR No.230/2015 Page 13 of18 x') r

22 The second triable issue noted by the Trial Court for which leave to defend had been granted to the tenant relate to the bonafide need of the landlord. The Trial Court was of the view that there is enough accommodation with the landlord and his bonafide need has to be tested in trial. This Court is not in agreement with this submission also ofthe leamed counsel for the tenants.