Final Order 16

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. RAHUL VERMA, CCJ CUM ARC,
CENTRAL, TIS HAZARI COURTS
RC ARC 207/2023
CNR No. DLCT03-001574-2023
In the matter of :
Mohd. Arafeen
S/o Mr. Mohd. Hanif
R/o 6309, Gali Baint Wali,
Bara Hindu Rao,
Delhi-110006 ...Petitioner
Versus
Salim,
S/o late Mr. Abdul Karim,
R/o 6309, Gali Baint Wali,
Bara Hindu Rao,
Delhi-110006
...Respondent
ORDER ON LEAVE TO DEFEND
1. Vide this order, this Court shall decide the application filed
by respondent under Section 25 B of Delhi Rent Control Act,
1958 (hereinafter, the ‘DRC Act’) seeking leave to defend the
present eviction petition. The eviction petition was filed by the
petitioner against the respondent under Section 14(1)(e) DRC Act
on 17.03.2023 qua part of first floor (left from stairs) in property
bearing municipal corporation No. 6308-6309, Gali Baint Wali,
Bara Hindu Rao, Delhi-110006. The said premises shall
hereinafter be adverted to as the ‘demised premises’. The
demised premises are more clearly delineated in Red colour in
the site plan filed along with the eviction petition.
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2. It is averred in the present petition that:
2.1 The petitioner is the co-owner of tenanted premises and
petitioner along-with his brother namely Mohd. Mansoor are the
registered owners of entire built up property bearing municipal
corporation No. 6308-6309, Gali Baint Wali, Bara Hindu Rao,
Delhi-110006, in the shape of ground floor, first floor and second
floor (with roof rights). The respondent is the tenant and in
occupation of part of first floor (left from stairs) in property
bearing No. 6308-6309, Gali Baint Wali, Bara Hindu Rao, Delhi
110006, area about 40 Sq. yds. with common staircase leading
from ground floor to first floor. It is submitted that the mother of
the respondent was inducted as tenant in the demised premises by
the father of the petitioner. The last paid rent at the rate Rs. 36/-
per month was paid by mother of the respondent on 09.05.1981.
After the said period respondent has been defaulting in payment
of the same.
2.2 The petitioner is residing in the same property i.e. property
bearing No. 6309, Gali Baint Wali, Bara Hindu Rao, Delhi-
110006, right side from stairs of first floor and the same is having
03 rooms along-with kitchen, toilet, bathroom. Out of the said 03
rooms, one room is occupied by petitioner along-with his wife
and one room is occupied by his two daughters. Third room is
occupied by his two sons who are of marriageable age.
2.3 The tenanted premises is required bonafidely by the
petitioner for his family members as residence, dependent upon
the petitioner for their residential requirements. Neither the
petitioner nor his family members have any other reasonably
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suitable alternate residential accommodation for such
requirements. Hence, the present petition under Section 14(1)(e)
of DRC Act.
3. Summons of the petition in the prescribed format was
issued to the respondent. He duly appeared and filed an
application seeking leave to defend, raising the defence that
petitioner is not the owner of the demised property and that the
respondent is the owner by virtue of adverse possession. He has
further taken the defence that the demised property is Wakf
property and hence the petitioner cannot sue for recovery of
possession. Further, that requirement of the landlord is not
genuine and that there are several other suitable alternate
accommodations available to the landlord. The respondent has
contended that the petitioner is owner of property bearing No.
6308, Gali Bait Wali, Bara Hindu Rao, Delhi, property bearing
No. 5503, Gandhi Market, Sadar Bazar, Delhi and property
bearing No. 4937-40, Mohalla Sheikhan, Bara Hindu Rao, Delhi.
It is contended that these properties can satisfy need of the
petitioner. Accordingly, it is prayed that the present application
under leave to defend may be allowed.
4. Thereafter, the petitioner filed reply to the said application
for leave to defend, duly supported by a counter-affidavit.
Subsequently, the respondent also filed rejoinder to the said reply
filed by the petitioner, denying the contents of the counter
affidavit filed by the petitioner along with the reply, and
reasserted the contents of the application for leave to defend.
5. I have heard Ld. Counsels for the petitioner and the
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respondent and perused the case file.
6. Before delving into the merits of the present case, it would
be beneficial to refer to the law governing Section 14 (1) (e) of
DRC Act and leave to defend application. It is settled law that in
order to succeed in a petition under section 14(1)(e) of the DRC
Act, the landlord is required to establish three conditions:-
i. There must be a relationship between the parties as
landlord and tenant;
ii. The tenanted premises must be bonafidely required by
the landlord either for himself or for his family members
dependent upon him; and
iii. There is no other alternate suitable accommodation
available with the landlord.
7. It is mandated under Section 25B(5) of the DRC Act that
where the application for eviction on the ground of bona fide
requirement is filed under Section 14(1)(e), the Controller shall
give to the tenant leave to contest the application if the affidavit
filed by the tenant discloses such facts as would disentitle the
landlord from obtaining an order for the recovery of possession
of the premises. It was held in case of Inderjeet Kaur v. Nirpal
Singh, (2001) 1 SCC 706 that at the stage of deciding leave to
defend application the real test is whether the facts disclosed in
the affidavit filed seeking leave to defend prima facie show that
the landlord would be disentitled from obtaining an order of
eviction. Similarly, in the case of Sarwan Dass Bange vs. Ram
Prakash, 167 (2010) DLT 80, it was held that “[T]he Controller
is required to sift/comb through the application for leave to
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defend and the affidavit filed therewith and to see whether the
tenant has given any facts/particulars which require to be
established by evidence and which if established would disentitle
the landlord from an order of eviction.”
Landlord-tenant relationship:-
8. As already discussed, the first ingredient which the
petitioner is required to satisfy in order to succeed in a petition
under section 14(1)(e) of the DRC Act is that there must be
landlord-tenant relationship between the parties. However, it is
settled law that the landlord is not obligated to prove absolute
ownership as required under Transfer of Property Act. He needs
to show only that he is more than a tenant. It was held in Shanti
Sharma and Ors. v. Ved Prabha and Ors., (1987) 4 SCC 193 that
“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.” Reliance is also placed on the judgment of Rajender
Kumar Sharma & Ors. v. Leela Wati & Ors., 155 (2008) DLT
383 wherein similar views were expressed.
9. In the present petition, the petitioner has pleaded that the
mother of the respondent Smt. Mumdi Begum was inducted by
the father of the petitioner as tenant, and after expiry of both, the
respondent has been occupying the demised premises as tenant.
On the other hand, the respondent averred in the petition that his
forefathers have been residing in the demised property even
before the year 1947 and that the petitioner and his family never
claimed to be the owner of the demised property and hence the
respondent became owner due to the adverse possession.
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10. Here, it is to be noted that there is no decree of any civil
court thereby declaring the respondent as owner of the property
in question through adverse possession. The court of Rent
Controller in any case has no jurisdiction to decide the title of the
property and cannot declare the respondent as owner of the
demised property by virtue of adverse possession.
11. However, since the defence of adverse possession has been
taken, it would be beneficial to refer to the judgment of Hon'ble
Supreme Court in case titled Karnataka Board of Wakf v. Govt. of
India, (2004) 10 SCC 779, wherein it was held that “Plea of
adverse possession is not a pure question of law but a blended
one of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession
was open and undisturbed. A person pleading adverse possession
has no equities in his favour. Since he is trying to defeat the
rights of the true owner, it is for him to clearly plead and
establish all facts necessary to establish his adverse possession.”
12. In the present case, though the respondent has taken the
defence that he has become owner by virtue of adverse
possession as his forefathers have been residing in the demised
property even before 1947, he has nowhere pleaded in the leave
to defend application as to how his fore-fathers came into
possession of the premises, from whom they came into
possession, what was the nature of possession when they came
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into possession, and also, when the adverse possession perfected.
Further, it was incumbent upon the respondent to plead as to who
was the true owner according to the respondent against whom he
was claiming that he acquired title through adverse possession.
The plea of adverse possession inherently presupposes that the
person claiming title by adverse possession acknowledges the
title of the true owner and claims acquisition of title through
adverse possession against such true owner. However, the entire
leave to defend application is silent as to who was the actual
owner against whom he is claiming adverse possession. Thus, the
defence of adverse possession is not legally tenable.
13. Further, the plea of adverse possession is without merit
also because of reason of the previous litigation between the
parties which shows that the possession of the respondent was
not uninterrupted or without challenge. Mumdi Begum w/o
Abdul Karim i.e. mother of the respondent had filed civil suit No.
754/87 for permanent injunction against the petitioner seeking
relief that she shall not be dispossessed without due process of
law. Further, a civil suit for permanent injunction titled Mohd.
Arafeen v. NDMC between the parties & others and another suit
in 2022 filed by the respondent titled Mohd. Salim v. Mohd.
Arafeen seeking relief of permanent and mandatory injunction
thereby restraining petitioner herein from interfering into the
repairing suit property in question show that the possession of
the respondent was not uninterrupted or without challenge and
hence the said alleged adverse possession never perfected.
14. In such circumstances, the defence of the respondent that
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he is owner of the demised property by virtue of adverse
possession has no substance and does not raise any triable issue
in this regard.
15. Moving further, contrary to his own claim of adverse
possession, the respondent has also taken the defence that the suit
property is wakf property and only the Wakf Board can sue for
eviction of a tenant. However, there is no document filed by the
respondent to show that the demised property is Wakf property.
In fact, the RTI application and its reply dated 10.07.2023 filed
by the petitioner shows that the property in question is not a
Wakf property. Interestingly, the petitioner as well as the
respondent have relied upon wakf deed dated 29.01.1965 in
support of their contention. While the petitioner has claimed his
right to recover possession from the tenant on the basis of the
said Wakf Nama, the respondent has also relied upon the same to
take the defence that the demised property is a Wakf property,
and hence the petitioner is not entitled to seek eviction.
16. Perusal of the said Wakf nama shows that demised
property was purchased by Mohd. Haneef from Zainuddin,
through sale deed registered on 03.12.1950. It further shows that
the demised property has been made subject matter of Wakf-ul-
aulad i.e. a private Wakf, and the status of the petitioner is that of
a Mutawali. It is settled law that while a Mutawalli is not the
owner of such property, the obligation and right to administer and
maintain the trust properties vests with him. It is also a settled
law that Mutawalli is entitled to sue for recovery of possession of
the Wakf property as he is entitled to the rights and duties of a
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Mutawalli. Reliance is placed on the judgment of Nisar Ahmed
vs. Agyapal Singh, MANU/DE/0494/2015, wherein it was held
that:
“17. The Delhi Rent Control Act makes no difference
between tenants of Wakf and non-Wakf properties.
Under Section 14 (1) (e) of the DRC Act, for the
purposes of ownership, all that has to be seen is that
the landlord is more than the tenant. … From the
aforesaid legal position, what emerges is that a
Mutawalli can sue for eviction of a tenant in discharge
of his obligations and right to administer and maintain
a Wakf property under his/her charge. The Mutawalli
can seek eviction of a tenant for himself as well as for
other beneficiaries of the Wakf. All the more so, when
the Mutawalli is a defined beneficiary under the terms
of the Wakf. The Delhi Rent Control Act makes no
difference between tenants of Wakf and non-Wakf
properties. Under Section 14 (1) (e) of the DRC Act,
for the purposes of ownership, all that has to be seen is
that the landlord is more than the tenant.”
17. In view of the afore-discussed position of law, it is clear
that Delhi Wakf Board has no role to play in the present matter,
and the petitioner being Mutawalli has right to manage the
demised property and is entitled to sue for recovery of its
possession. It is also clear from the afore-discussed position of
law that Delhi Rent Control Act makes no difference between
tenants of Wakf and non-Wakf properties and under Section 14
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(1) (e) of the DRC Act, for the purposes of ownership, all that has
to be seen is that the landlord is more than the tenant.
Accordingly, in view of the afore-mentioned Wakf nama, the
petitioner has been able to show that he is more than a tenant,
and the respondent has not been to show title either in his favour
or in favour of a third party. Hence, for the purpose of the present
petition, the petitioner has been able to establish his title over the
demised property.
Bona fide need:-
18. In respect of the question of bona fide requirement, it is a
settled law that court must presume the bona fide requirement of
the landlord and that the burden to refute the said presumption
squarely lies on the tenant. A mere assertion on part of the tenant
is insufficient. It was held in case of Sarla Ahuja v. United India
Insurance Co. Ltd., (1998) 8 SCC 119 that “when a landlord
asserts that he requires his building for his own occupation the
Rent Controller shall not proceed on the presumption that the
requirement is not bona fide. When other conditions of the clause
are satisfied and when the landlord shows a prima facie case it is
open to the Rent Controller to draw a presumption that the
requirement of the landlord in bona fide.” Similar observations
made in case of Baldev Singh Bajwa v. Monish Saini, (2005) 12
SCC 778 are as under:
“A heavy burden lies on the tenant to prove that the
requirement is not genuine. The tenant is required
to give all the necessary facts and particulars
supported by documentary evidence if available to
prove his plea in the affidavit itself so that the
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Controller will be in a position to adjudicate and
decide the question of genuine or bona fide
requirement of the landlord; a mere assertion on
the part of the tenant would not be sufficient to
rebut the strong presumption in the landlord's
favour that his requirement of occupation of the
premises is real and genuine.”
19. In the present petition, the petitioner/landlord has sought
the demised premises for his family members for the purpose of
residence. As per the petition, both the parties are residing in the
same property. While the tenant is in the possession of part of
first floor (left from stairs) in property bearing No. 6308-6309,
the petitioner with family is residing in right side from stairs of
first floor, having 03 rooms along-with kitchen, toilet, bathroom.
Out of the said 03 rooms, one room is occupied by petitioner
along-with his wife and one room is occupied by his two
daughters. Third room is occupied by his two sons who are of
marriageable age.
20. In opinion of this Court, considering the size of the family
of the petitioner, it is nothing but bona fide for the petitioner to
require the demised premises for settlement of his family who is
clearly suffering from shortage of space. Further, in view of the
marriageable age of the sons of the petitioner, requirement of
more space by the petitioner in future also needs to be
considered. As already discussed, it is a settled law that court
must presume the bona fide requirement of the landlord and that
the burden to refute such presumption squarely lies on the tenant.
However, the respondent has not brought on record any ‘fact’ as
would refute the presumption of the bonafide nature of the
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requirement disclosed by the petitioner. There is nothing in the
leave to defend application to show that the requirement of the
demised premises by the petitioner is not bonafide, genuine,
sincere or honest. As regards this criterion therefore, respondent
has not raised any triable issue.
Availability of suitable alternate accommodation
21. In the application for leave to defend, it is contended by
the respondent that the petitioner has available with him several
properties, all of which can constitute a reasonable suitable
accommodation to the demised premises.
22. The respondent has contended that the petitioner is owner
of property bearing No. 6308, Gali Bait Wali, Bara Hindu Rao,
Delhi, consisting of four floors, comprising of three rooms,
latrine, bathroom etc. on each floor. Further, that second and
fourth floor are lying vacant and petitioner has sufficient space in
the same to satisfy his bona fide need. However, the said
contention is denied by the petitioner and it is submitted that the
said property consists only ground, first and second floor and that
no rooms are vacant in the same. It is further submitted by the
petitioner that respondent is in use and occupation of the part of
the first floor of the said property itself. Further, that petitioner is
not concerned with ground floor and right side portion of the
second floor as the same is in exclusive possession of his brother
Mohd. Mansoor. It is to be noted that the respondent did not file
any site plan or photographs to dispute the said averment of the
petitioner and to show that sufficient space is lying vacant in the
said property bearing No. 6308. Therefore, as regards the
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availability of this property with the petitioner, no triable issue
arises.
23. Respondent has further contended that petitioner is also
owner and in possession of property bearing No. 5503, Gandhi
Market, Sadar Bazar, Delhi and property bearing No. 4937-40,
Mohalla Sheikhan, Bara Hindu Rao, Delhi. However, the
petitioner has denied the same and has submitted that said
property bearing No. 5503 is only a shop on the ground floor
and wife of brother of the petitioner is tenant in the same.
Further, that property bearing No. 4937 to 4940, Mohalla
Shaikhan, Bara hindu Rao, Delhi is also not owned by the
petitioner. Hence, it is submitted that the petitioner is not
concerned with the said properties. Here, it is to be noted that the
respondent has not filed any document or photograph to prove
that the said properties are owned by the petitioner or are lying
vacant. It is settled law that if the tenant alleges that the landlord
is owner of some other properties, then mere filing of affidavit is
not suffcient and he has to place on record documents to show
such ownership. Relaince in this regard is placed on the judgment
of Rajender Kumar Sharma v. Leela Wati, 155 (2008) DLT 383.
In absence of any such material by the respondent it can safely be
concluded that there is no substance in this contention either.
Therefore, as regards the availability of these properties with the
petitioner, no triable issue arises.
24. Here, it would be beneficial to take note of well settled law
that it is the landlord’s prerogative as to in which location he
prefers to run business and law should not and cannot prevent
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such preference by a landlord in order to meet his bonafide
requirement. In Gulab Chand Pukhraj v. R.B. Jinender Raj and
Ors. (2009) 9 SCC 752, it was held that once it is not disputed
that landlord is in bonafide need of premises, court cannot dictate
to landlord which floor he should use for his business.
25. In view of this settled law, even if it assumed for a moment
that the petitioner owns the aforementioned properties, it is clear
that if the landlord says that his requirement would be satisfied
with the demised property, Court cannot compel him to get other
properties vacated or adjust in some other properties. Neither this
Court nor the tenants can sit in the armchair of the landlord and
take a decision about the usage of property or his practical
requirements about total space. In such circumstances, it cannot
be said that the aforementioned properties alleged by the
respondents constitute reasonable alternate suitable
accommodation available with the petitioner for the requirement
disclosed in the eviction petition.
26. As such therefore, I am of the considered opinion that no
triable issue regarding availability of alternate suitable
accommodation has been raised by the respondent in the present
petition.
Conclusion
27. In view of the aforesaid discussion, it is clear that the
petitioner has established all the necessary ingredients for getting
an order of eviction on the ground of bonafide needs. Hon’ble
Supreme Court in Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC
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706, has specified that leave to defend to a tenant cannot be
granted on mere asking or in a routine manner as it will defeat
the very object of the special provisions contained in Chapter III-
A of the Act and what has to be seen while granting leave to
defend is that there is a strong prima facie case against the
landlord who is seeking eviction. Herein, the tenant has not been
able to show any prima facie case, and hence, is not held entitled
to leave to defend.
28. Accordingly, the leave to defend application filed by the
respondent is rejected. The eviction petition is consequently
allowed and it is directed that the respondent shall handover the
vacant possession of tenanted premises i.e. part of first floor
(left from stairs) in property bearing No. 6308-6309, Gali
Baint Wali, Bara Hindu Rao, Delhi 110006, area about 40 Sq.
yds., as shown in red colour in the site plan, to the landlord.
There shall be no order as to costs. In view of the provisions of
Section 14 (7) DRC Act, 1958, this order for recovery for
possession shall not be executed before expiration of a period of
6 months from this date.
Announced in open Court
on 15th Day of February, 2025
(Rahul Verma)
CCJ-cum-ARC (Central)
THC/Delhi/15.02.2025
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