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RC.REV. 359/2018 & CM APPL. 49793/2022

MOHD YASEEN vs GULZAR BEGUM

This is an application filed by the Respondent (i.e. the landlady), seeking a direction to the Non-applicant (i.e. the tenant/ petitioner in the revision petition), to pay use and occupation charges at the prevailing market rent during the pendency of the present revision petition (RC.REV. 359/2018), including the payment of arrears from the date of the passing the eviction order on 07.05.2018. The application was before the HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA.

FACTS OF THE CASE:

Subject matter of the revision petition is a shop admeasuring 8’ 3” X 10’ 2”, on the ground floor bearing no. 875, Gali Kuppewali, Ballimaran, Delhi 110006. A decree of eviction has already been passed by the Trial Court in favour of the Applicant and against the Non-applicant (tenant).

Learned counsel for the applicant states that the tenancy stands terminated because of the above mentioned decree of eviction and therefore, the non-applicant is liable to pay compensation for using and occupying the premises at the same rate at which the Applicant would have been able to let out the premises and earn the rent if the Non-applicant would have vacated the tenanted premises. She brings the judgement of Atma Ram Properties Pvt. Ltd. v. Federal Motors Pvt. Ltd., (2005) 1 SCC 705, to the notice if the Court.

She also states that the prevailing rent for a similar shop at the same location is around Rs. 12,000/- to Rs. 15,000/- per month.

The Non-applicant in his reply to this application, has not disputed the averments of the Applicant about the prevalent rate of rent as mentioned above. However, he has opposed the prayer on the ground that he disputes the Applicant’s claim of ownership of the Subject matter of the revision petition (tenanted premises).

The learned counsel for the Non-applicant is claiming that his client to be the owner of the tenanted premises, therefor no direction for payment of user charges can be passed during the pendency of the above revision petition.

The Applicant (landlady), in the eviction petition had pleaded that the title of the subject shop devolved upon her in the following way:

• Rashid, the grandfather-in-law of the Applicant became the owner through registered sale deed on 26.04.1939, placed earlier on record with the eviction petition.
• After his demise, the property devolved on his son, Mohd. Sadiq.
• After the demise of Mohd. Sadiq on 27.07.1991, the property devolved on Mohd. Farooq, the husband of the Applicant.
• After the demise of Mohd. Farooq on 03.03.2001, the Applicant and her children became owner of subject matter of the revision petition. All the children executed a relinquishment deed dated 13.03.2015 in favor of the Applicant.

Making the Applicant the absolute owner of the property. The property stands mutated in the municipal records in the name of Applicant and she is paying house tax.

The Non-applicant has not disputed the statements of the Applicant with respect to the subject shop was purchased by the Applicant’s grandfather-in-law and the fact that house tax is being paid by the Applicant.

The Non-applicant in order to claim the title over the property has set up two oral pleas, unsupported by any documents. Firstly, he alleged that the grandfather of the Non-applicant and father-in-law of the Applicant were cousins and the subject shop fell to the share of the Non-applicant’s grandfather. Secondly, it is alleged that the Non-applicant has become the owner of the subject shop by adverse possession, since the Non-applicant has been in continuous and peaceful possession of the subject shop for 25 years.

JUDGEMENT:

The oral statement cannot be accepted as there exists a registered sale deed on 26.04.1939, in favour of the predecessor of the Applicant. Further, the Non-applicant despite being aware of the claim of ownership made by the Applicant by issuing a legal notice on 16.12.2017 and filing the eviction petition, has not made any attempt to initiate any legal proceedings for seeking a declaration of his alleged ownership. Thus the Non-applicant’s challenge to the title of the property does not have any merit.

With respect to the second plea of the Non-applicant that he has become an owner of the subject shop by adverse possession, the said plea is also not maintainable in law being mutually destructive with his plea of challenging the ownership rights of the Applicant. Therefore the above plea of adverse possession is also not maintainable.

The Court also states that after passing of the decree of eviction, the tenancy terminates and from the said date the landlord is entitled for mesne profits or compensation for her deprivation of the use of the tenanted premises. The Court held that it is equitable and reasonable for it to direct the tenant to pay compensation while seeking a stay of the decree of eviction. The mentioned rate of prevalent rent at Rs. 12,000/- to Rs. 15,000/-, is not disputed by Non-applicant, and considering the fact that the subject shop is being used by him for commercial purposes, the current monthly user of the subject shop is fixed at Rs. 12,000/- per month and is to be paid in advance on 10th day of every month.

With respect to arrears, the eviction order was passed on 07.05.2018 which ended the tenancy as per the provisions of Delhi Rent Control Act, 1958. The Non-applicant is liable to pay arrears from 07.05.2018 to 31.12.2022. The prevalent rate of rent as established earlier is between Rs. 12,000/- to Rs. 15,000/-:

• The arrears of user charges for the period 07.05.2018 to 31.12.2020 is fixed at Rs. 11,000/- per month. The month of May, 2018, will be proportionate and shall be payable for 08.05.2018 to 31.05.2018.
• The arrears of user charges for the period 01.01.2021 to 31.12.2022 is fixed at Rs. 12,000/- per month.
• The arrears of user charges for the period 07.05.2018 to 31.12.2022 shall be payable by the Petitioner in three equal monthly installments on 31.01.2023, 28.02.2023 and 31.03.2023.

The Court also states that if the Non-applicant makes any default in making payment of the current monthly charges or the arrears as determined above, without any further orders from the Court and the Applicant may take steps to execute the eviction.

The present application stands allowed and the date of the revision petition is fixed on 09.03.2023.

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JUDGEMENT REVIEWED BY ADITYA G S.

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