Imtiaz Ali v. Nasim Ahmed .

This appeal under S. 39, Delhi Rent Control Act, 1958 (for short ‘the Act’) is directed against the judgement and order dt. 22nd May, 1985 of the Rent Control Tribunal dismissing the appellant's application for eviction of the respondent on ground of non-payment of rent. The Tribunal by the impugned judgement held that there was no relationship of landlord and tenant between the parties and thus reversed the judgement and order dt. 16-1-1985 of the Additional Controller.

2. Briefly the facts are that on 16th July, 1982 the appellant filed an application for eviction of the respondent under S. 14(1)(a) of the Act. The appellant has alleged that be is the landlord and the respondent is his tenant in shop premises No. D-89, Khureji Khas, Shahdara, Delhi, on a monthly rent of Rs. 250/- exclusive of other charges; the respondent has been in arrears of rent since 1-1-1978 and he has neither paid nor tendered the arrears of rent in spite of notice of demand dt. 11th May, 1982 served upon him. The respondent in the written statement pleaded that there was no relationship of landlord and tenant between the parties; he had purchased the land beneath the premises from Abdul Ghafoor in 1977 and had himself constructed a shop thereon; the premises bear No. C-65 and not D-89 at Khureji Khas, Shahdara, Delhi. The respondent also alleged that he sent a reply dt. 27th May, 1982 to the appellant's notice dt. 11th May, 1982. In the application the appellant reiterated and reaffirmed his allegations.

3. The Additional Controller held that the premises in suit bear No. D-89 and not C 65; the respondent was in possession of the shop premises suit; Nasirruddin (A.W 2) was owner/landlord of the shop and respondent was his tenant at Rs. 250/- per month; the appellant became owner-landlord by purchase from Nasirruddin; the respondent was in arrears of rent; the respondent failed to prove that he had purchased the land beneath the premises in suit. The Additional Controller by other dt. 16-1-1985 directed the respondent to deposit rent from 1-3-1982 at Rs. 250/- per month within one month and if he fails to deposit an order of eviction should be deemed to have beep passed otherwise he will be deemed to have enjoyed benefit under S. 14(2) of the Act.

4. On appeal the Tribunal observed that the evidence led by the appellant was beyond pleadings and held that there was no relationship of landlord and tenant. The other of the Additional Controller was set aside and the application for eviction was dismissed.

5. Learned counsel for the appellant submits that the respondent was tenant of the premises under Nasirruddin (A.W 2) at Rs. 250/- per month and the appellant having purchased the premises from Nasirruddin became owner-landlord. In the alternative he submits that on the basis of the documents on record executed by Nasirruddin if the appellant is not held to be owner of the premises, he is in any case landlord; to respondent neither paid nor tendered the arrears of rent in spite of notice of demand and, therefore, the appellant is entitled to an order for the eviction of the respondent and the various findings and the observation of the Tribunal in arriving at those findings are perverse.

6. Learned counsel for the parties have taken me through the entire oral and documentary evidence. Briefly the material evidence for deciding this case is as follows. Imtiaz Ali, appellant as A.W 1 has deposed that he purchased the shop premises from Nasirruddin who had executed in his favour a general power of attorney dt. 1st Mar., 1982 (Mark ‘A’) agreement to sell dt. 1st March, 1982 (Ex. A.W 1/1), affidavit dt. 2nd Mar., 1982 (Ex. A.W 1/2) a registered receipt for Rs. 10,000/- showing the amount paid by the appellant to Nasiruddin (Ex. A.W 1/3); Nasirruddin had informed the respondent to pay the arrears and future rent to him; the documents were thumb marked and signed by Nasirruddin; he sent a notice of demand dt. 11th May, 1982 (Ex. A.W 1/4) to the respondent, postal receipt where of is Ex. A.W 1/5; the site plan is Ex. A.W 1/6; the respondent is his tenant at Rs. 250/- per month and he has failed to pay rent since 1-1-1978. In cross-examination the appellant denied that the respondent had purchased the suit premises from Abdul Ghaffor. It is also denied that the respondent raised the construction over the land. No material question was put in cross-examination regarding the said documents executed by Nasirruddin in favour of the appellant.

7. Nasiruddin as A.W 2 has deposed that he was the previous owner of the shop premises in suit; the respondent was his tenant; he had been issuing tent receipts to him; he used to obtain thumb impression on the, counterfoil from Nasim Ahmed, respondent; he has brought the counterfoil in Court; Nasim Ahmed affixed his thumb impression an the counterfoil Ex. A.W 2/1 in his presence at mark ‘A’; the property in question is his ancestral property he had inducted the respondent as a tenant on a monthly rent of Rs. 250/-; he sold the property to the appellant; he had executed the documents marked ‘A’ A.W 1/1 to A.W 1/3 after fully understanding the contents; he instructed the respondent to pay arrears as well as future rent to the appellant. In cross-examination he has denied the suggestion that Abdul Ghaffor was owner; he denied tae suggestion that he was not tae owner; his friend Raisuddin had filled in all the entries in the counterfoil receipt Ex. A.W 1/2; he denied that the receipt was not genuine.

8. Ghansyam Dass, clerk, M.C.D as A.W 3 had brought the record in respect of suit premises No. D-89 Khureji Khas, Delhi, and has deposed that as per record Nasiruddin son of Abdul Gani was the owner; the survey was done on 1st April, 1974. In cross-examination he states that Nasiruddin's name was entered in the column of tax payer or owner. Hakimuddin (A.W 4) brother of Nasiruddin has deposed that Nasiruddin let out the premises to Nasim Ahmad, respondent in his presence at Rs. 250/- per month. The rent of the deposition is not material.

9. Nasim Ahmed, respondent as R.W 1 has deposed that he had purchased the lend underneath the premises from one Abdul Gheffor in 1977 and paid Rs. 1500/-; he constructed a shop from his own funds; he never took the premises on not from the appellant or Nasiruddin; he never thumb marked Ex. A.W 2/1; he received notice from the appellant. In cross-examination he admit that he is not in possession of any registered document regarding purchase of the land underneath the shop; he denies that he was inducted as a tenant by Nasiruddin.

10. Akhtar as R.W 2 has deposed that he has known Nasim Ahmed, respondent for tae lest 10-12 years; he is a meat seller; the land underneath the shop belonged to one Ghaffor Ahmed who sold the same for Rs. 1500/- to the respondent and delivered its to him and thereafter the respondent constructed shop over the land and he is owner thereof. In cross-examination he admits that he knows Nasiruddin; as does not know the house number of each and every property; he does not know if D-89 is owned by the appellant or not; Nasiruddin is not the owner of any property in Khureji Khas; Abdul Gani is the father of Nasiruddin; there was no writing executed by Abdul Ghaffor in favour of the respondent.

11. Learned counsel for the respondent submits that the evidence led by the appellant is beyond pleadings. The Rent Control Tribunal has also observed that there is no allegation either in the demand notice dt. 11th May, 1982 or in the eviction petition how the appellant because owner or landlord; and therefore is no allegation how the respondent become tenant.

12. Order 6, Rule 2 Civil P.C (for short ‘the Code’) provides that every pleading shall Contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. Order 7, R. 11 of the Code provides that the plaint shall be rejected where it does not disclose any cause of action. The short question is whether the eviction petition discloses a cause of action. It is well established that a cause of action means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgement from the Court. Thus it is to be examined whether all the necessary facts to obtain an order of eviction under S. 14(1)(a) of the Act have been pleaded by the appellant. S. 14 of the Act mentions the various grounds on which a landlord may obtain an order for recovery of possession against his tenant. S. 14(1)(a) of the Act reads as under :

“14(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant :

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery ofpossession of the premises on one or more of the following grounds only, namely :—

a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in S. 106, T.P Act, 1882.”

13. In the eviction application the appellant has pleaded that he is landlord and respondent is tenant in the premises mentioned in para 8 of the eviction petition at Rs. 250/- per month; in para 18(a) it is mentioned that the respondent has been in arrears since 1-1-1978 and notice of demand dt. 11th May, 1982 was served requiring him to pay the rent; the respondent neither paid nor tendered the rent. Para 19 of the application states that notice was served by registered A.D post. All these allegations are sufficient to hold that the eviction petition does disclose a cause of action. If any of these facts are traversed it would be necessary for the appellant to prove the same in order to obtain an order of eviction. Order 6, R. 2 of the Code specifically provides that the evidence by which the facts are to be proved is not to be pleaded. I, therefore, do not appreciate how the Tribunal has observed that the appellant was to state how he became owner or landlord and how the respondent became tenant. If these facts are alleged it would amount to pleading of evidence which is prohibited under O. 6, R. 2 of the Code. In Mohan Lal… v. Tirath Ram Chopra & Another…. Chopra, AIR 1982 Delhi 405 the Full Bench has observed that it is not necessary for the landlord to state as to how he became owner, either by sale, gift, transfer, or by Will or a family arrangement etc., that the law requires the disclosure of all material facts in the pleadings and not the evidence by which they have to be proved and that it will be enough for the landlord to state in an application for eviction under S. 14(1)(e) of the Act that he is the landlord and owner of the premises and the same were let for residential premises, etc.

14. In an application for eviction on ground of non-payment of rent the title to immovable property is immaterial. If there is relationship of landlord and tenant between the parties it would be maintainable. It is not necessary that landlord should also be owner. Thus the observation of the Rent Control Tribunal that appellant had not pleaded how Nasiruddin or the appellant became owner or how respondent is tenant is not according to law.

15. The next question is whether the appellant has become owner or landlord by execution of the power of attorney (Ex. AX/1 Mark ‘A’) Agreement to sell (Ex. A.W 1/1) Affidavit (Ex. A.W 1/2) Receipt for Rs. 10,000/- (Ex. A.W 1/3) by Nasiruddin A.W in favour of the appellant. These documents were proved by the statements of the appellant (A.W 1) and Nasiruddin (A.W 2). The proof of these documents has not been challenged. There is nothing in the cross-examination of these witnesses to raise any doubt about the execution of these documents. These documents stand proved. Amongst these documents there is no sale deed by Nasiruddin A.W 2 in favour of the appellant. S. 54, T.P Act, provides that sale is a transfer of ownership in exchange for a price paid or promised, that the sale of immovable property of the value of Rs. 100/- or more can be made only by a registered instrument and that a contract for the sale of immovable property does not by itself create any interest in such property learned counsel for the appellant submits that there is a ban on the execution and registration of sale deed and therefore immovable property in Delhi is being sold generally by execution of an agreement to sell, power of attorney, etc., in favour of the prospective purchaser. No document regarding alleged ban has been placed on record. In any case S. 54, T.P Act, is still in force and cannot be ignored. Nobody can call himself as owner by purchase on the basis of agreement to sell and the power of attorney executed by alleged vendor in favour of the prospective purchaser-cum-attorney in the absence of a registered sale deed. Thus there ought to have been a registered deed of sale by Nasiruddin in favour of the appellant to confer rights of ownership on him. By the agreement to sell dated 1st March, 1982 Ex. A.W 1.Nasiruddin agreed to sell shop premises for Rs. 10,000/- to the appellant, which amount was paid in full and receipt Ex. A.W 1/.3. was executed. The agreement Ex. A.W 1/1 provides that Nasiruddin would execute sale deed in favour of the appellant and will get the same registered. Admittedly no sale deed has been executed in favour of the appellant so far and therefore it is held that appellant is not owner of the shop premises under the agreement to sell,(Ex. A.W 1/1), general power of attorney (Ex. A.X/1) or the receipt (Ex. A.W 1/3).

16. The next question is whether appellant is ‘landlord’ of the premises in occupation of the respondent. The general power of attorney (Ex. AX/1) executed by Nasiruddin in favour of the appellant states that Nasiruddin is owner in possession of shop in suit that he is not in a position to manage, or sell the same and therefore appointed appellant as his general attorney to do the acts, deeds, etc., as detailed in the said general power of attorney. This power of attorney is attested by Notary Public and under S. 85, Evidence Act, its valid execution is to be presumed. It provides that the appellant shall have a right to let the suit property, to receive rent, to evict tenant; to issue receipts on behalf of Nasiruddin for payment of rent etc. In short this general power of attorney authorises the appellant to induct tenant, to receive rent, to issue receipt, to evict tenants through Court of law, etc., etc. In other words the appellant is entitled to receive rent of the shop premises from the tenant.

17. The further question is whether a person who is not owner but entitled to receive rent on behalf of any other person is a landlord within the meaning of S. 2(e) of the Act which reads as under :—

“Landlord” means person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.”

According to this definition a landlord may be either (1) any person who is receiving rent in respect of premises on his own account; (2) any person who is entitled to receive rent in respect of premises on his own account; (3) any person who is receiving rent in respect of premises on account or on behalf of or for the benefit of any other person; and (4) any person who is entitled to receive rent in respect of premises on account or on behalf of or for the benefit of any other person; (5) any person who is receiving or is entitled to receive rent in respect of premises as a trustee, guardian or receiver for any other person. In the present case it has been held that the appellant is not owner of the shop and therefore he is not entitled to receive rent on his own account. He is also for the time being not receiving any rent on his own account. Further the appellant is also for the time being not receiving rent on behalf of Nasiruddin, but under the terms of the general power of attorney (Ex. AX/1) he is authorised and thus entitled to receive rent in respect of the suit premises on behalf of Nasiruddin. He is therefore a landlord within the meaning of S. 2(e) of the Act although he is not owner of the premises.

18. In Dattatraya Sitaram v. Emperor, AIR 1948 Bom 239 it has been held that a clerk empowered to get rents collected, keep accounts, and manage the property comes within the definition of the expression ‘landlord’ under S. 4(1), Bombay Rent Restriction Act, 1939, wherein a ‘landlord’ has been defined as “Any person for the time being entitled to receive rent in respect of any premises whether on his own account or on account of or on behalf of or for the benefit of any other person.”

19. Section 5(3), Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, defined the word ‘landlord’ in the following terms :

““Landlord” means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sublet any premises”.

In (1971) 12 Guj LR 241 it was held that according to the above definition a ‘landlord’ includes a Rent Collector. S. 5(1), Saurashtra Rent Control Act, 1951, defines the word “landlord” as follows :

“In this Act unless there is anything repugnant to the subject or context —

(1) ‘Landlord’ means any person who is for the time being, receiving or entitled to receive, rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver for any other person, or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant, who has sublet any premises.”

In Faizubhai Mahmadbhai v. Balkrishna Naradlal, AIR 1972 Guj 9 it has been held that a special meaning has been assigned to the word ‘landlord’ by Statute and that meaning has to be assigned to it for the purposes of the said Act unless there is anything repugnant to the subject or to the context. Rent Collector was thus held to be the landlord entitled to institute a suit for eviction of the tenant in his own name.

20. In the present case the appellant who under the general power of attorney (Ex. AX/1) is entitled to induct tenant, realise rent and evict tenants on behalf of Nasiruddin is, therefore, a ‘landlord’ within the meaning of S. 2(e) of the Act. S. 14(1)(a) of the Act also uses the word ‘landlord’ in whose favour an order for recovery of possession may be passed by the Controller if the conditions of proviso (a) to S. 14(1) of the Act are fulfilled. In other words, the appellant being landlord is also entitled to institute the petition for eviction under S. 14(1)(a) of the Act.

An attorney entitled to receive rent, issue receipt on behalf of any other person is thus a ‘landlord’, entitled to institute eviction case under S. 14(1)(a) of the Act.

21. The appellant is general attorney of Nasiruddin under the power of attorney Ex. AX/1 but it has to be seen whether the respondent was tenant under Nasiruddin at or before the time of execution of the general power of attorney. If respondent was tenant of Nasiruddin the appellant would be entitled to receive rent from the respondent. Nasiruddin as A.W 2 proved the counter for rent receipt dated 10th March 1975 for Rs. 250/- on account of rent for the month of February 1975 paid by Nasim Ahmed, respondent to Nasiruddin relating to suit property, i.e Shop No. D-89 Khureji Khas, Delhi. The question is whether this receipt was proved in accordance with law. The Tribunal has observed that the receipt Ex. A.W 2/1 is a doubtful document because only one counterfoil was proved and other counterfoils were not proved; the Tribunal has further observed that Raisuddin, writer of the receipt was not produced, and it was the duty to call handwriting expert. All these observations are meaningless if the counterfoil receipt Ex. A.W 2/1 stands proved in accordance with law. Nasiruddin A.W 2 brought counterfoil in Court and has deposed that Nasim Ahmed affixed his thumb impression on the counterfoil Ex. AW 2/1 in his presence at mark ‘A’, that respondent was inducted as a tenant by him at Rs. 250/- per month; he instructed the respondent to pay arrears and future rent to the appellant. In cross-examination Nasiruddin was not required to produce any other counterfoil. Nasiruddin in cross-examination has also deposed that the counterfoil was filled in by his friend Raisuddin.

22. Section 45, Evidence Act, provides that when the Court has to form an opinion as to the identity of handwriting or finger impressions the opinion of expert is relevant. S. 47, Evidence Act, provides that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. S. 67, Evidence Act, further provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

23. Principles and Digest of the Law of Evidence by Chief Justice M. Monir Vol. 1, 1986 Edition, pages 816-818 mentions the following as the modes of proving a signature or writing recognised by the Evidence. Act :

“(i) By calling the person who signed or wrote the document.

(ii) By calling a person in whose presence the document was signed or written.

(iii) By calling a handwriting expert.

(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.

(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.

(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.

(vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person.

(viii) A signature is proved to have been made if it is shown to have been made at the request of a person by some other person, e.g, by the scribe who signed on behalf of the executant.

(ix) By other circumstantial evidence.”

These modes of proof are supported by the various judgements mentioned in that book. One of the modes of proving the signature or handwriting recognised by the Evidence Act is by calling a person in whose presence the document was signed or written. In the present case Nasiruddin A.W 2 has deposed that the counterfoil receipt Ex. A.W 2/1 was filled in by his friend Raisuddin and it was thumb marked by respondent Nasim Ahmed in his presence. By this statement of Nasiruddin the counterfoil Ex. A.W 2/1 stands proved. The other oral statement of Nasiruddin also proves that the respondent was a tenant under him in the suit premises at Rs. 250/- per month.

24. In Mobarik Ali Ahmed v. The State Of Bombay , AIR 1957 SC 857 it has been observed by the Supreme Court that a document may be proved either by direct or circumstantial evidence and that the evidence may consist of a person who saw the document being written or the signature being affixed. In Hafiz Abdul Basit v. Hafiz Ahmad Mian, AIR 1973 Delhi 280 the dispute was whether the rent notes were duly proved when neither Imtiaz Ali v. Nasim Ahmed the tenant nor the scribe of the rent notes was produced in Court. One Mussaraf Ali had deposed that the rent notes were executed in his presence by the tenant, it was held that Mussaraf Ali was competent to depose as to the execution of the rent notes. Thus a person in whose presence documents were signed or written is competent to prove the handwriting and the signature of the person concerned. In the present case Nasiruddin was therefore competent to prove that counterfoil receipt Ex. A.W 2/1 was scribed by his friend Raisuddin and was thumb marked by Nasim Atimed, respondent. Thus I am of the opinion that counterfoil receipt Ex. A.W 2/1 was duly proved. The approach of the Tribunal to the facts of the present case is entirely contrary to law. All observations made by the Rent Control Tribunal in holding that there was no relationship of landlord and tenant are irrelevant. I am therefore of the opinion that under S. 45, 47 or 67, Evidence Act, it is not essential that handwriting expert must be produced to prove thumb impression or that the writer of a document must be produced to prove his writing. It is also not necessary to prove all counterfoils or more than one counterfoil.

25. From the statement of Nasiruddin as A.W 2 it stands proved that the respondent was a tenant in the suit premises under him at Rs. 250/- per month and that the respondent thumb marked the receipt Ex. A.W 2/1. I am further of the opinion that no reliance can be placed on the case set up and the evidence produced by the respondent. He pleaded that he was the owner of the land underneath the premises as he is alleged to have purchased it for Rs. 1500/- from one Abdul Ghaffor in 1977 and that he had raised the, structure over the land. No registered sale deed by Abdul Ghaffor in his favour has been placed on record. No evidence has been produced to show that any construction was raised by the respondent. Further he pleaded that the number of shop premises was C-65 and not D-89. But before the Tribunal he conceded that the number of the shop was D-89 and that he was in occupation of the same. The judgement and order of the Tribunal dismissing the application for eviction of the respondent are based on wrong approach and are not in accordance with law. It is held that there was relationship of landlord and tenant between Nasiruddin A.W 2 and the respondent and consequently under the power of attorney between the appellant and the respondent also with respect to the suit premises D-89 Khureji Khas, Delhi, at Rs. 250/- per month. It is further held that the appellant is entitled to institute the eviction petition against the respondent. The appellant admittedly sent a notice through his counsel Shri S.K Bhalla on 11th May, 1982 (Ex. A.W 1/4) to the respondent requiring him to pay the arrears of rent. This notice was served upon him who sent a reply denying his liability. Admittedly the respondent neither paid nor tendered any amount of rent after the receipt of the demand notice. The ground of eviction on ground of non-payment of rent has been made out against the respondent under S. 14(1)(a) of the Act.

26. The appeal is accepted setting aside the judgement and order of the Rent Control Tribunal. I pass an order of eviction in favour of the appellant and against the respondent with respect to shop premises bearing No. D-89 Khureji Khas, Delhi, shown red in the plan Ex. A.W 1/6. The respondent is directed to deposit all arrears of rent for the period from 1st March, 1982 to 31st August, 1986 at Rs. 250/- per month within one month from today in the Court of the Additional Controller. If the respondent deposits the said arrears of rent he will not be dispossessed and shall be deemed to have enjoyed benefit under S. 14(2) of the Act. The respondent shall pay costs of this appeal to the appellant.

Appeal allowed.