Tag: #property

-Report by Mehul Jain

It was held by the Delhi High Court in the case of M/S THE COMMERICAL ELECTRIC WORKS & ORS VS SHARDA GUPTA that the Delhi High Court on April 06, while not changing the decision of Trial Court for giving landlady property to his grandson for bona fide needs. Because of the dicta of the Supreme Court, this Court is of the view that the issues raised by the Petitioner herein do not merit any interference and the finding of the Trial court does not suffer from any infirmity. The petition of the petitioner is dismissed by the Hon’ble High Court.

FACTS

The judgment is made by the learned Single Judge bench on 06 April 2023. The judgment is given by “HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA”. This revision petition has been filed by the Petitioners, tenants, assailing the eviction order dated 23.03.2019, passed by the Additional Rent Controller, Central District, Tis Hazari Courts, Delhi (‘Trial Court’), in Eviction Petition No. E-150/16 (New No. 15/17).

The Respondent, the landlady, is stated to be the owner of the entire property bearing No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘subject property’) which comprises a Ground Floor (‘GF’), Mezzanine Floor, First Floor (‘FF’), Second Floor (‘SF’), and Third Floor (‘TF’).

The Respondent filed the eviction petition for recovery of the commercial premises being the ground floor, mezzanine floor, and third floor of property No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘tenanted premises’) located in the subject property. The eviction petition was filed by the landlady on the plea that she has a bona fide need for her grandson i.e., Mr. Kanishk Gupta, who has recently graduated and wants to establish, run and operate his own business or join the landlady in her existing business and expand the said business, from the tenanted premises. It was asserted that there is no other commercial property owned by the landlady. However, before this Court, the learned Counsel for the Petitioners has restricted his oral submissions to assail the findings concerning bona fide need on the plea that FF and SF of the subject property are lying vacant and are therefore, available to the landlady for the alleged business of her grandson. The Trial Court after considering the submissions of the parties held that the Respondent is the owner as well as landlady in respect of the tenanted premises. The Trial Court further held that the tenanted premises are bona fide and required for the business of the grandson. The Trial Court rejected the submission of the Petitioners herein that the landlady has suitable alternative accommodation on the FF and SF of the subject property. The Trial Court relied upon the photographs placed on record to opine that the FF and SF are in a dilapidated condition. The Trial Court, further, held that there is no parity between commercial premises located on the ground floor vis-à-vis upper floors. In light of the aforesaid facts and findings, the Trial Court rejected the application seeking leave to defend and passed the impugned eviction order.

PETITIONER CONTENTION

The petitioner’s counsel states that the tenanted premises are not bona fide required by the Respondent, landlady, since her grandson, for whose bona fide need the tenanted premises are required, is working as a relationship manager in the HDFC Bank branch at A-9, Lajpat Nagar-4, New Delhi.

Petitioner states that the FF and SF of the subject property were recovered by the Respondent, landlady, in May 2013, in an eviction petition (E106/13/09) filed by her under Section 14(1)(e) of the DRC Act. In this regard, he has placed on record the electricity bill issued by BSES Yamuna Power Limited (‘BSES’) for the meters installed on the said floors, to show the negligible consumption of electricity in the said premises. 

He relies upon the Petitioners’ averments recorded in the order dated 06.09.2019 passed by this Court, whilst issuing notice in the present petition. Petitioner states that the non-use of the FF and SF by the Respondent belies the plea of bona fide need and the Trial Court erred in dismissing the leave to defend the application.

RESPONDENT’S CONTENTION

In reply, learned counsel for the Respondent, the landlady, states that currently, both, the Respondent’s son i.e., Mr. Manish Gupta and grandson i.e., Mr. Kanishk Gupta are unemployed. Both the grandson was employed before but they leave their job for operating or running the business.

He states that the landlady along with her daughter-in-law i.e., Ms. Madhu Gupta had started the business of sale of women’s wear under the name and style of ‘Kanishk Sarees’ in the year 2014, from the FF of the subject property. He states that however, the said business has failed as customers are unwilling to come to FF in the subject property. However, FF and SF are unsuitable for new businesses.

He states that the Petitioners herein have abused the procedural safeguards to delay the hearing in the present revision proceedings. He states that even during the adjudication of the eviction petition, though the leave to defend application was filed, however, a copy of the same was not provided to the landlady for almost 3 years.

COURT’S DECISION

The Hon’ble High Court observed that the decision of the Trial Court was correct and there is no need to change or revision of that judgment. So, the Hon’ble High Court gives the judgment in the favour of Respondent. And the Hon’ble High Court referred the case which is related to this matter as “Abid-ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30”[2].

The subject eviction petition was filed much later on 26.12.2016 and for the bona fide need of the grandson, which in this opinion of this Court has rightly upheld by the Trial Court. The Supreme Court in the case of Abid-ul-Islam (Supra) has after discussing the law held that the scope of the revisional jurisdiction under Section 25B(8) of the DRC Act is limited.

Accordingly, because of the aforesaid discussion, this Court finds no merit in this revision petition, which is hereby dismissed and the eviction order dated 23.03.2019 is upheld. The pending applications are disposed of. The interim order dated 06.09.2019 is hereby vacated. The Respondent is at liberty to proceed with the execution of the eviction order and the Petitioners will be liable to continue to pay the use and occupation charges at Rs. 15,000/- per month, until the handing over of the possession to the Respondent.

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-Report by Moksh Kapoor

Interest was granted to the petitioners in the case of ROSHANBI AZIZ MOTIWALA THROUGH POA MR. ILIYAS AZIZ MOTIWALA AND ORS. Vs THE COMPETENT AUTHORITY AND DEPUTY COLLECTOR AND ORS. Decided on 06-04-2023.

FACTS:

The properties of the petitioners in the present case were acquired by the Competent Authorities. It was contended by the petitioners that the authorities passed an order under section 3(G) of the national highways act dated 15th July 2017 that the compensation awarded to the petitioners according to their building structure will be for an amount of Rs. 1,08,92,995/-. The petitioners contended that the compensation amount which was paid had not been added with the interest on the amount determined by the Competent Authority under the Award from the date of declaration of the Award till the date of payment of the amount of compensation. A similar claim was rejected by the Competent Authority and the petitioners moved to the high court for redressal under Article 226 of the Indian constitution.

APPELLANT’S CONTENTION:

Petitioners claimed they are entitled to interest on the sum given under the Award from the date of the Award until the date of payment. They also claimed that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Removal of Difficulties) Order dated August 28, 2015, which went into effect on September 1, 2015, provided that the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (“the said Act of 2013”) relating to the determination of compensation. They further contended that it was the duty of the competent authority to disperse the compensation amount after passing the reward and the competent authority has failed to do the same. Petitioners also stated the case of Tarsem Singh, in which the apex court held that Sections 23(1-A) and (2) of the Land Acquisitions Act relating to Solatium and interest, as well as Section 28 in which interest is payable this provision will also apply to any acquisition made under the 1956 Act.

RESPONDENTS CONTENTION:

The respondent contended the notice to collect the reward to both the petitioner was issued and the petitioner by their will claimed the award in February/March 2015 and the amount was given to them during that time only. The competent authority also contended that after the award was issued the valuation of the property can’t be done therefore the award concerning structure was not passed. They stated that the supplementary compensation amount was deposited in the petitioner’s account as per the letter issued by NHAI dated 27, September 2017 and the notice for the same was issued on 28th September 2017. They claimed the petitioner is provided with the full compensation of their land therefore they are not liable to pay any interest.

JUDGEMENT:

The Bombay High Court in this case held that the claims made by the competent authority of issuing notices to both the petitioners are not maintainable in the court as there is no proof for the same. There was no material produced in the court to back up the claim. The court also held that the question here is not of providing the actual compensation, but rather providing the interest for the delay of providing the compensation by the competent authority. If there is a delay in the actual payment of compensation amount from the date of respective Awards in Petition, the Petitioners would, in our opinion, be entitled to interest from the date of respective Awards. Award valid till the date of payment. In light of the facts and circumstances of both Writ Petition and for the reasons stated above, it would be necessary to direct the Respondents to pay the Petitioners interest at the rate of 9% per annum from the date of award until the date of actual payment.

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-Report by Karan Gautam

The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 filed an appeal under Article 136 of the Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by the Hon’ble High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. During the pendency of the captioned appeal, the second appellant died and his legal heirs were impleaded as additional appellants 2.1 to 2.4. The original first appellant and the impleaded legal heirs of the deceased second appellant are collectively described as ‘appellants’. The plaintiff prayed for a judgment for decree of permanent injunction restraining the first and second defendants from interfering in the plaintiffs right, title and interest over and in the suit schedule property.

FACTS:

The appellants filed a written statement contending that the suit is not maintainable, that there is no prayer for possession, that the suit was not valued correctly, and that the real owners of the suit property were not arraigned as parties. Subsequently, they amended the plaint by adding schedules A, B and ‘C’ and prayers qua them. The prayers in the amended plaint read as under: a judgment and decree of perpetual injunction directing the defendants to restore the possession of the schedule premises to the plaintiff and not to interfere in the plaintiffs’ lawful possession and enjoyment of the schedule property.

PETITIONER’S CONTENTIONS:

The plaintiff/respondent adduced oral and documentary evidence in support of his claims, but the defendant did not lead any evidence. The Trial Court partially decreed the suit as per judgment dated 04.07.2007, holding that the plaintiff was entitled to recover possession of suit ‘B’ schedule property from the defendants and directed the defendants
to vacate and deliver it to the plaintiff within two months. The surviving defendants challenged the judgment and decree before the High Court in RFA No.1966 of 2007. They did not adduce any evidence before the trial court. The plaintiff objected to the maintainability of the appeal as the original suit was filed under Section 6 of the Specific Relief Act, 1963. The High Court dispelled the objection and remanded the matter to the Trial Court for fresh disposal. Leave was granted and the Civil Appeal was disposed of as per judgment dated 03.09.2009. The trial Court was directed to record the evidence and submit a report to the High Court to dispose of the appeal within the time stipulated. The

Court to which the case is remanded has to comply with the order of remand and acting contrary to it is contrary to law. In this case, the High Court remanded the matter to the trial Court for fresh disposal and directed the trial Court to record the evidence as directed by the High Court and forward it along with report to enable the High Court to dispose of the appeal taking into account the additionally recorded evidence of the defendants.

RESPONDANT’S CONTENTIONS:

The High Court dismissed the appeal of the appellants and confirmed the judgement and decree of the Trial Court. The appellants had raised multiple grounds to assail the judgment, including that the plaintiff/the respondent had failed to establish his possession over plaint ‘B’ schedule property. The High Court failed to consider the contention that the subject suit was abated due to the failure of the respondent to bring on record the legal representatives of Sri Hanumaiah, the third respondent, and Sri Rama @ Ramamurthy, the deceased second defendant, who had purchased the suit property from Sriman Madhwa Sangha and Sri Vittal Rao as per sale deed executed on 05.10.2000.

JUDGEMENT:

The High Court held that the defendants did not disclose their defence in their written statement and did not even contend that they are in possession of the suit property, which is based on the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis‘. The High Court is also correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent. The appellants argued that the suit ought to have been held as abated against all the defendants due to non-substitution of the legal representatives of the deceased defendant No. 3 upon his death, but the courts below have held that the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession. The appeal is dismissed and there will be no order as to costs.

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-Report by Sejal Jethva

ASHUTOSH SAMANTA (D) BY LRS. & ORS. VS SM. RANJAN BALA DASI & ORS., In this case, 3 related brothers’ property was distributed by will. In this case sections 68,69 and 71 of the Indian Evidence Act discuss.

FACTS

Three sons, Upendra, Anukul, and Mahadev were born to one Gosaidas Samanta (hence, “testator”). He left a will dated 16.11.1929 behind when he passed away, leaving behind his widow Bhagbati Das and three boys. Three heirs received the testator’s estate: his sons Anukul and Mahadev, as well as his grandson Shibu, who is the son of Upendra (who was not granted any share). A division deed was drawn between these three co-sharers on February 21, 1945. Upendra, who signed a disclaimer document for one portion of the assets Shibu sold with his share, appears to have accepted this arrangement.

The current appellant filed a claim in 1952, claiming that he was in possession of some of the testator’s real estate and that he had acquired them from Upendra.

APPELLANTS CONTENTION

Mr. Ranjan Mukherjee, Ld. Advocate contended on behalf of the appellant that the courts below could not have relied on the will and given the letters of administration in the absence of any proof that the will was properly performed. Given that the propounder had made several arguments, including one for adverse possession in a prior suit for division, it was argued that there were suspicious circumstances surrounding the will’s execution that raised questions about its veracity. Additionally, it was claimed that the lower courts could not have accepted the will based on Section 90 of the Evidence Act of 1872 and relied on the 1945 partition document or the ‘Nabadi’ alleged to have been

The appellant’s principal contention is that the courts below erred by relying on Section 90 of the Evidence Act of 1872 because the application for letters of administration was submitted after a significant amount of time had passed.

RESPONDENT’S CONTENTION

On the other hand, Mr. Bikash Kar Gupta, Ld. Advocate argued on behalf of the respondents that this court should not intervene in the current matter because the courts have made concurring factual findings. It was argued that the will had been properly proved and that there was no need to wait to ask the court for letters of administration.

The respondent argued that both the trial court and the High Court consistently expressed satisfaction that the elements required to prove the will had been met and that the courts did not base their conclusions solely on the assumption that the document was old. The respondent relied on the record and the findings made by both the trial court and the High Court.

JUDGEMENT

1. Wills cannot be proved only based on their age; wills must also be proven in accordance with Sections 63(c) of the Succession Act of 1925 and Section 68 of the Evidence Act of 1872, which preclude the use of Section 90’s presumption regarding the regularity of papers older than 30 years.

2. There are frequently circumstances when wills that would have otherwise met the legal conditions for being attested cannot be proven in accordance with the aforementioned two sections because the attesting witnesses are unavailable or if one of the witnesses denies having attested the will. Evidence Act of 1872 Sections 69 and 71.

3. In addition to the testimony of witnesses, the trial court also referred to the partition agreement that gave it effect and in which shares were distributed in line with the conditions of the will. This document was registered, and the appellant’s predecessor, the late Upendra, also signed a document acknowledging the will’s existence.

4. There can be only one conclusion, i.e., that the will was duly executed, and the propounder/respondent herein was successful in proving it, if all the aforementioned circumstances are taken into account in their entirety and one also keeps in mind the fact that none of Upendra’s heirs contested the grant of letters of administration.

5. After considering the discussion above, this court concludes that the conclusions in the High Court’s contested judgement are sound. As a result, the appeal is denied and rejected. There won’t be a cost-related order.

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