Delhi District Court
Aniket Jain vs Rajesh on 19 April, 2016
IN THE COURT OF HIMANSHU RAMAN SINGH,
CIVIL JUDGE1, CENTRAL DISTRICT, DELHI
Suit No.509/07
Unique Case ID No.02401C0973612007
Aniket Jain
S/o Sh. S. K. Jain,
R/o 2734, Chhatta Pratap Singh,
Kinari Bazar, Delhi110006. ..............Plaintiff
Versus
Rajesh
S/o Late Sh. Kirti,
R/o 274445,
Chhatta Pratap Singh,
Kinari Bazar, Delhi. ...........Defendant
Date of institution of the suit : 28.09.2007
Date of pronouncement of judgment : 19.04.2016
Aniket Jain vs. Rajesh Suit No.509/2007 Page 1 of 35
SUIT FOR POSSESSION, MESNE PROFITS AND PERMANENT
INJUNCTION
JUDGMENT
1. The brief facts as stated by the plaintiff are that the plaintiff is the owner of property bearing no.274445, Chhatta Pratap Singh, Kinari Bazar, Delhi, having purchased the same from Sh. Dhanna Lal Jain and Sh. Surender Kumar Jain, S/o Sh. Dhanna Lal Jain vide sale deed registered on 24.06.2003. The sale deed was executed in favour of the plaintiff as per the terms of the registered Will dated 08.11.1951 executed by Smt. Kesar Devi widow of Sh. Babu Mal. In the original plaint there were two defendants. Defendant no.1 namely Smt. Basant expired during the pendency of the suit. Vide order dated 31.08.2009 defendant no.1 namely Smt. Basant was deleted from the array of parties and suit was proceeded against only defendant no.2 namely Sh. Rajesh.
2. Ld. counsel for the plaintiff has stated that there are two Kesar Devis in this case, one is motherinlaw of the plaintiff and other is grand mother of the defendant. It is further stated that Smt. Kesar Devi, widow Aniket Jain vs. Rajesh Suit No.509/2007 Page 2 of 35 of Sh. Mohan Lal grandmother of the defendant was inducted as a tenant with respect to Dalan Dar Dalan leaving one store and one room of the right side as shown in the red colour in the site plan attached with the plaint. The said Smt. Kesar Devi w/o Mohan Lal expired long back leaving behind two sons namely Sh. Bhanu and Kirti. Sh. Bhanu was settled at Amroha, UP. The other son of Sh. Kirti (father of defendant no.2) remained in possession of premises and he also expired around 18 to 20 years back from now. It is further stated that Smt. Kesar Devi was habitual defaulter in making the payment of rent and Sh. Dhanna Lal Jain terminated her tenancy vide legal notice dated 06.10.1982, which as per the plaintiff was duly served. It is the case of the plaintiff that after the termination of the tenancy Smt. Kesar Devi w/o Mohan Lal had become statutory tenant and Sh. Kirti was not dependent upon his mother Smt. Kesar Devi w/o Mohan Lal (hereinafter referred to as Kesar Devi) for the purpose of the residence. Relying on these averments the plaintiff has filed the present suit for recovering the user charges, possession, injunction and decree for mesne profits.
3. The defendants no.1 and 2 had filed a common written statement stating that the plaintiff has not approached the court with clean hands Aniket Jain vs. Rajesh Suit No.509/2007 Page 3 of 35 and the present suit is barred under Section 50 of the Delhi Rent Control Act. The defendant denied that the plaintiff is owner of the property bearing no. 274445, Chhatta Pratap Singh, Kinari Bazar, Delhi. The defendants have averred that the property in question was under private charitable trust and the grand father of defendant no.2 Sh. Mohan Lal was a tenant who died as a contractual tenant and after his death his legal heirs inherited the tenancy. It is further stated by the defendant that the defendant is in possession of entire portion as shown in the red colour in the site plan filed alongwith the plaint. It is stated by the defendant that Sh. Kirti died in 1994 and after his death his family members stepped into the shoes of late Sh. Mohan Lal on the same terms and conditions of the tenancy. It is further stated by the defendant that Smt. Kesar Devi was not habitual defaulter and the rent was stopped on the basis of doctrine of suspension of rent as the landlord had tortiously deprived the tenant on the part of the tenancy premises i.e. roof/ terrace. It is stated that Dhanna Lal Jain had no right to terminate the tenancy and that the legal notice dated 06.10.1982 was never served upon late Smt. Kesar Devi. The legal notice dated 11.01.2007 was replied to by the defendants when the same was served upon them.
Aniket Jain vs. Rajesh Suit No.509/2007 Page 4 of 35
4. Replication was filed by the plaintiff wherein the plaintiff denied all the averments as made by the defendant in the written statement and reiterated those as made in the plaint.
ISSUES
5. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court vide order dated 16.07.2008.
1.Whether the plaintiff is entitled to a decree for possession, as prayed for?OPP
2.Whether the plaintiff is entitled to a decree for mesne profits? If so for what period and at what rate? OPP
3.Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP
4.Whether the suit is barred by Section 50 of the Delhi Rent Control Act? OPD
5.Whether the suit is bad for nonjoinder of necessary parties? OPD
6.Whether the suit is not maintainable in the present form? OPD
7.Relief.
Evidence
6. To prove his case the plaintiff has relied on the following witnesses:
(i) PW1 plaintiff himself.
(ii) PW2 Manoj Kumar, LDC, Record Room Sessions (proved the Aniket Jain vs. Rajesh Suit No.509/2007 Page 5 of 35 probate obtained).
(iii) PW3 Sh. Sanjay Saxena from Department of Archives to prove the Will.
(iv) PW4 Suresh Kumar Draftsman.
(v) PW5 UDC Sh. Satbir Singh from the office of Sub Registrar.
(vi) PW6 Shyam Sunder with Respect to the payment of house tax.
(vii) PW7 Sh. Neeraj Kumar, Clerk from Small Cause Court, Record Room.
(viii) PW8 Sh. Afaq Ahmad Khan, Urdu Translator.
7. The plaintiff has relied upon the following documents:
Ex.PW1/1 : Copy of sale deed (OSR)
Ex.PW1/2 : Copy of Will dated 12.11.1951 (OSR)
Ex.PW1/3 : Site Plan
Ex.PW1/4 : Notice dated 06.10.1982
Ex.PW1/5 : Copy of postal receipt (OSR)
Ex.PW1/6 : Copy of AD Card (OSR)
Ex.PW1/7 : Notice dated 11.01.2007
Ex.PW1/8 &
Ex.PW1/9 : Postal receipt
Ex.PW1/10 : UPC
Ex.PW1/11 : Copy of reply dated 13.01.2007 (OSR)
Ex.PW1/12 &
Ex.PW1/13 : Copies of house tax receipts (OSR)
Aniket Jain vs. Rajesh Suit No.509/2007 Page 6 of 35
Ex.PW1/14 : Copy of house tax receipt (OSR)
Ex.PW1/15 &
Ex.PW1/16 : Copies of counterfoils of two rent
receipts bearing no.690 and 692 both
dated 18.03.1977 and 25.03.1977
Mark A & B : Copies of judgment.
Ex.PW2/1 : Summoned record pertaining to PC no.
12/53 titled as Rai Chand vs Brahm
Chand decided on 30.11.1954 having
goshwara no.200 Ex.PW2/1 by the
court of Hon'ble G. S. Bedi, ADJ, THC,
Delhi as per which probate was
granted on 28.08.1957
Ex.PW5/1 : Certified copy of Ex.PW1/1
Ex.PW5/2 : Appointment of trustee dated
10.11.1991.
Ex.PW6/1 to
Ex.PW6/3 : Photocopies of receipts (OSR)
Ex.PW7/1 : Certified copy of general/goshwara
register no.15 for the period
03.05.1966 to 02.08.1966 which is
having entries from 3671 to 6839
which has been maintained in the
Record Room of Small Cause Courts,
Delhi.
Ex.PW8/1 : Translation of document Ex.PW7/1
8. Thereafter, matter was listed for DE. Defendant got examined Aniket Jain vs. Rajesh Suit No.509/2007 Page 7 of 35 himself as DW1. The defendant relied upon the following documents:
Ex.DW1/1 : Reply of notice
Ex.DW1/2 &
Ex.DW1/3 : Certified copy of survey report of MCD
9. I have heard the arguments from both the sides at length and gone through the record carefully. The issue wise findings are as under: Issue No.1 and 3
10. Issue No.1 and 3 are taken up together for the sake of convenience and as common questions of fact and law arise in these issues. Issue No.1.
Whether the plaintiff is entitled to a decree for possession, as prayed for?OPP Issue No.3.
Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP
11. The onus to prove these issues was upon the plaintiff.
12. The Ld. counsel for the plaintiff argued that Smt. Kesar Devi was Aniket Jain vs. Rajesh Suit No.509/2007 Page 8 of 35 the tenant and the tenancy of Late Kesar Devi widow of Mohan Lal was terminated vide legal notice dated 06.10.1982 by Sh. Dhanna Lal Jain. Vide sale deed dated 24.06.2003 the said Dhanna Lal Jain and Surender Kumar Jain sold the property in question to Sh. Aniket Jain, S/o Sh. S. K. Jain. The certified copy of sale deed is Ex.PW5/1. The notice dated 06.10.1982 is Ex.PW1/4. The postal receipts are Ex.PW1/5 and the AD card is Ex.PW1/6. The plaintiff served legal notice dated 11.01.2007 upon the defendants which has been Ex.PW1/7. The postal receipts are Ex.PW1/8 and Ex.PW1/9 and UPC receipt is Ex.PW1/10. The defendants sent their reply to the above said notice and the same is Ex.PW1/11. The plaintiff argues that the defendants have accepted in their reply dated 13.01.2007 that Smt. Kesar Devi was the tenant of the suit property.
13. The Ld. counsel for the plaintiff has further stated that the defendants have occupied the store which was not the part of the terminated tenancy of Smt. Kesar Devi only after the service of said notice Ex.PW1/7. The plaintiff has placed reliance on the house tax receipt dated 17.06.2006 which is Ex.PW1/13 and receipt dated 28.06.2005 which is Ex.PW1/12. The plaintiff has also placed reliance Aniket Jain vs. Rajesh Suit No.509/2007 Page 9 of 35 on the house tax receipt for the year 198485 which is in the name of Smt. Kesar Devi W/o Babu Mal and which has been Ex.PW1/14. The plaintiff is further relying on copies of counter foils of rent receipts number 690 and 692 wherein the name of Kesar Devi W/o Babu Mal as well as the tenanted area has been specified. Both the receipts are respectively Ex.PW1/15 and Ex.PW1/16.
14. The counsel for the plaintiff has referred to crossexamination of DW1 wherein copies of these two receipts were shown to the witness and the witness admitted that he has not filed any proceedings to challenge the documents. The DW1 in his crossexamination has also admitted that there is an electricity connection having K No.111014420075 in the name of his deceased grand mother Kesar Devi.
15. The plaintiff has also relied on the judgment passed by Sh. Harjeet Lal Randev, Ld. Addl. Judge Small Cause Court, Delhi in File No.861 of 1965 and file No.870/1965 both decided and decreed on 11.04.1966 titled as "Sh. Dhanna Lal (Predecessor of Plaintiff) and others vs. Smt. Kesar Devi" which Mark 'A' and 'B' and relevant entries have also been proved. The original files of the said case were weeded out by the concerned Aniket Jain vs. Rajesh Suit No.509/2007 Page 10 of 35 department. It is argued by the Ld. Counsel for the plaintiff that by way of the Urdu entries of the said decided suits by Sh. Harjeet Lal Randev, Addl. Judge Small Cause Courts, Delhi, the presumption regarding status and competency of Dhanna Lal, the predecessor of the plaintiff may be raised and the same may be read against Smt. Kesar Devi.
16. It is further argued by the Ld. counsel for the plaintiff that the registered Will is unchallenged. Ld. counsel for the plaintiff submits that the onus to prove has been discharged by the plaintiff and the onus now lies upon defendant to disprove the same.
17. Ld. counsel for the defendant has argued that Sh. Mohan Lal was the tenant and not Kesar Devi. Ld. Counsel for the defendant has relied on document DW1/2 which is MCD survey report. It is submitted that in the said report name of Mohan Lal is clearly written and the area under his tenancy has also been mentioned.
18. Per contra it is submitted by Ld. Counsel for the plaintiff that the said report cannot be relied upon as the person who made the report has not been examined and therefore the report is not proved. Ld. Counsel Aniket Jain vs. Rajesh Suit No.509/2007 Page 11 of 35 for the plaintiff has also referred to a noting on the right side of the said survey report which is reproduced below for the sake of convenience:
"the stairs of this house were in the house just opposite this house, which were closed. The upper ..F.F and second F seen vacant. It was told to be a Mandir. (previous RAR consulted). Told by the lady to be locked."
19. It is argued by Ld. counsel for the plaintiff that the survey report cannot be relied upon as the same has been prepared on the oral asking from a lady and has not been prepared after proper inspection. It is further submitted by ld. counsel for the plaintiff that the name of Kesar Devi finds mention in the said report at the top left hand corner.
20. On the basis of documents produced and witnesses examined, the plaintiff has been able to prove that that Smt. Kesar Devi w/o Mohan Lal was the tenant of the property. The defendant has failed to disprove the same. The next plank of the argument of the plaintiff is that the said tenancy of Smt. Kesri Devi was terminated vide notice dated 06.10.1982.
21. Ld. counsel for the plaintiff has relied on the judgments passed by Hon'ble high court of Delhi in Ram Singh vs. Nathi Lal, AIR 1983 Delhi 114 and Mohan Lal Goela and Ors vs. Siri Krishan AIR 1978 Aniket Jain vs. Rajesh Suit No.509/2007 Page 12 of 35 Delhi 92. Ld. Counsel for the plaintiff has sought to argue that the facts in the case of Mohan Lal Goela bears resemblance to the facts under the present suit. It has been argued that once a notice has been given to evict the premises, the subsequent withdrawal of proceedings before the Rent Controller does not make the notice null and void. The Ld. counsel has relied on para 28 of decision passed by Hon'ble High Court in Mohan Lal Goela vs. Siri Krishan (supra) which reads as under:
"Once a valid notice is served it is never exhausted. No law says that a notice is exhausted if the proceedings end in failure. The tenancy once determined is determined for ever."
22. The Ld. counsel for the plaintiff argues that the notice does not get exhausted by reason of the fact that the earlier eviction petition was dismissed. The counsel has argued that explanation II of Section 2 of the Delhi Rent Control Act, 1958 shows that the right of a successor to continue in possession after the termination of tenancy is severely limited. Such a successor is given the right to continue in possession for a limited period of one year after the termination of tenancy.
23. It is further argued by the plaintiff that to succeed to the right of tenancy the heir must not be financially independent. If the successor Aniket Jain vs. Rajesh Suit No.509/2007 Page 13 of 35 was not financially dependent on the deceased tenant he has a right to continue in possession only for a limited period of one year. The Ld. counsel for the plaintiff has further argued that the successor i.e. the surviving spouse, son, daughter, parents, daughterinlaw should ordinarily live in the premises with the deceased person as a member of his family upto the day of his death in order to be entitled to right to continue in possession. The right to continue in possession is not a right to tenancy and the successor is not a tenant in the sense that he has an estate. He has a merely personal right of occupation. Reliance was placed on J.C. Chaterjee vs. Sri Kishan Tondon, AIR 1972 SC 2526. The Hon'ble Supreme Court made the following observations:
"It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act."
24. The Ld. counsel for the plaintiff has argued that the successor has right to continue in possession if he satisfies the conditions of the explanations. Therefore, the onus to prove that the successor was dependent on the original tenant is on the defendant. Even if the rent has been accepted after termination of tenancy the same cannot be said to extend any right to the tenant to continue in possession. The only Aniket Jain vs. Rajesh Suit No.509/2007 Page 14 of 35 document which the defendant has produced in his favour is the survey report of the MCD.
25. Ld. counsel for the defendant has sought to make a distinction between 'joint tenant ' and ' tenants in common'. The counsel for the defendant has relied on Budh Sen vs. Sheel Chandra Agarwal and Ors, AIR 1978 Allahabad 88, the relevant paragraph of which is reproduced as under:
"The basic distinction between 'joint tenant' and 'tenants in common' is that in the case of joint tenant there is unity of title and possession while in the case of tenants in common though there is unity of possession there is no unity of title. Therefore, while a notice served under S. 106 of the T. P. Act only on one of the joint tenants is effective to terminate the tenancy of all the joint tenants who have unity of title, no such result follows where a notice is served only on one of the tenants in common since there is no unity of title as between them in contradistinction to the joint tenants. Therefore notice given to one of them cannot have the effect of determining the interest of other interest holders."
26. It is argued by Ld. counsel for the defendant that after the death of Mohan Lal, his heirs were tenants in common and therefore the notice for termination of tenancy was to be given to all the tenants. The plaintiff did not give notice to all the tenants. If the tenancy of one of the heirs Aniket Jain vs. Rajesh Suit No.509/2007 Page 15 of 35 was terminated, the tenancy of the remaining heirs was still left.
27. Ld. counsel for the defendant has further argued that the plaintiff has based his case on the Will dated 08.11.1951 and the sale deed executed by Sh. Dhanna Lal and Sh. S. K. Jain in favour of the plaintiff. The counsel has argued that if a material witness is not produced, then it introduced a fatal flaw to the case of the party. It is the contention of the counsel for the defendant that the plaintiff did not examine Sh. S. K. Jain who was material witness regarding the sale deed, although the said witness was in attendance in court for some time. It has been further argued that the plaintiff has not proved the contents of the Will by examining the attesting witnesses. It is submitted by Ld. counsel for the defendant that Sh. Dhanna Lal Jain was only one of the trustee and he had no power to sell off the property.
28. Ld. counsel for the plaintiff has referred to Ex.PW1/11 which is a reply sent by Sh. Tarun Sharma on behalf of the defendants. In paragraph no. 1 of the said reply it has been mentioned that Basant and Sh. Rajesh are the lawful tenants of the suit premises. It is pointed out by the Ld. Counsel for he plaintiff that the reply no where mentions that the Aniket Jain vs. Rajesh Suit No.509/2007 Page 16 of 35 above said persons are cotenants. The defendant is trying to improve upon the case as put forth in the written statement. Simplistically put the averment of the counsel for the defendant is that on the death of Kesar Devi even if tenancy was inherited by Sh. Kirti for one year, the tenancy was inherited as contractual tenancy by the other brother. The defendant has however failed to bring on record any document which shows that the other heirs of Smt. Kesar Devi were financially dependent on her. Such contention of the defendant does not hold good.
29. Ld. counsel for the plaintiff rebutted that the Will dated 08.11.1951 has already been probated and there is no requirement of proving the said Will afresh. Therefore, the contentions of the defendant that the Will has not been proved falls flat. The will dated 08.11.51 is Ex.PW1/2. Probate on the said Will was granted by the Ld. ADJ Sh. G. S. Bedi, the order of which is Ex.PW2/1 (OSR).
30. The sale deed dated 24.06.2003 in favour of the plaintiff Sh. Aniket Jain is also Ex.PW1/1 (OSR). The sale deed proves the ownership of the suit property in favour of the plaintiff. Aniket Jain vs. Rajesh Suit No.509/2007 Page 17 of 35
31. The notice for termination of tenancy dated 06.10.1982 sent to Smt. Kesar Devi widow of Sh. Mohal Lal on behalf of Sh. Dhanna Lal is Ex.PW1/4. The said notice has not been disputed by the defendant. The only dispute which the defendant has raised is that the defendant did not receive the said notice. The AD Card which proves that the said notice was delivered through registered post is Ex.PW1/6. The said AD Card bears the signatures of Smt. Kesar Devi wife of Late Mohan Lal. The defendant has not disputed the thumb impression of Smt. Kesar Devi on the said AD Card. Therefore, the said Smt. Kesar Devi is deemed to have been served placing reliance on Section 27 of the General Clauses Act, 1897.
32. The plaintiff Sh. Aniket Jain after becoming the owner of the suit property had served notice dated Nil on Smt. Basant widow of Sh. Kirti and Sh. Rajesh (present defendant and son of Late Sh. Kirti). The reply to the said notice was sent by Sh. Tarun Sharma, Advocate on behalf of Smt. Basant and Sh. Rajesh which was dated 13.01.2007. The said reply is Ex.DW1/1.
33. The next question which is to be answered is whether Sh. Kirti Aniket Jain vs. Rajesh Suit No.509/2007 Page 18 of 35 was financially dependent on Late Smt. Kesar Devi wife of late Sh. Mohan Lal. The court may refer to Section 106 of Indian Evidence Act which reads as under:
"S.106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
34. The rule laid down in Section 106 is an exception to the general rule governing the burden of proof namely that the burden is on the person who asserts a fact. The fact whether Sh. Kirti was financially dependent or not on Smt. Kesar Devi is especially within the knowledge of the defendant. The defendant has failed to bring on record any document to prove that Sh. Kirti was financially dependent on Smt. Kesar Devi. In light of the same the notice having been held to be duly served the contractual tenancy of Smt. Kesar Devi was terminated in 1982. Thereafter, Sh. Kirti had become statutory tenant in the said property for a period of one year. After passing of one year, the occupation of the premises had become unauthorised.
35. In light of the above discussion these two issues are decided in favour of the plaintiff and against the defendant. Aniket Jain vs. Rajesh Suit No.509/2007 Page 19 of 35 Issue No.2 Whether the plaintiff is entitled to a decree for mesne profits? If so for what period and at what rate? OPP
36. The plaintiff has claimed mesne profits @ Rs. 100/ per day. In the crossexamination of PW1 specific question was put regarding placing of document to show the prevailing rate for usage charges. The answer came in the negative. DW1 was cross examined and specific question was put to him that the market rate of mesne profits of the suit property in the year 2007 was Rs.100/ per day and in the year 2013 Rs.300/ Rs.350/ per day. The witness stated that he does not know about the prevailing rates of mesne profits.
37. The term 'mesne profits' relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. The Mesne profits are nothing but a compensation that a person in the unlawful possession of other's property has to pay for such wrongful occupation to the owner of the property.
38. Section 2 (12) of the Code of Civil Procedure provides that: Aniket Jain vs. Rajesh Suit No.509/2007 Page 20 of 35
"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with the ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvement made by the person in wrongful possession.
39. It is settled principle of law that in case of mesne profits the burden of proof rests on the claimant i.e. the plaintiff. The onus of proving what profits he might have received with the ordinary diligence lies on the claimant.
40. The plaintiff has failed to prove the quantum of mesne profits enjoyed by the defendant. Therefore this issue is decided in favour of the defendant and against the plaintiff.
Issue No.4 Whether the suit is barred by Section 50 of the Delhi Rent Control Act? OPD
41. The onus to prove this issue was on the defendant. The defendant has claimed that the present suit is barred by Section 50 of Delhi Rent Aniket Jain vs. Rajesh Suit No.509/2007 Page 21 of 35 Control Act. Before proceeding further it would be appropriate to recapitulate the provisions of section 50 of Delhi Rent Control Act, 1958.
"50.Jurisdiction of the civil courts barred in respect of certain matters.I1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no jurisdiction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding..............
(3)...........
(4)............."
42. Section 3 (c) of the Delhi Rent Control Act states that the Act shall not be applicable to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees.
43. The admitted rent of the suit premises is below Rs.3,500/. Ld. counsel for the plaintiff has referred to the definition of tenant as provided under Section 2 of the Delhi Rent Control Act. The relevant Aniket Jain vs. Rajesh Suit No.509/2007 Page 22 of 35 clause (l) reads as under:
"tenant", means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be payable and includes
(i) subtenant:
(ii) any person containing in possession after the termination of his tenancy: and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them.
(c) parents.
(d) daughterinlaw, being the widow of his predeceased son.
Explanation I: The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death:
Explanation II: If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year: and on the expiry of that period, or on his death whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.Aniket Jain vs. Rajesh Suit No.509/2007 Page 23 of 35
44. Ld. counsel for the plaintiff has argued that the present suit is not barred under the Delhi Rent Control Act. He has sought sought to rely on explanation II of Section 2 of the DRC Act (supra). As per the explanation if the person who acquires the right to continue in possession after the termination of the tenancy was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year. Ld. counsel for the plaintiff has sought to argue that the defendants were not dependent on the original tenant in the property and as such their right to continue in the tenancy had expired after one year of the receiving of the notice. The tenancy having being expired the present suit cannot be said to have been barred under Section 50 of the Delhi Rent Control Act.
45. It has been argued by the plaintiff that, on the death of statutory tenant an application for eviction cannot proceed further and the landlord will have to file a separate suit based on title in a court having general jurisdiction as the legal representative do not inherit the tenancy or the statutory protection. The cause of action of the suit would be on a different footing. Section 50 (4) of the DRC Act reads as under: Aniket Jain vs. Rajesh Suit No.509/2007 Page 24 of 35
"Nothing in subs. (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies..........."
46. The Ld. counsel for the plaintiff has also relied upon Section 116 of the Indian Evidence Act which is as under:
"116. Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a little to such possession at the time when such licence was given."
47. As per Section 106 of Indian Evidence Act, burden of proving the facts especially within the knowledge lies upon the said concerned person who was having knowledge of the said facts. The burden to prove the fact that deceased Kirti was dependent upon late Smt. Kesar Devi (tenant) was upon the defendant. The defendant examined Rajesh Kumar as DW1. The defendant has failed to prove the dependancy of Late Sh. Kirti on Late Smt. Kesar Devi. The tenancy therefore became statutory tenancy for a period of one year from the service of notice in the year 1982 and after the expiry of the said period the defendant is not entitled Aniket Jain vs. Rajesh Suit No.509/2007 Page 25 of 35 to the protections available under the DRC Act. The present suit has been filed on the basis of title documents by the plaintiff. The present suit therefore is not barred under Section 50 of DRC Act. Therefore, the present issue is decided in favour of the plaintiff and against the defendant.
48. During the course of the trial the defendant moved an application under Order 7 Rule 11 CPC claiming that the present suit is barred in view of Section 19 of the Slum Area (Improvement & Clearance) Act, 1956 as the property falls within the area of notified slum and the suit has been filed without having permission from the competent authority. Although no issue has been framed regarding the said averments, it would be appropriate to give findings on the said averments also.
49. The Ld. counsel for the plaintiff has argued that Section 19 of the Slum (Improvement & Clearance) Act, 1956 has no application to the present suit. He has placed reliance on Paragraph 104 of the decision of the Hon'ble Delhi High Court in the case titled Mohal Lal Goela vs. Siri Krishan (supra) AIR 1978 DELHI 92. The said paragraph of the case Aniket Jain vs. Rajesh Suit No.509/2007 Page 26 of 35 reads as under:
"Assuming that the property is situated in a slum area, no permission of the competent authority under the Slum Areas (Improvement and Clearance) Act, 1956 is required. Under S. 19 of that Act permission of the competent authority is required for "any suit or proceedings for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area." But this suit is not a suit for the eviction of a tenant. It is a suit based on independent title against the defendants whose possession is said to be unauthorised and unlawful. Section 19 of Slum Act has no application to such a suit."
50. The onus to prove that the present suit is barred under the Slum Areas (Improvement and Clearance) Act, 1956 was on the defendant. The defendant has failed to bring on record any document to prove that the present suit property is covered under the said Act. Even otherwise in view of the law laid down by the Hon'ble Delhi High Court in Mohan Lal Goela vs. Shri Krishan the suit cannot be held to be barred under the Slum Area Act, as the present suit has been filed on the basis of independent title documents in favour of the plaintiff.
51. This issue is also decided in favour of the plaintiff and against the defendant.
Aniket Jain vs. Rajesh Suit No.509/2007 Page 27 of 35 Issue no. 5 and 6 Whether the suit is bad for nonjoinder of necessary parties? OPD Whether the suit is not maintainable in the present form? OPD
52. Both these issues are taken up together for the sake of convenience as common questions of law and fact are involved in both the issues. Onus to prove these two issues was on the defendant. The defendant has stated that the suit of the plaintiff is bad for non joinder of parties. The defendant has stated that the property in question was under private charitable trust and as such the suit filed in the name of Sh. Aniket Jain is not maintainable. It is stated by the defendant in his Written statement that Sh. Kirti late son of Mohan Lal died living behind the original defendants to the suit besides one daughter and as such the plaint is bad for non joinder for parties.
53. It is argued by the defendant that when tenant Kesar Devi died then the suit was filed against the wife of Sh. Kirti namely Basant. On 04.04.2009 the said Basant also died. Thereafter, an application was moved under Order 22 R 4 (3), however, the same was withdrawn. It is Aniket Jain vs. Rajesh Suit No.509/2007 Page 28 of 35 argued by Ld. Counsel for the defendant that suit cannot be withdrawn against the person after the said person is no more. It is argued that the correct course is to bring on record the legal heirs of the party.
54. The Ld. counsel for the plaintiff has argued that it is not necessary to bring on record the legal heirs of the erstwhile tenant. As per the plaintiff it is the defendant no. 1 and 2 only and after death of defendant no. 1, only defendant no. 2 who are in unauthorised occupation and possession of premises in question and as such they are the only necessary parties for just decision of the suit. Reliance was placed on the judgment passed by the Hon'ble Delhi High Court in the case titled as Mohan Lal Goela vs Siri Krishan (supra). The relevant paragraph is reproduced below: "the successor the surviving spouse, son, daughter, parents, daughterinlaw should "ordinarily live in the premises with the deceased person as a member of his family up to the day of his death" in order to be entitled to right to continue in possession."
55. The counsel has sought to argue that necessary party to the case are only those who are residing at the premises. The court is of the considered opinion that the persons residing in the premises have been Aniket Jain vs. Rajesh Suit No.509/2007 Page 29 of 35 made party to the suit and they are th proper parties.
56. Ld. Counsel for the defendant has referred to paragraph no. 3 of the plaint in which the plaintiff has stated that Kesar Devi was the grand motherinlaw of defendant no.2 which is false. It is stated that actually, Kesar Devi was grand mother of defendant no.2. This court is of the opinion that this averment is not material to the instant case the same has been suitably replied to in the replication filed by the plaintiff.
57. Another submission of the counsel for the defendant is that the present suit is barred being filed outside the period of limitation.
58. The counsel for the defendant has referred to the notice which is EX.PW1/4 dated 06.10.1982 in which paragraph no.3 it has been mentioned "my client also terminates your contractual tenancy and call upon to vacate the tenancy premises and handover its vacant and peaceful possession.............." The said notice has been sent to Smt. Kesar Devi by one Sh. Suraj Narain, Advocate. The counsel for the defendant has stated that the notice clearly states that Smt. Kesar Devi was a contractual tenant and when a contractual tenancy is terminated all Aniket Jain vs. Rajesh Suit No.509/2007 Page 30 of 35 the legal heirs succeed to the right of tenancy.
59. It is further argued that the notice is dated 06.10.1982 and even assuming for the sake of argument that the notice was served validly, the suit for possession should have been filed within 12 years from 1982.
60. The counsel has referred to crossexamination of PW1 dated 19.10.2011 as per which the witness admitted that Kesar Devi wife of Mohan Lal died around 20 years back. After this counsel for the defendant has referred to Ex.PW1/7 dated 11.01.2007 as per which Smt. Kesar Devi expired about 12 years back. It is submitted by Ld. counsel for the defendant that the plaintiff in the plaint did not deliberately mention the date of death of Kesar Devi so as to bring the suit within limitation. The counsel for the defendant has argued that the plaintiff has concealed the facts.
61. I have gone through the provisions of Limitation Act, 1963. The relevant article for deciding the period of limitation of the present suit is article no.67. As per the article suit by a landlord to recover possession from a tenant must be filed within 12 years from when the tenancy was Aniket Jain vs. Rajesh Suit No.509/2007 Page 31 of 35 determines.
62. In Biswa Rani P. Ltd. vs. Santosh Dutta, (1980) 1 SCC 185, the Hon'ble Supreme Court has clearly held that the statutory tenant would enjoy the protection of the statute until evicted under the enabling provisions of the statute and his tenancy would come to an end either by surrender or by passing an eviction decree. It is settled law that a tenancy governed by the Rent Control Statute cannot be determined as a tenancy by will by service of notice to quit under Section 106 of the Transfer of Property Act. The relevant paragraph 10 of the judgment reads as under:
"A statutory tenancy would, therefore, come to an end on either the surrender of premises by such a tenant or if a decree of eviction is passed against him."
63. The sale deed by which the plaintiff namely Aniket Jain became the owner of the suit premises is dated 24.06.2003. The present suit was filed in the year 2007. The plaintiff got served upon the defendant a legal notice dated 11th January, 2007 (Ex. PW1/7) asking the defendant to hand over the vacant and peaceful possession of the suit premises.
64. The period for the purposes of filing of suit for limitation purposes Aniket Jain vs. Rajesh Suit No.509/2007 Page 32 of 35 starts to run only after surrender or passing of eviction decree. Even otherwise the plaintiff purchased the property only in the year 2003 and the right to file suit of possession accrued in favour of the plaintiff only in the year 2003. The occasion for the plaintiff i.e the cause of action, arose in favour of plaintiff only after he purchased the said property in the year 2003. Cause of action may be described as bundle of essential facts which entitles the plaintiff a right to relief against the defendant.
65. As per the defendant the property in question is a trust property. The suit property was in the name of private charitable trust and same could not be disposed off by Sh. Dhanna Lal who was only a trustee. Ld. counsel for the plaintiff submits that no action was taken by the defendant with regard to filing of any complaint to the police.
66. The defendant has failed to bring on record any evidence to doubt the documents including the sale deed produced by the plaintiff. The averments made by the defendant appear to be without any backing. Therefore this objection of the defendant has to be rejected at the threshold.
Aniket Jain vs. Rajesh Suit No.509/2007 Page 33 of 35
67. The defendant has sought to argue that the suit has not been valued as per market value and the rate of Rs.100/ per day mesne profits has been fixed arbitrarily. The plaintiff did not examine any property dealer or property valuer. As per the plaint in the year 2007 the defendant had captured store for which a separate suit for possession lies. The plaintiff has clubbed both the reliefs together. As per the defendant the plaintiff should have filed two separate suits.
68. It is the prerogative of the plaintiff to value his suit. If the defendant disputes that the suit has not been properly valued, it is incumbent upon the defendant to adduce evidence to the contrary. The defendant has failed to lead any evidence with regard to the valuation of the suit property. Therefore the value of the suit property as claimed by the plaintiff is to be taken on face value.
69. In light of the discussion above, issue no. 5 and 6 are decided in favour of the plaintiff and against the defendant. Issue No. 7 Relief
70. In terms of the discussion above, the suit of the plaintiff is partly Aniket Jain vs. Rajesh Suit No.509/2007 Page 34 of 35 decreed. Plaintiff is entitled for possession of the suit property as shown in the site plan attached with the plaint. The plaintiff is entitled for the relief of permanent injunction and the defendant is permanently restrained from creating third party interest or parting with possession of the suit property as shown in the site plan in favour of any third party.
Parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to the record room after due completion.
Announced in the open (Himanshu Raman Singh)
court today on 19.04.2016 Civil Judge1, Central District,
Tis Hazari Courts, Delhi
Aniket Jain vs. Rajesh Suit No.509/2007 Page 35 of 35