Delhi District Court
Mohd Islam vs Mohd Shakeel on 11 January, 2022
IN THE COURT OF MS. NEHA GARG
CIVIL JUDGE-01, CENTRAL DISTRICT, DELHI
Suit No:-603237/16
CNR NO. DLCT030071352016
Mohd Islam
S/o late Abdul Saleem
R/o A-5, Okhla Vihar,
Jamia Nagar,
New Delhi-110025. ...........Plaintiff
Versus
1. Mohd Shakeel
2. Mohd Quddus
3. Mohd Shameem
All Sons of late Haji Allahwala
All R/o C/o House No.507,
Matia Mahal, Jama Masjid
Delhi-110006. ............. Defendants
Date of institution of suit : 09.12.2016
Date on which judgment was reserved : 16.12.2021
Date of pronouncement of Judgment : 11.01.2022
SUIT FOR MANDATORY INJUNCTION, PERPETUAL
INJUNCTION AND MESNE PROFITS
JUDGMENT
1. The present suit has been filed for Mandatory Injunction, Perpetual Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 1 of 33 Digitally signed NEHA by NEHA GARG Date: GARG 2022.01.11 16:04:14 +05'30' Injunction and mesne profits. The brief facts of the case as culled out from the plaint are that shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi (hereinafter referred to as "suit premises") was taken on rent by Shaikh Kallan (now deceased) and the suit premises was devolved upon legal heirs of late Sh. Sheikh Kallan as joint tenancy after his death. That after the death of Sheikh Kallan, title in the undivided joint tenancy of 50% share of the suit premises devolved upon his two sons, namely, Abdul Majeed and Abdul Gaffar (now both deceased). That the present suit relates to the dispute between the legal heirs of Abdul Gaffar who died in 1949. That Abdul Gaffar had two sons, namely, Abdul Salam who died in 1988 and Haji Allahwala who died in 1995. That 50% share in the undivided joint tenancy of late Sh. Abdul Gaffar devolved upon his two sons, namely, Haji Allahwala and Abdul Salam @ 25% each. That after the death of Haji Allahwala his 25% undivided joint tenancy right devolved upon his legal heirs i.e., the present defendants while the other 25% share of undivided joint tenancy rights devolved upon the plaintiff Sh. Mohd Islam, being the son of Abdul Salam. That on 11.06.1997, the mother of the present defendants filed a suit No. 359/97 titled as 'Nafisa Begum and Mohd Quddus vs Mohd Islam' along with application u/O 39 Rule 1 & 2 r/w Section 151 CPC for interim stay and that the said suit came up for hearing before Sh. R.S. Arya, the then Additional District Judge/Vacation Judge, Delhi on 17.06.1997 and interim order was passed on the said application directing that the parties shall continue working as per terms and conditions of the partnership deed, filed by that plaintiff in that suit. That Smt. Nafisa Begum w/o late Haji Allahwala failed to get any favourable order against Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 2 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:04:30 +05'30' the plaintiff in her suit and that she filed another suit on the same allegations later on and the same was listed before the Court of Ms. Kaveri Baweja, the then Ld. Civil Judge, Delhi vide Suit No. 35/1997 titled as 'Nafisa Begaum and another vs Mohd Islam'. That the said later suit was filed with motive to obtain an adverse order against the plaintiff in order to dispossess him from the suit premises but their application for interim injunction was dismissed by Shri Shahbuddin, Civil Judge, Delhi on 11.12.1997. That after failing to obtain any favourable interim order against the plaintiff (herein), Smt. Nafisa Begum filed an appeal before the Court of Ld. Senior Civil Judge, Delhi and succeeded in obtaining ex parte order from the Ld. Appellate Court on 27.08.1998 and the same was set aside vide order dated 09.02.1999. That by obtaining the said ex parte order, the plaintiff was dispossessed from the suit premises. That the plaintiff herein filed an appeal being EFA No. 2/2005 titled as 'Mohd Islam vs Nafisa Begum & Anr.' before the Hon'ble High Court of Delhi and the same was accepted vide order dated 24.08.2006 and the plaintiff was reinstated and put in possession of the suit premises with the police aid. That proceedings regarding restoration of possession of suit premises recorded by the bailiff on 29.11.2006 in pursuance of warrants of possession issued by the Court of Sh. Sunil Kumar Aggarwal, the then Ld. Additional District Judge, Delhi, in Ex. No. 1834/06. That Since Smt. Nafisa Begum, mother of the present defendants and other co legal heirs of late Haji Allahwala had disputed the title of tenancy of the plaintiff also, therefore, he filed a suit for mandatory injunction bearing No. 26/2007 before the Court of Sh. Sonu Agnihotri, the then Ld. Civil Judge, Delhi. That in that suit Shri Badar Hussain/landlord (defendant in that suit) appeared in the Court of Sh. Sonu Agnihotri, the then Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 3 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:04:42 +05'30' Ld. Civil Judge, Delhi on 03.04.2007 and admitted the case of the plaintiff and made statement on oath admitting the present plaintiff is a tenant in the suit premises @25% undivided share in the suit premises @ Rs. 225/- per month. That after the statement of Shri Badar Hussain Sabri was recorded, he also issued the rent receipt in consideration of the aforesaid rent received by him. That the Civil Suit No. 441/1/1997 (earlier Suit No. 35/1997) titled as 'Nafisa Begum & Anr vs Mohd Islam' was dismissed by the then Ld. Civil Judge vide judgment and decree dated 27.07.2012. That the defendants, therefore, as LRs of late Smt. Nafisa Begum filed an appeal vide RCA No. 67/2012 and the same was accepted by the Court of Sh. Vinay Singhal, the then Ld. ADJ, Delhi vide judgment and decree dated 07.06.2016. That the plaintiff filed appeal before Hon'ble High Court being RSA No. 175/2016 against the judgment and decree passed by the Ld. Appellate Court and the final order was passed on 16.11.2016. That ever since the plaintiff was reinstated in possession of suit premises by the bailiff, the plaintiff was enjoying the continuous rights of possession in the undivided joint tenancy premises till when he was dispossessed by the defendants wrongfully and illegally by use of brute force on 28.11.2016.
That the plaintiff lodged a complaint before the SHO, PS Darya Ganj, Delhi. That the plaintiff being one of the joint tenants in the undivided tenancy has his lawful right, title and interest in use and occupation in the undivided joint tenancy premises bearing No. 3686, Phool Mandi, Darya Ganj, Delhi and that the defendants have no right, title or interest to prevent plaintiff from use and occupation of the aforesaid joint tenancy premises in suit in any manner whatsoever without due process of law. That the plaintiff has legal right to seek protection of the same under the provisions of law. That Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 4 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:04:55 +05'30' since the plaintiff has been dispossessed from use and occupation of the suit premises in which he has subsisting and continuing share of 25% in undivided joint tenancy rights, hence, the present suit. That the plaintiff has been also made to suffer damages on account of obstruction caused by the defendants to plaintiff from entering into the suit premises for the purpose of carrying on his wholesale and retail business of sale of vegetables in the suit premises and as such he has been put to average damages, loss of amount of Rs. 2000/- per day, hence the plaintiff claims mesne profits from the defendants @ Rs. 2000/- per day w.e.f. 28.11.2016 onwards till the plaintiff is reinstated in the suit premises.
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court upon which defendants had put their appearance through Counsel and thereafter the matter was listed for filing of Written Statements on behalf of defendants.
3. Written statement was filed on behalf of defendants stating that plaintiff has no locus to file the present suit, that the present suit has been filed with malafide intention to harass and humiliate the defendants. That the present plaint is liable to be rejected u/O 7 Rule 11 CPC as the plaint is without cause of action as no cause of action has arisen in favour of plaintiff. That the present suit is not maintainable as under the garb of present suit the plaintiff is seeking decree of declaration without valuing the suit for the said relief and without paying the court fees for the relief of declaration. That this Hon'ble Court has no jurisdiction to entertain and try the present suit. That the present suit has not been properly valued and Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 5 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:05:16 +05'30' stamped. That the plaintiff has not come to the Court with clean hands. That the plaintiff has suppressed the material facts from the Court that late father of the defendants late Sh. Allahwala and Mohd. Sultan were the co tenants in the property in question and had been paying rent to the landlord since 1967 without any objection from any corner including Abdul Salam, the father of the plaintiff. That Dargah/landlord was issuing the rent receipt. That Allahwala died on 18.11.1995 and after his death his wife Nafisa Begum was substituted in place of her husband Allahwala and rent receipt was being issued in the name of Mohd. Sultan and Nafisa Begum and they were paying the rent without any hindrance. That Abdul Salam died in 1988 and that he never raised any objection in carrying on the business by Allahwala and Mohd Sultan. That no profit or loss was ever claimed by him in the alleged partnership and no accounts were ever sought by him. That no business was being run by Abdul Salam.
In reply on merits, it is stated that the defendants are in actual and physical possession of the premises in question. That interim order was passed to the effect that both the parties shall continue their work as per terms and conditions of the partnership in Suit No. 359/97. That the suit was dismissed and with the dismissal of the suit, the interim order lost its virtue.
That there is no question for the plaintiff suffering any damages on any account as the plaintiff is neither joint tenant nor there exists any partnership. That plaintiff has no right to enter the shop or do business in the shop.
4. Replication was filed on behalf of plaintiff wherein contents of the written statement were denied and averments made in the plaint were Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 6 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:05:26 +05'30' reaffirmed.
5. Record shows that vide order dated 21.01.2017 application u/O XXXIX Rule 1 & 2 CPC filed on behalf of plaintiff was dismissed by Ld. Predecessor of this Court.
6. On completion of pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 17.07.2018:-
1. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction as prayed for? OPP
2. Whether the plaintiff is entitled for mesne profits as prayed for? OPP
3. Whether the plaintiff has inherited the undivided joint tenancy rights in the suit shop after demise of his father? OPP
4. Whether the father of the plaintiff had surrendered his tenancy rights as alleged in para No. 8 of the Preliminary objection? OPD
5. Relief.
Evidence:-
7. Thereafter the matter was listed for plaintiff's evidence. In order to prove his case, Plaintiff got himself examined as PW-1 and tendered his evidence by way of affidavit Ex.PW1/A and tendered his additional evidence by way of affidavit Ex.PW1/B, placing reliance upon the following documents:-
(i). EX.PW1/1 : Certified copy of rent receipt dated 03.04.2007 along with its translated copy mark A. Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 7 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:05:38 +05'30'
(ii). EX.PW1/2 : Certified copy of Suit No. 29/2007 in case titled as Mohd Islam vs Badar Hussain Sabri(colly).
(iii). EX.PW1/3 : Certified copy of statement of Sh. Badar Hussain Sabri dated 15.07.2009.
(iv). EX.PW1/4 : Certified copy of judgment dated 24.08.2006 passed by Hon'ble High Court in EFA No. 2/2005 case titled as Mohd Islam vs Smt. Nafisa Begum.
(v). EX.PW1/5 : Certified copy of execution proceedings case titled Mohd Islam vs Smt. Nafisa Begum dated 07.03.2007(colly).
(vi). EX.PW1/6 : Certified copy of report of bailiff dated 07.03.2007 along with proceedings conducted by bailiff(colly).
(vii). EX.PW1/7 : Certified copy of judgment dated 16.11.2016 passed by Hon'ble High Court in RCA No. 175/2016 in case titled as Mohd Islam vs Nafisa Begum.
(viii). EX.PW1/8 : Original complaint dated 28.11.2016 filed by plaintiff in respect of forcible dispossession.
(ix). EX.PW1/9&: Site plan filed by the plaintiff.
EX.PW1/9A
(x). EX.PW1/10 : Certified copy of RCA No. 48 of 2015 filed before Ld. DJ Central District, THC, Delhi case titled as Mohd Shakeel & Anr vs Badar Hussain Sabri & Ors(colly).
(xi). EX.PW1/11 : Certified copy of affidavit in support of the appeal of plaintiff No.1.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 8 of 33NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:05:48 +05'30'
(xii). EX.PW1/12 : Certified copy of appellant No.2 in support of the appeal.
(xiii). EX.PW1/13& Two certified copies of sale deeds dated
EX.PW1/12A: 16.10.2012 and 13.07.2010.
(xiv). Mark A : Copy of certified copy of order dated 27.08.1998
passed by Ld. SCJ/Delhi.
(xv). EX.PW1/15 : Certified copy of warrants of possession issued by
the Court of Sh. Sunil Kumar Aggarwal, Ld. ADJ, Delhi(colly).
(xvi). EX.PW1/16 : Certified copy of joint statements of Adv Sh. S.K. Bhalla and Adv Mr. S.D. Ansari recorded in RSA No. 175/2016 on 16.11.2011 before the Hon'ble High Court.
(xvii). Mark B : Copy of plaint and amended plaint titled as Smt. Nafisa Begum & Anr vs Mohd Islam.
(xviii).Mark C : Copy of written statement dated 29.07.1991 along with annexures.
PW-1 was cross examined at length.
Thereafter the plaintiff evidence was closed vide Order dated 02.05.2019 upon separate statement of Ld. Counsel for the plaintiff and the matter was listed for defendant's evidence.
8. In defendant's evidence, defendant no. 1 got examined himself as DW-1. DW-1 tendered his evidence by way of affidavit Ex.DW1/1 and relied upon the following documents:-
(i)Ex. DW1/1 : Rent receipt dated 08/06/1968
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 9 of 33
NEHA Digitally signed
by NEHA GARG
Date:
GARG 2022.01.11
16:05:58 +05'30'
(ii)Ex. DW1/2 : Original death certificate
(iii)Ex. DW1/3 : Copy of the dismissal judgment of the suit dated
27/07/2012
(iv)Ex. DW1/4A : Copy of the judgment passed by Sh. Vinay
Singhal, Ld. ADJ
(v)Ex. DW1/4 : Copy of the orders passed by the Hon'ble High
Court i.e. 07/11/2006 (in the affidavit Ex. DW1/6 has been marked as Ex. DW1/5) & 23/02/2007 DW-1 was cross examined at length and discharged. Thereafter, defendants' evidence was closed upon recording of separate statement of defendants No.1 and 2 was closed vide order dated 05.12.2019 and the matter was listed for final arguments.
9. Final Arguments advanced on behalf of parties were heard at length and the record is carefully perused by this court. Written synopsis of arguments was filed on behalf of the defendants. After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of both the sides, my issue wise finding in the present matter is as follows:
Issue-wise Findings :-
10. Considering the controversy involved in the present matter and the nature of issues framed in the present suit, Issue no.4 and 3 shall be taken up before deciding the other issues involved in the present matter:-
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 10 of 33 Digitally signed by NEHA GARGNEHA GARG Date: 2022.01.11 16:06:09 +05'30' ISSUE NO. 4: Whether the father of the plaintiff had surrendered his tenancy rights as alleged in para No. 8 of the Preliminary objection? OPD
11. The premise of the present issue rests on establishment of the fact that the father of the plaintiff was a tenant in the suit premises. It is only when it is established conclusively that the father of the plaintiff was a tenant in the suit premises can the question of surrender of tenancy rights by the father of the plaintiff can be gone into. It is the case of the plaintiff that after the death of his ancestor Sheikh Kallan i.e., the original tenant, the tenancy with respect to the suit property devolved on his two sons Abdul Majeed and Abdul Gaffar (now both deceased). That 50% share in the undivided joint tenancy of late Sh. Abdul Gaffar devolved upon his two sons, namely, Haji Allahwala and Abdul Salam @ 25% each. That after the death of Haji Allahwala his 25% undivided joint tenancy right devolved upon his legal heirs i.e., the present defendants while the other 25% share of undivided joint tenancy rights devolved upon the plaintiff Sh. Mohd Islam, being the son of Abdul Salam. In other words, plaintiff claims to have inherited the tenancy rights from his father, which was originally granted to his great grandfather. So far as the averments of the plaintiff that Sheikh Kallan was the original tenant in respect of the suit premises goes, the same is denied by the defendants in their written statement. It is the case of the defendants the father of the defendants i.e., Haji Allahwala and Mohd Sultan were co- tenants in the suit property and have been paying rent to the landlord since 1967 without any objection being raised by the father of the plaintiff. That after the death of Haji Allahawala, rent receipts were being issued in the name of Mohd. Sultan and widow of Haji Allahawala i.e., Nafisa Begum.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 11 of 33NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:06:19 +05'30' That Abdul Salam died in 1988 and that he never raised any objection in carrying on the business by Allahwala and Mohd Sultan. That no profit or loss was ever claimed by him in the alleged partnership and no accounts were ever sought by him. That no business was being run by Abdul Salam from the suit premises.
12. Plaintiff/PW-1 was cross examined and he has deposed in his cross examination that his father was not holding any rent receipt of the premises in question and that the rent receipt was issued by the landlord in respect of the property in question in the name of Haji Allahwala, the father of the defendant and Mohd Sultan. Plaintiff has further admitted in his cross examination that he does not possess any documentary proof to the effect that his father has raised the objection for issuance of rent receipt in the name of Haji Allahwala and Mohd Sultan. Ld. Counsel for Plaintiff has however, argued that the issuance of the rent receipts in the name of the two joint tenants by the landlord does not extinguish the tenancy rights of the father of the plaintiff as provided under the law.
13. Ld. Counsel for plaintiff has argued that Shri Badar Hussain Sabri, who is the Sajjda Nishin and Mutwalli of the suit property had given a statement in Suit bearing No. 26/07 filed by the plaintiff and has admitted the case of the plaintiff and had issued a rent receipt in the name of the plaintiff. The statement of Badar Hussain Sabri is Ex.PW1/2 and the rent receipt so issued is Ex.PW1/1. In my considered opinion no statement made by Badar Hussain Sabri in the said suit can be relied upon for determination of the rights of the plaintiff as involved in the present suit, as Badar Hussain Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 12 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:06:28 +05'30' Sabri was not cross examined by the defendants so as to test the validity of the statement of so given in the Suit bearing No.26/07. The statement Ex.PW1/2 is not binding on the defendants as they never got the opportunity to cross examine Badar Hussain Sabri on the statement in question as they were not made party to the Suit bearing No.26/07.
14. The general tenor of written statement filed on behalf of the defendants and the affidavit of evidence of DW-1 has been one of denial of the fact that father of the plaintiff was a tenant in the suit premises. However, paragraph 8 of affidavit of evidence of DW-1 reads as follows:
"I say that the plaintiff is not joint tenant in the undivided tenancy rights in the suit premises and has no lawful right, title and interest to use and occupy the aforesaid shop. He is not joint tenant, as his father has relinquished his tenancy right in favour of the defendants.."
In the aforesaid paragraph of affidavit of evidence Ex.DW1/A, there is a categorical admission by the defendant no.1 that father of the plaintiff had relinquished his rights in the suit property in favour of the defendants, which in turn leads to the most natural and logical inference that father of the plaintiff was a co-tenant in the suit premises with the father of the defendants. DW-1 has admitted in his cross examination that he has understood the contents of his affidavit Ex.DW1/A and that he is a graduate who understood English. Hence, in view of the aforesaid statement made in the affidavit of evidence of DW-1, it is clear that father of the plaintiff was a tenant in the suit premises.
15. The burden rests on the defendants to establish that the father of the Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 13 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:06:38 +05'30' plaintiff had expressly or impliedly surrendered his tenancy rights. There is no document on record to show that there was an express surrender of tenancy rights by the father of the plaintiff. It is not the case of the defendants that it was given in writing by the father of the plaintiff that he is surrendering his tenancy rights in the suit property. Thus, there is not even an iota of evidence on record to establish that the tenancy rights of the father of the plaintiff were expressly surrendered. Now let us examine as to whether the tenancy was impliedly surrendered by the father of the plaintiff.
16. In this respect in the judgment titled as S.A. Wali Quadri v. Sadar Anjuman-e-Islamia reported as AIR 2000 ANDHRA PRADESH 417 it was held:
" ........9. The theory of implied surrender is now being assailed in this judgment. A tenancy can be determined in accordance with Section 111 of the Transfer of Property Act. According to clauses (f) and (g) of Section 111 of T.P. Act, a lease of immovable property can be determined by express surrender or by implied surrender. There has been no express surrender in this case admittedly, and therefore, it is not germane for consideration. Whether there has been implied surrender on the part of the other legal heirs of the deceased tenant or not is the moot question. The specific plea taken in the plaint is to the effect that after the death of the original tenant, the appellant alone attorned the tenancy after due negotiations with the secretary of the institution and he enhanced the rent and had been paying the same, implying thereby that there was a fresh tenancy in favour of the appellant. The facts ultimately disclose that the other legal heirs including the three sons of one of the daughters of the deceased tenant have been residing in the suit house along with the appellant, shorn of other contentious fact Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 14 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:06:48 +05'30' in regard to the vacation of the suit house by the appellant in or about the year 1988. The claim of DW1 that the appellant vacated the premises in the year 1988 is inconsistent with the plea taken in the written statement. The appellant has not chosen to come into the witness box to give evidence on oath. Therefore, the claim of DW1 cannot be countenanced in view of the absence of a specific plea in regard thereto and nay the inconsistency between the plea and the evidence. Obviously DW1 only seems to have evinced interest in the dispute. Except the names of the three nephews of the appellant, the names of the other brothers and sisters have not been furnished in the written statement. It is an insignia of evincing no interest on the part of the other legal heirs except DW1. DW1 admitted in his evidence that his other two brothers have gone abroad. Notwithstanding the fact that they have not been paying the rents and that they have relinquished the tenancy right, in the absence of clear evidence to the effect that possession of the premises was taken by the lessor pursuant thereto, no valid implied surrender can be inferred from out of the same. Mere abandonment of possession by the tenant does not ipso facto amount to surrender unless accompanied by the acceptance on the part of the lessor. The necessary intention must be on the part of either of the parties......"
17. In the context of implied surrender of tenancy, in Delhi Cloth Market Trust Committee Vs. Sheila Devi, 2001 Rajdhani Law Reporter 63 it was observed as under:
"22. Assertion of tenancy takes various forms and specially for the commercial premises, in addition to the payment or tender of rent and actual physical possession, there are questions of participating in or carrying of business as may be evidenced by operation of bank accounts, filing of income tax, sales tax returns, Shop Establishment Act, Sales Tax and others. Absence Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 15 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:07:00 +05'30' of these go to show that the daughter was not asserting her right with regard to the premises. Such assertion of right to begin with apart from formal communication could also take the from of tender of rent or for asking of rent receipts and upon failure seeking deposit in court of taking other steps as may be considered proper. It is not plaintiff Shiela Devi's case that she did anything of the like.
23. If the tenant is one, a surrender can be implied from possibly a single event, but if there is a joint tenancy, then the court would be somewhat slow to infer implied surrender and it would require conduct over a period of time before such inference can be raised. For instance, if one of the joint tenants ceases to participate in the joint business and goes away to another town, does not return for some time and settles down there, an implied surrender by him would be inferred.
24. The period here is a very long one. For as many as 13 years there was no assertion of that right by plaintiff Shiela Devi. With no assertion, even half of that period would have sufficed to raise an inference of implied surrender. After all, if a person has a right, not only exercise but assertion of that right is expected.
25. If the plaintiff had placed material of record which would have persuaded the court to hold that it was she and not the others who were in actual possession and running the business in the premises, the position would have been quite different. In the absence of any material on record, it must be held that there was an implied surrender of the rights by Shiela Devi."
18. Adverting to the facts of the case, there was a series of litigation between the parties before the present suit was filed. Mother of the defendants and defendant no. 2 had earlier filed a suit for declaration and injunction against the plaintiff of the present suit. The copy of plaint and Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 16 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:07:12 +05'30' amended plaint in the said suit is relied on by plaintiff in his affidavit of evidence as the same is exhibited as Mark B. As per pleadings in the earlier suit filed by the predecessor-in-interest of the defendants, also by defendant no.2, the stand taken by the plaintiff in that suit as evident from the following excerpts is:
"2. That the plaintiff no.1 (Nafeesa Beghum) is the owner and in possession of a shop no.3686 of M.C.D. situated at Dargah Hazrat Sayed Shah Saberi Ali Chisti Sabri Darya Ganj, Delhi as a tenant of the suit premises. The suit premises situated in side subzi mandi, Darya Ganj, Faiz Bazar, Dlehi, under the management of its Sajjada Nashin and Mutawai Sayed Shah Khursheed Ahmad Saveri and its rent Rs.100/- is paid by her through rent receipt regularly and continuously.
3...That the suit premises in under the tenancy of the plaintiff due to Will executed by her late husband Shri Haji Allahwalla dated 4.8.1995 prior to his death. After the execution of the Will, the husband of the plaintiff was expired on 18.11.1995 and after his death the plaintiff has been in continuous possession of the suit premises and its rent of Rs.100/- per month is paid regularly to its Mutawali through rent receipt.
4. That prior to the death of the husband of the plaintiff Haji Allahawala was the tenant of suit premises and has been in possession of the suit premises till his death and after his death the plaintiff has been in regular possession of the suit premises and has been running the business of selling fruits and vegatables.
5. That father of the defendant Abdul Salam deceased was the partner in the business of fruits and vegetables selling at the courtyard of the suit premises. They were partners in the business and profit and loss. The father Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 17 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:07:24 +05'30' of the defendant was not the partner in the suit premises. The tenant and the partnership in the business was also terminated by the husband of the plaintiff vide an application to the Deputy Commissioner of Police, Dlehi on 9.3.1993.
6. That Abdul Salam the father of the defendant was a partner with the husband of the plaintiff and the agreement of partnership was executed on 20.10.1987 and on 27.2.1988. Abdul Salam was expired and due to his expiry this partnership was automatically terminated but the threatening and by pressure the defendant has been getting the share in the profit of the business of fruits and vegetables and after the death of the husband of the plaintiff no.1 has been getting the share from the plaintiff unlawfully. But later on the plaintiffs came to know as finding a copy of an application dated 9.3.1993 that the defendant has no right to interfere in the aforesaid business as his partnership has been terminated vide an application, therefore, the plaintiff denied the defendant to make any kind of hindrance in the possession of the plaintiff of the shop of fruits and vegetables selling....
19. Defendant no. 1 and 2 have preferred an appeal bearing RCA No.48 of 2015 and the certified copy of the same is Ex.PW1/10. Ld. Counsel for defendant has objected to tendering of the document Ex.PW1/10 on ground of mode of proof. As per section 61 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act'), the contents of a document are to be proved either by primary or by secondary evidence. Section 64 of the Evidence Act provides that documents must be proved by the primary evidence except in cases mention in Section 65 of the Evidence Act.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 18 of 33 NEHA Digitally signed
by NEHA GARG
Date:
GARG 2022.01.11
16:07:36 +05'30'
Therefore, as a general rule, documents are proved by leading primary evidence. Section 63 of the Evidence Act defines secondary evidence. Section 65 of the Evidence Act lays down seven circumstances under which secondary evidence can be adduced. Secondary Evidence of documents is permissible only under the circumstances as enumerated in Section 65 of Evidence Act. That is, a party can lead secondary evidence only if and if it satisfies the court that the case is covered under any of the seven clauses of section 65 of the Evidence Act. Whether certified copy of an appeal filed under Section 96 of CPC is a secondary evidence or not as per the definition of secondary evidence provided under Section 63 of the Evidence Act read with Section 74 and 75 of the Evidence Act, is itself a contentious issue, however, even if for the sake of argument it is assumed that certified copy of an appeal is secondary evidence, in the present case plaintiff has nowhere shown that he is entitled to lead secondary evidence under any of the clauses of section 65 of the Evidence Act. In other words, in spite of the fact that certain evidence is covered within the ambit of definition of secondary evidence as defined in section 63 of Evidence Act; yet the party adducing that secondary evidence must satisfy that its case is covered within the sweep of any of the seven clauses of section 65 of Evidence Act and it is entitled to lead that secondary evidence. To put it differently, party adducing secondary evidence must satisfy the requirements of section 63 as well as section 65 of the Evidence Act. Therefore, the objection raised on behalf of defendants with respect to mode of proof of document Ex.PW1/10 is allowed in favour of the defendants and the certified copy of the appeal Ex.PW1/10 is excluded from evidence.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 19 of 33NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:07:47 +05'30'
20. As per the pleadings in the suit for declaration and injunction (Mark B), mother of the defendants and defendant no. 2 have averred that the father of the plaintiff i.e., Abdul Salam deceased was the partner with the husband of the plaintiff in the business of fruits and vegetables selling at the courtyard of the suit premises and an agreement of partnership was executed on 20.10.1987 and on 27.2.1988. That they were partners in the business and profit and loss. An interesting observation from a meticulous reading of the pleadings of the parties would reveal that plaintiff had nowhere in the entire plaint of the present suit mentioned about any partnership between the fathers of the plaintiff and defendants, however, the existence of partnership finds mention in the written statement of the defendants in the following terms:
"No rent was paid by Shri Abdul Salam, and no profit or loss was ever claimed by him in the alleged partnership and no accounts were ever sought by him..."
Here the word 'partnership' is preceded by the word 'alleged' whereas the entire plaint does not even hint at the existence of any partnership between the predecessor-in-interest of the parties. The corollary that flows from the use of the said words only fortifies the observation that father of the plaintiff i.e., Abdul Salam was the partner with the husband of the plaintiff in the business of fruits and vegetables selling at the courtyard of the suit premises. Furthermore, plaintiff has stated in his cross examination that his father died on 27.02.1988. DW-1 has also deposed in his cross examination that Abdul Salam died somewhere in 1987-88. The pleadings of the defendants in the said suit for declaration and mandatory injunction clearly reflects that the father of the plaintiff sold fruits and vegetables from the suit premises up Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 20 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:07:58 +05'30' until his death in 1988 and the profit and loss from the business of selling of fruits and vegetables was divided between the father of the plaintiff and father of the defendants. It clearly reflects the possession of the father of the plaintiff in the suit premises up until his death in 1988. The factum of continuous possession of the father of the defendant in the suit premises runs counter to the theory of implied surrender of tenancy being raised by the defendants. A very important factor to determine as to whether there was implied surrender of tenancy on the part of the father of the plaintiff is to see as to whether the premises in question was used or occupied by father of the plaintiff or not. In this case once it is proved that the father of the plaintiff Abdul Salam was continuously carrying on the business of selling fruits and vegetables from the suit premises and using and occupying the same along with father of the defendant and sharing in the profit and losses of the business of sale of fruits and vegetables, no question of implied surrender of tenancy by the father of the plaintiff arises.
21. Ld. Counsel for defendants have vehemently argued that the fact that rent receipts were being issued in the name of the Mohd. Sultan and father of the defendants Haji Allahawala clearly reflects that father of the plaintiff was not a tenant in the suit premises. That Abdul Salam died in 1988 and that he never raised any objection in carrying on the business by Allahwala and Mohd Sultan. Plaintiff has submitted in replication that rent was being paid by the father of the plaintiff along with the father of the defendants and Mohd Sultan as joint tenants, therefore, there was no occasion to raise any objection by the plaintiff's father. Plaintiff has not disputed that Mohd Sultan was also having tenancy right in the suit premises, in fact, it is the Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 21 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:08:09 +05'30' case of the plaintiff that Mohd Sultan had inherited 50% tenancy rights in the suit premises through his predecessor-in-interest i.e., Abdul Majeed. Similarly, plaintiff is not disputing that father of the defendants had tenancy rights in the suit property. Therefore, the averment that rent receipts were in the name of Mohd Sultan and father of the defendant and that no objection was raised by the father of the plaintiff in conduct on the business by Allahwala and Mohd Sultan from the suit premises is clearly explained away as according to plaintiff both Mohd Sultan and father of the defendants have tenancy rights in the suit property. The fact that rent receipts were being only issued only in the name of the father of the defendants and Mohd Sultan to the exclusion of the name of Abdul Sultan does not lead to raising of a presumption that father of the plaintiff was never a tenant in the suit premises, a presumption so strong so as to wipe away the effect of the logical inference flowing from the categorical admission by DW-1 in his affidavit of evidence Ex.DW1/A that the father of the plaintiff has relinquished his tenancy right in favour of the defendants. Even otherwise the fact that rent receipts did not contain the name of the father of the plaintiff cannot be the sole ground to disbelief the case of the plaintiff specially when the attenuating circumstances of the present case suggest otherwise. Ld. Counsel for defendants have further argued that no profit or loss was ever claimed by Abdul Salam in the alleged partnership and no accounts were ever sought by him. Plaintiff has submitted in his replication that the daily earnings from the business used to be disbursed among all the three joint tenants on the same evening at the time of closing hours of their business. DW-1 has also deposed in his cross examination that he has not tendered any accounts of the business to the Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 22 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:08:21 +05'30' plaintiff as it is a 'kachha kaam' and no accounts were available. When no accounts were available, the question of maintaining and seeking accounts does not arise.
22. Ld. Counsel for plaintiff has relied on judgment in Sushil Kumar vs. Bhagwanti Devi and Anr. 1989(16) DRJ 289 in support of his contention that since no rent receipt was being issued in the name of father of plaintiff, question of tenancy being in the name of father of plaintiff does not arise. I have given my thoughtful consideration to the judgment in Sushil Kumar(supra). Judgment of Sushil Kumar is distinguishable on the facts as in that case not only the rent receipts were being issued in the name of Sushil Kumar alone after the death of erstwhile tenant Chaman Lal but no other heir of Chaman Lal except Sushil Kumar ever came forward to assert their tenancy rights in the suit premises. Furthermore, only Sushil Kumar alone was carrying on the business in the tenanted premises after the death of Chaman Lal. Even in an earlier petition, between landlord and Sushil Kumar for ejectment, an order u/O 15(2) of DRC Act was passed only against Sushil Kumar and he after having complied with order passed u/o 15(2) DRC Act, the eviction petition was dismissed holding that Sushil Kumar enjoyed the benefits of Section 14(2) of DRC Act. It was in light of these facts that it was held that other legal heirs of Chaman Lal other than Sushil Kumar never asserted their tenancy rights and accordingly, it was up held that the other legal heirs of deceased Chaman Lal have impliedly surrendered their tenancy rights in the suit premises. However, in the present matter though admittedly the rent receipts were being issued in the name of the father of defendants and Mohd Sultan, however, it has been Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 23 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:08:33 +05'30' duly established that father of plaintiff was also carrying on his business from the suit premises and he was getting his share from the business of sale of fruits and vegetables being carried out in the suit premises. Therefore, the judgment in Sushil Kumar (supra) is not applicable to the facts of the present case.
23. In view of the foregoing discussion, the present issue is decided against the defendants and in favour of the plaintiff and it is hereby held that father of the plaintiff was also a co-tenant in the suit premises with father of the defendants and that he never surrendered his tenancy rights in the suit property during his lifetime.
ISSUE NO.3: Whether the plaintiff has inherited the undivided joint tenancy rights in the suit shop after demise of his father? OPP
24. The burden to prove the present issue rests on plaintiff. In Gian Devi Anand v. Jeevan Kumar and Ors. MANU/SC/0381/1985, this Court has held as under:
34. It may be noticed that the Legislature itself treats commercial tenancy differently from residential tenancy in the matter of eviction of the tenant in the Delhi Rent Act and also in various other Rent Acts. All the grounds for eviction of a tenant of residential premises are not made grounds for eviction of a tenant in respect of commercial premises. Section 14(1)(d) of the Delhi Rent Act provides that non-user of the residential premises by the tenant for a period of six months immediately before the filing of the application for the recovery of possession of the premises will be a good ground for eviction, though in case of a commercial premises no such provision is made. Similarly, Section 14(1)(e) which makes Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 24 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:08:47 +05'30' bona fide requirement of the landlord of the premises let out to the tenant for residential purposes a ground for eviction of the tenant, is not made applicable to commercial premises. A tenant of any commercial premises has necessarily to use the premises for business purposes. Business carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family. Out of the income earned by the tenant from his business in the commercial premises, the tenant maintains himself and his family; and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if a tenant is evicted from his residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises, his business which enables him to maintain himself and his family comes to a standstill. It is common knowledge that it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at a particular place has its own goodwill and other distinct advantages. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 25 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:09:00 +05'30' inheriting the business and they are entitled to run and enjoy the same. We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the "tenant" in the Act and the other Rent Acts continues to enjoy the same status and position, unless there be any provisions in the Rent Acts which indicate to the contrary. The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole. It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 26 of 33 NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:09:11 +05'30' alter under the Rent Act, the law of succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act.
25. In H.C. Pandey v. G.C. Paul MANU/SC/0209/1989, it has been held as follows:
"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants...."
26. It has been duly established by the plaintiff that Abdul Salam was a co-tenant along with father of defendant in the suit premises and that his tenancy right was subsisting and continuing during his lifetime up until his death in 1988 and hence, plaintiff being son of Abdul Salam is entitled to inherit the tenancy rights of his late father. Therefore, the present issue is decided in favour of the plaintiff and against the defendants and it is hereby held that plaintiff has inherited the undivided joint tenancy rights in the suit premises after the demise of his father.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 27 of 33NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:09:25 +05'30' ISSUE NO.1: Whether plaintiff is entitled to permanent and mandatory injunction as prayed for? OPP
27. Plaintiff has prayed that defendants, their tenants, attorneys etc. be directed not to obstruct the plaintiff from entering the suit premises as shown in Red colour in the site plan attached with the plaint and to carry on the business of sale of vegetables etc. from the suit premises. Plaintiff has further prayed that defendants be permanently restrained from dispossessing the plaintiff from the suit property and interfering in his business being run by him form the suit premises.
Both prayer clause (i) and (iii) are prayers for permanent injunction and no prayer of mandatory injunction has been sought by plaintiff.
28. It is averred by the plaintiff that mother of the defendant obtained an ex parte order dated 27.08.1998 (Mark A) from the Ld. Appellate Court, in view of which plaintiff was dispossessed from the suit property. It is further the case of the plaintiff that he had preferred an appeal bearing EFA No.2/2005 before the hon'ble High Court of Delhi and vide Order dated 24.08.2006, plaintiff was reinstated and put in possession of the suit property. Plaintiff claims to be in possession of the suit property from the time he was reinstated and put in possession in view of the Order dated 24.08.2006 of the Hon'ble High Court till 28.11.2016, when he was illegally and wrongfully dispossessed by the defendants.
29. Plaintiff has filed the certified copy of the Order of the Hon'ble High Court of Delhi dated 24.08.2006 and the same is marked as Ex.PW1/4. Vide Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 28 of 33 NEHA Digitally signed by NEHA GARG Date: GARG 2022.01.11 16:09:40 +05'30' Order dated 24.08.2006, the defendants were directed to comply with the Order dated 17.06.1997 passed in Civil Suit No.359/1997 whereby parties were directed to continue working as per the terms and conditions of the one partnership deed filed on record of the said case. In view of the Order dated 24.08.2006, Execution proceedings bearing no.1834/06, were initiated by the plaintiff and the certified copy of the execution proceedings is Ex.PW1/5, certified copy of warrants of possession issued in the said execution proceedings is Ex.PW1/15 and the certified report of the bailiff is Ex.PW1/6. The report of the bailiff Ex.PW1/6, clearly reflects that the plaintiff was put in possession of the suit property on 07.03.2007. Plaintiff has further filed the original of the complaint dated 28.11.2016 Ex.PW1/8 in support of his averment that he forcefully and illegally disposed from the suit property by the defendants on 28.11.2016.
30. In reply to the aforesaid averments of the plaintiff, defendant has asserted that as plaintiff was not joint tenant nor in possession of the suit premises, so the question of his dispossession does not arise. It is further stated that till plaintiff proves the he is a joint tenant, he cannot claim any relief of coming into the suit premises. In other words, defendants have not denied that plaintiff was dispossessed from the suit property on 28.11.2016.
31. In his cross examination, DW-1/defendant no.1 has admitted that he is in possession of suit property after the death of his mother and that business is being run by his brother Mohd Quddus after the death of his mother. DW- 1 has further admitted that he along with his brother Mohd Quddus and Mohd Qasim are in possession of suit property. Ex.PW1/6 clearly proves Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 29 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:10:06 +05'30' that plaintiff was put in possession of the suit property on 04.03.2007 in view of Orders of Hon'ble High Court of Delhi dated 24.08.2006 and Ex.PW1/8 clearly establishes that plaintiff was dispossessed on 28.11.2016.
32. Plaintiff has filed on record two site plans Ex.PW1/9 and PW1/9A.
PW1/9 is stated to be old site plan of suit property bearing shop No. 3686, Phool Mandi, Darya Ganj, Delhi whereas Ex.PW1/9A is stated to be the present site plan of plan of suit property bearing shop No. 3686, Phool Mandi, Darya Ganj, Delhi. Defendants have objected to the mode of proof of site plans Ex.PW1/9 and PW1/9A. Plaintiff has got prepared the site plans in question by an architecture and have filed the originals on record and the same are marked as Ex.PW1/9 and PW1/9A. The identity of the suit property is not in dispute. DW-1 has admitted in his cross-examination that the suit property is an open space without any boundary and doors and the same confirms the current description of the suit property as mentioned in Ex.PW1/9A. Plaintiff was not cross-examined with respect to site plan Ex.PW1/9A and hence defendants are deemed to have accepted the site plan Ex.PW1/9A.
33. It has been clearly established that father of the plaintiff was a co- tenant in respect of the suit premises and plaintiff being his son is entitled to inherit tenancy rights in the suit property. In view of the fact that plaintiff has inherited the tenancy rights in the suit property, defendants are not justified in restraining the plaintiff from entering the suit property or from dispossessing the plaintiff from the suit property. Therefore, the present issue is decided in favour of plaintiff and against the defendants and Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 30 of 33 NEHA Digitally signed by NEHA GARG Date:
GARG 2022.01.11 16:10:21 +05'30' defendants, their agents, attorneys etc. are hereby restrained from dispossessing the plaintiff from the suit property i.e., shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi as shown is red coulour in site plan Ex.PW1/9A and defendants are further restrained from restraining/obstructing the plaintiff to carry on the business of sale of vegetables etc. from the suit premises. Defendants their agents, attorneys etc. are also permanently restrained from dispossessing the plaintiff from the suit property i.e., shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi as shown is red coulour in site plan Ex.PW1/9A and interfering in his business being run by him form the suit premises.
ISSUE NO.2: Whether plaintiff is entitled for mesne profits as prayed for? OPP
34. Plaintiff has asserted that plaintiff has been made to suffer damages on account of obstruction caused by the defendants to the plaintiff from entering the suit premises for the purpose of carrying on his wholesale and retail business of sale of vegetables in the suit premises and as such he has been put to suffer average damages, loss of amount of Rs. 2000/- per day, hence, plaintiff has claimed mesne profits from the defendants at the rate Rs. 2000/- per day w.e.f. 28.11.2016 onwards till he is restrained by defendants from carrying on business from the suit premises.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 31 of 33 NEHA Digitally signed
by NEHA GARG
Date:
GARG 2022.01.11
16:10:36 +05'30'
35. The burden to prove the present issue was cast upon the plaintiff. During his cross examination, a specific question was put to plaintiff whether he had any document to show that his daily income from the suit premises was Rs. 2000/- per day and plaintiff has admitted that he has no document to show that his daily income was Rs. 2000/- per day. No other documentary proof has been placed on record by the plaintiff in support of his averments that he is entitled to Rs. 2000/- per day on account of mesne profits/damages being suffered by him as he was restrained from entering the suit property by the defendants.
36. Accordingly, the plaintiff has failed to discharge the burden of the present issue cast upon him. Therefore, the present issue is decided against the plaintiff and in favour of defendants.
Relief
37. In view of the foregoing discussion and the findings on the aforesaid issues, the suit filed by the plaintiffs is decreed in part in favour of the plaintiff and against the defendants and defendants, their agents, attorneys etc. are hereby restrained from dispossessing the plaintiff from the suit property i.e., shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi as shown is red coulour in site plan Ex.PW1/9A and defendants are further restrained from restraining/obstructing the plaintiff to carry on the business of sale of vegetables etc. from the suit premises bearing shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi as shown is red coulour in site plan Ex.PW1/9A.
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 32 of 33 NEHA Digitally signed by NEHA GARG Date: GARG 2022.01.11 16:10:51 +05'30'
Defendants their agents, attorneys etc. are also permanently restrained from dispossessing the plaintiff from the suit property i.e., shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi as shown is red coulour in site plan Ex.PW1/9A and interfering in his business being run by him form the suit premises.
Cost of the suit are awarded in favour of the plaintiffs to be paid jointly by the defendnats.
Decree sheet be prepared accordingly.
File be consigned to the record room after compliance.
Digitally signed by NEHA NEHA GARG GARG
Date: 2022.01.11 16:11:10
Announced through Cisco Webex +05'30'
on 11.01.2022 (NEHA GARG)
CIVIL JUDGE-01, CENTRAL
TIS HAZARI COURTS/DELHI
Suit No603237/2016 Mohd Islam vs Mohd Shakeel Page 33 of 33