Delhi District Court
Raghubir Singh & Ors vs Hans Raj on 11 July, 2014
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 194/12
Raghubir Singh & Ors.
.......... Plaintiffs
Versus
Hans Raj
......... Defendant
ORDER:
1. Vide this order I shall dispose of an application u/o XII rule 6 CPC moved by the plaintiffs against the defendant.
2. Shorne of unnecessary details, the brief facts of the suit filed by the plaintiffs which are necessary for disposal of this application are as under: 2.1. The plaintiffs are the joint owners of the suit property bearing No. 20, Yusuf Sarai, Main Market, Aurobindo Marg, New Delhi pursuant to sale deeds dated 18.12.1989 and 29.01.2008. The defendant has always been claiming that he has been in use and occupation of one shop on the ground floor and a similar portion on the first floor of the aforesaid property (hereinafter referred to CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 1 of 29 as 'suit property') at a rental of Rs. 8/ per month for non residential purposes since 1964. On or about 04.11.2008, the defendant instituted three suits bearing Civil Suit No. 193/12, 195/12 and 196/12 before the civil courts impleading the plaintiff no. 1, 2, 4 and 5 as defendants in respect of aforesaid suit property, which are pending for adjudication. In the suit bearing No. 193/12, the defendant is seeking recovery of damages from the plaintiffs on account of damages sustained by him because of super structure of the premises allegedly raised by the plaintiffs illegally and unauthorized construction being carried out. In the suit bearing No. 196/12, the defendant is seeking firstly decree of declaration with consequential relief of permanent injunction that he be declared owner of the suit premises by way of adverse possession and a decree of permanent injunction restraining the defendants from interfering in the peaceful possession. In the third suit bearing No. 195/12 (new No. 39/14), the defendant is seeking decree of permanent and mandatory injunction against the present plaintiffs (defendants therein) that defendants may be restrained from raising an unauthorized construction and decree of mandatory injunction to demolish the illegal basement constructed by the defendants.
CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 2 of 29 2.2. In all the aforesaid suits instituted by the defendant, the defendant has stated that he paid the rentals of Rs. 288/ to the plaintiff no. 1 & 2 herein for three years in the year 1989 on the asking of previous landlord Sh. Anil Kumar Channa. However, the said rent was paid by the defendant with the understanding that the plaintiffs no. 1 & 2 herein would show him the documents of title of ownership. The plaintiffs herein did not show any documents of title nor claimed any right, hence the defendant herein (the plaintiff in the aforesaid three suits) became the owner by way of adverse possession.
2.3. In the year 1997, the defendant had instituted a suit against the MCD titled as "M/s Tax Fab Vs. MCD" in which he claimed himself to be a tenant in the suit property. The defendant claimed his title over the suit property by way of adverse possession for the first time in the aforesaid three suits instituted by him against the plaintiffs and prior to that, at no stage, he ever claimed the ownership by way of adverse possession. The defendant having been attorned to the plaintiff no. 1 & 2 way back in the year 1989 on the asking of previous landlord Sh. Anil Kumar Channa cannot dispute the title of the plaintiffs. It is averred that in view of the forfeiture of the right of the defendant in the suit property after having propounded his alleged hostile/adverse possession in the CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 3 of 29 suit property, the tenancy of defendant stood determined by forfeiture and therefore defendant is liable to hand over the peaceful and vacant possession of suit premises to the plaintiffs. The plaintiffs served a legal notice dated 11.04.2009 in accordance with Section 111 (g) of Transfer of Property Act, but despite service of legal notice the defendant failed to hand over the possession of the suit property to the plaintiffs. Hence, the present suit.
2.4. The plaintiffs have prayed for decree of possession of the suit premises, recovery of Rs. 10 lacs on account of damages for use and occupation @ Rs. 2,00,000/ for the period w.ef. 01.05.2009 till the date of institution of the suit and decree for damages for use and occupation of the premises in suit @ Rs. 2,00,000/ per month till the date defendant delivers the possession of the suit premises along with interest and cost.
3. The defendant filed the written statement contending that the plaintiffs have not come to the court with clean hands, suit is barred by limitation, the suit is based on forged and fabricated documents, suit is under valued and requisite court fee has not been paid. It is denied that the plaintiffs are the joint owners of the suit premises. Though the defendant has admitted that he has always been propounding that he is in use and occupation of one shop on ground CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 4 of 29 floor and similar portion on first floor of the suit property besides open roof/terrace on the second floor since 1964 at the monthly rent of Rs.8/. The defendant has also admitted the factum of filing of three suits against the plaintiffs and the facts averred in the those three suits by him being a matter of record. It is contended by the defendant that he never paid the rent to the plaintiff no. 1 & 2. It is denied that he attorned to the plaintiffs in the year 1989 on the asking of previous landlord Sh. Anil Kumar Channa. The defendant contended that right has accrued to him in the suit property with the passage of time as nobody came forward to claim any right in the property in question for more than 12 years. It is denied that tenancy of the defendant stood determined. The defendant also denied the service of legal notice dated 11.04.2009. The defendant has prayed for dismissal of the suit.
4. From the pleadings of the parties, following issues were framed by the Ld. Predecessor :
1) Whether plaintiffs are the joint owner of specified share of major portion of property bearing No. 20/5, Yusuf Sarai, Main Market, Aurobindo Marg, New Delhi? OPP
2) Whether the sale deed dated 18.12.1989 and sale deed dated 29.01.2008 executed in favour of plaintiffs are forged and fabricated document ? OPD
3) Whether plaintiffs have deliberately under valued the suit property and have not affixed the requisite Court fee on the plaint ? If so its effect . OPD
4) Whether defendant is a tenant of plaintiffs in a portion of property bearing no. 20/5, Yusuf Sarai, Main Market, Aurobindo Marg, New CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 5 of 29 Delhi, more specifically shown in red colour in the site plan ? OPP
5) Whether the plaintiff has served upon the defendant any notice of determination of the tenancy as alleged in the plaint ? OPP
6) Whether the tenancy of defendant has been validly terminated by plaintiffs ? OPP
7) Whether plaintiffs are entitled to possession as prayed for ? OPP
8) Whether plaintiffs are entitled to a decree of recovery of Rs. 10 lacs on account of damages as prayed for ? OPP
9) Whether plaintiffs are entitled to a decree of damages for use and occupation of premises from the date of institution of suit till the date on which defendant delivered the possession of the aforesaid property to plaintiff as prayed for ? OPP
10) Whether plaintiff is entitled to interest, if so, at what rate and for which period? OPP
11) Relief.
5. Thereafter, the application under disposal u/o XII rule 6 CPC has been moved by the plaintiffs. By way of this application, the plaintiffs are seeking decree on the basis of admissions made by the defendant in the pleadings i.e. in the three suits instituted by the defendant against the plaintiffs and on the basis of written statement and documents filed by the defendant himself on the record. The plaintiffs claim that the defendant has admitted the payment of rentals to the plaintiffs in the pleadings of three suits instituted by him against the plaintiffs in the year 1989 on the asking of previous landlord Sh.Anil Kumar Channa and as such defendant is estopped from disputing the title of the plaintiffs over the suit property apart from the fact that the plaintiffs have purchased the suit property by way of CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 6 of 29 registered sale deeds. The plaintiffs have further claimed that the defendant has not set up his plea of ownership by way of adverse possession prior to the year 2008. Since the defendant claimed his ownership by way of adverse possession, therefore he has forfeited the tenancy right in view of the provisions of law u/s 111 (g) of Transfer of Property Act. Thereafter, the plaintiffs served a legal notice to the defendant and despite service of the same, he did not hand over the possession of the suit premises and therefore decree of possession on the basis of the admissions is liable to be passed.
6. The defendant has filed the reply contending that the application is not maintainable once issues have been framed and the court has afforded the opportunity to both the parties to lead evidence in respect of their rival claims. The application cannot be entertained at this stage without taking the evidence of the parties on merits and as to whether the defendant is a tenant or has become owner by way of adverse possession has to be decided after evidence. It is contended that the application has been moved to delay the proceedings. It is stated that the present suit is a subsequent suit to the suits filed by defendant and therefore suits filed by the defendant cannot be ignored. It is further contended that the present application is barred by limitation. It is stated that the defendant paid the rent to the plaintiffs on the verbal request of previous owner Mr. Anil Kumar Channa and CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 7 of 29 the rent was to be paid thereafter after the plaintiffs were to show the documents of title in their favour which have not been shown nor copies of the same handed over to the defendant. It is further contended that the defendant has filed the suits against the plaintiffs as they never claimed any right in the property in question against the defendant. The defendant has not disputed the service of legal notice being a matter of record. It is stated that there is no clear admissions on the part of the defendant against the plaintiffs admitting them as owner without the plaintiffs establishing their right or interest in the property in question. It is claimed that nobody has demanded any rent from the side of the plaintiffs from the defendant for a period of 17 years and therefore the defendant has become the owner of the suit premises by way of adverse possession. It is further stated that trial has begun and therefore the present case cannot be decreed at this stage without affording the parties an opportunity to prove their rival contentions by leading evidence. The defendant has prayed for dismissal of the application.
7. I have heard the Ld. Counsel for the parties and perused the record carefully.
8. Ld. Counsel for the plaintiff has vehemently argued that admittedly the defendant was a tenant under the erstwhile owner/landlord Sh. A.K. Channa. He further contended that the CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 8 of 29 defendant admits that he paid the rentals of the suit premises to the plaintiffs on the asking of previous owner/landlord Mr. A.K. Channa and in this way attorned the plaintiffs as the landlords. He further contended that the defendant instituted three suits in the year 2008 in which for the first time he claimed himself to be the owner by way of adverse possession. The Ld. Counsel argued that the defendant has claimed his title by way of adverse possession on the ground that nobody has demanded any rent from the defendant. The Ld. Counsel argued that the defendant once attorned to the plaintiffs, that too, on the asking of the previous landlord and paid the rentals of the suit premises is estopped from disputing the title of the plaintiffs in respect of the suit premises on the vague plea that the plaintiffs have not shown the documents of title in their favour. The Ld. Counsel further argued that the defendant has not claimed his title by way of adverse possession prior to the year 2008. The Ld. Counsel further argued that after institution of three suits by the defendant in which he has claimed the ownership of the suit premises by way of adverse possession, his tenancy stood determined by virtue of Section 111 (g) of Transfer of Property Act and thereafter the plaintiffs vide legal notice dated 11.04.2009 asked the defendant to vacate the suit premises. He further argued that the defendant does not dispute the service of legal notice. He further argued that on the basis of the admissions as culled out CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 9 of 29 from the pleadings of the suits filed by the defendant and from the written statement in the present case, plaintiffs are entitled to decree of possession.
9. In support of his contentions, Ld. Counsel for the plaintiffs have relied upon the following judgments:
1) Parivar Sewa Sansthan Vs. Veena Kalra AIR 2000 (Delhi) 349(DB)
2) P.S. Jain Co. Ltd. Vs. Atma Ram Properties (P) Ltd. & Anr. 005 (2013) DLT 302
3) Madan Lal Kaushik Vs. Shree Yog Mayaji Temple & Ors. 178 (2011) DLT 398
4) Gurudwara Sahib Vs. Gram Panchayat Village Srithala & Anr. Civil Appeal No. 8244/2013 decided by the Hon'ble Supreme Court
5) Mrs. Adarsh Kaur Gill Vs. Smt. Surjit Kaur Gill & Ors. FAO (OS) No. 634 of 2009
6) S. Pritam Singh & Ors. Vs. Ram Narayan Vij 1999 1 AD (Delhi)785
7) S. Makhan Singh Vs. Smt. Amarjeet Bali 154 (2008) DLT 211
8) Abdul Rehman Thangal Sahib & Anr. Vs. Sayed Sahib (D) by LRs JT 2001 (Suppl 2) SC 297
9) M/s Devansh Real Estate Pvt. Ltd. Vs. The Oriental Insurance Co. Ltd CS (OS) 2686/2011 decided by the Hon'ble High Court of Delhi
10) Vishal Builders Pvt. Ltd. Vs. DDA & Ors. 2006 (90) DRJ 470
11) Jagdeo Narain Singh Vs. Baldeo Singh & Ors.AIR 1922 Privy Counsel 272
12) Association for Voluntary Action Vs. The Child Trust & Anr. 2013 IX AD (Delhi) 180
13) Rashmi Kapur Vs. Raman Kapur 1988 RLR 232,
14) Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors. (1996)4 SCC 699
15) Guru Amarjeet Singh Vs. Ratan Chand & Ors. (1993) 4 SCC 349.
10. On the other hand, the Ld. Counsel for defendant has vehemently argued that present application is not maintainable CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 10 of 29 because the issues have been framed in this case as well as in the three other suits filed by the defendant against the plaintiffs which all have been consolidated. He further argued forcefully that present application is barred u/o 2 rule 2 CPC r/w Order 8 rule 6A CPC. He submitted that plaintiffs could have sought relief for grant of decree of possession by raising a counter claim in the suits filed by the defendant against the plaintiffs but instead raising the counter claim for the decree of possession, he filed the present suit which is barred u/o 2 rule 2 CPC and Order 8 rule 6A CPC. He further argued that the present application is barred by limitation under Article 137 of Limitation Act. He further argued that the plaintiffs are required to prove their ownership qua the suit premises. He further argued that the plaintiffs did not come forward to demand any rentals from the defendant because they have no title over the suit premises. He further argued that the suit filed by the defendant seeking decree of declaration of ownership by way of adverse possession is maintainable. He further argued that unless the plaintiffs prove their title over the property in question, they cannot be granted decree of possession as prayed for. He further argued that even if 12 years have not passed and the title of the defendant has not perfected by way of adverse possession, the defendant may not be entitled to decree of possession, but he still remains to be tenant and has to be relegated to CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 11 of 29 the position of tenant. He further argued that there are several triable issues which require full fledged trial and suit of the plaintiffs cannot be decreed without evidence.
11. In support of his contentions, Ld. Counsel for the defendant has relied upon the following authorities:
(1) State Bank of India Vs. Gracure Pharmaceuticals Ltd. Civil Appeal No. 1053110532 of 2013 (2) Anoop Jindal Vs. Jagdish Chander Gupta 2003 II AD (Delhi) 511 (3) Baljit Kaur Vs. United Insurance Company Ltd. 1997 VI AD (Delhi) 937 (4) Swaran Singh Vs. Surender Kumar & Ors. RFAO (OS) No. 8/2011 & CM No. 1430/2011 (5) Balraj Taneja & Anr. Vs. Sunil Madan & Anr. AIR 1999 SC 3381 (6) M/s JR Sharma Overseas Ltd. Vs. Abner Pharmaceuticals Ltd. 2005 II AD (Delhi) 679 (7) Cosmo Ferrites Ltd. Vs. M/s Universal Commercial Corporation & Ors.2006 II AD (Delhi) 461 (8) Gayathri Women's Welfare Association Vs. Gowramma & Anr. VI (2012) SLT 525 (9) M/s Jeevan Diesels & Electrical Ltd. Vs. M/s Jasbir Singh Chhadha (HUF) & Anr. JT 2010 (4) SC 574
12. First of all, I shall deal with the legal contentions raised by the Ld. Counsel for defendant on the maintainability of the application, bar of Order 2 Rule 2 read with Order 8 Rule 6A CPC in filing the present suit and the application being barred by limitation.
13. The first contention of the Ld. Counsel for defendant is that issues have already been framed in the present case and therefore the present application is not maintainable. However, I do not find any CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 12 of 29 merit in this contention. A plain reading of provisions of Order XII rule 6 CPC shows that the application can be moved at any stage. It has been held in Parivar Sewa Sansthan Vs. Beena Kalra (supra) that the use of the expression "any stage' in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus merely because issues are framed cannot by itself deter the court to pass the judgment on admission u/o XII rule 6 CPC. Bare perusal of the rule shows that it confers very wide powers on the court to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing.
14. It has also been held in P.S. Jain Co. Ltd. Vs. Atma Ram Properties (P) Ltd. (supra) that merely because issues have been framed does not disentitle the court from a subsequent stage, if it finds that a relief can be granted on admission or it finds that no material issue arises or that the evidence on an issue claimed or framed is otherwise barred by law, from passing a decree.
15. In the light of the law laid down in the aforesaid authorities and the provisions of Order XII Rule 6 CPC, the contention of the Ld. Counsel for defendant that the present application at this stage is not maintainable is rejected.
CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 13 of 29
16. Next contention of the Ld. Counsel for defendant that present suit is barred U/o 2 Rule 2 r/w Order 8 rule 6A CPC. This contention is based on the premise that the plaintiffs should have raised a counter claim in respect of the claim made in the present suit as soon as they came to know that the defendant was claiming the ownership by way of adverse possession in the previously instituted suit by the defendant against the plaintiffs titled as "Hans Raj Vs. Raghubir Singh & Ors.", the suit for declaration and injunction. The Ld. Counsel would argue that plaintiffs failed to raise counter claim in the suits instituted by the defendant against the plaintiffs, therefore present suit is barred u/o 2 rule 2 CPC and u/o 8 rule 6A CPC. The plaintiffs have filed the present suit only against the defendant. No other suit has been instituted by the plaintiffs against the defendant. Therefore, Order 2 rule 2 CPC does not come into play. So far the applicability of Order 8 Rule 6A CPC is concerned, the plaintiffs could have raised the counter claim if the cause of action had accrued in their favour to seek the relief of possession and mesne profits as claimed by way of present suit at the time of institution of three aforesaid suits by the defendant. It has been held in Rashmi Kapoor Vs. Raman Kapoor (supra) that cause of action in respect of which counter claim is to be filed must arise before filing of written statement. As it is apparent that the defendant propounded his claim of CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 14 of 29 ownership by way of adverse possession for the first time in the suit for declaration filed by him against the plaintiffs on 11.11.2008 titled as "Hans Raj Vs. Raghubir Singh & Ors." The plaintiffs herein filed the written statement in the said suit. However, the plaintiffs could not have raised the counter claim for recovery of possession in the said suit without serving the notice asking the defendant to vacate the suit premises as required U/s 111 (g) of Transfer of Property Act, because the law mandates that before instituting a suit for recovery of possession on forfeiture of tenancy u/s 111 (g) of Transfer of Property Act, a notice is required to be given to the tenant u/s 111 (g) of Transfer of Property Act. Therefore, the cause of action accrued in favour of plaintiffs to seek the recovery of possession from the defendant on account of forfeiture of tenancy u/s 111 (g) of Transfer of Property Act when the defendant renounced his tenancy by way of setting up his own claim of ownership and thereafter nonsurrender of tenanted premises despite service of legal notice. The plaintiffs after coming to know that the defendant has renounced his tenancy served a legal notice dated 11.04.2009 and when the defendant failed to comply with the legal notice, the cause of action accrued in favour of the plaintiffs to seek the recovery of possession of the suit premises. Hence, it cannot be said that present suit is barred U/o 8 Rule 6A CPC.
CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 15 of 29
17. As per Ld. Counsel for defendant, the present application is also barred by limitation under Article 137 of Limitation Act as the suit was filed in the year 2009 and application in question has been moved on 17.10.2013 i.e. beyond the three years from filing the suit. As per Article 137 of Limitation Act, the period of three years has been prescribed for moving an application where no period of limitation is provided in the Schedule appended to the Limitation Act from the date when right to apply accrues. In the present case, the defendant filed the written statement on 05.11.2011 and right to apply the application u/o XII rule VI CPC accrued to the plaintiffs after filing of the written statement. The present application has been moved within three years from the date when the right to apply the application accrued and hence it cannot be said that application is time barred.
18. Now before proceeding further let us examine the provisions of Order XII Rule 6 CPC.
Order XII Rule 6 CPC provides j udgment on admissions : (1) Where admissions of fact has been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) .........
CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 16 of 29
19. It has been held in Madan Lal Kaushik Vs. Shree Yog Mayagi Temple (Supra) that, "There must be admission of fact arising in suit, either in pleading or otherwise, orally or in writing. Such admission of fact must be clear unequivocal and unambiguous. There is no requirement for such admission of fact to be specific or express and even constructive admission deemed sufficient to pronounce judgment." It has been held in Association for Voluntary Action Vs. The Child Trust & Ano. 2013 IX AD DELHI 180 (supra) that admission can be inferred on vague and evasive denial in written statement while answering specific pleas raised by plaintiff. Admission even can be inferred from facts and circumstances of case.
20. From the aforesaid factual matrix, let us see as to whether there are the admissions of fact in pleadings or otherwise by the defendant which warrants the plaintiffs a decree at this stage without having a full fledged trial.
21. The plaintiffs have claimed in the present case that the defendant paid the rentals of the suit premises to them on the asking of previous landlord Sh. A.K. Channa and as such attorned them as landlord which fact is admitted by the defendant in three aforesaid suits filed by him against the plaintiffs. Plaintiffs further claim that they purchased the property in question vide registered sale deeds and CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 17 of 29 as such became the owners of the suit property. Therefore there is no dispute of relationship of landlord and tenant between the plaintiffs and defendant as well as ownership of the plaintiffs over the property in question. Though in the written statement filed in the present case the defendant denied that the plaintiffs are the joint owners of the suit property. The defendant also denied that he is the tenant of the plaintiffs in respect of the suit property. Even the defendant also denied the payment of any rent to the plaintiffs. The defendant though did not dispute that he was a tenant under the previous landlord Sh. Anil Kumar Channa. It has not been disputed by the defendant that he has filed three suits against the plaintiff which are pending adjudication along with this suit.
22. However, a perusal of the plaints of the suits filed by the defendant against the plaintiffs categorically reveals that in all the three suits instituted by the defendant against the plaintiffs he has averred that he has paid the rentals to the plaintiff no. 1 & 2 herein on the asking of previous landlord Sh. Anil Kumar Channa. Even in the reply to the application u/o XII rule 6 CPC, the defendant did not dispute the said fact as in para no. 3 of the reply, he categorically stated that he paid the rent on the asking of previous owner Mr. Anil Kumar Channa and rent was to be paid thereafter after the plaintiffs were to show the documents of title in their favour which have not CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 18 of 29 been shown nor the copies were handed over. It shows that defendant admits that he paid the rentals to the plaintiffs in respect of the suit premises, that too, on the asking of previous owner/landlord Sh. Anil Kumar Channa. Once the defendant admits so, he is estopped from disputing the title of the plaintiffs over the suit premises u/s 116 of Indian Evidence Act. Reliance may be placed on Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450.
23. The plaintiffs have also produced the registered sale deed dated 18.12.1989 by which previous owner Sh. Anil Kumar Channa sold the undivided 1/3rd share in the suit property in favour of plaintiff no. 1 & 2. The plaintiffs no. 1 & 2 further sold undivided share to plaintiffs no. 3 to 5 vide registered sale deed dated 29.01.2008. It has been held in M/ s Devansh Real Estate Pvt. Ltd. case (supra) that, "It is already well settled that on transfer of title of the property in occupation of a tenant, the transferee under the law becomes the landlord and no overt act of attornment is required." Apart from this, the defendant admits the plaintiffs the owner of the property in question as he has filed the suit for declaration against the plaintiffs seeking a decree of declaration that he has become owner by way of adverse possession. It has been held in Madan Lal Kaushik Vs. Shree Yog Mayagi Temple (Supra) that, "For a plea of ownership on the CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 19 of 29 basis of adverse possession, the first and foremost condition is that the property must belong to a person other than the person pleading his title on the basis of adverse possession." As such, the mere fact that the defendant has come forward with a plea of adverse possession implies that he admits the plaintiffs to be true owner of the suit property.
24. In view of the above discussions, it emerges out that the defendant attorned to the plaintiffs as their landlord and also paid the rentals of the suit premises and now is estopped from disputing the relationship of landlord and tenant and also title of the plaintiffs over the suit property. It is also evident from the records that the defendant instituted three suits against the plaintiffs in which he set up the claim that he has become the owner of the suit property by way of adverse possession. Along with the said suits, the defendant has himself filed a communication/letter sent to SHO, PS Hauz Khas dated 29.08.2008 in which he has claimed himself to be tenant in the suit premises. It shows that before instituting the aforesaid three suits on 11.11.2008, the defendant never claimed himself to be owner of the suit premises by way of adverse possession. The plaintiffs thereafter sent a legal notice dated 11.04.2009 asking the defendant to vacate the suit premises as his tenancy stood determined once he propounded his claim of ownership by way of adverse possession. The service of legal notice dated 11.04.2009 though has been disputed in the written CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 20 of 29 statement, but in reply to the application the defendant has categorically admitted the service of legal notice dated 11.04.2009.
25. It has been held by Hon'ble Delhi High Court in S. Makhan Singh Vs. Amarjeet Bali (supra) that, "The moment a person refused the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and protection of Delhi Rent Control Act is not available to him." It has been further held that, "Where the tenant continues in occupation after he repudiates the title of the landlord, lease comes to an end by operation of law because of the repudiation of title and the landlord/owner can file a suit for possession in Civil Court". Similar view has been taken by the Hon'ble Delhi High Court in Naeem Ahmed Vs. Yash Pal Malhotra (supra) where the tenant denied the relationship of landlord and tenant and repudiated and renounced the relationship of landlord and tenant and set up his own title in the property, the suit filed by the landlord for recovery of possession of suit premises was held to be maintainable.
26. The defendant has claimed his ownership by way of adverse possession on the premise that since nobody came forward to collect rentals from him for the last 17 years, therefore he has become owner by way of adverse possession. The defendant also claims that suit filed by him seeking declaration that he be declared as owner of the suit premises by way of adverse possession is pending and CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 21 of 29 therefore present suit filed by the plaintiffs cannot be decreed at this stage without trial. However, in my considered opinion merely because the plaintiffs did not come forward to collect the rentals from the defendant in respect of the suit premises, the defendant cannot be said to have become owner of the suit premises by way of adverse possession. It has been held in Vishal Builders Pvt. Ltd. Vs. DDA (supra) that, "By not paying the rent a tenant does not become a person in adverse possession. If the tenant has not paid the rent, it is default on the part of the tenant." It has been further held in Jagdeo Narain Singh Vs. Baldeo Singh (supra) that, "Mere nonpayment of rent or discontinuance of payment of rent has not, by itself, been held in India to create adverse possession." It was also held in Thakur Kishan Singh Vs. Arvind KumarAIR 1995 SC 73 that mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
27. In view of law laid down in the aforesaid authorities, the plea of the defendant that since nobody came forward to collect rentals from him and thus he has become the owner by way of adverse possession, is not tenable. Similarly, the contention of the defendant that his suit seeking declaration of ownership of the suit premises by way of adverse possession is pending and therefore present suit cannot CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 22 of 29 be decreed without trial, is without any merit. It has been held by the Hon'ble Apex Court in Gurudwara Sahib Vs. Gram Panchayat Village Sirthala (supra) that, "Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant then it can use this adverse possession as a shield/defence."
28. The defendant has also raised a contention that even if he is not awarded the decree of declaration of ownership by way of adverse possession in the suit instituted by him against the plaintiffs, still he cannot be deprived from relegating his position as a tenant and as such he is protected under Delhi Rent Control Act and cannot be evicted in the present suit filed by the plaintiffs. Again, this contention would not be tenable. Once the defendant repudiates the title of the plaintiffs as landlord and does not recognize them as landlord or as owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him by virtue of Section 111 (g) of Transfer of Property Act. It has been so held in S. Makhan Singh case cited supra. Section 111 (g) of Transfer of Property Act provides that a lease of immovable property comes to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus once a lease stands CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 23 of 29 forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. Hence, the defendant after repudiating the title of the plaintiffs as landlord/owner by setting up his own title over the suit premises, cannot claim himself to be tenant again in the suit premises in case he is not awarded decree of declaration.
29. So far the contention of the Ld. Counsel for defendant that alternative pleas are permissible to the defendant is concerned, first of all, no alternative plea has been taken by the defendant in the suit instituted by him against the plaintiffs that in case he is not declared owner of the suit premises by way of adverse possession, he should be relegated to the status of a tenant. Moreover, if it is assumed that the defendant has taken this alternative plea, then also he is not allowed to take mutually destructive pleas. It has been held in Adarsh Kaur Gill Vs. Surjit Kaur Gill (supra) that, "though a defendant is entitled to take an alternative and inconsistent plea, such alternative pleas cannot be mutually destructive of each other; pleadings of the parties are required to be read as a whole, defendants although are entitled to raise alternative and inconsistent pleas but should not be permitted to raise pleas which are mutually destructive of each other . The plea of ownership by way of adverse possession now sought to be taken is found to be mutually destructive to the plea of possession as co CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 24 of 29 owner, as a subrogateemorgagee in possession and as a tenant."
30. So far the authorities relied upon by the Ld. Counsel for defendant are concerned, the authority at Serial No. 1 is not applicable in the facts and circumstances of the present case because said authority deals with the applicability of Order 2 Rule 2 CPC in respect of two suits filed by the respondent. In the said case, the earlier suit was filed by the respondent on 15.03.2003 for recovery against the appellant bank and again another suit was filed on 21.05.2003 claiming damages. The Hon'ble Apex Court observed that no fresh cause of action arose in between the first suit and the second suit and the relief sought by way of second suit was available to the respondent at the time of first suit and therefore it was held that suit filed by the respondent is hit by Order 2 Rule 2 CPC. But the facts in the present case are entirely different. The plaintiffs have instituted the present suit only and no previous suit was instituted by the plaintiffs against the defendant. The plea of the defendant that plaintiffs should have raised the counter claim in the suit instituted by him has already been discussed herein above.
31. So far authority at Serial No. 2 is concerned, in the said case, the Hon'ble High Court did not find the admissions and due to the reasons given in the said judgment itself, the Hon'ble Court declined to decree the suit on the basis of admissions. As such, the CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 25 of 29 said judgment was on its own facts.
32. So far authority at Serial No. 3 is concerned, there is no deviation of the law laid down in the said authority that a judgment on an admission u/o XII rule 6 CPC is matter of discretion and not a matter of right and when a case involves question which cannot be conveniently disposed of on a motion under the rule the court may in the exercise of discretion, refuse the motion. However, the facts in the present case are different.
33. Another authority titled as Swaran Singh Vs. Surinder Kumar at Serial No. 4 is also not applicable in the facts and circumstances of the present case. In the said case, Ld. Single Judge dismissed the suit of the plaintiff on an application filed by the defendant u/s 151 CPC without any change in the circumstances from the earlier application moved by the defendant u/o 7 rule 11 CPC. In the said context, it was held that the Ld. Judge had framed nine issues which specifically covered the myriad nuances of the dispute and since there was no change in the circumstances, therefore, the Ld. Trial Judge should not have dismissed the suit and the impugned order passed by the Ld. Trial Judge was set aside. However, in the said case no question of decree on admissions u/o XII rule 6 CPC was involved as involved in the present case and hence this authority is not applicable in the facts and circumstances of the present case. CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 26 of 29
34. In case of Balraj Taneja (supra) at Serial No. 5, the question before the Hon'ble Supreme Court was that whether the suit of the plaintiff for specific performance of contract can be decreed U/o 8 Rule 10 CPC as the defendant has failed to file the written statement. The Hon'ble Apex Court observed that there were serious disputed question of fact between the parties and plaintiff was required to prove the fact that he was ready and willing to perform his part of contract and in those circumstances it was held that suit cannot be decreed merely on the ground of failure of defendant in filing written statement. Again the issue involved in the aforesaid case is different from the issue involved in the present application.
35. In M/s J.R. Sharma case (supra) at Serial No. 6, the Hon'ble High Court of Delhi did not find admissions due to several disputed question of fact as discussed in the said case law itself and therefore decree on the basis of admission was declined. However, the said authority was on its own facts and due to disputed question of fact, the plaintiff was not held entitled to decree on the basis of admission.
36. Similarly in Cosmo Ferrites case (supra) at Serial No. 7 there were no specific admissions. Rather there were specific denials and therefore it was held that plaintiff is not entitled to the decree on the basis of admission. Again the said judgment was based on the CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 27 of 29 particulars facts of the said case and is not applicable in the issues involved in the present application.
37. Again in case of Gayathri Women's case (supra) at Serial No. 8, the issue was whether the High Court was justified in permitting the respondents to raise the counter claim at a stage after the issues had been framed by the trial court. But this is not the issue in the present application and hence this authority is also no help to the defendant.
38. The authority relied upon by the Ld. Counsel for defendant at Serial No. 9 deals with the proposition of law that if there is clear and unequivocal admission, then the decree can be passed. Whether or not there is a clear unambiguous admission, is essentially a question of fact and depends on the facts of each case. There can be no deviation from the law laid down by the Hon'ble Apex Court, but as in the case law itself it has been held that whether or not there is a clear unambiguous admission, is essentially a question of fact and depends on the facts of each case.
39. In the light of aforesaid discussions, in my considered opinion, there are clear and unambiguous admissions on the part of the defendant which show that he was a tenant under the previous landlord Sh. Anil Kumar Channa and thereafter on the asking of the previous landlord he attorned to the plaintiffs as landlord and also paid CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 28 of 29 the rentals to the plaintiff no. 1 & 2. The plaintiffs have purchased the property vide sale deed and became the joint owners of the same. Admittedly, the defendant propounded his title over the suit property by way of adverse possession and as such protection under Delhi Rent Control Act is not available to him by virtue of Section 111 (g) of Transfer of Property Act. The plaintiffs served a legal notice upon the defendant asking the defendant to hand over the vacant possession of the suit premises. Legal Notice was duly served upon the defendant but despite service the defendant failed to comply the same. Therefore, the plaintiffs are entitled to decree of possession of suit premises. Accordingly, application is allowed and decree of possession is passed in favour of the plaintiffs and against the defendant in respect of suit premises under the possession of the defendant i.e. one shop on the ground floor and a similar portion on the first floor along with open roof/terrace on the second floor of the property bearing No. 20, Yusuf Sarai, Main Market, Aurobindo Marg, New Delhi. Decree sheet be prepared accordingly. Suit shall continue for the purpose of conducting an inquiry u/o 20 rule 12 CPC for 12.08.2014.
Announced in open Court (Balwant Rai Bansal)
on 11th July, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 194/12
Raghubir Singh & Ors. Vs. Hans Raj Page 29 of 29
CS No. 194/12
Rabhubir Singh & Ors. Vs. Hans Raj
11.07.2014
Present: Plaintiff no. 1 & 2 in person.
None for defendant.
Vide my separate order of even date dictated and announced in the open court, the application moved by the plaintiffs u/o 12 rule 6 CPC is allowed and a decree of possession is passed in favour of the plaintiffs and against the defendant in respect of the suit premises under the possession of the defendant. Decree sheet be prepared accordingly.
Put up for inquiry u/o 20 rule 12 CPC on 12.08.2014.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 11.07.2014 CS No. 194/12 Raghubir Singh & Ors. Vs. Hans Raj Page 30 of 29