Delhi District Court
This Is The Judgment Of Case Titled As ... vs Shankar on 6 June, 2019
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
Suit no. 196/13
Case No. 18313/16
Shri Sanjeev Jain
S/o Late Shri B.M Jain
R/o House No. 2808, Gali Matawali,
Kinari Bazar, Delhi-06.
Versus
1.Shri Shankar Lal (deceased) S/o Shri Deen Dayal
2. Shri Gopal
3. Shri Raju Both Sons of Late Shri Munna Lal All R/o Pvt. Room No. 17, 2726/21, Chowk Raiji, Roshan Pura, Nai Sarak, Delhi-110006. .........Defendants Date of Institution of Suit : 02.08.2013 Date of pronouncement of judgment : 06.06.2019 SUIT FOR POSSESSION AND PERPETUAL INJUNCTION This is the judgment of case titled as Sanjeev Jain vs Shankar Lal. This is a suit for possession and perpetual injunction. Facts of this case CS No. 18313/16 Sanjeev Jain vs Shankar Lal 1/15 are as follows:-
1 Plaintiff is Sh. Sanjeev Jain S/o Sh.B.M. Jain. Defendant no.1 is Sh. Shankar Lal S/o Sh. Deen Dayal, defendant no.2 is Sh. Gopal and defendant no.3 is Sh. Raju. Both Gopal and Raju are sons of late Sh. Munna Lal. It is submitted that all above three defendants are residents of private room no.17, 2726/21, Chowk Raiji, Roshan Pura, Nai Sarak, Delhi-110006.
That the plaintiff is the absolute owner of entire property bearing no. 2725 to 2728 including the premises room no.17, occupied by the defendants. Defendant no.1 Sh. Shankar Lal was the tenant of room no.17, 2726/21, Mehal Sarai, Chowk Raiji, Roshan Pura, Delhi @ Rs.30/- per month. Defendant no.1 was shown as tenant in the sale deed by which the plaintiff purchased the property. Initially one Sh. Ghasita Ram was the tenant in the said premises. After his demise, tenancy was transferred in the name of defendant no.1 and since then defendant no.1 remained absolute tenant in the said premises. Rent receipt was executed in the year 1995. Since then, defendant no.1 has been paying rent to the previous owner/landlord of the suit property against rent receipt. Since 1995 to September 2006, defendant no.1 has been paying the rent to the previous owner in his name in the rent receipts. In the month of July 2008, plaintiff issued a legal notice to defendant no.1 demanding arrears of rent. Previous owner also issued a notice of demand of rent to defendant no.1 and later on another notice was also issued for attornment. Plaintiff also issued notice to defendant no.1 but after execution of the surrender deed, a false and belated reply was issued to CS No. 18313/16 Sanjeev Jain vs Shankar Lal 2/15 the plaintiff. That with the intervention of the well wishers of the plaintiff and the defendant no.1, defendant no.1 agreed to settle the dispute regarding the tenanted premises with the plaintiff and agreed to surrender his tenancy rights with possession in favour of the plaintiff. Defendant no.1 executed a surrender deed on 20.06.2011 in favour of the plaintiff. The same was also registered. Despite agreeing to hand over the vacant possession of the premises, defendant no.1 did not do so. Plaintiff and defendant no.1 settled the dispute of rent. After execution of this surrender deed, defendant no.2 and 3 are claiming the tenancy rights and also refused to vacate the tenanted premises. Cause of action lastly arose on 09.10.2012 when the plaintiff requested the defendants to hand over peaceful vacant and physical possession of the premises. It is therefore, prayed that the court be pleased to;
1 pass a decree of possession in favour of the plaintiff and against the defendants regarding the said premises private room no.17, 2726/21, Mahal Sarai, Chowk Raiji, Roshan Pura, Chandni Chowk, Delhi-06 specified in Red colour in site plan.
2 pass decree of perpetual injunction in favour of the plaintiff and against the defendants restraining the defendants from creating any third party interest in the premises as mentioned above by parting with possession or executing any agreement or creating any third party interest regarding the said premises.
3 cost of the suit may also be awarded to the plaintiff.
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 3/15 WS of defendant no.1: Preliminary objections:- 2 That the suit is not maintainable because the plaintiff has not
come to this court with clean hands and has concealed material facts. Plaintiff has falsely alleged that defendant no.1 is the tenant in room no.17, whereas in fact defendant no.1 has never been the tenant in the suit property. That the suit is not maintainable as the plaintiff has no cause of action against defendant no.1.
Preliminary submissions:-
3 That defendant no.1 is neither a blood relative of defendant no.2 nor to their forefathers. Defendant no.1 is a pavement dweller. The previous owner as well as the present plaintiff have illegally created the tenancy qua the suit premises in the name of answering defendant no.1 in order the evict defendant no. 2 & 3 from the suit property through unfair and illegal means.
Through his reply dated 18.07.2011 to the legal notice sent by the plaintiff, answering defendant no.1 has replied that the said legal notice was based on false facts. In that reply, it is stated that defendant no.1 was never a tenant in the suit premises and that he was employed by Sh. Suhagwati, mother of defendant no. 2 & 3 and since defendant no.1 was old, he was being looked after by defendant no. 2 & 3 as their Mama (maternal uncle). In the reply, answering defendant no.1 has also stated that defendant no. 2 & 3 have inherited the tenancy from their grandfather Sh. Ghasita Ram who had been tenant in the suit property. One Sh. Raj Kumar S/o Sh. Seva Ram was also CS No. 18313/16 Sanjeev Jain vs Shankar Lal 4/15 living in Katra Raiji, Chowk and in collusion with plaintiff by showing sympathy with answering defendant who is old aged and suffering from old age related ailments has committed fraud upon defendant no.1 on the pretext of getting issued a receipt of government hospital for his free treatment and has also obtained thumb impressions on blank papers which are used by the plaintiff who was in connivance with said Sh. Raj Kumar. Defendant no.1 is an illiterate person and can only put his thumb impressions. On the pretext of this treatment, the surrender deed was illegally got executed by the plaintiff.
Reply on merits:-
4 It is denied for want of knowledge that plaintiff is absolute owner of the suit property. It is denied that defendant no.1 was a tenant in the suit property @ Rs.30/- per month and was shown as tenant in the sale deed by which the plaintiff had purchased the suit property. The answering defendant never consented for his name to be incorporated in the sale deed as a tenant in room no.17. It is admitted that one Sh. Ghasita Ram was initially the tenant in the premises but it is denied that after the death of Sh. Ghasita Ram tenancy was transferred in the name of answering defendant no.1. It is denied that any rent receipt was executed in the year 1995. It is denied that defendant no.1 has been paying the rent in his name since 1995 to September 2006. It seems that the plaintiff has concocted certain facts in order to file the present suit in order to evict defendant no.2 & 3 from room no.17 by unfair means. Defendant no.1 is not in blood relation of late Sh.
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 5/15 Ghasita Ram and at the time of death of late Sh. Ghasita Ram, he was survived by many family members including defendant no. 2 & 3. There was no occasion to transfer the tenancy in the name of defendant no.1. It is denied that the plaintiff got issued a legal notice demanding arrears of rent. It is denied that any notice of attornment was issued. It is admitted that plaintiff got issued a notice to the answering defendants after execution of surrender deed. This notice was properly replied to by counsel Mr. Usman Choudhary stating all the facts and circumstances. Defendant no.1 has no reason to execute the surrender deed as he is neither a tenant nor has any kind of right, title or interest in the suit property. No settlement of any kind took place with the answering defendant. Therefore, question of executing any surrender deed does not arise. All the facts stated by the plaintiff with respect to the tenancy of defendant no.1 and the alleged execution of any surrender have been denied in toto by defendant no.1. WS of defendant no. 2 & 3 Preliminary objections:-
5 Suit of the plaintiff is liable to be dismissed as he has come before this court with unclean hands and has concealed material facts. It is submitted that the plaintiff has distorted the facts for his own advantage and suit is liable to be dismissed on this ground alone. Present suit is hit by provisions of Delhi Rent Control Act.
Preliminary submissions:-
6 Suit property is one room admeasuring about 300 sq. feet. This
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 6/15
room was under the tenancy of one Sh. Ghasita Ram, grandfather of defendant no. 2 & 3. Father of defendant no. 2 & 3 namely Sh. Munna Lal expired on 27.06.1971. At that time, grandfather of answering defendant namely Sh. Ghasita Ram was alive. Grandfather Sh. Ghasita Ram expired after 5 to 6 years of the death of late father Sh. Munna Lal. All the three daughters of late Sh. Ghasita Ram were married and he had only one son namely Sh. Munna Lal. Sh. Munna Lal was survived by defendant no. 2 & 3 and their mother Suhagwati who succeeded to the tenancy in the suit premises as joint tenants under provisions of DRC Act. Smt. Suhagwati expired on 28.01.1991. All the daughters of Smt. Suhagwati were married and were not living in the tenanted premises. Only defendant no. 2 & 3 have been staying in the suit property being joint tenants. Rent was being paid by defendant no. 2 & 3 but the previous owners as well as plaintiff have refused to issue any rent receipts in favour of defendant no. 2 & 3. Sh. Shankar Lal is not blood related either to defendant no. 2 & 3 or to their forefathers. Sh. Shankar Lal is a pavement dweller. The present plaintiff hatched a conspiracy with previous owner and has illegally created tenancy qua the suit premises in the name of Sh. Shankar Lal to evict the lawful joint tenants i.e. defendant no. 2 & 3. Defendant no. 2 & 3 have been living in the suit property since their birth. This suit property has been in possession of defendant no. 2 & 3 and their predecessors for the last more than 50 years. Reply on merits:-
7 It is denied for want of knowledge that plaintiff is the absolute
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 7/15
owner of the property as mentioned by him. It is denied that defendant no.1 was tenant in the suit property @ Rs.30/- per month. The sale deed of the plaintiff contains false facts and wrongly mentions the name of defendant no.1 as the tenant of the suit property. It is denied that the tenancy was transferred in the name of defendant no.1 after the death of late Sh. Ghasita Ram. It is denied that defendant no.1 has been paying the rent in his own name to the previous owner against rent receipts. There does not exist any relationship of landlord and tenant between defendant no.1 and the owner of suit property as well as the present plaintiff. These facts and circumstances have been falsely fabricated in order to illegally evict defendant no. 2 & 3 from the suit property alongwith their family members. Defendant no.1 is not in blood relation of late Sh. Ghasita Ram. After the death of Sh. Ghasita Ram, tenancy has survived in favour of defendant no. 2 & 3 and their family members and defendant no.1 is not a family member of defendant no. 2 & 3 nor related by blood. It is denied that the previous owner issued a notice for demand of rent to defendant no.1.
8 The present case is barred by provisions of Delhi Rent Control Act as rent of the suit property is paid by defendant no. 2 & 3 since the demise of Late Sh. Ghasita Ram and the rent is Rs. 72/- per year. Both defendant no.2 & 3 are protected by provisions of DRC Act and no suit for their eviction can be filed before any ordinary civil court. It is therefore prayed that suit of the plaintiff be dismissed with heavy costs.
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 8/15
Replication to WS of defendant no. 1:
9 All the facts controverted by defendant no.1 in his written
statement have been controverted and denied by the plaintiff in the replication. Plaintiff has reiterated the contents of his plaint to be true and has denied the averments made in the WS of defendant no.1. Replication to WS of defendant no. 2 & 3:
10 In this replication also, plaintiff has controverted all the facts controverted and denied by the defendants in their written statement. 11 After completion of pleadings, following issues were framed:-
1. Whether the plaintiff has not come to this court with clean hands and has suppressed material facts? If so, its effect? OPD
2. Whether the suit of the plaintiff is without any cause of action and is liable to be rejected under Order 7 Rule 11 CPC? OPD
3. Whether this court has no jurisdiction to entertain and try the present suit in view of the provisions of Delhi Rent Control Act? OPD
4. Whether the defendant no.1 is or was a tenant under the plaintiff in respect of suit property? OPP
5. Whether the plaintiff is entitled to decree for possession, in respect of the suit premises, against the defendants? OPP
6. Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for? OPP
7. Relief.
12 Plaintiff examined himself as PW1 by way of evidence
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affidavit. He relied upon following documents:-
1. Certified copy of sale deed dated 13.10.2006 Ex.PW1/1 2. site plan Ex.PW1/2
3. notice dated 27.07.2003 Ex.PW1/3
4. office copy of notice dated 05.03.2007 Ex.PW1/4 and its AD card Ex.PW1/5
5. office copy of notice dated 13.04.2007 Ex.PW1/6
6. postal receipt Ex.PW1/7 and its AD card Ex.PW1/8
7. carbon copy of notice dated 26.07.2008 Ex.PW1/9 and its reply Ex.PW1/10
8. office copy of rejoinder dated 16.08.2011 Ex.PW1/11
9. certified copy of surrender deed dated 20.06.2011 Ex.PW1/12 13 He was cross examined by counsel for defendant no. 2 & 3. I shall discuss the relevant portion of the cross examination for the purposes of deciding the issues of the present suit. The relevant extracts of cross examination of PW1 are as follows:-
14 PW1 deposed that he purchased this building on 13.10.2006 from Ms. Anita Gupta and others but did not conduct any personal inquiry of the tenants including the defendants and the occupants of room no. 17 i.e. the suit premises before purchasing the building. But he obtained the list of all the tenants from its previous owner. About 400 persons were residing in the entire property. The rent of the suit premises is Rs.30/- per month. He has no personal knowledge of legal heirs of late Sh. Ghasita Ram who was CS No. 18313/16 Sanjeev Jain vs Shankar Lal 10/15 initial tenant in the suit premises. When he purchased the suit premises Sh.
Shankar Lal defendant no.1 was residing as tenant. No rent note or agreement has been filed in respect of Sh. Shankar Lal. No rent receipt also filed in the name of Sh. Shankar Lal. He never received any rent from Sh. Shankar Lal defendant no.1 nor did Sh. Shankar Lal pay any rent to him at any point of time. He was handed over the old documents from the previous owner pertaining to the building purchased by him in which the suit premises is situated. It is correct that no rent receipt pertaining to Sh. Shankar Lal was handed over to him by the previous owner when the building was purchased. It is correct that PW1 has the knowledge that Late Sh. Ghasita Ram, initial tenant in the suit premises has no relation with Sh. Shankar Lal. PW1 is aware that defendant no. 2 & 3 are the legal heirs of late Sh. Ghasita Ram being his grandsons but he was not aware of this fact at the time of purchasing the property in question.
15 Thereafter, PW1 was cross examined by counsel for defendant no.1. Relevant extracts of his cross examination are as follows:- 16 PW1 deposed that it is correct that the suit property was occupied when it was bought but it is wrong to suggest that he purchased this property for less than the existing market rates because of this reason. He deposed that he had inspected the premises before purchasing the same but did not obtain any details of the persons residing in the building. He deposed that it is correct that the details of the witnesses to the surrender deed and the name of Sh. Shankar Lal is written by one person only and is in CS No. 18313/16 Sanjeev Jain vs Shankar Lal 11/15 the same handwriting. Defendant no.1 was not personally known to PW1 but the defendant was brought to PW1 by one Mr. Raj Kumar who is a neighbour of defendant no.1. Said Raj Kumar came to PW1 as a broker between PW1 and defendant no.1. PW1 did not take any identity proof of defendant no.1. He deposed that prior to defendant no.1, 3 to 4 other tenants had also surrendered their tenancy amicably after executing unregistered surrender deed without consideration. Sh. Suraj Bhan witness no.2 to the surrender deed was known to PW1. PW1 did not read over the whole of the contents of the surrender deed to witness Sh. Suraj Bhan. PW1 could not produce any document regarding the transfer of tenancy from Sh. Ghasita Ram to Sh. Shankar Lal neither he could tell in which year the alleged transfer of tenancy took place. He deposed that the alleged transfer took place about 10 to 11 years prior to him purchasing the property. He also could not tell the reason as to why late Sh. Ghasita Ram transferred the tenancy to Sh. Shankar Lal. It is wrong to suggest that documents relating to defendant no.1 have been forged by the broker Sh. Raj Kumar. 17 An additional affidavit was also filed on behalf of plaintiff. In this additional affidavit, he relied upon some further documents. Document no. 13 and 14 Ex.PW1/13 (OSR) and Ex.PW1/14 (OSR) are the two rent receipts counterfoils bearing no. 1778 and 1791 relating to defendant no.1. Document no.15 Ex.PW1/15 is the electoral list for the year 1998. Electoral list for the year 1990 Ex.PW1/16. Electoral list for the year 2005 Ex.PW1/17. Electoral list for the year 2008 Ex.PW1/18 and electoral list CS No. 18313/16 Sanjeev Jain vs Shankar Lal 12/15 dated 15.10.2008 Ex.PW1/19.
18 He was further cross examined by counsel for defendant no. 2 & 3. His further cross examination is as follows:-
19 He deposed that it is correct that Ex.PW1/13 and Ex.PW1/14 do not bearing signatures of Sh. Shankar Lal. He deposed that it is correct that in the voter list of 2008 Ex.PW1/19, name of Sh. Shankar Lal was deleted. It is correct that Sh. Shankar Lal has expired. It is correct that he had filed an affidavit against a dead person.
20 In the opinion of the court, for the purpose of deciding the present suit, there is no need to discuss further evidence as all the issues and most importantly the issue whether the plaintiff is entitled to any relief whatsoever can be decided on the basis of scrutinizing the evidence led by the plaintiff himself. Therefore, the court is proceeding to decide the issues as follows:-
21 For the sake of convenience, the court is proceeding to decide issue no. 3 & 4 before proceeding to decide any other issues. Both the issues no. 3 & 4 are being decided jointly as under:-
Issue no.3: Whether this court has no jurisdiction to entertain and try the present suit in view of the provisions of DRC Act? OPD and Issue no.4: Whether the defendant no.1 is or was a tenant under the plaintiff in respect of suit property? OPP
22 Now, even as per the opinion of the plaintiff, rate of rent is Rs.30/- per month. Suit property belongs to Delhi-110006. Admittedly Delhi CS No. 18313/16 Sanjeev Jain vs Shankar Lal 13/15 Rent Control is applicable to the area where the suit property is situated. Relationship of landlord and tenant is admitted between late Sh. Ghasita Ram and erstwhile owner of the suit property. Suit property has been bought by the present plaintiff now. Even as per the admission of the plaintiff in his own cross examination, plaintiff has no proof of whatsoever nature that the tenancy was legally and lawfully transferred from Sh. Ghasita Ram to defendant no.1. Till date, defendant no. 2 & 3 continue to reside in the suit property. Rate of rent even as per the case of plaintiff is Rs.30/- per month whereas as per the case of defendant no. 2 & 3, rate of rent is Rs.72/- per annum i.e. Rs.6/- per month. It is clear that Delhi Rent Control Act is applicable to the premises. Tenancy was never inherited by defendant no.1. Admittedly, defendant no. 2 & 3 are legal heirs of initial tenant late Sh. Ghasita Ram upon whom the tenancy has devolved. Therefore, even if for the sake of arguments, it is presumed that the alleged surrender deed alleged to have been executed between the plaintiff and defendant no.1 was true and genuine, still that does not give any right to the plaintiff to evict defendant no. 2 & 3 from the suit property. For eviction of tenant under Delhi Rent Control Act, a suit before the present court does not lie and the only remedy with the plaintiff is to approach the Ld. Rent Controller. Moreover there is no consideration for the alleged surrender deed alleged to have been executed between the plaintiff and defendant no 1 in the first place making it voidable and a document non-est. 23 Therefore, in view of my abovementioned discussion and CS No. 18313/16 Sanjeev Jain vs Shankar Lal 14/15 observations all the averments and the evidences brought on record, this court is of the opinion that the present suit is hit by provisions of Delhi Rent Control Act and therefore, the present suit does not lie and is liable to be dismissed. In the opinion of the court, since the court has already arrived at the decision that suit of the plaintiff is liable to be dismissed on account of being hit by provisions of Delhi Rent Control Act and on account of the fact that this court has no inherent jurisdiction to try and entertain the present suit in the opinion of the court is not necessary to discuss any other issue including those issues the onus of which was upon the defendants to prove. 24 Therefore, with these observations, the suit of the plaintiff is dismissed. In the opinion of the court, the plaintiff unnecessarily dragged all the three defendants into this litigation before this court when this court lacks inherent subject matter jurisdiction to try the present suit. Therefore, costs of the suit are awarded in favour of all the three defendants proportionately with 1/3rd share each and against the plaintiff and in case any of the defendants is not alive or is untraceable then in favour of the remaining and surviving defendants.
Decree sheet be prepared accordingly.
File be consigned to record room. Digitally signed
by SUNIL
SUNIL BENIWAL
BENIWAL Date:
Announced in the open Court on 2019.06.07
14:09:35 +0530
6th day of June, 2019 (SUNIL BENIWAL)
ADJ-02, Central,THC/Delhi
CS No. 18313/16 Sanjeev Jain vs Shankar Lal 15/15