Delhi District Court
Additional District Judge:Delhi vs Mr. Ramesh Kattar on 16 November, 2007
1 Suit no. 304/04
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL DISTRICT JUDGE:DELHI
Suit no. 304/04
Mrs Raj Batra
W/o Shri Ashok Chander
R/o 2348, Sector-23,
Chandigarh
....Plaintiff
versus
1 Mr. Ramesh Kattar
C/o A-IV/53, Lajpat Nagar,
New Delhi-110024
2 Mr. Aggarwal, Managing Director/Prop./Partner
M/s Sahiba Export International,
A-IV/53, Lajpat Nagar, New Delhi-110024
.....Defendants
Date of institution : 31/1/2004
Date on which the
judgment has been
reserved for orders: 17/10/2007
Date of judgment : 16/11/2007
JUDGMENT
1. The brief facts of this suit for recovery of rent and mesne-profit are as under:-
2 Suit no. 304/04
The plaintiff has claimed herself to be owner of the property bearing no. IV/A-53, Lajpat Nagar, New Delhi (hereinafter referred as "suit property"). It is further alleged that the defendants had been inducted as tenant in the suit property by mother of the plaintiff at a monthly rent of Rs. 7,500/-. During the life time of Smt Maya Devi (mother of the plaintiff) the defendants have been regularly paying rent to her. The plaintiff had been residing abroad therefore could not take interest in the affairs of the suit property; after demise of plaintiff 's mother the plaintiff has become absolute owner of the suit property and for the purpose of management of the property she has appointed Sh. S. M. Batra as her Attorney for management and control of the suit property. After the death of Smt Maya Devi, defendant had become habitual defaulter in making payment of rent and other charges in respect of suit property. The defendant no.1 3 Suit no. 304/04 had illegally sublet and parted with the possession of the suit property to the defendant no.2 who is presently occupying the suit property. The defendant no.2 has been using the suit property as commercial establishment under the name and style of M/s Sahiba Exports International. The defendant no.2 has caused irreparable damages to the suit property by making structural changes in the ground floor of the suit property. During visit in India the plaintiff has sent a legal notice dt. 19/1/2004 U/s 106 of Transfer of Property Act, calling upon the defendant to hand over peaceful physical vacant possession of the suit property. The plaintiff further demanded arrears of rent of Rs. 3,22,500/-along with interest Rs. 28,465/- as accrued there upon. Inspite of legal notice, defendants failed to pay arrears of rent or to hand over physical vacant possession of the suit property. After service of legal notice upon the defendants, the defendant no.1 has become 4 Suit no. 304/04 unauthorised occupant of the suit property and was therefore liable to pay damages/mesne-profits for illegal use and occupation of the suit property @ Rs. 15,000/-p.m w.e.f 01/2/2004. Hence, plaintiff was constrained to file present suit for recovery of Rs.4,65,965/- from the defendants which including Rs. 3,20,500/- as recovery of rent for the period of three years before 31/1/2004 and Rs.28,465/- as interest on the above amount Rs. 1,00,000/- as damages and compensation for causing structural changes in the suit property . The plaintiff further prayed for decree for future damages and mesne-profits @ Rs.15,000/- p.m.
2. On 8/10/07 Ld counsel for the plaintiff submitted that defendant no.2 has been arrayed as party to the suit mistakenly and sought adjournment for seeking proper instructions in that regard. Thereafter, no step was taken 5 Suit no. 304/04 with regard to defendant no.2.
3. The defendant no.1 has appeared and contested the suit by filing written statement. In written statement filed by the defendant no.1 it is stated that suit was bad for mis-joinder of the parties and defendant no.2 was not a necessary party to the suit. Defendant no.2 was tenant in property no. A-IV/55, Lajpat Nagar, Delhi. It is further stated that suit was barred by Section 50 of the D.R.C. Act and the defendant no.1 has become owner of the suit property by way of adverse possession; plaintiff was not the owner of the suit property because suit property was let out by Smt Maya Devi during her life time in the year 1976 to Sh. Hukam Chand who was father of defendant no.1. After death of Sh. Hukam Chand his two sons Sh. Ranjit Singh and Sh. Ramesh Khattar i.e defendant no.1 being legal heirs of late Shri Hukam Chand became 6 Suit no. 304/04 tenants in the suit property; Shri Ranjit Singh, brother of the defendant no.1 resided in the suit property till 1982 and after that defendant no.1 continuously residing in the suit property. After death of Smt Maya Devi, mother of the plaintiff in the year 1981, nobody had claimed rent from the defendants. The defendant no.1 as such has become owner of the suit property by way of adverse possession. The rent of the suit property was Rs. 175/- p.m and not Rs. 7,500/-p.m as claimed.
4. On merits, all the averments made in plaint has been controverted and denied stating that the suit is itself not maintainable because plaintiff has no locus standi to file the present suit. It is further stated that notice dt. 19/1/2004 was received by defendants but it was ignored because of its false contents.
7 Suit no. 304/04
5. In replication, plaintiff has controverted and denied all the averments made in the written statement and reiterated and reaffirmed the stand as taken in the plaint. With regard to defendant no.2 it is stated that a separate application would be moved for dropping the defendant no.2 from array of the parties.
6. On 24/11/2004 from the pleadings of the parties following issues were framed:-
1 Whether the suit is bad for mis-joinder and non-
joinder of parties ? OPD 2 Whether this court has got no jurisdiction to entertain and try the present suit in view of section 50 of the DRC Act ? OPD 3 Whether there is no relationship of landlord and tenant between the parties? OPD 4 Whether the plaintiff has not complied with section 106 of T.P Act ? OPD 8 Suit no. 304/04 5 Whether the plaintiff is entitled to a decree for amount of Rs. 4,65,465/- against the defendants? OPD 6 Whether the plaintiff is entitled for damages-
mesne profits as prayed for in para.11 of the prayer of the plaint?OPP 7 Relief.
7. In support of her case plaintiff has examined Sh.
S.N. Batra, Constituted attorney as PW1 and defendant no.1 Ramesh Khattar has examined himself as DW1.
8. I have heard Ld counsel for both the parties at length and have gone through the evidence and record. My findings on the above issues are as under:-
9. ISSUE no.1 The onus of this issue was upon the defendant. In the written statement defendant no.1 has taken objection 9 Suit no. 304/04 that defendant no.2 was occupying the different premises i.e A-IV/55, Lajpat Nagar, Delhi and was not necessary party to the present suit. In replication it was stated that defendant no.2 was impleaded by mistake and separate application would be moved for deleting the defendant no.2 from the array of the parties. The said application was never moved and in view of these pleadings and circumstances, the defendant no.2 is held to be an unnecessary party to the present proceedings. The effect would be that suit against the defendant no.2 is liable to be dismissed. The issue no.1 is decided accordingly in view of above terms.
10. ISSUE NO.2 The onus of this issue was upon the defendant. In para. 9 of affidavit Ex. D-1, it is deposed by the defendant that plaintiff has falsely alleged that the rate of rent was Rs. 7500/- whereas infact the rate of rent was only Rs. 175/-p.m 10 Suit no. 304/04 and as such tenancy is governed by the Delhi Rent Control Act and suit for possession can not be filed. It seems that plaintiff as well as defendant no.1 are under misconception that the present suit is for possession whereas the present suit is for recovery of arrears of rent and for damages for making structural changes in the suit property. In his cross- examination DW1 states that he was not in possession of any rent receipt issued by landlord in favour of his father. The suggestion was given to DW1 to the effect that his brother has admitted the rate of rent as mentioned in Ex. DW 1/B. Ex. DW 1/B is the notice addressed to Sh. Ranjit Singh, brother of the defendant sent by Sh. K. G. Bhagat on behalf of plaintiff. In para. 2 of said notice Ex. DW 1/B it is stated that suit premises was let out @ Rs. 550/-p.m by Smt Maya Devi, mother of plaintiff.
11. PW1 in cross-examination stated that he did not 11 Suit no. 304/04 remember as to whom the property in dispute was let out and by whom. PW1 admitted that Sh. Ranjit Singh and his brother (defendant) were tenants in the suit property but he did not remember the rate of rent. He further admitted that notice was sent through counsel to the tenants. In his further cross-examination he again admitted that suit property was let out in the year 1982 but he did not know the rate of rent and as to whom it was let out. He further stated that after 1982 the suit property was let out to Sh. Ranjit Singh (brother of defendant) but he did not know the rate of rent. It is further deposed that before filing of suit they tried to settle the matter with Sh. Ranjit Singh. During discussion it was agreed that hence forth the rate of rent would be Rs. 7500/-. The said rent was accepted by him to be paid but he never paid the same. In further cross-examination he stated that plaintiff Ms Raj Batra told him that the defendant no.1 was inducted as tenant @ 12 Suit no. 304/04 Rs. 7,500/-p.m. He further admitted that the said rent was never received. This deposition of PW1 in cross- examination makes it clear that rate of rent @ Rs. 7,500/- was never paid and the rent was never received by the plaintiff at the said rate. PW1 has also admitted that he never enquired about the rate of rent. The notice for increase of rent was never given to the tenants. On the basis of notice Ex. DW-1/B which is admitted by the plaintiff as well as defendant, the rate of rent at the time of issuance of said notice therefore, can be considered to be Rs. 550/-p.m. The said notice was dated 20/1/1983. Since the present suit is not for recovery of possession, therefore, it is not necessary to decide as to whether the suit is barred under section 50 of Delhi Rent Control Act or not. The decision of this issue is relevant only to the extent of relief of arrears of rent. This issue is accordingly decided in above terms.
13 Suit no. 304/04
12. ISSUE NO.3 The onus of this issue was upon the defendants. The defendant no.1 has alleged that he has become the owner by way of adverse possession. It is further alleged that plaintiff is neither the owner nor has got any right, title or interest in the suit property and has no locus standi to file the suit. In cross-examination DW1 stated that electric meter was installed in the name of late Sh. Ladda Ram, father of the plaintiff. Since after the death of Smt Maya Devi nobody claimed rent for the suit property till the year 2004 and on this assumption the defendant has claimed ownership by adverse possession. He further stated that he did not know as to when the suit property was officially mutated in the name of plaintiff. He further admitted that Ex. DW-1/B was addressed to his elder brother at Shalimar Bagh address and have not replied the same as it was not addressed to him. He further stated that his elder brother never replied 14 Suit no. 304/04 the notice Ex. DW-1/B sent by Sh. K. G. Bhagat advocate on behalf of plaintiff and it was addressed to Sh. Ranjit Singh, elder brother of defendant. In the said notice plaintiff has categorically stated that Sh. Ranjit Singh, elder brother of defendant was tenant in the suit property at the rate of Rs. 550/-p.m. It was further alleged that in the said notice the tenant was liable to be ejected on the ground that no rent was tendered since 1/9/1981. In para. no. 6 of the notice it was categorically stated that plaintiff did not want to retain the tenant and tenancy has been terminated by this notice. The tenant was called to vacate the premises within 15 days by the receipt of said notice. The plaintiff has also proved postal receipts of the sending of the notice to Ranjit Singh at his two addresses and the said postal receipts are Ex. DW- 1/BA and Ex. DW-1/BB. The defendant himself has relied upon the notice Ex. DW-1/B and in the cross-examination DW1 has admitted that the said notice was received by his 15 Suit no. 304/04 brother and contents of the notice were known to him. It is admitted case of the defendant that despite knowing the contents of the notice the defendant and his brother has not replied the notice.
In this regard, I would like to refer 1980 RAJDHANI LAW REPORTER (NOTE) 44 wherein it was held:-
''If plaintiff before filing the suit makes serious assertions in a notice to defendant then defendant must not remain silent by ignoring to reply. If he does so then adverse inference may be raised against him u/s 114 (F) of the Indian Evidence Act.''
13. In his affidavit Ex. D-1 in para. 4 it is stated that suit property was let out by Smt Maya Devi to Sh. Hukam Chand, father of the defendant no.1. It is further stated that defendant no.1 and his brother Sh. Ranjit Singh were residing in the suit property as legal heirs of late Sh. 16 Suit no. 304/04 Hukam Chand. With regard to claiming of ownership by adverse possession it was argued on behalf of plaintiff that defendant no.1 has failed to allege as to when the title of adverse possession got perfected in his favour and as and when he has started claiming adverse possession in the suit property. It is further argued that in order to claim ownership by adverse possession the defendant no.1 has to accpet some one to be owner of the suit property. Ld counsel for the plaintiff has relied upon the judgment reported in AIR 2002 (Madras) 213 wherein it was held that :-
"''......To prove adverse possession, one has to plead and prove that a particular person is the true owner and it is holding the property in adverse possession openly,continuously and uninterruptedly for more than a period of 12 years. No such particulars or plea had even been made by the defendants and proved, so as to enable them to succeed on a plea based on adverse possession.....'' 17 Suit no. 304/04
14. In the light of above discussions, since the notice Ex. DW-1/B has been admitted to be received and as it was never replied therefore, an adverse inference to be drawn with regard to the contents of legal notice Ex. DW-1/B. The defendant has failed to prove their plea of ownership by adverse possession. The material on record is sufficient to prove that there is existence of relationship of landlord and tenant between plaintiff and defendant. Thus, this issue is accordingly decided in above terms in favour of plaintiff and against the defendant.
15. ISSUE NO.4 The onus of this issue was upon the defendant. PW1 in his affidavit deposed that a legal notice dt. 13/1/2004 Ex. PW1/B u/s 106 of Transfer of Property Act was served upon the defendant which was duly sent vide postal receipts Ex. PW-1/4 and Ex. PW-1/5. I have seen the said notice Ex.PW -1/3 wherein the defendant was called 18 Suit no. 304/04 upon for making payment of Rs. 3,75,465/-. It is further stated that tenancy has been terminated with effect from the date of receipt of legal notice. While deciding issue no.2, it has been held that plaintiff has failed to prove that the rate of rent of the tenanted premises was Rs. 7,500/- p.m. It was held that as per contents of notice Ex. DW-1/B the rate of rent was clearly shown @ Rs.550/-p.m and for the purpose of disposal of present suit the rate of rent was held to be Rs. 550/-p.m for the tenanted premises. Since the present suit is not for possession or ejectment of tenant, wherein the notice u/s 106 of Transfer of Property Act was legally served or not is relevant to the extent of the entitlement of the plaintiff for recovery of arrears of rent. It is admitted case of the defendant that they have not paid any rent after the death of Smt. Maya Devi. The rate of rent of tenanted premises is to be considered @ Rs. 550p.m and in that case tenancy can not be terminated 19 Suit no. 304/04 under the Transfer of Property Act. Hence, issue no.4 is accordingly decided in above terms.
16. ISSUE NO. 5&6 The onus of these issues were upon the plaintiff. The plaintiff has claimed a sum of Rs. 4,65,965/- as arrears of rent as well as damages caused to the suit property by way of structural changes. The plaintiff has failed to prove that the rate of rent was @ Rs. 7,500/- p.m and as such plaintiff has failed to prove that she was entitled to the recovery of arrears of rent to the tune of Rs. 3,25,500/-. In the given facts, circumstances and on the basis of material on record plaintiff is entitled to recovery of rent for 3 years preceding from the date of institution of the suit @ Rs 550/-p.m. The plaintiff has also claimed Rs. 1 lac as damages due to the structural changes and Rs. 15,000/- as mesne-profits for one month for illegal use and occupation 20 Suit no. 304/04 of the suit property after termination of tenancy. The plaintiff has not led any evidence to prove that defendant has caused such structural chances which may amount to addition and alteration in the suit property. In the absence of any evidence on record the plaintiff has failed to prove the claim of Rs. 1 lac as damages on that account. The damage/mesne-profits for one month for illegal use and occupation of premises after termination of tenancy @ Rs 15,000/-p.m has not been proved by the plaintiff. Hence, issue no. 5&6 are accordingly decided in above terms.
17. RELIEF In the light of my findings on the above issues, the suit of the plaintiff is partly decreed. The plaintiff is held entitled to recovery of rent @ Rs. 550/-p.m for three year preceding from the date of institution of the suit i.e 7/2/2004. The plaintiff is further held entitled to recovery of rent at the same rate w.e.f 7/2/2004. The plaintiff shall 21 Suit no. 304/04 be entitled to recovery of interest @ 12 % p.a on the arrears of rent from the date of institution of the suit till the realisation of the decretal amount. Costs of the suit is also awarded in favour of plaintiff. Decree-sheet be drawn accordingly. File be consigned to the record room after due compliance.
Announced in the open court on 16/11/2007 (RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE:
DELHI