Delhi District Court
Jagjit Singh S/O Late Darshan Singh vs Suman Yadav W/O Sh. Ram Gopal Yadav on 4 June, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
RCA No. : 15/2013
Suit No. : 759/12
In the Matter of :
Jagjit Singh S/o Late Darshan Singh
R/o CA10/1, Tagore Garden, New Delhi
.........Appellant
Vs.
Suman Yadav W/o Sh. Ram Gopal Yadav
R/o C24A, Shivaji Park
West Punjabi Bagh, New Delhi
.........Respondent
Date of Institution : 17.04.2013
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 29.05.2015
Date of Judgment : 04.06.2015
JUDGMENT
1. This is an appeal filed on behalf of appellant/defendant aggrieved by the judgment and decree of Ld. trial court dated 13.03.2012 whereby the suit was partly decreed in favour of plaintiff/respondent and defendant/appellant was directed to hand over the vacant and physical possession of the suit property as per site plan to the plaintiff within two months. RCA No. : 15/2013 1/14
2. The plaint before Ld. trial court was filed on the facts that plaintiff is the owner of property bearing no. C24A, Shivaji Park, West Punjabi Bagh, New Delhi which was purchased by her from its earstwhile owner vide registered sale deed in November 2004 whereas defendant was a tenant in respect of one room and one shop (private no.2) on the ground floor of said property @ rent of Rs. 3726/ per month excluding electricity charges. The defendant had been paying the rent to plaintiff against which rent receipt was being issued. Defendant, as stated, paid the rent upto Rs. 30.06.2005 and thereafter stopped paying rent. Plaintiff terminated the tenancy vide legal notice dated 28.10.2005 to which the defendant sent a reply dated 5.11.2005 containing false averments. He did not pay the arrears of rent despite repeated requests, hence plaintiff was constrained to file instant suit against the defendant.
3. In written statement filed on behalf of defendant it was stated that the rate of rent was Rs. 726/ per month and not Rs. 3,726/ per month and the plaintiff in collusion with her husband and father in law, prefixed the number 3 on the counterfoils of rent receipt with malafide intentions. The rent, as stated, had been paid by the defendant upto September 2005 @ Rs. 726/ per month and the alleged fact of purchasing the property was never disclosed to defendant by the plaintiff till sending of notice dated 28.10.2005 which was also illegal and vaxatious notice. Hence, the suit filed by plaintiff is liable to be dismissed.
4. From the pleadings of parties, following issues were framed by Ld. RCA No. : 15/2013 2/14 trial court: (1) Whether the suit is barred u/s 50 of DRC Act? OPD (2) Whether the plaintiff is entitled to decree of possession as prayed for? OPP (3) Whether plaintiff is entitled to the recovery of Rs. 18,630/ as prayed for? OPP (4) Whether plaintiff is entitled to damages, if yes, at what rate and for what period? OPP (5) Whether plaintiff is entitled to interest, if so, at what amount and for what period? OPP (6) Relief
5. Both the parties in support of their respective claims, examined their witnesses and Ld. trial court after conclusion of arguments passed the decree of possession in favour of plaintiff/defendant, vide impugned judgment but rejected the plea of plaintiff with respect to issues no. 3, 4 & 5.
6. Appellant by way of appeal has challenged the findings of Ld. trial court pertaining to issue no. 1 and 2 , whereas in the cross objections, filed by respondent, findings of ld. trial court have been challenged pertaining to issue no. 3, 4 & 5.
7. Issue wise discussion is as under:
8. Issue no.1 & 2 : The claim of appellant/defendant is pertaining to his tenancy in the suit premises since 1981 @ monthly rent of Rs. 726/ per RCA No. : 15/2013 3/14 month. The suit premises according to him, consisted of one shop and one room for which the rent receipts had also been issued in his favour by the original owner namely Bhim Sigh. The suit property in terms of the case of defendant was initially let out at monthly rent of Rs. 450/ excluding electricity charges which was increased after every four years and lastly was increased for Rs. 726/ per month in the month of June 2004, again exclusive of electricity charges. As stated by DW1, son of Sh. Bhim Singh used to collect the rent on behalf of his father and also used to deliver the rent receipts to defendant/appellant after getting the same signed from his father. He also used to obtain the signatures of defendant/appellant on counter foils of the receipts at the time of collection of the rent on the pretext that receipt portion of the same will be delivered after getting the same signed from Bhim Singh. However in the month of September 2005, when appellant/defendant demanded the rent receipt for the period w.e.f. December 2004 to August 2005, son of Bhim Singh produced the receipt book and obtained the signatures of defendant/appellant on the counter foils of the rent receipt in which amount of Rs. 726/ in figures only and not in words was mentioned and all the other columns were blank, though the defendant was promised that son of Bhim Singh will deliver the rent receipt to the defendant/appellant after duly preparing the same. Defendant thereafter received the notice dated 28.10.2005 on behalf of plaintiff claiming herself to be the owner of rented premises and demanding rent @ Rs. 3276/ w.e.f. 1.7.2005 stating that she had purchased the property in question from her father in law i.e. Sh. Bhim RCA No. : 15/2013 4/14 Singh though no notice of attornment was ever given to the defendant/appellant and even otherwise the rent was payable @ Rs. 726/ per month and not Rs. 3276/ which, as stated, was manipulated by the plaintiff in the rent receipts.
9. In terms of categorical deposition of plaintiff witnesses, they conveyed verbally regarding purchase of property by plaintiff from her father in law i.e. original landlord namely Sh. Bhim Singh, whereas DW1 himself in cross examination admitted the relationship of landlord and tenant between the plaintiff and himself also admitted ownership of plaintiff with respect to property in question , therefore is estopped from reagitating the same plea before the court.
10. Regarding the extent of tenancy, it was stated to be one room and one shop as was let out to the defendant/appellant as claimed by him. Though in terms of the claim of plaintiff, initially only a shop was let out to the defendant @ Rs. 400/ per month , rate of which was enhanced from time to time and reached to Rs. 726/ per month in the year 2004, however after the property was purchased by the plaintiff/respondent from her father in law, she was approached by the defendant on 1.12.2004 to take another room on rent on the ground floor of the said property which was agreed by the plaintiff for the additional sum of Rs. 3000/ per month and total rent of the room and shop accordingly was fixed at Rs. 3726/ per month excluding electricity charges, which fact was vehementaly disputed by the defendant/appellant who claimed the entire tenancy of one room and one shop since inception of RCA No. : 15/2013 5/14 the tenancy at Rs. 726/ per month only. Surprisingly Ld counsel for appellant /defendant during the course of arguments did not utter even a word regarding the tenancy of both premises i.e. shop and room from the very inception of the tenancy and admitted the tenancy of additional room in the year 2004 at further payable rent of Rs. 3000/ per month. His entire crux of arguments throughout was regarding both the tenancies being the separate tenancies which could not have been clubbed together for the purpose of assessment of rent to bring the same within the purview of DRC Act. On the said contention of Ld. counsel for appellant rather a query was put by the court as to if the tenancies were separate for Rs. 726/ and for Rs. 3000/ per month respectively for shop and room, why the money order was sent only for Rs. 726/ and not for Rs. 3000/ also as well as the deposit of rent in petition u/s 27 of DRC Act was also amounting to Rs. 726/ per month and why the rent was not sought to be deposited for the other room @ Rs. 3000/ per month. Ld. counsel for appellant after consultation with his client rather admitted the fault on behalf of appellant/defendant in not making any offer to pay rent for the room which claimed to be separate tenancy @ Rs. 3000/ per month to the plaintiff, whereby at least admitted the factum of tenancy with respect to other room as let out in the year 2004 itself. However the abovesaid contention of counsel for appellant was neither part of the pleadings nor the evidence recorded before Ld. trial court , therefore this court despite there being admission of appellant on the said aspect is not being swayed away and constrains its findings strictly as per record. RCA No. : 15/2013 6/14
11. It is the own case of defendant/appellant that the rent was payable @ Rs. 726/ per month for both the room and shop and the rent receipts were being issued to him in this respect. In terms of nine rent receipts pertaining to year 1990 onwards Ex.DW1/1 (Colly) which were filed on record by the appellant/defendant himself and two rent receipts Ex. PW1/D1 and Ex. PW1/D2 which were put to DW1 in cross examination pertaining to year 2004, the rent was being paid by the defendant/appellant in respect of only one shop i.e. shop no.2, whereas the other rent receipts, contents of which, as stated, were filled up by the plaintiff/respondent subsequently as claimed by DW1 are for one shop and one room. If the tenancy since inception was for both the shop and room , there is no reason for there being no mention regarding the extent of tenancy as inclusive of one room in the rent receipts filed by appellant/defendant himself on record, as admitted documents. Rather vide Ex. PW1/8 and certain other receipts, the electricity charges were also paid alongwith monthly rent. Suffice it would be for this court to reach the conclusion regarding the falsity of allegation of defendant of manipulation in all the receipts put on record by the plaintiff while considering the total amount paid by the defendant. These receipts are for different sums of money inclusive of rent of Rs. 3726/ with addition of electricity charges. There is no denial by the defendant regarding the payment of electricity charges also which were included in the total amount paid and the amount which had in these circumstances been received by the plaintiff was much more than Rs. 726/ or even Rs. 3276/ even if the contention of RCA No. : 15/2013 7/14 defendant regarding the manipulation is taken as gospel truth. Having seen from the naked eye even, this court does not find any manipulation in the figure mentioned against the total amount which has not been disputed by the defendant having paid to the plaintiff/respondent including electricity charges. Therefore on both the abovesaid aspects regarding non mention of one room in the rent receipts issued prior to year 2004, the contention of the defendant regarding extent of tenancy including one shop and one room from the inception of the tenancy is falsified on record.
12. It was the objection taken in appeal on behalf of appellant that even if presuming the fact as alleged by the respondent/plaintiff that one room of suit property was let out to the appellant after she purchased the suit property in the year 2004 @ Rs. 3000/ per month, the respondent and the witnesses have clearly admitted in their statements that the appellant had taken shop no.2 from PW2 Sh. Bhim Singh Yadav much before 2004 @ Rs. 726/ per month and by saying so that one additional room was given on rent to the appellant in year 2004 after she purchased the property @ Rs. 3000/ per month means that there were two separate tenancies of two different portions of suit property. Thus the rent of each property is less than Rs. 3500/ per month and as such, the suit is barred by the provisions of section 50 of Delhi Rent Control Act . Ld. counsel for appellant also placed reliance upon judgment passed by Madras High Court in (1987) 1 MLJ 430 Janab KMA Abdul Khader & Anr. Vs. P. Palaanisamy Nadar and Sons wherein it was observed that " the landlords being the same and the tenant being the same, RCA No. : 15/2013 8/14 payments of the rents in an aggregate sum will not be a decisive factor to spell out a single tenancy in respect of all the buildings which have different door numbers " . Per contra, it was the submission on behalf of respondent /plaintiff that the additional room let out in year 2004 was not separate tenancy but the composite tenancy and the rent was also being paid by the defendant @ Rs . 3726/ per month taking both the tenancies as consolidated and not the separate tenancies. In the authority placed reliance upon by Ld. counsel for appellant, the petition had been filed by the landlords as the tenant had sublet the premises to other respondents. The landlord had filed petition seeking for eviction urging various grounds wherein the findings as recorded above came to be passed and also for the reason that as per the schedule of property set out in the petition, it consisted of five door numbers which were the subject matter of demise at different points of time and it was not established at any particular point of time that they were covered by single tenancy agreement, therefore it was observed that on the facts of the case, it could not be stated that different users of different door numbers will entail eviction of the tenant from the other door numbers also, when it had come out in evidence that different door numbers and properties, were the subject matter of demise at different points of time ". Apparently, the abovesaid is not the case in the instant matter . Rather another authority quoted in the authority (supra) i.e. D. Rukmani Ammal & Ors. Vs. V.K. Izudden wherein the premises consisted of two doors numbers and demised to a single tenant and further structurally the two door numbers were situated RCA No. : 15/2013 9/14 in such a proximity and other physical features established such a nexus so as to treat them as a single unit and let out as such to a single tenant and in those circumstances, it was held that the tenant was not put to prejudice by the process of a single petition for eviction". The abovesaid observation rather goes against the case of appellant/defendant himself.
13. Ld. counsel for respondent/plaintiff has also placed reliance upon 181 (2011) DLT 255 S.N. Sheopuri Vs. Fab India Overseas P. Ltd. wherein also the argument was that the different tenancies commenced on different dates containing different rates of rent , therefore were based on different cause of action and there could not be joinder of those causes of action in a single suit when it was observed that no separate rent receipts were produced in respect of the six different portions of the premises for any period or even one month. The legal proposition in this regard, therefore appeared to be that even if a property or accommodation is let out for two different purposes, court would not be justified in splitting tenancy and creating separate transactions unless permitted by law.
14. In the authority (supra), another case Hira Lal Kapur Vs. Prabhu Choudhary ( 1988) 2 SCC 172 was also quoted wherein Hon'ble Supreme Court went so far to say that if portions of the premises are occupied by separate individuals with the approval of the landlord who receives amounts separately from each of them, as long as the original tenancy was created by one of them, for the whole premises, and a portion was later occupied by RCA No. : 15/2013 10/14 another person, the law would recognize one tenancy between the landlord and the original tenant, and the court cannot split the tenancy. Therefore regardless of the fact that originally one premises was let out in favour of defendant, who was given possession of different portions later, the conduct and intention of the parties (whose relationship in respect of all the premises, was common, and all the premises being part of the same suit property) was to create a single indivisible tenancy" .
15. The instant matter rather stands on better footing . The landlady being the same who had let out the additional portion to the appellant /defendant after having purchased the entire premises from the original owner/landlord, the tenant being the same and the payment of rent also as already observed paid in aggregate, is only suggestive of the existence of single tenancy in respect of both the portions. The rent of the suit property in these circumstances being Rs. 3726/ per month, bar u/s 50 of DRC act is not at all attracted.
16. The plaintiff having been able to prove on record, her having purchased the suit premises from previous landlord Sh. Bhim Singh Yadav and the notice sent to defendant/appellant for non payment of rent and termination of the tenancy, plaintiff/respondent was rightly held entitled to get possession of the suit premises from the appellant/defendant. Finding of Ld. trial court on both these issues are accordingly affirmed.
17. Issue no. 3, 4 & 5: In terms of deposition of PW1, defendant had RCA No. : 15/2013 11/14 stopped paying rent w.e.f. 1.7.2005. Appellant/defendant himself has not disputed regarding non receipt of payment of rent by the plaintiff, though sought to clarify that he had sent rent for the month of October 2005 alongwith electricity charges through cheque to the Bhim Singh but Bhim Singh refused to receive the same, therefore the defendant/appellant sent the rent for the month of October and November 2005 through Money Order, which was also refused by Bhim Singh. As such the defendant having no other option, get deposited the rent for the month of October and November 2005 in the court u/s 27 of Delhi Rent Control act, followed by sending of rent for the month of December 2005 and January 2006 also by Money Order which was again refused and consequently were again deposited in the court concerned u/s 27 of DRC Act. PW1 in her examination admitted that defendant started depositing the rent amount in the court w.e.f. 1.10.2005, which deposition as observed by Ld. trial court was contradictory to her statement made in examination in chief and accordingly it was held that factum of non payment of rent by the defendant/appellant remained unproved by plaintiff. However, this court does not find any contradiction in the statement of PW1 in this respect . PW1 stated about defendant having stopped paying rent w.e.f. 1.7.2005 and had not disputed regarding defendant's depositing rent in the court. The fact remains that PW1 had claimed amount of rent @ Rs. 3726/ per month whereas the amount deposited before the court in petition u/s 27 of DRC Act was only Rs. 726/ per month. Defendant in terms of his own admission had offered the rent @ RCA No. : 15/2013 12/14 Rs. 726/ per month which also was deposited by him before the court in petition u/s 27 of DRC act and it is not the case that he had offered/paid or deposited the entire amount of Rs. 3726/per month. Plaintiff in these circumstances having not received the entire amount of rent payable is also held entitled to get the rental amount @ Rs. 3726/ per month w.e.f 1.7.2005 per month till 30.11.2005. Amount deposited by defendant/appellant in petition u/s 27 of DRC act shall be liable to adjusted in the entitlement of plaintiff/respondents as above.
18. Plaintiff/respondent has also claimed damages @ Rs. 7000/ per month while stating that the property in question could easily fetch the said rent as per prevailing market rent in the area. Though it is correct that no evidence was led by plaintiff to prove the said fact . However again the fact remains that the defendant/appellant himself has admitted that the rent was increased regularly. Hence, plaintiff/respondent shall be at least entitled for the yearly increase in the rental amount. The tenancy of the appellant/defendant having already terminated, he continues to be in possession of the property not as a tenant but unauthorized occupant, and therefore is liable to compensate the plaintiff/respondent for the same. In these circumstances, the damages @ Rs. 5000/ per month are held to be reasonable amount payable by appellant/defendant to respondent/plaintiff w.e.f 1.12.2005 till realization.
19. Plaintiff/respondent has further claimed interest @ 18% p.a. on the amount due towards the plaintiff. Since the plaintiff/respondent has been RCA No. : 15/2013 13/14 deprived of the rental amount due towards her, interest is also awarded on the amount of rent and damages @ 8 % p.a. Findings of Ld. trial court with respect to these issues are accordingly set aside.
20. Relief: Having discussed as above, findings of Ld. trial court with respect to issues no 1 & 2 are affirmed whereas findings with respect to issue no. 3 to 5 are modified as above. Appeal is disposed off in above terms. Decree sheet be drawn accordingly. TCR alongwith copy of this judgment be sent back to the trial court. Appeal file be consigned to record room.
Announced in Open Court
on 04.06.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
RCA No. : 15/2013 14/14