Delhi High Court
S. Pritam Singh & Ors. vs Ram Narain Vij on 1 September, 1998
Equivalent citations: 1999IAD(DELHI)785, 77(1999)DLT76
Author: Manmohan Sarin
Bench: Arun Kumar, Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
1. The appellants are aggrieved by the judgment and decree dated 3rd September, 1973, passed by the Sub-Judge, Delhi decreeing the suit for possession in favour of the respondent and against the appellants and also passing a decree for a sum of Rs. 500/- in favour of the respondent with cost of the suit.
2. The appeal was admitted to hearing on 3rd October, 1973 and the inter- im stay against dis-possession was granted. The appellants deposited the decretal amount of Rs. 500/- and also a sum of Rs. 340/- which had become due and payable at the rate of Rs. 14/- per month. The stay was made abso- lute during the hearing of the appeal and appellants were directed to pay a sum of Rs. 84/- half yearly to the respondent towards use and occupation charges for the premises in suit.
3. The respondent/plaintiff had filed the suit for possession in respect of premises No. 30/1A and 2A for recovery of Rs. 500/- claiming to be the owner of the suit property. The suit had been instituted against appellants Sh. Pritam Singh, Sh. Raja Singh and Smt. Parvati. During the pendency of the suit, Sh. Raja Singh and Sh. Pritam Singh died and the present appel- lants No. 2 to 4 being legal representatives were substituted, as the defendants.
4. The respondent claimed to be the owner of the property by virtue of Sale Certificate issued by the Rehabilitation Authorities dated 30th April, 1965. As per the certificate, respondent was declared to be purchaser of the suit property w.e.f. 16th January, 1958. The respondent has served a legal notice on the appellants calling upon them to vacate the premises in suit but to no avail . The suit was resisted by the appellants by filing written statement, wherein objection as to proper valuation of the suit premises was raised, ownership of the premises was also denied and the claim for damages was also denied. The appellants in the written statement did not admit the respondent to be the owner of the property or having acquired ownership rights from the rehabilitation department. The said written statement was filed on 20th April, 1972. The appellants denied being in unlawful occupation of the premises. Issues were framed. The respondent led his evidence. The appellants did not lead any evidence and closed their evidence. It may also be noted that the respondent died on 30th December, 1978. An application dated 25th January, 1985, was moved on behalf of the respondent informing the death of the respondent to the appellants vide an application of 25th January, 1985. CM 77/86 for bringing the legal representatives of respondent on record was allowed vide order dated 24th October, 1986 and the legal representatives of respondent Ram Narain Vij were brought on record. As noted earlier, after framing of issues, respondent led his evidence and also summoned a clerk from the rehabilitation department. The respondent duly proved on record certified copy of the Sale Deed (Ex. P-1), certified copy of the site plan (Ex.P-2) and copy of the Lease Deed (Ex. P-3). The plaintiff/respondent in his statement claimed himself to be the owner based on the documents. The appellants, who had taken objection as to mis-joinder of parties and causes, did not pursue the same when they filed the amended written state- ment. The appellants were unable to establish their claim of being tenants in possession. The appellants could not demonstrate from the file of the rehabilitation ministry in respect of the plot, that there was any allot- ment in their favour. The learned Sub-Judge found that the appellants claim of being in possession since 1965 could not be established on the basis of the statement of the appellant, which was said to be in the file of the rehabilitation department. The learned Sub-Judge has rightly held so. A self serving assertion cannot be regarded as proving the factum of posses- sion of the appellants. The receipts produced by the appellants of payment of damages were for the period of 1967-68 and thereafter. The learned Sub- Judge, therefore, rightly concluded on the basis of material on record and the evidence of the respondent that the appellants had failed to prove their lawful occupation prior to auction of the plot.
5. In the course of proceedings in appeal, the appellants on 29th April, 1997 moved an application (CM 1635 /94) for amendment of the written state- ment. Reply to the said application has been filed. The appeal was taken up for hearing on 7th September, 1998. The learned Counsel for the appellants, Sh. B.L. Chawla had appeared and made submission in support of the appeal. He sought time to address further arguments on the application for amend- ment to the written statement. This request was opposed by the learned Counsel for the respondent. He urged that whenever the appeal came up for hearing, the appellants made such requests either on the ground of settle- ment or on the ground of non-availability of the Counsel. However, in the interest of justice, the case was adjourned to 8th September, 1998, when initially in the forenoon none was present on behalf of the appellants. However, the appellant, Pritam Singh, was present in the afternoon but his Counsel did not appear. Opportunity was granted to the appellants to state their case. After hearing the appellants and Counsel for respondents, the judgment was reserved. In the application for amendment, it is claimed that appellants inadvertently omitted to take objection of limitation and the lack of jurisdiction in the Trial Court. The plea of acquiring and holding premises by adverse possession as also the entitlement of the appellants to allotment of the suit property was sought to be raised. The objections and pleas being legal in nature could be raised at the appellate stage, it was urged that the amendments ought to be permitted.
6. We find that in the written statement dated 20th April, 1972, the plea taken on behalf of the appellants was that they were in occupation of the suit property and were not unlawful occupants. The appellants also denied that the respondent was the owner or had acquired ownership rights. Apart from this, the valuation of the suit was challenged. The amendments now sought were opposed as being mala fide and intended to delay and obstruct the course of justice. The original written statement was filed as far back as on 20th April, 1972. The present amendment application had been moved in 1994 i.e. after nearly 20 years. Besides all the pleas, which are now sought to be taken were available to the appellant at that time. There is considerable merit in the submission of the respondent that the amendment has been sought mala fide and belatedly, with the ulterior object of de- feating the ends of justice and to somehow delay and stultify the legal proceedings. The application for amendment is highly belated and as noticed above is mala fide and deserves rejection on this ground. The merits/demer- its of the amendments sought are not to be considered at the time of allow- ing or dis-allowing the application. However, we find that in this case even if the legal pleas which are sought to be raised were considered, it would not make any difference since these are devoid of merit. The objec- tion as to limitation is vague and has not been specifically stated and explained. In any case, the suit having been instituted in the year 1969 is well within time if time was to be reckoned from the issuance of Sale Certificate dated 30th April, 1965. It would still be within time, if the date i.e. January, 1958 by virtue of which the respondent became an owner in terms of the Sale Certificate was to be considered. The objection as to lack of jurisdiction is based on the assumption that the appellants are tenant in the premises in suit and, therefore, the provision of Section 50 of the Delhi Rent Control Act would apply to exclude jurisdiction of the Civil Courts. Appellants have failed to prove the relationship of landlord and tenant. Hence, this plea is of no consequence.
7. There is no evidence on record to show any allotment in favour of the appellants in the file by which the appellants could claim tenancy rights. The appellants had simply claimed to be in occupation of the premises. The appellants also simply denied the ownership of the respondent. The pleas of tenancy and that of having acquired ownership by adverse possession are mutually destructive of each other. As discussed earlier, the amendment application deserves dismissal and is dismissed. The appeal also has no merit and is dismissed.