Delhi District Court
Mahender Kumar vs Suraj P. Chauhan on 7 June, 2019
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
RCA No. 12/18
1. Mahender Kumar
2. Pooran Kumar
3. Dharmender Kumar
All S/o Late Sh Nathu Ram
R/o H.No. 2686, Main Bazar,
New Delhi.
..........Appellants
Versus
1. Suraj P. Chauhan
S/o Late Sh Charan Singh
R/o WZ 154, Village Khampur
New Delhi
2. Ram Kumar Chauhan
S/o Late Sh Charan Singh
R/o WZ 154, Village Khampur
New Delhi
3. Tej Prakash Chauhan
S/o Late Sh Charan Singh
R/o WZ 189E/1, Village Khampur
New Delhi
4. Raj Kumar Chauhan
S/o Late Sh Charan Singh
R/o WZ 189/E, Village Khampur
West Patel Nagar, New Delhi
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 1 /37
5. Chander Prakash Chauhan
S/o Late Sh Charan Singh
R/o 3090/35, Bedan Pura
New Delhi-05
6. Rajesh Kumar
S/o Late Sh Pratap Singh
R/o WZ 154, Village Khampur
New Delhi
7. Sudhir Kumar
S/o Late Sh Pratap Singh
R/o WZ 154, Village Khampur
New Delhi
8. Smt Bala Devi
W/o Late Sh Pratap Singh
R/o WZ 154, Village Khampur
New Delhi
9. Mrs Santosh Chawla
R/o H No 2631, Main Bazar,
Shadipur, New Delhi
..........Respondents
Date of institution: 13.02.2018
Date of Judgment: 07.06.2019
JUDGMENT
1. Appellants/Defendants have assailed the impugned judgement and decree dated 31.05.2014 in case titled as Suraj P. Chauhan & Ors. Vs. Santosh Chawla & Ors whereby suit for ejectment/recovery of possession alongwith recovery of mesne RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 2 /37 profits/damages filed by plaintiffs/respondents was decreed. The parties shall be referred by their status as appearing before the Ld Trial Court.
2. Chaudhary Raghunath Singh was owner of various tracts of land including land bearing Khasra No. 424 (Predecessor in interest of plaintiffs) died in the year 1973 leaving behind two sons namely Chaudhary Charan Singh and Pratap Singh.
3. Chaudhary Charan Singh and Pratap Singh died in the year 1994 and 2004 respectively.
4. Chaudhary Charan Singh left behind Suraj P. Chauhan, Ram Kumar Chauhan, Tej Prakash Chauhan, Raj Kumar Chauhan and Chand Prakash Chauhan whereas Late Pratap Singh left behind Rajesh Kumar and Sudhir Kumar (Sons), Bala Devi (Wife). It is also pleaded that female LRs of Pratap Singh have relinquished their respective shares. Therefore, all LRs of Charan Singh and Pratap Singh are Plaintiffs in the present case.
5. The case as per plaint is that Chaudhary Raghunath Singh entered into lease agreement in respect of a piece of land carved out of Khasra No. 424, Village Khampur, New Delhi admeasuring 100 Sq Yards with Saudagar Mal and Gopal Dass S/o Sh Ramji Lal @ Rs.
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 3 /37 27 per annum from 18.05.1964 to 09.10.1976 vide Lease Deed registered with office of Sub Registrar, Delhi vide Registration No. 5357, Book No.1, Volume No. 1107 at page No. 37-39 @ Rs. 27 per year vide Ex.PW1/2.
6. It is the case of plaintiffs that consequent to the expiration of lease in respect of the aforesaid land in 1976, the lease was never renewed and therefore defendants have no right, title or interest in respect of the land arising out of Khasra No. 424, situated in revenue Estate of Village Khampur Raya, Delhi.
7. It is also stated averred that eviction proceedings under Delhi Rent Control Act was also initiated however subsequently eviction proceedings were withdrawn by plaintiff/ respondent no.1 to
8.
8. Plaintiffs sent a legal notice dated 23.10.10 requiring defendants to handover the vacant possession of land to the plaintiffs by removing the super structure built in the property bearing No.XVII/2686, measuring 100 Sq Yards, Khasra No. 424, Village Khampur Raya and despite service of legal notice, defendant did not handover the possession of suit property. Plaintiff claimed mesne profit @ Rs 20,000 per month.
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 4 /37
9. Plaintiff thus on the basis of above, filed a suit for recovery of possession and mesne profits/damages etc.
10. Defendant No.1/respondent no.9 in her written statement pleaded that she is not the tenant rather she is the owner. She sold the suit property to father of defendant No.2 to 4 vide Registered GPA, Agreement to sell, Affidavit, Receipt dated 4.8.97 in favour of Nathu Ram (father of defendant No.2 to 4) and as such they are the owners of the property. Objections of misjoinder/ non joinder of parties was also taken. Other objection was that proper court fees was not filed. Pertinently, paragraph 6 of the plaint was not denied. (Paragraph no. 6 of the plaint is basically the averment to the effect that a piece of land carved out of Khasra no.424 was let out to Saudagar Mal and Ramji Lal by Late Chaudhary Raghunath Singh). It is averred in the written statement that Raghunath Singh entered into a lease agreement for letting out a piece of land out of Khasra No.424, situated in the area of village Khayampur Raya, New Delhi and the said piece of land was leased out to Saudagar Mal and the said lease was registered with the office of Sub Registrar, Delhi on 18.05.1964 (Paragraph no.6 of the written statement). Defendant No.1 denied the receipt of legal notice whereby tenancy in respect of suit property was terminated. An objection was also taken that value of the suit property is more than Rs 50 Lakhs. Defendant No.1 further denied that plaintiff is entitled for any damages.
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 5 /37
11. Common Written Statement was filed on behalf of Defendant No. 2 to 4. Defendant No.2 to 4 denied that there was any landlord- tenant relationship in between plaintiffs and defendants. Defendant No.2 to 4 took the plea that their father was the owner of the property and same was purchased from defendant No.1. Plea of Limitation was also raised. It is also stated that an eviction petition was also filed before Additional Rent Controller (It is an admitted fact that the said eviction petition has been withdrawn by the plaintiffs herein). The value of Suit property is more than Rs 50 Lakhs and therefore Court does not have jurisdiction to entertain and try the present suit.
12. It is averred in paragraph no.6 of the Written statement that Raghunath Singh entered into a lease agreement for letting out a piece of land out of Khasra No.424, situated in the area of village Khayampur Raya, New Delhi and the said piece of land was leased out to Saudagar Mal and the said lease was registered with the office of Sub Registrar, Delhi. In Paragraph 9 of the written statement, it was averred that " It is denied that admittedly after the expiry of lease Deed in the year 1976 neither Raghunath Singh nor his successor in interest has taken any steps for the renewal of lease deed. Defendant No. 2 to 4 asserted themselves to be the owner of the suit property. Defendants further questioned the legal notice dated 23.10.2010 by RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 6 /37 contending that defendants are the owner of the property and so there is no question of removal of super structure built on the property bearing No.XVII/2686, Village Khampur Raya, Delhi.
13. On the basis of pleadings, the following issues were framed ;
1. Whether the plaintiff has no locus standi to file the present suit ? OPD
2. Whether the suit of the plaintiff is barred by Limitation ? OPD
3. Whether the suit is bad for non joinder and misjoinder of necessary parties ? OPD
4. Whether the suit is improperly valued for the purpose of Court Fees and jurisdiction ? OPD
5. Whether the Plaintiff is entitled to Recovery of Possession, as prayed for ? OPP
6. Whether the Plaintiff is entitled to Recovery of Damages/Mesne Profits @ Rs 20,000/- p.m. as prayed for in the plaint ? OPP
7. Relief, if any
14. The Ld. Trial Court decreed the suit in favour of plaintiffs and with regard to issue No.1 to 4, it was held by Ld Trial Court that defendant no.1 to 4 did not lead any evidence and therefore issue No. RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 7 /37 1 to 4 were decided against defendants. (It is pertinent to mention that review petition was filed by the defendant no.2 to 4 with regard to the fact that no finding has been given in respect of issue no.2 to 4 was dismissed.)
15. The Ld Trial Court decreed the suit filed by plaintiff on the following grounds :
a. Plaintiff have proved the Jamabandi Ex.PW-3/1 in which the name of plaintiff has been mentioned as owner. b. Ld Trial Court also noted that vide Registered Lease deed dated 18.05.1964, Saudagar Mal and Gopal Dass were only having the leasehold right in respect of the land and the owner of the land underneath was Late Raghunath Singh. Therefore, only leasehold right has accrued to Defendant No.1. No ownership right has been transferred to defendant no.2 to 4. Ld Trial Court discussed number of documents as filed by Defendants in support of the case.
c. Ld Trial Court also noted that vide Ex DW-1/5 by which property was transferred to Defendant No. 2 to 4 has mentioned that only lease hold right in respect of the property along with the structure was sold to defendant No.2 to 4 and therefore no ownership right has been conferred on Defendant No.2 to 4.
d. Ld Trial Court recorded a finding to the effect that lease having expired in 1976, the tenancy has become month to month and RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 8 /37 therefore same was terminable by notice under section 106 of Transfer of Property Act. Defendant No.1 can only inherit the lease hold rights but in the absence of agreement, the lease hold rights cannot be transferred. It was also held by Ld. Trial Court that since plaintiff has proved that Chaudhary Raghunath Singh was the owner of the land underneath and Saudagar Mal and Gopal Dass to whom the right has accrued were only having lease hold rights of the suit property.
e. Being a monthly lease, it is terminable with notice of one month and since notice has been served on defendants and further more service of summons can be considered as notice under Section 106 of Transfer of Property Act.
f. Ld Trial Court recorded that plaintiff has failed to proved that he is entitled for damages @ Rs. 20,000 per month although a witness was examined on behalf of Plaintiff i.e. PW-2 who deposed that rental is more than Rs. 50,000/- however Ld Trial Court granted damages on the basis of annual increase on the rent @ 15 percent from 24.12.2007 @ Rs 27 per month.
16. Defendants/Appellants have also filed the review against the impugned judgment dated 31.5.2014 on the premise that Ld Trial Court has not returned any finding with regard to issue No. 1 to 4. The review petition filed by defendant/appellant was also dismissed by Ld. RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 9 /37 Trial Court on 16.01.2018. Ld Trial Court while dismissing the review petition was pleased to hold that finding as recorded in respect of issue no. 1 to 4 cannot be read in isolation to finding as recorded in respect of issue no. 5 and 6 and on this ground, the review petition against judgment dated 31.5.2014 was dismissed.
17. The appellants/defendants have preferred the appeal on the following grounds ;
i. Full opportunity was not provided to the appellants/defendants by Ld Trial Court.
ii. Ld. Trial Court gravely erred in recording the finding that no evidence has been led by the Appellant in respect of issue No. 1 to 4 and therefore issue no. 1 to 4 were wrongly decided against the appellants/ defendants.
iii. Appellant/Defendants took the stand that plaintiffs have no locus standi to file the present suit.
iv. The suit filed by the plaintiff is barred by limitation and no finding has been returned by Ld Trial and issue of Limitation was not dealt by the Ld Trial Court.
v. Issue No. 3 that suit is bad for misjoinder and non joinder of the parties was clearly pleaded and even deposed by witness in his evidence and in the absence of any cross examination, the issue of misjoinder/non joinder of parties stands proved in favour of the defendants.
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 10 /37 vi. Other legal heirs have not been impleaded so the suit filed by the plaintiff is bound to fail and even the relinquishment deed was not filed by the plaintiff so the suit filed by plaintiff is bound to fail. vii. The Ld Trial Court has wrongly decided the issue of jurisdiction as defendant has clearly deposed that value of the suit property is more than Rs 50 Lakhs and even PW-2 deposed to the effect that value of suit is more than Rs 52 Lakhs therefore, Trial Court did not have jurisdiction to entertain and try the suit and in view of the admission of plaintiffs' witness, issue no. 4 should have been decided in favour of the defendants.
viii. Ld Trial Court failed to consider that plaintiff should have valued the suit for purpose of possession under section 7(v) (e) of the Court Fees Act.
ix. Ld Trial Court failed to consider that basis of the suit was that defendant are rank trespasser not on the basis of landlord-tenant relationship and therefore suit should have been filed at the market value for the purposes of relief of possession. x. Because plaintiff failed to prove that Raghunath Singh was the owner of the suit property and suit filed by plaintiff is liable to be dismissed.
xi. Ld Trial Court failed to appreciate that respondent no.9 cannot transfer the lease hold rights, the Ld Trial Court has indirectly declared the document Ex DW-1/1 to Ex DW-1/7 as null and void without providing any opportunity to appellants.
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 11 /37 xii. No valid notice of termination was not given. Even the notice was not proved. Section 106 of Transfer of Property is not attracted in the present case.
xiii. Ld Trial Court failed to consider that father of appellants made construction in the suit property as an owner on the basis of legally valid documents.
xiv. Ld Trial Court has wrongly decided the review application filed by the defendants/appellants.
18. I have heard Mr Shalabh Gupta, Ld Counsel for Appellants and Mr Rajan Chaudhary, Ld Counsel for Respondents. I have also perused the written arguments filed by the parties. I have also perused the appeal file and the record of Ld Trial Court.
19. Ld Counsel for the Appellants has relied upon the following judgments:
i) Municipal Board , Sumerpur vs Kundanmal and ors, Civil Appeal No. 460/2008; decided on 21.04.2017;
ii) Raythara Sahakari Bank Ltd Vs Chandrakala R. Das; Civil Appeal no. 4724 of 2006;
iii) Om Prakash Gupta vs Rattan Singh and Anr ; Civil Appeal No.541 of 1962 date of decision 17.12.1962;
iv) Jagdish Singh Arora vs Jaswant Rai and ors RFA No. 503/2007;
date of decision 22.07.2009;
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 12 /37
v) Sri Anatswami vs Smt Radha Srinath and anr; Regular First Appeal No. 389/06 passed by Hon'ble Karnataka High Court;
vi) Biswanath Agarwalla vs Sabitri Bera SLP (Civil )No. 10194/2007;
vii) Renu Nagar vs Anup Singh Khosla and anr 156(2009) DLT723;
viii) Mahesh Bhatt vs Union of India 156(2009) DLT725; date of decision-23.01.2009;
ix) Gauri Shankar s Smt Shakuntla Devi and ors AIR1968 PH 302;
x) Anathula Sudhakar vs P. Buchi Reddy (dead) IV (2008)SLT 724; Civil Appeal no. 6191 of 2001;
xi) Smt Bhimbai Mahadeo Kambekar (D) Through Lrs vs Arthur Import and Export Company and ors; Civil Appeal no. 1330/2019 SLP (C) No. 9394 of 2012;
xii) Jeevan Diesels and Electricals Ltd VS M/s Jasbir Singh Chadha (HUF) and anr; 182(2011) DLT402;
xiii) Union of India vs D L Khillon; 182(2011) DLT407(DB), decided on 09.08.2011;
xiv) B. Janakiramaiah Chetty vs A K Parthasarthi & Ors III(2003) SLT69; decided on 03.04.2003.
xv) State of MP & Ors vs KCT Drinks ltd III(2003)SLT72, decided on 04.03.2003;
xvi) Nirmala Devi vs Gopal Krishan and ors CR No. 7 of 1979; decided on 29.01.1982;
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 13 /37
20. Ld Counsel for the respondents have relied upon the following judgments ;
i) Smt Shanti Devi vs Amal Kumar Banerjee AIR 1981 SC 1550L (1981)2SC 199;
ii) Ashok Chaudhary vs DR (Mrs ) Inderjit Sandhu and anr 1998 IVAD Delhi 917, 1998(47)DRJ575;
iii) Chum Lal Vs Sukh Devi etc 1978 RLR 58;
iv) Swadesh Ranjan Sinha vs Haradeb Banerjee AIR1991 Cal 299, (1991) 1 CALLT 223 HC, 1991(1) CHN183;
v) Sky Land International Pvt Ltd Vs Kavita P Lalwani RFA No. 697/2010; decided on 25.05.2012
vi) Biswanath Agarwalla vs Sabitri Bera SLP (Civil )No. 10194/2007; decided on 04.08.2009;
vii) Renu Nagar vs Anup Singh Khosla and anr 156(2009) DLT723
viii) Gauri Shankar vs Smt Shankutla Devi and ors AIR 1968 P H 302
ix) Harjit Grewal and ors vs Dr Vinod Kumar Batra and ors RS No. 168 of 1992; date of decision 16.04.2009.
x) Chiranji Lal Ramji Dass and ors Vs Pyare Lal Sharma RSA No. 290/07 and 291/07
21. One of the grievance of Appellants/Defendants is that Ld Trial Court has not given any finding in respect of issue No.1 to 4 by noting that Defendants did not lead the evidence on this score. Per RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 14 /37 Contra, Ld Counsel for Respondent submitted that findings recorded in respect of issue no. 5 to 7 effectively covers the issue raised in issue No.1 to 4. It was also contended by Ld Counsel for Respondent that even otherwise sufficient material exits on record on the basis of which issue no. 1 to 4 can be decided by an Appellate Court. Ld. Counsel for Appellant relied upon Raythara Sahakari Bank Ltd Vs Chandrakala R. Das; Civil Appeal no. 4724 of 2006 and Municipal Board, Sumerpur vs Kundanmal and ors, Civil Appeal No. 460/2008; decided on 21.04.2017, to contend that since finding has not been given in respect of issue no.1 to 4 so the case should been remanded back to trial court for determination.
22. Before adjudicating on this issue, it would be relevant to take note of Order XIV CPC which provides that Court is required to pronounce judgment on the all the issues.
23. Order XLI rule 23 provides the ground on the basis of which a case could be remanded by the Ld. Appellate Court. In this regard, the reliance is placed on the judgement of Ashwin K. Patel vs Upendra J. Patel, (1993)3SCC 161, it was held that held that Appellate Court should not remand the matter for consideration to Ld Trial Court, when the Appellate Court on the basis of the evidence and material on record could consider and dispose of an issue. In my view, the appeal can be disposed by this court without remanding the RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 15 /37 matter for disposal to the Ld. Trial Court as sufficient evidence and material exist on record on the basis of which Issue No. 1 to 4 can be decided. I must hasten to add that although Ld. Trial Court has not given any finding on issue no.1 to 4 but the findings on issue No.5 to 7 has effectively adjudicated the issue No. 1 to 4. However, in order to obviate an grievance of the appellant, Issue No. 1 to 4 has been taken up for consideration.
24. The issue No.1 & 2 as framed by Ld Trial Court are being taken up together for the discussion. The issues are ;
Whether plaintiff has any locus standi to file the present suit. ? OPD Whether the suit is bad for non joinder and misjoinder of necessary parties ? OPD The scope and nature of inquiry, which is required to be undertaken to examine the title of the landlord in eviction matter is concerned stands settled in the case of Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375, in which it was held that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. It was held that ownership being a relative term, the import whereof depends on the context in which it is used. It was held that in rent control legislation, the landlord can be said to be the owner if he RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 16 /37 is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. It was held that proof of ownership in landlord-tenant litigation may or may not be enough to successfully sustain a claim for ownership in a title suit. Therefore, in suit for eviction on the basis of landlord- tenant relationship what is to be seen as to whether a person seeking recovery of possession has an adequate title to recover possession.
25. Respondent No.1 to 8 /Plaintiffs being the legal heir of Chaudhary Raghunath Singh are entitled to maintain the suit for eviction and therefore, plaintiffs are competent to maintain the suit which is apparent from the description of the complete pedigree as provided by them and noted by Ld. Trial Court in paragraph 10 (B)
(ix) at page 20 of impugned order. Reference to plaint and testimony of PW-1 provides sufficient basis that plaintiffs have locus standi to institute the suit for eviction against appellant/defendant.
26. In Dhannalal vs. Kalawathibai , it was held in paragraph 16 as under :
"16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 Kanta Goel v. B.P. Pathak, (1977) RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 17 /37 2 SCC 814 and Pal Singh v. Sunder Singh, (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit.
When the property forming the subject-matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co- owners if such other co-owners do not object. In Sri Ram Pasricha case reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 18 /37 English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)
(f) of the W.B. Premises Tenancy Act, 1956."
27. In Om Prakash & Anr versus Mishri Lal (Dead ) Represented by his LR. Savitri Devi in Civil Appeal No. 4309 of 2017 decided on 21.3.2017, wherein it was held as under :
It is no longer res integra and is settled by this Court in Sri Ram Pasricha vs. Jagannath and Ors., (1976) 4 SCC184, Dhannalal vs. Kalawatibai and Ors. (2002) 6 SCC 16and India Umberalla Manufacturing Co.
and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.) and Ors. (2004) 3 SCC 178 that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. The judicially propounded proposition is that when the property RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 19 /37 forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto.
28. The Ld Trial Court while deciding the issue No.5 and 6 has dealt with the issue as to whether plaintiff has locus standi to file the present suit and whether all parties have been impleaded as party in the case in paragraph 10 (B) (x) at page 20 in which it was held that:-
"x. There is no dispute to the pedigree abovementioned, Now as far as the non impleadment of daughters of Late Pratap Singh is concerned, the plaintiffs have submitted that the female LRs OF Late Chaudhary Pratap Singh have relinquished there share RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 20 /37 in favour of plaintiff no. 6 and 7 and there is nothing to doubt the same. Moreover, they have not come up with any claim till now, therefore, their presence is not required.
xi. Further plaintiffs have proved Jamabandi Ex PW-3/1 in which the name of plaintiffs have been mentioned as owners of the property".
29. In view of the abovementioned dictums of Hon'ble Supreme Court of India, a suit for eviction can be maintained by all or any co owner if there is no disagreement in between them. As suit property has been let out by Chaudhary Raghunath Singh, the pedigree chart as noted by Ld Trial and the realationship of plaintiffs with Raghunath Singh as referred above would clearly indicate that Plaintiffs are Grandchildren of Raghunaath Singh and they being co owners have joined together to file present suit and even a categoric statement has been made that sisters have relinquished their share in favour of plaintiff No. 6 and 7 and therefore, there is no legal impediment in filing the present suit. Moreover, nothing has come in evidence or in the pleadings of the party that any co owner has any objection to the very continuance of the present proceedings and therefore, the objection on this count is dismissed.
30. Accordingly, plaintiffs/respondents have locus standi to RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 21 /37 institute the present suit and suit filed by plaintiff is not bad for misjoinder of necessary parties. Consequently, issue No. 1 and 2 are decided against defendants/appellants and in favour of respondent/ plaintiff.
31. Other objection of the Appellant is that suit filed by plaintiff is barred by limitation. The discussion on this aspect would cover the issue of limitation as raised by defendant.
32. The case of defendant is that since lease has expired 1976 whereas present suit has been instituted in the year 2010 and therefore suit filed by plaintiff is barred by limitation in view of Article 65 of Limitation Act, 1963. In order to consider this issue, it would be worthwhile to refer to the judgement of Hon'ble Supreme Court in Anjanappa v. Somalingappa, (2006) 7 SCC 570, the Supreme Court held that mere possession, howsoever long, does not necessarily mean that it is adverse to the true owner. The relevant paragraph of the judgement is being reproduced as under ;:-
"14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 22 /37 possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession: "14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 23 /37 possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v.Balwant [(1995) 2 SCC 543, p. 554 :
AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14-15.)"
15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar[(1865) LR 1 Eq 29 : 35 Beav 171 : 55 ER 860] .) Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 24 /37 lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxton [(1880) 14 Ch D 537 : 43 LT 88] .)" (Emphasis supplied)
33. Written Statement as filed by defendant would clearly indicate that defendants have taken ambivalent stand with regard to their status in the suit property. The defendant have tried to make out the case that they were the owners of the suit property by virtue of chain of documents vide Ex.DW1/1 to Ex.DW1/12.The defendants have also admitted the lease deed vide Ex.PW1/2 as per which terms of lease has expired in the year 1976 and they have admitted that in paragraph 6 of the written statement that suit land was let out by RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 25 /37 Chaudhary Raghunath Singh whereas the subject suit was filed on 23.10.2010. The question that arises for consideration as to whether the long stay of the defendants could be construed as a case of adverse possession. Mere long stay would not suffice for the purpose of the case as defendants have to assert the date or time on the basis of which they assert the possession adverse to that of plaintiff or the owner. Perusal of the record reveals that admittedly the lease of the suit property has expired in the year 1976 and defendant or their predecessor in interest continued in possession of the suit property. It has not been established from the material available on record that defendants have asserted their title in respect of the suit property hostile to that of plaintiffs or their predecessor in interest and the documents Ex DW-1/1 AND DW-1/2 records that " Executant is owner and possession of leasehold rights with structure" and it mentions the name of Late Raghunath Singh is an owner of the land. Even documents Ex DW-1/3 to DW-1/5 mentions the name of Chaudhary Raghunath Singh being the lessor and owner of the land.
34. Thus, Ex.DW1/1 and Ex.DW1/5 as relied by defendant in support of its case demolishes the case of defendants as it clearly recognized that Chaudhary Raghunath Singh being the lessor and owner of the land when the lease hold rights were alleged to be transferred to the defendants and on the basis of these documents it cannot be said that father of defendant no.2 to 4 or defendant no.1 has RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 26 /37 become the owner of suit property and findings in this regard as recorded by Ld. Trial Court in paragraph 10 (B) (xii) of impugned judgment does not call for any interference.
35. It is pertinent to mention defendants have relied upon Ex DW-1/8, which is a sale deed executed in respect of super structure in favour of the Saudagar Mal and Gopal Dass to the extent of 2/3 rd and 1/3rd respectively. In this Document Ex DW-1/8 records the name of Shri Raghunath Singh as owner of the land, a finding recorded by Ld Trial Court. Ld Trial Court painstakingly even discussed the Ex DW- 1/5 in the impugned judgment and thus on the basis of these documents no ownership right can be conferred on the defendants as asserted by them.
36. It is a well settled law that when a tenancy has come to an end by efflux of time, the tenancy shall continue to be month to month tenancy for the purpose of lease as per Section 106 of Transfer of Property Act. Hence, mere possession of the tenant or the person deriving any right from such tenant to continue in the suit property after the expiration of lease for a considerable length of time would not make him the owner of the suit property unless he has set up the adverse title against such an owner.
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37. In the present case, plaintiffs sent legal notice dt 23.10.2010 by bringing curtain to the relationship of landlord and tenant and it is this plea that has to be reckoned for the purposes of limitation. The subject suit was filed on 24.12.2010. Therefore, the suit has been filed within a period of limitation. It is also relevant to note that during the course of trial, the plaintiff has filed counter foil of rent receipt vide Ex.PW1/3 without any opposition from the defendant and same has been proved and exhibited without any opposition by defendants. Therefore, it stands established that even till the year 2005, defendants have acknowledged their status as tenant to the suit property. Therefore, suit filed by plaintiffs/ respondents is within limitation.
38. Other plea of the appellants is that they are not the tenant in the suit property and therefore suit should have been valued as per section 7(v)(e) of Indian Court Fees Act on the basis of market value of the suit property i.e. Rs 50 Lakhs and plaintiff could not have valued the suit on the basis of valuation under Section 7(xi)(cc) of Court Fees Act.
39. In order to appreciate the contention of Ld. Counsel for Appellant, it would be apposite to consider Section 7(xi)(cc) Court Fees Act,1870 as per which in a suit seeking recovery of possession from tenant, the suit has to be valued on the basis of value of one year RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 28 /37 rent whereas suit based on the title seeking recovery of possession under Section 7(v) (e) Court Fees Act, the suit has to be valued on the market value of Suit property.
40. In Lajwanti VS Bahadur Singh 1998(1) RCR 47, the question for consideration was that what would be the valuation in a suit for recovery of possession against LRs of deceased tenant. It was held that suit is to be valued as per section Section 7(xi)cc Court Fees,1870, it was held by their Lordships that when a statutory tenant dies and if his heirs are in possession and suit would be suit for possession by a landlord against tenant and it would remain the suit for recovery of possession of the premises (tenanted premises) and it shall retain its colour, when the possession is to be recovered from LRs of deceased tenant. More importantly in paragraph 7 it was noted "To accede to the contention of Mr. Sabharwal would put a premium on the unauthorised occupation by the heirs because in many cases the high rate of court fees would act as deterrent and be prohibitive for filing a suit if the advalorem court fee has to paid on the market value of the property. It appears to us that there is no justification for asking the plaintiff to pay court fee on the market value under section 7(v)(e) of the Court fees act and why he should not pay under Section 7(xi)(cc)of the Act when all that the plaintiff seeks to recover is the premises which had one time given on the tenancy to deceased statutory tenant."
RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 29 /37 Thus, based on the above reasoning, it can be safely deduced that in a suit for recovery of possession against a tenant and/or unauthorised occupant. If an unauthorised occupant is found deriving or claiming title from such a tenant, in such an eventuality, a landlord/owner of tenanted property cannot be compelled to file suit on the basis of valuation under section 7 (V) (e) of Court Fees Act against such person who claims title from such a tenant. The suit has to be valued as per Section 7(xi)cc of the Court Fees Act, 1870.
41. The fact in hand would reveal that case of defendant no.2 to 4 is that their father has purchased suit property from defendant no.1 whereas defendant no.1 asserted that she become owner of the property by virtue of Relinquishment deed executed by all Legal heirs of Ramji Lal vide Ex DW-1/12. It is a matter of record that lease deed Ex.PW1/2 was executed in between predecessor in interest of plaintiff and predecessor in interest of defendant no.1 then defendant no. 2 to 4 cannot be claim better title than their the predecessor in interest i.e. defendant no.1.
42. Therefore, if a tenanted property/lease hold property is being held by any person, it will always retain its colour of being the tenanted or lease hold property. Therefore, the plaintiff has correctly valued the suit property in terms of Section 7 (xi) (cc) of the Court Fees Act.
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43. In Hira Lal Vs. Kali Nath (AIR 1962 SC 199) also held that objection of local jurisdiction does not stand on the same footing as that of court lacking competence to try the suit as same goes to root of the case.
44. Moreover Section 21 of Code of Civil Procedure, 1908 provides that objection pertaining to the jurisdiction of the court shall not be entertained unless it has been shown that there is a consequent failure of justice. The appellant failed to show that any prejudice was caused in any manner. Therefore, an appellate court cannot consider and objection on territorial and pecuniary jurisdiction raised before it in view of the Section 21 of CPC. Section 99 CPC provides that no decree shall be reversed on account of error or defect or the jurisdiction of the court and even otherwise as held above, the suit is properly valued for the purpose of relief and jurisdiction as per order 7 rule (xi) (cc) of Court Fees Act.
45. An objection was also taken by appellant to the effect if the Ld. Trial Court has come to the conclusion that there exist a landlord/ tenant relationship in between the parties, then suit filed by plaintiff is barred under Section 50 of Delhi Rent Control Act. Appellant has not specified the nature of objection as to how suit filed by plaintiff is barred under section 50 of Delhi Rent Control Act,1958.
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46. The objection as raised by appellant is not tenable in view of the fact appellants have claimed themselves to be the owner of suit property. As per Section 116 of Indian Evidence Act, no tenant during the subsistence of tenancy is permitted to repudiate the title of his landlord. In the written statement as well as in Evidence, defendants have never accepted their status as tenant and rather asserted that father of defendant no. 2 to 4 as owner of the suit property. In Naeem Ahmed Vs Yashpal Malhotra (deceased) R.F.A. No. 74/2002 dated 27.02.2012, it was held that if a tenant has repudiated the title of his landlord, a civil court would have jurisdiction to determine the question of ejectment. The present suit for ejectment and recovery of damages and therefore bar under section 50 of Delhi Rent Control Act is not attracted in the present case.
47. There is also another reason as to why present suit is not amenable under the provision of Delhi Rent Control Act, 1958 as lease deed Ex PW-1/2 states that a vacant piece of land was given on lease by Chaudhary Raghunath Singh(Grandfather of plaintiff) to Saudagar Mal and Gopal Dass and in order to bring it under the fold of Delhi Rent Control Act, 1958, the property as let out has to be "premises" within the meaning of section 2 (i) of Delhi Rent Control Act.
48. Hon'ble Delhi High Court in Surender Kumar vs Hari Singh and Ors RSA no. 288/2015 dated 04.08.2015 after considering RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 32 /37 number of judgments and noting the definition of "premises" as defined under section 2 (i) of Delhi Rent Control Act, 1958 held that there should be an existence of building and if no building in existence then tenancy would not be within DRC Act, 1958. Perusal of Ex.PW4/1 would show that what has been let out to Saudagar Mal and Gopal Dass, the land admeasuring 100 sq yards and it has not been mentioned that any premises or building was given on rent. Furthermore, defendants had stated that construction has been made by them in the suit property. Therefore, the present suit would not fall within the ambit of Delhi Rent Control Act, 1958 and bar of section 50 of Delhi Rent Control Act shall not apply.
49. The next contention of Ld counsel for appellants is that the Jamabandi does not confirm the title on the property. The said argument on the face of it is liable to be rejected as the suit land has been given on lease for a period of 12 years and the Jamabandhi vide Ex.PW-3/1records the name of the plaintiffs as the recorded owner by virtue of being Legal heirs of Chaudhary Raghunath Singh. It has been explained by plaintiff in his deposition that the suit land has come to them by way of an inheritance and therefore no documents in this regard has been prepared. In a suit for ejectment against a tenant, what is to be shown that there exists an adequate title in favour of the Landlord. The lease deed Ex.PW1/2 and the document Ex.PW3/1 clearly establishes that plaintiff has adequate title in respect of the suit RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 33 /37 property. It is pertinent to mention plaintiff has duly proved the execution of the registered Lease Deed Vide Ex PW-1/2 as per which the suit property i.e land admeasuring 100 Sq. Yard was leased out by Chaudhary Raghunath Singh to Saudagar Mal and Gopal Dass.
50. Moreover Ex DW-1/8 instead of establishing the case of defendant clearly records that original owner of land underneath is Chaudhary Raghunath Singh and vendee would abide by the terms of lease.
51. Thus, as rightly noted by Ld Trial Court that defendants have only purchased the lease right with structure and thus what has come in the hands of defendants is only the leasehold right of the suit property. No ownership right was ever transferred in favour of Defendants and even document Ex DW-1/5 also records the same.
52. The defendant denied the receipt of legal notice of quit under section 106 of Transfer of Property Act however as rightly noted by Ld Trial Court in its impugned judgment that service of summons can be taken as notice under section 106 Transfer of Property Act.
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53. Appellant has relied upon judgment of Om Prakash Gupta vs Rattan Singh and Anr; Civil Appeal No.541 of 1962, the same is not applicable in the present facts and circumstances.
54. The judgment of Jagdish Singh Arora Vs. Jaswant Rai and ors RFA No. 503/2007 is also not applicable as same has been passed in reference to rejection of the plaint under Order 7 Rule 11 CPC and even paragraph no.7 of the judgment rather than supporting the defendant/appellant supports the case of plaintiff/respondent.
55. The judgment of Sri Anatswami vs Smt Radha Srinath and anr; Regular First Appeal No. 389/06 is also not applicable in view of the fact that provisions of Delhi Rent Control Act, 1958 are not applicable in the present suit and the facts of the present case is distinguishable in reference to the judgment as cited.
56. The judgment of Biswanath Agarwalla vs Sabitri Bera SLP (Civil )No. 10194/2007 is also not applicable in the present case as the plaintiff/respondent was able to establish the relationship of landlord and tenant and his entitlement to seek and recover possession under Section 7 (xi) (cc) of Court Fees Act,1870.
Renu Nagar Vs. Anup Singh Khosla and anr 156 (2009) DLT723 is distinguishable in reference to the present case and is not applicable in view of the discussion as made above.
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57. Other judgments as cited by the appellant are distinguishable in reference to the present case are not applicable in reference to the present case.
58. Ld counsel for appellant has cited the judgment of Jeevan Diesels and Electricals Ltd VS M/s Jasbir Singh Chadha (HUF) and anr, in reference to the fact that issue no.1 to 4 has not been considered by Ld Trial Court. The said plea of appellant has been duly considered in this appeal.
59. Hence, the finding of the Ld Trial Court suffers from no error and is confirmed.
60. Since the rate of rent has been determined so the plaintiff was entitled for the arrears of rent and the damages as adjudicated by the Ld Trial Court in issue no.6 does not call for any interference.
61. The amount deposited by defendant/appellant vide order dated 13.02.2018 be released to the plaintiffs/respondents after the expiration of statutory period of second appeal subject to any order passed by Hon'ble High Court.
62. The appeal lacks merit and is thus dismissed.
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63. Copy of this judgment be sent to the ld Trial Court with Trial Court record.
Appeal file be consigned to record room as per law.
Announced in the Open Court on 07.06.2019 (Hasan Anzar) Additional District Judge-06 West District, THC RCA No.12/18 Mahender Kumar & Ors. Vs. Suraj P Chauhan & Ors. Page no. 37 /37