Delhi District Court
Sh. Deepak Gupta vs . on 26 May, 2012
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
RCA No. 32/11/10
Unique ID Case No.02401C0082352010
&
RCA No. 33/11/10
Unique ID Case No.02401C0090632010
In
Suit No. 1060/2002
RCA No. 32/11/10
Sh. Deepak Gupta & Ors.
Vs.
Sh. Pardeep Kumar & Ors.
*******
1. Sh. Deepak Gupta
S/o late Sh. Gauri Shankar Gupta
2. Mrs. Madhu Aggarwal
D/o late Sh. Gauri Shankar Gupta
3. Mrs. Shobhana Gupta
D/o late Sh. Gauri Shankar Gupta
All permanent residents of :
B30, Nizamuddin East,
New Delhi110013 ... Appellants
RCA No. 32/11/10 & RCA No. 33/11/10 1/38
2
Vs.
1. Sh. Pradeep Kumar
S/o late Sh. Giri Lal (original defendant; since deceased)
S/o Sh. Raghunath
2. Sh. Pappe
S/o late Sh. Giri Lal (original defendant; since deceased)
R/o 538 XVIII, Nai Basti,
Kishan Ganj,
Delhi110007
3. Km. Mridula Gupta
(Transposed in terms of order dated 13.09.2004 of the Ld. Trial Court)
D/o late Sh. Gauri Shankar Gupta
Permanent R/o B30, Nizamuddin East,
New Delhi110013 ... Respondents
RCA No. 33/11/10
Late Sh. Giri Lal & Ors.
Vs.
Sh. Gauri Shankar Gupta & Ors. (since deceased)
*******
Late Sh. Giri Lal (since deceased)
Through LRs
RCA No. 32/11/10 & RCA No. 33/11/10 2/38
3
1. Sh. Pradeep Kumar
S/o late Sh. Giri Lal,
2. Sh. Pappe @ Rakesh
S/o late Sh. Giri Lal,
Both R/o : 536/1, Nai Basti
Kishan Ganj,
Dellhi110007
Vs.
Sh. Gauri Shankar Gupta (since deceased)
Through his LRs
1. Sh. Deepak Gupta
S/o Late Sh. Gauri Shankar Gupta
2. Mrs. Madhu Aggarwal,
(Married daughter)
3. Mrs. Shobhana Gupta
(Married daughter)
All R/o : B30, Nizamuddin East,
New Delhi110013
Date of institution of RCA No. 32/11/10 03.03.2010
Date of institution of RCA No. 33/11/10 06.03.2010
Date on which, judgment have been reserved11.5.2012
Date of pronouncement of judgment 26.5.2012
RCA No. 32/11/10 & RCA No. 33/11/10 3/38
4
JUDGMENT:
By this judgment, I shall dispose of two appeals bearing RCA No. 32/11/10 and RCA No. 33/11/10, one filed on behalf of the appellants Sh.Deepak Gupta & Ors and another filed on behalf of the appellants i.e. LRs of Sh. Giri Lal against the impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court in Suit No. 1060/2002.
It is pertinent to mention here that present appeals are connected with the appeals bearing RCA No. 34/11/10, RCA No. 35/11/10 & RCA No. 42/11/10 and all these appeals are being disposed of simultaneously.
2. Brief facts necessary for the disposal of the present appeals are that a suit for possession was filed on behalf of the plaintiff Sh. Gauri Shankar Gupta ( since deceased ) in the year 1970 against the defendant Sh. Giri Lal (since deceased) before the Ld. Trial Court. It is pertinent to mention here that the said plaintiff Sh. Gauri Shankar has expired and he is being represented by his LRs-Sh. Deepak Gupta, Ms. Madhu Aggarwal and Shobhana Gupta (appellants in RCA No. 32/11/10 and respondents in RCA No. 33/11/10 herein). Further, defendant Sh. Giri Lal has also expired and he is being represented by LRs Sh. Pradeep Kumar and Sh. Pappe @ Rakesh (respondents in RCA No. 32/11/10 and appellants in RCA No. 33/11/10 herein).
In the aforesaid plaint, it has been stated that the plaintiff was the RCA No. 32/11/10 & RCA No. 33/11/10 4/38 5 sole owner of the land Khasra No. 466 and 815/467 vide jamabandi for the year 196061 in the revenue state Patti Jahanpura, Delhi and this land measuring 7.5 bighas was a part of the property earlier known as Bagh Barafkhana in the locality Nai Basti, Kishan Ganj, Delhi. It is further stated that property in Bagh Barafkhana was one of the properties owned by the plaintiff's father namely Lala Manohar Lal, who died in the year 1946 and plaintiff's Chacha namely Lala Krishan Lal, who expired in the year 1968. It is stated that in July, 1947 the said Lala Krishan Lal filed a partition suit bearing no. 74/47 in the court of Civil Judge, Agra against two sons of late Lala Manohar Lal i.e. plaintiff Sh. Gauri Shankar and his younger brother Sh. Hari Shankar and the widow of Lala Monohar Lal, who also died in the year 1955. It is also stated that Bagh Barafkhana was one of the properties forming subject matter of the said suit for partition and the main dispute in the said partition was the extent of share of Lala Krishan Lal in Bagh Barafkhana. It is further stated that by virtue of compromise dated 28.03.1958 entered into by the parties to the said partition suit, each one of them was allotted a distinct portion out of the property Bagh Barafkhana and the said partition suit was decided in terms of this compromise vide judgment dated 26.05.1958. It is stated that formal partition decree regarding the above partition was prepared on 23rd September, 1961 in the Suit No. 74/47 and on 9th March, 1967 in RFA No. 93D/1960 in the Hon'ble High Court of Delhi. It is further stated that during the pendency of the Suit No. 74/47, Lala Krishan Lal without any authority or consent of the plaintiff or his RCA No. 32/11/10 & RCA No. 33/11/10 5/38 6 younger brother started granting improvident lease of the vacant land in Bagh Barafkhana to his employees etc and the plaintiff Gauri Shankar sought appointment of a Receiver to stop this and Hon'ble High Court of Allahabad vide order dated 05.05.1955, appointed Lala Krishan Lal as Receiver who had to deposit all the income drawing from Bagh Barafkhana and was also to submit half yearly accounts in the court. It is stated that the said suit was compromised vide compromise deed dated 28.03.1958 and accordingly, the Hon'ble High Court of Allahabad terminated the said receivership vide order dated 02.05.1958. It is further stated that while assuming exclusive possession of his portion in Bagh Barafkhana after the aforesaid decision of 26.05.1958, the plaintiff found that sometime earlier Lala Krishan Lal allowed the defendant to occupy a part of the suit land and on this portion the defendant has surreptitiously built up a super structure which now bears the municipal no. 536/01, Nai Basti, Delhi. It is stated that since improvident lease had neither been sanctioned by the court administrating the receiver nor consented to by the plaintiff or his younger brother, the plaintiff served notice that he did not recognize the tenancy and demanded the possession. The defendant filed a Suit No. 343/58 in the court of Sub. Judge, Delhi against the plaintiff, his brother Sh. Hari Shankar and Lala Krishan Lal for permanent injunction and this suit was decided on 16.07.1959, when the plaintiff without admitting the tenancy, undertook not to evict the defendant except in due course of law. It is stated that during the pendency of the said injunction suit, the defendant encroached upon RCA No. 32/11/10 & RCA No. 33/11/10 6/38 7 the land measuring about 8' x 22' in East of the land which was under his tenancy and he first used to teether cattle and thereafter erected a super structure on this portion also.
It has been stated that in October, 1958 during the scrutiny of the receiver's accounts, the letting in the name of the defendant was confirmed when the property was custodia legis and thereafter an application dated 15.02.1960 was filed by the plaintiff before the court of Agra to summarily dispossess the defendant and while considering the said application, an admission of Lala Kishan Lal to the effect that the defendant was one of those let in by him during the receivership was recorded on 23.4.1960 and accordingly the notice of the said application was issued to the defendant and others and the defendant appeared and resisted the said application for summarily dispossession on account of jurisdiction and the said application was rejected on 01.05.2009 holding that summary eviction could not been done in proceedings regarding receivership. It is further stated that a formal warrant of possession was also granted by the Civil Court of Agra on 30.11.1968 in favour of the original plaintiff and his brother Sh. Hari Shankar, LRs of Lala Krishan Lal and during the execution thereof, the delivery of the possession of the land in suit was resisted by and on behalf of the defendant and even after these proceedings, defendant did not attorn to the original plaintiff nor he ever tendered rent. Thereafter, a notice dated 20.04.1970 was got served upon the defendant by the plaintiff, however no reply to the said notice was received RCA No. 32/11/10 & RCA No. 33/11/10 7/38 8 which resulted in filing of the present suit before the Ld. Trial court, wherein it has been prayed that a decree of possession of the above said suit property may be passed in favour of the plaintiff and against the defendant. It was further prayed that decree for recovery of Rs.500/ with future rate @ 6% per annum till realization may be passed in favour of the plaintiff and against the defendant and it has also been prayed that a decree of mesne profit @ Rs.25/ per month may be passed against the defendant from the date of suit till the delivery of the possession of land in suit.
3. The defendant contested the above said suit and filed the written statement, wherein it was stated that since defendant happens to be tenant in respect of the disputed property, hence no suit for ejectment /possession was maintainable without seeking the permission from the Slum Authority appointed under Slum Areas (Clearance and Improvement) Act. It is further stated that the plaintiff has no locus standi to sue since the tenancy has not been created by him and he does not have any right, title or interest in suit property. It was further stated that the suit was barred by the principles of resjudicata and under order 2 rule 2 CPC and it was also stated that the suit was bad for non joinder of the necessary parties.
In his WS, defendant claimed the tenancy in respect of the suit property w.e.f 01.05.1955 and he also stated that he was inducted as tenant in the suit property by Lala Krishan Lal for self and on behalf of the plaintiff and RCA No. 32/11/10 & RCA No. 33/11/10 8/38 9 his brother @ Rs.5/p.m. It is further stated that the said tenancy was created well within the knowledge, permission and consent of the plaintiff, who never raised any objection or resisted in this regard although he was having knowledge that the defendant was in possession of the suit property w.e.f 1.7.1957 and on this count also, if the plaintiff had any right, he had acquiesced the same and otherwise also the plaintiff was estopped to raise plea as was raised in the present suit. It has been stated that as per the permission of the landlords (inclusive of plaintiff), the construction was raised by the defendant and he has spent about Rs.25,000/ by raising two storey building over the same and it was done within the consent, knowledge and permission and rather in the presence of and within the view of the plaintiff, who never raised any objection or finger or ever resisted to this effect, hence the plaintiff has acquiesced the same and otherwise also, plaintiff was estopped to raise the plea as has been raised in the present suit. It is stated that the plaintiff was one of the landlord/owners of the suit property and he has been attorn so, hence no question arose for abandoning the claim of tenancy. In the additional pleas in the W.S, it has been stated that the suit was barred by section47 of the CPC. It was further stated that if it is held that defendant was not a tenant, then the defendant has become owner of the property by virtue of adverse possession since he has been in possession of the property without any interruption for the last more than 12 years. All other averments made in the plaint were also denied on behalf of the defendant and it was prayed that the aforesaid suit filed RCA No. 32/11/10 & RCA No. 33/11/10 9/38 10 on behalf of the plaintiff may be dismissed with cost.
Thereafter, the replication was filed on behalf of the plaintiff, wherein the averments made in the WS were denied as incorrect and those made in the plaint were reiterated as correct.
4. On the basis of the pleadings, issues were framed and the trial in the suit was conducted by the Ld. Trial Court and vide impugned judgment/decree dated 9.11.2009, the aforesaid suit was decreed for possession in favour of the plaintiff and against the defendant on payment of Rs.2.5 lacs as compensation within four months from the date of decree, in respect of construction raised, to the LRs of defendant. The said suit was also decreed for mesne profit and damages in favour of the plaintiff and against the defendant @ Rs.300/ per annum (Rs.25/p.m.) w.e.f 1.5.1970 to 31.12.1979, mesne profit and damages @ Rs.800/ per annum w.e.f 01.1.1980 till 31.12.1989, further @ Rs.2,000/per annum w.e.f 1.1.1990 to 31.12.1999 and Rs.5,000/per annum w.e.f 1.1.2000 till the date of passing of the decree and handing over the possession or two years from the date of decree whichever is earlier. In case of non handing over of the possession within two years of passing of the decree, the plaintiff shall be entitled to file fresh the suit for claiming the mesne profit and damages at the higher rate, if deemed proper by the plaintiff. The cost of the suit has also been awarded to the plaintiff and it has been held that the defendants shall not be liable to pay any mesne profit & damages in case they RCA No. 32/11/10 & RCA No. 33/11/10 10/38 11 hand over the possession within four months from the date of decree.
5. Aggrieved by the aforesaid impugned judgment/decree dated 09.11.2009, the appellants i.e. LRs of deceased defendant Sh. Giri Lal filed appeal (bearing RCA No. 33/11/10), wherein it has been prayed that the aforesaid impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court may be set aside.
Aggrieved by the condition of payment of Rs.2.5 lacs as compensation, the appellants i.e. LRs of plaintiff Sh. Gauri Shankar filed the appeal (bearing RCA No. 32/11/10), wherein it has been prayed that the finding of the Ld. Trial Court on Issue No. 10 regarding the payment of compensation of Rs.2.5 lac may be set aside.
6. Upon filing of the aforesaid appeals, notices were issued to the respective opposite parties and they entered their appearances and contested the respective appeals filed against them. Trial Court Record (TCR) was also summoned and the same has also been received.
7. I have heard the arguments at length put forward on behalf of both the parties and have carefully gone through the record of the case.
8. It has been submitted on behalf of the LRs of Sh. Giri Lal RCA No. 32/11/10 & RCA No. 33/11/10 11/38 12 (appellants in RCA No. 33/11/10 and respondents in RCA No.32/11/10) that the impugned judgment/decree passed by the Ld. Trial Court was against the facts and material on record. It is further submitted that the Ld. Trial Court had failed to consider the fact that plaintiff Sh. Gauri Shankar had no locus standi to file the suit as suit property was HUF in nature and only Karta of HUF can sue and be sued and the suit before the Ld. Trial Court by Sh. Gauri Shankar was without any right or authority and as such the said suit was not maintainable. It is further submitted that the Ld. Trial Court had failed to appreciate the fact that suit of the plaintiff was hit by Article 66 of the Limitation Act as the said suit was filed by the plaintiff after the expiry of twelve years and according to records, the defendant was in possession prior to 1.1.1958 in his capacity as tenant and the arrears of rent upto 01.1.1958 was to be collected by late Sh. Kishan Lal only from him. It is also submitted that the Ld. Trial Court has failed to appreciate that the status of the appellant (defendant therein) was of a tenant and not of unauthorized occupant and appellant has been in possession of the property prior to the year 1958 and the plaintiff admitted the same in the notice of 1970. It is submitted that the Ld. Trial Court failed to consider the fact that the suit of the plaintiff was barred by Section 50 of the Delhi Rent Control Act as the relationship between the plaintiff and the defendant was of landlord and tenant and the monthly rent was below Rs.3,500/. It is further submitted that the Ld. Trial Court failed to appreciate the fact that no notice u/s 106 of the Transfer of Property Act was given to the defendant therein by the plaintiff RCA No. 32/11/10 & RCA No. 33/11/10 12/38 13 therein before filing of the present suit before the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to consider the fact that no notice was given to the defendant therein u/s 27 of General Clauses Act before filing the suit. It is further submitted that the Ld. Trial Court failed to consider the fact that the plaintiff therein used the word agricultural land in his plaint, however no notice under Delhi Land Reforms Act was given to the defendant therein before filing the suit and that the suit of the plaintiff was also barred by the provisions of Delhi Land Reforms Act. It is submitted that the Ld. Trial Court failed to consider the fact that no title document was filed by the plaintiff in the present case to show his right, title or interest over the suit property and as such the ownership of the suit property qua plaintiff therein has not been proved in accordance with law before the Ld. Trial Court. It is further submitted that the Ld. Trial Court failed to consider the fact that the suit property falls in the jurisdiction of the Slum Area and no permission was taken from the Competent Authority before initiating eviction proceedings against the defendant before the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to appreciate the fact that the exclusive right of the plaintiff therein over the suit property was not proved and that Rashid Kiraya Jameen Milkiyat Krishan Lal & Sons, Ex. PW1/DC9 the word used is rent and as such the relationship between plaintiff & defendant therein was that of landlord & tenant and accordingly the jurisdiction was vested in the Rent Controller to try the dispute between the plaintiff and defendant therein. It is further submitted that the Ld. Trial Court RCA No. 32/11/10 & RCA No. 33/11/10 13/38 14 failed to appreciate the fact that the other LRs of Lala Krishan Lal were not impleaded in the array of parties and as such the suit was also bad for non joinder of the parties. It is submitted that the Ld. Trial Court failed to consider the fact that the market value of the suit property exceeded more than Rs.25,000/ at the time of filing the suit and hence subject matter was beyond the pecuniary jurisdiction of the Ld. Trial Court.
It has been submitted that the Ld. Trial Court failed to consider the fact that the partition suit was not proved as no certified copy of relevant documents was filed and even the concerned file was not summoned from the court at Agra and in the absence of the same, the shares of the parties to that suit were not defined. It is submitted that even the alleged partition suit was not decided on merits and the alleged compromise between the parties therein was collusive. It is further submitted that the suit filed on behalf of the plaintiff before the Ld. Trial Court was premature as the partition with the other LRs of Sh. Gauri Shankar Gupta and the present plaintiff before the Ld. Trial Court was decided in 1986 and the suit was filed in the year 1970 without any right, title or interest over the property in question. It is submitted that the Ld. Trial Court failed to consider the fact that the defendant was having exclusive right of superstructure, which was built/existed prior to 01.01.1958 and the plaintiff therein had no locusstandi to file the present suit against the defendant before the Ld. Trial Court specially in view of the fact that there was no cause of action in favour of the plaintiff at any point of time and against the defendant therein. RCA No. 32/11/10 & RCA No. 33/11/10 14/38 15 It is further submitted that the Ld. Trial Court failed to consider the fact that the site plan was not proved in accordance with the site and the same does not describe the suit property completely. It is submitted that the Ld. Trial Court failed to appreciate the fact that the possession of the appellant was not unauthorized in the suit property and the tenancy of the defendant therein has been upheld by the Hon'ble High Court of Allahabad. It is further submitted that the Ld. Trial Court failed to consider the fact that the damages were neither claimed nor proved by the plaintiff therein and whatever damages were allowed by the Ld. Trial Court were without jurisdiction, imaginary and fanciful. It is submitted that the Ld. Trial Court failed to appreciate the fact that the compensation granted to the defendant therein was inadequate and was not according to the present market value. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the judgment/order passed in the formal partition decree in the partition suit bearing No.74/1947 and RFA No. 93 D/1960 were not passed on merits and as such the plaintiff before the Ld. Trial Court can never claim the ownership of the suit property on the basis of the said decree as the same was not passed on merits.
It has been further submitted that the Ld. Trial Court failed to consider the fact that the valuation of the suit property was done on the basis of letting value which implies that the appellants were tenants in the suit property and as such the suit for possession was not maintainable as the respondent were not the unauthorized occupants and as such the jurisdiction of the Trial Court RCA No. 32/11/10 & RCA No. 33/11/10 15/38 16 was also barred by Section 50 of the DRC Act. It is submitted that the Ld. Trial Court has erred in holding that since the appellants/defendant have failed to pay or deposit the arrears of rent during the pendency of the litigation, they are presumed to have forfeited their right of tenancy and conversely it could also have been interpreted that the landlords have forfeited their ownership/ landlordship rights as they failed to claim or collect arrears of rent prior to 1.1.1958 and also thereafter and onwards till 30.4.1970 i.e the date of filing of the suit and Ld. Trial Court failed to consider and hold that the appellants i.e. LRs of Sh. Giri Lal, in view of the aforesaid circumstances, had become owners being in adverse possession more than 12 years. It is submitted that the Ld. Trial Court failed to consider the fact that Lala Kishan Lal admitted throughout that the defendants therein were tenants settled by him in the suit property and were not unauthorized occupants and the same was also upheld by the Hon'ble Allahabad High Court on 28.8.1975. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the plaintiff therein had failed to discharge his onus to prove the issues framed by the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to consider the fact that the suit filed on behalf of the plaintiff therein was not maintainable and same was hit by Section 11 and order II rule 2 CPC. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the appellant/defendant therein were not bound by the consent decree as they never got opportunity to assail the same. It has been submitted that the impugned judgment/ decree passed by the Ld. Trial RCA No. 32/11/10 & RCA No. 33/11/10 16/38 17 Court was based on conjuncture & surmises and was not sustainable in law and it has been prayed that the said impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court may be set aside.
In support of his contentions, Ld. Counsel for the LRs of Sh. Giri Lal ( appellant in RCA No. 33/11/10 & respondents in RCA No. 32/11/10) has relied upon the caselaw cited as 168 (2010) DLT 652, III (2010)SLT 501 & II (2010) SLT 461.
9. On the other hand, it has been submitted on behalf of the LRs of Sh. Gauri Shankar (appellants in RCA No. 32/11/10 and respondents in RCA No.33/11/10) that there was no illegality or irregularity in the findings of the Ld. Trial Court in respect of the various issues except Issue no. 10. It is further submitted that in their WS, the LRs of Sh. Giri Lal have taken the defence that they were tenant qua suit land however in the later part of their WS they abandoned their claim as tenants and propounded that they were owners by adverse possession and the said pleas of adverse possession and tenancy were admittedly mutually destructive. It is submitted that it is the case of the LRs of Sh. Giri Lal that the plaintiff before the Ld. Trial Court was one of the coowner of the suit property and as such they were themselves estopped from disputing the title of the plaintiff and also locus standi of the plaintiff to maintain this action for possession.
It has been submitted that when the suit property was purportedly RCA No. 32/11/10 & RCA No. 33/11/10 17/38 18 let out by the LRs of defendant, it was only an open land and according to the defendants themselves the super structure existing at the site was raised by them later on and as such since there was no built up property at the site, the Delhi Rent Control Act was applicable to the alleged tenancy in question. It is further submitted that in view of the non applicability of the Delhi Rent Control Act, the suit by the plaintiffs before the Ld.Trial Court was not barred u/s 50 of the said Act. It is submitted that even otherwise the defendants i.e. LRs of deceased Sh. Giri Lal have not been able to prove their tenancy in respect of the immovable property which was subject matter of the suit and there is nothing on record to show that the defendants i.e. LRs of deceased Sh. Giri Lal were inducted into the suit property prior to the institution of the civil suit for partition before the Civil Court at Agra in which the final decree for partition was passed by the said court. It is further submitted that as per their own version, the tenancy of the defendants i.e. LRs of deceased Sh. Giri Lal commenced in the year 1955 and consequently the said defendants before the Ld. Trial Court being transferees pendente lite that too inducted by only one of the coowners namely Lala Kishan Lal, the purported transfers were not only hit by Section 52 of the Transfer of Property Act but also by the well settled principle that a lease for building purposes or a permanent lease can only be granted by all the coowners and not by one of them. It is submitted that the defendants i.e. LRs of deceased Sh. Giri Lal having denied the title of the plaintiff in respect of the premises subject matter of this lis and having asserted RCA No. 32/11/10 & RCA No. 33/11/10 18/38 19 title in themselves to the property subject matter of this action by adverse possession, their purported tenancy in respect of the said property stands determined by forfeiture. It is further submitted that there is nothing on record to show that there was any previous suit between the parties to this action which would bar the present suit. It is submitted that unless the title of the plaintiff in respect of the suit property is extinguished by law, the suit for possession on the basis of the title would be maintainable and would not be barred by section 47 CPC. It is further submitted that there is no material whatsoever to establish that there was any previously suit instituted against the defendants i.e. LRs of deceased Sh. Giri Lal by the plaintiff Sh. Gauri Shankar through his LRs in which the plaintiffs did not seek the relief of possession and as such the suit of the plaintiff before the Ld. Trial court was not barred u/o 2 rule 2 CPC.
It has been further submitted that the impugned judgment/decree of the Ld. Trial Court in so far as the same proceeds to decide the Issue No.10 was perverse particularly when without any reasonable basis or material much less evidence on record. Ld. Trial Court has held that the LRs of deceased defendant Sh. Giri Lal were entitled to Rs.2.5 lacs as purported compensation for the cost of the super structure built at the site by Sh. Giri Lal, prior to the institution of the suit. It is further submitted that the Ld. Trial Court while granting the compensation of Rs. 2.5 lacs to the LRs of Sh. Giri Lal erred in not appreciating the law on the subject and failed to consider that the improvements/super structure on the suit land have been illegally and RCA No. 32/11/10 & RCA No. 33/11/10 19/38 20 unlawfully made without any sanction and as such no compensation could have been granted in favour of the LRs of Sh. Giri Lal. It is submitted that the Ld. Trial Court while granting the aforesaid amount of compensation for the super structure failed to consider the fact that in the WS, the quantum of money claimed as compensation was merely Rs.25,000/ and also there was no counter claim propounded on that score by the defendant before Ld. Trial Court nor had any courtfee ever been paid on the aforesaid amount on behalf of the defendant or his LRs before the Ld. Trial Court. It is further submitted that the Ld. Trial Court while delivering the impugned judgment on Issue No.10 erred in not appreciating the fact that the purported super structure for which compensation was being claimed had admittedly and apparently, outlived its life being more than 40 years old where for the quantum of compensation awarded was an astronomical sum for the purported super structure that exists at site more so when way back in 1970 the defendant had merely claimed a sum of Rs.25,000/ as compensation for the cost of super structure built by him at the site. It is submitted that the Ld. Trial Court while delivering the impugned judgment on Issue No. 10 erred firstly in granting the aforesaid compensation to the LRs of the defendant Sh. Giri Lal and secondly failed to appreciate that for the last 52 years the defendant and his LRs had enjoyed the said property without payment of any usufruct and as such by their own conduct, actions and or inactions they were not entitled to seek any compensation for the purported super structure that existed at site. It is further submitted that the Ld. Trial Court while RCA No. 32/11/10 & RCA No. 33/11/10 20/38 21 awarding the compensation gravely erred in not appreciating the submissions that the defendant and his LRs therein having pleaded adverse possession qua the suit property, could not be permitted to claim or granted any compensation for the purported super structure built at the site. It is submitted that the Ld. Trial Court while granting the said compensation for super structure erred in being influenced by its purported estimate of the cost of construction thereof and that too without there being any evidence although an issue had admittedly been framed on that count. It is further submitted that the Ld. Trial Court has awarded the compensation to the LRs of Sh. Giri Lal on mere whims, fancies, surmises & conjectures and said compensation was not sustainable in law and it has been prayed that the findings of the Ld. Trial Court on Issue No. 10 regarding the payment of compensation of Rs.2.5 lacs to the LRs of Sh. Giri Lal may be set aside.
In support of their contentions, LRs of Sh. Gauri Shankar ( appellants in RCA No. 32/11/10 & respondents in RCA No. 33/11/10 have relied upon the case law cited as (1998) 6 SCC 200, 2004 (3) SCC 178, AIR 1977 SC 1599, 1999 (1) AD 785 ( Delhi, DB), 154 (2008) DLT 211 & JT 2001 (Suppl.2) SC 297.
10. I have carefully considered the submissions made on behalf of the LRs of Late Sh. Giri Lal (appellants in RCA No. 33/11/10 and respondents in RCA No.32/11/10 and LRs of Sh. Gauri Shankar (appellants in RCA No. RCA No. 32/11/10 & RCA No. 33/11/10 21/38 22 32/11/10 and respondents in RCA No.33/11/10) and have carefully gone through the record of the case. I have carefully perused the TCR and the case law relied upon by both the parties in support of their respective contentions. I have also carefully perused the Written Arguments filed on behalf of the LRs of Late Sh. Giri Lal.
11. It has been submitted on behalf of LRs of Late Sh. Giri Lal (appellants in RCA No. 33/11/10 and respondents in RCA No.32/11/10) that Ld. Trial Court has failed to consider the fact that plaintiff Sh. Gauri Shankar had no locus standi to file the suit as suit property was HUF in nature and only Karta of HUF can sue and be sued and the suit before the Ld. Trial Court by Sh. Gauri Shankar was without any right or authority and as such the said suit was not maintainable, however the said contentions put forward on behalf of LRs of Sh. Giri Lal are devoid of any merits and are contrary to record as perusal of the record reveals that Sh. Gauri Shankar , original plaintiff before the Ld. Trial Court was one of the coowner of the suit property and this fact has also been admitted by the defendants i.e LRs of Late Sh.Giri Lal in their W.S filed before the Ld. Trial Court. Infact the locus standi of Sh. Gauri Shankar, plaintiff therein was manifest from the averments made in the W.S, wherein the defendants i.e LRs of Sh. Giri Lal have themselves stated that Sh.Gauri Shankar was one of the coowner of the suit property and as such the defendants i.e LRs of Late Sh.Giri Lal were estopped from disputing the title of RCA No. 32/11/10 & RCA No. 33/11/10 22/38 23 the plaintiff and also locus standi of the plaintiff to maintain the suit for recovery of possession before the Ld. Trial Court. Even otherwise, Sh. Gauri Shankar , original plaintiff before the Ld. Trial Court was one of the coowners of the suit property and this fact was also evident from the partition decree in suit bearing no.74/47 filed by Lala Krishan Lal under whom the defendant therein have claimed the tenancy of the suit property since the year 1955. In addition to this, the order dated 26.5.1958 decreeing the suit bearing no.74/47 in terms of compromise deed dated 28.03.1958 (Ex. PW1/GL14), final decree in the said suit (Ex. PW1/GL19) and the final decree of the partition dated 09.3.1967 ( Ex. PW1/GL20) have been proved during the trial before the Ld. Trial Court and the aforesaid decree and the site plan clearly depict that suit property in the suit before the Ld.Trial Court had fallen in the share of Sh.Gauri Shankar original plaintiff before the Ld. Trial Court. It is pertinent to note that even the judgment dated 28.08.1975 (Ex. DW1/1) of the Hon'ble High Court of Allahabad relied upon by the defendant before the Ld. Trial Court refer to the aforesaid compromise deed and partition decree by which plaintiff Sh.Gauri Shankar has become the owner of the suit property in the suit before the Ld. Trial Court. Further, it is well settled that one of the coowners can file a suit for eviction against the tenant and such coowner does so on his own behalf in his own right as well as an agent of other co owners and the consent of other coowners is assumed taken unless it is shown that other coowners were not agreeable to eject the tenant and the suit was RCA No. 32/11/10 & RCA No. 33/11/10 23/38 24 filed inspite of their disagreement as has been laid down in the case cited as 2004 (3) SCC 178. In these circumstances and in view of the material on record, Ld. Trial Court has rightly held that original plaintiff Sh.Gauri Shankar had the locus standi to file the present suit before the said court .
12. It has been further submitted on behalf of the LRs of Late Sh. Giri Lal (appellants in RCA No. 33/11/10 and respondents in RCA No.32/11/10) that Ld. Trial Court had failed to appreciate the fact that the suit of the plaintiff was hit by Article 66 of the Limitation Act as the suit has been filed after the expiry of twelve years and according to records, the defendant was in possession prior to 1.1.1958 in his capacity as tenant, however the said submissions made on behalf of LRs of Sh. Giri Lal are devoid of any merits and are contrary to the record as the perusal of the record reveals that the defendant i.e LRs of Late Sh. Giri Lal have been paying rent in respect of the suit property to Lala Krishan Lal till 1968 and as such the suit before the Ld.Trial Court have been filed within the period of limitation prescribed by law . It is pertinent to note that on the one hand, the LRs of Late Sh. Giri Lal have submitted that the present suit is time barred, being beyond the period of limitation and on the other hand, they have also argued that the suit filed on behalf of the plaintiff before the Ld. Trial Court was premature as the issue of partition between other LRs of Sh.Gauri Shankar and the present plaintiff before the Ld.Trial Court was decided in 1986 and the present suit was filed RCA No. 32/11/10 & RCA No. 33/11/10 24/38 25 in the year 1970. In these circumstances both these contentions raised on behalf of the defendants i.e LRs of Late Sh. Giri Lal are contradictory to each other and are also mutually destructive as on one hand the LRs of defendant Late Sh.Giri Lal are submitting that the suit filed by the original plaintiff Sh. Gauri Shankar was time barred and on the other hand they are also raking up the issue of said suit, being premature and as such both these inconsistent averments made on behalf of the LRs of Late Sh. Giri Lal are not tenable. Even otherwise from the material on record, it is evident that suit filed by the original plaintiff Sh. Gauri Shankar before the Ld. Trial Court was filed within the statutory period prescribed by law. It has also been submitted on behalf of LRs of Sh. Giri Lal that Ld. Trial Court failed to consider the fact that partition suit was not proved as no certified copy of relevant document was filed and even the concerned file was not summoned from the court atAgra and in the absence of the same, the shares of the parties to that suit were not defined, however the said contention raised on behalf of the LRs of Late Sh. Giri Lal does not hold water as the perusal of the impugned judgment reveals that Ld. Trial Court has properly dealt with all these contentions/averments and have come to reasonable conclusions on the basis of the material on record. In this regard, it has been rightly held by the Ld. Trial Court that contention that judgment dated 26.5.58 ( Ex. PW1/GL14) and final decree dated 23.9.61 ( Ex. PW1/GL19) in Suit No. 74/47 being not certified copy is also without any basis as these are bearing proper endorsement and seal of Court at Agra and RCA No. 32/11/10 & RCA No. 33/11/10 25/38 26 the endorsement in respect of the fee deposited and all these documents were filed in this case as early as 22.12.70 itself alongwith final decree dated 09.3.67 ( Ex. PW1/GL20) as is clear from the endorsement of filing on these documents of the then SubJudge, First Class, Delhi and these documents were also having stamp of Head Copyist Judge's Court, Agra.
13. It has been submitted on behalf of LRs of Late Sh. Giri Lal (appellants in RCA No. 33/11/10 and respondents in RCA No.32/11/10) that Ld. Trial Court has failed to appreciate that the status of the appellant/defendant was of a tenant and not of an unauthorized occupant and appellant has been in possession of the property prior to the year 1958 and as such the suit of the plaintiff was barred by Section 50 of the Delhi Rent Control Act as the relationship between the plaintiff and the defendant was that of landlord and tenant and the monthly rent was below of Rs.3,500/. It is also submitted that Ld.Trial Court failed to appreciate the fact that in the document Rashid Kiraya Jameen Milkiyat Krishan Lal & Sons, Ex. PW1/DC9, the word used was 'rent' and as such the relationship between plaintiff & defendant therein was that of landlord & tenant and accordingly the jurisdiction was vested in the Rent Controller to try the dispute between the plaintiff and defendant, however the said contentions put forward on behalf of LRs of Sh. Giri Lal are devoid of any merits as admittedly, what was let out by Lala Krishan Lal to the defendant was only an open land and as per their own RCA No. 32/11/10 & RCA No. 33/11/10 26/38 27 submissions, the super structure existing at the site was raised by the defendants i.e LRs of Sh. Giri Lal later on although they have not been able to establish having obtain any municipal section therefor. In these circumstances, it is evident that initially what was let out to the LRs of Sh. Giri Lal was only an open land and there was no built up structure thereon and as such , the Delhi Rent Control Act was not applicable in the instant case as it is applicable only in case of built up properties. In this regard, it is pertinent to note that Section 2(i) of the Delhi Rent Control Act provides that "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use and for any other purpose. In the instant case, admittedly what was let out initially by Lala Krishan Lal to the defendant was only an open land and as such the action of the plaintiff before the Ld. Trial Court was not barred by the provisions of Section50 of the Delhi Rent Control Act.
It is pertinent to note here that on the one hand the LRs of Sh.Giri Lal are claiming themselves to be tenant in the suit property, whereas on the other hand, they also claim that they have become owners being in adverse possession of suit property for more than 12 years. It is well settled that pleas tenancy and that of having acquired ownership by adverse possession are mutually destructive of each other as has been laid down in the case cited as 1999 (1) 785 (Delhi, DB). In these circumstances, the defendant having denied the title of plaintiff i.e Sh. Gauri Shankar in respect of the suit property of this RCA No. 32/11/10 & RCA No. 33/11/10 27/38 28 lis and having asserted title in themselves in respect of the suit property by adverse possession, their purported 'tenancy' in respect of the suit property stand determined by forfeiture . Even otherwise, the defendants have been claiming tenancy since the year 1955 and as such the said defendants being transferees pendente lite inducted by only one of the coowners namely Lala Kishan Lal , the purported transfers are not only hit by the Section 52 of the Transfer of Property Act but also by the well settled principle that a lease for building purposes or a permanent lease can only be granted by all the coowners and not by any one of them. In this regard, it has been rightly observed by the Ld.Trial Court that defendants i.e LRs of Sh. Giri Lal abandoned their claim of being tenant subsequently as they did not pay the rent after the death of Lala Krishan Lal to any one, although it was in their knowledge that portion in their occupancy was part of portion which had fallen in the share of plaintiff Sh. Gauri Shankar as they appeared and contested the application u/o 21 rule 97 CPC filed before Civil Court at Agra . Apart from that, the defendant did not attorn the plaintiff and continued to harp upon the plea that they had become owner by adverse possession and raising of the plea of adverse possession by a tenant result in termination of tenancy by forfeiture. From the material on record, it is evident that the defendant have never paid any amount at any point of time to the plaintiff as 'rent' nor they ever tendered the rent and even if the same would have not been accepted by the plaintiff, they would have done their duty and would have kept their contention of being tenant in RCA No. 32/11/10 & RCA No. 33/11/10 28/38 29 respect of the suit property alive but they failed to do anything in furtherance of their contention of being tenant and as such they voluntarily abandoned their claim of tenancy and rather got it terminated by forfeiture by raising the contention of adverse possession and as such it has been rightly held by the Ld.Trial Court that the defendant i.e LRs of Sh. Giri Lal were in possession of the suit property as 'unauthorized occupants' since the timing of filing of the present suit.
14. It has been further submitted on behalf of the LRs of Sh. Giri Lal (appellants in RCA No.33/11/10 & respondents in RCA No. 32/11/10) that Ld. Trial Court failed to consider the fact that plaintiff therein used the word 'agricultural land' in his plaint, however no notice under Delhi Land Reforms Act was given to the defendant therein before filing the suit. It is also submitted that Ld. Trial Court failed to appreciate that the suit filed by the plaintiff Sh.Gauri Shankar was barred by the provisions of Delhi Land Reforms Act, however the said submissions made on behalf of LRs of Sh. Giri Lal are devoid of any merits and are contrary to record as the suit of plaintiff before the Ld. Trial Court was not barred by the provisions of Delhi Land Reforms Act in view of the provisions of section1(2) (a) of the said Act, which provides that the said Act i.e Delhi Land Reforms Act shall not apply to the areas which are or may before first day of November, 1956 included in a municipality or a Notified Area under the provisions of Punjab Municipal Act RCA No. 32/11/10 & RCA No. 33/11/10 29/38 30 1911 or a Cantonment under the provisions of Cantonment Act, 1924. In the instant case, the suit property admittedly falls within the municipal limits and in fact, the municipal number have also been given to it and as such the present suit filed on behalf of the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was not barred by the Delhi Land Reforms Act. It has also been submitted on behalf of the LRs of Sh. Giri Lal that Ld. Trial Court failed to consider the fact that suit property falls in Slum Area and no permission was taken by the plaintiff from the competent authority before initiating the eviction proceedings against the defendant before the Ld. Trial Court, however the said contentions put forward on behalf of the LRs of Sh. Giri Lal does not hold water as the relevant provisions of the Slum Area ( Improvements and Clearance) Act are applicable only in case of a 'tenancy' and in the instant case, the defendants i.e LRs of Sh. Giri Lal having propounded 'title' in themselves by prescription , cannot revert back to the plea that they were tenants. In fact, by asserting title in respect of the suit property by adverse possession, the above said defendants have let their tenancy regarding the suit property determined by forfeiture. Even otherwise, the Ld. Trial Court has held the defendants to be in possession as unauthorized occupant as is evident from its findings on issues no. 2&3 therein and as such the Slum Areas Act has no applicability in this case.
15. It has been submitted on behalf of the LRs of Sh. Giri Lal RCA No. 32/11/10 & RCA No. 33/11/10 30/38 31 ( appellants in RCA No. 33/11/10 & respondents in RCA No. 32/11/10) that Ld. Trial Court failed to consider the fact that the suit filed on behalf of the plaintiff therein was not maintainable and that same was hit by Section11 and order 2 rule 2 CPC as well as by section47 CPC, however the said submissions made on behalf of the LRs of Sh. Giri Lal are devoid of any merits and are contrary on record as from the material on record, there is nothing to show that there was any previous suit between the parties in which the plaintiff did not seek the relief of possession as has been prayed for in the present suit before the Ld. Trial Court. The present suit could not have been barred by earlier Civil Suit No. 74/47 as the said suit was the suit for partition of immovable property between coowners and the defendants i.e LRs of Sh. Giri Lal were not even the parties to the said suit. Even otherwise, the said suit was instituted in the year 1947 and according to their own W.S, the defendant i.e LRs of Sh.Giri Lal came in possession of suit property only in the year 1955 or there about. Further, it is well settled that unless the 'title' of the plaintiff in respect of the immovable property which was subject matter of the suit is extinguished by law, a suit for possession on the basis of the title would be maintainable and would not be barred by Section47 of the CPC as has been laid down in the case cited as 2000 (1) SCC 144 CPC. It is pertinent to note that suit filed by the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was suit in terms of OrderXXI, Rule 103 of the Old CPC and there can be no estopple against right of the plaintiff to sue for the recovery of actual physical possession of the RCA No. 32/11/10 & RCA No. 33/11/10 31/38 32 suit property. In these circumstances and in view of the material on record, the present suit filed on behalf of the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was not barred u/s 11 CPC or u/o 2 rule 2 CPC or u/s 47 CPC and as such the issue in this regard have been rightly decided by the Ld. Trial Court in favour of the plaintiff and against the defendants i.e LRs of Sh. Giri Lal.
16. It has been submitted on behalf of the LRs of Sh. Giri Lal that Ld. Trial Court failed to appreciate the fact that other LRs of Lala Krishan Lal were not impleaded in the array of the parties and as such the suit of the plaintiff before the Ld. Trial Court was also bad for nonjoinder of the parties, however the said contentions raised on behalf of the LRs of Sh. Giri Lal are devoid of any merits as there is nothing on record to show that any necessary party has not been impleaded as a party in the suit before the Ld. Trial Court . Further, as far as the LRs of Lala Kishan Lal are concerned, it has been rightly held by the Ld. Trial court that from the material on record, it was evident that the suit property had fallen to the share of the plaintiff and impleadment of the erstwhile coowners was not necessary and as such there was no necessity of impleadment of Lala Krishan Lal or his LRs as parties to the present suit. It has also submitted that Ld. Trial Court failed to consider the fact that no title documents were filed by the plaintiff in the present case to show the right, title or interest in the suit property and as such RCA No. 32/11/10 & RCA No. 33/11/10 32/38 33 ownership of the suit property qua plaintiff therein had not been proved in accordance with law before the Ld.Trial Court. It is submitted that Ld. Trial Court failed to consider the fact that the damages were neither claimed nor proved by the plaintiff therein and whatever damages were allowed by the Ld. Trial Court the same were without jurisdiction imaginary and fanciful . It is also submitted that Ld. Trial Court failed to appreciate the fact that plaintiff therein had failed to discharge the onus to prove the issues famed in the suit , however , the said submissions made on behalf of the appellant/defendant i.e LRs of Sh. Giri Lal are devoid of any merits and are contrary to the record as the perusal of the impugned judgment reveals that Ld. Trial Court has properly dealt with all the averments and contentions raised on behalf of the appellant/ defendants and have come to the just and reasonable conclusions on the basis of the material available on record.
17. It has been further submitted on behalf of the LRs of Sh. Giri Lal ( appellant in RCA Nos. 33/11/10 and respondents in RCA Nos. 32/11/10) that the impugned judgment/decree dated 09.11.209 passed by the Ld. Trial Court was against the facts & material on record. It is also submitted that the said impugned judgment/decree was based on conjectures & surmises and was not sustainable in law, however the said contentions put forward on behalf of the appellants i.e LRs of Sh. Giri Lal does not hold water and are contrary to the record as perusal of the impugned judgment/decree reveals that it is based RCA No. 32/11/10 & RCA No. 33/11/10 33/38 34 upon the sound, cogent and just reasoning and the same has been passed on the basis of the proper appreciation of the material on record.
18. Hence, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the present appeal bearing RCA No. 33/11/10 filed on behalf of the LRs of Late Sh. Giri Lal is devoid of any merits and the same is liable to be dismissed.
19. On the other hand, it has been submitted on behalf of the LRs of Sh. Gauri Shankar (appellants in RCA No. 32/11/10 and respondents in RCA No. 33/11/10) that the impugned judgment/decree of the Ld. Trial Court in so far as the same proceeds to decide the Issue No.10 is perverse particularly when without any reasonable basis or material much less evidence on record, Ld. Trial court has held that the LRs of deceased Sh. Giri Lal were entitled to Rs.2.5 lacs as purported compensation for the cost of super structure built at the site by Sh.Giri Lal prior to institution of the suit. It is further submitted that the Ld. Trial Court while granting the said compensation of Rs.2.5 erred in appreciating the law on the subject and failed to consider that the improvements/super structure on the suit land have been illegally and unlawfully built without any sanction and as such no compensation could have been granted in favour of the LRs of Sh. Giri Lal. It is submitted that the Ld. Trial Court while delivering the RCA No. 32/11/10 & RCA No. 33/11/10 34/38 35 impugned judgment on Issue No. 10 erred firstly in granting the aforesaid compensation to the LRs of defendant Sh. Giri Lal and secondly failed to appreciate that for the last about 52 years, the defendant and his LRs had enjoyed the suit property without any payment of usufruct and as such by their own conduct, action and/or inaction they were not entitled to seek any compensation for the purported super structure that existed at the site. It is further submitted that the Ld. Trial Court while awarding the compensation gravely erred in not appreciating the submissions that the defendant and his LRs therein having pleaded adverse possession qua the said property could not be permitted to claim or granted any compensation for the purported super structure built at the site. It is also submitted that the Ld. Trial Court while granting the said compensation for super structure erred in being influenced by its purported estimate of the cost of construction thereof and that to without their being any evidence in this regard and as such the grant of the said compensation by the Ld. Trial Court was not sustainable in law.
I find considerable force in the abovesaid submissions made on behalf of the LRs of Sh. Gauri Shankar (appellants in RCA No. 32/11/10 and respondents in RCA No. 33/11/10) as from the material on record, it is evident that onus of proving the said Issue No. 10 was upon the defendants i.e. LRs of Sh. Giri Lal and the perusal of the record reveals that the defendants therein have failed to discharge the said onus. It is pertinent to note that no evidence whatsoever had been adduced on record before the Ld. Trial Court by the LRs RCA No. 32/11/10 & RCA No. 33/11/10 35/38 36 of Sh. Giri Lal to prove that they have raised the said super structure at the site with the permission of plaintiff Sh. Gauri Shankar or his LRs. Further, defendants before the Ld. Trial Court have also not proved on record as to what specific amount was spent by them in the construction of the said super structure at the site. Infact, perusal of the record reveals that there was no evidence whatsoever on record before the Ld. Trial Court regarding the said issue. In these circumstances, it is not understandable as to how and on what basis the said amount of Rs.2.5 lacs was awarded as compensation by the Ld. Trial Court to the LRs of Sh. Giri Lal. It appears that in granting the said compensation, Ld. Trial Court has been swayed by the offer made on behalf of the LRs of plaintiff Sh. Gauri Shankar during the trial of the case, whereby they have offered a sum of Rs.2.5 lacs to the LRs of defendant Sh. Giri Lal provided they handed over the possession of the suit property to them. The perusal of the record reveals that the said offer put forward by the LRs of the plaintiff Sh.Gauri Shankar was not accepted by the LRs of the defendant Sh. Giri Lal before the Ld. Trial court and as such non acceptance of the aforesaid offer by the LRs of Sh. Giri Lal has resulted in the closure of the said Chapter and as such the findings on the said Issue No.10 should have been given by the Ld. Trial Court on merits on the basis of the material on record, but it had failed to do so . It is pertinent to note that offer or counter offer made by the respective parties during the trial of the suit cannot be made basis for the findings on the issue in the suit and the said decision thereon should be made purely on the RCA No. 32/11/10 & RCA No. 33/11/10 36/38 37 basis of the material or evidence brought on record by the respective parties.
Apart from above, perusal of the record reveals that in the additional plea in their written statement, it has been stated on behalf of the defendants i.e LRs of the Sh. Giri Lal that in case a decree of possession is passed against them they were entitled to cost of construction raised by them at the site and they had also quantified the said cost. This plea raised on behalf of the LRs of the defendant Sh. Giri Lal is basically in the nature of the counter claim against the LRs of the plaintiff Sh. Gauri Shankar and as such the defendants therein were required to affix appropriate court fee upon the said counter claim. The perusal of the record reveals that no court fee whatsoever has been paid on the said counter claim by the LRs of late Sh. Giri Lal and in the absence of the court fee thereof, the said counter claim on behalf of the LRs of late Sh. Giri Lal was not maintainable and as such issue in this regard should not have been framed by the Ld. Trial Court without directing the LRs of late Sh. Giri Lal to affix the appropriate court fee thereon.
Hence, in view of the above and in view of the material on record, I am of the considered opinion that the findings of Ld. Trial Court in respect of the Issue No. 10 are not sustainable and the same are liable to be set aside.
20. Thus, in view of the above discussions & observations and having regard to the fact and circumstances of the present case, the appeal (bearing RCA No. 33/11/10) filed on behalf of LRs of Late Sh. Giri Lal is dismissed RCA No. 32/11/10 & RCA No. 33/11/10 37/38 38 and the appeal (bearing RCA No. 32/11/10) filed on behalf of LRs of Sh. Gauri Shankar is allowed and accordingly, impugned judgment /decree dated 09.11.2009 passed by the Ld.Trial Court in Suit No. 1060/02 is modified to the extent that the finding of the Ld. Trial Court regarding the payment of Rs. 2.5 lacs as compensation to the LRs of the defendant therein, is set aside.
Decree sheet be prepared accordingly.
The main judgment be placed in the file of RCA No. 32/11/10 and a copy thereof be placed in the file of RCA No. 33/11/10.
TCR alongwith copy of this judgment be sent back to the Ld.Trial Court.
Appeal files be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
( court on 26.5.2012) ADJ02 (West)
Tis Hazari Courts Delhi
26.5.2012
RCA No. 32/11/10 & RCA No. 33/11/10 38/38
39
.
RCA No. 32/11/10 & RCA No. 33/11/10 39/38
40
RCA No. 32/11/10 & RCA No. 33/11/10 40/38