Delhi District Court
Shri Kishan Chander vs Om Wati & Ors. Page 1 Of 6 on 28 January, 2023
BEFORE Dr. AJAY GULATI
ADDL. DISTRICT JUDGE, (WEST)-02,
TIS HAZARI COURTS, DELHI.
RCA No. 120/19
CNR No. DLWTO1-008081-2019
Shri Kishan Chander
S/o late Subedar Pal Singh
Through his G.P.A.
Smt. Manjeet Kaur
R/o 3013-A/1, Gali No. 16
Shadipur, Ranjeet Nagar
New Delhi-110008
Versus
Appellant
1. Smt. Omwati W/o late Balwan Singh
2. Shri Satish Kumar S/o late Balwan Singh
3. Shri Dilwan Singh S/o late Balwan Singh
All R/o WZ-131, Village and Post
Shadipur, New Delhi-110008
Respondents
Date of institution of the Appeal : 01.10.2019
Date on which reserved for judgment : 19.10.2022
Date of pronouncement of Judgment : 28.01.2023
JUDGMENT
1. Appellant is aggrieved by the judgment delivered by the ld. Trial Court which has partly decreed the suit claim, to the extent of directing the appellant - defendant to handover peaceful vacant physical possession of the suit property after allowing plaintiff's application moved under Order 12 Rule 6 i.e. on admissions.
RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 1 of 62. Brief factual recapitulation would be relevant.
Respondent-plaintiffs claim to be owners of the suit property which is a built-up plot measuring 150 sq. yards, situate in Ranjeet Nagar, New Delhi. Predecessor-in-interest of the respondent-plaintiffs had executed a registered lease deed for 20 yrs. in favour of predecessor- in-interest of the appellant-def. i.e. vide lease deed dt. 04.01.1958. The lease deed stood expired on 03.01.1978. These facts are undisputed and have been admitted by the appellant-defendant in his written statement filed before the trial court. Further, ownership of the respondent- plaintiffs in the manner pleaded by them in the plaint, has not been disputed either. It needs a brief highlight that Respondents contend to have become owners of the suit land by virtue of being the heirs of the original owner, the original owner being Sh. Channamal and the respondents being the legal heirs of one of the grandson of the original owner Sh. Channamal. Further, plaintiffs have pleaded that there is a registered relinquishment deed dt. 03.02.2017 in their favour which has been executed by Shri Bhagwan Singh and Sh. Ramesh Kumar, the legal heirs/sons of Attar Singh, grand-father of the plaintiffs/Respondent nos. 2 & 3.
3. However, in order to contest the suit claim, appellant-defendant has set up contradictory pleas before the trial court. First, he claimed that before expiry of the original lease deed, in 1975, the lease deed was extended for a further period of 99 yrs. Second, appellant also claims to have entered into an agreement to sell with the respondents in 2010 for a total sum of Rs. 45 lacs out of which Rs. 10 lacs stood paid to the respondents. Ld. Trial Court while dealing with the application under RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 2 of 6 order 12 rule 6 dealt with both the pleas listed above. Ld. Trial Court declined to accept the respondent's plea of extension of lease deed in 1975 by observing that the document placed on record in this regard was merely an agreement to extend the lease but there was no such document evidencing actual extension of the original lease deed dt. 04.01.1958. The 2nd plea i.e. of having entered into an 'agreement to sell' concerning the leased land, was also negatived by the ld. trial court by holding that though the said agreement was purportedly entered into on 12.07.2010 respondent had neither filed any suit for specific performance to enforce the said agreement nor had the agreement to sell been registered which was a mandatory requirement if the respondent was seeking to protect his possession on the basis of agreement to sell. Interestingly, the agreement to sell relied upon by the appellant-defendant has not even been filed on court record.
4. The 3rd plea taken by the Appellant is regarding the jurisdiction of the civil court. It appears that the plea of jurisdiction of the civil court being barred under the provisions of the DRC Act (in view of the rate of monthly lease rent which was Rs.4.50 per month and hence, much less than Rs. 3500) was taken up for the first time during the course of arguments on the application moved by the respondent-plaintiffs under O.12 R.6 since in the written statement, jurisdiction of the Trial Court has been specifically admitted. This specific plea was also dealt with by the ld. Trial Court but not accepted. Ld. Trial Court held that bar of jurisdiction under the DRC Act is applicable in case of built up structure/s whereas what had been conveyed vide the lease deed dt. 4.01.1958 was a vacant piece of land. This particular finding has been RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 3 of 6 specifically challenged in the present appeal, in addition to the other 2 pleas which have already been highlighted above.
5. Before this Court, Appellant-defendant contends that plaintiffs themselves attached a site plan along with the plaint which clearly shows that the land in question was a built-up structure and not a mere piece of vacant land. It was further contended by the Appellant that plaintiffs are completely silent as to who has constructed the building on the leased premises, implying that it is the plaintiffs who had constructed the built- up structure on the land which was leased to the predecessor-in -interest of the appellant. Ld. Trial Court however has held that subject matter of the lease was a vacant piece of land which fact had been admitted by the defendant.
6. I have carefully considered the rival submissions.
1. 7. So far as the finding returned by the ld. Trial court on the appellant-defendant's plea of extension of lease deed and regarding existence of an agreement to sell is concerned, same is supported by cogent reasoning and warrants no interference. If the lease had been extended in the yr. 1975, it was incumbent upon the defendant to have filed such a lease deed but admittedly, same was not filed. What is on record regarding extension of lease is merely an agreement to extend the lease which admittedly was never acted upon. Plea of a subsisting agreement to sell was raised to protect the possession of the appellant-defendant. However, in the absence of registration of the agreement to sell, u/s 17 (1A) of the RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 4 of 6 Registration Act, possession of the purchaser cannot be protected. Additionally, even the agreement to sell has not been filed on court record. Instead copy of a receipt of Rs. 5 lacs purportedly signed by the respondent-plaintiffs has been filed on court record which in the absence of the underlying agreement, proves or indicates nothing.
8. This brings us to the 3rd plea i.e. that the lease was not just of a piece of vacant land but superstructure along with it and hence, in view of the rate of monthly rent, provisions of DRC would be applicable resulting in ouster of the jurisdiction of the civil court. Both the parties, in their pleadings before ld. Trial Court, have maintained a conspicuous silence as to who has constructed the super structure on the leased land? Appellant-defendant contends that it is the plaintiffs but respondent- plaintiffs contend otherwise and have even gone to the extent of submitting that let the appellant-defendant remove the superstructure and take it away. Appellant has argued that respondent-plaintiffs had filed a site plan alongwith the plaint which details the superstructure existing on the land in question and which shows that it is the plaintiffs who have constructed the same. At this stage, it needs a reiteration that jurisdiction of the Court to entertain the suit has been specifically admitted by the appellant-defendant in his written statement. Before this Court however, it has been argued that DRC would be applicable since lease was not merely of a vacant land but of the superstructure on it. This argument stems from the observation given by the ld. Trial Court itself in the impugned order where in it records that DRC Act is applicable in case of a superstructure and not a vacant piece of land.
RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 5 of 69. Faced with the inconclusive allegations and counter-submissions regarding the ownership of superstructure, trial court record was extensively analysed. Perusal of the Relinquishment deed dt. 03.02.2017 (on which plaintiffs have placed reliance) brings out an interesting fact. The Deed reveals that the releasers have relinquished their right in the superstructure on the land in question alongwith the land in question so as to convey the complete ownership rights to the respondent-plaintiffs. The Relinquishment deed specifically states that the built up property was owned by Attar Singh, who was son of the original land owner and lessor Sh. Channamal. If the respondent-plaintiffs had no right in the superstructure, how is that the releasers relinquished their right in the same and conveyed the ownership rights in the land as also the superstructure to the respondent- plaintiffs? In view of the specific observation of the ld. Trial Court in the impugned order regarding non- applicability of the provisions of the DRC Act to the facts of the case and the recitals of the Relinquishment deed dt. 03.02.2017, it becomes imperative that the ld. Trial Court applies its mind afresh on the aspect of the applicability of DRC Act to the facts of the present case. Consequently, the order dt. 20.08.2019 is set aside with directions to the Trial Court to apply its mind again on the application under Order 12 Rule 6, in the backdrop of the recitals of the relinquishment deed which has been relied upon by the respondent-plaintiffs themselves. Appeal is allowed in the above terms. A copy of this order be sent to the Trial Court, alongwith the trial court record, immediately.
Announced in the open court (Ajay Gulati-01) RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 6 of 6 on 28th January, 2023 Addl. District Judge- 02 (West District) RCA NO. 120/19 Kishan Chander Vs Om Wati & Ors. Page 7 of 6