Delhi District Court
Sohan Lal vs Anand Prakash on 2 July, 2024
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Sh. Himanshu Raman Singh
CS SCJ No. 90/19
CNR No. DLWT-03-000160-2019
Sh. Sohan Lal
S/o. Late Balak Ram
R/o. 2649, Shadipur Main Bazar,
New Delhi - 110008. ....Plaintiff
Versus
1. Sh. Anand Prakash,
S/o. Late Banwari Lal,
Shop in Property No. 2649,
Shadipur Main Bazar, New Delhi - 110008.
Second Address :-
Sh. Anand Prakash,
S/o. Late Banwari Lal,
R/o. 2986, First Floor, Gali No. 11,
Ranjit Nagar, New Delhi - 110008.
2. Tata Power Delhi Distribution Ltd.
Head Office Hudson Lines,
Kingsway Camp, Delhi.
3. Tata Power Delhi Distribution Ltd.
Consumer Care Centre,
Keshav Puram, New Delhi - 110035. .....Defendant
SUIT FOR PERPETUAL INJUNCTION
Date of Filing : 11.01.2019
Date of Judgment : 02.07.2024.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 1 of 30
JUDGMENT
1. The present suit has been instituted by the plaintiff seeking decree for perpetual injunction. The plaintiff has sought following prayers:-
(a) a decree for Perpetual injunction in favour of the plaintiff and against the defendants directing the defendant no. 2 and 3, their assignees, representatives, not to sanction and install new electricity connection in the tenanted premises in (shop) as shown red in the site plan attached with the plaint situated at the ground floor in property No. 2649, Shadi Pur, Main Bazar, New Delhi-110008, in the name of the defendant no. 1, without getting the NOC from the plaintiff.
(b) Cost of the suit.
BRIEF FACTS OF THE CASE
2. It has been stated that the father of the plaintiff Late Shri Balak Ram was the owner of the property bearing No. 2649, Shadipur Main Bazar, New Delhi, and he had inducted the father of the defendant no. 1 namely Shri Banwari Lal as a tenant in a portion situated at the ground floor of above-said property consists of one shop as shown red in the site plan attached with the plaint at the rate of Rs. 40/- per month excluding of all other charges.
3. It has been contended that the father of plaintiff, Shri Balak CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 2 of 30 Ram has since died on 26.04.1992 and after his death the plaintiff became the owner of the aforesaid property and started collecting the rent from the father of the defendant no. 1 and the rent receipts were duly issued to the father of the defendant no.1 till he paid the rent to the plaintiff in the note book so maintained by him. It has been contended that after the death of the father of the defendant no. 1, the defendant no. 1 was accepted as tenant in the tenanted premises and now the monthly rent of the aforesaid shop is Rs. 900/- per month excluding of electricity and other charges. Rent receipt has been issued to the defendant no. 1 in his note book by the plaintiff as and when the rent was paid to the plaintiff by the defendant no.1.
4. It has been contended that the plaintiff is also residing in property bearing municipal No. 2649, Shadipur Main Bazar, New Delhi as the plaintiff has received the ground floor, first floor, second floor and third floor of that property in partition between Shri Udai Ram, the uncle of the plaintiff and Shri Balak Ram, the father of the plaintiff as shown in the Site plan and he is residing therein along with his family members. The defendant no. 1 is a tenant in the shop as shown red in the site Plan situated at the ground floor.
5. It has been contended that there is only one electric connection for Domestic Light bearing CA No. 60008716692 and the same has been installed in the above property in the name of the CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 3 of 30 plaintiff and there is no non-domestic or commercial connection in the aforesaid property which is owned by the plaintiff. It has been contended that no electricity for non domestic purposes was provided either to the father of the defendant no. 1 or to the defendant no. 1 by the plaintiff. Though the electricity was available in the aforesaid shop which was taken by the father of the defendant no. I from the other co-owner of adjoining property. It has been contended that in the property in question at the ground floor there is a shop which is under the tenancy of the defendant no. 1 as shown in red colour in the site plan. The other portion of ground floor is used as passage for the owner of property No. 2650, Shadi Pur Main Bazar, New Delhi and is also used for parking of two wheelers/bikes of the aforesaid persons. That portion cannot be used for any purposes either residential or for commercial purposes except the passage.
6. It has been contended that the plaintiff is suffering from knee problem and is unable to climb stairs and he has been advised not to climb / use stairs. It has been contended that the plaintiff is also suffering from the disease of prostate, hernia and stone problem. It has been contended that the plaintiff is also suffering from severe arthritis and he has been advised by the doctors to abstain from using staircase and he is also suffering from various old age ailments. It has been contended that the plaintiff is, at present, residing on the third floor therefore, the plaintiff wishes to shift to the ground floor of the property, CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 4 of 30 which is Currently in possession of the tenant that is the defendant no. 1.
7. It has been contended that the plaintiff is not having any residential accommodation for his residence in his old age, situated at the ground floor in his own name and the tenanted premises under the tenancy of the defendant no. 1 is convenient and suitable for residence of the plaintiff and there is no other vacant premises/accommodation in which the plaintiff can live at the ground floor. It has been contended that the aforesaid tenanted premises under the tenancy of the defendant no. 1 can be conveniently put to residential purposes without any interference to the commercial users in the adjoining portions by putting a door inside the ground floor portion of the house for the residence of the plaintiff.
8. It has been contended that in June 2018, the plaintiff filed an eviction petition against the defendant No. 1 for his bonafide need as the aforesaid accommodation available with the plaintiff in property no. 2649, Shadi Pur Main Bazar, New Delhi is not suitable for the plaintiff and no suitable alternative accommodation is available with the plaintiff to accommodate him at the ground floor and the aforesaid eviction petition was pending before the Court of Learned CCJ cum ARC (West) Delhi and the defendant no. 1 was duly served with the summons of the aforesaid eviction petition and he filed leave to defend the eviction petition. It has been contended that the CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 5 of 30 defendant no. 1 filed leave to defend in the aforesaid eviction petition. In leave to defend application the defendant no. 1 has denied the relationship of landlord and tenant between the plaintiff and him. The defendant no. 1 has claimed that he is in hostile, continuous and adverse possession of the aforesaid tenanted premises in question and that he has never paid the rent to the plaintiff in respect to the aforesaid shop.
9. It has been contended that the defendant no. 1 paid the rent up to May 2018 @ Rs. 900/- per month to the plaintiff but after the receipt of the summons of the aforesaid eviction petition, the defendant no. 1 did not pay the rent of the tenanted premises from June 2018 onwards despite repeated requests and demands of the plaintiff on various occasions. The plaintiff sent a legal demand cum termination of tenancy notice dated 29.09.2018 through his counsel demanding the arrears of rent and the tenancy of the defendant no. I was terminated w.e.f. 31.10.2018. It has been contended that through the aforesaid notice dated 29.09.2018 the defendant no. I was called upon to vacate the tenanted premises and to hand over the vacant and peaceful possession of the tenanted premises by that date and to pay the damages for use and occupation charges at the rate of Rs. 10,000/- per month of the aforesaid shop which is under his tenancy which is the prevailing market rate of rent of the similar size of accommodation in the area in which the tenanted premises is situated. It has been contended that the defendant no. 1 sent a reply dated 08.10.2018 to the aforesaid notice dated CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 6 of 30 29.09.2018 so sent by the plaintiff. In the reply dated 08.10.2018 the defendant no. 1 denied that the plaintiff is the owner of the suit property and that the possession of the defendant no. 1 is hostile, continuous and adverse to the plaintiff and that the defendant no. 1 has not paid any rent at any point of time to the plaintiff. The defendant no. 1 never accepted the plaintiff as his landlord, therefore he is having no right to receive and increase the rent as stated in the aforesaid demand notice. There is no relationship of landlord and tenant between the plaintiff and the defendant no. 1. The defendant no. 1 further alleged that the plaintiff should not initiate any proceeding on the basis of the aforesaid demand notice dated 29.09.2018 against the defendant no. 1. It has been contended that the defendant no. 1 sent reply to the demand notice dated 29.09.2018. In the reply dated 08.10.2018 the defendant no. 1 claimed himself to be owner of the suit property by way of adverse possession and also denied the title of the plaintiff.
10. It has been contended that the defendant no. 1 had not paid the dues of electricity to the owner from where the electricity was received by the defendant no. 1 from the other adjoining property and that might have been the reason for the disconnection of the electricity of the said shop of the defendant no. 1. It has been contended that the defendant no. 1 threatened to get a fresh electric connection in his name from the defendant no. 2 and 3 even without getting NOC from the plaintiff. It has been contended that it came to the knowledge CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 7 of 30 of the plaintiff that the defendant no. 1 is trying to obtain the new electricity connection from the defendant no. 2 and 3, the plaintiff sent a letter dated 02.01.2019 to the Revenue Officer of the defendant no. 2 and 3 at Keshav Puram, Delhi not to sanction and install new electric connection in the said shop which is owned by the plaintiff. On 08.01.2018 the plaintiff also went to the office of the defendant no. 2 and 3 at Keshav Puram, Delhi and from the said office it was disclosed to the plaintiff that they will sanction and install the electric connection if the commercial formalities are completed by the defendant no. 1, who has applied for the fresh electric connection. It has been contended that the defendant no. 2 and 3 are adamant to provide the Non Domestic electric connection in the property of the plaintiff with out getting the NOC from the plaintiff. (The plaintiff has also informed to the defendant no. 2 and 3 that in case the defendant no. 1 will not pay his electricity bills in future after the passing of eviction order in the eviction petition so filed by the plaintiff.) It was also submitted that if the regular bill in respect to the aforesaid connection is not paid by the defendant no. 1 to the authority, then the defendant no. 2 and 3 may transfer the aforesaid dues on the other connection installed in the name of the plaintiff in the aforesaid property. It has been contended that the plaintiff being owner of the property will suffer an irreparable loss if the said amount is to be added in the bills of the earlier connection installed in the aforesaid property.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 8 of 30 WRITTEN STATEMENT FILED BY THE DEFENDANT NO. 111. It has been averred that the suit of the plaintiff is false, frivolous, vexatious, misconceived, abuse of process of law and the same has been filed by the plaintiff just to harass, pressurize the defendant and blackmail him. It has been averred that the defendant no. 1 is in hostile, continuous and adverse possession of one shop at ground floor forming part of Shadipur Main Bazar, Property No.2649, New Delhi-110008, since 1980 and earlier the father of the answering defendant was in possession of the said shop since 1963.
12. It has been contended that earlier the answering defendant was getting the electricity supply from Mr. Parveen Kumar, who was having commercial electricity connection in the adjacent property. The answering defendant had been regularly paying the electricity charges to Shri Parveen Kumar. Shri Parveen recently stopped doing commercial activities and he has surrendered the commercial electricity connection on 18.12.2018, therefore, the answering defendant is not enjoying the essential amenity of electricity w.e.f. 18.12.2018. It has been contended that the electricity is an essential amenity and the defendant cannot run his business in the absence of electricity. It has been contended that the answering defendant is doing the work of Gold Smith and the said business cannot be run without electricity.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 9 of 3013. It has been averred that the answering defendant has applied with the defendant No.2 and 3 for a new electricity connection on 22.12.2018 and the defendants No. 2 and 3 issued registration No.2019245477 and the officials of the defendant Nos.2 and 3 inspected the site on 28.12.2018 and took photograph of the shop in question. It has been contended that the defendant Nos.2 and 3 put certain conditions to be fulfilled by the answering defendant for obtaining commercial electricity connection. It has been contended that since the answering defendant is in hostile, continuous and adverse possession of the suit said shop and has no ownership documents, therefore the defendant no. 1 cannot fulfill the conditions put forth by the defendants no. 2 and 3.
14. It has been averred that the plaintiff has no right, title or interest whatsoever in the suit property and he has no locus standi to file the present suit and as the plaintiff has not filed any document to substantiate his bald allegations. It has been contended that no cause of action ever arose in favour of the plaintiff to file the present suit and hence the plaint is liable to be rejected under Order 7 Rule 11 CPC.
15. It has been averred that the suit of the plaintiff is not maintainable under section 41 (h) and (j) of Specific Relief Act. Under the garb of present suit, the plaintiff infact is seeking relief of declaratory nature. It has been contended that neither the suit is valued properly for the purpose of court fees and CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 10 of 30 jurisdiction nor ad-valorum court fees has been affixed on the plaint. It has been contended that the suit of the plaintiff is defective because under the garb of perpetual injunction, the plaintiff has infact sought a decree of mandatory injunction.
WRITTEN STATEMENT FILED BY THE DEFENDANTS NO. 2 & 3
16. It has been averred that the suit is not maintainable against the answering defendants no. 2 and 3 as they are licensee for distribution of electricity to follow rules and law for grant of new electricity connection as per the provision of Section 10 DERC Regulation Act 2017. It has been averred that the present suit is without any cause of action and the plaintiff is not entitled to relief as claimed by him in view of the Section 41 (h) of the Specific Relief Act.
17. Replication to the written statements of the defendants filed by the plaintiff, in which he has reiterated the facts mentioned in the plaint.
ISSUES
18. From the pleadings of the parties, following issues were framed on 14.02.2020 :-
1. Whether the plaintiff has not come with clean hands and has suppressed the material facts? OPD-1
2. Whether the plaintiff has no locus standi to file the present CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 11 of 30 suit ? OPD-1
3. Whether the suit is hit by Section 41 (h) and (i) of Specific Relief Act? OPDs
4. Whether the plaintiff is entitled to decree of decree of perpetual injunction, as prayed for? OPP
5. Relief.
PLAINTIFF EVIDENCE
19. Plaintiff Sh. Sohan Lal has examined himself as PW1. In his examination, PW1 has relied upon the documents i.e. copy of assessment and survey record Ex.PW1/1, copy of house tax payment receipt Ex.PW1/2, site plan Ex.PW1/3, copy of death certificate of Balak Ram Ex.PW1/4, certified copy of eviction order dated 19.08.2020 in E. No. 17/18 Ex.PW1/5, copy of notice dated 29.09.2018 terminating the tenancy of defendant no. 1 Ex.PW1/6, reply dated 18.10.2018 of defendant no. 1 to the legal notice dated 29.09.2018 Ex.PW1/7 and copy of letter dated 02.01.2019 to the Revenue Office TPDDL Keshav Puram Ex.PW1/8 and copy of ration card Mark A. He was cross- examined at length by the Counsel for the defendants.
20. Plaintiff has also examined Sh. Jayant Kumar, JSA, Assessor and Collector Department (MCD) as PW2, who was the summoned witness and has brought the summoned record in respect of the survey and assessment carried out on 01.04.1969. the certified copy of the same has already been exhibited in the examined of PW1 as Ex.PW1/1.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 12 of 3021. Plaintiff has also examined Sh. Mahinder Kumar, Manager, TPDDL as PW3, who was the summoned witness and had brought the summoned record pertaining to K.NO. 212/DL/136069 now CA No. 60008716692 in the name of Sh. Sohan Lal S/o. Sh. Balak Ram, which was a domestic connection installed at the property no. 2649, First Floor, Shadipur Main Bazar, New Delhi - 110008.
22. Thereafter the plaintiff's evidence was closed.
DEFENDANTS' EVIDENCE
23. Defendant No. 1 has stepped into the witness box and examined himself as DW1 and tendered his affidavit in evidence Ex.DW1/A.
24. Thereafter, evidence on behalf of the defendant no. 1 was closed on 08.05.2024.
25. No evidence was led by the defendants no. 2 and 3.
26. I have heard Learned Counsels for the parties at length and gone through the record carefully. My issue-wise findings are as under:-
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 13 of 30 ISSUES NO. 1 to 31. Whether the plaintiff has not come with clean hands and has suppressed the material facts? OPD-1
2.Whether the plaintiff has no locus standi to file the present suit ? OPD-1
3.Whether the suit is hit by Section 41 (h) and (i) of Specific Relief Act?
OPDs
27. The onus to prove these issues was upon the defendants.
28. It has been contended by Learned Counsel for the plaintiff that the father of the plaintiff Late Balak Ram was the owner of property No. 2649, Shadi Pur Main Bazar, New Delhi and the aforesaid property is assessed to house tax purposes in the name of his father and the plaintiff obtained the certified copy of the assessment and survey record of the above property and proved the same as Ex. PW 1/1. The house tax is also paid in respect to the aforesaid property and the house tax payment receipt has been proved as Ex. PW1/2. It has been further contended by Learned Counsel for the plaintiff that the father of the defendant no. 1 namely Shri Banwari Lal was inducted as tenant by him in a portion situated at the ground floor of above property consists of one shop as shown red in the site plan Ex. PW 1/3 attached with the plaint at the rate of Rs. 40/- per month excluding of all other charges and no electricity supply was provided in the tenanted premises to the father of defendant No. 1 and it was an oral tenancy. It has been contended by Learned Counsel for the plaintiff that Shri Balak Ram had died on 26.04.1992 and his death certificate has been proved on record CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 14 of 30 as Ex. PW1/4 and after his death, the plaintiff became the owner of the aforesaid property and started collecting the rent from the father of the defendant No. 1. The rent receipts were duly issued to the father of the defendant No. 1, by him till he paid the rent in the note book so maintained by him and after the death of tenant Shri. Banwari Lal, the father of the defendant no. 1, the defendant no. 1 was accepted as tenant in the tenanted premises by the plaintiff.
29. It has been further contended by Learned Counsel for the plaintiff that now the monthly rent of the aforesaid shop is Rs.900/- per month excluding of electricity and other charges. Rent receipt has been issued to the defendant no. 1 in his note book by the plaintiff so maintained by him as and when the rent was paid to the plaintiff by the defendant no. 1. It has been contended by Learned Counsel for the plaintiff that plaintiff is also residing in property bearing municipal No. 2649, Shadipur Main Bazar, New Delhi along with his family members. Proved copy of ration card in his name as Mark A. It has been further stated that his father received the ground floor, first floor, second floor and third floor of that property No. 2649, Shadi Pur Main Bazar, New Delhi in partition between him and his uncle, Shri Udai Ram and his father Shri Balak Ram, also used to reside in the said property as shown in Ex. PW 1/3 and the defendant no. 1 is a tenant in the shop at the ground floor as shown red in the site plan.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 15 of 3030. It has been contended by Learned Counsel for the plaintiff that there is only one electric connection in the said property for Domestic Light bearing CA No. 60008716692 in his name. There is no other Non Domestic or commercial connection installed in the aforesaid property which is owned by him. No electricity for non domestic/commercial purposes was ever provided either to the father of the defendant no. 1 or to the defendant no. 1 at any point of time. The electricity was available in the aforesaid shop which was taken by the father of the defendant no. 1 from the other co- owner of adjoining property. It has been contended by Learned Counsel for the plaintiff that at the ground floor there is only one shop which is under the tenancy of the defendant no. 1 as shown red in colour in the site plan. The other portion of ground floor is used as passage for the owner of property No. 2650, Shadi Pur Main Bazar, New Delhi and is also used for parking of two wheelers/bikes of the aforesaid persons. That portion cannot be used for any purposes either residential or for commercial purposes except for the passage.
31. It has been contended by Learned Counsel for the plaintiff that plaintiff is suffering from Knee problem and is unable to climb stairs. He is also suffering from the disease of prostate, hernia, stone problem and severe arthritis. He has been advised by the doctors to abstain from using staircase. He is also suffering from various old age ailments whereas he is at present residing on the third floor of above property. Therefore, the plaintiff CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 16 of 30 wanted to shift to the ground floor of the property, which is currently in possession of the tenant, the defendant no. 1. It has been further stated that since the plaintiff was not having any residential accommodation for his residence in his old age, situated at the ground floor in his own name and the tenanted premises under the tenancy of the defendant no. 1 is convenient and suitable for his residence and there is no other vacant premises/accommodation in which he can live at the ground floor. The aforesaid tenanted premises under the tenancy of the defendant no. 1 can be conveniently put to residential purposes without any interference from commercial users in the adjoining portions by putting a door inside the ground floor portion of the house for his residence.
32. It has been contended by Learned Counsel for the plaintiff that the plaintiff has filed an eviction petition against the defendant No. 1 for his bonafide need as the aforesaid accommodation available with him on the third floor in property No. 2649, Shadi Pur Main Bazar, New Delhi, is not suitable and no suitable alternative accommodation is available with him to accommodate himself at the ground floor. The aforesaid eviction petition No. 17 of 2018 has been decided by the Court of Shri Rajinder Kumar, the then Learned SCJ cum RC (West) Delhi on 19.08.2020 in which the leave to defend application so moved by the defendant no. 1 was dismissed and eviction order was passed against the defendant No. 1. The certified copy of the said eviction order dated 19.08.2020 is exhibited as Ex. PW CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 17 of 30 1/5.
33. It has been contended by Learned Counsel for the plaintiff that the defendant no. 1 paid the rent up to May 2018 @ Rs. 900/- per month to him but after the receipt of the summons of the aforesaid eviction petition, the defendant no. 1 did not pay the rent of the tenanted premises from June 2018 onwards despite the repeated requests and demands of the plaintiff on various occasions. It is the case of the plaintiff that he sent a legal demand cum termination of tenancy notice dated 29.09.2018 through his counsel demanding the arrears of rent and the tenancy of the defendant no. 1 was terminated w.e.f. 31.10.2018. That the computerized copy of the notice dated 29.09.2018 is proved as Ex. PW 1/6. It has been contended by Learned Counsel for the plaintiff that through the aforesaid notice dated 29.09.2018 so sent by the plaintiff the defendant no. 1 was called upon to vacate the tenanted premises and to hand over the vacant and peaceful possession of the tenanted premises by 31.10.2018 and to pay the damages for use and occupation charges at the rate of Rs. 10,000/- per month of the aforesaid shop which is under his tenancy which is the prevailing market rate of rent of the similar size of accommodation in the area in which the tenanted premises is situated. It has been further stated that the defendant no. 1 sent a reply dated 08.10.2018 to the aforesaid notice dated 29.09.2018 so sent by the plaintiff. In the reply dated 08.10.2018 the defendant no. 1 denied that the plaintiff is the CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 18 of 30 owner of the suit property and that the possession of the defendant no. 1 is hostile, continuous and adverse to the plaintiff and that the defendant no. 1 has not paid any rent at any point of time to the plaintiff.
34. It has been contended by Learned Counsel for the plaintiff that after denial of the title of the plaintiff in respect of the suit property, the defendant No. 1 might not have paid the dues of electricity to the owner from where the electricity was received by him from the other adjoining property and that might have been the reason for the disconnection of the electricity of the said shop which is owned by the plaintiff and under the tenancy of the defendant No. 1. It has been stated that when it came to the knowledge of the plaintiff that the defendant No. 1 is trying to obtain the electricity from the defendant No. 2 and 3, the plaintiff sent a letter/representation to the Revenue Officer of defendant No. 2 and 3 at Keshav Puram, Delhi not to sanction and install new electric connection in the said shop which is owned by the plaintiff. It has been contended by Learned Counsel for the plaintiff that the aforesaid letter is exhibited as Ex. PW 1/8. On 08.01.2018, the plaintiff went to the office of the defendant No. 2 and 3 at Keshav Puram, Delhi and from the said office it was disclosed to the plaintiff that they will sanction and install the electric connection, if the commercial formalities are completed by the defendant No. 1, who has applied for the fresh electric connection in respect of the suit property. It has been contended by Learned Counsel for the CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 19 of 30 plaintiff that the defendant No. 2 and 3 were adamant to provide the Non Domestic electric connection in the name of the defendant No. 1, in the tenanted shop in the property so owned by the plaintiff without obtaining NOC from the plaintiff. The defendant No. 1 is having no right, title or interest in the suit property to get a fresh electric connection in his name without getting the commercial formalities completed but the defendant no. 2 and 3 were not listening to the request of the plaintiff and hence the present suit has been filed by the plaintiff as he was having no other equally efficacious remedy with him against the defendants.
35. It has been contended by Learned Counsel for the plaintiff that the certified copy of the assessment and survey record of the suit property has been exhibited as Ex. PW 1/1 and that has also been proved by the witness summoned from the MCD House Tax Department namely Shri Jayant Kumar, PW 2. That proved that the property in question is mutated in the name of Shri Balak Ram, who is the father of the plaintiff. It is submitted that it is held in the case titled as Mansa Ram Vs. Sohan Singh (54 DLT 434) that a person who pays house tax of a property is ordinarily its owner. It has been stated that the defendant No. 1 preferred Rent Control Revision No. 249/2020 which is pending before the Hon'ble High Court of Delhi and now fixed for 19.07.2024. In that petition vide order dated 18.12.2023 the defendant No. 1 has been directed to deposit the damages for use and occupation charges in the account of the plaintiff herein CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 20 of 30 at the rate of Rs. 5,000/- per month and the defendant No. 1 is complying with the aforesaid order.
36. It has been submitted by Learned Counsel for the plaintiff that section 22 of the Indian Electricity Act, 1910 makes it obligatory on the licensee to supply energy within the area of supply. It is submitted that being in settled possession, the defendant No. 1 has a statutory right to receive electric connection. The NDPL have a corresponding statutory obligation to provide electricity to the defendant No. 1. The defendant No. 1 being a tenant is entitled to separate electricity connection when it is proved on record that the electricity was provided by the landlord and disconnected by the landlord otherwise the tenant is not entitled to get the fresh electric connection. 27. It has been further submitted that it is pleaded and has also come in the evidence of the plaintiff that in his aforesaid property, there is only one electric connection for Domestic Light bearing CA No. 60008716692 which is in his name. There is no other Non Domestic or commercial connection installed in the aforesaid property which is owned by him. No electricity for non domestic/commercial purposes was ever provided either to the father of the defendant no. 1 or to the defendant no. 1 at any point of time. The electricity was available in the aforesaid shop which was taken by the father of the defendant no. 1 from the other co-owner of adjoining property.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 21 of 3037. It has been stated by Learned Counsel for the plaintiff that defendant No. 1 in the written statement is claiming adversely to the plaintiff, which implies that the defendant is admitting the title of the plaintiff. The law is settled that mere long occupation does not amount to adverse possession as held by the Hon'ble Supreme Court in "Roop Singh Vs. Ram Singh (2000) 3 SCC 708" and followed by the Hon'ble High Court in "Jagdish Chander Talwar Vs. Uday Sarin (2013) 134 DRJ 677"
and "Om Parkash Vs. South Delhi Municipal Corporation". It has been further submitted that the law is settled that once a tenant always a tenant. It is held in "Jaspal Kaur Cheema & anr. Vs. M/s. Industrial Trade Links & Ors" decided on 03.07.2017 by the Hon'ble Supreme Court wherein it is held that the tenant who has been let into possession cannot deny his landlord title. It came on record that the shop in suit is part of property No. 2649, Shadi Pur Main Bazar, New Delhi and the father of the defendant No. 1 was inducted as tenant and he expired in the year 1980 and since then the defendant no. 1 is doing the business in the suit shop. The defendant no. 1 has inherited the rights which his father was having in the tenanted premises. It has been further submitted that it is well settled law that plea of adverse possession is not a pure question of law but a blended one of fact and law. As such, a person who claims adverse possession should prove; on what date he came into possession, what was the nature of his possession, whether the factum of possession was known to the other party, how long his possession has continued, and whether his possession was open CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 22 of 30 and undisturbed.
38. Learned Counsel for the plaintiff has relied upon the judgment of the Hon'ble Apex Court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors., AIR 2009 SC 103, in which it was held that since a person claiming adverse possession intends to defeat the rights of the true owner, onus is heavily cast upon him to clearly plead and establish all facts necessary to establish his adverse possession. [The defendant No. 1 has failed to prove his adverse possession in the suit property. The Hon'ble Apex Court In Karnataka Board of Wakf v. Govt. Of India (2004) 10 SCC 779 at para 11, observed "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." It is further held that a person CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 23 of 30 pleading adverse possession has no equities in his favour.
39. It has been contended by Learned Counsel for the plaintiff that the defendant no. 1 is trying to defeat the rights of the plaintiff/true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It is also submitted that `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. In T. Anjanappa & Others v Somalingappa & Another [(2006) 7 SCC 570] the Hon'ble Supreme Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that the classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property.
40. It has been contended by Learned Counsel for the plaintiff that the defendant No. 1 has failed to prove on record that the suit property is Government Land. Acquired by any award. He has also failed to prove that his possession is adverse to that of the plaintiff. On the other hand the plaintiff has proved his title in the suit property by calling the record of MCD and also from CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 24 of 30 the record from the electricity department. The plaintiff is entitled to the relief as claimed and the defendant No. 1 cannot be provided a fresh electric connection in the suit property without getting the commercial formalities completed and without obtaining the NOC from the plaintiff in the suit property.
41. Per contra, it has been contended by Learned Counsel for the defendants no. 2 & 3 that electricity connection is existing in the suit property in the name of the plaintiff.
42. It is also contended by the plaintiff that after the order of eviction of the defendant no. 1, vide order dated 19.08.2020 in Eviction Petition no. 17/2018 by the Court of Sh. Rajender Kumar, the then Learned SCJ Cum RC (West), Delhi, the defendant no. 1 preferred a rent control Revision No. 249/2020 before the Hon'ble High Court of Delhi, in which vide order dated 18.12.2023, the defendant no. 1 was directed to deposit the damages for use and occupation charges in the account of the plaintiff at the rate of Rs. 5,000/- per month and the defendant no. 1 is complying with the said order.
43. The defendant no. 1 is claiming to be the owner of the suit property through adverse possession. The defendant no. 1 has however not filed any case for declaration of ownership in his favour on the basis of adverse possession. The defendant could have also advanced and substantiated the plead of adverse CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 25 of 30 possession in the suit which he has vehemently failed to do so. The defendant no. 1 has failed to substantiate his contention that he has perfected his title by adverse possession and has become the owner of the said portion of the suit property. He has been unable to prove that his possession is open, continuous and adverse to the true owner. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S. M. Karim Vs. Bibi Sakina [1964] 6 SCR 780 speaking for this Court Hidayatullah, J. (as he then was) observed thus: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
44. In the wake of the settled law on the point of perfecting of title by adverse possession, the defendant has failed to prove that he has become owner of the suit property. Further, in light of the Revision Proceedings before the Hon'ble High Court of Delhi, where the defendant no. 1 was directed to pay use and occupation charges and the further compliance of the said order by the defendant no.1 shows that the defendant no. 1 is making bald allegations to denial plaintiff of his lawful rights. The defendant no. 1's stand that he has perfected his title by adverse CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 26 of 30 possession is defied.
45. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which reads as under:
"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
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46. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19 March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24.The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 27 of 30 various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
47. As discussed earlier, the issues in the civil cases are to be decided on the scale of preponderance of probabilities. From the submissions advanced and pleadings on record, it is held that plaintiff has been successful in discharging the burden of proof cast upon him. On the other hand, the defendants have failed to discharge the burden cast upon them. In view of the above-detailed discussion, the issues no. 1 to 3 are decided in favour of the plaintiff and against the defendants.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 28 of 30 ISSUE NO. 4(4. Whether the plaintiff is entitled to decree of decree of perpetual injunction, as prayed for? OPP)
48. The onus to prove this issue was upon the plaintiff.
49. In view of the detailed discussion on the issues no. 1 to 3, issue no. 4 is also decided in favour of the plaintiff and against the defendants. Defendants no. 2 and 3 are directed to not sanction and install the new electricity connection in the name of the defendant no. 1 in the tenanted premises i.e. shop as shown red in the site plan attached with the plaint situated at the ground floor in property No. 2649, Shadi Pur, Main Bazar, New Delhi- 110008, without getting the NOC from the plaintiff.
RELIEF
50. The suit is decreed in favour of the plaintiff. Plaintiff is held entitled to a decree of perpetual injunction thereby directing the defendants no. 2 and 3 to not sanction and install the new electricity connection in the name of the defendant no. 1 in the tenanted premises i.e. shop as shown red in the site plan attached with the plaint situated at the ground floor in property No. 2649, Shadi Pur, Main Bazar, New Delhi-110008, without getting the NOC from the plaintiff till the time ownership is otherwise declared.
51. Plaintiff shall also be entitled to costs of the suit.
CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 29 of 3052. Decree sheet be prepared, after payment of deficient Court fees, if any.
53. File be consigned to record room after necessary compliance.
Digitally signedHIMANSHU by HIMANSHU RAMAN SINGH RAMAN Date: SINGH 2024.07.02 16:57:51 +0530 Announced in the open Court Himanshu Raman Singh on 02.07.2024. SCJ-cum-RC (West) Tis Hazari Court/Delhi 02.07.2024 CS No. 90/19 Sohan Lal Vs. Anand Prakash & Ors. Page 30 of 30