Delhi District Court
Devi Charan Gupta (Deceased) vs Sh. Balbir Singh on 18 July, 2014
IN THE COURT OF SH. PRANJAL ANEJA, CIVIL JUDGE06,
TIS HAZARI COURTS, DELHI
Suit No. 82/14
Case ID No. 02401C0257142002
Devi Charan Gupta (deceased)
And others through Sh. S. K. Gupta
S/O, Late Sh. Devi Charan Gupta
R/O, 6, Under Hill Road,
Civil Lines, Delhi110054
.... Plaintiff.
Versus
1. Sh. Balbir Singh
Available at Messrs. New Airways travel
(Delhi) Private Limited,
84, Tolstoy Lane, Cannaught Place,
New Delhi110001.
2. Shri Swaran Singh,
Available at Messrs. New Airways travel
(Delhi) Private Limited,
84, Tolstoy Lane, Cannaught Place,
New Delhi110001 .... Defendants.
SUIT FOR POSSESSION, INJUNCTION,
MESNE PROFITS & DAMAGES
Date of Institution : 29.05.1999
Date of reserving Judgment : 16.07.2014
Date of pronouncement :18.07.2014
Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 1 of 13
Dated: 18.07.2014
JUDGMENT
1. The present suit has been filed on behalf of the plaintiff against the defendants for recovery of possession of immovable property, for injunction, permanent and mandatory, for damages and for mesne profits.
2. The brief facts as per the amended plaint (allowed vide order sheet dated 29.07.2004) are that the plaintiffs are stated to be the owners of entire property bearing no. 40, block no. 134 which is now popularly known as 84 Janpath, New Delhi and 84, 84A, Tolstoy Lane, Cannaught Place, New Delhi which is subject matter of deed of perpetual lease dated 18.02.1939 and registered on 13.03.1939 for land admeasuring about 7246 sq. ft. The plaintiffs then erected the building on the said land.
3. It is alleged that in or about 1975 a portion of premises bearing no. 84, Tolstoy Lane were let out defendant no. 1 and 2 at a monthly rent which is presently Rs. 290.40 paise. The let out portion comprises of three rooms measuring about 450 sq ft and is described and shown in red colour in the site plan.
4. It is further alleged that in or about June, 1996 the defendants without permission of the landlords encroached the open land on the west side of the tenanted portion and they illegally and unauthorizedly covered said encroached portion by constructing two rooms of 7 X 8.6 ft and 3 X 7 ft and both these rooms are shown in green colour in the site plan. Defendants did not seek any permission from Municipal Authority or any other Competent Authority before constructing the room. On 20.06.1996 when plaintiffs came to know about the encroachments made they protested and asked the defendants to vacate the encroached portion and hand over possession but defendants avoided and failed to do so despite numerous requests thereafter. That the defendants have caused loss and damage to the premises let out to them by making unauthorized constructions and alterations by illegal coverage of the open space in breach of the Covenant between the parties and also in breach of NDMC Rules. The plaintiffs however are making a claim Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 2 of 13 Dated: 18.07.2014 for notional damage only in the sum of Rs. 30,000/-. It is therefore, prayed for decree of mandatory injunction directing the defendants to remove/demolish all the unauthorized construction made on the encroached portion shown in green colour and restore the same to its original condition and also for decree of possession for the said encroached portion. Damages for Rs. 30,000/-, as mentioned above, is also claimed. Permanent injunction to restrain the defendants from carrying out any additions, alterations, construction or modifications in the property and the adjacent area is also claimed. Decree for mesne profits at Rs. 5,000/- per month commencing from June, 1996 till possession is also claimed.
5. In the WS to the amended plaint, it is stated that the suit is barred by limitation. It is alleged that originally tenanted premises was taken on rent in December 1974 for carrying business and the premises consisted of two rooms, two halls and passage. It is alleged that in May/June 1975 the half portion of the tenanted premises were surrendered to the plaintiffs. That after surrendering the half portion, the plaintiffs themselves modified the original structure by erecting the walls and converted the passage into two equal parts closing the side entrance gate and opening the entrance gate from the front side. The partitioning walls was also broken by the plaintiff apart from opening the gate in the base wall to facilitate entrance to the rear portion of the suit property. Rest of the base wall remained intact. The plaintiff also constructed one room on the west side of the premises and since then the same is part of the tenanted premises and is in use and occupation of the defendants and therefore, there is no question of any type of alteration, addition, encroachment and substantial damage as alleged. That if any additional, alternation modification have been done, it was done by the plaintiffs themselves in the year 1975.
6. That the plaintiffs have also filed an eviction petition under the DRC Act which is pending. It is further alleged that the defendants are lawful tenants since inception @ Rs. 125/- per month excluding electricity and water charges Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 3 of 13 Dated: 18.07.2014 and paying rent to the plaintiffs against rent receipts but plaintiffs refused to take rent from defendants for last about 3 years and therefore, defendants deposited the rent u/s 27 of the DRC Act. It is denied that the original tenanted premises comprised of three rooms measuring 450 sq. yds. Other averments of the plaint are also denied.
7. In replication, the averments of the preliminary objection regarding letting out the premises in or around December 1974 and the fact of surrender in May/June 1975 are admitted. It is denied that originally the tenanted premises consisted of two rooms, two halls and passage, however, it is stated that in December 1974 six rooms comprises of 900 sq ft on the ground floor were rented to the defendants. Further stated that in May/June 1975 three rooms comprising of 450 sq ft were surrendered by the defendants to the plaintiffs and same portion so surrendered were let out to Sh. Manmohan Singh and Sh. Daman Singh It is stated that the rent agreed to be paid by the defendants was Rs. 125/- per month. It is denied that after the surrender of450 square feet of tenanted premises by the defendants, any modification in the original structure was made by the plaintiffs. All other averments of the WS have been denied and those of the plaint have been reiterated. The plaintiffs have also alleged that the alteration/damage/encroachment caused by the defendants is in violation of the guidelines of the L & DO which sent a legal notice dated 22.11.1999 to the plaintiffs and this notice shows that the defendant has made material alteration/damage/encroachment in the tenanted premises only recently i.e. in June 1996 and not in 1975.
8. Vide ordersheet dated 05.07.2001 the following issues were framed as under:-
1. Whether this court has no pecuniary jurisdiction to entertain the suit as alleged in P.O.7 ? OPD
2. Whether the suit is not properly valued as alleged in WS ? OPD
3. Whether the defendant are the lawful tenants in the suit property at a rent of Rs. 125/- p.m. excluding electricity/water charges as alleged?
Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 4 of 13 Dated: 18.07.2014 OPP (onus changed to OPD vide order dated 26.09.2012).
4. Whether the plaintiff is entitled a decree of possession of the suit property? OPP
5. Whether the plaintiff is entitled any damages/mesne profits, if so, how much amount or as claimed ? OPP
6. Whether the plaintiff is entitled a decree for perpetual/prohibitory/mandatory injunction as claimed? OPP
7. Relief.
9. To substantiate their case, Mr. Rajeev Gupta son and special attorney of plaintiff no. 3 appeared in the witness box as PW-4. Plaintiff also examined witness from L & DO as PW-1, LDC from Record Room as DW-2, draughtman as PW-3, Overseer in L & DO as PW-5 on the other hand defendant no. 1 appear in the witness box as DW-1. Both parties filed various documents in order to support their case.
10. I have heard the arguments of both the sides and perused the record. My issue wise filing in the present suit is under:-
11. Issue no. 1 and 2
1. Whether this court has no pecuniary jurisdiction to entertain the suit as alleged in P.O.7 ? OPD
2. Whether the suit is not properly valued as alleged in WS ? OPD Both these issues involve common discussion, hence are taken together. The defendant has simply taken a preliminary objection no. 6 in the WS that the suit is not maintainable as the same is not properly valued. It is seen that the plaintiffs have valued the present suit Rs. 1,00,000/- for possession, Rs. 30,000/- for damages, 130/- for mandatory injunction and Rs. 130/- for permanent injunction. The defendant has not been able to challenge the valuation of Rs. 1,00,000 as made for the relief for possession. The plaintiff has claimed the possession of two rooms which have been allegedly constructed by the defendant unauthorisedly. The defendant has not brought any evidence on record to show that such valuation is incorrect.
Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 5 of 13 Dated: 18.07.2014 Similarly the valuation for the relief of damages at Rs. 30,000 remained unchallenged. The valuation for the relief of mandatory and permanent injunction done at Rs. 130 each is also correct. Apart from the above reliefs it is seen from the prayer clause that the plaintiff has also prayed for decree of mesne profits claiming a sum of Rs. 5,000 per month commencing from June 1996, but the plaintiff has not shown any valuation for the said relief in para 18 of the plaint. Thus in this manner the the suit is not valued properly and remains under valued. Both the issues are directed against the plaintiff and in favour to the defendant.
12. Issue no. 3
3. Whether the defendant are the lawful tenants in the suit property at a rent of Rs. 125/- p.m. excluding electricity/water charges as alleged?OPP (onus changed to OPD vide order dated 26.09.2012). The onus of this issue was changed from OPP to OPD vide order sheet dated 26.09.2012. It is noted that there are two aspects of the matter. One is with respect to the portion let out to the defendants and the other is regarding the alleged encroachment over the open land by the defendants. The rent stated by the plaintiff for the let out portion is Rs. 290.40/-. While the defendants contend that they are lawful tenant of the premises including the suit premises since the inception of tenancy @ Rs. 125/- per month. In the replication, the plaintiff admit that the rent agreed to be paid by the defendants was Rs. 125/- per month. Even in the cross examination PW-4 admitted that rent of the remaining portion after surrender was agreed and being paid at Rs. 125/- per month. Thus, the defendants are tenants in the property of the plaintiffs at Rs. 125/- per month. Issue decided accordingly.
13. Issue no. 4,5 & 6
4. Whether the plaintiff is entitled a decree of possession of the suit property? OPP
5. Whether the plaintiff is entitled any damages/mesne profits, if so, how much amount or as claimed ? OPP Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 6 of 13 Dated: 18.07.2014
6. Whether the plaintiff is entitled a decree for perpetual/prohibitory/mandatory injunction as claimed? OPP All these issues involve common discussion, hence are taken together. Plaintiffs are seeking possession of 2 rooms, as shown in green colour in the site plan Ex. PW-3/1, from the defendants on the allegation that only 3 rooms admeasuring 450 sq. ft were let out to defendants in or about 1975 at a rent of Rs. 290.40/- p.m. but they encroached upon the open land on west side by constructing two rooms in or about June 1996.
14. These averments are denied by defendants who state that originally tenanted premises consisting of 2 rooms, 2 halls & passage was taken on rent in December 1974 & in May/June 1975 half portion was surrendered after which plaintiffs themselves modified original structure by creating walls & converted passage into two equal parts closing side entrance gates & opening front & rear entry gates and that plaintiffs also constructed one room in west side of premises and since then it is a part of tenanted premises and the rent is Rs. 125/- p.m. excluding electricity & water charges.
15. It is very much pertinent to note that in replication filed on behalf of plaintiffs the averments of W.S as to the letting out in December, 1974 surrendering half portion in May/June 1975 and rent being Rs. 125/- p.m. have been admitted. With these admissions it is further alleged that six rooms admeasuring 900 sq. ft. at ground floor were given on rent to defendants and three rooms admeasuring 450 sq. ft. were surrendered which were let out to Mr. Manmohan Singh & Mr. Daman Singh.
16. From the pleadings, as summarised in the foregoing paras, it is observed that the plaintiffs, by admitting certain averments of the WS, have diluted their case in as much as the stand of the plaintiffs with respect to the year of letting, area originally let and surrendering of half portion have been changed/introduced by way of replication. This puts greater onus upon the plaintiffs at to prove their case despite the basic burden of proof being already upon them.
Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 7 of 13 Dated: 18.07.2014
17. It has been observed that the plaintiffs have not been able to explain change in their stand with respect to above noted aspects of the case. No reason has been cited for not disclosing initially i.e. in the plaint regarding letting out 6 rooms admeasuring 900 sq. ft. in December 1974 and later surrendering by defendants 3 rooms admeasuring 450 sq. ft. which were let out to Mr. Manmohan Singh & Mr. Daman Singh. Further the plaintiff has to prove that 6 rooms admeasuring 900 sq. ft. were originally let and out of which 3 rooms admeasuring 450 sq. ft. were surrendered by defendants which were let out to Sh. Manmohan Singh & Sh. Daman Singh. This fact would have been proved by some documentary evidence or by summoning these two persons as witness. But plaintiffs neither filed any documentary evidence nor summoned them and thus this fact remained unproved on record.
18. Another important aspect noted is that the plaintiffs in their amended plaint para 5 have alleged that the damage/loss caused to plaintiffs is by the unauthorised construction on open space done in breach of the covenant between the parties and also in breach of the statutory rules and regulations of the NDMC. But there is no such covenant filed on record. Interestingly, PW-4 in his cross-examination dated 17.02.2007 deposed that a rent-deed was executed between the parties. The necessary portion is reproduced as under:-
" A rent-deed was executed between the parties but I don't have copy of the same. I have no knowledge whether the rent-deed was registered or not."
19. No rent deed between the parties has been filed in the present suit. This rent-deed or covenant between the parties could have been an important & relevant document to show all the terms & conditions as to the area, rate of rent etc. of the lease. But the same has not been filed on record nor any explanation has been given for not filing it on record as to whether it is lost/misplaced or in possession of other party or any other reason. It is settled Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 8 of 13 Dated: 18.07.2014 law that adverse inference can be drawn against a person who does not brings on record a relevant document which is in his possession. Hence, adverse inference is hereby drawn against the plaintiffs that the document goes against them.
20. The plaintiffs have upon them the burden of proving that defendants in or about June 1996 unauthorisedly without consent encroached upon the open land towards the west side of the tenanted premises and constructed two room measuring 7' X 8.6' and 3' X 7' as shown in green colour in the site plan Ex. PW-3/1 filed by plaintiffs. Now that going by the averments made in replication that 6 rooms admeasuring 900 sq. ft. were let out to defendants out of which 3 rooms admeasuring 450 sq. ft. was later surrendered by defendants, it is to be seen in the site plan Ex PW3/1 what were the 6 rooms originally let out to defendants, which 3 rooms out of them were surrendered and which 3 rooms were retained by the Defendants. Going by the site plan of the plaintiffs Ex. PW-3/1, portion shown in red colour is described as the tenanted portion i.e. 3 room and assuming the same implies that these were the 3 rooms which were retained by defendants out of the 6 rooms. Now, the plaintiffs have not earmarked in the site plan Ex. PW-3/1 the other 3 rooms (450 sq. ft.) which were surrendered by the defendants. The allegation of the plaintiffs is that open land towards the west side of the tenanted premises was encroached by defendants by raising unauthorised construction of 2 rooms over the same. But it is very much pertinent to note that the alleged encroached portion, shown in green colour, lies towards North side of the tenanted premises (shown in red colour ) seen from the directions displayed in the plan and not towards the west side as alleged. The plaintiffs have also not shown in their site plan the surrendered portion comprising of 3 rooms admeasuring 450 sq. ft. Rather there is a gap seen in between red portion (tenanted premises) and green portion alleged encroached portion) and the gap has not been explained as to how the defendants encroached some land far from the tenanted premises and constructed two rooms over it.
Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 9 of 13 Dated: 18.07.2014
21. Thus, the description of the alleged encroached portion in the site plan Ex. PW-3/1 is not in consonance with the pleadings, rather they do not match. There is also anomaly in between the pleadings of the plaint and that of replication with respect to description of tenanted premises and alleged encroachment which the plaintiffs have not been able to meet out. Although, plaintiffs in order to prove their site plan called a witness PW-3 (draughtman) who prepared the site plan Ex. PW-3/1 but merely filing & tendering of the same & calling the draughtman who prepared the site plan does not goes on to prove the same. Moreover, the witness PW-3 admitted that he visited suit property in the year 1998. The alleged encroachment occurred in or about June 1996 which was within knowledge of plaintiffs yet no site plan of that particular time period filed and even no site plan to describe the prior position is filed in order to appreciate the incongruous pleadings of the plaintiffs. No photographs are even filed.
22. In his cross-examination dated 17-02-2007 PW-4 deposed that at present back side of the tenanted property is in tenancy of M/S Cresent Printing Works and M/s Kala Nidhi Internation, but it is noted that site plan Ex. PW-3/1 does not mentions the same. Thus, in totality plaintiff failed to prove their site plan Ex. PW-3/1. Rather when PW-4 was confronted with the site plan Ex. PW-4/D1 of the defendant during his cross-examination dated 17.02.2007, he deposed that signatures at point A on it appears to be of plaintiff no. 1 but he cannot confirm the authenticity of the signatures. At one place during cross-examination dated 02.03.2007 PW-4 states that he cannot comment on site plan Ex. PW-4/D1 and at another place in the same testimony PW-4 admits in the same site plan (Ex. PW-4/D1) of defendants regarding certain portions identified at points B,C,D & E having ceased to exist at present. Furthermore it is pertinent to note that the plaintiffs had put an affirmative suggestion to DW1 in cross-examination that this site plan (Ex. PW-4/D1) was given to him (DW1) by Sh. Pritam Singh when he (DW1) handed over half portion of the tenanted portion in 1975. DW-1 identified in Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 10 of 13 Dated: 18.07.2014 his site plan Ex. PW-4/D1 the portion in his possession & identifies the same in red colour at point x (in site plan Ex. PW-4/D1). Reading of further testimony of DW-1 suggests that even plaintiffs have started relying upon the site plan Ex. PW-4/D1 of the defendants.
23. Now moving on to another aspect of the matter as has also been noted by Ld. Additional Rent Controller in his judgment dated 22.03.2014 wherein the petition u/s 14(1)(j) of the Delhi Rent Control Act, 1958 was dismissed. There is a considerable delay of about three years in bringing an action by the plaintiffs by way of present suit. Even the said eviction petition was filed two days later to the present suit. The alleged encroachment by defendants of open land & construction of two rooms over it is alleged to have happened in or about June 1996 and plaintiffs gained knowledge this knowledge on 20.06.1996 yet they did not taken any civil or criminal action, whatsoever, against defendants. Not even an informal letter or formal legal notice was sent to defendants. Also no legal notice proceeded the present suit. It is so admitted by PW-4 in cross examination. No details have been disclosed in what manner plaintiffs gained knowledge about the alleged encroachment. No prudent person is expected to behave in such manner in sitting silently over such allegedly illegal & unauthorised acts of encroachment & unauthorised construction being done by his tenants in an area having a high market value. Even no dates or time period is disclosed when the plaintiffs made verbal requests to defendants to remove the encroachment. It is even noted that DW1 remained firm in his testimony to depose that he is not in possession of any other part of premises except portion 'X' in site plan Ex. PW-4/D1. No further questions or suggestions is put to DW1 to shake his testimony.
24. Plaintiffs relied upon the notice Ex. PW-1/2 dated 22.11.1999 sent by L & DO to Plaintiff no. 1 regarding breaches on account of unauthorised construction in property 84-Janpath, New Delhi to state that defendants carried out material alteration/encroachment in the tenanted premises in June Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 11 of 13 Dated: 18.07.2014 1996. But it is noted that this notice Ex. PW-1/2 states only about misuse of Mez. Floor by M/S Airways (firm of defendants) and not about unauthorised construction. Under the heading 'unauthorised construction' in the said notice there are various portions/areas mentioned and the plaintiff have not stated the details of the encroachment, except that two rooms of certain measurements were built, so as to match it from the notice. Moreover, the said notice Ex. PW-1/2 dated 22.11.1999 is based upon inspection carried out on 13.11.1998 and the alleged encroachment is of June 1996 and it cannot certainly be said that it were the defendants who encroached. As already noted, plaintiffs have not been able to prove from their site plan Ex. PW-3/1 the area which the defendants allegedly encroached upon & therefore the said notice Ex. PW-1/2 is of no help to the plaintiffs.
25. Yet another aspect of the case is that Mr. Rajiv Gupta, who is the grandson of Plaintiff no. 1 and son of Plaintiff no. 3, only appeared as a witness (PW4) to depose upon the facts. It was argued by the Ld. Counsel for defendants that PW-4 was a minor when the premises were let out to defendants and therefore he could not have deposed upon the facts. Defendants relied upon Smt. Janki Vashdeo Bhojwani and Anr. Vs. IndusInd Bank ltd. & Others AIR 2005 SC 439. In this case it was held that a power of attorney holder cannot depose for the principal in respect of matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. From the reading of the cross-examination of PW-4 it is seen that at several places PW-4 is not having personal knowledge. Instances are when PW-4 deposed that he does not know when Mr. Trilochan and Mr. Pritam Singh surrendered the tenancy. PW-4 also deposed that the site plan filed by defendants Ex. PW-4/D1 was not signed in his presence & therefore he cannot confirm the authenticity of the signatures of plaintiff no. 1 at point A. As plaintiff no.1 expired during the pendency of the suit, his son i.e. plaintiff no.3 would have been a better person to identify the signatures. PW-4 even stated that he has no Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 12 of 13 Dated: 18.07.2014 knowledge whether rent deed was registered or not. Thus in light of above observations. The testimony of PW-4 cannot be seen to be carrying much weight.
26. The rulings relied upon by the plaintiffs are also of no help to them. The plaintiffs have also not disclosed the basis or the details of the alleged damages of Rs. 30,000/-. Plaintiffs have also not been able to prove on record that the defendants are carrying out any additions/alterations/constructions in the property let out to the defendants so as to entitle them to the discretionary relief of permanent injunction with respect to the same.
In view of the above findings, the issues no. 4, 5 & 6 are decided against the plaintiffs and in favour of the defendants.
RELIEF In light of the findings of all the issues, the present suit is dismissed. In the circumstances of the case, no order as to costs. File be consigned to Record Room.
(Announced in open Court on 18.07.2014) (Pranjal Aneja) CJ-06/Central/Delhi Tis Hazari Court Suit no. 82/14 Devi Charan Gupta & Ors. Vs. Balbir Singh & Anr. Page no. 13 of 13 Dated: 18.07.2014