Delhi District Court
In The Matter Of Chattar Singh vs . Tulsi Dass on 16 April, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-14, CENTRAL, THC, DELHI
In the matter of Chattar Singh Vs. Tulsi Dass
Suit No. 936/11
Unique ID No. 02901C322562005
1. Chattar Singh (Since Deceased)
Through his LRs
i. Sh. Siripal Singh
ii. Mahinder Pal Singh
iii. Ranvir Singh
iv. Sudhir Verma
All sons of late Sh. Chattar Singh
R/o 18/35, Shakti Nagar, Delhi
2. Sh. Om Prakash
S/o late Sh. Raghunath Dass,
R/o 29/12, Shakti Nagar, Delhi.
...... PLAINTIFFS.
Vs.
1. Tulsi Dass Ahuja
S/o Sh. Dwarka Dass Ahuja
2. Nand Lal Ahuja
CS No. 936/11
Chattar Singh Vs. Tulsi Dass Page No. 1 of 34
S/o late Sh. Dwarka Dass Ahuja
Both C/o Khasra No. 1304/628
Sarai Rohilla, Double Pathak
Municipal No. 1-A, New Rohtak Road,
New Delhi-110005.
..... DEFENDANTS
DATE OF INSTITUTION OF THE CASE :11.11.1991
DATE ON WHICH RESERVED FOR ORDER :06.04.2013
DATE OF ORDER/ JUDGMENT :16.04.2013
JUDGMENT:
SUIT FOR RECOVERY OF POSSESSION, DAMAGES, RENT AND FOR PERMANENT AND MANDATORY INJUNCTION
1. The present suit has been filed on behalf of the plaintiffs against the defendants for the recovery of possession, damages, rent and for permanent and mandatory injunction in respect of suit property i.e. land measuring 5 biswas situated in Khasra No. 1314/628/340 at Village Sadohra khurd Sarai Rohilla, Double CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 2 of 34 Phatak, Guru Gobind Singh Marg, New Delhi-05 as shown red color in the site plan.
2. In brief, the facts of the case as per plaint are that plaintiffs state themselves to be the co-owners of the suit property land as mentioned above and that plaintiff no. 1 is the landlord. The suit land was let out to late Sh. Dwarka Das Ahuja at a monthly rent of Rs. 25/-. That there was no construction of any nature when the said land was let out and Sh. Dwarka Dass Ahuja started running his Chuna Bhatti on it. That without the knowledge and consent of the owners, late Sh. Dwarka Dass raised some un-authorized construction for running his business and subsequently he died. But the defendants who are his sons are in occupation of the said land. That the tenancy of the defendants was terminated vide notice dt. 20.04.1991 calling upon to vacate and hand over the possession of the said land by the midnight between 31.05.1991 and 01.06.1991 and also to remove all their belongings, but the defendants failed to vacate. That no other heir of late Sh. Dwarka Dass Ahuja is in possession of the said land. That defendants are illegally occupying the said land and are liable to pay rent @ Rs. 25/- per month for CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 3 of 34 01.06.1988 to 31.05.1991 amounting to Rs. 900/- and damages @ 250/- per month from 01.06.1991 to 31.10.1991 amounting to Rs. 1,250/- and further damages @ 1,500/- per month w.e.f. 01.11.1991. That defendants be also directed by way of mandatory injunction to remove all their belongings including the entire structure existing on the land as shown in the site plan in red color.
3. In WS of defendant no. 1, he raised a preliminary objection that suit is bad for non-joinder of necessary parties stating that the demised premises were let out by Chaudhary Kalu Singh and Chaudhary Raghunath Das to Sh. Dwarka Das Ahuja who are all dead. Both landlords left behind a number of legal heirs and Sh. Dwarka Das Ahuja also left behind a widow, 5 sons and daughters, who inherited his rights in the demises premises as tenants-in- common who all are necessary parties to the suit. That revenue records show that no right in the said khasra number came to vest in plaintiff no. 1 validly and no such claim by plaintiff no. 2 on grounds of adoption is tenable and none of the plaintiffs can claim rights as landlords of the successors-in-interest of the original tenant. That the plaintiffs never had any right, title or interest in the CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 4 of 34 suit property and the suit property did not at any time bear khasra no. 1314/628/340. As alleged, a title suit in which claimes ejectment of a tenant is liable to fail unless all co-owners are impleaded. That the suit is barred u/s 50 of the DRC. That the demised premises was constructed on a portion of land measuring 250 sq. yards originally comprised of four rooms with open area. One room was subsequently constructed by late Sh. Dwarka Das Ahuja with the consent of his landlords and as per agreement that the same would form part and parcel of the demised premises without any right of removal of the super structure by the tenant. Also the site plan is not in consonance with the existing constructions and properties. That each and every construction existed in the demised premises comprising four rooms with an open portion on a part of which there was a shed when Sh. Dwarka Das Ahuja occupied the same more than 45 years ago excepting for one room which he added later on. The allegation that no construction existed when premises were let out out is wholly false. That it is correct that Sh. Dwarka Das Ahuja was carrying on business of sale of construction material and running of a chuna Bhatti not only in the demised premises but also CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 5 of 34 in portions of adjacent properties and the demised premises were mainly used for storage of goods and articles as also for housing the employees. That there is no question of termination of tenancy of commercial premises and appropriate reply was sent to the notice. That there is no intention of defendant to part with possession of the demised premises. That the tenders of rent have been refused and plaintiffs cannot claim decree for rent.
4. WS was also filed on behalf of the defendants which was later amended and amended WS filed on 21.04.2010 was taken on record. As per amended WS, defendant no. 2 has also taken the same objection that the alleged khasra number does not exist at the site of suit premises and the site plan does not tally with the existing constructions, properties and tenancies. That it is denied that plaintiff has any right title or interest in the suit property and also that the suit is bad for non-joinder of necessary parties. That the suit is also barred u/s 50 of the DRC Act. The other contentions raised by defendant no. 2 are same as those raised by defendant no. 1.
5. Separate replications were filed on behalf of the plaintiffs CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 6 of 34 to the WS of defendants no. 1 and 2. In replication to the WS of defendant no. 1 it is contended that plaintiff no. 1 used to receive the rent and rent receipts also used to be issued. It is further denied that Sh. Raghunath Das left number of legal heirs. That the two sons of deceased Dwarka Das are in occupation of the portion in question and the alleged daughters and widow of Dwarka Das have nothing to do with the premises in question and their names and addresses have not been intentionally disclosed by defendants and moreover, they are not necessary parties to the suit. That there was no construction when the open plot of land was let out and the averments of defendant regarding four rooms with shed thereon is wrong and denied and that whatever construction exists had been raised by the deceased tenant or the defendants. The plaintiffs in the replications have thus denied the averments of WS and re- affirmed those of the plaint.
6. Vide separate order dated 30.08.1996 my ld.
Predecessor framed the following issues:-
1. Whether the suit is bad for non-joinder of the necessary parties? OPP.
CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 7 of 34
2. Whether the suit is barred u/s 50 of DRC Act? OPD.
3. Whether the plaintiff has no locus-standi, right, title or interest to file the present suit? OPD.
4. Whether the plaintiff is entitled for the relief sought? OPP.
5. Whether the plaintiff is entitled for the damages as claimed. If so, at what rate and for what period? OPP.
6. Relief.
An additional issue was also framed on 21.01.2009 but the same was struck off vide order dated 26.08.2009 passed by the Hon'ble High Court of Delhi. Five legal heirs of plaintiff no. 1 were substituted in place of plaintiff no. 1 who died during the pendency of the suit.
7. To substantiate their case on judicial file, plaintiff no. 1 himself appeared in the witness box as PW-1 who was examined- in-chief and cross-examined. Plaintiff also got examined PW-2 Narender Kumar, Record Keeper from the office of Divisional Commissioner and PW-3 Jagjit Singh, Patwari. The documents filed and relied upon by plaintiffs are site plan Ex PW 1/1, copy of CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 8 of 34 jamabandi Ex PW 1/2, notice of termination dt. 20.04.1991 Ex PW 1/3, reply dt. 05.05.1991 Ex PW 1/4, certified copy of jamabandi Ex PW 2/1, certified copy of khasra Girdawari Ex PW 3/1 (3 pages) along with their English translations. On the other hand, defendant no. 1 Sh. Tulsi Das himself appeared in the witness box as DW-1 and his affidavit in evidence being Ex DW 1/A. Defendant no. 2 Nand Lal Ahuja also got himself examined as DW-2 and his affidavit in evidence being Ex DW 2/A. Defendants also examined DW-3 Sh. Vishnu Kumar, his affidavit in evidence being Ex DW 3/A. Another witness namely Radha was also got examined on behalf of defendants as DW-3 and her affidavit in evidence being Ex DW 3/A although she being the fourth witness and therefore wrongly marked as DW-3 and is thus DW-4 in correct sequence. The defendants confronted a letter/ rejoinder dt. 28.06.1991 to PW-1 during his cross-examination and which is Ex PW1/DX. Defendants also filed English translations of the certified copy of Khasra Girdawari by another translator.
8. I have heard the arguments addressed on behalf of the parties and perused the record. My issue-wise findings are as CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 9 of 34 under:-
9. Issue No. 1:- Whether the suit is bad for non- joinder of the necessary parties? OPP.
The onus of proving this issue was upon the defendants. The objection of the defendants is with regard to the non-joinder and necessary parties for both the sides i.e. non-joinder of necessary parties on the side of the plaintiffs as well as on the side of the defendants. The defendants contend that all the legal heirs of original landlords claiming rights in the property have not been impleaded. The defendants have also contended that the allegations of the plaintiffs that there is no other legal heirs of Sh. Dwarka Dass Ahuja excepting the two defendants is false. Further contended that the plaintiffs cannot defeat rights of the tenants in common. The plaintiff no. 1/ PW-1 has been cross-examined in this regard wherein he has deposed that he does not know if the deceased Dwarka Dass Ahuja had left behind five sons, two daughters and a wife. It has also been CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 10 of 34 argued on behalf of defendants that the notice PW1/3 dt. 20.04.1991 has only been sent by plaintiff no. 1 i.e. Chattar Singh and not by both the plaintiffs jointly and also other legal heirs and co-owners have not given any notice and have not joined the present suit as plaintiff and since they are also necessary parties and therefore the suit is bad.
10. The ld. counsel for the plaintiff has argued that suit by one co-owner of a joint property against the tenant is maintainable and all the co-owners/ heirs need not be joined in the notice and in the suit. The counsel for the plaintiff has relied upon the following citations in support of the above contentions:
i. AIR 1989 SC 758
ii. AIR 2006 SC 1471
iii. AIR 1982 Bom 282
iv. AIR 2002 Delhi 425
11. In Pal Singh Vs. Sunder Singh (dead) by LRs & Others AIR 1989 SC 758, it was held by the Hon'ble Supreme Court that an eviction suit can be filed by only one of the co-owners CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 11 of 34 of the premises where the other co-owners do not object to the claim. It was similarly held in Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1471 in which the Hon'ble Supreme Court in para 10 observed the authority of Sri Ram Pasricha Vs. Jaggannath (1976) 4 SCC 184 and Dhanna Lal Vs. Kalawatibai (2002) 6 SCC 16 wherein it was held that it is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. In Ratimtulla Abdul Rahiman Nakib Vs. Chandrakant Anant Moog and Others AIR 1982 Bom 282 it was observed by the Hon'ble High Court of Bombay that all the co-heirs need not be joined in the notice and in the suit. In Zulfiquar Ali Khan & Ors. Vs. J. K. Helence Courts Ltd. & Ors. AIR 2002 Delhi 425, it was held by the Hon'ble High Court of Delhi in para 18 that:
" There is hardly a distinction between suit for eviction and suit for recovery of possession. To say that an owner who seeks recovery of possession by filing a suit against a tenant has to prove his title first even if he has let out the premises by way of lease deed is highly far- fetched proposition. A landlord has also a right to seek CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 12 of 34 eviction of a tenant under the provisions of Rent Act but it does not mean that an owner is precluded from seeking eviction if he has not let out the premises. Owner always includes landlord while the converse may not be true. Ownership is required to be proved only in those cases where there is a dispute as to the title of land and not in a case between the landlord and the tenant as the eviction proceedings cannot be allowed to be converted into suit for title nor for that purpose suit for recovery of possession can be allowed to be converted into a little suit."
12. On the other hand, the counsel for defendant no. 1 relied upon Sucharita Pradhan Vs. M/s U. P. Twiga Fibreglass Ltd. AIR 2002 Delhi 1 wherein it was held that tenancy cannot be held to validly terminated as the notice of termination is given by only son of the co-owner of the premises. Defendants also relied upon Abdul Hamim Vs. Bhuwaneshwar Prasad AIR 1953 Nagpur 80 wherein it was held that a tenant cannot be ejected at the instance of only one of the landlord where the tenancy has been treated by several landlords and all the joint landlords must join in CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 13 of 34 giving notice to the tenant before terminating his tenancy. Reliance was also placed by the defendants on Jamir Ahmed Vs. Madhva Nand AIR 1979 Allahabad 107 wherein it was held that notice to quit u/s 106 of the Transfer of Property Act must be on behalf of all lessors.
13. In the facts of the present case the plaintiff/ PW-1 has stated that the land was leased out to Sh. Dwarka Dass Ahuja by him and his brother Raghunath. Even in the Jamabandi Ex PW 2/1 Raghunath Dass, Chattar Singh and Kalu have been shown as owners. Although the present suit has not been filed by the all the co-owners/ landlords nor the notice Ex PW 1/3 has been served by all the co-owners/ landlords but in view of the categorical judgments relied upon by the plaintiffs wherein the Hon'ble Supreme Court has held that it is not necessary for all the co-owners/ landlords to be joined in the suit for possession against the tenant, the present suit cannot be said to be barred on the ground that the other co-owners or landlords have not been impleaded as plaintiff. The reliance placed by the defendants upon their rulings is thus misplaced and I CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 14 of 34 am bound to follow the authorities of the Hon'ble Supreme Court as relied on behalf of the plaintiff.
14. Now I shall deal with the contention of the defendants that after the death of original tenant the tenancy devolved upon the legal heirs as tenant in common and notice to quit was not sufficient as it was not sent to all the legal heirs of the deceased tenant. In this regard, defendants have relied upon Valiyaveettil Konnappan Vs. Mangot Velia Kunniyil Manikkam & Ors. 1968 Kerala 229 wherein it was held that notice should be issued to all the tenants as in case of tenants in common there is only unity of possession and not of title. Defendants also relied upon Budhsen Vs. Sheelchandra Aggarwal AIR 1978 Allahabad 88 wherein it was held that the tenancy rights are heritable and on the death of a tenant the heirs succeed as tenants in common and not as joint tenants and therefore not be served upon all the tenants in common.
15. On the other hand, plaintiffs placed reliance upon:
i. RCR 17/2008 " Sh Inder Pal Khanna Vs. Commander CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 15 of 34 Bhupinder Singh Rekhi" passed by Hon'ble High Court of Delhi.
ii. 44 (1991) DLT 293 (SC)
iii. AIR 1963 SC 468
iv. RCR 29/12 " Smt. Narender Kaur Vs. Mahesh Chand &
Sons (HUF)" passed by Hon'ble High Court of Delhi.
v. AIR 2004 All 246
vi. AIR 1995 All 676
vii. AIR 1989 SC 1470
16. In Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi RCR 17/2008, the Hon'ble High Court of Delhi held that it is settled law that on the death of the tenant the tenancy devolves upon the LRs as a joint tenancy and LRs are joint tenants and not tenants in common and once the tenancy is joint tenancy notice to one is sufficient to terminate the tenancy and suit cannot be held bad for non-joinder of several joint tenants. The Hon'ble High Court of Delhi relied upon Kanji Manji Vs. Trustees of the Port of Bombay, AIR 1963 SC 468 wherein the Hon'ble Supreme Court propounded the said theory. In AIR 1963 SC 468 also the CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 16 of 34 Hon'ble High Court held notice to determine lease to one of the joint tenants is sufficient. In Smt. Narender Kaur Vs. Mahesh Chand & Sons (HUF) RCR 29/12 passed by Hon'ble High Court of Delhi, again it was held that notice to determine lease to one of the joint tenants is sufficient in case of joint tenancy. In AIR 1995 All 676 (three judges bench), the Hon'ble Supreme Court overruled the previous authority in Md. Azim'a case AIR 1985 SC 118 observing that it is difficult to hold that after the death of the original tenant his heirs become tenants in common and the Hon'ble Court finally held to the contrary that on the death of original tenant the tenancy rights devolved on heirs jointly. In other rulings relied upon by the plaintiffs it was similarly held.
17. In the present suit, defendants being LRs of the deceased Sh. Dwarka Dass Ahuja and therefore after his death became joint tenant and in view of the above authorities relied upon by the plaintiffs the other LRs of need not be impleaded as defendant's and the present suit cannot be said to be barred on account of non-joinder of other joint tenants. CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 17 of 34
18. Thus, the present suit is not bad for non-joinder of necessary parties on either side. Thus, issue no. 1 is accordingly decided against the defendants and in favour of the plaintiffs.
19. Issue No. 2:- Whether the suit is barred u/s 50 of DRC Act? OPD.
The onus of proving this issue is upon the defendants. The defendants have averred in their written statements that the demised premises, constructed on a portion of land ad measuring 250 sq. yards, originally comprised four rooms with open area and shed and one room was subsequently constructed by their late father Sh. Dwarka Dass Ahuja with the consent of the landlords and with agreement that the same would form part and parcel of the demised premises without right of removal of the super structure by the tenant. It is further averred that Sh. Dwarka Dass Ahuja was carrying on business of sale of construction material and running of a chuna bhatti in the demised premises which was mainly used for storage of goods as also for housing the employees.
20. In his examination-in-chief DW-1, states that suit CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 18 of 34 property, consisting of four rooms, one tin shed and open area measuring 200 sq. yards was let out by Chaudhary Raghunath Dass. Though in this WS neither time of letting is mentioned nor it is specifically averred that the property was let out for chuna bhati but in his examination-in-chief DW-1 states that it was let out in December, 1947 for the purpose of Karkhana chuna bhatti i.e. for manufacturing of lime. Further it is seen that while in WS it is pleaded that after taking the premises one more room was added but in the examination in chief and cross-examination DW-1 states that one room and godown was constructed with consent of owners.
21. It is admitted by DW-1 in cross-examination on 21.03.2001 that the suit property/ land was taken by his father in December, 1947 and also that at that time he was about 6-7 years. The relevant portion of cross-examination is reproduced as under:-
" At the time when the property taken by my father on rent I was about 6-7 years. Voltd. I am running 60 years now. It is correct that I was not present when my father took the premises in question on rent. Since 1956, I used to work with my father at the suit premises."
CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 19 of 34
From the above testimony the defendant no. 1/ DW-1 admits that he was not present at the time of letting out as he was only 6-7 years of age and that he joined his father in work since 1956 onwards. Thus, the contention that the land let out also comprised of four rooms is a derived knowledge by defendant no. 1 from his father since the defendant no. 1 was only 6-7 years at the time of letting and was not even present at that time. Thus, the defendant no. 1 had to produce cogent and reliable evidence to prove that there existed four rooms at the time of letting. Although the defendant no. 1/ DW-1 in his cross-examination has stated that the business is being carried out in partnership, having a registered partnership deed, and assessed to income tax, but no document relating to the same were filed to show what construction existed at the time of letting.
22. On the other hand, the contention of the plaintiffs is that only land was let out @ Rs. 25/- per month having no construction whatsoever and after taking the same Sh. Dwarka Dass Ahuja raised some temporary construction without consent. It is also contended by the plaintiffs that after taking on rent, Sh. Dwarka CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 20 of 34 Dass Ahuja started business of chuna bhatti on the land. PW-1 in his cross-examination dt. 14.08.1997 stated that the tenancy was created by written agreement but the said agreement was in possession of his brother who had died. But this testimony does not conclusively point out that there existed any rooms at the time of creation of tenancy. PW-1 has every time in cross-examination maintained his stand that there existed no construction at the time of letting. Even the plaintiff cross-examined defendant no. 1/ DW-1 to which DW-1 stated that he does not remember if any written agreement was entered into at the time of letting the premises.
23. The plaintiff no. 1/ PW-1 was also cross-examined on the site plan. He has deposed that he had not come when site plan Ex PW 1/1 was got prepared. He has further stated that he has not visited the suit premises for last 4-5 years and so he cannot say what construction exists today. But the above mentioned testimony does not throw any light about any alleged construction at the time of letting.
24. On the other hand, the plaintiffs have filed certified copy of jamabandi for the year 1947-48 as Ex PW 2/1 and khasra CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 21 of 34 Girdawari for year 1952-59 as Ex PW 3/1 along with their English translations. It is pertinent to note in the jamabandi that against the khasna no. 1314/628/340 in column 8 as mentioned in the plaint there is an entry in column no. 9 as " 0-5 Rock" while a little below against some other khasra number there is an entry " 2-19 Houses." This implies that had there been some house or construction the same might have been mentioned in the said jamabandi against the khasra no. in question relating to the suit land. Also in khasra Girdawaris for both periods, against the khasra no. in question there is an entry of " uncultivable Rock" in column 5 showing class of land accordingly to last jamabandi and " uncultivable bhatti 0-5" in subsequent columns. Thus in khasra Girdawaris only Bhatti is shown to exist and no further. The existence of Bhatti on the demised land is not in dispute but what has to be proved by the defendants is that there existed four rooms on the date of letting. Even the English translations filed on behalf of defendants also show " Gair Mumkin Pahar" and " Gair Mumkin Bhatti" against the khasra no. in question. The defendants have not been able to show that the tenancy was given to their father for running chunna bhatti. CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 22 of 34 Though the plaintiffs have not brought any counterfoils of rent receipts on record, the defendants even have also not filed any rent receipts to prove their contention when specifically onus was upon them.
25. Defendant no. 1/ DW-1 filed affidavit Ex PW 1/A to state that jamabandi and khasra Girdawari are not correct as per position existing at the spot. But the plaintiffs got proved the jamabandi Ex PW 2/1 by summoning the concerned record from the office of Divisional Commissioner. The record keeper PW-2 deposed that he has no personal knowledge of the record brought by him and he cannot tell the existence of any construction over the property. Similar was the deposition of PW-3 who was called to prove khasra Girdawari. Although, the witness PW-2 and PW-3 stated that they did not know about the matter but the records produced by them are public entries and are duly made in the regular course of business. Plaintiffs relied upon the following in respect of revenue records:
i. AIR 1937 PAT 567 ii. AIR 1972 P & H 393 iii. AIR 1974 SC 1178 CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 23 of 34 iv. AIR 1931 Lahore 605 v. AIR 1966 HP 48 vi. AIR 1976 1485
26. Thus what comes out is that the jamabandi Ex PW 2/1 and khasra Girdawari Ex PW 3/1 do not show any construction of rooms and the entries are relevant in deciding the fact in issue.
27. The defendant no. 2 in his evidence by way of affidavit stated that his father Sh. Dwarka Dass Ahuja had taken on rent constructed premises in the year 1947 under a written agreement for manufacturing purpose and plaintiffs are in possession of that agreement. But this evidence is beyond pleadings and is only added in the evidence by way of affidavit after the deposition of PW-1 and knowing only from PW-1 about the same. The evidence of PW-2 upon the factum of constructed portion being let out is also of no use as PW-2 has clearly admitted in his cross-examination dt. 11.01.2010 that he has no personal knowledge about the portion let out by the plaintiff to his father. The relevant portion of cross- examination is reproduced as under:
CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 24 of 34
" It is correct to suggest that I have no personal knowledge about the portion let out by the plaintiff to my father. Vol. my father had told me about the extent of construction in the premises taken on rent by him before my birth."
28. Thus, the knowledge of plaintiff no. 2/ PW-2 regarding construction is also derived knowledge and has failed to prove his averments.
29. The defendants got examined a witness Sh. Vishnu Kumar as DW-3 but he also deposed that he was not present at the time of letting and he was not even born by that time and he cannot say as to when the premises was let out, it was a vacant land. Thus, the testimony of PW-3 is of no help to the defendants.
30. Defendants also got examined another witness namely Smt. Radha who stated in her evidence by way of affidavit that she worked at the chuna bhatti of Sh. Dwarka Dass Ahuja for about 35 years since 1955 in which year there was a build up premises. Further, in her cross-examination she states that she does not know whether Dwarka Dass Ahuja had taken the place of bhatta on rent. The witness further deposed that as per information given by her CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 25 of 34 bhabhi she used to work 3-4 years prior to 1950 in the said bhatta. But the said evidence is a hearsay evidence and the said Bhabhi of the witness Radha has not been summoned for examination as witness to show about the construction existing at the time of letting. Finally, the witness goes on to depose that she does not know that when Dwarka Dass Ahuja came into possession where the Bhatta is running, it was a vacant land. The witness is not aware of the facts existing at the time of letting. Thus, the evidence of this witness is also of absolutely no help to the defendants.
31. Thus, the defendants have failed to bring any cogent and reliable piece of evidence to show that four rooms and tin shed existed on the land let out by plaintiffs to Sh. Dwarka Dass Ahuja. Considering all the facts and circumstances, the preponderance of probabilities goes in favour of the plaintiffs and point out that only vacant land was let out to Sh. Dwarka Dass Ahuja. Thus, the issue no. 2 is decided against the defendants and in favour of the plaintiffs.
32. Issue No. 3:- Whether the plaintiff has no locus-standi, right, title or CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 26 of 34 interest to file the present suit?
OPD.
The onus of proving this issue is also upon the defendants. It is the contention of the defendants that in respect of khasra no. in question the plaintiffs cannot claim any valid right and thus the plaintiffs do not have any locus- standi which is stated in the present proceedings. It is stated in the WS of defendant no. 1 that the suit property did not at any time bear khasra no. 1314/628/340 village Sadhora Khurd, Delhi and in fact any khasra no. 340 does not fall any where in the premises. Plaintiff/ PW-1 has been cross-examined regarding the situation of the suit property but nothing has come out to show that the demised land is different from that given on rent to Sh. Dwarka Dass Ahuja. The plaintiffs have filed and proved on record the jamabandi Ex PW 2/1 and khasra Girdawaris Ex PW 3/1 which mentions the said khasra no. and shows uncultivable land against the said entry. It is pertinent to observe that in the WS of defendant no. 1 it is admitted in para 1 of the preliminary objections that the demised premises were let out by Chaudhary Kalu Singh and Chaudhay Raghunath Dass to Sh. CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 27 of 34 Dwarka Dass Ahuja and all the original parties are now dead. The tenancy is also not denied by defendant no. 2. Thus, it is admission of the defendants itself that their late father Sh. Dwarka Dass Ahuja was the tenant. Although the defendants have raised the contention that the property bearing Municipal no. was let out to their father and it did not bear any khasra no. but the defendants have not been able to show any document in support of their contention. There appears to be no dispute with regard to the identification of the land leased out as the defendants state that their father was running chuna bhatti on the said land on which there existed four room and a tin shed and further one room was raised. The plaintiffs have averred that only land was let out and no construction existed on the date of tenancy. Thus both the parties have been referring to the same piece of land which was let out to late Sh. Dwarka Dass Ahuja. Moreover, admittedly the defendants were not present at the time of letting out the property to their father. The defendants have also challenged the title of the plaintiffs but it is a settled principle of law that once the tenancy is admitted then the tenant cannot be allowed to challenge the title of the landlord which is the CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 28 of 34 mandate of Section 116 of Indian Evidence Act. Thus, the defendants have failed to prove that plaintiffs have no locus standi, right, title or interest to file the present suit. This issue no. 3 is also decided against he defendants and in favour of the plaintiffs.
33. Issue No. 4 Whether the plaintiff is entitled for the relief sought? OPP.
The relationship of tenant- landlord has been admitted in the present suit. The plaintiffs had served legal notice of the termination of tenancy which is Ex PW 1/3 dt. 20.04.1991 and the defendants have admitted the receiving of the said notice and the defendants even replied to the said notice and the plaintiffs filed rejoinder notice to the same.
34. One of the contentions raised on behalf of defendants is that the said notice is bad in law as the same has not been sent to all the tenants in common. But this contention has already been dealt with in the finding of issue no. 1 wherein the various authorities have been relied upon holding that the tenancy devolves as a joint tenancy and the LRs of the deceased tenant are joint CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 29 of 34 tenants and not tenants in common and notice to one is deemed to be notice to all. Thus, the notice Ex PW 1/3 cannot be said to be bad in law on this Count.
35. Another contention raised on behalf of defendants is that the tenancy being created for manufacturing purposes was required to be terminated by 6 months notice as per Section 106 of TPA. As discussed while deciding issue no. 2 above, the defendants have failed to prove that the tenancy was created for manufacturing purposes. Moreover, in Nopany Investmets (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728 it was held that even a notice to quit u/s 106 is not necessary in case of filing of eviction suit under general law. Thus, it can safely be held in the facts of the case that tenancy stood terminated consequent to the serving of the notice dt. 20.04.1991 Ex PW 1/3. The plaintiffs are thus entitled to the possession in respect of the land measuring 5 biswas situated in khasra no. 1314/648/340 situated at Village Sandohra Khurd, Guru Gobind Singh Marg, New Delhi-110005 as shown in color red in the site plan Ex PW 1/1.
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36. The plaintiffs have also sought the relief of mandatory injunction seeking directions against the defendants to remove their belongings including the entire structure existing on the land as shown in color red in the site plan. Although the site plan Ex PW 1/1 does not depicts any construction and merely land is shown but that will not dis-entitle the plaintiffs from claiming such reliefs. It is not a disputed fact that some construction exists on the suit land as on date and the defendants are running chuna bhatti on it. The plaintiffs are entitled to the possession of the land and therefore the defendants must be given opportunity to remove their belongings/ structure, whatsoever existing on the said land. The plaintiffs are thus granted the relief of mandatory injunction. In view of the above, there is no occasion to grant a decree for permanent injunction as prayed for.
37. Plaintiffs have also claimed a decree for Rs. 900/- towards rent against the defendants. The period for which the said amount have been claimed is from 1st June 1988 to 31st May 1991 @ Rs. 25/- per month. In WS of the defendant no. 1 in para 7 it is stated that the tenders of rent have been refused and no such CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 31 of 34 decree for rent can be claimed by the plaintiffs. Thus, it is clear from the said pleadings of the WS that rent for the said period has been unpaid as it was refused although the same was tendered. Thus, the plaintiffs are entitled to the decree for the said amount of Rs. 900/-. The issue is decided accordingly.
38. Issue No. 5: Whether the plaintiff is entitled for the damages as claimed. If so, at what rate and for what period? OPP.
The plaintiffs have claimed decree for the recovery of Rs. 1,250/- towards damages against the defendants calculating the same @ Rs. 250/- per month w.e.f. 01.06.91 to 31.10.1991. The plaintiffs have further claimed damages w..e.f 01.11.91 @ Rs. 1,500/- pm for unauthorized use and occupation. But the plaintiffs have not stated the basis of claiming the damages at such rates. It is noted that during his cross-examination dt. 14.08.97, PW-1 deposed that " I am saying in general way that the rent of the suit premises are increased but I have no basis to support the CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 32 of 34 same." Thus, the plaintiffs have not proved how they are entitle to such rate of damages as claimed. However, since defendants have remained in possession therefore, they are liable to pay for the use and occupation of the demised premsies at the admitted rate of Rs. 25 per month. The plaintiffs are thus entitled to the decree for use and occupation against the defendants at the admitted rate of Rs. 25 pm w.e.f. 01.07.1991 till possession. Issue decided accordingly.
RELIEF In light of the findings on various issues above, the present suit of the plaintiffs is decreed in the following manner:-
1. Plaintiffs are entitled to the decree of possession against the defendants in respect of land measuring 5 biswas situated in Khasra No. 1314/628/340 at Village Sadohra khurd Sarai Rohilla, Double Phatak, Guru Gobind Singh Marg, New Delhi-05 as shown red color in the site plan.
2. Plaintiffs are also entitled for mandatory injunction against the defendants with directions to the defendants to remove all their belongings including the entire CS No. 936/11 Chattar Singh Vs. Tulsi Dass Page No. 33 of 34 structure existing on the land as mentioned above within two months from the date of this judgment.
3. Plaintiffs are also entitled to decree for a sum of Rs.
900/- against the defendants towards rent for the period 01.06.88 to 31.05.1991
4. Plaintiffs are also entitled to a decree for an amount towards use and occupation against the defendants calculated @ 25/- (twenty-five) per month w.e.f. 01.06.91 till the date of recovery of possession by the plaintiffs.
5. Plaintiffs are also entitled to the costs of the suit. Decree sheet be prepared accordingly. It is here made clear that the decree towards recovery of amount for use and occupation charges shall not be executable unless the deficient Court fees, if any, is deposited by the plaintiffs.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 16.04.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/16.04.2013
CS No. 936/11
Chattar Singh Vs. Tulsi Dass Page No. 34 of 34