Delhi District Court
Iv)Smt. Mohini vs Shri Kailash Chand on 10 July, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.180/2012
IN THE MATTER OF:
Shri Puran Chand (since deceased)
Through his LRs
i) Smt. Premi Devi
Wife of late Shri Puran Chand
ii) Shri Kamal Kishore
S/o Late Shri Puran Chand,
iii)Shri Ravi Kishore
S/o late Shri Puran Chand
All residents of :
4721/47, Rehgarpura,
Karol Bagh,
New Delhi110005.
iv)Smt. Mohini
Wife of Shri Prabhu Dayal
D/o late Shri Puran Chand
R/o Plot No. 72, Pocket - 5,
Sector21, Rohini,
Delhi
v) Smt. Bimla Devi
W/o Shri Devinder Kumar
D/o late Shri Puran Chand
R/o AJ43C, Shalimar Bagh,
Delhi ...... Plaintiffs
Versus
1. Shri Kailash Chand
Suit No. 180/2012 Page No. 1 of 21
2. Shri Puran Chand
3. Shri Dungar Mal
4. Shri Purshotam Dass
(All sons of late Shri Har Lal)
5. Smt. Manua
W/o late Shri Om Prakash
(Predeceased son of late Shri Har Lal)
6. Shri Hemant
S/o late Shri Om Prakash
(Predeceased son of Shri Har Lal)
All residents of :
House No. 4666, Gali No. 49,
Plot No. 1162, BlockG,
Basti Rehgar, Karol Bagh,
New Delhi - 110005 ....... Defendants
Date of Institution: 15.04.2002
Date of Reserving for Judgment: 10072014
Date of Judgment : 10.07.2014
SUIT FOR RECOVERY OF POSSESSION AND DAMAGES AND
MESNE PROFITS
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery of possession and damages and mesne profits filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that Sh. Har Lal S/o Sh. Hira Lal Rehgar, father of the defendant No. 1 to 4 and grandfather of defendant No. 5 & 6, purchased a property bearing plot No. 1162 admeasuring 50 sq. yds. with dimension 30' x 15' Suit No. 180/2012 Page No. 2 of 21 situated in abadi BlockG, Basti Rehgar, House No. 4666, Gali No. 49, Karol Bagh, New Delhi vide Sale Deed dated 08.12.1959 registered as document No. 5486 dt 30.12.1959 before the Sub Registrar, New Delhi. The property admeasuring 50 sq. yds. was having one Kacha Room constructed over it. It is further submitted that on the same day i.e. on 08.12.1959, the said Sh. Har Lal executed a Deed of Mortgage with possession in favour of Smt. Bhuri D/o Sh. Sukha Ram and W/o Sh. Ram Swaroop and the said mortgage deed was registered vide regd. documents No.5490 dt. 30121959. Smt Bhuri was mother of the plaintiff. The possession of the property was given to the mortgagee Smt. Bhuri on 08.12.1959. No limitation was fixed by the parties for the redemption on the mortgaged property and the mortgagor was at liberty to get the property redeemed after making full payment in lump sum to the mortgagee. On 01.07.1960, the mortgagee Smt. Bhuri Devi inducted said Sh. Har Lal into the property as her tenant and possession of the property was given to Sh. Har Lal in terms of rent agreement containing terms and conditions mentioned therein. Smt. Bhuri mother of the plaintiff died in 1972 bequeathing her properties including property in question under mortgage with her giving rights to the plaintiff to inherit the properties mentioned therein. On the death of Smt. Bhuri, her will registered as document Suit No. 180/2012 Page No. 3 of 21 No. 37, on 26.02.1965, took effect and the plaintiff stepped into the shoes of Smt. Bhuri and became the landlord qua Sh. Har Lal in respect of property bearing H. No. 4666. plot No. 1162, Gali No. 49, BlockG, Basti Rehgar, Karol Bagh, New Delhi. It is further submitted that Sh. Har Lal continued occupying the property in question as a tenant under the plaintiff and paid rent upto December, 1993. It is further submitted that the plaintiff vide registered notice dt. 6.10.1996 brought to the notice of Sh. Har Lal that he as a tenant has violated the terms of the Rent Note executed by him and in contravention of the terms mentioned therein, he has sublet, assigned and parted with the portions of the property to various tenants, whom the plaintiff never recognized as legal tenants. The tenancy of Sh. Har Lal was terminated w.e.f. the end st of 31 October, 1996. Vide the same notice, the arrears of rent from 1.1.1994 were demanded. This notice was duly served upon Sh. Har Lal and Sh. Har Lal replied the notice through his Advocate vide reply dt. 1.11.1996 denying everything including mortgage, rent note and relationship. It is further submitted that mutation of the property was duly effected in favour of Smt. Bhuri Devi in the records maintained by the Government as property was on putta and name of Smt. Bhri was duly entered into the Sakni Jamabandi Mauja Basti Rehgar for the year 19751976. It is further submitted that wife of Suit No. 180/2012 Page No. 4 of 21 Sh. Har Lal had predeceased him. One son of Sh. Har Lal namely, Sh. Om Prakash also predeceased him. None of the defendants were financially dependent upon Sh. Har Lal. Defendant No. 1 to 4 are in service since a long time i.e. since during the life time of Sh. Har Lal. Sh. Hemant, defendant No. 6, who is son of Sh. Om Prakash, got into service during life time of Sh. Har Lal and Smt. Veenu left by Sh. Om Prakash, was already married. Defendant No. 5 Smt. Manua, widow of Sh. Om Prakash was not financially dependent on Sh. Har Lal and was being maintained by Sh. Hemant. At the time of service of the notice dated 6.10.1996, the said Sh. Har Lal was not earning as he was having poor health. It is further submitted that Sh. Har Lal left behind three daughters namely; (i) Smt. Rukmani Devi r/o A134, Janta Flats, Madipur, New Delhi; (ii) Smt. Premi Devi r/o 4114/1, Jagjiwan Niwas, Karol Bagh, New Delhi; & (iii) Smt. Bhagwati Devi r/o H. No. 6222, BlockG, Gali No. 1, Dev Nagar, New Delhi, who were married at the time of death of Har Lal and were residing in their inlaw's house and, therefore, they did not inherit any tenancy rights from Sh. Har Lal. It is further submitted that none of the defendants inherited the tenancy rights of the said Sh. Har Lal on his death, who died in the year 1998 but the plaintiff has not been able to ascertain the exact date of his death. The protection, if at all, against eviction, afforded to Sh. Har Lal by Suit No. 180/2012 Page No. 5 of 21 the provisions of the Delhi Rent Control Act was personal to him. The defendants herein being in unauthorized and illegal occupation of the premises in suit are liable to hand over the physicla vacant possession of the same to the plaintiff and also liable to pay damages/mesne profits for unauthorized use and occupation to the plaintiff @ Rs.40/ per month for the last 36 months i.e. w.e.f. 1.12.1998 to date i.e. Rs. 1,440/. Hence, the present suit is filed by the plaintiff.
3. On the other hand the defendant's in their WS has contended that suit is bad for non joinder and misjoinder of the necessary parties. Suit has been filed without any cause of action and is based up on forged documents and concocted story. Also, present suit is under valued and proper court fee has not been paid. Moreover, this court has no jurisdiction to try the present suit. It is further submitted that Sh. Har Lal i.e. father of defendants nos. 1 to 4 never received any money, nor executed any mortgage deed or rent deed. In fact he was illiterate and old man and in case there is any such document the same is without notice and knowledge of Sh. Har Lal. Moreover, Sh. Har Lal did not have any knowledge of the existence or the contents of these alleged documents. It is further submitted that Sh. Har Lal was in the occupation of this property from very inception of this purchase by him and he continued to be in occupation and Suit No. 180/2012 Page No. 6 of 21 possession of this property till his death. After the death of Sh. Har Lal, defendants nos. 1 to 6 and other legal heirs of the deceased Sh. Har Lal are in occupation and possession of this property. Sh. Har Lal during his life time constructed the property as a triple storied house at different occasions in the year 1960, 1965 after the date of its purchase by him and obtained electric connection in the year 1970 and water connection in the year 1966. Late Sh. Har Lal during his life time let out the different portions of this property to various tenants after spending huge amount, to which no body including the plaintiff and his mother made any objection. This was so because late Sh. Har Lal was a bona fide, exclusive and absolute owner in possession of this property. It is submitted that late Sh. Har Lal was absolute registered owner in exclusive possession of the property in dispute, hence his being tenanted of anyone, including plaintiff, does not arise at all. Accordingly question in inheriting the tenancy right is absurd and ridiculous. In fact the defendants and other legal heirs of Sh. Har Lal has inherited the proprietary right in the property in question. It is further submitted that, If plaintiff claims Sh. Har Lal as his tenant, although not admitted by the defendants, then the protection of Delhi Rent Control Act can not be denied to the defendants. It is apparently clear from the admission of the plaintiff, although not admitted by the Suit No. 180/2012 Page No. 7 of 21 defendants, that only the court of Rent Controller has jurisdiction to adjudicate the present suit. Further the defendants denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendants. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in their written statement and further submitted that the suit of the plaintiff be decreed.
5. From the pleading of the parties following issues were framed vide order dt. 11082003:
i) Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD
ii) Whether the suit has not been valued properly for the purpose of court fees and jurisdiction and whether this court has no jurisdiction to try the present suit? OPD
iii) Whether the plaintiff is entitled for possession of suit premises? OPD
iv) Whether the plaintiff is entitled for the relief of damages/mesne profit, if so, at what rate and for which period? OPP
v) Relief.
6. To prove his case plaintiff has examined himself as PW1. PW1 Suit No. 180/2012 Page No. 8 of 21 has filed his evidence by way of affidavit Ex. PW1/A In his affidavit PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) Sale deed regd. No. 5486 dt. 30121959 is Ex. PW1/1.
ii) Deed of mortgage bearing regd. No. 5490 dt. 30121959 is Ex. PW1/2.
Iii) The rent note is Ex. PW1/3.
iv) Regd.Will dt. 26021965 is Ex. PW1/4.
v) Legal notice dt.06101996 is Ex. PW1/5, postal receipt of the same is Ex. PW1/6.
vi) Reply dt. 01111996 is Ex.PW1/7.
Vii) Copy of Jamabandi for the year 1996 is Ex. PW1/8.
7. Further the plaintiff has examined Sh. Ranvir, Patwari DDA Survey Settlement I, Press Building Second Floor, Vikas Sadan, INA, New Delhi as PW2, who brought the summoned record i.e Jamabandi for the year 197576 Ex. PW2/1 and entry of mutation dt. 11041974 Ex. PW2/2. Further the plaintiff has examined Sh. Satya Pal, Record Attendant, Department of Delhi Archives as PW3 who brought the summoned record already exhibited as PW1/1 and PW1/2. Further, the plaintiff has also examined Sh. Ravi Kishore son of late Sh. Puran Chand as PW4 who filed his affidavit in evidence as PW4/A. He relied upon the Suit No. 180/2012 Page No. 9 of 21 documents already exhibited as PW1/1 to PW1/6. All the plaintiff's witness were also crossexamined by the Ld. counsel for the defendant.
8. The defendant has examined witness Sh.Puran Chand as DW1 who filed his evidence by way of affidavit Ex. DW1/A. DW1 in his affidavit reiterated the facts mentioned in their WS. The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
9. have heard the counsel for both the parties and gone through the record carefully and perused the relevant provision of law.
10.My issue wise finding is as under:
11. Issue No. 1 Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this respect nor otherwise proved this issue. Thus, this issue is accordingly decided in favour of the plaintiff and against the defendants.
12.Issue No.2 Whether the suit has not been valued properly for the purpose of court fees and jurisdiction and whether this court has no jurisdiction to try the present suit? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this respect nor otherwise proved this issue. Thus, this issue is accordingly Suit No. 180/2012 Page No. 10 of 21 decided in favour of the plaintiff and against the defendants.
13. Issue No. 3 Whether the plaintiff is entitled for possession of suit premises? OPD Before delving on the rival contentions of the parties, it is worthwhile to discuss the evidence led by the parties.
14.Plaintiff appeared in the witness box as Pw1 and stated in his crossexamination that he was born on 06011940. The mortgaged deed Ex. PW1/2 and sale deed Ex. PW1/1 were prepared and drafted by the same person. He knew Sh. Saligram but did not know where he used to live prior to his death. He know Sh. Khushi Ram but does not know where he is residing right now. Lastly, he met Khushi Ram at the time of registration of the documents Ex. PW1/1. Sh. Har Lal used to come to the father of pW1 frequently and they were in friendly terms. Lastly he met Har lal 1012 years prior to the date of his evidence. Sh. Har Lal purchased the suit property on 0812 1959 and got the possession of the suit property on the same day. Sh.Har lal and his LR have construction the building upto third/forth storey. On 08121959 there was only hut in the suit property but now there is electricity & water connection therein. He never pay the house tax of the suit property. He sent notice dt. 06101996 Ex. PW1/5 through his counsel . He denied that Suit No. 180/2012 Page No. 11 of 21 ground rent to DDA was being paid by Har Lal and his LR . PW1 deposited ground rent till 30062006. he denied that Har Lal could not read or write Hindi. The father of DW1 and Har Lal went for registration of Ex. PW1/1 and Ex. PW1/2. His mother did not go for the registration of documents as she was ill. His father knew Sh. Shaligram and Khushi Ram very well. His father and mother used to lent money for profit in their life time. He did not issue any rent receipt to Har Lal with respect to the suit property. He denied that no rent was paid by Har Lal. He knows Dungar Mal. Puran Chand , defendant no. 2 is son of Har Lal and brother of Dungar Mal. He did not know that wife and children of Om Prakash predeceased son of Puran Chand, defendant No.2 reside with Puran Chand. He denied that Har Lal due to trust and confidence in the father of PW1 requested him to accompany Har Lal for getting the sale deed executed and registered but father of PW1 took undue advantage and got executed & registered the mortgaged deed . He denied that Har Lal did not know that he was executing Ex. PW1/2 for mortgaging the suit property in favour of mother of the plaintiff. Neither he nor his father maintained any book of account of the payment receipt from the defendant or any debts.
15.PW2 Sh. Ranvir proved the Jamabandi Ex. PW2/1 and the entry Suit No. 180/2012 Page No. 12 of 21 of mutation Ex. PW2/2.
16.PW3 Sh. Satya Pal proved Ex. PW1/1 and PW1/2.
17.PW4 Sh.Ravi Kishore stated in his crossexamination that the facts stated in his affidavit Ex.PW4/A are based on the knowledge conveyed to him by his father and also on the basis of the knowledge gathered by him then he used to visit the court along with his father during his life time. He denied that Har Lal did not take any loan from Smt. Bhuri Devi. He denied that Har Lal used to reside in the suit property as its owner during his life time untill his death and thereafter the defendants are residing therein as owners. He does not know about Har Lal letting out any portion of the suit property during his life time to any one.
18.Defendant No. 2 entered in the witness box as DW1 and stated in his crossexamination that Ex. PW1/1 bears signatures of his father at point A but signatures at point A on Ex. PW1/2 are not that of his father. He does not know Sh. Shaligram and Kanshi Ram who signed as witnesses. He had knowledge that his father had in his life time served a legal notice Ex. PW1/7 on the plaintiff. But did not know whether any reply was received by his father to the same. He denied that the property is mutated in the name of Bhuri Devi in the record of DDA. He denied that his father mortgaged the suit property to Smt. Bhuri Devi for a sum Suit No. 180/2012 Page No. 13 of 21 of Rs. 4,000/. His father purchased the suit property from Smt. Bhurji Devi on 08121959. He denied that he saw Ex. PW1/2 at the time when he saw Ex. PW1/1. He denied that his father purchased the suit property with the loan amount of Rs. 4,000/ taken by him as loan from Smt. Bhuri Devi. The ration card of his father could not be traced out despite searching of the same. He denied that in earlier affidavit in evidence he had given a different version. He denied that none of the persons mentioned in para No. 12 and 13 of Ex. PW4/A were dependent upon Sh. Har Lal financially or otherwise. He denied that his father was aware in his life time that the suit property which was mortgaged to Smt.Bhuri Devi was not redeemed by him during his life time within the period of limitation. He denied that the suit property was mutated in the name of Smt. Bhuri Devi in the Govt. record. He denied that the title documents are not in possession of the defendant or their father as they have mortgaged the suit property to Smt. Bhuri Devi. His father used to do Auto painting at Petrol Pump Motoraid at Pusa Gate.
19.The case of the plaintiff is that father of the defendant had purchased the suit property vide registered sale dated 08.12.1959 and had mortgaged the same vide a registered mortgage deed dated 08.12.1959 in favour of Smt. Bhuri on Suit No. 180/2012 Page No. 14 of 21 account of having taken loan of rupees four thousand from her. Smt. Bhuri Devi had inducted Sh. Har Lal as a tenant in the suit property on 01.07.1960. Neither Sh. Har Lal nor his children/legal heirs redeemed the mortgage property by repaying the loan amount. Lastly, rent of rupees forty was paid up to December, 1993 and since then the defendants are in arrears of rent. Notice U/s 106 of transfer of property Act terminating the tenancy was sent and with effect from 31.10.1996, the defendants are illegally occupying the suit property.
20.On the other hand the case of the defendant is that neither Sh. Har Lal executed any mortgage deed nor he was inducted as a tenant in the suit property but he was living in the suit property as a owner.
21.Although, it is stated by the defendants that no mortgage deed was executed by Sh. Har Lal but considering that the original sale deed Ex. PW1/1 vide which Sh. Har Lal became owner of the suit property, as well as, the mortgage deed Ex. PW1/2 was in the possession of the plaintiff, clearly, the mortgage deed Ex. PW1/2 was executed by Sh. Har Lal. Otherwise, the original sale deed of the suit property would not have been in the possession of the plaintiff from the back side Ex. PW1/1 and Ex. PW1/2 it is manifest that Sh. Harlal had put thumb impression on these Suit No. 180/2012 Page No. 15 of 21 documents and signed on both the pages Ex. PW1/2 in Hindi. The fact that the original sale deed Ex. PW1/1 was not in the possession of the defendant/legal heirs of Sh. Har Lal clearly, shows that the mortgage deed was executed by Sh. Har Lal. Therefore, the contents of the defendants that no mortgage deed was executed by Sh. Har Lal is completely, without merits.
22.At this point it is relevant that the provision and the Section 58
(d) &(g) of the transfer of property Act, which as under:
58. "Mortgage", "mortgagor", "mortgagee", "mortgage money" and "mortgaged" defined.
(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgagemoney, and the instrument (if any) by which the transfer is effected is called a mortgagedeed.
(b) Simple mortgageWhere, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgagemoney, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgagemoney, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional saleWhere, the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgagemoney on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on Suit No. 180/2012 Page No. 16 of 21 condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
(d) Usufructuary mortgageWhere the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgagemoney, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgagemoney, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. (e) English mortgageWhere the mortgagor binds himself to repay the mortgagemoney on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re transfer it to the mortgagor upon payment of the mortgage money as agreed, the transaction is called an English mortgage.
(f) Mortgage by deposit of titledeedsWhere a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of titledeeds.
(g) Anomalous mortgageA mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of titledeeds within the meaning of this section is called an anomalous mortgage.Suit No. 180/2012 Page No. 17 of 21
23. At this point it is relevant to reproduced the relevant paragraph of the mortgage deed Ex. PW1/2 which is as under: (1) In consideration of the mortgage money Rs. 4000/ the mortgagor has already received Rs. 4000/ as home from the mortgagee and northing is left to be received before the Sub Registrar.
(2) The actual physical possession has been transfered to the mortgagee.
(3) The interest and the rent of the mortgaged premises shall be equal, and the mortgagee will charge no other interest on lthe property.
(4) No limitation is fixed by the parties for the redemption of the mortgage property. The mortgaged shall be at liberty to get the property redeemed after making full payment in lumpsum to the mortgagee.
(5) If any other construction would be made by the mortgagor on the above plot, that would been deemed mortgaged also. (6) That the mortgagor would not be entitled to effect any further mortgage with any person until he would get the property redeemed from the mortgagee and as such he would not be entitled to make sale of same with any person before redemption of the property.
(7) The mortgagor would get the mutation sanction in favour of the mortgagee in the Improvement Thrust Department and also in the Office of the Corporation.
24.From the aforesaid it is manifest that at the time of execution of the mortgage deed of the suit property Sh. Harlal had also entered into an agreement as mentioned in clause three of Ex. PW1/2 wherein it is mentioned that the interest and the rent on the mortgage premises shall be equal and no other interest will be charged there from. This shows that the interest on the mortgage amount as rent was being paid by Sh. Harlal to the Suit No. 180/2012 Page No. 18 of 21 mortgagee. However, none of the party led any evidence if any amount was paid by Sh. Har Lal towards the principal amount of mortgage money of rupees four thousand.
25.As per Article 61 of Schedule to the Limitation Act the right to redeem or recover possession of movable property mortgaged by the mortgagor remains till thirty years from the date when the right to redeem or recovery possession accrues. In the present case the suit property was mortgaged on 08.12.1959 and the right of Sh. Har Lal or his legal heirs to redeem the suit property expired after thirty years from 08.12.1959 that is in the year 1989. As per Article 63 of the schedule to the Limitation Act the right of foreclosure exists for thirty years and the mortgagee can sue the mortgagor for the some within thirty years from the date when the money secured by the mortgage becomes due. It means that the right to foreclosure of the mortgagee expired in the instant case in the year 1989 since the money secured by the mortgage become due from first date of the mortgage.
26.Thus, as discussed above the interest by the name of rent of Rs. 40/ per month was paid by the mortgaged to the mortgagee uptill 1989. The mortgagee and her legal heirs did not exercise their right of foreclosure, thus can not now claim their ownership in respect to the suit property. Once there does not exist any Suit No. 180/2012 Page No. 19 of 21 ownership right in the mortgagee/plaintiff therefore, they could not have rented out the suit property to Sh. Har Lal/mortgagor. Since the entire suit of the plaintiff stands on the plea that plaintiff being the landlord/owner of the suit property and defendant being his tenant and since notice of termination of tenancy has been sent to the defendants, therefore, this suit property may be handed over to the plaintiff, but since as discussed above the plaintiff does not has any right, title interest in the suit property, since did not exercise right to foreclosure, therefore, the plaintiff is not entitled to the relief of possession as prayed for.
27.Further, in the alternative, even if the defendant were tenant in the suit property then also the plaintiff was not entitled to possession of the suit property since the present suit is barred by section 50 of the Delhi Rent Control Act since rate of rent as stated in the plaint was rupees forty per month of the suit property.
In view of the foregoing discussion, this issue is decided in favour of the defendants and against the plaintiff.
28.Issue No. 4 Whether the plaintiff is entitled for the relief of damages/mesne profit, if so, at what rate and for which period? OPP Suit No. 180/2012 Page No. 20 of 21 In view of my findings in issue no. 3 above, the plaintiff is not entitled to the relief of damages as prayed for. Hence, this issue is decided in favour of the defendants and against the plaintiff.
29. Relief:
In view of the foregoing discussion, the plaintiff has failed to prove his case and thus the suit is hereby dismissed. There are no orders as to costs. Decree sheet be prepared accordingly.
File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 10.07.2014 Civil Judge/Central05/Delhi
Suit No. 180/2012 Page No. 21 of 21