Delhi District Court
Sh. Nagender Kumar vs Anita Tiwari on 6 August, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar.
RCA DJ No.11/22
Filing No. 850/2022
CNR No. DLST01-001408-2022
In the matter of:-
1. Sh. Nagender Kumar
S/o. Late Sh. Dhan Raj Thakur
R/o. H. No. 15/1, Block C
Om Nagar, Mitha Pur Extension
New Delhi-110044
2. Mrs. Babita Devi
W/o. Sh. Nagender Kumar
R/o. H. No. 15/1, Block C
Om Nagar, Mitha Pur Extension
New Delhi-110044
..........Appellants
Versus
Anita Tiwari
W/o. Sh. S.K. Tiwari
R/o. D-14, Shiv Durga Vihar
Lakkarpur, Faridabad
Haryana
..........Respondent
RCA DJ No. 11/22
Nagendra Kumar & Anr. Vs. Anita Tiwari
Page 1 of 28
Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022.
Date of Institution :21.02.2022
Date of reserving the judgment :23.07.2022
Date of pronouncement :06.08.2022
Decision :Appeal Allowed
ORDER
1. This is an appeal filed by the appellants under Section 96 read with Order 41, the Code of Civil Procedure 1908 (Act no.5 of 1908), (hereinafter referred to as "CPC"), against the impugned Order/Judgment and Decree dated 20.12.2021 passed by Ld. Civil Judge-01, South, Saket Courts Complex, Saket, New Delhi, in the Civil Suit bearing no. 82880/2016 titled Anita Tiwari vs Shri. Nagender Kumar and Anr. In the civil suit before the trial Court, the status of the appellants was that of the defendants and that of the respondent was of the plaintiff. Herein the appellants and the respondent shall be referred to their original status before the trial Court.
2. The facts of the case, necessary for deciding the appeal at hand, are that the plaintiff filed a suit for recovery of possession of immovable property, arrears of licence fee and mesne profits. The plaintiff has averred as under:-
2.1. The plaintiff and the defendants are known to each RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 2 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022.
other. The plaintiff is lawful owner of the suit property consisting of a built up three room house over a plot of land measuring 50 sq. yds. And bearing no.1012, Gali no. 1, Om Nagar, Block C, Tehsil Kalkaji, New Delhi, as shown by red color in the site plan. She had purchased the same from its erstwhile owner Smt. Rajesh Devi wife of Shri Kuldeep Singh for a sale consideration of Rs.1.80 lacs, by way of sale documents executed on 20.04.2004. 2.2. In the year 2004, the defendants approached the plaintiff for use of suit property for residential purposes on license basis. As per oral understanding between the parties, the plaintiff allowed the defendants to use and occupy the suit property on licence basis which was initially fixed at Rs. 4000/- p.m. and was subsequently enhanced to Rs. 4500/- p.m. payable in advance. The plaintiff used to pay electricity charges as well in respect of the meter installed in the premises.
2.3. The defendants continued to pay the licence fee even though they were not regular in payment. However, since February 2009, the defendants stopped handing over the electricity bills to the plaintiff and upon asking for the same, the defendants would avoid the same by assuring that the same stood paid by them. 2.4. In January 2011, the plaintiff came to know that the RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 3 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. electricity bill had been raised in the name of defendant no. 2. When the plaintiff confronted the defendants, they avoided the question by saying that there seemed to be some mistake on the part of the concerned Discom. Thereafter, the plaintiff visited the office of the concerned Discom and obtained the duplicate copy of the electricity bill which revealed that the defendants had got the electricity connection transferred in the name of defendant no. 2 by submitting some forged and fabricated documents purported to have been executed by the plaintiff in favour of defendant no. 2. 2.5. Upon asking such acts/actions by the defendants, the defendants even stopped paying the licence fee of the suit property to the plaintiff. Thus arrears started accumulating against the defendants. The defendants are in arrears of the licence fee for use of occupation of the suit property since March 2011 @ of Rs. 4500/- pm accumulating to an amount of Rs. 45000/- as on 31.12.2011.
2.6. On 27.04.2011, a police complaint was also filed by the plaintiff at PS Jaitpur, Delhi followed by written complaint to DCP, South-East District, Sarita Vihar, New Delhi vide complaint dated 18.05.2011 regarding the forgery done by the defendants. 2.7. Thereafter, the plaintiff served a legal notice dated RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 4 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. 13.12.2011 demanding the arrears of licence fee and to handing over the possession of the suit property but the defendants neither replied nor paid the arrears of licence fee and failed to hand over the possession of the suit property.
2.8. Hence, the suit was filed seeking the relief of recovery of possession of the suit property, recovery of money being arrears of licence fee, and mesne profits.
3. The defendants appeared on summons and contested the suit. They filed a joint written statement. In the written statement, the defendants had taken the preliminary objection that suit was under-valued and that the plaintiff had not paid the requisite court fees. It was claimed on the merits that the plaintiff was not the owner of the suit property. They claimed that defendant no. 2 was the real lawful owner of the suit property. They also denied the relationship of licencor and licensee. They would state that they never took the suit property on license basis on per month basis or paid any money to plaintiff as a license fee. They would also state that they never handover the electricity bills to the plaintiff after payment as they were issued in the name of defendant no. 2 who is the rightful owner. They would also state that the legal notice dated 13.12.2011 was issued on the basis of RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 5 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. wrong, false, fabricated, concocted and manipulated facts. It had been prayed that the suit be dismissed.
4. Vide order dated 21.07.2014, the Ld. Civil Judge framed the following issues:
"Issue no.1 Whether the plaintiff is entitled to relief of possession as prayed for? OPP "Issue no.2 Whether the plaintiff is entitled to relief of recovery of Rs. 45,000/- as arrears of licence fee from the defendants? OPP Issue no.3 Whether the plaintiff is entitled to mesne profits, if yes, then at what rate? OPP "Issue no.4 Whether the present suit is not maintainable because defendant no. 2 is the real and lawful owner of the property and the plaint does not disclose any cause of action? OPD "Issue no. 4A Whether the suit is within the period of limitation?OPP "Issue no.5 Whether the court fees filed is deficient and the suit has not been valued properly? OPD "Issue No.6 Relief."
5. The plaintiff was asked by the Court to lead evidence to prove her case. The plaintiff examined herself by way of affidavit of evidence Ex.PW1/1 and relied upon the documents i.e. 1. Ex. PW1/A (OSR) i.e. GPA dated 20.04.2004; 2.Ex. PW1/B (OSR) i.e. Agreement to sell and purchase dated 20.04.2004: 3.Ex. PW1/C (OSR) i.e. Affidavit dated 20.04.2004; 4. Ex. PW1/D (OSR) i.e. RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 6 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. Receipt dated 20.04.2004; 5. PWI/E i.e. Letter dated 20.04,2011,
6. Ex. PW1/F i.e. Complaint dated 27.04.2011; 7.Ex. PWI/G i.e. Complaint dated 18.05.2011; and 8.Ex. PW1/H i.e. Legal notice dated 13.12.2011.
6. The plaintiff also got examined Head Constable PS Jaitpur Sh. Suresh Kumar as PW-2, Sh. Rajender Kumar as PW-3, Sh. Kanhaiya Sharma as PW-4 and Sh. Sudhanshu Mishra, Assistant Manager BSES as PW-5.
7. To prove their case, the defendants examined only defendant no.1 as DW-1 by tendering his affidavit Ex. DW1/A.
8. After conclusion of the evidence, Ld. Civil Judge heard the final arguments and fixed the matter for Order. Ld. Civil Jude, vide impugned judgment dated 20.12.2021 decreed the suit in favour of the plaintiff.
9. With respect to issue no. 1 and 4, Ld. Civil Judge has held that on the basis of the General power of attorney, Agreement to sell, affidavit, and receipt Ex. PW-1/A to Ex.PW1/D, the right in the suit property was transferred in favour of the plaintiff and that the plaintiff had a better title in the suit property. It was held that the defendants had not brought any documents on record to prove that the defendant no. 1 was the owner of the suit property. It also RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 7 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. held that the defendants failed to prove their right, title or interest in the suit property. It also observed that the defendants had not replied to the legal notice sent by the plaintiff to them and therefore, a presumption against the defendants was raised under Section 114, the Indian Evidence Act and an adverse inference was drawn against the defendants. Ld. Judge relied upon the judgments passed by Hon'ble High Court of Delhi in Abdul Gaffar vs DDA 90 (2001) DLT 330, and Kalu Ram vs Sita Ram 1980 RLR (Note) 44, to hold that averments in a notice are considered to be admitted if the notice is not replied. It was therefore held that as the plaintiff had a better title in the suit property and therefore she had a right to claim possession from the defendants because of the said better title. Therefore Ld. Civil Judge decided the issue no. 1 and 4 in favour of the plaintiff and against the defendants thereby holding that the plaintiff was entitled to the relief of possession as prayed for.
10. With respect to issue no. 2, the Ld. Civil Judge held that the plaintiff had not placed on record any document to prove that the licence fee of the suit property was Rs.4500/- per month. Hence the issue was decided against the plaintiff. With respect to issue no. 3, the Ld. Civil Judge held that even though the plaintiff RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 8 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. did not prove that the licence fee of the suit property was Rs.4000/- or Rs.4500/- per month, however the defendants had not refuted the fact that the suit property could fetch rent of Rs.6000/- to Rs.8000/- per month. Hence, the issue was decided in favour of the plaintiff directing the defendants to pay mesne profits @ Rs.6000/- per month till handing over the possession.
11. Ld. Civil Judge, decided the issue no. 4A of limitation in favour of the plaintiff while holding that the period of limitation for seeking possession of immovable property is 12 years and that the period starts running when the possession of the defendant becomes adverse to the plaintiff. The Ld. Civil Judge also decided the issue no. 5 in favour of the plaintiff while holding that the defendants being licensee, there was no requirement of valuing the suit at the prevalent circle rate of the property in question and to pay ad volerum court fee on such valuation. The Ld. Civil Judge decreed the suit in favour of the plaintiff directing the defendants to vacate the premises within two months from the date of the order. The Court also awarded mesne profits to the plaintiff @ Rs.6000/- per month till delivery of possession. The Court also awarded the cost of the suit to the plaintiff.
RCA DJ No. 11/22Nagendra Kumar & Anr. Vs. Anita Tiwari Page 9 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022.
12. The defendants, being aggrieved by the impugned judgment, are in appeal before this Court. The defendants have taken the following material grounds in the appeal:
12.1. The decree passed in favour of respondent, holding that the respondent has a better title, is not proper. There was no better title in favour of the respondent. Ld. Trial Court did not consider the copy of Khasra Girdawari placed on record by the defendants which shows that ownership of the land in question vests in Gram Sabha. This is a public document which should have been considered by the Ld. Trial Judge. The Ld. Trial Court has wrongly decided issue no.1 in favour of respondent on the basis of unregistered documents by which the respondent claimed ownership over the suit property. The ownership and better title of the suit property lies in favour of some person who is not a party to the suit. The public documents i.e. copy of Khasra Girdwari/Fard relating to Khasra No.1012 in which of the suit property falls, clearly shows that the initial owner of the land was Mr. Jagmal.
The documents in regards to purchase of suit property filed by the Respondent nowhere disclosed the name of MR. Jagmal who is shown as owner of the entire Khasra No.1012 as shown in the revenue record, as such, the respondent does not have any title, or RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 10 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. any better title in her favour. The respondent has claimed herself owner of the suit property. However, she has failed to bring the complete chain of title documents. The unregistered documents produced by the plaintiff are not able to transfer any right, title or interest in any property as held by the Hon'ble Supreme Court of India.
12.2. Ld. Trial Court Judge has failed to appreciate that the appellants had specifically denied any relationship of licensor licensee with the respondent. No issue on this objection was framed by the Court. The Ld. Trial Judge, wrongly decided the issues in favour of the plaintiff without considering the said objection and without deciding whether there was any such relationship proved on record. The Court has failed to appreciate that a person who is not the owner of the property can not claim possession of the property from the occupant unless the ownership is proved or any relationship between the parties is established. 12.3. The Ld. Trial Court Judge has completely ignored Section 101 of Indian Evidence Act. The onus of proof in regard to ownership of suit property lies on the person who has filed the suit and if the plaintiff has failed to prove her case, then she is not entitled to claim relief prayed therein.
RCA DJ No. 11/22Nagendra Kumar & Anr. Vs. Anita Tiwari Page 11 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. 12.4. The learned trial judge failed to appreciate the material placed on record, has erred in law and on facts and therefore the judgment is liable to be set aside.
13. The respondent has appeared and contested the appeal. Written Submissions have been filed on behalf of the respondent.
14. Ld. Counsel for the appellant would argue that the respondent had sought possession of the suit property on the basis of her claim that the appellants were the licensee in the suit property. The appellants had denied the said claim of the respondent and claimed themselves owner of the suit property. Despite that no issue whether there was a relationship of licensor and licensee was framed by the Court. The Trial Court had observed in the judgment that the plaintiff had failed to establish the relationship of licensor and licensee. Despite that the Court granted the mesne profits and the possession of the suit property to the plaintiff/respondent. It was not the case of the plaintiff that the defendants were unauthorized occupants. However, the Court wrongly gave the finding that the defendants were the unauthorized occupants. On the basis of the said observation the Court had granted the decree of possession and other relief in favour of the plaintiff which is against the established principals of RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 12 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. law. A Court cannot travel beyond the pleadings of the parties. Therefore the Court could not have granted the relief prayed by the plaintiff. The plaintiff has failed to prove her ownership. The documents relied upon by the plaintiff are not able to prove the ownership of the plaintiff regarding the suit property. No evidence was led as to how Smt. Rajesh Devi became the owner of the suit property from whom the plaintiff claimed to have purchased the suit property. Even Ld. Civil Judge, in the impugned judgment has observed that the documents relied upon by the plaintiff were not able to prove the ownership of the plaintiff in the strict sense. The plaintiff did not bring the complete chain of document to show her ownership of the suit property. Despite that the Court has passed the judgment and the decree in favour of the plaintiff which is against the principles of law. The defendants had filed a public document of khasra No. 1012 in which it was shown that Jagmal Singh was the owner of the said property. However, the Court has not mentioned about the said document in the judgment and therefore judgment is liable to be set aside. Further the documents filed by the plaintiff to show her ownership appear to be forged and fabricated documents on the face of them. On comparing the signature of Rajesh in Hindi in the GPA executed by Rajesh in RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 13 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. favour of Anita Devi with the documents stated to be executed by Shyam Lal in favour of Rajesh Devi it can be noticed that the signatures of Rajesh Devi are entirely different. Therefore those documents cannot be relied upon. Further the alleged GPA filed by the plaintiff shows the entire 1012 square yards. However, the exact location of 50 square yards i.e. the suit property is not clear in the said Khasra. There are two receipts filed by the plaintiff i.e. one receipt of Rs.1,80,000/- and other for Rs.2,20,000/-, which creates doubts on the claim of the plaintiff. The plaintiff did not take any step after making a complaint to the DCP regarding installation of an electricity meter by the defendant in the suit property. The plaintiff has not filed any document on record to show that the electricity bill was issued in her name prior to year 2009. The appellants are the real owner of the suit property since 1989-1990. However his documents were stolen in the year 2010 and therefore he could not produce his documents related to the suit property. In any case the burden was on the plaintiff to prove her case which she has failed to discharge. Hence, it is prayed that the judgment and decree dated 20.12.2021 may be set aside. Ld. Counsel has relied upon the judgments titled Prakash Rattan Lal RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 14 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. Vs. Mankey Ram:CM (main) No. 976/2007 and CM Appeal No. 9885/2007.
15. Ld. Counsel for the respondent, on the other hand, would argue that the appeal is not maintainable and it is liable to be dismissed. Ld. Counsel for the respondent would further argue that the appellants have claimed themselves to be owner of the property. However, they have not produced any document in support of their claim during the trial. Therefore Ld. Trial Court had rightly observed that the defendants had failed to prove the ownership of the suit property. Further, the defendant No.2 had claimed herself as the owner of the suit premises. However she did not enter into the witness box to prove her defence. Therefore the Hon'ble Court had rightly observed that the defendants had failed to prove the ownership of the suit property. Once the defendants had failed to prove their defence, the Ld. Civil Judge had rightly granted the reliefs in favour of the plaintiffs. The appellant had concealed deliberately various facts. The appellants had filed an application U/o VII Rule 11 CPC before the Ld. Civil Judge, which was dismissed vide order dated 03.12.2013. The appellants herein approached the Hon'ble High Court of Delhi against the said order. Vide order dated 24.07.2014 the Hon'ble High Court of Delhi RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 15 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. dismissed their petition. Further the appellants herein had filed an application before Ld. Civil Judge U/o 17 Rule 18 CPC to recall DW1 to file additional affidavit and documents. The said application was dismissed vide detailed order dated 10.05.2018. The defendants challenged the said order before the Hon'ble High Court of Delhi, however, the Hon'ble High Court of Delhi also dismissed their petition vide order dated 16.10.2019. Hon'ble Supreme Court of India also dismissed their special leave petition (Civil) No. 3027/2020. The appellants have concealed these facts from the Court and moved an application before this Court for taking those documents on record. Thus the appellants have not approached this Court with clean hands. Hence, it is prayed that the appeal may be dismissed.
16. I have heard the submissions of the parties and considered the entire material on record including the Trial Court Record, and written submissions filed by the Ld. Counsels for the parties.
17. As discussed hereinabove, it is admitted fact that the respondent herein had filed the suit claiming herself licensor and the appellants being the licencee. In such a suit, the ownership or the title of the suit property was never an issue though the same RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 16 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. had been averred by the plaintiff in her plaint. No issue on the ownership was framed in the suit, obviously, because of the said reason. If the title was not in issue, there was no need of any evidence to be led, and if any evidence was led, it was not required to be seen by the trial Court.
18. If the suit is between the licensor and the licensee, the licensor can file a suit for possession in the form of mandatory injunction against the erstwhile licensee after terminating the license within a reasonable time with promptitude. I get strength from the judgments in the case of Vishal Builders Pvt. Ltd. vs. Delhi Development Authority & Ors., 2006(130) DLT 667 and Desh Raj Singh vs. Triveni Engineering & Industries Ltd & Anr., 2006 (130) DLT 120, wherein it has been held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession can be permitted to deny that such a person had a title to the suit property when the license was given. Thus, when the suit has been filed with the averment that the plaintiff is licensor and the defendant, a licensee, the plaintiff is required to prove the said fact only. The question of ownership of the suit property does not come in issue. Therefore, in the present case, the respondent was required to RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 17 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. prove that the appellants were occupying the suit property as licensee on her behalf.
19. Now, the suit of the respondent herein was not based on title. It also becomes clear from the fact that the plaintiff had valued the suit at Rs.54000/- for the relief of possession. It is not found specifically mentioned in the records, however, it can be safely presumed that the valuation must have been done on the assumption that it was equal to the license fee for 1 year @Rs.4500/- per month as claimed by the plaintiff. There is no other logical explanation for the said valuation.
20. It is has been established through judicial pronouncements that a suit by licensor, against the gratuitous licensee, for possession by way of mandatory injunction is maintainable. It is also settled that the plaintiff is not required to value such suit at the market value of the property and to pay ad volerum Court fee on the said valuation. The respondent in the present case, had valued the relief of possession of the suit property as abovementioned on the basis of her claim that the defendants were her licensee. The trial Court could not have decided the suit on the basis of better title for two specific reasons. Firstly, there was no prayer of the respondent to get the suit RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 18 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. property vacated by way of possession, and secondly, there was no valuation of the suit for the purpose of possession on the basis of title and the Court fee had also not been paid for such a relief by the respondent. If the case was based on title, there would have been different valuation of the suit for the purpose of jurisdiction and Court fee.
21. Therefore, it has to be seen whether the respondent has proved in the suit, on the preponderance of probability, that she was the licensor and that the appellants were licensee.
22. In the present case, as the Trial Court record would reveal, no issue was framed regarding the relationship of licensor licensee between the parties. I have gone through the entire judgment passed by Ld. Civil Judge. In the entire judgment, there is no specific finding to the effect whether such relationship had been proved or not. No doubt, while deciding the issue no.3, in para no.31 of the judgment, it has been mentioned "since, as per findings in issue no.1, it has been established that the defendants were licensee in the property and therefore...." However, perusal of the judgment would show that issue no. 1 was decided by the trial Court in favour of the plaintiff holding that the plaintiff had a better title. There is no finding of the Trial Court that it was proved RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 19 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. that the plaintiff was a licensor and the defendants were licence. Still that issue can be considered as implicit in the issue no.1 as the plaintiff could have obtained the possession of the suit property from the defendant only if she was able to prove that the defendants were her licensee.
23. I have gone through the entire record. I have not found any documentary or oral evidence sufficient to prove on the preponderance of probabilities that the respondent was a licensor and that the appellants were licensee in the suit property.
24. It is the claim of the respondent that she had given the suit property on license to the appellants in the year 2004. The license was non gratuitous, as claimed by the respondent herself, @ Rs.4000/- per month. There is no license deed to prove the said agreement. The respondent did not bring any evidence on record to prove that she was receiving or had received, at any point of time, the license fee from the appellants as claimed by her. The respondent could have brought some receipt, bank transaction, entry in some diary regarding receiving of the fee, etc. However, no evidence to that effect has been brought on record. In the plaint and affidavit of evidence, the respondent has mentioned that she used to pay electricity charges in respect of the meter installed in RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 20 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. the premises. Thus, as per the plaintiff there was an electricity meter in the premises even prior to 2009. The respondent has not clarify as to who was the recorded consumer of the electricity in the suit premises. She has not clarified in whose name the electricity meter was installed in the suit premises prior to 2009. However, it can be safely said that it could have been in the name of the respondent or any previous owner of the suit premises as claimed by the respondent. However, the respondent has not brought any documents to show that there was any such electricity connection in the suit premises prior to 2009 which could show that the appellants were only licensee in the premises. She has not even mentioned the electricity connection number in the record of the Court.
25. There is oral testimony of the respondent wherein she has stated that the appellants were her licensee. But then, there is oral testimony of the appellant no. 1 wherein he has denied any relationship of licensor licensee as claimed by the respondent.
26. The burden in the present case was on the respondent to prove that the defendants were her licensee. She was required to prove the said fact by leading some evidence. Only because the defendants could not prove their ownership of the suit property, the RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 21 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. plaintiff did not become entitle to recover the possession from them unless she proves her claim. It is settled position of law that a person is entitled to protect his possession against the whole world except the true owner. Therefore, the appellants have all the rights to protect their possession unless the respondent was able to prove that the appellants were her licensee.
27. The present suit could not have been decreed in favour of the plaintiff by holding that she had a better title as the title was not in issue. In a case of suit for possession on the basis of title, a plaintiff has to value the suit at the market rate of the property on the date of institution of the suit and ad volerum Court fee is required to be paid by the plaintiff on the said valuation. It was not so in the present case. The relationship of licensor-licensee was also not proved during the trial. Hence, I am of the considered opinion that Ld. Trial Court Judge had committed error in deciding the issue no.1 in favour of the plaintiff. Ld. Civil Judge, therefore, also committed error, while granting mesne profits to the plaintiff.
28. Ld. Civil Judge has relied upon the two judgments, i.e. Abdul Gaffar vs DDA 90 (2001) DLT 330, and Kalu Ram vs Sita Ram 1980 RLR (Note) 44 to hold that adverse inference had RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 22 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. to be drawn against the defendants as they had not replied to the legal notice sent by the plaintiff.
29. I have gone through one of those two judgments. The said judgment is distinguishable on facts and does not apply in the facts and circumstances of the present case. In Abdul Gaffar vs DDA 90 (2001) DLT 330, the question before the Hon'ble Court was whether there was an arbitration agreement existed between the parties as it was mentioned in the legal notice which was not replied by the respondent. The petitioner had relied upon Sub- section (4)(c) of Section 7 of the Arbitration and Conciliation Act, 1996, which reads as under:
" 7. Arbitration agreement-(1) In this part... "xxx "(4) An Arbitration Agreement is in writing if it is contained in-
'xxx
(c) an exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other.
30. In view of the said provision of law, Hon'ble High Court had held as under in Abdul Gaffar Vs. DDA (supra) "5. In reply Ms. Ansuya Salwan, learned Counsel for the DDA has argued that in its reply to the present RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 23 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. application the DDA has categorically denied the existence of the Arbitration Agreement, and therefore, Sub-section (4)(c) would have no application. I am not all satisfied that this is correct understanding of the said clause. It must be expected of a party denying the existence of an Arbitration Agreement, to state so immediately upon the question being raised by the claimant. It is not enough of the party which maintains that there is an absence of an Arbitration Agreement to wait for a petition under Section 11 to be filed for it to record its stance. In the present case the alleged Arbitration Agreement was invoked by the petitioner on 28.4.1997. No reply to this legal notice had been given and the first demur on this issue is in terms of the respondent's reply to the present petition filed over three years later. I would have been inclined to accept that the silence of the DDA, after receipt of the legal notice, would be indicative that it has not denied the Arbitration Agreement. This is one part, but an important, one , of its defense, the expectancy under the Act is of promptitude and hence the inclusion of Sub-section (4). The interpretation sough to be given to this provision by learned Counsel for the respondent would have the effect to working against the intendment of the enactment...." (emphasis supplied)
31. Thus, as above quoted, the said findings were in reference to a specific provision of law which is not so in the present case. Hence, that judgment can not be relied upon in the facts of the present case.
RCA DJ No. 11/22Nagendra Kumar & Anr. Vs. Anita Tiwari Page 24 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022.
32. I made efforts to obtain the judgment titled Kalu Ram vs Sita Ram 1980 RLR (Note) 44 for reading. However, I could not obtain the copy of the said judgment despite my best efforts. The said judgment is however, shown to be quoted, with approval, by Hon'ble High Court of Delhi in the case titled Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit Kalra & Anr. 98 (2002) DLT 573 (DB). I have studied the judgment of the case titled Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit Kalra & Anr. (supra). The said case is also distinguishable on facts. In the said case before the Hon'ble High Court of Delhi, the relationship of seller and purchaser between the appellant and the respondent was an admitted fact. Further, the documents, i.e., invoices on which the appellant was relying upon were held to be proved as per law and was also held to be proved that the tickets for which those invoices were raised were collected and received by the employees of the respondent. The respondent, on the other hand had failed to prove that the tickets were not received by his employees and that the receiving were forged by the appellant. It was in context of those findings when the Hon'ble High Court had observed that an adverse inference was also required to be drawn against the respondent as he had not replied the legal notice which RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 25 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. was served upon him personally in the presence of a Notary Public. The facts of the present case are completely different from the facts of the said case.
33. I am of the considered opinion that there can not be a straight jacket rule that adverse inference of all the facts mentioned in a notice, in all the cases, has to be drawn if the legal notice is not replied by the opposite party. It depends on the facts and circumstances of a case when such an inference can be drawn, e.g. when certain relationships are admitted or proved between the parties, and the relationship or the circumstances are such that a prompt reply is required in case some allegation are made by one party in a notice to such party.
34. Ld. Counsel for the respondent had also argued that the defendant no. 2 did not enter into witness box and therefore, the case was rightly decreed in favour of the plaintiff.
35. I have considered the submissions. As per law, there is no requirement of a particular number of witness to prove any fact. The defendant no. 1 had entered into witness box and stated on oath that he was not the licensee of the plaintiff. The burden was on the plaintiff/respondent to prove on the preponderance of the probabilities that she had given the suit premises on license basis RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 26 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. to the appellants. As discussed hereinabove, there is no evidence provided by the respondent to prove the said fact. The plaintiff has to prove her case on the basis of evidence to be led by her. The respondent herein can not take the plea that because the appellants had failed to show their ownership of the suit property, she must have been presumed to be the licensor of the suit property. No such presumption can be drawn under the law.
36. There were other arguments of Ld. Counsel for the appellants i.e. arguments regarding ownership/khasara girdawari, previous ownership etc. However, I have not discussed those arguments in details as they were not required for the purpose of deciding the present appeal. I have also not given any findings in relation to the ownership of the suit property as it was not required to be decided in the suit and present appeal.
37. In the light of the discussion hereinabove, I hold that the Ld. Civil Judge has erred in decreeing the suit in favour of the plaintiff. Hence, the impugned Judgment and decree dated 20.12.2021 are liable to be set aside. In view of the above, the appeal is allowed. The Judgment and decree dated 20.12.2021, passed by Ld. Ld. Civil Judge-01, South, Saket Courts Complex, Saket, New Delhi, in the Civil Suit bearing no. 82880/2016 titled RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 27 of 28 Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022. Anita Tiwari vs Shri Nagender Kumar and Anr. are set aside. The suit of the respondent (plaintiff before the trial Court) is dismissed. In the circumstances of the case, parties to bear their own cost.
38. Decree sheet be drawn accordingly.
Pronounced in the open Court on this 6th Day of August 2022.
Digitally signedDINESH by DINESH KUMAR KUMAR Date: 2022.08.06 16:05:15 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI. RCA DJ No. 11/22 Nagendra Kumar & Anr. Vs. Anita Tiwari Page 28 of 28
Dinesh Kumar/ADJ-02/South/Saket/ND/06.08.2022.