Delhi District Court
Pearey Lal vs Ram Nath on 1 April, 2013
Pearey Lal Vs Ram Nath
IN THE COURT OF SH. VIRENDER KUMAR BANSAL:
ADDITIONAL DISTRICT JUDGE, CENTRAL-8, DELHI.
RCA No. 6/12
Shri Pearey Lal (Since deceased) died on 27.05.1989
now represented by his LRs
(a) Smt. Sharbati Devi (widow since deceased)
now represented by her LRs (b) to (g)
(b) Shri Ghanshyam Sharma (son)
(c) Shri Radhey Sham (son)
(d) Shri Rakesh Sharma (son)
All residents of V-2, Green Park Extension,
New Delhi.
(e) Veena Sharma (daughter)
w/o Sh. Anil Sharma
R/o Shuklon Wali Gali, Chotta Bazar,
Shahdara, Delhi.
(f) Smt. Sundri Sharma (daughter)
W/o Shri Guru Datt Sharma
R/o Sharan, N.I.T.,
Faridabad (Haryana).
(g) Smt. Rajni Sharma (daughter)
W/o Shri Ashok Sharma,
R/o Mohalla Jatwara,
Ghaziabad (U.P.) ... Appellants
VERSUS
1. Mahant Ram Nath
Chela Mahant Prithi Nath died on 13.07.1992 now his
RCA No. 6/12 1 of 81
Pearey Lal Vs Ram Nath
LRs.
a) Sh. Surender Nath
Chela Sh. Ram Nath Gaddi Nashin,
Mandir Shri Kalkaji, New Delhi for
Self and on behalf of all members of Thok
Jogian,
R/o Kalkaji Mandir, New Delhi.
2. Narain Singh (since deceased) now
represented by
Sh. Dinesh Chand
S/o Shri Gugan Chand Pandey
for himself and on behalf of all other
members of Thok Gharbari Jogian
R/o Chirag Delhi, New Delhi.
3. Kishan Chand s/o Sh. Natya Nand
for himself and on behalf of all other
members of Thulla Tansukh
R/o Chirag Delhi, New Delhi.
4. Bala Pershad s/o Sh. Hira Lal
(died on 11.12.1995) now his LRs.
(f) Sh. S.N. Sharma
(g) Hans Raj Sharma
(h) D.P. Sharma
(i) Ravinder Nath Sharma
(j) Ashitosh Sharma
For themselves and on behalf of all other
members of Thula Jas Ram, Photographers,
near Delhi Gate, Delhi.
5. Lakhpat Ram s/o Niadera (since deceased) now
represented by Sh. Mukesh, gran son of
RCA No. 6/12 2 of 81
Pearey Lal Vs Ram Nath
Lakhpat Ram, for himself and on behalf of all
other members of Thula Bahadur
R/o Chirag Delhi, New Delhi.
6. Har Swaroop son of Sultan Singh
(died on 14.10.1978) now his LRs.
a) Sh. Nihal Chand
b) Sh. Trilok Chand
For self and on behalf of all
other members of Thula Ram Baksh
R/o Chirag Delhi, New Delhi.
7. Sita Ram son of Shiv Sahai (deceased) now his
LRs
a) Radhey Shyam (since deceased)
b) Hari Dutt
c) Shiv Dutt (since deceased)
d) Ravi Dutt
All Resident of 650, Chirag Delhi, Delhi.
8. Salig Ram son of Shiv Sahai (since deceased)
R/o Chirag Delhi, Delhi.
9. PeareyLal son of Devi Sahai (since deceased)
now his LRs
a) Shri Bhagwat Pershad (since deceased)
b) Shri Kirpa Ram
c) Shri Durga Pershad
d) Shri Hukam Chand
All Residents of Chirag Delhi, Delhi.
10. Shri Jia Lal- Pujari (since deceased)
Now represented by:-
a) Sh. Gian Parkash Sharma (son)
R/o 676, Chirag Delhi,
RCA No. 6/12 3 of 81
Pearey Lal Vs Ram Nath
New Delhi
b) Shri Rajiv Sharma (son)
R/o 593-A, Chirag Delhi,
New Delhi.
c) Shri Vinod Kumar (son)
R/o 676, Chirag Delhi,
New Delhi
d) Shri Satish Bhardwaj (son)
R/o 593-A, Chirag Delhi
New Delhi. ... Respondents
ORDER ON THE APPEAL U/SEC. 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 31.1.2012
1. The present appeal has been preferred against the judgment and decree dated 31.1.2012 whereby the suit filed by Sh. Pearey Lal now represented through LRs seeking declaration that plaintiff is the tenant in the premises i.e. one shop in Mandir Sri Kalkaji and for perpetual injunction that he shall not be dispossessed from the premises and that the defendants/respondents shall not open any other Halwai shop in premises of Mandir Sri Kalkaji against the baridars and other persons.
RCA No. 6/12 4 of 81 Pearey Lal Vs Ram Nath
2. The brief facts giving rise to the present appeal are that Pearey Lal now through LRs ( herein after referred as plaintiff) filed the suit against Mahant Ram Nath 2.Narain Singh (since deceased) 3.Kishan Chand s/o Sh. Natya Nand
4.Bala Pershad s/o Sh. Hira Lal 5.Lakhpat Ram s/o Niadera (since deceased) 6.Har Swaroop son of Sultan Singh 7.Sita Ram son of Shiv Sahai (deceased) 8.Salig Ram son of Shiv Sahai (since deceased) 9.PeareyLal son of Devi Sahai (since deceased) 10.Shri Jia Lal- Pujari (since deceased) through LRs (herein after referred as defendants). It is alleged that in village Bahapur there is a Mandir of goddess Kalkaji known as Mandir Kalkaji. There are several shops around the Mandir belonging to the Mandir. The ancestors of defendant no.1 and 2 used to perform pooja-sewa and realise rent/Teh Bajari and offerings of the temple. Every month on Sudhi Ashtami fair is held at the temple and two fairs are held in temple in Chait and Asoj of every year. In the course of time the ancestors of defendant no.1 and 2 RCA No. 6/12 5 of 81 Pearey Lal Vs Ram Nath employed Brahmins of the said village for performing puja sewa in the temple and also allowed them the right to realise the Teh Bazari and offerings of the temple, therefore, two thoks of Pujaries were formed one Thok Jogian and the other Thok Brahmian. There are two classes of Jogians namely: Darshani Jogian and Gharbari Jogian. Defendant no.1 belongs to the first class and defendant no.2 is the member of second class. The Thok Brahmanan has four Thullas namely (i) Thulla Tansukh, (ii) Thulla Jas Ram (iii) Thulla Bahadur and (iv) Thulla Ram Baksh. These members of Thok Jogian are numerous and they all are having the common interest and therefore they were pleaded through respectable leading member of Jogian and Brahmanan. It is alleged that by the judgment of Sh. Bhaskar Rao Review Assistant, Delhi (as he then was) it was decided that in first month the Thok Jogians will perform puja sewa and realise offerings and Teh Bazari etc. and for next three consecutive months Brahmans shall perform sewa and RCA No. 6/12 6 of 81 Pearey Lal Vs Ram Nath realise offerings and Teh Bazari etc. and Thok Jogians will get three months and Brahmans will get 9 months turn in one year. It was also decided that all Charwah Puja and Teh Bazari etc. in six monthly Melas (Chet & Asoj) shall be divided between the Thok Jogians and Brahmanans in the ratio i.e. in four years time one year two shishmahies (Chet and Asoj) shall be the turn of Thok Jogian and six Shishmahies of the remaining three years shall be the turn of Thok Brahmanans. It was to be distributed in the following manner:
(i) Thok Jogian......... Four annas in a rupee
(ii) Thulla Tansukh.... Three Annas in a rupee
(iii)Thulla Jas Ram.. Three Annas in a rupee
(iv)Thulla Bahadur Three Annas in a rupee
(v)Thulla Ram Baksh Three Annas in a rupee.
3. The judgment dated 10.5.1877 was confirmed by the Chief Court of Punjab on 09.1.1879 and this arrangement is observed since then. It is alleged that in Suit no. 61/69 titled as Mahant Ram Nath Vs Shri Tula Ram etc. Sh. S. N Kapoor Sub Judge, 1st class, Delhi (as he then RCA No. 6/12 7 of 81 Pearey Lal Vs Ram Nath was) passed the decree for the regulation of the Baris amongst the Jogian and Brahmans on 1.2.1974. The plaintiff is a tenant of the Mandir Sh. Kalkaji in respect of one shop bearing No.1 belonging to Mandir Sh. Kalkaji for the last more than 12 years at a monthly rent of Rs. 1125/-. The plaintiff carries on his business as a Halwai and prepares sweets for "Parshad". The tenancy premises consist of one big room, one small room and two verandahas. He is carrying on business under the name and style of "Kalka Mai Ke Parshad Kadimi Dukan. Yahan Parshad Acha Milta Hai". Plaintiff is also having licence No. 17155 issued by Minicipal Corporation of Delhi to carry on Halwai business in the said shop and also registration under the Sales Tax Act. It is also alleged that from time immemorial only one Halwai shop is allowed to run in the Mandir precincts except on the Navratra days of Sishmai Mela which falls in Chet and Asoj every years. An undertaking was given by the Baridars of the Mandir according to the terms of RCA No. 6/12 8 of 81 Pearey Lal Vs Ram Nath tenancy that they will not open a new shop of Halwai in the precincts of Kalkaji Mandir and it is only the plaintiff who will be entitled to run the shop and it is due to this reason plaintiff is paying exorbitant amount as rent to the various Baridars as per the month of bari against receipt. As he is the tenant he cannot be evicted there from otherwise than in due course of law. It alleged that some of the baridars tried to dis-possess the plaintiff forcibly due to which the plaintiff has to file suit for injunction against them seeking restrain order against dis- possession of the plaintiff from the tenanted premises during their Bari in question, but during the pendency of those suits, the Bari of those baridars came to end and the suit therefore became infructuous. It is alleged that now again in the bari of Thulla Tansukh the members of the Thulla and the defendants are threatening to dispossess the plaintiff forcibly from the said tenancy premises and open another Halwai shop hence the suit has been filed under Order I Rule 8 CPC impleading RCA No. 6/12 9 of 81 Pearey Lal Vs Ram Nath representative of various Thullas and Thokas. Plaintiff had repeatedly asked the defendants to desist from invading the plaintiff's of user and enjoyment of the said shop as a tenant but they are adamant, hence the suit seeking declaration that he is tenant and in the alternative a licencee and that he shall not be dispossess except in due course of law and that defendants be restrained from opening another Halwai shop.
4. Summons sent to defendants. Publication also appeared in the news paper. An application under Order 1 Rule 10 CPC was moved on which defendant's no.9 and 10 were impleaded. But only defendant no.8 and 10 filed the written statement taking the preliminary objection that suit filed is not maintainable as plaintiff is not tenant in the property in question as he is only a licensee which licence has since been revoked, therefore, the defendants are within their rights to take back the possession. It is also alleged that plaintiff has no locus standi to file the present suit. The suit is barred by Order XXIII RCA No. 6/12 10 of 81 Pearey Lal Vs Ram Nath Rule 1(3) CPC. The plaintiff previously filed suit No. 403 and 426 of 1974 in the Court of Sh.J. K. Pali, Ld. Sub Judge,Delhi (as he then was), for relief of injunction against the persons who are parties in this suit on the same allegations that he is tenant of the property and cannot be ejected except in due course of law and also for injunction restraining the defendants in that suit from opening any other Halwai Shop. The said suits were dismissed as withdrawal and therefore now the plaintiff cannot file the suit for the same relief. The suit of the plaintiff is barred by res-judicata and constructive res- judicata on the ground that the previous suits were dismissed for the same relief.
5. It is alleged that plaintiff has deliberately not mentioned in the plaint the person who had let out the alleged shop or Chabutra to him nor has he mentioned the year in which the premises were let to him. In fact he has not come to the Court with clean hands. There are numerous Baridars (co-sharers) approximately more than three hundred, get their turn to act as Pujaries RCA No. 6/12 11 of 81 Pearey Lal Vs Ram Nath for one month at intervals and the said Baridars realizes Tehbazarai from the various vendors for the said month and also offerings. No Baridar /co-sharer can create tenancy rights in favour of any person. It is alleged that the suit is also barred under Order II Rule 2 CPC. So far as the factum that he is running a shop or that there are baris as decided in the judgment, that is not disputed but it is alleged that he has not filed the suit against proper persons and suit is bad for non-joinder of necessary parties. It is denied that plaintiff is a tenant in respect of any alleged shop. He is only a licensee having no vested right in the shop in question. It is alleged that his licence has since been revoked and that he cannot claim any right as a tenant. It is denied that plaintiff is a tenant and paying rent @ Rs. 1125/- per month. It is denied that there is only one Halwai shop in the Mandir. It is alleged that there can be any number of shops in the temple carrying on the Halwai business and the plaintiff has no right to interfere in the rights of the Pujaries to open RCA No. 6/12 12 of 81 Pearey Lal Vs Ram Nath any other Halwai Shop on Teh Bazari. It is alleged that plaintiff never paid any rent to any of the Baridar and even otherwise there is no tenancy, hence question of payment of the rent does not arise. Plaintiff is in the capacity of trespasser and Pujaries of Mandir Kalkaji are well within their rights to eject him. It is alleged that for last more than 13 years i.e. in September, 1963 Sh.Jagdish Bhardwaj, Advocate had been appointed as Receiver of Mandir Sri Kalkaji and properties attached to it in suit no. 630/63 by Sh. V. P. Bhatnagar, ld. Sub Judge Ist Class, Delhi in 1964. Later on Mahant Prithi Nath, one of the Baridars filed a suit for regulation of Baries against the other Baridars and made applications for the appointment of Receiver. Sh. P.C. Saini, Ld. Sub Judge, Ist Class, Delhi by his order dated 16.5.64 in suit No. 61/69 held that the possession of the temple shall be deemed to be that of court from 16.5.1964 and the person appointed by the court each month was held entitled to receive the offerings and Tehbazaries RCA No. 6/12 13 of 81 Pearey Lal Vs Ram Nath for that month. The court did not invest any power to give any shop or Chabutra on rent in temple property and as such no one was entitled during the last more than twelve years to create tenancy rights in favour of the plaintiff. Some of the persons who were appointed by the court to receive the offerings, Tehbazari, Licence fee, Parao after 16.5.64 for a period of one month permitted the plaintiff to sell sweets as prashad on one of the Chabutara within the precincts of the temple on a Tehbazari basis i.e. to say as a licensee who was permitted to come and sell his wares, and his term of licence expired with the period of Theka given by the court to person appointed. The baridar is the person Incharge of the Temple Dharamshala and Chabutara etc. attached to the temple with no right to create tenancy. It is prayed that the suit be dismissed.
6. Replication was filed wherein the plaintiff denied the averments made in the written statement and re-asserted the facts mentioned in the plaint. Other defendants were proceeded ex-
RCA No. 6/12 14 of 81
Pearey Lal Vs Ram Nath
parte.
7. From the pleadings of the parties following issues were framed which are as under:
1. Whether the plaintiff is a tenant at the suit premises? OPP
2. Whether the plaintiff is a trespasser in the suit premises as alleged in para 27-32 of the W.S.? OPD
3. Whether the suit is barred by Principle of res-judicata? OPD
4. Whether the suit is barred u/O 23 Rule 1 Clause 3 CPC? OPD
5. Whether suit is barred u/S 2 R 2 of CPC
6. Whether the plaintiff is entitled for the injunction as prayed for? OPD
7. Relief.
The case was fixed for PE.
8. Plaintiff in support of its case examined Sh.
Ram Kumar as PW1 though before that he was examined as PW2. He stated in examination in chief that plaintiff is a tenant in the premises and is in continuous possession of the premises for the last 19-20 years and he also stated that he has seen Ex. PW1/1 to PW1/61 and can identify the signatures of the persons issuing the receipts. It is pertinent to mention that Ex.
RCA No. 6/12 15 of 81 Pearey Lal Vs Ram Nath PW1/1 to PW1/61 are the various rent receipts. Later on he was examined as PW1 and during cross examination he stated that:
"He (plaintiff) is my relative, regarding village relation. Plaintiff is running a Halwai Shop at Kalkaji Mandir for the last 20-22 years. The plaintiff pays the money to Baridar. The plaintiff is paying rent to the Baridar. I am also one of the share holders, in the Bari. My turn performing Puja comes after three years. It is correct to say that a shop of Phoolwalas is also opens in the premises in every month..... I take a rent from other shop, phoolwala also, when my turn comes for one month...... I do not know who created tenancy in favour of the plaintiff, but he pays rent to every Baridar. That some of those Baridars issued receipt of rent to Piarey Lal".
9. Sh. Satpal was earlier examined as PW1 but was again examined as PW3. He also deposed in favour of the plaintiff. During cross examination, he stated that:
" The Baridar entitled to realise tehbazari from the shopkeepers in the said period of his baridari. I belong to thula Jasram.... The plaintiff's sister has got married to me. It is wrong to say that I have come to depose for this reason. I do not remember RCA No. 6/12 16 of 81 Pearey Lal Vs Ram Nath who was running the shop of flower during the period 1976 and 1980 when my bari came...I realised Tehbazari from the aforesaid flowers shop. Volunteered, I also realised tehbazari from Chatwala, Chaiwal and others... It is wrong to suggest that I realised Tehbazari from the plaintiff for the said month. But, I realised the rent from the plaintiff as he is a tenant. The landlord of the shop is Mandir Shri Kalkaji. The co-sharers whose turn falls they have created tenancy in favour of the plaintiff. The tenancy has been created in favour of the plaintiff for the last 15 to 20 years. There is writing to the effect that the plaintiff is a tenant in the premises in dispute in the court. It is correct to suggest that no single co-sharers has got any right to create tenancy in favour of the plaintiffs. He is only entitled to realise rent. It is wrong to say that Baridar is entitled to realise tehbazari from the plaintiff".
10.Sh. Pearey Lal, the plaintiff himself was examined as PW3. He also supported the case of the plaintiff but his examination in chief could not be completed and he died during the pendency and in his place his LRs were brought on record.
11.Sh. Rohtash Singh clerk from MCD was RCA No. 6/12 17 of 81 Pearey Lal Vs Ram Nath recorded as PW4. He deposed that there is water connection no. 724 in the premises which is in the name of Pearey Lal and proved the document Ex. PW4/1 issued by the department. During cross examination, he stated that on the bill, the tenant is mentioned because the applicant claimed himself to be the tenant but the witness has not brought the documents about the verification carried out on the spot and the NOC issued by the landlord.
12.Sh. Jugal Kishore, UDC from Shop and Estt. Deartment, Delhi Admn. Was also examined as PW4. He brought the record with respect to certificate no. 9/3789/I dated 12.4.76 and proved the same on record.
13.Sh. V. R. Sharma, clerk, Commercial Section, DESU was examined as PW5. He stated that Electric meter No. K-126122,Zone No. 311, is installed in the name of Pearey Lal in Shop No. 1, Mandir Kalkaji, N. Delhi and it was installed on 26.10.1981. During cross examination he stated that there is no application in the record available vide which Sh. Pearey Lal applied for RCA No. 6/12 18 of 81 Pearey Lal Vs Ram Nath electric connection in the premises. Thereafter PE was closed.
14.Sh. Jai Lal was examined as DW1 but he could not be put to the test of cross examination as before that he expired. Thereafter his son Sh. Satish Bhardwaj filed his affidavit Ex. DW1/A in evidence supporting the averments made in the written statement and also produced the certified copies of the plaint. He proved the certified copies of the earlier litigation, including plaint, written statement and order Ex. PW1/1 to Ex.PW1/16. During cross examination he deposed that "It is correct that PeareyLal was carrying on the is business at the same place for the last 25 years since I have seen him. It is correct that after PeareyLal his son is carrying on the said business at the same place.... For the first time, I gave a tehbajari in 1995. The tehbajari is given verbally for one month. No receipt is granted for the payment received from whom the tehbajari is granted. In 1995, I gave tehbajari rights to only one person who further realized his tehbajari from other vendor".
RCA No. 6/12 19 of 81 Pearey Lal Vs Ram Nath
15. Sh. Shyam Bhardwaj was examined as DW2 supporting the averments made in the written statement. During cross examination he deposed that:
"It is correct that Shri PeareyLal was selling parsad in the said shop. It is correct that he was preparing the prasad in the shop. Again said he was preparing parsad on the chabutra.... It is correct that son of PeareyLal is in possession of the suit property after the death of PeareyLal and since then he is selling the parsad in the said shop. I do not remember whether any notice was ever given to PeareyLal regarding tress passing during my bari. I cannot say about the other baridars. We did not give any notice to Shri Radhey Shyam son of the PeareyLal regarding tress passing... I do not remember whether the plaintiff was using the first floor for preparing parsad by using the stairs from the Chabutra. I did not raise any objection or initiated any proceedings after coming to know about the construction of the stairs from the chabutra and using the rooms for preparing the parsad.... It is wrong to suggest that plaintiff is paying the rent at the rate of Rs. 1125/- per month to each baridar as rent. I have not issued any receipt for any payment. I do not know RCA No. 6/12 20 of 81 Pearey Lal Vs Ram Nath whether the baridars were issued receipts to the plaintiff.... It is correct that it was written on the receipt issued to the plaintiff that other halwai shop will be permitted. (Vol. It was during litigation only in the year 1964-1975".
16.Sh. Lakshmi Chand was examined as DW3 supporting the averments made in the written statement. During cross examination he deposed that:
"There is only chabutra of the plaintiff and there is no shop of the plaintiff. I have seen the chabutra since 1961. My bari after 1964 did not come.... My father collected the tehbazari from Pearey Lal but no receipt was issued for the same. No one is issuing the receipt of the tehbazari. There is no tenancy in the Mandir. ... It is correct that there is barsati room on the first floor of the said room. It is wrong to suggest that there are stairs for going to first floor from chabutra. There is no water tank in existence adjoining the chabutra.... I have no knowledge whether the plaintiff use to pay Rs. 1125/- monthly rent to each baridar."
17.Sh. Durga Parsad was examined as DW4. He also filed his affidavit supporting the averments made in the written statement. During cross RCA No. 6/12 21 of 81 Pearey Lal Vs Ram Nath examination he deposed as under:
" It is correct that PeareyLal was carrying on business of selling Parsad in the Kalkaji Temple precincts since before 1960. It is correct that till PeareyLal was alive he was preparing and selling parsad at the same place and like wise Radhey Shyam plaintiff is also preparing and selling parsad at the same place till today. The said premises have continued in actual and physical possession of the PeareyLal and thereafter of RAdhey Shyam till date. The premises where the parsad is prepared and sold are a part of Dharmashala of the Mandir... The plaintiff have been using the rooms of the Dharmashala for storing and preparing parsad. The rooms at the back where the plaintiff's counter is placed is in possession of the plaintiff since the time of PeareyLal. The portion on the first floor of the premises behind the counter of the plaintiffs is also in possession of the plaintiff... I have not been to the rooms of the Dharmashala which are in possession of the plaintiffs. I have seen the photograph of the sign board which is displayed at the site. It is correct that the shop is having a sign board on which "KALKA MAI KE PARSAD KI KADIMI DUKAN NO.1" is written".
18.Thereafter DE was closed. Plaintiff requested for rebuttal evidence which was declined and the case was fixed for arguments.
19.Ld. Trial Court after hearing the arguments passed the judgment dismissing the suit of the RCA No. 6/12 22 of 81 Pearey Lal Vs Ram Nath plaintiff which is under challenge in the present appeal.
20.Notice of the appeal was sent to the respondents and trial court record was also requisitioned.
21.Respondents filed the cross objections challenging the findings on issues no. 2, 3, 4 and 5 in the judgment and decree dated 31.01.2013.
22.I have heard ld. counsel for both the parties at length and perused the record.
23.Ld. Counsel for the appellant submitted that the system of bari as prevalent in Mandir, Kalkaji is not disputed. Every month, there is different baridars. They perform puja-sewa and realize tehbazari/rent.
24.Ld.counsel for the appellant submitted that the Trial Court has not appreciated the oral as well as documentary evidence in this regard and completely ignored the system of bari relating to the temple. In the earlier suit which was filed on behalf of Mahant Prithi Nath with respect to the regulation of bari as there was issue only RCA No. 6/12 23 of 81 Pearey Lal Vs Ram Nath with respect to performing of Puja in the temple, therefore, there was no necessity to implead he appellant herein as a party and only M/s.Behari Lal, who was tenant in respect to the property of Khari Baoli was impleaded. Every Pujari who performed the puja sewa in the temple is infact the Manager of the temple for that month and gets all rights to let out or give on Teh Bazari various portion of Kalkaji Temple. He gets right to collect all the offerings, Chadawa, Teh Bazari and rent etc. The baridar charges every month as per the system and the appellant has taken premises on rent from such pujari and is paying rent @ Rs.1125/- per month. This is being followed even prior to 1962 till date. The plaintiff has not given up his possession of the said shop since then till date and is in continuous possession. Therefore, it will follow that the plaintiff has been permitted by the pujari to keep the possession and to continue in the future also and the plaintiff had been paying the rent to the various baridars against receipts. There is no objection by anybody including the RCA No. 6/12 24 of 81 Pearey Lal Vs Ram Nath various baridars right from 1962 onwards about his occupation and possession. The appellant is in possession without break but the Trial court has misdirected itself in considering this fact. Payment of rent for such a long period coupled with delivery of possession creates a lease as all the ingredients of Section 107 of Transfer of Property Act are fulfilled. Coupled with the fact that there are receipts Ex.PW1/1 to PW1/61 which are on record and also established and proved. PW1 has specifically stated that he can identify the signature of the persons who have executed these receipts and there is no such bar under law that a person cannot identify the signatures of the other persons, if he is acquainted with the signatures of those persons. Even otherwise it was not practicable to examine all the 61 persons, who issued signed the rent receipts. PW1 signed the receipts Ex.PW1/1 at point A was one of the Pujari and competent to depose but the Trial Court ignored his testimony on the ground that he was married to the plaintiff's sister and also RCA No. 6/12 25 of 81 Pearey Lal Vs Ram Nath that he could not identify the signatures of Har Saroop on Ex.PW1/5. Ld.counsel submitted that testimony of witness cannot be discarded merely on the ground that he is a related to one of the party, unless it is shown that the witness is not telling the truth. Similarly statement of Ram Kumar also has been discarded as he was not able to tell the names of the persons, who executed PW1/61 instead of deciding on the basis of the receipts whether those have been issued or not. Though, the respondents have never challenged the issuance of the receipts, the court discarded the same by discarding the testimony of PW1 and of DW2. Ld.counsel submitted that under the circumstances once the plaintiff has proved and established that he is in continuous possession even before 1962 he is continuously paying rent and he is in possession of premises as DW1 and DW2 both admitted this fact. DW1 has admitted that on the chabutra, plaintiff is having a big showcase/counter which is there for the last 30 to 40 years and has never been removed. He RCA No. 6/12 26 of 81 Pearey Lal Vs Ram Nath also admitted that plaintiff is in possession of the premises since 1963-64 and that plaintiff/appellant never handed over or vacated the possession. There are also rooms, meaning thereby the premises as admitted by DW2 which is also the fact stated by DW4 and he also admitted that the premises which are in possession of now Radhey Shyam earlier in possession of PeareyLal is given shop no.1 and according to him the plaintiff/appellant is using the room of Dharamshala for storing and preparing Parshad, therefore, it is clear that plaintiff/appellant is in possession of the premises and is also giving the rent which clearly establishes that he is a tenant.
25. Ld. Counsel submitted that as the appellant/plaintiff is in settled exclusive possession of the premises even before 1962 then he is entitled to protection of law and cannot be dispossessed except in due course of law. This is admitted fact that appellant/plaintiff is in possession since 1962 and even prior to that hence his possession is RCA No. 6/12 27 of 81 Pearey Lal Vs Ram Nath to be protected. But the trial court has not considered this fact. Ld. Counsel in support of his arguments relied upon the judgment cited as Baldev Raj v The Delhi Development Authority and others, 1971 (2) DLT 1, wherein it was held that:
"Where the plaintiff had been in peaceable and exclusive possession of the land in dispute for some years prior to the institution of the suit which in some cases dated back to 1949 and assuming that they had no title to the same and their occupation was unauthorized, still under the law of the land, they had a right to the effect that they must not be dispossessed except through due process of a valid law, our country is governed by the Constitution and Article 31(1) of the same lays down that no person shall be deprived of his property except by the authority of law. This fundamental right is a command of the Constitution to the State not to proceed against its citizens except in accordance with procedure prescribed by law and the obligation of the State to obey it gives rise to a corresponding right in favour of the subject which protects their peaceful possession and enjoyment of a property in dispute until action is taken against them according to law."
RCA No. 6/12 28 of 81 Pearey Lal Vs Ram Nath
26. Learned Counsel submitted that manger of temple has the power to create tenancy. He in support of his arguments relied upon the judgment cited as Atyam Veerraju and others v. Pechetti Venkanna and others, AIR 1966 SC 629. In this case it was held by the Apex Court that:
"The manager of the temple had no authority to grant a permanent lease of the temple lands at a fixed rent without any legal necessity; and had he granted such a lease, it would have endured for the tenure of his office only. See Vidya Varuthi Thirtha v. Baluswami Ayyar, 48 Ind App 302: (AIR 1922 PC 123). But he had ample power in the course of management to grant a lease from year to year. The lease from year to year granted by Ponnuri Anandu in 1851 was, therefore, binding on the temple. This lease did not terminate with the expiry of the office of Ponnuri Anandu or the succeeding managers. It continued of its own force until it was terminated by notice in 1949. The possession of the tenants during the continuance of this lease was not adverse to the temple."
27.Learned Counsel submitted that in view of this settled law the tenancy created by the Baridar RCA No. 6/12 29 of 81 Pearey Lal Vs Ram Nath in favour of the appellant/plaintiff would not come to an end after his term is over and the other baridars as well temple will remain bound by the same.
28. Ld. Counsel submitted that the long and continuous possession of the appellant/plaintiff on the premises coupled with regular payment of rent over the years clearly establishes his tenancy. Ld. Counsel in support of his arguments relied upon the judgment cited as Jagannath v District Judge Mathura and others, AIR 1977 Allahabad 439, wherein it was held that:
"On these facts, the question that arises whether the petitioner was sub-tenant, as claimed by the landlord, or he was a tenant in his own right. A contract of tenancy can be express or implied. The Rent Control Act or the Urban Buildings Act does not lay down any specific manner of entering into the agreement, except, where the tenancy is created under the Act itself, by an allotment order. The liability to pay rent, under the Act, is determinative of the relationship between the landlord and the tenant. It has been observed by Anson in his book of Law of contract, 23rd Edition, page 29:
RCA No. 6/12 30 of 81 Pearey Lal Vs Ram Nath "The intention of the parties is a matter of inference from their conduct and the inference is more or less, easily drawn according to the circumstances of the case."
"The conduct of the landlord in accepting the rent with the knowledge that the petitioner was carrying on business in his own right may lead to an inference that the intention of the parties was to create the relationship of landlord and tenant. The landlord did not file any affidavit on behalf of Sheo Barat Lal, nor did he himself state on oath to deny the allegations made on behalf of the petitioner. Payment of rent is an offer and if it is accepted by the person who is competent to accept it then an implied relationship of landlord and tenant arises. The intention of the parties being clear, a binding contract came into being when Sheo Barat Lal accepted the rent from the petitioner."
29. Learned Counsel has also relied upon the judgment cited as Julumdhari Rai and others v Debi Rai and others, AIR 1965 Patna 279, wherein it was held that:
"Plaintiff No. 12, who is respondent No. 18, has not proved any deed of settlement in his favour but two rent receipts have been exhibited [Exts. 2(n) and 2(o)] for RCA No. 6/12 31 of 81 Pearey Lal Vs Ram Nath 1355 and 1356. He did not examine himself. Item No. 9 Schedule 6 for 6 bighas was claimed by him. He had taken settlement of 17 bighas as described in Schedule 3 of the plaint. He was a party in the proceeding under Section 145, Criminal Procedure Code. Payment and acceptance of rent brings into existence the relationship of landlord and tenant in an agricultural holding. In the present case that position was admitted by the settlor (P.W. 6) (See Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, AIR 1960 Pat 344 (FB) and Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23. Plaintiff No. 12's title to item No. 9 of Schedule 6 cannot therefore, be disputed by the defendants, for the absence of proof of his deed of settlement."
30. Learned Counsel has also relied upon the judgment cited as Ammar Ahmed Khan and another v. Union of India and others, AIR 1955 Punjab 37, wherein it was held that:
"The' relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference RCA No. 6/12 32 of 81 Pearey Lal Vs Ram Nath may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship."
31. Ld. Counsel submitted that as there is no document of lease hence it will be a monthly tenancy. He in support of his contention relied upon case cited as Food Corporation of India and Others v Babulal Agrawal, (2004) 2 SCC
712. He also relied upon the case B. Arvind Kumar v Govt. of India and others, (2007) 5 SCC 745 wherein it was held that:
"Section 105 of Transfer of Property Act, 1882 defines lease as follows :
"A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promises or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by RCA No. 6/12 33 of 81 Pearey Lal Vs Ram Nath the transferee, who accepts the transfer on such terms.
Lessor, Lessee, Premium and Rent defined - The transferor is called the Lessor, the transferee is called the Lessee, the price is called the Premium, and the money, share, service or other thing to be so rendered is called the Rent."
Thus the essential ingredients of a lease are : (a) There should be a transfer of a right to enjoy an immovable property; (b) Such transfer may be for a certain term or in perpetuity; (c) The transfer should be in consideration of a premium or rent; (d) The transfer should be a bilateral transaction, the transferee accepting the terms of transfer."
32.Ld.counsel further submitted that so far as plaintiff himself is concerned he appeared in the witness box, his statement was also recorded but unfortunately his statement could not be completed as he died in between. Ld. Counsel submitted that because he has died does not means that his evidence cannot be looked into. He has specifically stated that he is tenant and to that extent his statement can be relied upon.
33.Ld. Counsel submitted that Trial court has not RCA No. 6/12 34 of 81 Pearey Lal Vs Ram Nath considered these facts and also his continuous possession even before 1962 and dismissed the suit without going into all the documents and the controversies. Ld. Counsel submitted that there is a continuous possession, payment of rent and he is having his shop therein with premises. Ld. Counsel submitted that keeping in view all these facts, it is clear that he is a tenant, therefore, he is entitled to protection against dispossession. The fact that he is in continuous possession is not disputed rather the defendant himself has admitted this fact and hence plaintiff/appellant is entitled to the protection as well as declaration. The order of Trial court is liable to be set aside and prayed that his suit be decreed and it be declared that he is the tenant and that he be not dispossess from the premises except in due course of law.
34.Ld. Counsel for the respondents submitted that admittedly there was earlier litigation with respect to regulation of bari was bar which fact is admitted by the appellant/plaintiff in its plaint itself and ultimately a judgment was passed by RCA No. 6/12 35 of 81 Pearey Lal Vs Ram Nath Sh.S.N.Kapoor, The Then Sub Judge First Class, the copy of the judgment has been placed on record as Ex.DW1/15. The copy of order with respect to the giving of rights of baridar has also been placed on record; such orders were passed regularly in the case every month. One such order has been placed on record as Ex.DW1/7. In this order it was specifically mentioned "...the possession of this temple shall be deemed to be that of this court from today onwards till further orders of this court and the person who is giving right to receive the offerings in this auction shall be deemed to be in possession of the temple on behalf of this court and shall enjoy all the rights and be subject to all the liabilities of the pujari of this temple".
35.Ld. Counsel submitted that the possession of the temple was taken up by the court in 1964 which continued till the petition was finally disposed off in 1974 by Sh. S. N. Kapoor vide judgment dt.1.2.74 Ex.DW1/15. Ld. Counsel submitted that as the entire temple premises were under the control and possession of the court and only the highest bidder was given RCA No. 6/12 36 of 81 Pearey Lal Vs Ram Nath right, that also on behalf of the court only to receive the offerings in the temple and to collect Teh Bazari etc. therefore, during that period the tenancy could not have been created. Even otherwise the plaintiff/appellant has not brought on record any document to show that any tenancy was created in favour of plaintiff/appellant by any of the baridar. He is silent on this aspect as to on which date the tenancy was created and who created the tenancy in his favour. Ld. Counsel submitted that onus was heavy upon him but he has not discharged the onus. So far as the alleged rent receipts are concerned those have never been proved on record. The persons who executed these rent receipts were never called to the witness box. Even the plaintiff himself has not appeared in the witness box to support his case. So far as PW1 is concerned he was married with the sister of the plaintiff, hence interested witness. The trial court had rightly not relied upon the testimony of that witness, so far as witness Ram Kumar is concerned he has RCA No. 6/12 37 of 81 Pearey Lal Vs Ram Nath not been able to prove these rent receipts. In the absence of any such evidence the trial court rightly concluded that the plaintiff is not the tenant in the premises. Ld. Counsel further submitted that even otherwise the plaintiff himself is not sure as to whether he is the tenant as in the plaint himself he is praying that either he be declared as tenant or the licensee in the alternative. Ld. Counsel submitted that plaintiff/appellant is neither the tenant nor the licensee but he is the tress passer. As per the bari system, court was appointed one baridar every month, the highest bidder, and the rights given were only to manage the temple and receive the offerings etc. There was no right conferred upon such person to create tenancy. Ld. Counsel further submitted that even otherwise as neither the plaintiff appeared in the witness box nor his successor in interest appeared in the witness box. The factum of tenancy could not be proved. Ld. Counsel submitted that there is no question of any tenancy in favour of the appellant, he can only RCA No. 6/12 38 of 81 Pearey Lal Vs Ram Nath be a Teh Bazari holder that also only for one month. On this count itself the suit is liable to be dismissed.
36. Ld. Counsel for the respondent also relied upon the judgment cited as Atyam Veerraju and others v. Pechetti Venkanna and others, AIR 1966 SC 629 and submitted that no lease can be executed by the Manger except for a legal necessity and in any case there cannot be a permanent lease. Ld. Counsel drew attention to observations made in para 9 of the judgment which reads as under:
"Where the tenancy is granted by an instrument in writing, the question whether the tenancy is permanent is a matter of construction, having regard to the terms of the deed and where the language of the deed is ambiguous, having regard also to the object of the lease, the circumstances under which it was granted and the subsequent, conduct of the parties, for an instance, see Sivavogeswara Cotton Press, Devangere v. M. Panchaksharappa (1962) 3 SCR 876 : (AIR 1962 SC 413). If the origin of the tenancy is not known, the tenant may lead circumstantial evidence to establish his permanent right of occupancy. The evidence of long possession coupled with other RCA No. 6/12 39 of 81 Pearey Lal Vs Ram Nath circumstances such as uniform payment of rent, construction of permanent structures, successive devolutions of property by transfer and inheritance may lead to the inference that the tenancy is permanent, see Bejoy Gopal Mukherji v.
Pratul Chandra Ghose, 1953 SCR 930 :
(AIR 1953 SC 153). The Court may refuse to draw this inference of a permanent tenancy at a fixed rent where the demised land belongs to a Hindu religious endowment, for the manager of the endowment has no power to grant such a lease in the absence of legal necessity, and the Court will not presume a breach of duty on his part. See Maharanee Shibessurre Debia. v. Mothooranath Acharjo, 13 Moo Ind App 270 at p. 275 (PC); Naina Pillai Marakayar v.
Ramanathan Chettiar, 51 Ind App 83 at p. 96-98 : (AIR 1924 PC 65 at pp. 71-73). But the disability of the manager to grant a permanent lease at a fixed rent is not absolute; he may grant such a lease for legal necessity. If by the production of the original grant or by other cogent evidence the tenant establishes the grant of a permanent lease by him and the validity of the lease comes in question after a long lapse of time when direct evidence of the circumstances under which the grant was made is no longer available, the Court will make every presumption in favour of its validity and may assume that the grant was made for necessity, see Bawa RCA No. 6/12 40 of 81 Pearey Lal Vs Ram Nath Sitaram v. Kasturbhai Manibha, 49 Ind App 54 : (AIR 1922 PC 165). This case was followed in Mohammad Mazaffar-Al- Musavi V. Jabeda Khatun, ILR 57 Cal 1293 : (AIR 1930 PC 103), where similar principles were applied to the case of a Muslim religious endowment."
37.Learned Counsel submitted that in view of this judgment it is clear that baridar appointed by the Court was not competent to create the tenancy, even otherwise it was for the plaintiff to establish that tenancy was created but no such evidence has been brought on record hence on this count the appeal is liable to be dismissed. Ld. Counsel for respondent further submitted that even the suits was barred by Order II Rule 2 CPC, it is settled proposition that every suit shall include the whole of the claim. Here it is admitted fact that plaintiff has earlier filed two suit no.413/74 Ex.DW1/1 and suit bearing no. 426/74 Ex.DW1/9. But the Trial court failed to consider all these facts and also the plaints in those cases. Both these suits were pertaining to the shop in dispute in the temple and the subject matter is the same. Ld. Counsel RCA No. 6/12 41 of 81 Pearey Lal Vs Ram Nath submitted that Order II Rule 1 CPC provides that every suit shall as far as practicable be framed so as to afford ground or final decision upon the subjects in dispute and to prevent further litigation concerning them. As per sub Rule 3 omission to sue for want of several reliefs a person entitled to more than one relief of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any such relief but the Trial court wrongly held that the cause of action were different in all those suits.
Whereas the issue was that the plaintiff/appellant omitted to seek the relief of declaration in the earlier two suits and therefore, the present suit is barred by the provisions of Order II Rule 2 CPC.
38. Ld. Counsel for respondents further submitted that the trial court has however ignored the evidence brought on record by the defendant/respondent that the suit is barred by the principal of res judicata. Ld. Counsel RCA No. 6/12 42 of 81 Pearey Lal Vs Ram Nath submitted that admittedly the plaintiff/appellant filed suit no.413/74 and 426/74. The certified copies of the orders passed therein have also been placed on record. The suit no.426/74 was dismissed as withdrawn vide order dt.28.5.75 Ex.DW1/12. Ld. Trial court wrongly placed reliance upon Manohar Lall v Narain Dass, AIR 1987 Delhi 226 that as the suit was dismissed as withdrawn on the basis of compromise, therefore, it does not operate as res judicata. Ld. Counsel submitted that in fact there was no compromise in that case and the order of dismissal passed by the court concerned operates as constructive res judicata under explanation IV of Section 11 of CPC.
39.Ld. Counsel for appellant submitted that so far as filing of the earlier suits is concerned, defendant has placed on record 16 documents Ex.DW1/1 to DW1/16. Ld. Counsel submitted that from perusal of these documents, it is clear that the present suit is not hit by res judicata or by Order II Rule 2 CPC. Ld. Counsel submitted that before res-judicata can be applied it has to RCA No. 6/12 43 of 81 Pearey Lal Vs Ram Nath be shown that there was earlier case between the same parties or that they were litigating under the same title and that suit has been decided finally on merits which is not the case herein. DW1/1 is the copy of the plaint in civil suit no.413/79, wherein the suit was filed by Sh.Pearey Lal against Sh.Har Sarup, Gori Shanker, Jai Lal, Nihar Chand, Kishan Chand and Sham Pyari, wherein the prayer was that defendants be restrained from dispossessing him from the said shop. DW1/2 is the copy of the written statement. DW1/3 is also the copy of written statement. DW1/4 is the certified copy of the order dt.15.10.74 vide which the application under Order 39 Rule 1 and 2 CPC was disposed off. Ex.DW1/5 is the copy of the order dt.19.3.76, whereby the plaintiff herein withdrew the suit. The court mentioned that:
"From the statement of Ld. Counsel for the defendant, it appears that despite completion of bari the plaintiff remained in possession of the disputed chabutra. Now the plaintiff intended to withdraw the same, but at the same time he harassed the defendant un-necessarily. I, therefore, RCA No. 6/12 44 of 81 Pearey Lal Vs Ram Nath imposed upon the plaintiff the cost of Rs. 200/-. Although, the defendant has not claimed the same. The suit of the plaintiff has been infructuous, hence dismissed. The file be consigned to R/R".
40. Ld. Counsel submitted that from this it is clear that the suit was not finally disposed off and the issue was that the defendant named above were threatening the plaintiff/appellant to dispossess him and therefore, he filed the suit which he withdrew as by the passage of time their bari was over, hence the threat did not persist. There is no question of final adjudication of the rights and hence it does not operate res judicata. The bar of Order 2 Rule 2 CPC also does not arise as there was a fresh cause of action. Ld. Counsel submitted that DW1/6 is the statement of one of the respondent. Dw1/7 is again the copy of the order passed in the case Mahant Prithi Nath Chela Mahant Pancham Nath Jogi Vs.Tula Ram & Others. DW1/8 is also the order passed in the same suit. Document Ex.DW1/9 is the copy of the plaint filed by Pearey Lal against Pandit RCA No. 6/12 45 of 81 Pearey Lal Vs Ram Nath Ram Sarup and others and in this case the prayer was that plaintiff has the exclusive right of having sweet shop in the precincts of the temple but the defendant are allowing defendant no.14 to open the shop in the temple premises and they be restrained. Ld. Counsel submitted that written statement in this case is filed which is Ex.DW1/10. DW1/11 is the order passed on application under Order XXXIX Rule 1 and 2 CPC by Sh. J. K. Pali, the then Ld. Sub Judge dt.26.8.74 and application under Order XXXIX Rule 1 and 2 CPC was dismissed. DW1/12 is the order vide which the plaintiff withdrew the suit no.426/74 meaning thereby that there was no final disposal of the suit on merits and hence it does not operate res judicata. The issue between the parties was with respect to opening another halwai shop in the premises; there is no question of res judicata as well as application of Order II Rule 2 CPC. DW1/13 is the copy of the judgment in the case titled as Mahant Prithi Nath Vs. Tula Ram, wherein plaintiff/appellant herein was not RCA No. 6/12 46 of 81 Pearey Lal Vs Ram Nath a party and hence he is not concerned with the same. DW1/14 is again a certified copy of the judgment passed in case filed by Mahant Prithi Nath and hence plaintiff/appellant has nothing to say as it does not operate as res judicata or creates a bar under Order II Rule 2 CPC. Ex.DW1/15 is the certified copy of the judgment passed by Sh. S. N. Kapoor, Sub Judge First Class (as he then was) dt.1.2.74, that also does not operate either as res judicata or creates bar under Order II Rule 2 CPC. Ld. Counsel submitted that DW1/16 is a thekanama. There is no other document proved or placed on record to establish res judicata or to create bar of Order II Rule 2 CPC. Ld. Counsel submitted that Order II Rule 2 CPC comes into picture at the occasion of filing of earlier suit, some claim was available to the plaintiff, which he did not make or plead and in the subsequent suit he pleaded the same. Ld. Counsel submitted that it is not the position herein. He filed the earlier suit when he was threatened by some of the persons who tried to dispossess him forcibly RCA No. 6/12 47 of 81 Pearey Lal Vs Ram Nath then again the defendants again tried to open another halwai shop which they were not entitle to and he filed the suit. At that time there was no threat to his tenancy rights but as such incidences increased and there was continuous threat he filed the suit seeking declaration of his tenancy rights also.
41.Ld. Counsel for appellant submitted that the present suit is not barred by the provision of Order II Rule 2 as the present suit and the earlier suit are on different cause of actions. The bar was attracted only if the present suit was also filed on the same cause of action. Ld. Counsel submitted that The Privy Council while interpreting Order II Rule 2 in case Naba Kumar Hazra and another v. Radheshyam Mahish and others (PC) AIR 1931 PC 229 opined that:
"The rule in question is intended to deal with the vice of splitting a cause of action. It provides that suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it RCA No. 6/12 48 of 81 Pearey Lal Vs Ram Nath in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits."
42. Ld. Counsel also relied upon the judgment cited as Sidaramappa v Rajashetty and others, AIR 1970 SC 1059, wherein it was held that:
"The requirement of Order 2, Rule 2, Civil Procedure Code is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previ- ous suit.
Cause of action is a cause of action which gives occasion for and forms the founda- tion of the suit. If that cause of action en- ables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to re- cover the balance by independent pro- ceedings - See Mohd. Hafiz v. Mohd. Za- karia, 49 Ind App 9.
As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit. The cause of action men- tioned in the earlier suit, assuming the same afforded a basis for a valid claim, RCA No. 6/12 49 of 81 Pearey Lal Vs Ram Nath did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and the High Court were not right in holding that the plaintiff's suit is barred by Order 2, Rule 2, Civil Procedure Code."
43. Ld. Counsel has also relied upon the judgment cited as Harnam Singh v Surjit Singh, AIR 1984 Punjab & Haryana 126, wherein it was held that:
"It is, however, well settled that a cause action means every fact which, if tra- versed, would be necessary for the plain- tiff to prove in order to support the right a judgment in his favour. In other words it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the tenant. Negative- ly it does not comprise the evidence nec- essary to prove the bundle of facts and equally has no relation whatsoever to the defence, which may be set up by the de- fendant nor does it depend on the charac- ter of the relief prayed for by the plaintiff."
44.The court also opined that:
"I am of the opinion that where the earlier suit was not contested by the parties and was not decided on merits, as in the RCA No. 6/12 50 of 81 Pearey Lal Vs Ram Nath present case, the question of the subse- quent suit been if on the same cause of action being barred by Order 2 Rule 2 of the C.P.C. does not arise Reliance in this regard can be placed on Amar Singh v. Man Phool MANU/PH/0394/1991 Obser- vations to the said effect can also be found in the Division Bench judgment of this court in State Bank of India v. San- jee Malik 1996 (36) DRJ 484."
45. Learned Counsel also placed reliance on judgment cited as Roshan Lal v Smt. Man Mohan Kaur & Ors. 2010 II AD (Delhi) 669, in this case it was held that:
"Order 2 Rule 2 of the C.P.C. is based on the principle that the defendant should not be twice axed for one and the same cause It does not require that when a transaction or right gives right to several causes of action they should be all combined in one suit or that the plaintiff must lay his claim alternately in the same suit for those different causes of action The rule is directed against two evils, the splitting of claim and the splitting of remedies The rule does not preclude a second suit based on a distinct and a separate cause of action To make the rule applicable, three conditions must be satisfied, i.e. first that previous and the present suits must arise out of the same cause of action; secondly, they must be between the same parties; and thirdly that RCA No. 6/12 51 of 81 Pearey Lal Vs Ram Nath the earlier suit must have been decided on merits However the rule being penal in nature has to be considered strictly though mandatorily.
46. Learned Counsel for the appellant submitted that for attracting the bar of res-judicata it is required that the parties in both the suits are same and are litigating under the same title. It has also to be seen that issues must also substantially be the same in both the suits and the earlier suit was finally heard and decided. In the present case the parties in the previous suit and in this suit are not the same. The earlier suits were also finally decided. Admittedly earlier suits were dismissed as withdrawn hence the present suit is not hit by principles of res judicata.
47. Ld. Counsel for the appellant in support of his arguments relied upon the judgment cited as Dimple (P) Ltd. v Harish Kumar Aggarwal & Anr. 71 (1998) DLT 318 wherein it was held that:
"The order 'dismissed as withdrawn' cannot be regarded as final for the simple reason that the dismissal was only RCA No. 6/12 52 of 81 Pearey Lal Vs Ram Nath because the petition was withdrawn obviously because the petitioner did not wish the merits to be decided and wanted to file a fresh petition on the same cause of action. As the Court or the Tribunal did not choose the ban on the filing of a fresh petition, no such power can be implied. The Court or the Tribunal contemplated the possibility of a fresh suit or petition being filed when it allowed the withdrawal of the earlier suit or petition. It was not necessary for the Court or Tribunal to expressly grant permission to file a fresh suit or petition...."
48. Ld. Counsel has also relied upon the judgment cited as Manohar Lal v Narain Dass and another, AIR 1987 Delhi 226, wherein it was held that:
"To create the bar of res judicata the matter in the earlier case, inter alia, must have been heard and finally decided by the Court. The petition having been dismissed as withdrawn on the basis of a compromise, the matter had not been heard and decided on merits. There being no decision of the court the previous order based on compromise does not bar the present application. That order did not operate as res judicata"
49. Ld. Counsel further submitted that interlocutory RCA No. 6/12 53 of 81 Pearey Lal Vs Ram Nath order does not operate as res-judicata. The other earlier orders were only interlocutory orders passed on applications under Order XXXIX Rule 1 & 2 and hence there is no question of res-judicata. Ld. Counsel in support of his arguments relied upon the judgment cited as Mahadeo Mahto and others v Hiralal Verma and others, AIR 1991 Patna 235, wherein it was held that:
"It is true that principles of res judicata apply at different stages of the suit, but it is also well known that interlocutory orders do not operate as res judicata."
50. After hearing the arguments and going through the record, I found that for attracting the bar under Order II Rule 2 CPC as per the settled law if the plaintiff omits to sue in the earlier suit for a portion of his claim, he shall not afterward be permitted to sue for the claim so omitted or relinquished. Hon.Mr.Justice Valmiki Mehta has recently held in case Vimla Gautam & Orthers Vs Smt.Mohini Jain & Anothers, 2013 IAD (Delhi) 516, that:
RCA No. 6/12 54 of 81 Pearey Lal Vs Ram Nath "The object of Order II Rule 2 CPC is that there cannot be one proceeding after another with respect to the same cause of action and a plaintiff must claim all reliefs on the basis of the cause of action in the first suit which is filed. If however the earlier suit is disposed of and thereafter a subsequent suit is filed, the subsequent suit which claims reliefs which are based on the same cause of action which was the subject matter of the earlier suit, then, the second suit would be barred by provision of Order II Rule 2 CPC. Therefore the spirit of Order II Rule 2 CPC is to prevent commencement of one legal proceeding after an earlier legal proceeding has come to an end, meaning thereby if a subsequent suit is filed during the pendency of the earlier suit and the earlier suit is withdrawn with liberty to seek the relief claimed in the first suit in the second suit, and which liberty when granted, in substance, results in consolidation of two suits i.e. the earlier suit and the later suit. The effect therefore is that it is only one suit which is tried i.e. the later suit, as the relief claimed in the earlier suit gets merged in the second suit as the earlier suit is withdrawn with liberty to seek the relief in the subsequent suit. It is also relevant to note that the appellants against whom the suit was filed, and which suit was withdrawn as per the statement of the counsel for the respondents/plaintiffs not to dis-possess the appellants/defendants without due process of law, raised no objection when the earlier RCA No. 6/12 55 of 81 Pearey Lal Vs Ram Nath suit was being withdrawn with liberty to claim the relief claimed, in the second suit which was already filed. Considering all these aspects, I am of the opinion that the trial Court has rightly held that the present suit i.e. the subject suit was not barred by provision of Order 2 Rule 2 CPC".
51. Keeping in view this observation and the law on the point it has to be considered whether the present suit was barred by Order 2 Rule 2 CPC. As pointed out earlier there was suit no.426/74 and the other suit was 413/74. In suit no. 426/74 plaintiff sought injunction that defendant shall not open any halwai shop in percints of Kalkaji Temple and in the suit no.413/74 the relief was that defendant shall not dispossess the plaintiff except in due course of law. Some of the parties in suit no.413/74 were the same as 426/74 and also in the present suit. The suit property is also the same with respect to which the plaintiff claims the tenancy rights but the relief claimed is different in both the matters. The issue is whether the relief of declaration was available to the plaintiff at the time of filing of the earlier suit or whether there was a separate cause of action for the present suit.
RCA No. 6/12 56 of 81 Pearey Lal Vs Ram Nath Ld.counsel for the respondents submitted that the present suit has been filed on the same cause of action and there is no difference in the same. But after going through the plaint of the suit no.413/74, suit no.426/74 and the present suit of which the appeal is there, I found that the causes of action in all three are different. Even some of the parties are different. Keeping in view all these facts that the parties are different, cause of action is also different and in view of the settled law in my opinion the suit filed by the plaintiff is not hit by Order II Rule 2 CPC.
52.So far as the issue of res judicata is concerned after considering the law on the issue I found that for attracting principle of res judicata it is required that the earlier suit shall be between the same parties or between parties under whom they or any of them claiming and litigating under the same title. The matter directly and substantially in issue must be the same in both the cases and the former suit has been heard and finally decide. As pointed out earlier all the parties are not the same in the RCA No. 6/12 57 of 81 Pearey Lal Vs Ram Nath earlier suits and present suit and earlier suits were also not finally heard and decided. As those suits were withdrawn, therefore, there was no adjudication of the rights. It is settled principal of law that withdrawal of a suit does not operate as res judicata. The issue was also not substantially the same. In suit no. 413/74 the plaintiff/appellant was claiming injunction against the defendants in that suit only that they shall not dispossess him except in due course of law and in suit no.426/74 the subject matter was that defendants wanted to open one more halwai shop in the premises of Kalkaji Temple which was objected to by the plaintiff and filed suit for injunction against the defendants herein. In this suit the plaintiff/appellant is also asking for declaration of his rights as tenant in the shop and that he be not dispossessed from the suit premises and that no other halwai shop be opened in the premises. As the earlier suits were not finally decided the subject matter was also not common, plaintiff is common but the defendants RCA No. 6/12 58 of 81 Pearey Lal Vs Ram Nath are not common, therefore, in my opinion the present suit is also not barred by principal of res judicata.
53.Ld. Counsel for respondents submitted that the suit was also barred by XXIII Rule 1 CPC. Ld. Counsel submitted that admittedly earlier two suits were filed bearing no.413/74 and 426/74, the plaintiff/appellant withdrew both these suits without seeking permission from the court to file fresh on the same cause of action and therefore, the filing of the fresh suit was barred. Ld. Counsel submitted that Order XXIII Rule 3 CPC and XXIII Rule 4 CPC that, (3) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject - matter of such suit on such part of the claim.
(4 ) Where the plaintiff-
(a) abandons any suit or part of claim under sub - rule (1), or RCA No. 6/12 59 of 81 Pearey Lal Vs Ram Nath
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
54.Ld.counsel submitted that in the present case no such permission was taken by the plaintiff while withdrawing earlier two suits no.413/74 and 426/74, therefore he is precluded by Order XXIII Rule 4 CPC now to file the present suit without the permission referred to in sub Rule 3 or Rule 1 of Order XXIII. But the Trial court has not considered this fact and summarily rejected the proposition.
55.Learned Counsel for the appellant submitted that for attracting the bar under Order XXIII Rule 4 it has to be shown that the cause of action in the previously instituted suit and this suit is same. In this case there is no such evidence that the causes of action in the previously instituted suits and this suit were same and therefore the bar was not attracted.
RCA No. 6/12 60 of 81 Pearey Lal Vs Ram Nath
56. Learned Counsel placed reliance upon the judgment cited as Smt. Nirmala v Hari Singh, AIR 2001 HP 1 wherein it was held that:
"It may be seen, under sub-rule (4) of Order XXIII Rule 1, when plaintiff withdraws from the suit without permission to file fresh suit or the same subject matter as contemplated under sub-rule (3), then such plaintiff is precluded from filing any fresh suit in respect of the same subject matter. The term "subject matter" means the plaintiff's cause of action for his suit. In other words, a suit on a different cause of action is not barred under this rule even though the suit may be in respect of the same property. It is settled law that when cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter."
57.The Court also observed that:
"The rule, it is apparent, does not pre- clude second suit based on distinct and separate cause of action. To make this applicable, the defendant must satisfy three conditions
(a) The previous and second suit must RCA No. 6/12 61 of 81 Pearey Lal Vs Ram Nath arise out of the same cause of action;
(b) Both the suits must be between the same parties; and
(c) The earlier suit must have been decided on merits.
In the present case as discussed earlier, there is no evidence to show that cause of action for the previous suit was the same. The apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent. Therefore, the argument of Shri Bhupender Gupta, learned counsel for the appellant that the present suit is not maintainable has no merit. The questions are answered accordingly."
58. Ld. Counsel has also relied upon the judgment cited as Manohar Lal v Narain Dass, AIR 1987 Delhi 226, wherein it was held that:
"Sub-rule (4) of R.1 of O. 23, CPC provides that where the plaintiff withdraws from a suit without the permission of the Court under sub-rule (3) he would be barred from bringing a fresh suit in respect of same subject matter. The term 'subject matter' means plaintiffs cause of action for a suit. As observed by the Supreme Court in Vallabh Das v. Dr. Madanlal, AIR 1970 SC 987, the term 'subject matter' in O.23, R.1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief RCA No. 6/12 62 of 81 Pearey Lal Vs Ram Nath claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit."
59. He further placed reliance on judgment cited as Inderpal Singh etc. v Inder Kaur etc., 44 (1991) DLT 399. The ratio of the judgment is that:
"To attract the bar the cause of action and the relief claimed in both the suits must be the same."
60. Learned Counsel submitted that in view of this settled law and the fact that the earlier suits were simply withdrawn and secondly that the fresh suit is on different cause of action therefore the suit is not hit by Order XXIII Rule 4.
61. After hearing the arguments and going through the record, I found that the Supreme Court in case Vallabh Das v Dr. Mohan Lal and others, AIR 1970 SC 987 held that:
RCA No. 6/12 63 of 81 Pearey Lal Vs Ram Nath "Rule 1, Order 23, Civil Procedure Code entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore, we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject- matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the RCA No. 6/12 64 of 81 Pearey Lal Vs Ram Nath division of the status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent event which conferred certain rights on him. Merely identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits. As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bombay 155 the expression "subject-matter" in Order 23, Rule 1, Civil Procedure Code means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C.J., in Singa RCA No. 6/12 65 of 81 Pearey Lal Vs Ram Nath Reddi v. Subba Reddi, ILR 39 Madras 987 that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit."
In view of this settled preposition of law, it is clear that the cause of action in all three cases is different. The subject matter includes the cause of action as well as the relief claimed, the cause of action as discussed is different and even the relief claimed is different. In suit no. 413/74 there was relief of permanent injunction that defendants be restrained from dispossessing him forcibly on a different cause of action then in suit no.426/74 the relief was that defendant be restrained from opening the halwai shop or permitting the defendant no.14 to open the halwai shop in the premises of Kalkaji Temple and the cause of action was different. The present suit has been filed on a different cause of action, the reliefs claimed are RCA No. 6/12 66 of 81 Pearey Lal Vs Ram Nath that he be declared as tenant of the suit property at a monthly rent of Rs.1125/- then injunction that defendants shall not dispossess him from the suit premises and also that defendant shall not open any other halwai shop. It is pertinent to mention here that as per the bari system prevalent in the temple and also recognized every month there is a different baridar having right to perform Puja-sewa in the temple. He not only performs Puja-sewa but also gets a right to collect Teh Bazari according to the defendants. Plaintiff also admits the same but according to plaintiff he also collects rent. Every month on change some time the baridar threatened him, therefore, giving rise to a fresh cause of action. Under the circumstances when the earlier suit was withdrawn, in fact suit no.413/74 was withdrawn as the statement of defendant was recorded that his bari is over and the plaintiff is still in possession, therefore, there is no question of now his dispossession due to his act and the plaintiff withdrew the suit on the ground that the RCA No. 6/12 67 of 81 Pearey Lal Vs Ram Nath suit has become infructuous. In any case does not create any bar under Order XXIII Rule 1 CPC particularly when the new suit has been filed on a different cause of action and not on the same cause of action. So far as suit no. 426/74 is concerned that was simply withdrawn. But as the fresh suit has been filed on different cause of action and for different relief also, therefore again this suit is not hit by Order XXIII Rule 1 due to the withdrawal of the suit no. 426/74.
62. Ld. Counsel for respondent submitted that the plaintiff/appellant has failed to establish that he is the tenant. On the other hand the respondent has been able to prove that he is a tress passer. Ld.counsel submitted that admittedly there is Teh Bazari system in Mandir Kalkji and Baridar change every month. Any licence granted by them stands revoked and terminated when their bari to perform Puja- sewa comes to an end. Then new baridar enters and the vendors have to obtain fresh RCA No. 6/12 68 of 81 Pearey Lal Vs Ram Nath permission/license from the incoming baridar. If no fresh permission is obtained then that vendor is an unauthorized occupant and is in capacity of tress passer. The control and management of the temple since 1964 till 1st Feb.1974 remained with the court in civil suit no.61/1969 titled as Mahant Prithi Nath Vs. Tula Ram and anothers. The court has not given any right to the baridar to whom the right was given by the court on the basis of highest bidding to create tenancy, therefore, no tenancy could have been created in his favour and was not created in his favour. The baridar came and did their part and at the end of each bari the licence of the plaintiff/appellant came to an end but now as he is not taking permission from the new baridar's and in fact no new permission granted to him by any of the baridar, he is in capacity of the tress passer in the temple and is liable to be evicted.
63.In the present case statement of plaintiff could not be completed i.e. his statement remained unfinished. Ld. Counsel for the RCA No. 6/12 69 of 81 Pearey Lal Vs Ram Nath appellant/plaintiff submitted that the statement of plaintiff can still be relied upon as it is substantially complete statement and he submitted that reliance shall be placed on his testimony.
64. Learned Counsel for appellant/plaintiff relied upon judgment cited as Diwan Singh v. Emperor (Lahore) AIR 1933 Lahore 561 where in the Court referred to Sarkar's Law of Evidence, Edn.5 that:
"No general rule can be laid down in respect of unfinished testimony. If substantially complete and the witness is prevented by sickness or death or other causes (mentioned in Section 33, Evidence Act) from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected entirely, but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected."
65. Ld. Counsel also relied upon the judgment cited as Krishan Dayal v Chandu Ram, ILR 1969 Delhi 1090 wherein it was held that:
RCA No. 6/12 70 of 81 Pearey Lal Vs Ram Nath "The statement of a witness in examination-in-chief which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is RCA No. 6/12 71 of 81 Pearey Lal Vs Ram Nath supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined-in-chief, but who dies before cross-examination, the decision of the Court in this respect would not suffer from any infirmity"
66. Learned Counsel for the respondent submitted that the plaintiff did not submit himself for cross- examination and therefore an adverse inference be drawn against him. Learned Counsel in support of his arguments relied upon the judgment cited as Gopal Saran v Satyanarayan, (1989) 3 SCC 56, where it was held that:
"It may be mentioned that the plaintiff had not subjected himself to cross- examination in spite of the order of the Court after the remand. Therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint."
RCA No. 6/12 72 of 81 Pearey Lal Vs Ram Nath
67. Learned Counsel has also relied upon the judgment cited as Ranjana Nagpal alias Ranjana Malik v. Devi Ram, AIR 2002 HP 166 wherein it was held that:
"There is yet another significant aspect of the case. Defendant No. 3 has not stepped into the witness box to depose in support of her case and to subject herself to cross-examination It has been held by the Hon'ble Supreme Court in Ishwar Bhai C. Patel v. Harihar Behara, 1999(2) Current Civil Cases 171 (SC) : AIR 1999 Supreme Court 1341, that if a defendant does not enter the witness box to make a statement on oath in support of the plead- ings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct. In the present case as well on the failure of defendant No. 3 to step into the witness box, an adverse inference will have to be drawn against her that the case set up by her is not true.Though husband of defendant No. 3
has appeared as DW 1 as her attorney, he cannot be treated as having appeared in the capacity of a defendant, his appear- ance is only as a witness in his personal capacity. To the similar effect it has been held by this Court in Gurdev Singh v. Gulaboo, 2000(3) Shim LC 285"
RCA No. 6/12 73 of 81 Pearey Lal Vs Ram Nath
68.Learned counsel submitted in view of this proposition of law there is no evidence of plain- tiff/appellant on record as the testimony of Pyare Lal cannot be relied upon as he did not put himself to the test of cross examination and the LRs of Sh. Pyare Lal has not appeared in the witness box hence an adverse inference be drawn against them and appeal be dismissed.
69. After hearing the arguments and going through the record I found that in this case Sh. Pyare Lal appeared in the witness box as PW3. His examination-in-chief itself was deferred but thereafter he did not appear even for completion of his examination-in-chief. Ld. Counsel for the appellant contended that his statement can still be relied upon and placed reliance upon judgment cited as Diwan Singh v. Emperor (Lahore) AIR 1933 Lahore 561. After considering this judgment I found that this judgment is of no help to appellant as according to this judgment before an incomplete testimony can be relied upon it must be substantially complete. In the case where this observation RCA No. 6/12 74 of 81 Pearey Lal Vs Ram Nath was made the witness Mr. Stott was examined in chief and was also cross-examined for nearly two days, thereafter he had to leave Delhi under circumstances over which the Magistrate or the petitioner has no control whatever. Admittedly, his attendance before the conclusion of inquiry could not be procured without an amount of delay and expense which would be unreasonable. Under the circumstances the testimony of Mr. Stott was relied. In the present case the witness Pyare Lal appeared in the witness box but his examination-in-chief itself was not complete. He was not cross-examined at all. Therefore, it cannot be said that his statement was substantially complete. So far the other judgment is concerned relied upon by Cl for Appellant I found that even his examination-in- chief was not complete. Even otherwise he was the plaintiff/appellant himself and has to substantiate his plaint and averments therein. There is no other witness to the fact as to when the tenancy was created who created the RCA No. 6/12 75 of 81 Pearey Lal Vs Ram Nath tenancy and what were the terms of the tenancy. Besides that there is also prayer for injunction on the ground that the defendants/respondent are threatening to dispossess him from the premises. No other witness has stated so and therefore it was left only on the plaintiff/appellant to prove and establish the same but he did not complete his examination-in-chief itself. In view of this position in my view the testimony of Sh. Pyare Lal cannot be looked into. The law is further clear that if the plaintiff/appellant does not appear in the witness box to support his case then adverse inference be drawn against him. In the present case neither the plaintiff nor any of his LRs appeared in the witness box to support their case, therefore, as laid down by Supreme Court in case Ishwar Bhai C. Patel v. Harihar Behara, AIR 1999 Supreme Court 1341. In this case the Supreme Court held that:
"Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in RCA No. 6/12 76 of 81 Pearey Lal Vs Ram Nath support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No. 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No. 1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No. 1 in its entirety and passing a decree against the appellant also."
70.Keeping in view this proposition of law in my opinion no reliance can be placed on the testimony of Sh. Pyare Lal and further as his LRs also did not appear in the witness box to substantiate the averments made in the plaint an adverse inference is to be drawn that what was alleged in the plaint was not correct.
71.Ld.counsel for appellant submitted that he is the tenant and placed reliance upon the rent RCA No. 6/12 77 of 81 Pearey Lal Vs Ram Nath receipts Ex.PW1/1 to PW1/61. I have gone through those rent receipts Ex.PW1/1 to PW1/61 and these receipts are referred to in his statement by PW1 and are starting from the year 1965. It is pertinent to mention here and as admitted by the plaintiff also that litigation started for regularizing the bari system in 1964 and the possession of the temple remained with the court from 1964 till 1974 when that suit was finally disposed of by Sh. S. N. Kapoor, Ld. Sub Judge (as he then was). During that period the court remained in the control of the property of the temple and used to hand over the possession of the highest bidder of the bari. The copy of the order has been placed on record in this regard proved as Ex.DW1/7. In that order it was specifically mentioned that the possession of this temple shall be deemed to be that of this court and the right given to the person was to receive the offerings and the possession shall be deemed to be on behalf of the court. If that is the position then from 1964 till the disposal of the suit the court was in RCA No. 6/12 78 of 81 Pearey Lal Vs Ram Nath possession of the property and baridar/highest bidder was only acting on behalf of the court. According to the receipts which started from 1965 (because the plaintiff/appellant has not come out as to which and the tenancy was created), from that receipt if any such act was done that was done in 1965. According to the judgment Atyyam Vs. Raju (Supra) relied upon by both the counsels, Manager have no right or authority to grant a permanent lease without any legal necessary. Here the plaintiff has not come up as to who created the tenancy in his name and in which year and what was the legal necessity. Onus was upon him to establish this fact and as discussed above, his testimony cannot be relied upon; rather an adverse inference has been drawn because neither he nor any of his LR's appeared in the witness box to substantiate the pleadings of the plaint. Merely because he is in possession or that after the filing of the suit he is paying some amount, though all the receipts are not proved coupled with the fact that he himself does not appear in RCA No. 6/12 79 of 81 Pearey Lal Vs Ram Nath the witness box for completing his testimony and for the cross examination or proved the tenancy, I found that plaintiff has failed to establish that he is tenant in the premises.
72.So far as the prayer for injunction is concerned, plaintiff has mentioned above has not appeared in the witness box to substantiate or depose that there is any threat of dispossession or pending of a new shop. So far as the other witnesses are concerned, none of them has deposed anything in this regard that there is any such threat of dispossession or pending of a new shop. The onus of the same was upon the plaintiff/appellant which he has failed to discharge.
73.Keeping in view all these facts hat plaintiff/appellant has failed to establish his tenancy rights and also to substantiate that there is any threat as alleged in the plaint, in my opinion Trial Court has rightly dismissed the suit. So far as the counter objection are concerned as discussed above, there is no merit in the same, therefore, the appeal as well RCA No. 6/12 80 of 81 Pearey Lal Vs Ram Nath as counter objections are dismissed. Parties are left to bear their own cost. Copy of trial court record be sent back along with copy of order. Appeal file be consigned to Record Room.
Announced in open court On 01. 04. 2013.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL, DELHI
RCA No. 6/12 81 of 81
Pearey Lal Vs Ram Nath
01.04.2013
Present: Counsel for the parties.
Vide separate order, the appeal as well as counter objections are dismissed.
Copy of the order be sent to the Trial Court along with Trial Court record.
Appeal file be consigned to Record room.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL, DELHI
RCA No. 6/12 82 of 81
Pearey Lal Vs Ram Nath
RCA No. 6/12 83 of 81