Delhi District Court
Sh. Mahinder Singh S/O Late Ghasi Ram ... vs Sh. Darshan Singh S/O Sh. Harnam Singh ... on 15 September, 2011
Mahinder Singh & Ors. v. Darshan Singh & Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 194/08 (Old No.34/1991)
Unique Case ID No. 02401C0128702002
1. Sh. Mahinder Singh S/o Late Ghasi Ram (Since deceased)
Through his Lr's
1A. Smt. Mukhtiari Devi W/o Late Mahinder Singh
1B. Sh. Anup Singh S/o Late Mahinder Singh
1C. Smt. Phool Kumari D/o Late Mahinder Singh
1D. Smt. Sunita D/o Late Mahinder Singh
All R/o WZ-117, Shadipur,
New Delhi - 110008.
1E. Sh. Sahib Singh S/o Late Mahinder Singh (Since deceased)
Through his LR's
1E1. Smt. Sudha W/o Late Sahib Singh
1E2. Master Atul (Minor) S/o Late Sahib Singh
1E3. Miss Anjali (Minor) S/o Late Sahib Singh
All R/o 2962, Gali no.12,
Ranjit Nagar, New Delhi - 110008
2. Sh. Umed Singh S/o Sh. Ghasi Ram
R/o WZ-117, Shadi Pur,
New Delhi - 110008.
3. Sh. Sube Singh S/o Sh. Ram Saroop
R/o WZ-124, Shadi Pur,
New Delhi-110008. ......Plaintiffs
Versus
1. Sh. Darshan Singh S/o Sh. Harnam Singh (Since deceased)
Through his Lr's
1A. Smt. Prasanna Kaur W/o Late Darshan Singh
1B. Sh. Inderjeet Singh S/o Late Darshan Singh
1C. Sh. Balbir Singh S/o Late Darshan Singh
1D. Sh. Surjeet Singh S/o Late Darshan Singh
1E. Sh. Satnam Singh S/o Late Darshan Singh
All R/o WZ-108, Plot no.99,
Ravi Nagar, New Delhi
2. Sh. Krishan Lal S/o NOT KNOWN
3. Sh. Vijay Kumar S/o Sh. Kundan Lal
Both R/o H. No.3348, Ranjit Nagar,
Suit No. 194/08 Page 1 /52
Mahinder Singh & Ors. v. Darshan Singh & Ors.
New Delhi - 110008.
.....Defendants
Date of institution of the suit : 30.01.1991
Date of reserving order : 03.08.2011
Date of pronouncement : 15.09.2011
JUDGMENT
1. This is a suit for possession in respect of 75 square yards of land underneath the property no. 3348, Ranjit Nagar, New Delhi (Hereinafter referred as 'the suit land') as shown in red in the site plan and forming part of Khasra no.408 of abadi Ranjit Nagar, Village Shadi Pur, New Delhi by removing the super-structure standing thereon and for recovery of Rs. 180/- on account of rent/damages @ Rs. 5/- per month for the period from 01.01.1988 to 31.12.1990. The plaintiffs are also seeking a decree of mandatory injunction directing the defendant no.1 to remove the super- structure from the suit land and a decree of permanent injunction restraining the defendant no.1 from selling, alienating, mortgaging, parting with the possession, or otherwise creating third party rights in favour of the defendant no.2 and 3 in respect of the suit land.
2. Precisely stated, Sh. Ghasi Ram and Sh. Ram Saroop/ sons of Late Sh. Dharam Singh - predecessor-in- interest of the plaintiffs had given on lease an open plot of land measuring 75 sq. yds. in Khasra No.408 in abadi Ranjit Nagar, Shadipur, New Delhi (the suit land herein) to the defendant no.1 @ Rs. 4.50/- per month for a period of 20 years from 04.10.1950 to 03.10.1970 vide lease deed executed on 05.10.1950 and registered as Document No. 3128, Volume No.1, Book No. 3640 at pages 365 to 368. The rent was subsequently enhanced to Rs. 5/- per month. It is Suit No. 194/08 Page 2 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
stated that ½ of the rent was being paid to the plaintiff no.1 and 2, and remaining ½ of the rent was being paid to the plaintiff no.3.
3. According to clause (1) of the said lease deed, the predecessor - in - interest of the plaintiffs had the right to eject the defendant no.1 from the suit land in case of non - payment of rent for a period of 1 year. Clause (5) of the said lease deed provided for execution of fresh lease on expiry of lease period of 20 years on the same terms and conditions with mutual consent of the parties.
4. The case of the plaintiffs is that the right of the defendant no.1 came to an end on expiry of the lease period by efflux of time on 04.10.1970. The defendant no.1 had not exercised his right of renewal of the lease as per clause 5 of the lease deed. He had never approached the plaintiffs for renewal of the lease. The defendant no.1 remained in the possession of the suit land by holding over and his tenancy was from month to month. The defendant no.1 had paid rent up to 31.12.1976 by way of two installments for the period from 01.01.1970 to 31.12.1975, and 01.01.1976 to 31.12.1976 respectively. The defendant no.1 had not paid rent since 01.01.1977 despite demands and therefore, the plaintiffs sent a notice dated 28.07.1986 through their counsel to the defendant no.1 whereby he had been called upon to remove the superstructure and handover the vacant possession of the suit land. The defendant no.1 refused to receive the said notice. The defendant no.2 and 3 are sub-tenants of the defendant no.1 and they are in possession of the suit land. It is stated that the defendant no.1 was intending to sell the suit land to the defendant no.2 and 3. The defendant no.1 Suit No. 194/08 Page 3 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
had neither paid the rent nor delivered the vacant possession of the suit land despite service of notice and thus, the plaintiffs filed this suit for possession, arrears of rent, permanent and mandatory injunction against the defendants.
5. In his written statement, the defendant no.1 stated that he was not let out an open plot of land w.e.f. 14.09.1950. It is stated that a constructed premises comprising two rooms with bath bearing House No.3348 and W-40546, abadi Ranjit Nagar, Shadipur, New Delhi (the suit premises) was let out in the year 1948 vide documents executed by Smt. Sumitra Devi and therefore, the tenancy of the defendant no.1 is protected by the Delhi Rent Control Act ('the DRC Act'). The suit is barred by Section 50 of the DRC Act. The civil court has no jurisdiction to try the suit. It is stated that no notice dated 28.07.1986 u/s 106 of the Transfer of Property Act ('the T.P. Act') was ever served upon the defendant no.1. The defendant no.1 never refused to receive the alleged notice dated 28.07.1986. It is stated that two rooms with the amenities of kitchen, bath and latrine have been in existence in the suit premises even prior to the inception of the tenancy of the defendant no.1 in the year 1948. The suit premises has been assessed for house tax in the name of the defendant no.1. He has been paying house tax to the MCD. The lease of the defendant no.1 in respect of the suit premises is perpetual.
6. According to the defendant no.1, the suit premises is situated in a slum area and he is in occupation of the suit premises as a lawful tenant and therefore, the suit for eviction without obtaining permission under Section 19 of Suit No. 194/08 Page 4 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
the Slum Areas (Improvement & Clearance) Act ('the Slum Areas Act') is not maintainable. He has denied that the plaintiffs are owners/landlords of the suit premises. It is stated that the plaintiffs have no locus standi to file the suit. It is stated that there is no privity of contract between the plaintiffs and the defendant no.1. The defendant no.1 has denied execution, legality and validity of the lease deed dated 05.10.1950.
7. The defendant no.1 further stated that the land underneath the suit premises has been acquired by the Union of India and compensation has been paid and therefore, the plaintiffs have no right, title or interest in the suit premises. The court-fees is liable to affixed on the market value of the suit premises for the relief of possession which is not less than Rs.1,00,000/- and thus, the suit has not been valued properly for the purpose of Court fees and Jurisdiction. The defendant no.1 has become owner of the suit premises by adverse possession as he has been in un- interrupted possession of the suit premises for more than 12 years prior to filing of the suit. The suit is barred by limitation. The plaintiffs have no cause of action to file the suit.
8. The case of the defendant no.1 is that he was let out a constructed premises bearing Municipal House no.3348 and W-40546, Ranjit Nagar, Shadipur, New Delhi in the year 1948 vide documents executed by Smt. Sumitra Devi on a printed form of Delhi Development Provincial Authority. The defendant no.1 has been in occupation of the suit premises comprising two rooms with other amenities of Kitchen, Bath and Toilet since the inception of the tenancy in the year Suit No. 194/08 Page 5 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
1948. It is stated that the lease deed dated 05.10.1950 has no bearing on the tenancy of the defendant no.1 which had been created two years earlier than the said lease deed. He has denied that he was given on lease an open plot of land vide lease deed dated 05.10.1950. He has denied that Sh. Ghasi Ram and Sh. Ram Swaroop had let out the suit premises. It is stated that the rate of rent of the constructed premises was Rs.4.50/- per month and subsequently, he used to pay Rs.5.00/- per month.
9. The defendant no.1 has denied that the said lease was for a period of 20 years for the period from 04.10.1950 to 03.10.1970. He has denied that the tenancy had come to an end by efflux of time. He stated that his tenancy in respect of the suit premises is perpetual. He stated that he is a lawful tenant of the suit premises and his tenancy is protected by the DRC Act and thus, the question of renewal did not arise. He stated that the alleged notice dated 28.07.1986 was not served upon him. He stated that the plaintiffs have no right to seek removal of the superstructure and possession of the suit premises. The defendant no.1 stated that the plaintiffs are not entitled to seek arrears of rent.
10. In their joint written statement, the defendant no. 2 and 3 stated that there is no privity of contract between the plaintiffs and defendant no. 2 and 3. It is stated that the defendant no. 2 and 3 are lawful tenants of the defendant no.1. It is stated that the defendant no.2 is a tenant qua the defendant no.1 in respect of one room, bath room, toilet and kitchen with common passage of the suit premises @ Rs.13/- per month including electricity and water charges since 36 Suit No. 194/08 Page 6 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
years. The defendant no.3 is a tenant qua the defendant no.1 in respect of one room, bath room, toilet and kitchen with common passage of the suit premises @ Rs.15/- per month including electricity and water charges since 38 years. The defendant no.1 had inducted them as tenants in the suit premises. The defendant no.1 is the landlord of the suit premises. The defendant no.1 has been issuing rent receipts against the rent paid by the defendant no.2 and 3. The plaintiffs have no right to seek removal of the super- structure and possession of the suit premises.
11. In the replication to the written statement of the defendant no.1, the plaintiffs have controvert-ed averments of the written statement. The plaintiffs denied that constructed premises was let out to the defendant no.1 in the year 1948. It is denied that Smt. Sumitra Devi had executed any document in respect of the suit premises. The said document is forged and fabricated. The Municipal Corporation was not in existence in 1950. Smt. Sumitra Devi is the mother of the defendant no.3 and she had no concern with the suit land. The defendant no.1 had raised the construction over the suit land after execution of the lease. The defendant no.1 had refused the said notice. It is denied that the suit premises is situated in a slum area. It is stated that the plaintiffs are the owners of the suit land and there existed relationship of the lessor and lessee between the plaintiffs and the defendant no.1. It is admitted that the suit premises has been assessed in the name of the defendant no.1 for house tax. The plaintiffs had let out an open plot of land through a registered lease deed. It is denied that the defendant no.1 is in possession of the suit premises as a Suit No. 194/08 Page 7 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
lawful tenant.
12. In the replication to the written statement of the defendant no.2 and 3, the plaintiff stated that the defendant no.1 was given on lease an open plot of land with the permission to sub-let the premises to be constructed thereon. The defendant no.2 and 3 are sub-tenants of the defendant no.1. It is stated that the transferee of the defendant no.1 shall be lessee on the same terms and conditions. It is stated that the permission of the plaintiffs was not taken before sub-letting to the defendant no.2 and 3 and therefore, the defendant no.2 and 3 are unauthorized sub-tenants.
13. On the basis of the pleadings of the parties, following issues were framed on 12.10.1993:
1. Whether the premises let out to the defendant no.1 was constructed premises since 1948. If so, its effect? OPD1
2. Whether the notice of termination of tenancy under section 106 of TP Act was served upon the defendant no.1?
OPD-1
3. Whether the suit is hit by Section 50 of the DRC Act as stated in P.O. no.1 of the WS?
OPD-1
4. Whether the premises in suit is situated in slum area and permission is required from Competent Authority under Section 19 of Slum Areas (Improvement and Clearance) Act, as stated in P.O. no.3?
OPD-1
5. Whether the plaintiffs have no locus standi to file the present suit?
OPD-1
6. Whether the land on which property is situated has been acquired by the Government and whether the Suit No. 194/08 Page 8 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
compensation for the acquisition has been paid, if yes, to whom? If so, its effect?
OPD-1
7. Whether the suit has not been properly valued for the purpose of court-fees and jurisdiction?
OPD-1
8. Whether the defendant no.1 has become owner of the disputed property by way of adverse possession? OPD-1
9. Whether the suit is barred by limitation?
OPD-1
10. Whether the land underneath the property no.3348 was leased out by the father the plaintiffs through lease deed dated 14.09.1950 to the defendant no.1? If so, its effect?
OPP
11. Whether the defendant no.2 and 3 are sub-tenants of the defendant no.1. If so, its effect? OPP
12. Whether the plaintiffs are entitled to reliefs, as prayed for? OPP
13. Relief.
14. On 21.03.2005, the plaintiffs filed 2nd application for amendment of the plaint in order to amend the particulars of the lease deed. The said application was dismissed by the Court vide order dated 19.08.2006 and third application for amendment of the plaint was dismissed vide order dated 11.08.2009.
15. The plaintiff had preferred a petition bearing CM (M) 1415/2009 against the order dated 11.08.2009.
16. Hon'ble High Court vide order dated 21.12.2009 allowed the said petition with the direction that the wrong particulars of the registration of the lease deed would not Suit No. 194/08 Page 9 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
come in the way, if the plaintiffs succeed in establishing that the defendants had been inducted into the suit land under the lease deed proved before the Court. It was held that if the plaintiffs have proved the said registered lease deed in accordance with law, the same shall be read for its true contents, and that it is settled preposition that on the face of a document no other evidence contrary thereto will be seen."
17. Thus, the said lease deed will be referred as lease deed presented on 05.10.1950 before the office of Sub- Registrar and registered as Document No. 3128, Book No.1, Volume No. 2640 at pages no. 265 to 268 on 30.11.1950.
18. In the evidence, Sh. Umed Singh/the plaintiff no.2 and Sh. Sube Singh/the plaintiff no.3 stepped into the witness box as PW-1 and PW-2. The plaintiffs examined an official from the office of Sub-Registrar, Kashmere Gate (PW-3), an official from the Karol Bagh Post Office (PW-4) and Translator (PW-5) whereas Sh. Surjit Singh, Lr of the defendant no.1 appeared as DW-1.
19. Ex.PW-1/1 is the Death Certificate of Sh. Ghasi Ram. Ex.PW-1/2 and Ex.PW-1/3 are the counterfoils of the rent receipts dated 18.01.1976 and 18.03.1977 signed by the defendant no.1. Ex.PW-1/4 is the copy of the notice dated 08.04.1986 and Ex.PW-1/5 is the postal receipt, and Ex.PW-1/6 is the returned AD Envelope. Ex.PW-1/7 is the notice dated 28.07.1986 and Ex.PW-1/8 is the postal receipt, and Ex.PW-1/9 is the returned AD Envelope.
20. Ex.PW-2/A is the Death Certificate of Sh. Ram Swaroop. Ex.PW-2/B is the site plan of the suit premises.
Suit No. 194/08 Page 10 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
21. Ex.PW-3/1 is the original lease deed. Ex.PW-3/1A is the English Translation of the said lease deed.
22. Ex.PW-4/A is the photocopy of the attendance register in respect of postman Sh. Ram Dayal.
23. Ex.DW-1/1 to Ex.DW-1/7 are the House tax bills and receipts for the period from 15.02.1956 to 07.12.1984. Mark X is the copy of printed form of Delhi Development Provisional Authority.
24. I have heard arguments of Sh. Chandermal, Advocate for the plaintiffs and Sh. C. L. Sachdeva, Advocate for the defendant no.1 and carefully considered the evidence on record.
25. I have also carefully perused the written arguments filed by the plaintiffs and the defendant no.1.
26. On careful assessment of evidence on record in the light of oral and written arguments addressed/filed by Ld. Counsel for the parties, issue wise finding is as under:
ISSUE NO.1, 3, 5 AND 10:
27. Ld. Counsel for the plaintiffs argued that the lease deed Ex.PW-3/1 is a registered instrument. He argued that the plaintiff no.2 (PW-1) has proved counter-foils of the rent receipts Ex.PW-1/2 and Ex.PW-1/3 in respect of the period from 01.01.1971 to 31.12.1975, and 01.01.1976 to 31.12.1976. He argued that Sh. Ghasi Ram expired on 17.10.1972 and Sh. Ram Sarup expired on 11.05.1956. He argued that death certificate of Sh. Ghasi Ram and Sh. Ram Sarup are Ex.PW-1/1 and Ex.PW-2/A. He argued that the defendant no.1 Suit No. 194/08 Page 11 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
expired before Admission/Denial of the documents. He argued that attesting witnesses to the lease deed have expired and in these circumstances, no witness could be produced to prove the execution of the lease deed Ex.PW-3/1. He argued that the said lease deed is an ancient document and produced from proper custody and therefore, it should be presumed to have been duly executed under Sec. 90 of the Evidence Act.
28. Ld. Counsel for the plaintiffs argued the lease deed Ex.PW-3/1 shows that an open plot of land measuring 75 sq. yds. situated in village Shadipur was given on lease to the defendant no.1 @ Rs. 4.50/- per month for a period of 20 years w.e.f. 04.10.1950 to 03.10.1970. He argued that the defendant no.1 was given the right to construct a residential house over the suit land vide clause 2 of the said lease deed. He argued that the purpose of the lease was letting of an open plot of land. He argued that erection of structure by the defendant no.1 would not bring the suit land within the definition of the premises under Section 2 (i) of the DRC Act. He argued that the suit is not barred by Section 50 of the DRC Act and the civil suit for possession is maintainable.
29. Ld. Counsel for the plaintiffs argued that the plaintiff no.2 (PW-2) has proved the payment of the rent by the defendant no.1. He argued that DW-1 admitted that the Ex.PW-1/2 and Ex.PW-1/3 bears signatures of the defendant no.1. He argued that the plaintiffs have proved that the relationship of the landlord and tenant between the plaintiffs and the defendant no.1 and therefore, the defendant no.1 is estopped from challenging the title of the plaintiffs. He argued that the defendant no.1 cannot question the locus Suit No. 194/08 Page 12 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
standi of the plaintiffs. He argued that the defendant no.1 cannot deny the title of the plaintiffs and set up ownership in another.
30. Ld. Counsel for the plaintiffs argued that the document Mark X is a photocopy of a document of Delhi Development Provisional Authority. He argued that the defendant no.1 has not summoned the record or examined any official from the said Authority to prove the said document. He argued that photocopy of a document is inadmissible in evidence. He argued that presumption under Section 90 of the Evidence Act is available to original document, and not to a photocopy. He argued that the defendant no.1 has not led any evidence that the plaintiffs are the owners/landlords of the suit land. He argued that the no oral evidence contrary to the terms of the written document can be led in view of Section 92 of the Indian Evidence Act. He argued that the house tax receipts and bills Ex.DW-1/1 to Ex.DW-1/7 related to the period commencing from 1956 and therefore, they have no relevance to the issue as to whether a plot or built up structure was let out. He argued that the defendant no.1 have failed to prove that a constructed premises was let out by Smt. Sumitra Devi in the year 1948.
31. Ld. Counsel for the plaintiffs argued that the civil suit for possession of the suit land is maintainable. He argued that the plaintiffs being landlord/owner of the defendant no.1 in respect of the suit land have locus standi to file the suit. He argued that the issue no.1, 3, 5 and 10 should be decided in favour of the plaintiffs and against the defendant no.1.
32. Ld. Counsel for the defendant no.1 argued that Suit No. 194/08 Page 13 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
the defendant no.1 was let out a constructed premises in the year 1948 vide document executed by Smt. Sumitra Devi. He argued that the document Mark X is more than 30 years old and executants of the said document are not alive and thus, the said document should be deemed proved. He argued that that said document Mark X proved the existence of two rooms with bath in the property no.3348, Ranjit Nagar, Delhi in the year 1948. He argued that plaintiffs have used the word 'tenanted premises' in the para no.5 of their plaint. He argued that the lease deed Ex.PW-3/1 was neither signed nor thumbed by the defendant no.1. He argued that infact, the lease deed was not signed by any one and it bears thump impressions only. He argued that the plaintiffs have not produced any witness to prove that the defendant no.1 had affixed his thumb impression on the lease deed. He argued that the PW-1 has stated in his cross-examination that the lease deed was not signed in his presence. He argued that the suit land was let out by his father in the year 1950 whereas the said witness was born in 1952. He argued that the PW's have not stated anything in their depositions with regard to thumb-impressions. He argued that the lease deed Ex.PW-3/1 has not been proved as per law and the said lease deed cannot be presumed to have been duly executed.
33. Ld. Counsel for the defendant no.1 further argued that the PW-1 admitted in his cross - examination that the suit premises has been assessed in the name of the defendant no.1 since the year 1950 and at that time, two rooms, one kitchen, one bath room were in existence on the plot. He argued that assessment of the house tax in the name of the defendant no.1 since the year 1950 proved that he was assessed to the house tax prior to the letting on Suit No. 194/08 Page 14 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
05.10.1950. He argued that it is not the case of the plaintiffs that the defendant no.1 was assessed to house tax after 05.10.1950. He argued that the defendant no.1 was in occupation of the suit premises since 1948 and therefore, he was assessed to house tax since 1950. He argued that the house tax bill Ex.DW-1/1 and Ex.DW-1/7 have been proved on record. He argued that the defendant no.1 was inducted as a tenant in respect of constructed premises and therefore, the suit is barred under Section 50 the DRC Act.
34. Ld. Counsel for the defendant no.1 argued that the plaintiffs had not let out the suit premises to the defendant no.1. He argued that the suit premises has been assessed in the name of the defendant no.1 since 1950. He argued that the PW-2 stated that he is in possession of Jamabandi but he has not produced the said document. He argued that the plaintiffs have not proved their ownership in respect of the suit premises. He argued that the plaintiffs have no right, title or interest in the suit premises. He argued that the plaintiffs have no right to file this suit against the defendants. He argued that the plaintiffs have no locus standi to file the suit. He argued that the issue no.1, 3, 5 and 10 should be decided in favour of the defendant no.1 and against the plaintiffs.
35. It is the specific case of the plaintiffs that their predecessor - in - interest namely Sh. Ghasi Ram and Sh. Ram Sarup had given on lease an open plot of land measuring 75 sq. yds. forming part of Khasra no. 408 situated within the abadi Ranjit Nagar, Shadi Pur, New Delhi to the defendant no.1 @ Rs. 4.50/- per month for a period of twenty years w.e.f. 04.10.1950 to 03.10.1970 vide lease deed Suit No. 194/08 Page 15 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
dated 05.10.1950 Ex.PW-3/1 and registered on 30.11.1950. It is further case of the plaintiffs that subsequently, the rent was increased to Rs. 5/- per month. It is the case of the plaintiffs that the defendant no.1 paid rent for the period from 01.01.1970 to 31.12.1975 and 01.01.1976 to 31.12.1976 and thereafter, the defendant no.1 had not paid rent since 01.01.1977 despite demands. It is the case of the plaintiffs that they had served demand notices dated 08.04.1986 Ex.PW-1/4 and 28.07.1986 Ex.PW-1/7 upon the defendant no.1 vide registered AD post but the said notices were returned with the refusal report Ex.PW-1/6 and Ex.PW-1/9.
36. In his depositions, the plaintiff no.2 (PW-1) deposed that the suit land underneath the house no. 3348, Ranjit Nagar, New Delhi was let out by his father Sh. Ghasi Ram and his brother/Sh. Ram Sarup @ Rs. 4.50/- per month through a registered lease. He deposed that the rent was collected by Sh. Ghasi Ram and Sh. Ram Sarup. His father expired in October, 1970. The death certificate of his father is Ex.PW-1/1. He deposed that after death of his father, PW-1 and his brother Sh. Mahender Singh used to collect rent. He deposed that he used to issue rent receipts against the rent collected from the defendant no.1. He deposed that the defendant no.1 paid rent up to 31.12.1976.
37. PW-1 deposed that the counter - foils of the rent receipts dated 18.01.1976 and 18.03.1977 are in his handwriting. He deposed that the said counter - foils were signed by the defendant no.1 at Point A in his presence. He proved the counter - foils of the rent receipts as Ex.PW-1/2 and Ex.PW-1/3. He deposed that the defendant no.1 had Suit No. 194/08 Page 16 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
stopped making payment of the rent since 01.01.1977. He deposed that he had sent a notice dated 08.04.1986 Ex.PW-1/4 to demand the arrears of rent through Registered AD Post Ex.PW-1/5. The said notice was returned with the refusal report Ex.PW-1/6. He deposed that Thereafter, he had sent another demand notice dated 28.07.1986 Ex.PW-1/7 through registered AD Post Ex.PW-1/8. The said notice was returned with the refusal report Ex.PW-1/9.
38. During cross-examination, the defendant no.1 has not challenged the testimony of the PW-1 that Sh. Ghasi Ram and Sh. Ram Sarup were the owners of the suit land. The defendant no.1 has not disputed that the predecessors of the plaintiff were the landlords of the defendant no.1 in respect of the suit land. The testimony of the PW-1 that his predecessors in interest used to collect rent from the defendant no.1 has not been challenged. It has not been disputed that the PW-1 had collected rent from the defendant no.1. The testimony of the PW-1 that he had received the rent in respect of the period from 01.01.1970 to 31.12.1975, and 01.01.1976 to 31.12.1976 from the defendant no.1 on 18.01.1976 and 18.03.1977 remained unchallenged. The testimony of PW-1 that he had issued rent receipts against the rent paid by the defendant no.1 has not been disputed. There is no suggestion that the suit premises was let out by Smt. Sumitra Devi, and not by predecessors of the plaintiffs.
39. During the cross - examination of the PW-1, a suggestion was made to the PW-1 that he had not supplied the receipts of the counter - foils Ex.PW-1/2 and Ex.PW-1/3 to the defendant no.1 whereas the DW-1 in his cross -
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examination stated that he cannot produce the rent receipts as he has not searched the record maintained by his father. The DW-1 has not stated that no rent receipt was issued by the plaintiffs against the rent paid by the defendant no.1. Rather, a suggestion was made to the PW-2 that they had issued the rent receipts to the defendant no.1 in respect of two rooms. Further, a suggestion was made to the PW-1 in his cross- examination that Ex.PW-1/2 and Ex.PW-1/3 do not bear the signatures of Sh. Darshan Singh whereas the DW-1 during his cross - examination admitted that Ex.PW-1/2 and Ex.PW-1/3 bears signatures of Sh. Darshan Singh. DW-1 categorically deposed that "It is correct that my father Sh. Darshan Singh used to sign in Urdu. It is correct that Ex.PW-1/2 and Ex.PW-1/3 bears the signatures of my father at Point A." The DW-1 denied the suggestion that the plaintiff's predecessor had delivered the possession of the suit land to the defendant no.1. He denied the suggestion that the counter - foils of the receipt Ex.PW-1/2 and Ex.PW-1/3 were issued by the plaintiffs in respect of the rent of the open plot of land and not of the built up property. The DW-1 categorically deposed that the possession of built up super - structure along with the land was handed over to the defendant no.1 by the predecessor of the plaintiffs.
40. Therefore, it is proved that plaintiff no.2 (PW-1) had issued rent receipts vide Ex.PW-1/2 and Ex.PW-1/3 to Sh. Darshan Singh/the defendant no.1.
41. The plaintiffs have placed on record original lease deed Ex.PW-3/1. It is a registered instrument. Lease deed dated 05.10.1950 Ex.PW-3/1 is a more than thirty year old document. Section 90 of the Indian Evidence Act provides Suit No. 194/08 Page 18 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
that presumption of the genuineness of a document can be raised if the document is 30 years old and produced from proper custody. Section 90 of the Evidence Act is as under:
"Presumption as to document thirty years old: Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested."
"Explanation: Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
42. The Supreme Court in Sri Lakhi Baruah Vs. Sri Padma Kanta Kalita, AIR 1996 SC 1253 held in para no.15 of the judgment that "Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private Suit No. 194/08 Page 19 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
document. Presumption of genuineness may be raised if the document in question is produced from property custody. It is however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under section 90 should not be exercised arbitrarily and not being informed by reasons."
43. Let us consider whether the presumption emanating from section 90 of the Evidence Act is available to the plaintiffs. The principle underlying section 90 is that if an ancient document thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the court may presume that it has been duly executed and attested. If the twin conditions enumerated in the section 90 are fulfilled, then in relation to such document, the necessity of formal proof is waived. It is, however, within the discretion of the court whether to accept or not to accept the presumption flowing from section 90. Of course, the judicial discretion under section 90 of the Act cannot be exercised arbitrarily and unreasonably without due consideration of material on record.
44. The original lease deed dated 05.10.1950 Ex.PW-3/1 has been produced by the plaintiffs. The lease deed is a registered document. The lease deed was registered with Sub-Registrar on 30.11.1950. The lease deed Ex.PW-3/1 is a more than thirty year old document. Predecessor of the plaintiffs namely Sh. Ram Sarup expired on 11.05.1956 vide Ex.PW-2/A and Sh. Ghasi Ram expired on 17.10.1972 Ex.PW-1/1.
45. PW-3 proved the registration of the lease deed Suit No. 194/08 Page 20 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
with the Office of Sub-Registrar, Kashmere Gate on 30.11.1950. The plaintiffs have proved that the lease deed Ex.PW-3/1 is a thirty years old document. The defendant no. 1/Sh. Darshan Singh expired on 04.05.1991 before Admission/denial of the documents. Executants of the lease deed have expired. Attesting witnesses to the lease deed have also expired. The plaintiff no.2 used to receive the rent of the suit land and issued rent receipts to Sh. Darshan Singh/the defendant no.1. The PW-2 has proved counter - foils of the rent receipts Ex.PW-1/2 and Ex.PW-1/3. The DW-1 identified signatures of his father/the defendant no.1 on the counter - foils of the rent receipts. DW-1 stated that the possession of the built up structure alongwith land was handed over to his father by the predecessors of the plaintiffs. The plaintiffs are sons of the lessors of the suit land and thus, the lease deed Ex.PW-3/1 has been produced from proper custody.
46. The plaintiffs have fulfilled twin conditions for raising presumption of due execution and genuineness of the lease deed Ex.PW-3/1. Perusal of the document Ex.PW-3/1 shows that it is an ancient document and free from suspicion. There is no manifest reason for not raising presumption of due execution of lease deed under Sec 90 of the Evidence Act.
47. Therefore, in the opinion of the court a presumption of due execution and genuineness of the lease deed Ex.PW-3/1 must be raised in favour of the plaintiffs. The defendant no.1 has not led any evidence to rebut the said presumption. The plaintiffs have proved the due execution of the registered lease deed Ex.PW-3/1 in accordance with law and therefore, Suit No. 194/08 Page 21 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
it shall be read for its true contents.
48. Contention that the plaintiffs have used the word 'tenanted premises' in the para no.5 of the plaint would give rise to the inference that the constructed premises and not an open plot of land was let out, cannot be accepted. The plaintiffs have reproduced the English translation of the clause 1 of the lease deed Ex.PW-3/1 in the para no.5 of the plaint. The said word 'tenanted premises' has been used as an synonym of the word 'property'. Moreover, on reading of the Hindi Translation and English Translation of the lease deed Ex.PW-3/1, it is seen that the word "plot" is used there.
49. Further, in order to ascertain the whether the lease was in respect of a vacant plot or of a building, solitary word used in the plaint is not decisive rather the form and substance of the transaction must be taken into account. The lease deed Ex.PW-3/1 shows that an open plot of land was let out to the defendant no.1 for construction of a residential house. In case of non - renewal of the lease, the lessee was entitled to receive market price of the super -structure from the lessor. The super - structure belonged entirely to the lessee and he was entitled to receive the compensation for the super - structure for acquisition. The lessee was liable to remove the super - structure in case of termination of lease for non - payment of rent for more than one year. The DW-1 has admitted in his cross - examination that his father/Sh. Darshan Singh was the owner of super - structure which was built on the suit property. He deposed that after death of his father, DW-1 and his three brothers are owners of the super - structure. Dominant purpose of the lease was letting of an open plot. It is evident that lease was in respect of an open Suit No. 194/08 Page 22 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
plot of land without any structure and not built up premises.
50. Ld. Counsel for the defendant no.1 that the document Mark X should be deemed proved as the document is more than 30 years old and executants of the said document are not alive. Document Mark X is a copy of printed form of Delhi Development Provisional Authority bearing no. 40546. The defendant no.1 has not produced the original of the said document. In Sri Lakhi Barua v. Sri Padma Kanta Kalita (supra) and Mohmedbhai Rasulbhai Malek v. Amirbhai Rahimbai Malek (AIR 2001 Guj. 37), it was held that presumption under Section 90 does not apply to a copy or certified copy. Therefore, presumption under Section 90 of the Evidence Act cannot be applied to the document Mark X.
51. Ld. Counsel for the defendant no.1 contended that the defendant no.1 was let out a constructed premises comprising two rooms with bath bearing no. 3348, Abadi Ranjit Nagar, Shadi Pur, New Delhi by Smt. Sumitra since the year 1948 vide document Mark X whereas the document Mark X shows that the defendant no.1 is mentioned as owner of the property no. 3348, Ranjit Nagar, New Delhi and Smt. Sumitra Devi is mentioned as tenant in the said property. The DW-1 admitted in his cross - examination that Smt. Sumitra Devi is shown as tenant in the document Mark X. The DW-1 stated that the property number was allotted by the MCD. It is not clear as to how the property number found mentioned on the document Mark X pertaining to Delhi Development Provisional Authority. It does bear name and designation of the person who had prepared the document. The defendant no.1 has not summoned the record or any Suit No. 194/08 Page 23 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
official from the said Authority to prove the said document and to show that in what circumstances the said document was prepared.
52. The document Mark X is inadmissible in evidence. The defendant no.1 has not led any evidence that the suit land was owned by Smt. Sumitra Devi. Smt. Sumitra Devi has been shown as a tenant in the document Mark X. In the written statement, the defendant no.1 stated that he used to pay rent @ Rs.5/- per month but the DW-1 stated that his father never tendered rent to Smt. Sumitra Devi. The DW-1 could not deny the suggestion that Smt. Sumitra Devi was wife of Sh. Kundan Lal and mother of the defendant no.3. He has deposed that he has not seen Smt. Sumitra Devi. The DW-1 deposed that no one else except the plaintiffs has claimed ownership of the land. He admitted that the counter
- foils of the rent receipts Ex.PW-1/2 and Ex.PW-1/3 bear signatures of his father/the defendant no.1. The DW-1 admitted that the predecessor - in - interest of the plaintiffs had delivered the possession of the suit land along with super - structure to the defendant no.1. Further, the DW-1 deposed that his father was the owner of the super - structure which was built on the suit property. If the defendant no.1 was the owner of the super - structure over the suit land then it means that the defendant no.1 was let out a plot of land and not a built up property. The DW-1 deposed that after the death of his father, the DW-1 and his three brothers have become owners of the super structure. If the defendant no.1 was let out built up property then how he could have become owner of the super structure. It falsifies the defence of the defendant no.1 that Smt. Sumitra Devi had let out the constructed premises to the defendant no.1 Suit No. 194/08 Page 24 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
in the year 1948. Therefore, the case of the defendant no.1 that Smt. Sumitra Devi had let out a constructed premises to the defendant no.1 in the year 1948 cannot be accepted.
53. Contention that the plaintiffs have not produced any witness to prove that the lease deed Ex.PW-3/1 was thumb marked by the defendant no.1 and the plaintiffs have not stated anything about the said lease deed is concerned, it can be stated that the PW-1 was born on 12.06.1952 after execution of the lease deed and the PW-2 was not present at the time of execution of the lease deed. Therefore, there was no occasion for them to witness the execution of the lease deed. The plaintiff no.2 (PW-1) has proved the rent receipts Ex.PW-1/2 and Ex.PW-1/3 issued to the defendant no.1 on 18.01.1976 and 18.03.1977. The registered lease deed Ex.PW-3/1 has been admitted in evidence without formal proof under Section 90 of the Evidence Act. Contention that there is over - writing on the Ex.PW-1/3 is of no avail. Firstly, the said counter foil bears signature of the defendant no.1 and secondly, the defendant no.1 has not produced the rent receipt. Thirdly, no malafide has been attributed for scoring the said counter - foil.
54. Ld. Counsel for the defendant no.1 contended that the PW-1 has admitted that the suit premises has been assessed in the name of the defendant no.1 for the purpose of house tax since 1950 and at that time, only two rooms, one kitchen, one bath room were constructed on the plot. He argued that the defendant no.1 has proved the house tax bills and receipts Ex.DW-1/1 to Ex.DW-1/7. He argued that the defendant no.1 was already in occupation of the suit premises since 1948 and therefore, the house tax was Suit No. 194/08 Page 25 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
assessed in his name in the year 1950. He argued that the suit property was not a vacant plot but was constructed premises when it was let out to the defendant no.1.
55. The PW-1 has stated that at the time of the assessment of the suit premises in the name of the defendant no.1 in the year 1950, two rooms, one kitchen and one bath room were constructed on the plot. The PW-1 has not stated that at the time of letting, the suit premises had two rooms, one kitchen and one bath room. The PW-2 was 17 years old at that time of letting. He is the only person who can depose the facts obtaining as on 05.10.1950. He has categorically deposed that Sh. Ghasi Ram and Sh. Ram Sarup had let out an open plot to the defendant no.1 on lease for 20 years. He deposed that the defendant no.1 had raised two rooms, two kitchen and latrine on the said plot. In his cross - examination, PW-2 deposed that the defendant no.1 had raised the super -structure on the plot in dispute in 1950. The issue before the court is that what was let out to the defendant no.1 and not that what was the status of the property at the time of assessment for the purpose of house tax. The DW-1 admitted in his cross - examination that his father was the owner of the super structure which was built over the suit property. Had the constructed premise let out, the defendant no.1 could not become owner of the super - structure. The DW-1 deposed that after death of his father, he and his three brothers have become owners of the super - structure. It is proved that a vacant plot of land and not constructed premises was let out to the defendant no.1.
56. Ex.DW-1/1 to Ex.DW-1/7 pertain to the period from 15.02.1956 to 1984-85 and therefore, no such inference that Suit No. 194/08 Page 26 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
two rooms, one bath room and kitchen were already in existence at the time of letting can be raised from the said documents.
57. Section 2(i) of the DRC Act provides that "premises" means any building or part of a building which is, or is intended to be, let separately for use as residence or for commercial use or for any other purpose, and includes -
(i) the garden, grounds and out - houses, if any, appertaining to such building or part of the building;
(ii) any furniture supplied by the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house.
58. For the purpose of determining as to whether the property let out was 'premises' or not within the meaning of section 2 (i) of the DRC Act, it has to be seen as to what was actually let out by the landlord at the time of letting. The word 'building' has not been defined in the DRC Act. 'Building' in the common parlance is a structure with walls and roofs; Vacant plot of land let out a tenant who has erected structure thereon at his own expenses will not come within the definition of 'premises' under section 2 (i) of the DRC Act.
59. In Sanjay Kumar Sharma v. Santosh & Ors., 176 (2011) DLT 575; Hon'ble Delhi High Court held that Delhi Rent Control Act, 1958 applies when what was let out was a constructed premises and not a plot of land. If the appellant has made any construction on a plot of land he is fully Suit No. 194/08 Page 27 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
entitled to remove any construction made by him. The appellant cannot have any protection of the Rent Act and therefore, the Civil Court's jurisdiction is not barred by Section 50 of the DRC Act.'
60. In Sohan Lal v. Chhotey Lal, 72 (1998) DLT 646; it was held that ground or open land independently cannot be called the premises. It is only when building is given on rent that could constitute premises. The construction was to be raised by respondent as per his requirements subsequently. Law is settled that if the construction is raised by the landlord then it would amount to building but if the construction is raised by tenant then lease would be of the open land and not of any building.
61. In Bal Kishan Goel v. Delhi Race Club 1940) Ltd. , 69 (1997) DLT 968; It was held that the construction of a building or a structure on the plot of land subsequent to the letting out of the land cannot bring it within the definition of premises. There was no building or structure on the land at the time of letting. The shop was constructed by the petitioner subsequently. Hence the property let out to the petitioner is not covered by the definition of premises under Section 2 (i) of the DRC Act. In Ram Prakash Chawla v. Amrit Kaur, 20 (1981) DLT 145; it was held that where only a plot of land was let out, the erection of super - structure by the tenant after letting would be irrelevant and the DRC would not apply to it.
62. Ex.PW-3/A is the English translation of the lease deed Ex.PW-3/1. It is evident from the Ex.PW-3/A that "Sh. Ghasi Ram and Sh. Ram Saroop had leased out an open plot of land measuring 75 sq. yds. situated within the revenue Suit No. 194/08 Page 28 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
estate of village Shadi Pur, Delhi to the defendant no.1 @ Rs. 4.50/- per month for a period of 20 years w.e.f. 04.10.1950 to 03.10.1970 for construction of a residential house. It further stipulated that the lessor shall have right to terminate the lease in case of non - payment of the rent for more than one year and the lessee/the defendant no.1 shall remove his super - structure from the plot and the lessor shall not be liable to pay anything for that. It further stipulated that the lessee shall have right to raise the construction of residential house on the plot. However, the lessee shall not build any religious building over the plot. It stipulated that the land revenue of the plot shall be paid by the lessor and in case of acquisition, the lessor shall be entitled to receive compensation for the land and the lessee shall be entitled to receive compensation for the structure.
63. It is therefore, evident from the lease deed Ex.PW-3/1 that dominant purpose of the lease was to let out a vacant piece of land for construction of a residential house. The DW-1 admitted in his cross - examination that his father was owner of the super - structure which was built on the suit property. He deposed that after his death, the DW-1 and his three brothers are owners of the super - structure. It is therefore, proved that the predecessor - in - interest of the plaintiffs had let out an open plot of land measuring 75 sq. yds. to the defendant no.1 for a period of 20 years vide lease deed Ex.PW-3/1. The defendant no.1 has failed to prove that he was let out a constructed premises by Smt. Sumitra Devi in the year 1948.
64. The defendant no.1 was let out an open plot of land and not constructed premises. The open land is not Suit No. 194/08 Page 29 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
covered by definition of the premises under Section 2 (i) of the DRC Act. The defendant no.1 is entitled to remove the super - structure made by him over the suit land. The jurisdiction of the civil courts is not barred by Section 50 of the DRC Act. Civil Suit for possession of the suit land is maintainable.
65. Ld. Counsel for the defendant no.1 contended that the plaintiffs are not the owners of the suit premises. He argued that the plaintiffs had not let out the suit premises to the defendant no.1. He argued that the plaintiffs have not proved any ownership document regarding the suit premises. He argued that PW-1 stated that he is not in possession of ownership documents but the same are lying at house. He argued that the PW-2 stated that he is in possession of the Jamabandi but he has not produced the same. He argued that the plaintiffs have not proved their title in respect of the suit land. Therefore, they have no locus standi to file the suit.
66. The suit land was given on lease to the defendant no.1 vide lease deed Ex.PW-3/1. The plaintiff no.2 (PW-2) proved the counter - foils of the rent receipts Ex.PW-1/2 and Ex.PW-1/3 issued to the defendant no.1. The DW-1 identified signature of the defendant no.1 on the counter foils Ex.PW-1/2 and Ex.PW-1/3. The DW-1 stated in his cross - examination that the suit land and the structure was let out by the predecessor - in - interest of the plaintiffs. The plaintiffs and the defendant no.1 had relationship of landlord and tenant and therefore, the plaintiffs have locus standi to file the suit. The defendant no.1 is estopped from challenging the title of the plaintiffs in respect of the suit land. In Babulal Satanalika v. Satya Narain Agarwalla, 1996 (2) RCR 228;
Suit No. 194/08 Page 30 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
The Calcutta High Court held that "Once the receipts are proved under which the tenant allegedly claimed to have made payment subsequently it is not open to him to deny the title of the landlord and set up ownership in favour of another. Such conduct is hit by the doctrine of estoppel under Section 116 of the Evidence Act."
67. In Sri Ram Pasricha v. Jagannath and others, AIR 1976 SC 2335; It was held that "The relation between the parties being that of a landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant."
68. In Mahabir Prasad Lohia v. Karam Chand Thapar & Bros. Ltd., AIR 1985 SC 209; It was held that "where a tenant who had been let into the possession by the plaintiff's predecessor is sued as a trespasser by the plaintiff after the expiry of the term, the tenant is not entitled to dispute the plaintiff's title. A tenant who had been let into possession cannot deny his landlord's title however defective it may be, so long as he has openly restored the possession and the tenant's estoppel operates even after termination of the tenancy." In Tej Bhan Madan v. 2nd Addititional District Judge, Allahabad, AIR 1980 ALL 320; It was held that " In relation to the successor - in - interest of the original landlord equally the provisions of Section 116 are available if the tenant attorns to the successor - in - interest.
Suit No. 194/08 Page 31 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
69. In P. G. Venkataswamy and others v. Mir Zahid Hussain Saheb, AIR 1973 Mysore 145; It was held that "It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular had at that date a title to the property. The section applies against the lessee, any assignee of the term and any sub- lessee or licensee."
70. Therefore, the defendant no.1 and his Lrs. and the defendant no.2 and 3/sub - lessee are estopped from denying the title of the plaintiffs/successor - in - interest of the original lessors. The plaintiffs have locus standi to file the suit for possession against the defendant.
71. Accordingly, the issue no.1, 3, 5 and 10 are decided in favour of the plaintiffs and against the defendants.
ISSUE NO.2:
72. Ld. Counsel for the plaintiffs argued that the defendant no.1 continued in occupation of the suit land even after expiry of his lease on 04.10.1970 and therefore, he had become a month to month tenant by holding over under Section 116 of the Transfer of Property Act, 1887 ('TP Act'). He argued that the tenancy of the defendants was terminable by 15 days notice under Section 106 of the T.P. Act. He argued that the plaintiffs had served notice dated 28.07.1986 Ex.PW-1/7 upon the defendant no.1. He argued that the defendant no.1 contended that he had not neither received nor refused the notice dated 28.07.1986 Ex.PW-1/7. He argued that the plaintiffs sent the said notices vide Suit No. 194/08 Page 32 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
registered AD Post Ex.PW-1/8. He argued that the defendant no.1 had refused to receive the said notice and it was returned to the plaintiffs with refusal report vide returned registered envelope Ex.PW-1/9. He argued that the plaintiffs have examined an official (PW-4) from the post office Karol Bagh who deposed that the concerned postman Sh. Ram Dayal has expired. He argued that Sh. Ram Dayal was posted with the post office Karol Bagh at the relevant time.
73. Ld. Counsel for the plaintiffs further argued that the plaintiffs had sent the said notice Ex.PW-1/7 to the defendant no.1 at his correct address through registered AD Post and therefore, the defendant no.1 should be presumed to be served with the said notice. He argued that the defendant no.1 has not led any evidence to rebut the said presumption. He argued that the notice Ex.PW-1/7 fulfilled the requirements of Section 106 of the T.P.Act. He argued that the plaintiffs had called upon the defendant no.1 to vacate the suit land after removing the super-structure. He argued that the lease of the defendant no.1 was legally and validly terminated vide notice Ex.PW-1/7.
74. Ld. Counsel for the defendant no.1 argued that the defendant no.1 was not served with the notice Ex.PW-1/4 and Ex.PW-1/7. He argued that the first notice Ex.PW-1/4 was waived by the second notice Ex.PW-1/7. He argued that the plaintiffs have not produced the postman to prove the service of alleged notices. He argued that the plaintiffs have not stated that they had taken steps to serve the defendant no.1 personally or by pasting on the premises of the defendant no.1. He argued that the suit of the plaintiffs is not maintainable without service of mandatory notice under Suit No. 194/08 Page 33 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
Section 106 of the T. P. Act.
75. The predecessor - in - interest of the plaintiffs had leased out the suit land to the defendant no.1 for a period of 20 years w.e.f. 04.10.1950 to 03.10.1970. The lease came to an end by efflux of time on 04.10.1970. Under Section 107 of the T. P. Act, lease of an immovable property for a period exceeding one year can be made only by a registered instrument. No fresh lease was registered between the parties.
76. In the absence of a registered instrument, it would be deemed to be a lease for month to month. The defendant no.1 paid rent for the period from 01.01.1970 to 31.12.1975 on 18.01.1976 vide Ex.PW-1/2 and 01.01.1976 to 31.12.1976 on 18.03.1977 vide Ex.PW-1/3. The defendant no.1 continued in possession of the suit land by holding over as a month to month tenant and his tenancy was liable to be terminated by 15 days notice under Section 106 of the T. P. Act.
77. The PW-1 deposed that he had sent a legal notice Ex.PW-1/7 to the defendant no.1 through registered AD Post Ex.PW-1/8. He deposed that the said notice was returned vide Ex.PW-1/9. The plaintiffs had sent the notice dated 28.07.1986 Ex.PW-1/7 whereby the tenancy of the defendant no.1 was terminated and the plaintiffs had called upon the defendant no.1 to deliver the possession of the suit land. The said notice Ex.PW-1/7 was sent to the defendant no.1 vide registered AD Post Ex.PW-1/8. The said notice was returned to the plaintiffs with the refusal report vide Ex.PW-1/9. The plaintiffs examined Sh. R. M. Dubey, postman from the Karol Bagh Post Office. He deposed that Sh. Ram Dayal was posted with the said post office at the relevant time. He deposed Suit No. 194/08 Page 34 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
that the Postman Sh. Ram Dayal who had taken the notice Ex.PW-1/7 has expired. Therefore, the plaintiffs cannot be blamed for non-examination of Sh. Ram Dayal, Postman.
78. The plaintiffs had sent the notice Ex.PW-1/7 to the defendant no.1 through registered AD post. Therefore, it can be presumed that the postman had taken the said notice to address of the defendant no.1 in ordinary course of his duty and given the correct report. The defendant no.1 had no personal enmity with the said postman Sh. Ram Dayal.
79. The said notice Ex.PW-1/7 was sent at the correct address of the defendant no.1. The DW-1 in his cross - examination deposed that "In 1986 my father lived at House No. 4079, Gali no. 37, Raigharpura, Karol Bagh, Delhi. It is correct that Ex.PW-1/6 and Ex.PW-1/9 bears the correct address of my father. It is correct that the addresses mentioned in the notice Ex.PW-1/4 and Ex.PW-1/7, and registered letter Ex.PW-1/6 and Ex.PW-1/9 are the correct addresses at which my father was residing at that time. It is correct that my father received all letters which were addressed to my father at that address. My father never made any complaint against any postman that any post was not delivered at that address or missing or report on the envelope was manipulated. It is correct that we have no personal enmity with the postman of the area. It is correct that the Ex.DW-1/7 has the same address which is mentioned on Ex.PW-1/4, Ex.PW-1/6, Ex.PW-1/7 and Ex.PW-1/9."
80. The plaintiff no.2 had sent the notice Ex.PW-1/7 through registered AD post Ex.PW-1/8 to the defendant no.1 at his correct address at House No. 4079, Gali no. 37, Raighar Suit No. 194/08 Page 35 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
Pura, Karol Bagh, Delhi. Sh. Ram Dayal, postman from the Karol Bagh Post Office had taken the said notice to the defendant no.1 and returned the said notice with the refusal report dated 30.07.1986 vide Ex.PW-1/9. Sh. Ram Dayal has already expired. The defendant no.1 never made any complaint against the non - delivery of the said notice. The defendant no.1 had no enmity with said postman. Therefore, there is no reason to doubt the authenticity of the report of the said postman. It is proved that the defendant no.1 had refused to receive the said notice Ex.PW-1/7 on 30.07.1986.
81. In M/s Madan and Co. v. Wazir Jaivir Chand, (1989) 1 SCC 264; Hon'ble Supreme Court held that 'All that a landlord can do to comply with this provision is to post a pre-paid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or person authorized by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty for the acceptance or refusal can be treated as a service on, and receipt by the addressee."
82. In Harcharan Singh v. Smt. Shiv Rani and others, (1981) 2 SCC 535; It was held that "When a registered envelope is tendered by a postman to the addressee but he refused to accept it, there is due service effected upon the addressee by refusal; the addressee must, therefore, be imputed with the knowledge of the contents Suit No. 194/08 Page 36 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
thereof and, this follows upon the presumptions that are raised under S. 27 of the General Clauses Act 1887 and S. 114 of the Evidence Act."
83. Therefore, there was due service effected upon the defendant no.1 by refusal. There was no further obligation to get it affixed/pasted or personally tendered. The defendant no.1 can be imputed with the knowledge of the contents of the notice Ex.PW-1/7. With the issuance of the notice Ex.PW-1/7, the notice Ex.PW-1/4 was waived and it does not affect the validity of the notice Ex.PW-1/7. The defendant no.1 was duly served with the notice Ex.PW-1/7 on 30.07.1986.
84. In so far as contention that the PW-1 has stated in his cross - examination that he had sent the notice Ex.PW-1/4 and Ex.PW-1/7 for demanding arrears of rent is concerned, it can be stated that the validity of the notice is determined on the basis of the contents of the notice. Vide the notice dated Ex.PW-1/7, the plaintiffs had terminated the tenancy of the defendant no.1 and given one month's time to the defendant no.1 to vacate the suit land after removing the super - structure and called upon him to pay arrears of rent.
85. Accordingly, the issue no.2 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.4:
86. Ld. Counsel for the plaintiffs argued that the suit premises is not situated in a Slum Area. He argued that the defendant no.1 has not produced any notification that the suit premises is situated in a Slum Area therefore, the permission under Section 19 of the Slum Areas Act is not Suit No. 194/08 Page 37 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
required before filing the suit. He argued that the defendant no.1 cannot claim protection under the Slum Areas Act without admitting himself as tenant of the plaintiffs.
87. Ld. Counsel for the defendant no.1 argued that the suit premises is situated in an area declared as Slum Area and the suit for ejectment without obtaining permission under Section 19 of the Slum Areas Act is not maintainable.
88. Besides raising the plea that the suit premises is situated in a slum area, the defendant no.1 has not led any evidence in support of his defence and accordingly, the issue no.4 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.6:
89. Ld. Counsel for the plaintiffs argued that the defendant no.1 has not led any evidence to prove that the suit land has been acquired by the Government and compensation has been disbursed.
90. Ld. Counsel for the defendant no.1 argued that the land underneath the suit premises has been acquired. He argued that the plaintiffs have not produced any document to prove that the suit land belongs to them and therefore, the plaintiffs have no locus standi to file the suit.
91. The defendant no.1 has not led any evidence in support of its case that the suit land has been acquired by the Government and compensation for acquisition has been paid. The defendant no.1 has not examined any witness from the Land Acquisition Collector with regard to acquisition of the suit land. The defendant no.1 has not proved any Suit No. 194/08 Page 38 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
notification or Award in respect of the acquisition of the suit land. Rather, DW-1 deposed that he has not seen any document and notification that the property in dispute has been acquired by the Government. He deposed that he has heard. DW-1 deposed that he has not received any notice from the Government regarding acquisition of land underneath the property in question. He deposed that he has not received the notice of ejectment from the Government after acquisition of the suit property. He deposed that he has not made any enquiry that regarding acquisition. He deposed that he can't produce any document of acquisition of the suit land. Therefore, the issue no. 6 is decided in favour of the plaintiffs and against the defendant no.1. ISSUE NO.7:
92. Ld. Counsel for the plaintiffs argued that the suit for recovery of an immovable property against a tenant including a tenant holding over the property after determination of his tenancy is valued according to the amount of the rent payable for the year preceding the filing of the suit under Section 7 (xi) (cc) of the Court Fees Act and not on the basis of the market value of the immovable property. He argued that the plaintiff has valued the relief of possession of the suit land at Rs.60/- being annual rent of the suit land. He argued that the suit has been correctly valued for the purpose of court fees and jurisdiction.
93. According to Section 7 (xi) (cc) of the Court Fees Act, the suit for recovery of an immovable property against a tenant is valued according to the amount of the rent payable for the year preceding the filing of the suit under and not on the basis of the market value of the immovable property. In Suit No. 194/08 Page 39 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
Sobha Singh v. Sant Dass, 1988 (2) RCR 71; It was held that the suit for recovery of immovable property from a tenant, including a tenant holding over after determination of a tenancy, has to be valued on the basis of annual rental value and not on the basis of market value of the land. Similar view was taken in Chuni Lal v. Sukh Devi, 1978 RLR 58 and Sohan Lal v. Ram Dayal, 1979 (1) RCR 229. The plaintiffs have correctly valued the relief of possession of the suit land at Rs. 60/- on the basis of the annual rent
94. Therefore, the issue no.7 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.8 and 9:
95. Ld. Counsel for the plaintiffs argued that the burden to prove that the defendant no.1 has perfected his title by way of adverse possession was upon the defendant no.1. He argued that the defendant no.1 has denied the title of the plaintiffs. He argued that the DW-1 stated that the plaintiffs have no right or concern with the suit premises. He argued that a person denying the title of the owner cannot set up plea of adverse possession against the true owner. He argued that the defendant no.1 has not stated in his written statement as to who else is the owner of the suit land. He argued that a person who is not sure of ownership of the land cannot assert adverse possession. He argued that DW-1 stated that the defendant no.1 was not in possession of the suit premises at the time of the filing of the suit. He argued that the possession of the defendant no.1 was never adverse to the plaintiffs. He argued that the defendant no.1 has failed to prove that they have perfected their title by adverse Suit No. 194/08 Page 40 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
possession and therefore, the suit is not barred by limitation.
96. The case of the defendant no.1 is that he has become owner of the suit premises by virtue of adverse possession as he is in possession of the suit land for more than 12 years before the date of the institution of the suit.
97. The Supreme Court in T. Anjanappa v.
Somalingappa (2006) 7 SCC 570) held in para no.12 of the judgment that "The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them.
98. In Annakili v. A. Vedanayagam AIR 2008 SC 346; It was held that "Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title".
Suit No. 194/08 Page 41 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
99. Besides stating that the defendant no.1 is in un- interrupted possession and control of the suit premises for a period more than 12 years prior to the filing of the suit, the defendant no.1 has not stated that when his adverse possession commenced. The DW-1 in his cross - examination that he cannot tell the date from which the adverse possession had started against the plaintiffs. He stated that he cannot say when the defendant asserted title adverse to the plaintiffs. He stated that neither his father nor they ever denied the title of the plaintiffs before the filing of the suit. He stated that they have not given any notice in writing to the plaintiffs that they are owners of the property in dispute. He stated that no one else except the plaintiffs have claimed to be the owner of the land.
100. It is therefore, evident that the defendant no.1 had never denied the title of the plaintiffs in respect of the suit land. The defendant no.1 never asserted his title hostile to the title of the plaintiffs till the filing of the suit. Mere long possession in the absence of animus posssendi cannot ripe into possessory title. In T. Anjanappa v. Somalingappa (supra); It was held that mere possession however long does not necessarily means that it is adverse to the true owner. In L. N. Aswathama v. P. Prakash, 2009 AIR SCW 5439; it was held that that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi.
101. In the present case, the suit land was given on lease to the defendant no.1 for a period of twenty years w.e.f. 04.10.1950 vide Ex.PW-3/1. The defendant no.1 was in Suit No. 194/08 Page 42 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
possession of the suit land as a tenant. He was making payment of rent to the plaintiff no.2 till 31.12.1976. The possession of the defendant no.1 was permissive. In Mohammed Zaki v. Kekhraj & Ors. 1988 (2) RCR 129; Hon'ble Rajasthan High Court held that "It is well settled that when a person enters as a tenant, he continues to be a tenant unless he starts asserting his right as an owner openly, commits acts of hostility against the owner and is allowed to do so uninterruptedly for the prescribed period by which he can claim adverse possession. Mere non - payment of rent and non - filing of suit for rent or eviction or inactivity or absence of legal action by a landlord against a tenant for a long period for realization of rent would not result in the tenant's status being converted into being that of the owner."
102. In the present case, the plaintiffs had demanded the arrears of rent and possession of the suit land vide notice dated 08.04.1986 Ex.PW-1/4 and 28.07.1986 Ex.PW-1/7 which the defendant no.1 had refused to receive. The defendant no.1 did not have requisite animus to perfect his title to the suit land by adverse possession. There is no evidence of open assertion of hostile title coupled with exclusive possession so as to constitute ouster. The possession of the defendant no.1 was never hostile i.e. a possession which is expressly or impliedly in denial of the title of the true owner and therefore, it the possession of the defendant no.1 cannot be adverse to the plaintiffs.
103. The case of the defendant no.1 is that he was let out the suit premises by Smt. Sumitra Devi. He has denied Suit No. 194/08 Page 43 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
that the plaintiffs are owners/landlords of the suit land. The DW-1 in his cross - examination stated that Smt. Sumitra Devi was shown as tenant in the document Mark X. He deposed that he has not seen Smt. Sumitra Devi. He stated that he is not aware of Khasra number of the suit land. He deposed that he has never seen the revenue record relating to the suit land. He deposed that he has never seen document of Smt. Sumitra Devi in respect of the suit land. He deposed that till date, no one else except the plaintiffs have claimed ownership of the suit land. He deposed that his father had never tendered the rent to Smt. Sumitra Devi. He deposed that he cannot say if Smt. Sumitra Devi was the mother of the defendant no.3. The DW-1 went to extent of stating that his father had purchased built up house. He deposed that they are owners of the land and the structure built up over it. He has also stated that they are owners of the super - structure.
104. In T. Anjanappa v. Somalingappa (supra); it was held that "If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise." In the present case, the defendant no.1 had entered into the possession of the suit land being a tenant. In T. Anjanappa v. Somalingappa (supra), it was held that "Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title." Therefore, possession of a tenant cannot be adverse to the landlord in the absence of hostile animus.
Suit No. 194/08 Page 44 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
105. The Supreme Court in Saroop Singh Vs. Banto & Ors. (2005) 8 SCC 330 held that "In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. In Gaya Parshad Dixit Vs. Dr. Nirmal Chander AIR 1984 SC 930 held that "under Article 65 of the Limitation Act, in a suit for possession by the owner, the question of limitation does not arise till the plea of adverse possession is established."
106. The defendant no.1 has failed to prove that he had perfected his title by way of adverse possession. Therefore, the limitation period under Article 65 of the Limitation Act would not run against the plaintiffs for filling the suit for possession. The suit for possession filed by the plaintiffs is within limitation. Accordingly, the issue no.8 and 9 are decided against the defendants and in favour of the plaintiffs.
ISSUE NO.11:
107. Ld. Counsel for the plaintiffs argued that the defendant no.1 had let out the suit premises to the defendant no.2 and 3. He argued that the defendant no.2 and 3 have admitted in their written statement that they are tenants of the defendant no.1 for the last 38 years. He argued that the DW-1 admitted that they have let out both the room of the suit premises, and that the defendant no.2 and 3 have become tenants after death of their respective fathers. He argued that the defendant no.2 and 3 stated in their written statement that the defendant no.1 had been issuing rent receipts against the rent paid by them. He Suit No. 194/08 Page 45 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
argued that the defendant no.2 and 3 are in occupation of the suit premises as sub - tenants of the defendant no.1.
108. It is the specific case of the plaintiffs that the defendant no.2 and 3 are sub-tenants of the defendant no.1 and they are in possession of the suit land. In their written statement, the defendant no.2 and 3 stated that they are lawful tenants of the defendant no.1. It is stated therein that the defendant no.2 is a tenant of the defendant no.1 in respect of one room, bath room, kitchen and toilet with common passage @ Rs. 13/- per month including water and electricity charges for the last 36 years and the defendant no.3 is a tenant of the defendant no.1 in respect of one room, bath room, kitchen and toilet with common passage @ Rs. 15/- per month including water and electricity charges for the last 38 years. The defendant no.2 and 3 have categorically stated that the defendant no.1 had inducted them into the premises and the defendant no.1 has been issuing rent receipts against the rent paid by them.
109. Initially, the defendant no.1 in his written statement denied that the defendant no.2 and 3 are his sub - tenants. However, the DW-1 in his cross - examination admitted that the defendant no.1 was not in possession of any part of the suit premises at the time of the filing of the suit. He deposed that he is not in possession of the suit premises. The DW-1 stated that there are two rooms in the suit premises which have been let out to two tenants. He deposed that perhaps his father / the defendant no.1 had let out the suit premises to them. The DW-1 deposed that the defendant no.2 and 3 had become tenants of the suit premises after death of their fathers. He deposed that there Suit No. 194/08 Page 46 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
have been litigations between Sh. Darshan Singh and the defendant no.2 and 3 regarding the rent. Therefore, it is proved that the defendant no.1 had inducted the defendant no.2 and 3 as tenants in the suit premises. The defendant no. 2 and 3 are sub-tenants and they have no right independent from the defendant no.1.
110. In Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v. Khaja Midhat Noor, AIR 1988 SC 1470; It was held that the determination of the lease without notice to the sub - lessee is a valid termination of the lease. In Rupchand Gupta v. Raghuvanshi (Pvt.) Ltd., AIR 1964 SC 1889, It was held that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. The decree in such a suit would bind the sub-lessee.
111 Accordingly, the issue no.11 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.12:
112. Ld. Counsel for the plaintiffs argued that the defendant no.1 was a lessee in respect of the suit land vide lease deed Ex.PW-3/1 for a period of 20 years with effect from 04.10.1950. He argued that the lease of the defendant no.1 had come to an end by way of efflux of time on 04.10.1970. He argued that the defendant no.1 continued in possession of the suit land by holding over and paid lease amount till 31.12.1976. He argued that the lease of the defendant no.1 was validly terminated by way of termination notice dated 28.07.1986 Ex.PW-1/7. He argued that the Suit No. 194/08 Page 47 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
plaintiffs had called upon the defendant no.1 to vacate the suit land after removing the super - structure by the end of 31st August, 1986 vide notice dated 28.07.1986 Ex.PW-1/7. He argued that the defendant no.1 failed to hand over the possession of the suit land despite termination of lease and therefore, the defendant no.1 had become an un-authorized occupant of the suit land with effect from 01.09.1986. He argued that the defendant no.1 was liable to pay the arrears of rent and deliver vacant possession of the suit land after removing super - structure therefrom which he had failed to comply. He argued that the plaintiffs are entitled to recover possession of the suit land after removal of the super - structure constructed thereupon. He argued that the defendant no.2 and 3 are unauthorized sub-tenants as the defendant no.1 had not taken written permission of the plaintiffs before creation of tenancy in their favour and therefore, the defendant no.2 and 3 are also liable to be ejected from the suit land. He argued that the plaintiffs are entitled to a decree of possession and injunction against the defendants.
113. The suit land was given on lease to the defendant no.1 by the plaintiffs' predecessors @ Rs. 4.50/- per month for a period of 20 years w.e.f. 04.10.1950 to 03.10.1970 for construction of a residential house vide registered lease deed Ex.PW-3/1. The lease of the defendant no.1 was for fixed period of twenty years. The lease of the defendant no.1 was not a perpetual lease. The defendant no.1 was given the permission to let out the residential house to tenants. The defendant no.1 had inducted the defendant no.2 and 3 as tenants in the suit premises. The tenancy was automatically determined on the expiry of twenty years on 04.10.1970.
Suit No. 194/08 Page 48 /52Mahinder Singh & Ors. v. Darshan Singh & Ors.
After the expiry of the lease, no instrument was executed and registered between the plaintiffs and the defendant no.
1.
114. The defendant no.2 and 3 continued in possession of the suit land even after the expiry of the lease period. The defendant no.1 paid the rent of the suit land @ Rs. 5/- per month for the period from 01.01.1970 to 31.12.1975 on 18.01.1976 vide Ex.PW-1/2 and for the period from 01.01.1976 to 31.12.1976 on 18.03.1977 vide Ex.PW-1/3. The plaintiffs accepted the rent and allowed the defendant no.1 to continue. In the absence of a registered instrument, the lease shall be deemed to be lease from month to month. The defendant no.1/lessee, and the defendant no.2 and 3 continued to remain in possession of the property on payment of rent as a tenant from month to month. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month. The tenancy of the defendant no.3 was terminable by way of 15 days notice under Section 106 of the T.P.Act. The termination of the lease could only be by giving a valid notice. 115. The plaintiffs had given to notice dated 28.07.1986 Ex.PW-1/7 to the defendant no.1 through registered AD Post Ex.PW-1/8 but not to the defendant no.2 and 3. The defendant no.1 had refused to receive the said notice vide report dated 30.07.1986 on the returned envelop Ex.PW-1/9 and therefore, he is deemed to have been served with the said notice on 30.07.1986. The notice dated 28.07.1986 Ex.PW-1/7 had validly determined the tenancy of the defendant no.1 by giving 15 days notice and required him to handover the possession of the suit land Suit No. 194/08 Page 49 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
after removing the super - structure by the end of 31.08.1986. The said notice fulfilled the requirements of Section 106 (4) of the T. P. Act.
116. The lease of the defendant no.1 was terminated by a valid notice Ex.PW-1/7. After the valid termination of the lease of the defendant no.1 in respect of the suit land, there was no need to give a fresh notice to the sub-leases. The defendant no.1 and the defendant no.2 and 3 ceased to have any right to remain in possession of the suit land after determination of the lease of the defendant no.1 w.e.f. 01.09.1986. The decree in such a suit would bind the sub- tenants. The defendants have been in unauthorized occupation of the suit land since 01.09.1986. The defendant no.1 failed to deliver the possession of the suit land despite termination of lease vide notice dated 28.07.1986 Ex.PW-1/7 and therefore, the plaintiffs are entitled to a decree of possession against the defendants. The defendants are liable to be handover the possession of the suit land after removal of the super-structure in terms of the lease deed Ex.PW-3/1. Therefore, the plaintiffs are also entitled to a decree of mandatory injunction regarding removal of super - structure.
117. The defendant no.1 has not paid the rent since 01.01.1977. It is the admitted case of the defendant no.1 that the rent was enhanced to Rs. 5/- per month. The defendant no.1 has not paid the rent despite notice dated 08.04.1986 Ex.PW-1/4 and notice dated 28.07.1986 Ex.PW-1/7. The defendant no.1 is liable to pay arrears of rent/damages @ Rs. 5/- per month in respect of the period from 01.01.1988 to 31.12.1990 and therefore, the plaintiffs are entitled to a decree of Rs.180/- on account of arrears of Suit No. 194/08 Page 50 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
rent/damages @ Rs.5/- per month for the said period.
118. The PW-2 deposed that the defendant no.1 was intending to sell the suit premises to the defendant no.2 and
3. The defendant no.1 has no right to sell the suit property to the defendant no.2 and 3.
119. The plaintiffs would suffer irreparable loss and injury in case the defendant no.1 succeeds in transferring the suit premises to the defendant no.2 and 3. It would give rise to multiplicity of proceedings. Therefore, the plaintiffs are entitled to a decree of permanent injunction restraining the defendant no.1 from selling the suit property to the defendant no.2 and 3.
120. Accordingly, issue no.12 is decided in decided in favour of the plaintiffs and against the defendant.
Relief:
121. Accordingly, the suit for possession, arrears of damages, mandatory and permanent injunction filed by the plaintiffs is decreed with costs as under:
(a) A decree of possession in respect of 75 square yards of land underneath the property no. 3348, Ranjit Nagar, New Delhi ('the suit land') as shown in red colour in the site plan Ex.PW-2/B and forming part of Khasra no.408 of abadi of Ranjit Nagar, Village Shadi Pur, New Delhi by removing the super-structure standing thereon is passed in favour of the plaintiffs and against the defendants.
(b) A decree for recovery of Rs. 180/- on account of Suit No. 194/08 Page 51 /52 Mahinder Singh & Ors. v. Darshan Singh & Ors.
rent/damages @ Rs. 5/- per month for the period from 01.01.1988 to 31.12.1990 is passed in favour of the plaintiffs and against the defendant no.1.
(c) A decree of mandatory injunction directing the defendants to remove the super-structure on the suit land is passed in favour of the plaintiffs and against the defendants.
(d) A decree of permanent injunction restraining the defendant no.1 from selling, alienating, mortgaging, parting with the possession, or otherwise creating third party rights in respect of the property no. 3348, Ranjit Nagar, New Delhi ('the suit land') as shown in red colour in the site plan Ex.PW-2/B and forming part of Khasra no.408 of abadi of Ranjit Nagar, Village Shadi Pur, New Delhi is passed in favour of the plaintiffs and against the defendant no.1.
Decree sheet be prepared.
Announced in the open court SANJAY SHARMA)
Today on 15.09.2011 SCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit No. 194/08 Page 52 /52