Delhi District Court
Smt. Ram Pyaree vs Sh. Parshuram Patil on 23 March, 2007
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IN THE COURT OF MS. SMITA GARG: CIVIL JUDGE, DELHI
SUIT NO. 471/02
IN THE MATTER OF:-
SMT. RAM PYAREE,
W/O LATE SH. MOOL CHAND JHANGRIA,
R/O 3053/37, BEADON PURA,
KAROL BAGH, NEW DELHI
.....PLAINTIFF
VERSUS
1. SH. PARSHURAM PATIL,
S/O SH. YASHWANT PATIL,
R/O 1752, KUCHA LATTU SHAH,
CHANDNI CHOWK, DELHI-6.
2. SH. RANDHIR SINGH KAMAT,
S/O SH. LAXMAN KAMAT,
R/O 3173/3, THIRD FLOOR,
BEADON PURA, KAROL BAGH,
NEW DELHI
.... DEFENDANTS
SUIT FOR POSSESSION
JUDGMENT
1. The plaintiff has filed the present suit for possession in respect of the property no. 3173/33, first floor, Beadon Pura, Karol Bagh, New Delhi (as shown in red in the sit plan) against the defendants.
2. The present suit has been signed, verified and instituted by Sh. Mohan Lal, who is stated to be the son and SPA of the plaintiff on her behalf. The case of the plaintiff is that she is the owner of the property bearing no. 3173/33, FF, Beadon Pura, Karol Bagh, New Delhi ( herein after referred to as "Suit premises") 2 and had let out the same to the defendant no. 2 Sh. Randhir Singh on monthly rent of Rs. 2400/- in the year 1999. It has been averred prior to the creation of tenancy in favour of the defendant no. 2, the suit premises was under the use and occupation of one Sh. Shankar S/o Sh. Yashwant Patil, who had vacated and handed over the peaceful possession of the same to the plaintiff in the year 1995 and thereafter, the suit premises were let out by the plaintiff to the defendant no. 2. According to the plaintiff, the defendant no. 1, who alleges himself to be brother of the said Sh. Shankar, started threatening her to create tenancy in respect of the suit premises in his favour failing which he would forcibly occupy the suit premises. As the defendant no. 2 was already a tenant , the plaintiff was not in a position to accept demands to the defendant no. 1 as a result of which the defendant no. 1 annoyed. It has been averred that on 07.03.07, the plaintiff was called by the defendant no. 2 at the suit premises on an urgent basis. On reaching the spot, she saw that the defendant no. 1 was creating nuisance in front of the suit premises and was threatening the tenant of forcible dispossession. It has been averred that the plaintiff requested the defendant no. 1 to dissuade from doing such illegal act but the defendant no. 1 threatened that if the plaintiff would not let out the premises to him within one week, he would throw out the belongings of the defendant no. 2 from the suit premises. It has been averred that on 20.05.02, a similar demand was made by the defendant no. 1 and thereafter in order to materialised his threats, the defendant no. 1 started creating fictitious evidence of his tenancy with the plaintiff in respect of the suit premises. It has been averred that the defendant no. 1 sent money orders to the plaintiff of the alleged rent of the suit premises which were refused by the plaintiff and therefore, the defendant no. 1 filed a petition on 3 24.05.02 in the court of Sh. O. P. Saini, Ld. Sr. Civil Judge, Delhi. It has been averred that on 10.08.02, the plaintiff approached the defendant no. 1 and requested him to defarain from harassing her but defendant no. 1 paid no heed to the requests made. It has been averred that due to continuous disturbances by the defendant no. 1, the plaintiff as well as her tenant ( defendant no. 2 ) was forced to file a suit for permanent injunction against the defendant no. 1 for restraining him from dispossessing the plaintiff and from interfering in peaceful use and enjoyment of the plaintiff and her tenant in respect of the suit premises on 12.08.02. According to the plaintiff, after the receipt of the summons, the defendant no. 1 forcibly and illegally entered into the suit premises on 30.08.02 after breaking open the locks of the defendant no. 2 and to create evidence of his possession, stored his articles and goods in the suit premises. It has been averred that a report in this regard was lodged in the police station, Karol Bagh and representations were also made to various authorities but to no avail. Hence, the plaintiff was constrained to file the present suit.
3. The defendant no. 1 filed his WS on 02.01.03 wherein he raised a preliminary objection that the suit has not been properly valued for the purpose of court fees and jurisdiction as the market value of the property cannot be less than 6 lakhs. An objection regarding the suit being barred by the provisions of Section 50 of DRC Act was also taken. The defendant no. 1 further raised an application that the suit was bad for non-joinder of necessary parties alleging that other Lrs of Sh. Mool Chand Jhangiria, who have inherited the suit property alongwith the plaintiff, have not been impleaded. On merits, it has been averred that the husband of the plaintiff Late Sh. Mool Chand Jhangria had inducted the 4 defendant no. 1 as tenant in respect of two rooms measuring 11.9' X 9.6' each vide rent agreement dated 01.10.1989 each with the facility of common bathroom, exclusive passage and common balcony on the first floor of the property bearing no. 13173/33, Bindapur, Karol Bagh, New Delhi at a monthly rent of Rs. 250 with stipulation that the rent would be increased by 15% after three years. It has been averred that the rooms were separated by wooden walls which was removed by the defendant no. 1 soon after taking premises on rent with the consent of Late Sh. Mool Chand Jhangria. According to the defendant no. 1, he had also deposited a sum of Rs. 50, 000/- as security with Late Sh. Mool Chand Jhangria which was refundable the time of the vacation of the premises and after the death of Sh. Mool Chand Jhangria, the defendant no. 1 became tenant under his Lrs including the plaintiff in respect of the suit premises. It has been averred that later on rent was increased to Rs. 500/- per month which was regularly paid by the defendant no. 1 to Sh. Mool Chand Jhangria but after his death, the plaintiff started harassing the defendant no. 1 and refused to accept the rent from him in order to compel him to vacating the suit premises. It has been averred that the defendant no. 1 remitted the rent for the months of February, 02 to March, 02 through money order but the plaintiff intentionally avoided the same and therefore the defendant no. 1 deposited the rent at the above rate of Rs. 500/- per month in the court of Sr. Civil Judge, Delhi under the Punjab indebtedness Relief Act. It has been denied that the defendant no. 2 was ever inducted as tenant in respect of the suit premises or that prior to the defendant no. 2, Sh. Shankar was in possession and occupation of the suit premises. It has been averred that Sh. Shankar who is the real brother of the defendant no. 1, used to help him in his working which was being carried out at 5 the suit premises and he had no concern with the premises in question. According to the defendant no. 1, he continues to be in possession of the suit premises w.e.f. 01.10.89 and thus, the question of handing over the possession of the suit premises by Sh. Shankar to the plaintiff does not arise. It has been denied that the alleged incident took place on 30.08.02 or that the defendant no. 1 entered into the suit property by breaking open the locks of defendant no. 2. It has been averred that on the contrary, in the absence of the defendant no. 1, the plaintiff and the defendant no. 2 with the help of some anti social elements tried to occupy the suit premises by breaking open his locks but due to timely intervention of the local police, the plaintiff and the defendant no. 2 could not succeed in their attempt and they were proceeded U/s 107/151 of Criminal Procedure Code. According to the defendant no. 1, since he is in possession of the suit premises being a tenant under the plaintiff and other Lrs of the Sh. Mool Chand Jhangria, at a monthly rent of Rs. 500/-, the suit for possession filed by the plaintiff is liable to be dismissed.
The defendant no. 2 filed his WS on 14.01.03 wherein he admitted the averments made in the plaint and stated that he had no objection if the prayer sought by the plaintiff is granted.
4. On 05.03.03, the plaintiff filed replication to the WS of the defendant no. 1 wherein the averments of the WS were denied and the averments of the plaint were reiterated.
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5. On 05.03.03, following issues were framed by the court.
1. Whether the defendant no. 1 forcibly and illegally entered the suit property on 30.08.02? OPP
2. Whether the suit has not been correctly valued for the purpose of court fees and jurisdiction?OP Defendant no. 1.
3. Whether the defendant no. 1 is a lawful tenant in suit property? OP Defendant no. 1.
4. Whether the suit is barred U/s 50 of the DRC Act, 1988? OP Defendant no. 1.
5. Whether the plaintiff is entitled to decree of possession? OPP
6. Relief After framing of issues, the matter was fixed for recording of evidence.
6. In support of her case, the plaintiff examined her son/SPA Sh. Mohan Lal as PW1. He has led evidence on affidavit wherein he supported the averments made in the plaint and has got exhibited the SPA executed by the plaintiff in his favour as Ex PW1/1, the site plan of the suit premises as Ex PW1/2, rent agreement dated 15.07.99 executed in favour of the defendant no. 2 as Ex PW1/3, rent receipt dated 16.06.2000 and 31.07.02 issued to the defendant no. 2 as Ex PW1/4 and Ex PW1/5, summons received from the court of Sh. M. K. Gupta, Civil Judge, Delhi as Ex PW1/6, representations made by the attorney of the plaintiff as Ex PW1/7, Telegram as Ex PW1/8 and envelops received from the court of Sh. M. K. Gupta, CJ, Delhi in favour of Sh. Randhir Kamat as Ex PW1/9 7 and representations made by the defendant no. 2 as Ex PW1/10.
The plaintiff has also examined Sh. Jagdish Chand, Sh. Panna Lal and Sh. Tej Pal as PW 2, 3 & 4. The above witnesses have also led evidence on affidavit .
The PW2 in his affidavit has deposed that he knew the husband of the plaintiff and that he had let out the suit premises to Sh. Shankar in the year 1989 and that in the year 1995, the said Shankar had handed over the vacant and peaceful possession of the suit premises to the husband of the plaintiff. He also deposed that after the death of Sh. Mool Chand Jhangria, the plaintiff became owner of the property and she inducted Sh. Randhir Kamat as tenant in respect of the suit premises w.e.f 15.07.99. He further deposed that Sh. Randhir Kamat enjoyed the peaceful possession of the suit premises till 30.08.02 when the defendant no. 1 forcibly and illegally entered into the suit premises without the permission and consent of the plaintiff and the defendant no. 2.
The PW3 has deposed in his affidavit that in the year 1995, Sh. Shankar had handed over the vacant and peaceful possession of the suit premises and Sh. Randhir Kamat was inducted as tenant in respect of the suit premises in the year 1999 by the plaintiff. He further deposed that the defendant no. 1 started creating nuisance and threatening Sh. Randhir Kamat of forcible dispossession w.e.f March, 02 and on 30.08.03, when he reached the spot with son of the plaintiff, the defendant no. 1 had forcibly and illegally entered into the suit premises after breaking open the locks of the tenant. He deposed that he had gone with the son of the plaintiff to the police station, Karol Bagh for the purpose of lodging a report against the defendant no. 1.
The PW4 has deposed in his affidavit that in the year 1999, the son of the 8 plaintiff requested him to make an arrangement for a tenant for the purpose of letting out the suit premises and as he knew Sh. Randhir Kamat, who was in the need of accomodation, he introduced Sh. Randhir Kamat to the plaintiff and her son and that they let out the suit premises to Sh. Randhir Kamat. He further deposed that on 30.08.02 he came to know that the defendant no. 1 had forcibly and illegally entered into the suit premises after breaking open the locks of the tenant and that he had accompanied the son of the plaintiff to P. S. Karol Bagh to lodge a complaint against defendant no. 1.
On the other hand, the defendant no. 1 has examined Sh. Shanker Patil as DW1. Who has led evidence on affidavit wherein he has deposed that Sh. Parshuram Patil was a lawful tenant under the plaintiff and other Lrs of Late Sh. Mool Chand Jhangria and that the suit premises was let out to Sh. Parshuram Patil by Sh. Mool Chand Jhangria in the year 1989 at a monthly rent of Rs. 250/- He further deposed that he had nothing to do with the suit premises and was never a tenant in respect of the shop but was use to help his brother in his working and used to sold smelting and alloy products and therefore, the question of handing over possession of the suit premises in the year 1995 by him does not arise. He further deposed that the plaintiff and the defendant no. 2 alongwith some anti-social elements of the area had tried to take forcible possession of the suit premises but could not succeed due to timely intervention of the police.
The defendant no. 1 has appeared in witness box as DW2. He has also led evidence on affidavit wherein he supported the averments made in the WS and has got exhibited the copy of the agreement executed between him and Late Sh. Mool Chand Jhangria as Ex DW1/1, copy of notice U/o 12 R 8 CPC served 9 by him upon the plaintiff alongwith postal receipt as Ex DW1/2 and Ex DW1/3, copy of police reports made by him with the police as Ex PW1/4 and Ex PW1/5, receipt of payment of membership fee issued by Delhi Swarankar Sangh in his favour as Ex DW1/6 & Ex DW1/7, photographs of the suit premises as Ex DW1/8 to Ex DW1/154, negatives thereof as Ex DW1/16 and letter received by defendant no. 1 at the address of the suit premises as Ex DW1/17.
After recording of evidence, the matter was fixed for final arguments.
7. I have heard the counsel for the parties and perused the record.
8. My issue wise findings are as follows:-
ISSUE NO. 2
"Whether the suit has not been correctly valued for the purposes of court fees and jurisdiction?OP Defendant no. 1."
The plaintiff has valued the relief of possession at Rs. 1 lakh stating the same to be the market value of the property at the time of the institution of the suit. The said valuation has been challenged by the defendant no. 1 on the ground that the market value of the property cannot be less than Rs. 6 lakhs. It is a settled law that the valuation given by the plaintiff should be accepted as true and correct until and unless the same is proved to be whimsical and arbitrary. Thus, the onus was on the defendant no. 1 to show that the valuation of the relief of possession as given by the plaintiff was arbitrary. However, no evidence has been led by the defendant no. 1 to show that the market value of the property was Rs. 6 lakhs as alleged by him in the written statement.
The Ld. counsel for the defendant no. 1 has contended that the PW1 has 10 admitted in his cross examination that property in question is situated in commercial area and that he could not say if the market value of the property is Rs. 4 lakhs. The admission of the PW1 that the property is situated in a commercial area would not ipso facto raise a presumption that the suit property must be having a market value of Rs. 6 lakhs as alleged by the defendant no. 1. Though the PW1 has shown his ignorance to the suggestion that the market value of the property is Rs. 4 lakhs but he has categorically stated that the same is less than Rs. 4 lakhs at the time of institution of the suit. In view of the above, In find no force in the contention raised by the defendant no. 1. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant no. 1. ISSUE NO. 1 & 3
"1. Whether the defendant no. 1 forcibly and illegally entered the suit property on 30.08.02? OPP
3. Whether the defendant no. 1 is a lawful tenant in suit property? OP Defendant no. 1."
Both these issues can be decided together as they are interconnected. According to the plaintiff, in the year 1989, the premises in question was let out by her husband Late Sh. Mool Chand Jhangria to one Sh. Shankar S/o Yashwant Patil (brother of the defendant no. 1) as tenant and that the said Sh. Shankar had handed over the peaceful possession of the shop to the plaintiff in the year 1995. According to the plaintiff, on 30.08.02 the defendant no. 1 forcibly and illegally entered into the shop after breaking open the locks of her tenant i.e. defendant no. 2. Per contra, the defendant no. 1 has averred that the shop was let out to him by the husband of the plaintiff in the year 1989 and that his brother 11 Sh. Shankar merely used to help him in his work which was being carried out in the shop and that he continues to remain in possession since the creation of the tenancy in his favour. With regard to the incident of 30.08.02, the defendant no. 1 has averred that on the same day, in his absence, the defendant no. 2 tried to occupy the shop by breaking open his locks, however, due to intervention of the local police, the plaintiff and the defendant no. 2 could not succeed.
In his cross examination, though the PW1 stated that the shop was let out to Sh. Shankar (brother of the defendant no. 1), however, he has shown his ingnorance as to whether any writing with regard to the letting out of the shop was entered into between his father and Sh. Shankar and thereby it stands conceded that the tenancy in the year 1989 was not created his presence. The case of the defendant no. 1 is that the husband of the plaintiff had never issued any rent receipt except one issued at the time of creation of tenancy but he has failed to place on record the same on the ground that it had been misplaced by him. In his cross examination, the PW1 has also admitted that his father never issued any rent receipt except once. He further admitted that his father used to issue the rent receipt from printed rent receipt book and that the counter foils were used to be retained by his father and that the said books are in his possession. However, the plaintiff has failed to place on record the counter foils of the rent receipts issued by her husband in favour of the person inducted as tenant in the year 1989. Needless to say, the production of the said counter foils would have clinched the matter as to whom the rent receipt was issued in the year 1989 by the husband of the plaintiff and the failure to produce the same calls for drawing an adverse inference against the plaintiff. The said Sh. Shankar has also deposed that the shop in question was not let out to him but it was to 12 the defendant no. 1. Further, the defendant no. 1 has placed on record the photocopy of rent agreement alleged to have been executed by the husband of the plaintiff in his favour. According to him, the original thereof was retained by the landlord. The defendant no. 1 issued a notice U/o 12 R 8 CPC to the plaintiff seeking production of the said original rent agreement. In reply to the same, it was stated by the plaintiff that no such rent agreement was entered into and that the defendant no. 1 had forged the signature of her husband. Keeping in view the stand taken by the plaintiff, but naturally, it was incumbent upon the plaintiff to examine a writing expert to substantiate the same, which she failed to do. Though the DW2 also failed to examine any of the attesting witness of the said rent agreement, however, in view of the above discussion, it is evident that the tenancy in the year 1989 was created in favour of the defendant no. 1. Since the tenancy was created in favour of the defendant no.1, the question of its surrender by Sh. Shankar in the year 1995 and its further letting to the defendant no. 2 by the plaintiff in 1999 does not arise. In any case, the case of the plaintiff is that the premises were let out by her to Sh. Randhir Kamat in the year 1999 vide rent agreement dated 15.07.099 ( Ex PW1/3). A perusal of the said agreement shows that the same has been executed between Sh. Randhir Kamat and Sh. Narender Kumar who is the other son of the plaintiff. Neither the said Sh. Narender Kumar has appeared in the witness box to prove the said rent agreement nor Sh. Randhir Kamat and the attesting witnesses to the said agreement have been examined by the plaintiff in support of her case. Thus, the said rent agreement dated 15.07.99 alleged to have been executed in favour of Sh. Randhir Kamat remained unproved. Apart from that, the present suit has been filed by Sh. Mohan Lal being the SPA of the plaintiff. It has been held by 13 the Hon'ble Supreme Court in Janki Vashodeo Bhojwani & Anrs. Vs. Indusind Bank Ltd. & Ors. that a holder of a power of attorney, may depose for principal in respect of those acts only which have been rendered by him in pursuance of the power of attorney. He cannot depose for principal in respect of the matter which principal can only have personal knowledge and in respect of which principal is entitled to be cross examined. A perusal of the SPA executed by the plaintiff in favour of Sh. Mohan Lal shows that he was authorised by the plaintiff only to file the present suit on her behalf. Thus, the testimony of PW1 with regard to the facts of the case for which the plaintiff herself ought to have appeared in the witness box cannot be relied upon. From the above, it is clear that the plaintiff has failed to prove her case that Sh. Randhir Kamat was inducted as tenant in suit premises.
According to the plaintiff, the defendant no. 1 has forcibly and illegally entered into the premises after breaking open the locks of the defendant no. 2. On the other hand, the defendant no. 1 has averred that on 30.08.02, in his absence, the defendant no. 2 had tried to occupy the shop by breaking open his locks, however, due to intervention of the local police, the plaintiff and the defendant no. 2 could succeed. In support of his averments, the defendant no. 1 has exhibited the complaint dated 21.08.02 and 01.09.02 made by him to the police in that regard as Ex DW1/4 and Ex DW1/5. A perusal of Ex DW1/4 shows that the defendant no. 1 has stated therein that on 21.08.02 when he visited the shop after five months ago, he found that the plaintiff had put her lock on the shop after breaking his locks. Thus, as per the defendant no. 1's own case, he was not in a possession of the shop in question as on 21.08.02. It is not the case of the defendant no. 1 that the possession of the shop was restored to him either 14 by the plaintiff or through any other legal recourse that being so, the only conclusion which can be arrived at is that the defendant no. 1, after being dispossessed from the suit premises, entered the same on 30.08.02 as alleged by the plaintiff. It is not the case of the plaintiff that the defendant no. 1 had ever surrendered the tenancy rights in respect of the suit premises or that his tenancy was ever terminated by the plaintiff. Thus, the defendant no. 1 continuous to be a tenant in respect of the suit premises and his right of being a tenant in respect of the suit premises was never extinguished. If so, it cannot at all be said that the defendant no. 1 illegally entered into the premises on 30.08.02. The above issues are accordingly decided in favour of the defendant no. 1 and against the plaintiff.
ISSUE NO. 4
"4. Whether the suit is barred U/s 50 of the DRC Act, 1988? OP Defendant no. 1."
I have already come to the conclusion that the defendant no. 1 is a tenant in respect of the suit premises. It is nobody's case that the rate of rent of the suit premises was more than Rs. 3500/- per month at any point of time. Thus, the suit for possession filed by the plaintiff is hit by provisions of Section 50 of the DRC Act and accordingly, the present issue is decided in favour of the defendant no. 1 and against the plaintiff.
ISSUE NO. 5
"5. Whether the plaintiff is entitled to decree of possession? OPP"15
Since the defendant no. 1 is a tenant in respect of the suit premises and the plaintiff has failed to show that the defendant no. 1 has illegally and forcibly tress passed into the suit premises or that the tenancy of the defendant no. 1 has been terminated in accordance with law. The plaintiff is not entitled to the decree of possession as sought for. The above issue is accordingly decided in favour of the defendant no. 1 and against the plaintiff.
RELIEF In the light of the above findings, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SMITA GARG) TODAY ON 23.03.07 CIVIL JUDGE : DELHI TYPED (1 + 1)