Delhi District Court
Chhaju Ram vs Ramesh Kr on 30 May, 2024
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-
CUM- ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
PRESIDED OVER BY: MS. MEDHA ARYA
Suit No.: CS SCJ 95932/2016
CNR No.: DLCT03-000063-1996
IN THE MATTER OF :
Chajju Ram (Deceased Plaintiff)
LRs of Plaintiff:
1. Sat Narain (Deceased)
S/o Late Sh. Chajju Ram,
LRs of Sat Narain:
(i) Krishna (Widow)
(ii) Kamal Kumar Sharma (Son)
(iii) Pawan Kumar Shamr (Son)
(iv) Lalit Kumar Sharma (Son)
All R/o H. No. 3, Gali No. 1,
Namburdar Colony, Near Indian
Petrol Pump, Vill. Sehat Pur,
Distt. Faridabad, Haryana-121003.
2. Ram Kishan Sharma
S/o Late Sh. Chajju Ram,
R/o 460, Haveli Haider Quli,
Fateh Puri, Delhi-110006.
3. Kailash Chand Sharma
S/o Late Sh. Chajju Ram,
4. Ram Chander Sharma
S/o Late Sh. Chajju Ram,
5. Mahesh Sharma
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 1/28
S/o Late Sh. Chajju Ram,
All R/o 5657, Gali Raja Kedar Nath,
Chawri Bazar, Delhi-110006.
...Plaintiffs
Versus
1. Ramesh Kumar
S/o Late Gajanand Aggarwal,
R/o 111, Mangalam Apartments,
Begum Pura, Surat, Guajarat.
2. Moti Ram
S/o Late Gajanand Aggarwal,
GPA of Ramesh Kumar
R/o 1629,Old Katra Marwari,
Nai Sarak, Delhi-110006.
3. Tulsi Ram
S/o Late Sh. Gharshi Ram,
R/o 1092, Kucha Natwa,
Chandni Chowk, Delhi-110006.
...Defendants
Date of institution : 20.12.1996
Date of judgment when reserved : 28.05.2024
Date of pronouncing judgment : 30.05.2024
SUIT FOR DECLARATION, PERMANENT AND
MANDATORY INJUNCTION
JUDGMENT:
1. Plaintiff claims to be the co-tenant of shop no. 1628, Old Katra Marwadi, Nai Sarak, Delhi, and has filed a suit against defendant no. 1, Sh. Ramesh Kumar @ Malu Ram, being the landlord / owner of the premises, Sh. Moti Ram (AR of defendant no.1), and Sh. Tulsi Ram, his own brother. It is the CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 2/28 case of plaintiff that Sh. Tulsi Ram is the other co-tenant in the premises. The premises shall be referred to as the "suit property"
henceforth.
2. Suit averments are to the effect Sh. Gharsi Ram, father of plaintiff and defendant no.1, was originally inducted as a tenant in the suit property, and started to run his business therefrom under the name and style of ''M/s. Gharsi Ram Tulsi Ram'. At that time, the suit property was owned by Seth Jamna Dass. It is averred that post the death of Sh. Gharsi Ram in the year 1965, plaintiff and defendant no. 3 both inherited tenancy rights in the suit premises, and as co-tenants continued to carry on the business of the concern under the name and style ''M/s. Gharsi Ram Tulsi Ram'.
3. Meanwhile, the ownership of the suit property changed hands. Consequent to an inter-se partition between his predecessors in interest, the suit property was conveyed to Sh. Gajanand S/o of Sh. Devi Sahai, and he in turn, transferred it to one Sh. Gulab Bai W/o Sh. Bhura Lal. It is pleaded that the latter two, when they were owners of suit property, had both filed petitions against plaintiff and defendant no. 3 jointly, also impleading 'M/s. Gharsi Ram Tulsi Ram' as a party therein, before the relevant authority under the Slum Areas (Improvement and Clearance) Act, 1956, thus recognizing both the plaintiff and defendant no. 3 as co-tenants in the suit property. Thereafter, the suit property was conveyed to defendant no. 1/Ramesh Kumar @ Malu Ram, who also started receiving rent from plaintiff and CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 3/28 defendant no. 3 against rent receipts, counterfoils of which used to be signed by either of the two from time to time.
4. It is averred that plaintiff and defendant no. 3 executed a partnership deed for running their business from the suit property on 07.02.1977. Thereafter, on 01.02.1986, another partnership deed was executed between them whereby both of the parties inducted their sons as partners in the said business as well. The said partnership was ultimately dissolved on 31.03.1989, and in the dissolution deed, it was decided that plaintiff and defendant no. 3, being old tenants in suit property, shall continue to carry on their respective business therefrom by partitioning the same with a wooden partition, and shall pay the rent in equal shares to the landlord. It is the case of the plaintiff that thenceforth, both the parties started carrying on their respective businesses from their own portions of the suit property , which fact was well within the knowledge of defendant no. 1 and 2 as well. Subsequently, relationship between the two deteriorated, and defendant no. 3 filed a civil suit for possession as well as for injunction against the plaintiff, being civil suit no. 459/93, during the proceedings of which suit plaintiff herein impugned the order of the Court disposing of application for interim injunction. Ld. Appellate Court held the plaintiff to be a lawful co-tenant in the premises, and injuncted both the parties from parting with the possession of their respective portions to any person until the final disposal of the suit. However, the said suit was then collusively withdrawn by defendant no. 3, after defendant no. 1 and 2 were also impleaded as parties therein. Furthermore, defendant no. 1 had also filed a suit of mandatory injunction against plaintiff and CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 4/28 defendant no. 3, which was also collusively withdrawn by defendant no. 1( plaintiff in that suit) on the basis of a false settlement deed entered into between him and defendant no. 3 herein. It is averred that it was falsely stated that parties have entered a compromise, in pursuance to which the physical possession of the suit property has been delivered to defendant no. 1 by defendant no. 3 herein, despite the fact that possession of the suit property was never handed over to him.
5. It is the case of plaintiff that the suit property is locked with four locks, two out of them belonging to the plaintiff and defendant no. 3 each. It is averred that as per the mutual arrangement of the parties, neither the plaintiff nor defendant no. 3 can open the shop individually and as such, it was impossible for defendant no. 3 to hand over the possession of the entire shop to defendant no. 1 without the consent of the plaintiff. It is averred that on 18.12.1996, defendant no. 2, acting as the representative of defendant no. 1, threatened to dispossess the plaintiff out of the suit property . In the backdrop of the chequered litigation history between the parties and the threat received by the plaintiff, the plaintiff was constrained to file the instant suit, wherein he sought the following reliefs:-
"(a) That a decree of declaration may please be passed in favour of the plaintiff and against the defendants declaring the plaintiff as a lawful joint tenant in respect of the shop no. 1628, Old Katra Marwadi, Nai Sarak, Delhi.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 5/28
(b) That a decree for permanent injunction may also be passed in favour of the plaintiff and against the defendants restraining the defendants from breaking the lock of the plaintiff from the shop bearing no. 1628, Old Katra Marwadi, Nai Sarak, Delhi more specifically shown in the site plan attached alongwith the plaint/suit.
(c) That a decree for mandatory injunction may please be passed in favour of the plaintiff and against the defendant directing the defendants to open their locks and to allow the plaintiff to carry on his business as agreed vide Dissolution Deed dated 31.03.1989.
(d) That a decree for injunction may also be passed in favour of the plaintiff and against the defendant no.3 not to hand over the possession of his portion to any third person.
(e) Cost of the suit may also be passed in favour of the plaintiff and against the defendants."
6. Summons for settlement of issues were issued to all the three defendants. Only defendants no. 1 and 2 entered appearance in pursuance thereof.
7. A common written statement came to be filed by defendants no. 1 and 2. In the written statement, they took certain preliminary objections. It is stated that plaint lacks any cause of action against the answering defendants, that it has not been valued properly for the purpose of jurisdiction and court fee, and CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 6/28 that this Court lacks the pecuniary jurisdiction to try the suit. The suit has been resisted by answering defendants on merits as well. They have stated that 'M/s. Gharsi Ram Tulsi Ram' is a sole proprietorship concern, and it is only its sole proprietor, Sh. Tulsi Ram/defendant no. 3, who was a tenant in the suit property. It is averred that plaintiff was never inducted as a tenant therein. It is further stated that defendant no. 1 had also filed a suit bearing no. 13961/1993 against Tulsi Ram, etc. pertaining to the suit property itself, but the suit was later compromised, consequent to the statement of the AR of Sh. Tulsi Ram, who confirmed on oath that possession of the suit property has been surrendered by defendant no. 3 to defendant no. 1. It is stated that if the plaintiff had any grievance against the said order, he ought to have impugned the order in appeal proceedings, which he chose to not do. It is stated that the instant suit in the present form is not maintainable.
8. Answering defendants have also adverted to the suit bearing no. 459 / 1993 Gharsi Ram Tulsiram Vs. Chajju Ram. They have stated that the suit was collusively filed by the parties thereto, and by playing fraud upon the court, the plaintiff succeeded in obtaining an order for inspection of the suit property by a local commissioner. The answering defendants have stated that during the proceedings of that suit as well, even Tulsi Ram/defendant no. 3 denied status of plaintiff as a co- tenant in the suit property.
9. The answering defendants have asserted that plaintiff has never been a tenant in the suit property, and has never been CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 7/28 recognized as such. It is stated that Late Sh. Gharsi Ram was survived by his widow, two sons and three daughters. It is stated that at the time of death of Sh. Gharsi Ram, commercial tenancy was not heritable, and all the legal heirs had impliedly surrendered their rights in the property upon which Sh. Tulsi Ram, the eldest male member of the family, as the sole proprietor of the concern 'M/s. Gharsi Ram Tulsi Ram', became the sole tenant in the suit property. It is stated that plaintiff is neither in possession of the suit property, nor is the joint tenant therein.
10. In terms of Order 8 Rule 6A (1) CPC, answering defendants have also claimed that since 17.12.1996, plaintiff is illegally obstructing them from using the suit property and running their business therefrom, and hence, is liable to pay them damages @ Rs.5,000/- per day. It is stated that even as per income tax returns filed by defendants, rent with respect to the premises was always paid by the firm 'M/s. Gharsi Ram Tulsi Ram, and the plaintiff never obtained any rent receipt with respect to the same in his own name. It is stated that the suit is barred under Section 41 (h) of the Specific Relief Act, and also on the ground of limitation. It is contended that no cause of action for the relief of permanent injunction has been disclosed in the plaint qua defendant no.1. Lastly, it is contended that plaintiff never acquired any legal character from defendant no. 1, and is therefore not entitled to any declaration in his favour. It is averred that plaintiff cannot foist a contract of tenancy upon defendant no. 1, and is a rank trespasser in the suit property. It is asserted that defendants are in possession of the property, and the contention of the plaintiff that the lock can be opened only by CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 8/28 him and defendant no. 3 jointly has also been specifically denied. It is stated that the plaintiff is clandestinely seeking the relief of possession of the suit property, for which purpose he ought to have valued the suit at the market value of the suit property. It is stated that on account of improper valuation, as well as on merits, the suit of the plaintiff deserves to be dismissed, and the counterclaim filed by defendant no. 1 merits to be decreed. Defendants have also sought a compensatory cost of Rs.10,000/- from the plaintiff.
11. Despite service of summons, defendant no.3 never entered appearance before the court. His defence was struck off, and it was directed that case shall proceed ex-parte qua him. During the pendency of the proceedings, it came on record that defendant no. 3 has expired. His legal heirs were duly impleaded, but they also never entered an appearance before the court. As such, the proceedings remained ex-parte qua them as well.
12. In replication filed to the written statement of defendants no. 1 and 2, plaintiff stated that not only is he the co-tenant in the suit property, but defendants have been receiving rent from him from time to time, which was sometimes paid by him through money orders as well. It is re-asserted that partnership deed dated 07.02.1977 and 01.02.1986 both are testament to the fact that plaintiff is a co-tenant in the suit property, as is the dissolution deed dated 31.03.1989. It has further been reasserted that the previous land owners / landlords of the premises had also admitted the plaintiff to be the co-tenant in the premises. It has been averred that defendant no. 3 never surrendered the CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 9/28 possession of plaintiff's portion of the suit property, and it has been reiterated that plaintiff is in constructive possession of his portion even till date. It has been denied that the suit lacks cause of action against defendant no. 1, and it has been reiterated that defendant no. 2 had threatened plaintiff with dispossession as the AR of defendant no. 1. Claim of defendants for damages has been denied by the plaintiff. It is stated that if it is the case of defendant no. 1 that plaintiff is not in possession of the property, his claim for damages is outrightly absurd. It is further that plaintiff is infact in possession of the premises, but even he is not in a position to enter the same without defendant no. 3 opening his two locks on the door of the premises and as such, it is the plaintiff who is liable to seek damages from the defendants for the wrongful loss caused to him. It has also been averred that even the local commissioner appointed by the Court during subsistence of proceedings of civil suit no. 459/93 had also come to the conclusion that plaintiff's locks are affixed on the doors of the premises. Contents of written statement have been denied and those of the plaint have been reaffirmed.
13. On the basis of the pleadings, following issues were settled for adjudication vide order dated 27.10.2006:
(i) Whether this court has no pecuniary jurisdiction to entertain this suit? OPD.
(ii) Whether the plaintiff is entitled to decree of permanent injunction? OPP.
(iii) Whether the plaintiff is entitled to decree of mandatory injunction? OPP.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 10/28
(iv) Whether the plaintiff is entitled to decree of declaration? OPP.
(v) Relief.
14. After settlement of issues, proceedings progressed to the stage of recording of PE.
15. At the stage of PE, plaintiff took the witness stand as PW-1.
In his examination-in-chief, plaintiff tendered his evidence affidavit Ex.PW-1/A. The contents thereof are not being repeated herein in the interest of brevity, the same being a reiteration of the contents of the plaint. In his examination-in-chief, he also relied upon the following documents:
(i) Ex.PW-1/1 being the site plan.
(ii) Ex.PW-1/2 being the certified copy of petition no.
4665/66.
(iii) Ex.PW-1/3 being the certified copy of WS by plaintiff and Tulsi Ram.
(iv) Ex.PW-1/4 being the certified copy of the statement of Sh.
Hari Shanker, Advocate.
(v) Ex.PW-1/5 being the certified copy of original notice dated 29.03.1966 in the decided filed being case no. 08/02.
(vi) Ex.PW-1/6 being the certified copy of the petition titled
Ramesh Kumar Vs. Gharsi Ram Tulsi Ram, DoD
13.05.1997.
(vii) Ex.PW-1/7 being the certified copy of vakalatnama filed by Moti Ram.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 11/28
(viii) Ex.PW-1/8 being the certified copy of affidavit dated 07.301.1977 in the decided file of case no. 5521/75 of Slum Authority.
(ix) Ex.PW-1/9 being the certified copy of the plan.
(x) Ex.PW-1/10 being the certified copy of the Partnership Deed.
(xi) Ex.PW-1/11 being the certified copy of Form A in the case no. 08/02.
(xii) Ex.PW-1/12 being the certified copy of dissolution deed.
(xiii) Ex.PW-1/13 being the certified copy of plan annexed with dissolution deed.
(xiv) Ex.PW-1/14 being the certified copy of receipt issued by Janman Dass.
(xv) Ex.PW-1/15 being the original income tax assessment for the year 1952-53 in the name of 'M/s. Gharsi Ram Tulsi Ram'.
(xvi) Ex.PW-1/16 being the original assessment order of sales tax for the year 1957-58, (xvii) Ex.PW-1/17 being the certified copy of the statement. (xviii)Ex.PW-1/18 being the original rent receipt issued by Smt. Gulab Bai dated 24.01.1970.
(xix) Ex.PW-1/19 and Ex.PW-1/20 being the original money or der receipt of the rent sent to Smt. Gulab Bai by the plain tiff.
(xx) Ex.PW-1/21 being the certified copy of the order in MCA no. 348/94 dated 12.12.1995, (xxi) Ex.PW-1/22 being the copy of the complaint dated 17.12.1996 made to SHO, PS: Town Hall, Chandni Chowk.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 12/28 (xxii) Ex.PW-1/23 (Colly.) being the certified copies of report of Local Commissioner dated 06.01.1997 alongwith proceed ings, notice, etc. (xxiii)Ex.PW-1/24 being the certified copy of case titled Gulab Bai Vs. Gharsi Ram Tulsi Ram bearing no. 5521/75. (xxiv)Ex.PW-1/25 being the certified copy of WS filed in the said suit by Tulsi Ram.
He was duly cross-examined at length before being discharged.
16. PW-2 Yogesh Kumar, UDC, Competent Authority (Slum), Tis Hazari Courts brought on record the original file no. ECN 4665 / 66 titled Gajanand Vs. Gharsi Ram Tulsi Ram decided on 17.09.1968. The certified copy of the same was exhibited as Ex.PW-2/1 to Ex.PW-2/4. He also brought on record the original file no. ECN 5521 / 1975 decided on 26.09.1977 titled as Gulab Bai Vs. Gharsi Ram Tulsi Ram. The certified copy of the aforesaid petition was exhibited as Ex.PW-2/5 and the WS was exhibited as Ex.PW-2/6.
The witness was duly cross-examined before being discharged.
17. No other witnesses were examined by the plaintiff, and PE stood closed. Proceedings next progressed to the stage of recording of DE. Pertinently, plaintiff expired after his testimony was recorded, and it is his legal heirs who are now carrying on with suit proceedings.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 13/28
18. At the stage of DE, defendant no. 2 took the witness stand as D-2/W-1. In his examination-in-chief, he relied upon his evidence affidavit Ex.D-2/W-1/A. Therein, along the lines of the pleadings, he stated that Sh. Tulsi Ram has been the sole tenant in the suit property ever since the death of Sh. Gharsi Ram, and no other legal heirs of Sh. Gharsi Ram, i.e. his widow or three other daughters or the plaintiff ever inherited any tenancy rights therein. He also deposed that since the plaintiff died on 31.01.2009, cause of action does not survive in favour of his legal heirs. He testified that this is moreso in view of the fact that despite the impleadment of legal heirs of plaintiff as well as defendant no. 3 to the suit, no amendment to the prayer clause in the plaint was ever sought by the LRs of plaintiff.
The witness was duly cross-examined before being discharged.
19. No other witnesses were examined by the defendants, and DE was closed.
20. The matter then progressed to the stage of final arguments. Final arguments have been heard at length. Record of the case has been meticulously perused. Considered.
21. My issue-wise findings are as here under:
22. Issue No.(iv) Whether the plaintiff is entitled to the relief of declaration, as prayed for? OPP.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 14/28 Onus to prove this issue was placed upon the plaintiff. It is a well settled position of law that relationship between landlord and tenant is a jural relationship, and corresponding legal rights vest in both of them. As such, tenancy is a legal character of which declaration can be sought. To this extent, case of the plaintiff has not been disputed by the defendants. They have merely said that plaintiff never assumed the character of a tenant, and as such is not entitled to relief of declaration as sought. This is the substratum of the defense of the defendants no. 1 and 2, who claim that it was only defendant no. 3 who was recognized by them as a tenant in suit property upon the death of Sh. Gharsi Ram, and the plaintiff or other legal heirs of Late Sh. Gharsi Ram never acquired any rights of tenancy therein. As defendants have denied the legal character of plaintiff as a tenant with respect to the suit premises, there exists a cause of action in favour of the plaintiff to seek the relief of declaration. There is a legal right or character that he considers himself entitled to, which has been denied by the defendants. The cause of action survives qua LRs of plaintiff as well, since his rights as a tenant in the suit property, if any, are heritable in nature.
23. Now, even defendants no. 1 and 2 have conceded that the tenancy in the suit premises was originally that of Gharsi Ram who was running his proprietorship concern ''M/s. Gharsi Ram Tulsi Ram' therefrom. Defendants have stated that after the demise of Sh. Gharsi Ram, the tenancy devolved upon the eldest member of the family, being defendant no. 3 only, stating that at that time, tenancy with respect to commercial purposes was not heritable, and the legal position changed only upon the CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 15/28 pronouncement of the Hon'ble Supreme Court of India in the seminal judgment titled Gian Devi Vs. Jiwan Kumar & Ors, 17(1980) DLT 197. The inherent fallacy in the contention is that pronouncement of the Hon'ble Supreme Court can not be considered as laying down a new law, but merely as declaratory of the law as it had always been. So to say, tenancy qua commercial premises was always heritable even with respect to premises where Rent control legislation applies, and this was clarified in the aforesaid judgment of the Hon'ble Apex Court accordingly. As such, upon the death of Sh. Gharsi Ram, by the operation of law, the tenancy devolved upon all of his legal heirs. The fact that the widow or other three daughters of Sh. Gharsi Ram are not staking any claim to the tenancy is not in question right now. Even with the case of the defendant being accepted to the extent that Sh. Gharsi Ram was the sole tenant in the premises, it would follow that by operation of law upon his demise, the tenancy devolved upon the plaintiff as much as it devolved upon defendant no. 3.
24. Position of law being clear, the factual matrix of the case shall now be delved into. For examining if the plaintiff has been able to establish his right as a tenant in the suit property, certain documents at first may be adverted to:
(a) Partnership Deed Ex.PW-1/9 dated 07.02.1977 executed between Tusli Ram S/o Sh. Gharsi Ram, being defendant no. 3 and Chhajju Ram S/o Late Sh. Gharsi Ram, being the plaintiff.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 16/28
(b) Partnership Deed dated 01.02.1986 executed between Tulsi Ram S/o Late Sh. Gharsi Ram, defendant no. 3, Chhajju Ram S/o Late Sh. Gharsi Ram, the plaintiff, Sh. Ram Krishan S/o Sh.
Chhajju Ram and Sh. Ramesh Chand S/o Sh. Tusli Ram, Ex.PW- 1/10.
(c) The Deed of Dissolution of Partnership dated 31.03.1989 Ex.PW-1/12 again executed between the aforesaid Tulsi Ram, Chhajju Ram, Ram Kishan and Ramesh Chand.
In all of these documents, a common thread of the recitals is that Tulsi Ram and Chajju Ram are old tenants in the suit property. The recitals in these documents make it abundantly clear that it was acknowledged by even defendant no. 3 that the plaintiff is a co-tenant in the suit property. Defendants no. 1 and 2 have stated that the plaintiff as well as other legal heirs of Sh. Gharsi Ram had impliedly surrendered their tenancy upon the death of Sh. Gharsi Ram, and the tenancy was continued by defendant no. 3 only. The documents mentioned herein above show to the contrary.
25. Defendant no.3 has not entered appearance, and can be presumed to have admitted the veracity of these documents. Furthermore, defendants no.1 and 2 have neither contended nor led any evidence to the effect that the said documents are forged. In fact, their only defence is, as culled out from their cross examination, that they were not made aware of execution of such partnership deeds or dissolution thereof. This in no way impinges on the veracity of the documents. These documents created inter-
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 17/28 se between plaintiff and defendant no. 3 may not affect the rights of defendants no. 1 and 2, but atleast evidence the fact that plaintiff had been in occupation of part of suit property.
26. It is a matter of record that the said documents have always been in the knowledge of the defendants. Despite the chequered history of litigation between the parties, specifically the withdrawal of the suit as aforementioned, when D2/W1 was asked if Tulsi Ram and Chajju Ram had entered into a partnership to carry on the suit, he satisfied himself by only saying that he is not aware if such a partnership was entered into between the partners. Vague answer as this also leads to the inference that not only such a partnership was being carried out by Tulsi Ram and Chajju Ram from the suit property, but the fact that even the defendants were aware of the same.
27. Other circumstances also show that defendants were aware of the fact that plaintiff was in possession of part of suit property. Suit no. 1996/96 titled 'Ramesh Kumar @ Malu Ram Vs. Sh. Tulsi Ram Prop. of M/s. Gharsi Ram Tulsi Ram and Sh. Chajju Ram S/o late Sh. Gharsi Ram' for mandatory and permanent injunction was filed by defendant no. 1 stating that it is defendant no. 1 who is in occupation of part of the suit property, and defendant no. 2 is in occupation of remaining portion of the property. In that suit, the record of which forms a part of this case as well (Ex.D2W1/P2), it was asserted by the defendant no. 1 that plaintiff and defendant no. 3 have both partitioned the suit property and the plaintiff has been running his business from one portion of the same. Although the version of defendant no. 1 in CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 18/28 the said suit was that the property had been illegally tenanted out by defendant no. 3 therein, the averment as contained in the plaint filed in that suit atleast can be considered to contain an admission of defendant no. 1 that plaintiff was in possession of part of the property at the relevant time. It was never explained when this position was altered, and possession was handed over to defendant Tulsi Ram by plaintiff Chajju Ram.
28. It is also a matter of record that another suit for injunction was filed by defendant no. 3 against the plaintiff herein. D-2/W-1 pleaded ignorance as to his knowledge of the said suit instituted in the year 1996 as well, until the judgment passed in the suit dated 23.04.2019 (Ex.D2/W1/P1), and that passed in the suit titled Ramesh Kumar Vs. Tulsi Ram and Anr. (Ex.DW2/W1/P2) were put to him. At that stage, he admitted that defendant no. 1 had filed an application for his impleadment in the said suit. He also admitted that plaintiff was not present in the court when both the aforesaid suits were withdrawn. These facts also make it abundantly clear that the defendants had always known that part of the suit property is in the possession of the plaintiff, who is claiming his rights as a co-tenant therein.
29. The record of slum petition filed by the previous owners of the suit property against the plaintiff and defendant no. 3 jointly were also brought on record. When their certified copies were exhibited as Ex.PW2/1 to Ex.PW2/6, they were objected to by Ld. Counsel for defendants no. 1 and 2 for mode of proof on the ground that the witness which had brought the documents to the court had not prepared the certified copies or had not compared CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 19/28 the same with the copies present in court. In the considered opinion of this, Court such an objection is frivolous. The witness who had produced the documents in court was not required to be the same person who had prepared the certified copies of the documents. The objections raised by the defendants are meritless. The record of the slum petitions also show that the predecessors in interest of defendant no. 1 had also admitted that both plaintiff and defendant no. 3 were co-tenants in the suit property. Defendant no. 1 could not have altered that status unilaterally.
30. Despite being in the know of the possession of plaintiff over the portion of the suit property, defendant no. 1 withdrew the suit no. 1996/96 upon the statement of defendant no. 3, made through his attorney, that the possession of the entire property has been surrendered to him by defendant no. 3 solely. No explanation was even attempted of how possession was transferred by plaintiff Chajju Ram to defendant Tulsi Ram, or when. This fact itself shows that there was some collusion between defendant no. 1 and defendant no. 3 leading to the withdrawal of that suit by defendant no.1.
31. It is a well settled position of law that tenancy is heritable. Where tenancy is inherited by the LRs of the deceased tenant, they inherit as tenants in common inter-se, but they are to be considered as joint tenants qua the landlord (Sh. Harish Tandon Vs. The Additional District Magistrate, Allahabad U.P. and Ors. 1995 AIR SC 676). Partition of tenancy rights can also take place between joint tenants, tenancy being partible in nature. Even though a partition between joint tenants may not be considered to CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 20/28 be binding upon the landlord if the same takes place without his consent, as is contended to be the case at hand, one of the joint tenants of the property could not have surrendered the tenancy clandestinely, behind the back of the other joint tenant. Reliance at this juncture can be placed upon the judgment of the Hon'ble High Court of Allahabad titled LD Sindhi Vs. GP Sen dated 09.12.2021 SA No. 1718/1988. In view of the same, it can safely be concluded that even if defendant no. 3 surrendered his tenancy rights in favour of defendant no. 1, the same could not bind the plaintiff.
32. With the aforesaid in mind, the cross-examination of plaintiff may now be adverted to. In his cross-examination, plaintiff admitted that there is no partition wall constructed in the suit property, and clarified that he and defendant no. 3 had kept a wooden almirah in the place of the partition wall, so as to temporarily create a partition between their respective portions of the property. This portion of testimony of PW-1 was not assailed by the defendants, even by way of a contrary suggestion. Further, it is seen that suggestions were given to the plaintiff that neither the intimation of partnership vide Ex.PW1/10 was given to the landlord, nor of the dissolution of the partnership deed Ex.PW- 1/12. The fact that suggestions on the basis of these documents were given to the plaintiff to the effect that the firm was dissolved as per partnership deed Ex.PW-1/12 shows that the defendants have accepted the recitals of the documents. These documents clearly show that the plaintiff was the co-tenant in the suit property. In view of the same, merely an admission of PW-1 that he cannot produce record regarding payment of rent paid by CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 21/28 him to the defendant no. 1, or the fact that receipt Ex.PW-1/D1 was issued by defendant no. 1 in the name of the firm 'M/s. Gharsi Ram Tulsi Ram' on 16.01.1983 does not discredit the case of the plaintiff. From the above, it is amply clear that the plaintiff has been able to establish on the scale preponderance of probabilities that he had always been occupying the suit property as a joint tenant with defendant no. 3.
33. Defendant no. 2 Malu Ram would have been the best witness of the case that some point of time, he got the vacant possession of the entire property. However, he never took the witness stand. An adverse inference can be drawn from this circumstance also.
34. There is another aspect to the matter. In the WS as well as in the evidence affidavit, D2W1/A which has been drafted on the lines of the WS, defendants have put forth the case that the plaintiff has been obstructing their use and possession of the suit property, and therefore is liable to pay them damages @ Rs.5,000/- per day. No seriousness was shown by the defendants in establishing this counter claim. Infact, the case of the defendants that the plaintiff has been obstructing their possession over the suit property also implies an admission of the fact that it is the plaintiff who is in the joint possession of the property alongwith defendant no. 3.
35. Totality of facts indicates that plaintiff is in joint possession of the suit property till date. As such therefore, he was not required to seek any further relief of possession.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 22/28
36. It is seen that plaintiff was the joint tenant in the property. His character being denied by defendants during his lifetime, it is imperative to declare in terms of Order 7 Rule 7 CPC that he was a joint tenant in the property during his lifetime, and the tenancy rights accordingly devolved upon his LRs as well. The issue is accordingly decided in favour of LRs of plaintiff and against the defendants.
37. Issue No. II.
Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP.
Onus to prove this issue was placed upon the plaintiff. Plaintiff's case is that as a co tenant, the arrangement that he had with defendant no. 3 was that four locks were put on the door of the suit property, and the locks could not be opened by either of them without the help of the other. It is the case of plaintiff that as such, he has been in joint possession of suit property alongwith defendant no. 3. As defendant no. 3 or his LRs neither appeared or contest the case of plaintiff, they can be deemed to have been admitted this version of the plaintiff. As regards defendants no. 1 and 2, it is seen that they have also not been able to discredit the case of the plaintiff. During the cross- examination of plaintiff / PW-1, the latter testified that there are four locks on the door of the suit property. To this, only a suggestion was given to him that neither of the locks belong to defendant no. 2. No attempt was made to discredit the version of the plaintiff that neither of the locks belong to him, nor was he asked to produce the keys of any of these locks. Furthermore CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 23/28 during cross-examination, D2/W1 also admitted that there are four locks on the door of the suit property, and failed to categorically avouch on oath that any of the said locks belong to him. Defendant no. 1 also failed to testify on oath that the locks belong to him, and that suit property is in his custody.
38. As discussed in the foregoing portions of this judgment, plaintiff has been able to show his possession over the suit property. Now, it is averred in the WS that the plaint only contains an averment that defendant no. 2 had tried to dispossess the plaintiff from the suit property and as such for the relief of permanent injunction, the same does not disclose a cause of action against defendant no. 1. This argument of the defendants is liable to be repelled. Careful perusal of the plaint reveals itself that it is the version of plaintiff that defendant no. 2 had threatened to dispossess him from the suit property at the instance of defendant no. 1, acting as his agent. As such, it cannot be said that there is no cause of action in the suit qua the relief of permanent injunction as against defendant no. 1. The very fact that both the defendants have been contesting this suit for around three decades itself shows that there is such a threat of dispossession.
39. For the relief of permanent injunction, plaintiff is required to show:
(a) His settled possession in the suit property;
(b) Threat of dispossession therefrom.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 24/28
40. In the case at hand, on the basis of evidence produced, both the possession of the plaintiff during his lifetime and now of his legal heirs over the suit property stands established, as well as the threat of dispossession emanating from defendants no. 1 and 2 stands established. As such, LRs of plaintiff are entitled to relief of permanent injunction in their favour. It was contended by defendants that such a relief cannot be granted to the LRs of plaintiff since the suit was never amended by them after the death of the plaintiff. In the considered opinion of this Court, this argument of the defendants is farcical, if not absurd. The relief sought by the plaintiff was of injunction against dispossession from his settled possession over the suit property. Since tenancy is heritable in nature, his heirs stepped into his shoes upon his demise, and can be presumed to be continuing in possession in his stead. As such, the LRs of plaintiff were not required to amend the suit upon the demise of the plaintiff. Moreover, Order 7 Rule 7 CPC provides for moulding of relief, and relief in the case can be moulded to take into account the changed circumstances of the suit. The possession of LRs of plaintiff can be protected.
41. This issue is accordingly decided in favour of LRs of plaintiff and against the defendants.
42. Issue No III:
Whether the plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP.
Following facts have been proved:
(a) Plaintiff was a joint tenant in the suit property;
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 25/28
(b) That his portion of the tenancy could not be surrendered by defendant no. 3;
(c) That his possession over the suit property continued until his death, and after his death, his LRs are in possession of the property.
(d) That they cannot have access to the suit property until LRs of defendant no.3 are directed to remove their locks from the suit property as well.
(e) That within three years of filing of the suit, defendant no. 3 had obstructed ingress and egress of plaintiff to the suit property
43. In the considered opinion of this Court, all the ingredients for the relief of mandatory injunction have also been satisfied by the plaintiff. As such, the LRs of plaintiff are entitled to a decree mandatory injunction, as prayed for. This issue is accordingly decided in their favour and against the defendants.
44. Issue No. I. Whether this court has no pecuniary jurisdiction to entertain this suit? OPD.
The defendants had taken the case that the plaintiff is not actually in possession of the suit property. However, as discussed above, it has been established that during his lifetime, it was the plaintiff who was in joint possession of the suit property, and after his death, it is his LRs who are in possession over the same. Since, plaintiff is not seeking any relief of possession from the court, but merely that of permanent injunction and mandatory injunction besides the relief of declaration of his legal character, he was not required to value the suit on the basis of market value CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 26/28 of the suit property. As such, this court is of the considered opinion that it does not lack the pecuniary jurisdiction to try the suit, and the suit has been property valued for the relief as sought by the plaintiff. This issue is accordingly decided in favour of the LRs of the plaintiff and against the defendants.
45. RELIEF:
In view of the aforesaid discussion, the suit of the plaintiff is decreed and the LRs of plaintiff are held entitled to:
(a) Relief of declaration that they are all the joint tenants with respect to shop no. 1628, Old Katra Marwari, Nai Sarak, Delhi.
(b) Defendants no. 1 and 2 and LRs of defendant no. 3 are injuncted from breaking open the locks of LRs of plaintiff affixed on suit property or to dispossess the LRs of the plaintiff from the suit property being shop bearing no. 1628, Old Katra Marwari, Nai Sarak, Delhi as shown in the site plan filed with the suit.
(c) LRs of defendant no. 3 are directed to open the two locks on the doors of the suit property, the keys of which are in their possession and to allow the LRs of plaintiff to carry on their business therefrom. If keys are in possession of defendants no. 1 and 2, they are to so open the locks.
(d) LRs of defendant no. 3 are permanently injuncted from handing over the possession of the portion of LRs of the plaintiff in the suit property to any third person.
CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 27/28 Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by Medha Arya Medha Date:
Arya 2024.05.31
17:19:33
+0530
Announced in the open court (MEDHA ARYA)
on 30.05.2024 Administrative Civil Judge -cum-
(This judgment contains Additional Rent Controller (Central) 28 pages in total) Delhi/30.05.2024 CS No. 95932/16 Chajju Ram vs. Ramesh Kumar & Ors. 28/28