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Delhi District Court

Daya Nand vs . Manjit Kaur & Ors. on 25 September, 2014

                                                   Daya Nand Vs. Manjit Kaur & Ors.
                                                                     CS No.255/11
                                   1

  IN THE COURT OF SH. MANISH KHURANA: JSCC­CUM­ASCJ­CUM 
                       GDN. JUDGE: 
                   ROHINI COURTS: DELHI
                      Suit No. 255/11


Mr. Daya Nand 
S/o Late Sh. Hari Singh
R/o J­I/59, Wazir Pur, 
J.J. Colony, New Delhi.                           ................. Plaintiff
                          
                                Versus  
1. Mrs. Manjit Kaur
W/o Late Sh. Avinash Singh
2. Mr. Sonu Singh
S/o Late Sh. Avinash Singh
3. Mr. Monu Singh
S/o Late Sh. Avinash Singh
4. Wife of Sh. Monu Singh
(Name not known)
All R/o C­171, Sector­25
Rohini, New Delhi
5. Mr. Ishak @ Chhotu
S/o Sukhu Khan
R/o A­231, Sector­25,
Rohini, New Delhi.
                                                          .............Defendants

                             DATE OF INSTITUTION:  03.10.2011

                             DATE OF DECISION:   25.09.2014
                                                            Daya Nand Vs. Manjit Kaur & Ors.
                                                                             CS No.255/11
                                             2

         SUIT FOR RECOVERY OF POSSESSION, MESNE PROFIT 

                                  AND INJUNCTION. 

JUDGMENT :

1. Vide this judgment I proceed to decide the suit for recovery of possession, injunction and damages/mesne profit filed by the plaintiff. Through this suit it has been prayed that a decree of recovery of possession of suit property i.e. C­171, Sector­25, Rohini, Delhi alongwith the decree of damages/mesne profits @ Rs. 99,500/­ in respect of the suit property since year 2008 till its realisation may be passed in favour of the plaintiff and against the defendants.

2. As per the case of the plaintiff, he is the owner of the abovesaid property and has been in possession of the first floor portion of the property. It is further alleged that defendants have trespassed into the ground floor of the property no.C­171, Sec­25, Rohini, Delhi (herein after referred to as suit property) and are in unlawful possession of the same. It is alleged that in the year 2008 the plaintiff requested one Mr. Ishak @ Chhotu (defendant no.5), whom he knew for last 7 years, to take care of Daya Nand Vs. Manjit Kaur & Ors.

3 the property. It is further alleged that on 03.10.2010 when the plaintiff visited the suit property he came to know that the property had been occupied by defendant no.1 to 4 and when he inquired from them, they started misbehaving with the plaintiff and the plaintiff contacted defendant no.5 who told him that in the year 2008 defendant no.1 was introduced to him through a common friend and he gave shelter to her for three months in the suit property out of sheer sympathy as she was in desperate need of a place to stay for the time being. It is alleged that all the defendants conspired together to retain the possession of the suit property. It is also alleged that the defendant no.5 told the plaintiff that in February, 2009 he visited the defendants to ask them to vacate the suit property, however, the defendants did not vacate the suit property and on 14.10.2010 the plaintiff also visited the suit property in order to request the defendant no.1 to 4 to vacate the suit property, but, the defendants refused to do so and defendant no.1 threatened the plaintiff to lodge a false criminal complaint against the plaintiff. It is further Daya Nand Vs. Manjit Kaur & Ors.

4 alleged that in December, 2010 plaintiff received a summons of Civil Suit No.600/10 filed by defendant no.1 against him and the plaintiff appeared before the court and he came to know that in the said case the defendant no.1 has claimed herself to be a tenant in the suit property and the plaintiff as a landlord and has also claimed to have given the sum of Rs.2 lacs to the plaintiff as security amount, however, she did not produce any documentary proof of the said payment. It is further alleged that on 18.08.2011 the aforesaid Civil Suit No. 600/10 was disposed of as the plaintiff herein gave an undertaking before the concerned Court that he would not dispossess the defendant no.1 without due process of law. It is alleged that defendants have been in unauthorised and illegal possession of the suit property causing wrongful loss to the plaintiff hence the present suit has been filed.

3. The defendants were served with summons and they appeared and a joint written statement on behalf of defendant no.1 to 4 and separate written statement on behalf of defendant no.5 was filed. In the WS, Daya Nand Vs. Manjit Kaur & Ors.

5 defendant no.1 to 4 alleged that plaintiff is not owner of the suit property and that the plaintiff has concocted a story regarding the role of defendant no.5 with respect to the suit property. It is further alleged that the defendant no.1 does not have any documentary proof of payment of Rs.2 lacs made to the plaintiff as a security amount.

4. The defendant no.5 admitted in the WS that in the year 2008 he was asked by the plaintiff to look after his property bearing no.C­171 Sec­25 Rohini Delhi and he also stated that he allowed defendant no.1 and her children to stay in the house of the plaintiff as she was in urgent need of accommodation. He further stated that after a few months he asked defendant no.1 to vacate the premises, however, she refused to do so. He also admitted that defendants trespassed into the suit property and that the suit property is in illegal occupation of defendant no.1 to 4.

5. Vide order dated 29.04.2013 of Ld. Predecessor of this court, following issues were settled:­ Daya Nand Vs. Manjit Kaur & Ors.

6

1. Whether the plaintiff is entitled to the relief of possession as prayed for ? OPP.

2. Whether the plaintiff is entitled to the decree of damages/ mesne profit @ Rs. 99,500/­ since the year 2008 till its realisation as prayed for? OPP.

3. Whether the suit of the plaintiff has not been properly valued? OPD.

4. Relief.

6. To prove this case the plaintiff has examined himself as PW­1 and the defendants examined Smt. Manjeet Kaur as DW­1. The defendant no.5 Ishak @ Chhotu was proceeded exparte vide order dated 11.08.2014.

7. I have heard the arguments and perused the material available on record.

8. Issue­wise findings are as under:­ Daya Nand Vs. Manjit Kaur & Ors.

7 ISSUE NO. 1 Whether the plaintiff is entitled to the relief of possession as prayed for ? OPP.

9. The plaintiff has claimed the relief of decree of possession of the suit property bearing no.C­171 Sec­25 Rohini Delhi. The plaintiff has alleged that he is the owner of the suit premises and the suit property came to the possession of defendant no.1 to 4 in the year 2008 through defendant no.5 Mr. Ishak @ Chhotu to whom he gave it to take care of the suit property. It is alleged that the defendant no.1 to 4 did not vacate the premises despite repeated requests and the defendant no.1 also filed a civil suit for permanent injunction bearing CS no.600/2010 against the plaintiff of the present case which was disposed of after recording the statements of both the parties and in the said suit the defendant no.1 has claimed herself to be a tenant in the suit property and the plaintiff to be the owner and landlord of the suit property.

10. Counsel for the defendant filed the written Daya Nand Vs. Manjit Kaur & Ors.

8 submissions/arguments and in para 3 thereof it is alleged that the defendant no.1 to 3 were inducted as tenants in the suit premises in the year 2006 and they have been in possession of the same. Ld. counsel further alleged that the plaintiff has not filed any document to prove his ownership. It is also alleged that the plaintiff has leveled false allegations that the defendants are the trespassers because the intention of defendants always remained to occupy the suit property as tenants only. Ld. counsel also alleged that the defendant paid the sum of Rs.2 lacs to the plaintiff as security deposit as he was in dire need of money. It is also alleged that this court does not have jurisdiction to try and entertain the present eviction petition because the defendant no.1 to 4 are in possession of the suit property in the capacity of tenants at the monthly rent of Rs. 1000/­ only and it is alleged that the said legal objection can be taken at any stage of the trial. Ld. counsel denied the allegations leveled by the plaintiff in the present suit and stated that the suit filed by the plaintiff may be dismissed.

Daya Nand Vs. Manjit Kaur & Ors.

9

11. Per contra ld. counsel for the plaintiff argued that the defendants have duly admitted the factum of being the tenants of the plaintiff in the earlier Civil Suit no.600/2010 titled as Manjeet Kaur Vs. Daya Ram and it is alleged that by virtue of Section 116 of Indian Evidence Act the defendants cannot deny the ownership/title of the plaintiff in the present suit. It is also alleged that the defendant no.1 to 4 have been in illegal occupation of the suit property and are liable to be evicted. Ld. counsel also argued that the defendants have relied upon copy of RTI reply to show that the plaintiff is not the owner of the suit property which is inadmissible in evidence as the same is not an original document and it has not been proved in accordance with law.

12. I have perused the material available on record and the written submissions filed by the respective counsels.

13. In the instant case, the plaintiff has alleged that the defendant no. 1 to 4 came in occupation of the suit property through defendant no.5 Ishak @ Chhotu and defendant no.5 has supported the averments made Daya Nand Vs. Manjit Kaur & Ors.

10 in the plaint in the WS filed by him. The defendant no.1 to 4 filed the joint written statement and they denied the role of defendant no.5 in occupation of the suit property by them. In para 11 of the joint written statement filed on behalf of the defendant no.1 to 4, it is specifically alleged that defendant no.1 to 4 are residing in the suit property for about last 7 years and it is a tenanted premises. In para 13 of the said WS the defendant no.1 to 4 alleged that the defendants did not have any documentary proof of payment of Rs.2 lacs which was given to the plaintiff as a security amount. The averments in the WS regarding the payment of security deposit amount of Rs.2 lacs to the plaintiff is an implied admission on the part of defendant no.1 to 4 that the plaintiff is the landlord of the suit premises to whom they have allegedly given the security deposit amount.

14. Plaintiff has filed certified copies of the plaint and other proceedings of civil suit bearing no.600/2010 which was filed by defendant no.1 Manjit Kaur against the plaintiff Daya Nand and in the Daya Nand Vs. Manjit Kaur & Ors.

11 aforesaid civil suit also the defendant no.1 Manjit Kaur has alleged that the suit property bearing C­171 Sec­25 Rohini Delhi is occupied by her as a tenant and the same is owned by Daya Nand. Therefore, in the earlier civil suit bearing no.600/2010 the defendant no.1 has admitted that the plaintiff Daya Nand is the landlord and that she is a tenant in the suit property. Even in the written arguments filed on behalf of the defendant no.1 to 4 it is categorically stated that defendant no.1 to 4 are in occupation of the suit property as tenants. Perusal of the cross examination of PW1 Manjit Kaur reveals that she has deposed that the plaintiff herein shifted her to the suit property which shows that defendant no.1 has admitted the factum of landlordship of the plaintiff.

15. Section 116 of Indian Evidence Act provides that no tenant of immovable property shall during the continuance of the tenancy be permitted to deny the title of the landlord in the suit property.

16. As per the evidence on record the defendant no.1 to 4, who are family members, are in occupation of the suit property as tenants and Daya Nand Vs. Manjit Kaur & Ors.

12 the plaintiff is the landlord.

17. The defendant no.1 to 4 in their WS have denied the role of Mr. Ishak @ Chhotu in occupation of the suit property by them, however, defendant no.1 Manjit Kaur deposed as DW1 and in para 3 of her affidavit she deposed that she contacted defendant no.5 Mr. Ishak for taking the suit premises on rent and defendant no.5 handed over the suit property to her on rental basis and that she had been paying the rent regularly to defendant no.5 Ishak @ Chhotu. Therefore, defendant no.1 has taken two contradictory stands regarding the role of defendant no.5 in giving the possession of suit premises to the defendant no.1 to 4.

18. The defendant no.1 has relied upon the photocopy of an RTI reply to show that the suit property was not initially alloted to the plaintiff. However, it is not an original document and the same has not been proved in accordance with Evidence Act and therefore, it is inadmissible in evidence. As per the certified copy of the plaint in Civil Suit bearing no.600/2010, which is Ex.PW1/C the defendant no.1 Manjit Kaur has Daya Nand Vs. Manjit Kaur & Ors.

13 categorically stated that she is a tenant in the suit premises bearing no.C­171 Sec­25 Rohini and the same is owned by plaintiff.

19. Filing of the instant suit by the plaintiff seeking possession of the suit property is itself a notice of termination of tenancy/license of the defendants to reside therein. Ld. counsel for the defendant no.1 to 4 has also taken a plea in the written arguments that the rate of rent of the suit premises was Rs.1000/­ therefore, the jurisdiction of this court is barred. However, no evidence to substantiate the aforesaid plea has been led on behalf of the defendants and no such rate of rent as alleged by counsel for the defendants is mentioned either in the WS or in the evidence/affidavit of DW1 Manjit Kaur i.e. only witness examined on behalf of defendant no.1 to 4. The defendant no.1 to 4 have also taken a bald plea that they have given the sum of Rs.2 lacs to the plaintiff as security amount and no proof thereof has been produced on record.

20. As the defendants no. 1 to 4 have claimed themselves to the tenant in the suit property, they are estopped from challenging the title Daya Nand Vs. Manjit Kaur & Ors.

14 of the landlord/plaintiff. Accordingly, the plaintiff is entitled to the decree of possession of the suit property against the defendants. Therefore, this issue is decided in favour of the plaintiff and against the defendants.

ISSUE NO. 2 Whether the plaintiff is entitled to the relief of damages and mense profits @ Rs.99500/­ since the year 2008 till its realisation as prayed for?OPP.

21. The onus to prove this issue is upon the plaintiff, however, the plaintiff has not led any concrete evidence with respect to his claim of mesne profit @ Rs. 99500/­. The plaintiff has only stated in para 20 of the affidavit that the relief of possession is valued at Rs.2 lacs and the relief of mesne profit @ Rs. 99500/­ and accordingly the court fee has been affixed with the plaint. The plaintiff has not led any evidence as to what is the rate of rent of the similarly situated premises in the area Daya Nand Vs. Manjit Kaur & Ors.

15 where the suit property is situated. The plaintiff has allegedly given his property to Mr. Ishak in the year 2008 for looking after the same and plaintiff has not stated that he was earning from the suit property and it has also not been alleged in evidence that plaintiff would have earned any amount had the property been not occupied by the defendant no.1 to 4. The plaintiff has not explained or specified as to how he reached the figure of Rs.99,500/­ and a mere bald statement about the amount of damages can not take place of proof. The plaintiff has not claimed that he would have earned the amount claimed as mesne profit if the property was not occupied by defendant no.1 to 4. There was no intention of the plaintiff to earn from the suit property as admittedly it was given to defendant no.5 Ishak only to look after the same nor was there any intention of plaintiff at any point of time to let out the suit property. In these, circumstances, I am of the opinion that plaintiff is not entitled to mesne profit as claimed by the plaintiff. Accordingly, this issue is decided against the plaintiff and in favour of defendants.

Daya Nand Vs. Manjit Kaur & Ors.

16 Issue No.3 Whether the suit of the plaintiff has not been properly valued?OPD.

22. The onus to prove this issue is upon the defendants. The defendant no.1 to 4 have alleged in their WS that the value of the suit property is not less than 25 lacs and the plaintiff has wrongly valued the suit at Rs.2 lacs. However, the defendant has not led any evidence to prove this issue nor is it alleged as to how the suit is undervalued. It was incumbent upon the defendants to prove the stand taken by them in the WS but they have failed to lead any evidence to prove the same. Therefore, it cannot be said that the defendants have been able to prove this issue. Hence this issue is decided against the defendants and in favour of the plaintiff.

RELIEF: The plaintiff is entitled to the decree of possession of the suit property i.e. C­171, Sector­25, Rohini, Delhi in his favour and against the defendants. Cost of the suit is also ordered to be awarded in favour Daya Nand Vs. Manjit Kaur & Ors.

17 of the plaintiff and against defendant no.1 to 4. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.

Announced in the open                      (Manish Khurana)
Court on 25.09.2014                    JSCC­cum­ASCJ­cum­Gudn. Judge
                                        North, Rohini Courts, Delhi