Delhi District Court
Smt. Kusum vs Sh. Raj Singh on 20 November, 2018
IN THE COURT OF SH. RAJNISH BHATNAGAR
DISTT. & SESSIONS JUDGE (NORTHWEST),
DISTRICT COURT ROHINI, DELHI
RCA No. 5133/16
Smt. Kusum
w/o late Suraj Bhan
r/o H.No. 504, ZBlock
Prem NagarII, Delhi110086 .....Appellant
Vs.
Sh. Raj Singh
s/o Sh. Sube Singh
r/o H.No. 504, ZBlock
Prem NagarII, Delhi110086 ..........Respondent
Date of institution : 04.02.2014
Date of clarifications : 20.11.2018
Date of Judgment : 20.11.2018
JUDGMENT
1. This Judgment shall govern the disposal of an appeal filed by the appellant (defendant before the learned trial court) against the impugned Judgment/Decree dated 11.12.2013 passed by the Court of Sh. Siddhartha Malik, learned Civil JudgeIII (West), Tis Hazari Courts, Delhi, in case entitled "Raj Singh vs. Kusum" bearing suit no. 198/12 whereby the learned trial court RCA No. 5133/16 Page 1 of 26 decreed the suit of the respondent (plaintiff before the learned trial court).
2. The brief facts as stated which lead to the filing of the present appeal are that the respondent had filed a suit for mandatory injunction and recovery against the appellant praying therein to direct the appellant to remove her belongings from the room which was in her possession in property no. 504, Z Block, Prem NagarII, Delhi110086, as shown in the site plan. The case of the respondent is that he is the owner of the whole of the property bearing no. 504, ZBlock, Prem NagarII, Delhi 110086 and the appellant is a licensee in one room of the said property since the year 2004 on a monthly license fees of Rs. 1500/ which was enhanced to Rs. 2000/ in April 2007. It is further averred that the license of the appellant was revoked w.e.f. 31.07.2008 and a notice to this effect was served on the appellant on 12.06.2008 in this regard, but despite receipt of the said notice the appellant failed to vacate the property in question.
3. The appellant had contested the suit of the respondent by filing a detailed written statement stating therein that she is a tenant in the property in question on a monthly rent of Rs. 400/ and, therefore, the suit is not maintainable under the provisions of DRC Act.
RCA No. 5133/16 Page 2 of 264. Thereafter following issues were framed by the learned trial court on 20.07.2009 :
(i) Whether the plaintiff (respondent herein) is entitled for mandatory injunction, as prayed? OPP.
(ii) Whether the plaintiff (respondent herein) is entitled for recovery of amount of Rs. 6000/, as prayed for? OPP.
(iii) Whether there is no cause of action as alleged in favour of the plaintiff (respondent herein)? OPD.
(iv) Whether the present suit is barred under the provisions of DRC Act? OPD.
(v) Relief.
5. Thereafter both the parties led their respective evidence. The plaintiff/respondent appeared in the witness box as PW1 and the defendant/appellant appeared in the witness box as DW1. Both the parties also filed their respective affidavits in evidence in support of their contentions. Finally after hearing arguments, the learned trial court passed the impugned Judgment dated 11.12.2013 thereby decreed the suit of the respondent.
6. Being aggrieved from the impugned Judgment dated 11.12.2013, the appellant has preferred the present appeal thereby challenging the impugned Judgment on various grounds contending inter alia that the respondent in his cross RCA No. 5133/16 Page 3 of 26 examination has admitted that he is not aware about any such notice; that the learned trial court has failed to appreciate that the present case comes under the DRC Act as the said area had been notified in Gazette prior to filing of the suit by the respondent; that the learned trial court has failed to appreciate that the respondent has failed to prove that the appellant is a licensee and the rate of rent was Rs. 1500/ per month; that the learned trial court has not appreciated the fact that it was asked from the appellant in her cross examination that she took the premises on rent from respondent and, therefore, it is crystal clear the appellant is a tenant in the suit property and not a licensee; that the learned trial court has failed to appreciate the fact that the respondent has failed to prove his ownership in respect of the property in question and admittedly he has not placed any documentary record regarding his title in respect of the same. It is accordingly prayed by the appellant that the present appeal be allowed and impugned Judgment dated 11.12.2013 be set aside.
7. Notice of the appeal was issued to the respondent and the respondent filed the reply to the same thereby denying all the contents of the appeal. It is stated in the reply that the present appeal is hopelessly barred by time as the impugned Judgment was passed on 11.12.2013, whereas the present appeal has been RCA No. 5133/16 Page 4 of 26 filed after 31.01.2014 i.e. after more than 30 days of its passing; that no question of law has been raised by the appellant in the present appeal and the impugned Judgment does not suffer from any illegality; that the appellant is occupying the suit property as a trespasser without paying any use and occupation charges. It is further stated in the reply that the learned trial court has awarded the damages @ Rs. 400/ per month from 01.08.2008 till the date of recovery of possession of the property in question along with interest @ 6% per annum and the costs in favour of the respondent and against the appellant along with arrears of Rs. 1600/, but the appellant has failed to pay the same till date; that the respondent is the owner of the property in question and in the year 2004, the respondent allowed the appellant to use and occupy one room in the said property on license basis and the appellant agreed to pay Rs. 1500/ per month as license fees which she continued to pay upto March 2007; that no tenancy was ever created by the respondent in favour of the appellant and no rent has ever been paid by the appellant.
It is further stated in the reply by the respondent that the appellant has wrongly stated that she took the said premises on rent from the respondent about 16 years ago, whereas the said premises was constructed only in the year 2003 by the RCA No. 5133/16 Page 5 of 26 respondent. It is denied that the respondent is not intentionally receiving the rent. It is further stated that the legal notice dated 12.06.2008 was issued and sent to the appellant through registered AD and UPC and the same was duly served upon the appellant, but the appellant neither replied the said legal notice nor complied with its terms. It is denied that the provisions of DRC Act are applicable to the area where the property in question is situated. It is further stated that even otherwise there is no relationship of landlord and tenant between the parties so there is no question of applicability of DRC Act in the present case.
It is further stated that the respondent appeared as PW1 in the witness box before the learned trial court and categorically answered that the suit property was not given on rent but the appellant was merely permitted to stay in the suit property on a license fee of Rs. 1500/ per month and he even stated that he understood the difference between the lease and license. It is denied that the appellant called the Patwari or that it was found that the suit property belongs to some other person. It is further stated that no such evidence has been led by the appellant in this regard and no document as alleged has been placed on record by the appellant to prove that the suit property belongs to some other person. It is accordingly prayed by the respondent that the RCA No. 5133/16 Page 6 of 26 present appeal may kindly be dismissed with heavy exemply cost.
8. So far the question of limitation is concerned, along with the present appeal, the appellant has moved an application u/s 5 of the Limitation Act praying therein to condone the delay in filing the present appeal. During the course of the arguments, the learned Counsel for the respondent stated that he does not want to file any reply to the said application and has "no objection" if the delay in filing the present appeal is condoned. Even otherwise, it has been time and again held by the Superior Courts that the delay shall be construed liberally and the Court should consider grant of delay liberally and should make an endeavour to decide the cases as far as possible on merits. The Hon'ble Delhi High Court in Hilton International Co. vs. K.V. Kumar AC, 165 (2009) DLT 278" has held that there are Judgments of the Hon'ble Supreme Court (refer Malkiat Singh vs. Joginder Sing, I (1998) CLT 44 (SC)=II (1998) SLT 74 = 1998 2 SCC 206 and Lal Devi vs. Vaneeta Jain, V (2007) SLT 308 = II (2007) CLT 543 (SC) = 2007(7) SCC200, which say that even if a defendant prevaricates, or his Counsel is not careful enough for notifying him or attending the Court, if the consequences that visits the party is harsh, the Court would secure the ends of justice, and set aside the ex parte judgment.
RCA No. 5133/16 Page 7 of 26Therefore, in view of the submissions made in the application and "no objection" accorded by the learned Counsel for the respondent, the application u/s 5 of the Limitation Act is allowed and consequently, the delay in filing the present appeal is condoned.
9. The matter before me was argued exhaustively by the learned Counsel for both the sides. I have also gone through the entire record including the plaint, written statement, documents and impugned Judgment. Accordingly, I shall decide the appeal in accordance with the issues framed in the original suit and my issue wise findings after reappraisal are as under : Issue No. (i) : Whether the plaintiff is entitled for mandatory injunction as prayed? OPP.
Issue No. (iii) : Whether there is no cause of action as alleged in favour of the plaintiff? OPD.
Issue No. (iv) : Whether the present suit is barred under the provisions of DRC Act? OPD.
10. The onus to prove issue no. (i) was upon the respondent and whereas the onus to prove issues no. (iii) & (iv) was upon the appellant.
11. According to the appellant, she is a tenant in the property in question whereas according to the respondent, the appellant is only a licensee whose license has already been terminated RCA No. 5133/16 Page 8 of 26 and now she is occupying the property in question only as a tresspasser without paying any use and occupation charges. It is an admitted case of both the parties that no written license or rent deed was ever executed between them on the basis of which it can be decided as to whether the parties created a lease or license amongst themselves. The only guiding factor is, therefore, the testimonies of both the parties i.e. of the appellant who appeared in the witness box as DW1 and of the respondent who appeared in the witness box as PW1 before the learned trial court. The entire case depends on the question as to whether there exists a lease between the parties or simple a license to live was granted to the appellant by the respondent.
12. Sometimes, there arise some situations, which abridge difference between the lease and licence. In order to understand the difference between these two provisions and to know the situation, which they may conflict, it becomes very important to understand the basic features of both Lease and License.
Difference between Lease and License The term 'lease' and 'license' are defined under Section 105 of the Transfer of Property Act and Section 52 of the Indian Easements Act respectively.
Section 105 of Transfer of Property Act:
"Lease Defined. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of RCA No. 5133/16 Page 9 of 26 money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
Section 52 of the Easements Act, 1882:
"License, Defined. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called, a license."
"Lease" is a word which everyone is aware of, and hears it day in and day out while dealing the transactions related to immovable property. Lease can be defined as the right to enjoy an immovable property for a certain period of time, in consideration of a price paid by the person getting possession of the property.
Under Black's Law dictionary, "Lease" can be defined as a conveyance of lands tenements to a person for life, for a term of years, or at will, in consideration of rent or some other recompense. Oxford Dictionary of Law defines it as "a contract under which an owner of property grants another person exclusive possession of the property for an agreed period, in return for rent and sometimes for a capital sum known as a premium.
Section 105 of Transfer of Property Act, 1882 defines lease and one would be easily able to derive some of the important characteristics of a lease such as transfer of an interest, parties to the lease, subject matter of lease etc. But, there is another provision or legal principle which at sometimes is confused with the concept of lease i.e. Licence.
Black's Law Dictionary defines "Licence" in the context of property law as an authority to do a particular act or series of acts upon another's land without possessing any estate therein. Oxford RCA No. 5133/16 Page 10 of 26 Dictionary of Law defines it as Permission to enter or occupy a person's land for an agreed purpose.
Both the provisions look similar, then what make them different is a very important question, which has to be resolved, and it is abstruse to do so. Sometimes, there arise some situations, which abridge difference between them. In order to understand the difference between these two provisions and to know the situation, which they may conflict, it becomes very important to understand the basic features of both Lease and License.
Generally, a lease contemplates the following:
a) a demise or a transfer of a right to enjoy property;
b) for a term or in perpetuity;
c) in consideration of a price paid or promised, or of money, a share of crop or services or other things of value to be rendered periodically or on specified occasions to the transferor.
The essential characteristic of a lease are:
1. transfer of an interest;
2. parties to a lease;
3. subject matter of lease;
4. types of lease;
5. duration of lease; and consideration for lease.
Primary distinctions between Lease and License:
1. A lease is a transfer of an interest in a specific immovable property, while license is a bare permission, without any transfer of an interest.
2. A lease creates an interest in favour of the leassee with respect of the property, but a license does not create such an interest.
3. A lease is both transferable and heritable, a sub tenancy can be RCA No. 5133/16 Page 11 of 26 created by the tenant and on the death of the tenant, the tenancy can be inherited by his/her legal heir, whereas, license is neither transferable nor heritable.
4. A license comes to an end with the death of either the grantor or the guarantee, since it is a personal contract, but a lease does not comes to an end on either the death of the grantor or grantee.
5. A license can be withdrawn at any time at the pleasure of the grantor but the lease can come to an end only in accordance with the terms and condition stipulated in the contract of tenancy agreement.
6. A lease is unaffected by the transfer of the property by sale in favour of a third party. It continues and the purchaser has to wait till the time period for which the tenancy was created is over before he can get the possession, whereas, in case of a license, if the property is sold to a third party, it comes to n end immediately.
7. A lessee has a right to protect the possession in his own right.
Whereas, a licensee cannot defend his possession in his own name as he does not have any proprietary right in the property.
8. A lessee in possession of the property is entitled to any improvements or accessions made to the property, while a licensee is not.
Whether a Lease or a License A finding on the question whether the person in possession is a tenant or a licensee is a finding of fact. To ascertain if a document creates a lease or a license, the substance of the document should be preferred to its form. Where it creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which legal possession and control continues with the owner, it is a license. A license does not create any estate or interest in the property to which it relates. Thus, whether an instrument operates as a lease or licence is RCA No. 5133/16 Page 12 of 26 not a matter of words contained in the instrument creating it, but of its substance. The decisive consideration is the intention of the parties, but the intention must be gathered on a true construction of the agreement and not merely from the description given by the parties.
Where, on point of intention the document is ambiguous, the question is to decide in the context of the surrounding antecedent and consequent circumstances, and parole evidence. A document, which expresses the intention of both parties or of one party to create license will nevertheless create tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of tenancy.
The mere use of words appropriate to a lease will not preclude its being held a license; so even a document referring to 'rent' maybe a license. Transfer of exclusive possession generally indicates an intention to create a lease even though the sum is described as a 'license fee', but it is no longer a conclusive test and there maybe cases where transferee in exclusive position is a licensee. Where, after the expiry of the original period of lease, the lessee continues in possession and the lessor accepts from him premium for the subsequent period, it is a lease and the lessee could not be ejected without the termination of the freshly created lease.
From the above discussion it would not be difficult to understand the various points relating to lease and license. Ann now, it would not be much difficult to understand the difference between these two concepts. Lease is much extensive than that of license, and it confers a great amount of right to the transferee which cannot be extinguished so easily. A person entering into lease deed cannot invalidate it unilaterally, but in the case of a license transferor would be able to end the license. It would be easier to understand this after looking at some of the decision/case laws of Supreme Court.
Real intention of the parties forms the basis to interpret whether the agreement which has been made between the parties is a lease or not.
RCA No. 5133/16 Page 13 of 26This was held by the Hon'ble Supreme Court in C.M. Beena vs. P.N. Ramachandra Rao, stating that "the difference between a lease and a license is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances". And it was further held by the court that the conduct of the parties of the parties before and after the creation of relationship is of relevance for finding out their intention. Similar view was also held by the Hon'ble Supreme Court in Achintya Kumar Saha vs. Nanee Printers, where an issue relating to tenancy and license was sorted out by the court referring to the intention of the parties, and it was held by the court that intention of the parties who are forming an agreement becomes the deciding factor to conclude the real nature of the agreement made. Moreover, the Court opined that the surrounding circumstances should also be taken into account while determining the real intention of the parties. This view was also held by the Hon'ble Supreme Court in case of Rajbir Kaur vs. S. Chokosiri and Co.
In the case of Delta International Ltd v Syam Sundar Ganeriwalla, a dispute arose between the parties as to whether the agreement between them was a lease or that of "leave and license". Document nowhere mentioned any provision which can make it evaded from the provisions mentioned under W.B. Premises Tenancy Act, 1956. It was held by the Supreme Court that "where it was nowhere pleaded that the deed executed between the parties was a camouflage to evade the rigours of the provisions of the Rent Act nor was it stated that a sham document was executed for achieving some other purpose the intention of the parties would be required to be gathered from the express words of various terms provided by them in the deed." Court held it to be an licence agreement.
In case of Vayallakath Muhammodkutty vs. Illikkal Moosakutty, it was held by the court that simply an embargo put against subletting in the document doesn't make it a lease agreement. Court was of the opinion that usually question of subletting does not arise in case of a RCA No. 5133/16 Page 14 of 26 licence agreement.
It was further held by the Hon'bel Supreme Court in Khalil Ahmed basher Ahmed v Tufelhussein Samasbhai Sarangpurwala, that if an interest is created in an immovable property which entitles a transferee to enjoy it without any interference, the document should be construed as that of a lease agreement. This point has been discussed earlier in this article that a lessee or the person who gets the possession of the leased property enjoys in exclusively unlike in case of a license agreement. That means, if an owner of a land grants permission to use the land without any exclusive, the document should be construed as that of a license.
One of the most famous case in this regard is Associated Hotels of India v RN Kapoor, which provided a clear cut idea between the difference between these two concepts. It was held by the Hon'ble Supreme Court in this case that "if a document gives only a right to use the property in a particular way under certain terms while it remains in possession and control of the owner thereof, it will be a license." The Court opined that there exist a very thin line of difference between these two concepts which can be determined on the facts and circumstances of each case. When a person gets possessory right and the right to enjoy the property, it would be a lease unlike a license.
In the case of Mrs. M.N. Clubwala v. Fida Hussain Saheb, the Hon'ble Supreme Court dealt with the question that whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee and held that the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement.
In the case of Municipal Corporation of Delhi vs. Pradip Oil Corporation and Anr., the Hon'ble Delhi High Court, made an RCA No. 5133/16 Page 15 of 26 important observation that a mere license does not create interest in the property to which it relates. Lease on the other hand, would amount to transfer of property. License may be personal or contractual. A licensee without the grant creates a right in the licensor to enter into a land and enjoy it. Because of a license, no estate or interest in the property is created. A license, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name; (c) it is revocable and (d) it is determined when the grantor makes subsequent assignment.
The important recent judgment of the hon'ble Supreme Court on the distinction between lease and licence is Bharat Petroleum Corp. Ltd. vs. Chembur Service Station wherein the Court observed that Licenses can be of different kinds. Some licenses with reference to use of immovable property may be very wide, virtually bordering upon leases. Some licenses can be veryvery narrow, giving a mere right enabling a person to visit a premises say a museum or a lecture hall or an exhibition. In between are the licenses of different hues and degrees. All licenses cannot be treated on the same footing.
From the above discussion the following differences becomes clearly recognized between lease and license License Lease mere permission to do something transfer of an interest without any transfer of interest both transferable and neither transferable nor heritable heritable RCA No. 5133/16 Page 16 of 26 Comes to an end only in accordance with the terms can be withdrawn at any time at the and conditions stipulated in pleasure of the grantor the contract entitled to any improvement or accession made to the no such entitlement property unaffected by the transfer of comes to an end immediately if the the property by sale in favour property is sold to a third party of third party and continues lessee has the right to protect licensee cannot defend his possession the possession in his own in his own name as he does not have right any propriety right in the property does not come to an end comes to an end with the death of either by death of the grantor either grantor or the grantee or the grantee
13. Now reverting to the case in hand. First of all, it has to be seen as to whether the respondent is the owner of the property in question or not. It has been argued by the learned Counsel for the appellant that the respondent is not the owner of the property in question, whereas on the other hand, it is submitted by the learned Counsel for the respondent that since the appellant has admitted, in her written statement, the respondent to be the owner of the property in question, therefore, facts need not be proved.
14. I have perused the written statement filed by the appellant RCA No. 5133/16 Page 17 of 26 before the learned trial court. On page 3 para 1 of the written statement, the appellant has admitted the respondent to be the owner of the property in question.
15. The respondent appeared in the witness box as PW1 and tendered his affidavit as Ex. PW1/A in evidence which is on the identical lines as per the plaint. The respondent also relied upon various documents viz. Exs. PW1/1 to PW1/4. The document Ex. PW1/1 is the site plan, Ex. PW1/2 is the legal notice dated 12.06.2008, Ex. PW1/3 are the postal receipts of registered AD and Ex. PW1/4 is the UPC receipt. Ex. PW1/1 which is the site plan of Plot No. 4, out of Khasra No. 1109, measuring 220 sq. yards, Village Kirari Suleman Nagar Colony known as Prem Nagar, Delhi110086, shows that there are three rooms and four shops in the property along with one toilet, one bathroom and open space and out of these, one room is occupied by the appellant and as already observed herein above, it has not been disputed by the appellant that the said plot no. 4 is not owned by the respondent. The appellant has not even disputed the correctness of the said site plan and no questions have been put to the respondent in this regard during his cross examination. Therefore, the testimony of the appellant regarding the site plan filed by the respondent has gone unrebutted and unchallenged. Rather the appellant has stated in her cross examination that the RCA No. 5133/16 Page 18 of 26 site plan filed by the respondent is a correct site plan.
16. Appellant (DW1) in her cross examination has admitted that the different addresses 503 to 504 and plot no. 4 out of Khasra No. 1109 belong to the same property in which she is occupying a room. The appellant has even admitted that the respondent is occupying one room and the other room is in occupation of another family. In her further cross examination, the appellant has even admitted that she has asked the respondent to allow her to reside in one room as she did not have any place to reside and she promised him to pay certain amount for her stay.
17. During the course of the arguments, it has been urged by the learned Counsel for the respondent that the appellant has placed on record certain photographs and documents along with her written statement dated 18.03.2009, but these documents have not been proved on record as per the Indian Evidence Act, however, the learned trial court has placed reliance on the same. He further urged that from the photographs filed by the appellant along with the site plan Ex. PW1/1, it is clear that the appellant is not in exclusive possession of any other portion of plot no. 4 except one room.
18. I have perused the photographs as well as the documents which have also been relied upon by the learned trial court RCA No. 5133/16 Page 19 of 26 despite not being tendered in evidence. However, it is pertinent to mention here that the authenticity of the documents and photographs so filed by the appellant have not been disputed by the respondent. More over these documents and photographs would throw light upon the nature of possession of the appellant.
19. A perusal of the photographs filed by the appellant along with the site plan Ex. PW1/1 shows that the said plot no. 4 is a big area in which 4 shops and three rooms are located and out of these three rooms, one room is occupied by the respondent and there appears to be an open space in the middle of the property where there is one set of toilet and bathroom along with hand pump.
20. In plot no. 4, it is clear that the appellant is not in exclusive possession of any portion other than one room and she is using the hand pump, bathroom and toilet in common with other occupants of the shops and rooms which shows that all the basic amenities are common for all the occupants of plot no. 4.
21. It is an admission on the part of the appellant that the respondent is the owner of whole of the property i.e. Plot No. 4, therefore, it is clear that the appellant is using the common amenities which are under the control of the respondent who himself is residing in one of the rooms of the said plot.
RCA No. 5133/16 Page 20 of 26According to the appellant herself, the electricity connection in the plot is also in the name of the respondent which further goes to show that the appellant is depending upon the respondent for the use of water and electricity. Even otherwise, it is not the case of the appellant that she is having separate submeter for electricity or she is paying any separate electricity or water bills to the respondent. It is apparent from the arrangement between the parties in regard to their occupancy of the respective portions in plot no. 4 that the possession of the appellant in one room is not independent and exclusive and the appellant will not be in a position to survive herself without the assistance and help of the respondent. Therefore, the dependent nature of possession of the appellant in the property in question clearly indicates towards the nature of her possession as a licensee and not a tenant. It is clear that the possession of the appellant in one room does not create any right in her favour which could give rise to any presumption of the tenancy. Even otherwise, the appellant has failed to lead any evidence to support her claim of the tenancy, rather she has admitted during her cross examination that she does not have any rent receipts or any other document which could show that she was inducted as a tenant and not as a licensee.
22. The appellant has denied the service of any notice of RCA No. 5133/16 Page 21 of 26 termination of tenancy issued by the respondent. The legal notice is exhibited as Ex. PW1/2 and its postal receipts and UPC receipts are exhibited as Exs. PW1/3 and PW1/4 respectively. It is not the case of the appellant that the said notice was not served on the correct address or that the address mentioned on the legal notice is not of herself. No questions have been put to the respondent (Pw1) in his cross examination in this regard. It is a settled law by the decisions of Privy Council and Hon'ble Supreme Court that if a notice properly addressed is delivered through Post Office, then it must be presumed that it was duly given. Presumption is greater when the notice is registered. Sec. 114 of the Evidence Act and Sec. 27 of the General Clauses Act also raise the same presumption.
It is also otherwise a well settled law that if a notice sent by the registered post, does not get returned, then it must be deemed to have been served. In the present case, notice, as per the record, was also sent through the registered post to the appellant, which has not been received back. Hence, in view of the Section 114 of the Evidence Act and Sec. 27 of the General Clauses Act, the notice sent through registered cover has duly been served upon the appellant through registered post on the given address. Even otherwise, there are number of Judgments of Superior Courts which state that even service of summons of RCA No. 5133/16 Page 22 of 26 the suit for eviction can be considered a valid notice and a licensee has no right to continue in the suit property once the license is terminated.
23. In my opinion, the appellant has failed to prove that she was a tenant in the property in question, therefore, there is no question of attraction of provisions of DRC Act and the mere debate as to whether the license fees was Rs. 1500/ or Rs. 400/ per month will not come in the way of the respondent to claim possession of the property in question. Accordingly, I uphold the findings of the learned trial court regarding issues no. (i),
(iii) & (iv) in favour of the respondent/plaintiff and against the appellant/defendant. Accordingly, the respondent is entitled to take possession of the suit property from the appellant. ISSUE No. (ii) "Whether the plaintiff/respondent is entitled for recovery of an amount of Rs. 6000/, as prayed? OPP".
24. The Onus to Prove this issue was upon the respondent (plaintiff before the learned trial court).
25. The respondent has also claimed an amount of Rs. 6000/ towards arrears of license fees from the appellant and the onus has been placed upon the respondent that the quantum of license fees was Rs. 1500/ per month. According to the respondent, the license fees was Rs. 1500/ per month and whereas as per RCA No. 5133/16 Page 23 of 26 the admission of the appellant she was paying an amount of Rs. 400/ per month. I have perused the record of the learned trial court which shows that the respondent has failed to prove that the license fees was Rs. 1500/ per month. It is made clear that even if the respondent is not able to prove the license fees as Rs. 1500/ per month, then that cannot disprove his case against the appellant as the appellant is a licensee in the property in question. The respondent had to stand on his own legs to prove that the license fees was Rs. 1500/ per month which he is failed to do, however, as per the own admission of the appellant that she was paying Rs. 400/ per month, therefore, I also deem it appropriate to award Rs. 1600/ per month a license fees to the respondent instead of Rs. 6000/ as claimed. Accordingly, I fully concur with the finding of the learned trial court that the respondent is entitled to recover Rs. 1600/ per month as arrears of license fees. Accordingly, I upheld the findings of the learned trial court qua issue no. 2.
26. It has been further urged by the learned Counsel for the respondent that the respondent is also entitled to claim damages for regular use and occupation of the property in question. On the other hand, it has been urged by the learned Counsel for the appellant that since there is no prayer clause in the plaint filed by the respondent before the learned trial court in this regard, so RCA No. 5133/16 Page 24 of 26 the respondent is not entitled to damages.
27. The learned trial court has allowed this prayer of the respondent and has awarded a sum of Rs. 400/ per month as damages during the time of recovery of the possession of the property in question. Now Order VII Rule 7 of the CPC has become relevant in this regard which provides that the Court can grant general or other relief which may not have been specifically prayed for by the respondent if the Court thinks just for the grant of such relief.
28. Now in the present case from the pleadings of the parties and evidence tendered by both the parties, it is clear that the relief of damages forms an integral part of the case of the respondent and as already observed herein above that the respondent is entitled to recover possession of the property in question and the arrears of license fees, hence, I fully concur with the observations of the learned trial court that the respondent is entitled to damages @ Rs. 400/ per month till the recovery of the possession from the appellant. RELIEF :
29. In the light of above discussions, no relief can be granted to the appellant.
30. Accordingly, I do not find any reason to interfere in the findings of the learned trial court. I see no substance in this RCA No. 5133/16 Page 25 of 26 appeal as nothing could be pointed out from the contentions of the appellant. There is no infirmity in the impugned Judgment of the learned trial court.
31. In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed. However, parties are left to bear their own costs.
32. It is needless to mention here that whatever amounts have been handed over by the appellant to the respondent during the proceedings of the present appeal shall be adjusted towards arrears of license fees and damages so granted.
33. Record of the learned trial court be sent back along with an attested copy of the Judgment passed today. Decree Sheet be drawn accordingly. Appeal file be consigned to Record Room, after completing the necessary formalities.
RAJNISH Digitally signed by RAJNISH
Announced in the open Court
BHATNAGAR
BHATNAGAR Date: 2018.11.27 15:17:30 +0530
today i.e. 20.11.2018 (RAJNISH BHATNAGAR)
Distt. & Sessions Judge (NorthWest)
Rohini Courts, Delhi
RCA No. 5133/16 Page 26 of 26