Delhi District Court
Smt. Krishna Devi vs Sh. Bhim Sain on 31 July, 2014
IN THE COURT OF SH. M. P. SINGH, SENIOR CIVIL JUDGE, RENT
CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Suit No. 256/06
Unique Case ID No. 02402C0349152003
Smt. Krishna Devi,
W/o Late Bhagat Ram,
R/o H. No. 2984A/2, Gali No. 5,
Shalimar Extension, Shahdara, Delhi. ...........Plaintiff
Versus
1. Sh. Bhim Sain
S/o Late Birbal Singh
R/o H. No. A56, Gali No. 2,
Jwala Nagar, Shahdara, Delhi32.
2. Sh. Ram Kishan Verma s/o Late Birbal Singh (since deceased)
(Represented by LRs no. 2A to 2F)
2A. Sushil Kumar Verma (son, arrayed as defendant no. 4 also)
Address: Court seat, near Tehsil Building,
Opposite SBI, Tis Hazari Court, Delhi
2B. Vinod Verma (son)
2C. Pramod Verma (son)
2D. Ms. Baby (Daughter)
2E. Smt. Phoolwati Devi (wife)
LRs 2A to 2E resident of Duplex no. 9,
Opposite Ganpati Banquet Hall, Sector5,
Rajender Nagar, Sahibabad, District Ghaziabad, UP
2F. Ms. Kamlesh Verma (daughter)
R/o D200, Euro Apartments,
Opposite Ganpati Banquet Hall, Sector5,
CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 1 of 34
Rajender Nagar, Sahibabad, District Ghaziabad, UP
3. Sh. Manoj Kumar
s/o Sh. Bhim Sain
R/o H. No. 856, Gali no. 2,
Jwala Nagar, Shahdara, Delhi32
4. Sushil Kumar Verma
S/o Late Ram Kishan Verma
Address: Court seat, near Tehsil Building
Opposite SBI, Tis Hazari Court, Delhi
5. Gian Chand
S/o Sh. Shibbu Mal
R/o 267 (F.F.), Bara Bazar,
Shahdara, Delhi32 ......... Defendants
SUIT FOR PARTITION, DECLARATION, POSSESSION AND
PERMANENT INJUNCTION
Case filed on 29.08.2000
Arguments heard on 07.05.2014
Judgment pronounced on - 31.07.2014
JUDGMENT
1. The legal question in the instant case, inter alia, is, whether, on the demise of a tenant, his heirs can inter se seek to partition the tenanted premises and pray for declaration of their separate shares therein.
2. Facts, as set out in the plaint, may be recounted. Late Birbal Singh was a tenant in shop no. 267, Bara Bazar, Shahdara, Delhi at monthly rental of Rs. 03.64/ under the landlordship of Sh. Bhagwat Pershad and Sh. Durga CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 2 of 34 Pershad for more than six decades. Presently, defendant no. 5 Gian Chand is stated to be the landlord. Late Birbal Singh was a goldsmith and used the tenanted shop as such. On personal front, he had two spouses. Children from his first marriage, who are not parties to the instant suit, lived separately and, it is stated, had got their share during their father's lifetime and they thus have no concern with the dispute visavis the tenanted shop. From the second marriage, it appears from the plaint, he was blessed with three sons, namely, Bhagat Ram (plaintiff's late husband), Ram Kishan Verma (D2) and Bhim Sain (D1). In November, 1988, Birbal Singh left, in Shakespeare's words, for the undiscover'd country, from whose bourn no traveller returns.
3. Plaintiff, widow of late Bhagat Ram, avers that her fatherinlaw late Birbal Singh used to be assisted by all his three sons in running the shop. Besides assisting their father, they also used to look after their separate businesses. Bhagat Ram, plaintiff's husband, left for his heavenly abode on 10.04.2000.
4. During his lifetime, late Birbal Singh is stated to have permitted his grandson Sushil Kr. Verma (D4), a legal practitioner, to run his office from rear portion of the tenanted shop. Bhim Sain (D1), however, allegedly used to harass and threaten Sushil (D4) to dispossess him from the tenanted shop. Sushil (D4) then lodged a police complaint, whereupon a case under section 145, Criminal Procedure Code (CrPC) came to be registered. During 'investigation' plaintiff's late husband is stated to have given statement to the CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 3 of 34 police on 24.07.1992 to the effect that the tenanted shop was being used by Sushil (D4) in terms of permission granted by late Birbal Singh and that all the three brothers were entitled to it and further that they would settle the matter amicably on return of Ram Kishan Verma (D2), who was serving in UP Police at Moradabad. Plaintiff's late husband, it is stated, in his statement to the police also accused Bhim Sain (D1) of wanting to usurp the tenanted shop all to himself. During the 'investigation', it is stated, the tenanted shop was locked and its keys remained with plaintiff's late husband with the consent of all the defendants. Plaintiff goes on to state that this was done so that there could be an amicable resolution of the disputes qua the shop upon return of Ram Kishan Verma from his place of posting. However, that occasion never came during plaintiff's husband's lifetime.
5. D4 Sushil also filed a criminal complaint under sections 420, 467, 471, 474 read with section 120B of Indian Penal Code, 1860 against Bhim Sain (D1) and his associates. In his criminal complaint, Sushil (D4) alleged that Bhim Sain (D1) had forged and fabricated a Will purportedly executed by late Balbir Singh on 11.11.1987 qua the tenanted shop.
6. He also instituted a civil suit for permanent and mandatory injunctions bearing no. 534/92 titled as 'S. K. Verma Vs. Bhim Sain & Anr.' Plaintiff avers that her husband, being a brain TB patient, was bedridden under constant medical treatment for 2 ½ years and that he never ever appeared before the Court of Sh. A. K. Kuhar, Ld. Civil Judge. She states that Bhim CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 4 of 34 Sain (D1) obtained vakalatnama from her husband to engage a lawyer on his behalf, but he 'controlled' all the proceedings, drafting etc. She goes on to state that her husband was mentally and physically incapacitated and was surviving only on medicines which lasted up to 10.04.2000, when he breathed his last.
7. At the time of plaintiff's husband's death ceremony, all the relatives, including the defendants, gathered at her residence and are stated to have assured her that she would be given her due share in the tenanted shop and that her son, then aged 16 years, would be adjusted in the shop's business. They further assured to help the plaintiff in marriages of her three daughters. However, all these assurances, it is alleged, turned out to be hollow. Plaintiff avers that after her husband's demise she was in a great shock as she had to shoulder the responsibilities of her grownup children with no income. She also avers that after her husband's demise Bhim Sain (D1) and his children used to initially visit her house and that everything in her house was open to them as usual.
8. In July, 2000 plaintiff visited the market and to her surprise saw D3 Manoj (son of D1 Bhim Sain) sitting at the tenanted shop and operating the shop's business. On inquiry, she came to know that Bhim Sain (D1) and Manoj (D3) had entered into a settlement with D2 Ram Kishan Verma and D4 Sushil and that pursuant to the settlement Bhim Sain (D1) and Manoj (D3) became the 'sole owner/tenant' of the shop in question. She then CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 5 of 34 inspected the judicial file of civil suit bearing no. 534/92 titled as 'S.K. Verma Vs. Bhim Sain & Anr.' and came to know that the same had been withdrawn on 12.05.2000 and that one H.L. Kapoor, Advocate had given statement on her husband's behalf despite the fact that he was no more in this world. She thus accuses the defendants of having played a fraud upon her and states that she has been deprived of her legitimate rights in the shop and its business. Plaintiff's claim is that she is entitled to 1/3rd share in the tenanted shop. She alleges that despite her entitlement to a share in the shop, Bhim Sain (D1) and Manoj (D3) did not let her son sit at the shop. On these averments, plaintiff seeks the following reliefs:
(a) A decree of declaration thereby declaring that plaintiff is entitled to 1/3rd share in the tenanted premises bearing no. 267, Bara Bazar, Shahdara, Delhi and that she is a joint tenant therein;
(b) A preliminary decree of partition thereby demarcating 1/3rd share in the shop no. 267, Bara Bazar, Shahdara, Delhi since the structure of the shop is such that it can be partitioned by metes and bounds;
(c) A decree of possession in plaintiff's favour consequent to preliminary decree passed in respect of the said premises;
(d) A permanent injunction decree in plaintiff's favour thereby restraining the defendants from parting with possession, alienating, transferring or creating third party interest in the suit premises bearing no. 267, Bara Bazar, Shahdara, Delhi as shown in the site plan attached;
(e) A permanent injunction decree thereby restraining defendant no. 5 from transferring the shop in dispute or issuing rent receipt to any other person more particularly defendants no. 1 to 4 without effecting the legal partition as per the law; and CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 6 of 34
(f) Costs of the suit and any other relief which the Court may deem fit and proper in the circumstances of the case.
9. Bhim Sain (D1) and Manoj (D3) entered the contest by filing their written statement on 24.12.2003. They admit that late Birbal Singh was the original tenant of the shop and that he used to do goldsmith business therein. However, according to them, after late Birbal Singh's demise, it is Bhim Sain (D1) alone who has been in actual physical possession of the shop in his capacity as a tenant and paying rentals thereof to defendant no. 5. They assert that except for Bhim Sain, late Birbal Singh was not assisted either by Ram Kishan Verma (D2) or by plaintiff's late husband in the goldsmith business. They thus take the stand that Bhagat Ram (plaintiff's late husband) and Ram Kishan Verma (D2), by their implied conduct, surrendered their tenancy rights in favour of Bhim Sain (D1).
10. Bhagat Ram, it is pointed out, on the contrary, had categorically admitted that Bhim Sain (D1) was in actual physical possession of the shop as a tenant of defendant no. 5 and that he (D1) was doing goldsmith business therein with the assistance of his son Manoj (D3) after his father's demise. They state that in fact Bhagat Ram from the very beginning was doing an independent business of his own as a fruit and vegetable broker in Subzi Mandi, near Radhu Cinema, Shahdara, Delhi. They aver that one shop bearing no. 26 was allotted to the plaintiff and her late husband. They submit that plaintiff's late husband never paid any rent to the landlord. They go on to CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 7 of 34 submit that Bhagat Ram had been given his due share and had been separated by late Birbal Singh during his lifetime. They thus urge that Bhagat Ram, by his implied conduct, surrendered his tenancy rights in favour of Bhim Sain (D1). They also urge that on the basis of principle of estoppel, the plaintiff now cannot claim any right in the shop.
11. As regards Ram Kishan Verma (D2), they submit that he, being in U.P. Police, used to always remain at his place of posting and as such never had any time to assist his father at the shop. Ram Kishan Verma (D2) too, it is stated, had admitted that after his father's demise, Bhim Sain (D1) was the only tenant of the shop. They point out that even Ram Kishan Verma (D2) never claimed and asserted his tenancy right in the shop and never paid any rent to the landlord. They thus submit that he too had impliedly surrendered his tenancy right qua the shop in favour of Bhim Sain (D1).
12. Defendants Bhim Sain and Manoj go on to deny that late Birbal Singh permitted Sushil (D4) to run his office from the shop. They state that the suit filed by Sushil (D4) was a false one, which was later on withdrawn as compromised at the instance of plaintiff's late husband who had categorically admitted that Bhim Sain (D1) was the only tenant. They aver that Bhagat Ram had appointed and given vakalatnama to his advocate and that, prior to his death, he had given his consent to the compromise in the civil suit. According to them, plaintiff's late husband in the civil suit filed by D4 had admitted that defendant no. 1 was the only tenant. As regards, the criminal CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 8 of 34 complaint filed by Sushil (D4), they submit that 'as a matter of fact, there was no alleged such Will as alleged by defendant no. 4 in the alleged complaint'. Initiation of proceedings under section 145, CrPC at the instance Sushil (D4) is not specifically denied.
13. Aside from the above, D1 and D3 have taken few legal objections. They state that the suit is hit by the law of limitation, barred under the principles of law of estoppel and without any cause of action. They also state that the plaintiff, being out of possession of the tenanted premises, ought to have valued the suit for the purpose of court fees as per its market value. It is also pointed out that the tenanted shop is an impartible estate. They seek dismissal of the suit.
14. Defendant no. 4 Sushil, as per report of the process server, was served on 11.12.2001 through someone else. He was again served on 20.03.2002. Defendant Sushil was personally served on 17.12.2003 and on 13.01.2004. Process was issued to defendant no. 5 Gian Chand on numerous occasions, however he remained unserved with the report that his premises was locked. On 27.03.2002 process server visited his house where his servant met who informed that Gian Chand was available at his shop. Defendant Gian Chand was thereafter served through affixation on 05.09.2002. Insofar as D2 Ram Kishan Verma (father of D4 Sushil), who was resident of Ghaziabad, is concerned, he remained unserved with a report dt. 14.01.2003 of the process server to the effect that he does not reside at the given address. The record CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 9 of 34 reveals that D4 Sushil suffered the proceeding ex parte on 04.03.2004. D5 Gian Chand suffered the proceeding ex parte on 18.03.2004. Order dt. 07.04.2004 reflects that D2 Ram Kishan Verma is 'already ex parte'. I must note that on the demise of D2 Ram Kishan Verma his legal heirs were served through publication in the newspaper, 'Rashtriya Sahara' dt. 24.01.2014. In any event, D2 Ram Kishan would have had the knowledge of the pendency of the present case inasmuch as his son (D4 Sushil) stood served on numerous occasions. For the present purpose, I shall take that D2 Ram Kishan Verma, D4 Sushil and D5 Gian Chand are ex parte.
15. The issues, struck on 09.08.2007, are as follows:
1) Whether the plaintiff is entitled to a decree of declaration to the effect that she is entitled to 1/3rd share in the joint property bearing No.267, Bara Bazar, Shahdara, Delhi and that she is the joint tenant in the joint property? OPP
2) Whether the plaintiff is entitled to a preliminary decree demarcating 1/3rd share in the shop bearing no. 267, Bara Bazar, Shahdara, Delhi?
OPP
3) Whether the plaintiff is entitled to a decree of possession, if such preliminary decree is passed? OPP
4) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from parting with possession, alienating, transferring or creating third party interest in the suit property? OPP CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 10 of 34
5) Whether the present suit is barred by the reason of improper valuation for the purpose of court fee and jurisdiction? OPD
6) Relief.
16. Plaintiff Smt. Krishna Devi entered the witness box as PW1. Her examinationinchief is entirely along the same lines as averred in the body of the plaint. She exhibited the site plan as Ex. PW1/1. Mahesh Verma (plaintiff's younger sister's husband) and Umesh Chand Verma (fatherinlaw of plaintiff's daughter) were examined as PW2 and PW3 respectively.
17. In defendants' evidence, defendant Bhim Sain examined himself as DW1. He exhibited his affidavit and supplementary affidavit as Ex. DW1/1 and Ex. DW1/2 respectively. He relied upon large number of documents, which are as follows:
➢Ex. DW1/A is certified copy of the first page (reflecting memo of parties only) of the civil suit bearing no. 534/92 titled as 'S. K. Verma Vs. Bhim Sain & Anr.';
➢Ex. DW1/B is the certified copy of an affidavit dt. 11.01.1993 of Bhagat Ram filed in the aforesaid civil suit no. 534/92; ➢Ex. DW1/C is certified copy of the opening sheet of an appeal preferred by Sushil (D4) against Order dt. 23.10.1993 passed by Ms. Kamini Lau, the then Ld. Civil Judge, on his application under Order XXXIX Rules 1 & 2 read with section 151, CPC in the aforesaid civil suit bearing no. 534/92;
CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 11 of 34 ➢To the aforesaid appeal preferred by Sushil (D4) there is a reply of the respondents under the signatures of Sh. H.L. Kapoor, Advocate. Each and every page of this reply of the respondents has been exhibited and it ranges from Ex. DW1/D to Ex. DW1/J;
➢Copy of an application dt. 15.02.1985 for renewal of licence addressed by Bhagat Ram to 'The Secretary, Agricultural Produce Market Committee, Azadpur, Delhi33' is Ex. DW1/O; ➢Rent receipt/counter foil dt. 10.08.1979 as Ex. DW1/P; ➢Rent receipt/counter foil dt. 13.01.1980 as Ex. DW1/Q; ➢Rent receipt/counter foil dt. 01.09.1980 as Ex. DW1/R; ➢Rent receipt/counter foil dt. 11.05.1981 as Ex. DW1/S; ➢Rent receipt/counter foil dt. 13.02.1982 as Ex. DW1/T; ➢Rent receipt/counter foil dt. 21.10.1987 as Ex. DW1/U; ➢Rent receipt/counter foil dt. 01.11.1987 as Ex. DW1/V; ➢Rent receipt/counter foil dt. 01.01.1989 as Ex. DW1/W; ➢Rent receipt/counter foil dt. 01.01.1992 as Ex. DW1/X; ➢Rent receipt/counter foil dt. 07.07.1999 as Ex. DW1/Y; ➢Rent receipt/counter foil dt. 13.01.2000 as Ex. DW1/Z; ➢Rent receipt/counter foil dt. 14.07.2000 as Ex. DW1/ZA; ➢Rent receipt/counter foil dt. 17.07.2001 as Ex. DW1/ZB; ➢Rent receipt/counter foil dt. 21.01.2001 as Ex. DW1/ZC; ➢Rent receipt/counter foil dt. 06.08.2002 as Ex.DW1/ZD; CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 12 of 34 ➢Rent receipt/counter foil dt. 12.01.2003 as Ex. DW1/ZE; ➢Weight and Measures Verification Certificate dt. 07.04.1992 in the name of Bhim Sain Verma, 267, Bara Bazar, Shahdara, Delhi as Ex. DW1/ZF;
➢Copy of Form No. 'B' (licence) dt. 05.11.2009 issued by Krishi Upaj Mandi Samiti, Shahdara in the name of firm M/s Birbal Bhagat Ram Verma qua shop no. 26, Subji Mandi as Ex. Mark A; and ➢Photograph of a shop having display board of 'M/s Birbal Bhagatram Verma' as Ex. Mark B.
18. One A.M. Kukreti, Mandi Supervisor, was examined as DW3. He exhibited copy of an application submitted by plaintiff Krishna Devi for renewal of license for the year 20082009 qua Gazipur Subzi Mandi shop as Ex. DW3/1. He also proved on record the aforesaid document Ex. DW1/O. As regards the aforenoted document Ex. Mark A, he stated that the same, being a licence given in original to the trader, was not available in the office record of the Mandi.
19. Mehar Singh, LDC, Record Room (Sessions), Tis Hazari Courts was examined as DW4. He stated that judicial file of civil suit no. 710/93 (decided on 22.01.1993) had been destroyed on 14.06.2006. He exhibited the certificate in this regard as Ex. DW4/A.
20. DW5 was one Sh. Yogesh Raj, Inspector, Weight and Measurement. He exhibited a letter dt. 23.11.2009 under the signatures of Zonal Officer CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 13 of 34 (East Zone), Weights and Measures Department, Delhi addressed to the Court as Ex. DW5/A. Copy of a cash book is Ex. DW5/B. Copy of Weight and Measures Verification Certificate dt. 07.04.1992 in the name of Bhim Sain is Mark DW5/C (Original of this document is Ex. DW1/ZF).
21. Kamal Kishore, LDC, Copying Agency (Civil), Tis Hazari Courts, Delhi stepped into the witness box as DW6. He stated that documents Ex. DW1/A and Ex. DW1/B were issued by Copying Agency (Civil), Tis Hazari Courts. Copy of the relevant page of the copying agency register containing the relevant entry in this regard is Ex. DW6/1.
22. DW7 was one Inderjeet, UDC, Record Room, Tis Hazari Courts, Delhi. He appeared with the judicial file of the CS no. 534/92 and proved documents Ex. DW1/A and DW1/B.
23. Deepak son of Gian Chand was examined as DW8. He stated that he owned shop no. 267, Bada Bazar, Shahdara, Delhi and that he had issued rent receipts Ex. DW1/Y to DW1/ZE under his signatures to Bhim Sain Verma. He also stated that rent receipts Ex. DW1/U to Ex. DW1/X had been issued by his father. Copy of rent receipt counter foil dt. 01.01.2001 is Ex. DW8/A.
24. DW9 was one Rajesh Kumar, LDC, Copying Agency, Tis Hazari Court. He proved no document as the summoned record had been destroyed. In this regard, he placed on record copy of a letter dt. 19.12.2009 {Ex. DW9/A (colly)} addressed by OfficerInCharge, Copying Agency Branch, Tis Hazari Courts, Delhi to Ld. District & Sessions Judge, Delhi. CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 14 of 34
25. I have heard the arguments at Bar and perused the record.
26. Issuewise findings are as follows.
27. Issue no. 2 The issue is whether the plaintiff proves that she is entitled to a preliminary decree of partition qua the tenanted shop in question. This issue can be dealt with from a purely legal perspective. The law is well settled that on the death of a tenant, it is a single indivisible tenancy that devolves upon his heirs. No amount of evidence and astute drafting of pleadings would suffice to overwhelm this settled legal position. If any citation is needed, then the decision reported as Delhi Cloth Market Trust Committee Vs. Sheila Devi, 2001 Rajdhani Law Reporter 63 can be referred to in this regard. In this case, Delhi High Court, relying on an Apex Court decision of Harish Tandon Vs. Addl. D.M., AIR 1995 SC 676, held that a deceased tenant's legal heirs inherit a single, indivisible tenancy. The relevant observations in this regard are as follows:
16. It is settled law that on the death of a tenant what devolves on his heirs is single indivisible tenancy and not as many separate tenancies as are the heirs of such tenant. I am ignoring for the present that the tenancy had been terminated and am proceeding on a basis that service of a determination notice upon the deceased tenant makes no difference to the rights of the heirs.
17. In Harish Tandon Vs. Addl. D.M., AIR 1995 SC 676 it was laid down:
It appears to us in the case of H.C. Pandey Vs. G.C. Paul (AIR 1989 SC 1470) it was rightly said by this Court that after the death of the original tenant, subject to any CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 15 of 34 provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants.
18. Therefore, the respondent is not right when she contends that she acquired separate independent rights on her father's death.
She was, at best, one of the joint owners of a single indivisible tenancy. It was not and could not be a case of Babu Ram's tenancy converting upon his death in 1972 into eight separate tenancies.
28. The bottomline, therefore, is that in the face of this settled legal position plaintiff Smt. Krishna Devi cannot seek partition of the tenanted shop, of which her fatherinlaw late Birbal Singh was the original tenant. And any amount of evidence from her side will not be enough to surmount this law of the land. The tenancy that devolved upon the heirs of late Birbal Singh, upon his demise, was single and indivisible. The tenancy, being single and indivisible, therefore couldn't and cannot be subjected to divisions. Consequently, the relief of partition of the tenanted shop, as sought for by plaintiff Smt. Krishna Devi, cannot be granted. This issue thus stands decided against the plaintiff.
29. Issue no. 3 The issue is whether the plaintiff proves that she is entitled to a decree of possession, if such preliminary decree is passed. Plaintiff Smt. Krishna Devi seeks possession of 1/3rd portion of the tenanted shop consequent to its partition by metes and bounds. But, as already held hereinabove, she cannot, under the law, seek partition of the tenanted shop. In CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 16 of 34 this view of the matter, this Court cannot grant possession of any portion of the tenanted shop to her; and that too by dispossessing defendant Bhim Sain who is admittedly in occupation thereof. This issue too goes against the plaintiff.
30. Issue no. 1 The issue is whether the plaintiff proves that she is entitled to a decree of declaration to the effect that she is entitled to 1/3 rd share in the joint property bearing no. 267, Bara Bazar, Shahdara, Delhi and that she is a joint tenant in the joint property.
31. In view of the decision on issue no. 2, this Court cannot issue a declaratory decree to the effect that plaintiff Smt. Krishna Devi is entitled to a fraction (1/3rd) of the tenanted shop. A deceased tenant's legal heir or his/her spouse cannot, under the extant law, be granted a declaratory decree to the effect that he/she is entitled to a certain fraction of the tenanted shop. This is simply impermissible.
32. The second limb of this issue is whether the plaintiff is entitled to a declaration that she is a 'joint tenant' in the tenanted shop. At the outset, I must state that declaratory relief is a discretionary one and this is quite evident from a bare reading of section 34, Specific Relief Act, 1963.
33. This Court is conscious of the Apex Court verdict as to heritability of a nonresidential tenancy (Gian Devi Anand Vs. Jeevan Kaur, AIR 1985 SC 796). And therefore, on the demise of Birbal Singh in November, 1988, the tenancy right in the shop would have devolved upon all his legal heirs. CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 17 of 34 But, it ought to be also borne in mind that the law also provides for implied surrender of tenancy {Section 111 (f), Transfer of Property Act}. The Apex Court in Pushpa Rani Vs. Bhagwanti Devi, AIR 1994 SC 774 accepted a contention based on implied surrender and also, inter alia, held that this principle does not clash with the principle of heritability of nonresidential tenancy. The relevant observations are as under:
"On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights of tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi's case 1985(1) Suppl. SCR 1: AIR 1985 SC 796) as to the heritability of a nonresidential tenancy relied upon by Shri Gupta does not detract from, and is not inconsistent with the principle of implied surrender. The findings of implied surrender, in our opinion, are supported by evidence on record. Both the Rent Control Tribunal and the High Court, in our opinion were right in not countenancing the claim of the heirs which incidentally came through a challenge on the executing side. So far as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
34. Therefore, in order to ascertain whether plaintiff Smt. Krishna Devi is entitled to a declaratory decree that she is a 'joint tenant' in the tenanted shop, it is necessary to determine as to whether or not there is/was an implied surrender of the tenancy right on her or her husband's part. In the context of CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 18 of 34 implied surrender of tenancy, in Delhi Cloth Market (supra) it was observed as under:
22. Assertion of tenancy takes various forms and specially for the commercial premises, in addition to the payment or tender of rent and actual physical possession, there are questions of participating in or carrying of business as may be evidenced by operation of bank accounts, filing of incometax, salestax returns, Shop Establishment Act, Sales Tax and others. Absence of these go to show that the daughter was not asserting her right with regard to the premises. Such assertion of right to begin with apart from formal communication could also take the from of tender of rent or for asking of rent receipts and upon failure seeking deposit in court of taking other steps as may be considered proper. It is not plaintiff Shiela Devi's case that she did anything of the like.
23. If the tenant is one, a surrender can be implied from possibly a single event, but if there is a joint tenancy, then the court would be somewhat slow to infer implied surrender and it would require conduct over a period of time before such inference can be raised.
For instance, if one of the joint tenants ceases to participate in the joint business and goes away to another town, does not return for some time and settles down there, an implied surrender by him would be inferred.
24. The period here is a very long one. For as many as 13 years there was no assertion of that right by plaintiff Shiela Devi. With no assertion, even half of that period would have sufficed to raise an inference of implied surrender. After all, if a person has a right, not only exercise but assertion of that right is expected.
25. If the plaintiff had placed material of record which would have persuaded the court to hold that it was she and not the others who were in actual possession and running the business in the premises, the position would have been quite different. In the absence of any material on record, it must be held that there was an implied surrender of the rights by Shiela Devi.
CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 19 of 34
35. In the case at hand, ever since November, 1988 till year August, 2000 (when the instant suit was filed), there was never an assertion of the tenancy right by plaintiff's husband or any of his legal heirs, including the plaintiff. DW8 Deepak son of Gian Chand in his evidence categorically stated that ever since 1983, it is Bhim Sain who has been paying the rentals. He also stated that rent receipts Ex. DW1/Y to Ex. DW1/ZE were issued by him to Bhim Sain. The counterfoils of these rent receipts, DW8 Deepak stated, bear the signatures of Bhim Sain. That apart, DW1 Bhim Sain produced large number of original rent receipts starting from 1979 till the year 2003 from his possession and exhibited them on record. DW8 Deepak in his evidence also stated, "No other person never tried to pay the rent of the disputed property except Sh. Bhim Sain Verma." This clinching evidence regarding payment of rentals by none else, except for Bhim Sain, is ipso facto sufficient to hold that it was Bhim Sain who had all along been asserting his tenancy right. The fact that no other person except for Bhim Sain, ever tried to pay the rent only goes to show that the other heirs of Birbal Singh were not interested to assert their tenancy right. It is one thing to say that a person has a right, but an entirely different thing to say that such a right is asserted.
36. Plaintiff in her evidence deposed that the rent used to be alway paid by her husband. This evidence of the plaintiff is not backed by any material on record. There is no document whatsoever on record to even remotely suggest that late Bhagat Ram had paid the rent even on one occasion. The mere self CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 20 of 34 serving ipse dixit of PW1 Krishna Devi in this regard would not suffice. This would also not suffice to set at naught large number of rent receipts that Bhim Sain produced from his possession and the deposition of DW8 Deepak as noted hereinabove.
37. It was further the plaintiff's stand that her husband used to deliver the rent to the landlord and receive rent receipt(s) in favour of Birbal Singh. However, this averment remains only an averment without anything to substantiate it. The question to be asked is if at all late Bhagat Ram used to deliver the rent to the landlord and take rent receipt(s), then why is it that counterfoil of not even one rent receipt bear his signatures. That apart, if late Bhagat Ram used to obtain the rent receipts, then why is that plaintiff has not been able to produce even a single rent receipt from her possession. Lastly, this portion of evidence of the plaintiff is in stark contrast with that of DW8 Deepak when he states that no other person, other than Bhim Sain, ever tried to pay rent to me. For very obvious reasons, on this score, I cannot accept the self serving ipse dixit of the plaintiff and discard that of DW8 Deepak and more so when there is absolutely no material on record to back up this claim of hers.
38. Plaintiff alleges that rent receipts in favour of Bhim Sain are forged. However, it is not stated as to how and in what manner such rent receipts of Bhim Sain are forged. Secondly, what is very striking is that there was not a single suggestion put to DW8 Deepak to the effect that rent receipts of Bhim CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 21 of 34 Sain are forged. What is, therefore, absolutely clear is that plaintiff's allegation regarding the forgery of rent receipts of Bhim Sain are perfunctory at best.
39. Great stress was laid by plaintiff on the fact that DW8 Deepak in his examinationinchief stated, "Bhim Sain Verma is not my tenant. Birbal is my tenant". Plaintiff also drew Court's attention to the following statements of DW8 Deepak in his crossexamination, "It is correct that the receipt issued by me even after the death of Birbal was in favour of Birbal as tenant. All the receipts were issued in the name of Birbal Singh as my tenant. The receipt Ex. DW1/U to to ZE (colly) bears the name of Birbal as my tenant. No rent receipt were issued to Bhim Sain Verma as tenant. It is correct that the rent receipt were not issued to Bhim Sain verma as he was not my tenant. Sh. Birbal was my tenant. It is correct that I have not issued the rent receipt to Sh. Bhim Sen as tenant." Riding on this portion of deposition of DW8 Deepak it was strongly urged that Bhim Sain Verma cannot be considered to be the tenant. However, this line of argument of the plaintiff is seriously flawed for the following reasons.
(a) The issue here is not whether the defendant Bhim Sain is the tenant or not; but the issue is whether the plaintiff proves that she is the cotenant. Therefore, the fact that DW8 Deepak in his evidence stated, "Bhim Sain Verma is not my tenant. Birbal is my tenant" cannot in any manner be inferred to say that it was Bhagat Ram who was actually the CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 22 of 34 tenant and that he had asserted his tenancy rights all along ever since his father's demise. To the negative averment that, 'Bhim Sain Verma is not my tenant', a positive spin cannot be put that 'Bhagat Ram or his legal heirs are the tenant(s) and that they had all along asserted their tenancy rights'.
(b) It should not be forgotten that DW8, in the same breath, also stated in categorical terms that it was Bhim Sain who had been paying the rentals since 1983 and that no person other than him ever tried to pay the rentals.
(c) DW8 Deepak states that Birbal is my tenant and that rent receipts are being issued in his name even after his demise. The question to be asked is whether a dead person can be a tenant. The answer has to be emphatically in the negative. DW8 Deepak errs on the side of caution when he states that Birbal, who is no more in this world, is his tenant and that rent receipts are still being issued in his name. DW8 Deepak is not a legally trained mind. He does not know the intricacies of law. He is perhaps unmindful of the legal principle of surrender of tenancy rights as contained in section 111 (f), Transfer of Property Act. It is just like a layman not being as aware of medical science as a medical practitioner would be. To him, upon the demise of a tenant, all his heirs succeed to the tenancy, little realising that one who makes no assertion of the tenancy right over a long period of time is said to surrender it. CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 23 of 34 Whether a particular legal heir of a deceased tenant asserts his tenancy right or not, would not make much of an impression upon a landlord. To him all the legal heirs are the cotenants, irrespective of whether any legal heir asserts his tenancy right or not. Secondly, the landlord would not like himself to be seen in the crossfire between the legal heirs and it would be in his interest to maintain neutrality. And for this reason, it is safe for him to continue to issue rent receipt in the name of a dead person and assume that the dead person continues to be his tenant. And thirdly, landlord would not in a position to return a verdict as to whether a particular heir has surrendered his tenancy right, and if so, from what point of time. It is for the Court to delve into this issue. So long as the Court does not return a finding on this aspect, the landlord Deepak may blissfully believe that the dead man continues to be his tenant. To my mind, it is in this light that this statement of DW8 Depak has to be read. And therefore, when he says that Birbal is his tenant, it should not be taken as an assertion of the fact that Bhagat Ram or his legal heirs had asserted his tenancy right after Birbal Singh's demise.
(d) Lastly, even if the landlord were to say that a particular heir is his tenant, notwithstanding the fact that he did nothing at all to assert his tenancy right upon his father's demise, and it comes on record that in fact it was some other heir who had been paying the rentals and taking all other steps for continuation of the tenancy and the business; yet the CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 24 of 34 word of the landlord would not be the final word and the Court would not sail along with what he says in the face of overwhelming evidence that it was some other heir who was actually doing all that was required to continue the tenancy and the business.
40. The point therefore is that DW8 Deepak's statement to the effect that dead man continues to be his tenant and that rent receipts are being issued in his name, even after he reached death's door, will not take the plaintiff out of the woods. There is another perspective of this issue. At no point of time did Bhagat Ram ever write or correspond with his landlord regarding any matter concerning the tenancy. He never ever wrote to the landlord, after his father's demise, that it is from him (Bhagat Ram) from whom he (landlord) must accept the rent. At least, there is not a single averment to this effect in the entire plaint and plaintiff's evidence. Leave aside ever writing to the landlord about payment of the rentals, Bhagat Ram perhaps never ever met the landlord with with the purpose of conveying to the latter his intention to pay the rentals. The plaint is absolutely silent in this regard. Further, Bhagat Ram never took recourse to section 27, Delhi Rent Control Act, 1958. What is therefore clear is that the desire to carry forward the tenancy and the business from the tenanted shop was not there in plaintiff's late husband.
41. The fact that Bhagat Ram had no desire to carry forward the tenancy and the business from the tenanted shop in question is fortified by another circumstance. There is positive evidence on record to establish that Bhagat CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 25 of 34 Ram was carrying on a separate business from Subji Mandi, Shahdara. There is copy of an application dt. 15.02.1985 addressed by Bhagat Ram to the Secretary, Agricultural Produce Market Committee, Azadpur, Delhi33. This application (Ex. DW1/O) is for renewal of licence for trade in vegetables and fruits. This document, which stands proved by DW3 A.M. Kukreti, Mandi Supervisor, concerns a shop bearing no. 26, Subzi Mandi, Shahdara. Written text of this document reveals that the licence was sought for in the name of 'M/s Birbal Singh Bhagat Ram Verma'. Now the question is whether Bhagat Ram was continuing with the business of fruits and vegetables even after the demise of Birbal Singh from his shop at the Subzi Mandi. Material on record strongly suggests that Bhagat Ram had not discontinued his separate business at the Subzi Mandi. Going by testimonies of DW3 and DW1, this very Subzi Mandi was later on shifted to Gazipur, Delhi to facilitate construction of Shahdara Metro station. DW3 A.M. Kukreti states, "In our record the renewal form in the name of Smt. Krishna Devi as proprietor of M/s Birbal Bhagat Ram is available. The renewal form is dated 8/9/2008 and it also bears the photographs of Smt. Krishna Devi. The licence is now being issued in the name of the firm which is being operated by Smt. Krishna Devi as proprietor and the said firm is doing business of vegetables and fruits . At present Smt. Krishna Devi is depositing licence fee. The photocopy of licence renewal form dated 8/9/2008 is Ex. DW3/1." The fact that a 'renewal' form in the name of 'M/s Birbal Bhagat Ram' was furnished and that the business is CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 26 of 34 that of 'vegetables and fruits' continued by none other than the spouse of Bhagat Ram is a strong indicator of the fact that the separate business in fruits and vegetables was not discontinued after the demise of Birbal Singh. Howsoever much the plaintiff (PW1) may refute her husband carrying on a separate business and PW2 and PW3 feign ignorance about it, fact of the matter would remain that there is positive evidence on record to prove that Bhagat Ram was carrying on a separate business of fruits and vegetables at Subzi Mandi. I must also mention here that at one place in her cross examination plaintiff (PW1) does admit that there is a shop at Gazipur in her name since the very beginning and that the photograph Ex. Mark A (in the affidavit of DW1 this photograph is referred to as Ex. Mark B) is of this very shop.
42. Next, Bhagat Ram, at no point of time after his father's demise, was in occupation of the shop with the avowed purpose of doing business. Going by plaintiff's averments in the plaint and her testimony, in the early 1990s (circa 1992) the tenanted shop was locked and its keys remained with her late husband with the consent of all the defendants. And this was done, plaintiff states, pursuant to onset of litigations by Sushil (D4) against Bhim Sain Verma (D1). Plaintiff goes on to state that the idea behind this was that there could be an amicable resolution of disputes qua the shop upon return of Ram Kishan Verma from his place of posting. However, the fact that keys of the shop remained with Bhagat Ram at a certain point of time in the early 1990s CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 27 of 34 would not be suggestive of the fact that he retained so with the avowed purpose of doing business therefrom. On the contrary, plaintiff's own deposition is to the effect that keys of the shop were kept with her husband merely as a stopgap arrangement, on the commencement of litigations, so that the disputes could be resolved upon return of Ram Kishan Verma (D2) from his place of posting. Now, going by plaintiff's own stand, her husband did not have keys of the shop with the understanding that he would start a business of his own therefrom; but he had the keys because disputes had cropped up between Bhim Sain (D1) and Sushil (D4) and that the disputes were to be resolved upon return of Ram Kishan Verma (D2).
43. In any event of the matter, there is no evidence on record to even remotely suggest that Bhagat Ram ever did any business from the tenanted shop. Plaintiff's evidence on this aspect is woefully inadequate. All that the plaintiff has to say is that her husband used to assist his father in the business. But whether he used to assist his father during his lifetime or not would not be in any manner a decisive factor. The point is whether after his father's demise he asserted his tenancy rights. Rendering assistance to father during his lifetime would not mean that the son/daughter has also started asserting his tenancy right. This is for the reason that so along as the father is alive, it is he who would remain the tenant irrespective of the fact that his son/daughter renders him great assistance in the business. And logically speaking, there can be no assertion of tenancy right by any one heir so long CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 28 of 34 as the original tenant is alive. An assertion of tenancy on the part of the son/daughter would have to be seen from the point of time after original tenant's demise.
44. In the case at hand, on the contrary, there is some evidence to prove that Bhagat Ram in fact did not carry out any business from the shop after his father's demise. And this evidence is offered by DW5 Yogesh Raj (Inspector, Weight and Measurement), who proved on record Weight and Measures Verification Certificate dt. 07.04.1992 (Mark DW5/C) in the name of Bhim Sain. The original of this document was exhibited by DW1 Bhim Sain as Ex. DW1/ZF. As is evident, this document is in defendant Bhim Sain's name and bears the date 07.04.1992, which is much after Birbal Singh's demise. Written text of this document reflects that it pertains to the shop 267, Bara Bazar, Shahdara, Delhi, which is the tenanted shop in question. To this document, there is no explanation at all from plaintiff's side.
45. Now I shall come to the civil suit bearing no. 534/92 titled as 'S. K. Verma Vs. Bhim Sain & Anr.'. It is an admitted fact that brothers Bhim Sain and Bhagat Ram were defendants in this case. There is certified copy of an affidavit dt. 11.01.1993 of Bhagat Ram filed in the aforesaid civil suit no. 534/92. This affidavit of Bhagat Ram is Ex. DW1/B. DW7 Inderjeet (UDC, Record Room, Tis Hazari Courts, Delhi) proved this affidavit from the original judicial file itself. In addition thereto, DW6 (Kamal Kishore, LDC, Copying Agency (Civil), Tis Hazari Courts, Delhi) proved on record that the CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 29 of 34 certified copy of the affidavit Ex. DW1/B had been issued by Copying Agency (Civil), Tis Hazari Courts. This affidavit reveals something very vital. And this is that Bhagat Ram had 'adopted the facts, averments and defence as taken by defendant no. 1 (Bhim Sain) in the written statement as well as in the reply to application under Order 39 Rules 1 and 2 read with Sect. 151 CPC.' What is clear is that Bhagat Ram did not toe an independent line of his own visavis the shop in question. He was happy 'adopting the facts, defence and averments' as set up by his brother Bhim Sain. This circumstance, when taken in conjunction with the fact that Bhagat Ram had a separate business of his own, does imply that he was in fact not interested in asserting his own tenancy right in the shop.
46. Plaintiff attacked the proceedings of the civil suit on the ground that defendant Bhim Sain in fact 'controlled' all the proceedings, drafting etc. She also states that her husband was mentally and physically incapacitated for the last 2 ½ years of his life and that he never ever appeared before the Court of Sh. A. K. Kuhar, Ld. Civil Judge. Now, even if an allowance is given to the plaintiff for the last 2 ½ years of her husband's life; yet the result would not be any different. This is for the reason that the affidavit dates back to 11.01.1993 and plaintiff's husband passed away more than 7 years later on 10.04.2000. His medical troubles, as per plaintiff's statement, would have started in late 1997. The plaintiff does at all say that her husband did not sign and swear the affidavit in 1993. Further, I cannot believe that Bhim Sain CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 30 of 34 'controlled' all the proceedings, drafting etc. The fact of the matter, however, is that Bhagat Ram did not really desire to continue the tenancy in the tenanted shop and therefore he did not evince much of an interest in the litigation. Bhim Sain had much at stake in the shop and therefore he took active interest in the litigation. If taking active interest in a litigation by a litigant is termed as 'controlling' the proceedings, drafting etc. then I can only add that such an averment can certainly not be appreciated.
47. Plaintiff further attacks the civil proceedings on the ground that H.L. Kapoor, Advocate on 12.05.2000 gave a statement on behalf of her husband notwithstanding the fact that he had passed away on 10.04.2000. But, this would not in any manner detract from plaintiff's husband's conduct visavis the tenanted shop, as reflected in the umpteen circumstances noted hereinabove, and the affidavit dt. 11.01.1993 (Ex. DW1/B). I can only say that the plaintiff may resort to the remedies available to her under the law against H.L. Kapoor, Advocate. There is on record 'true copy' of the proceedings dt. 12.05.2000, but not proved. If this is any indication as to the proceedings that had taken place on 12.05.2000 then it must be noted that no terms of compromise were recorded on that day. Sushil (D4) had merely stated that he had withdrawn a case before the High Court and that he wanted to withdraw the suit as well for the matter had been amicable settled. This statement in no manner states that Bhagat Ram shall have no right in the tenanted shop. And a plaintiff may, at his own peril, very well decide not to CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 31 of 34 pursue a civil case. For these reasons, it is my view that this sole circumstance does not suffice for this Court to take a different view of the matter.
48. Having considered the second limb of this issue from all possible perspectives, I find that Bhagat Ram had, by his conduct reflected over a long period of time, surrendered his tenancy right in the tenanted shop. It is one thing to say that a cotenant has a tenancy right, but it is a different thing to say that such a right is asserted and claimed. And when such a right is not asserted and claimed over a long period of time, then under the law such tenancy right is said to have been impliedly surrendered. Plaintiff's claim to the tenanted shop is derived from that of her husband and in the event of her husband having impliedly surrendered his tenancy right, there can be no question of any right visavis the shop flowing to his spouse Krishna Devi. Consequently, for the aforesaid multiple reasons I answer the second limb of this issue by holding that plaintiff is not entitled to be declared that she is a 'joint tenant' in the tenanted shop.
49. Both the limbs of this issue go against the plaintiff. This issue (Issue no. 1) therefore stands decided against the plaintiff.
50. Issue no. 4 The issue is whether the plaintiff proves that she is entitled to a decree of permanent injunction to restrain the defendants from parting with possession, alienating, transferring or creating third party interest qua the shop. The relief of possession and partition stands declined. CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 32 of 34 The relief of declaration of the plaintiff being a 'joint tenant' and to a certain share in the tenanted shop also stands declined. Consequently, defendant Bhim Sain, or for that matter any of the defendants including the landlord, are under no legal obligation to the plaintiff qua the tenanted shop. A perpetual injunction can be issued, in terms of section 38, Specific Relief Act, 1963 to prevent breach of an obligation existing in plaintiff's favour. When the defendants are under no legal obligation to the plaintiff qua the tenanted shop, there can never arise any question of its breach. In any event of the matter, this relief of injunction suffers from laches. Bhagat Ram, at no point of time, after his father's demise in 1988, asserted his right in the tenanted shop. It was only in year 2000 that for the first time such a right came to be asserted. For these reasons the relief of permanent injunction, as sought for by the plaintiff, cannot be granted. This issue also goes against the plaintiff.
51. Issue no. 5 This issue concerns valuation of the suit for the purposes of court fees and jurisdiction. The relief for partition of tenanted premises is an unusual one. The Courtfees Act makes no provision for such a suit. Under Courtfees Act, provisions are there for partition of partible properties, but no provision for partition of tenanted shop which is inherently impartible and which in any case cannot be granted under the law. Therefore, given the circumstances, the valuation put on the relief of partition by the plaintiff has to be taken as correct (Article 17 (vi), Schedule II, Courtfees Act, 1870). Reliefs of declaration and injunction are valued by the plaintiff at Rs. 200/ CS no. 256/06 Krishna Devi Vs. Bhim Sain & Ors. Page 33 of 34 and Rs. 130/ respectively. Court fees valuation for the reliefs of injunction and declaration with consequential relief is governed by section 7 (iv), Court fees Act and the plaintiff is given a right to place any valuation for the purposes of court fees. On the relief of declaration with consequential relief, plaintiff is required to pay ad valorem court fees subject to minimum of Rs. 13/. On the relief of simplicitor injunction, plaintiff is required to pay ad valorem court fees subject to minimum of Rs. 13/. On the relief of only declaration, plaintiff is required to pay fixed court fees of Rs. 15. {see Delhi High Court Rules Chapter 3 Part C & D, Volume I}. Plaintiff affixed total court fees of Rs. 51 in her plaint which is sufficient. In terms of section 8, Suits Valuation Act the valuation put by plaintiff for court fees would be the valuation of reliefs under Suits Valuation Act as well. Consequently, I answer this issue by holding that the suit is valued properly for court fees and jurisdiction.
52. Relief In the light of findings upon the foregoing issues, this suit stands dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated:31.07.2014 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
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