Delhi District Court
Gali Qasim Jan vs Sh. Sheikh Mohd. Sayeed on 20 December, 2012
IN THE COURT OF SH. VIJAY SHANKAR, COMMERCIAL CIVIL
JUDGECUMADDITIONAL RENT CONTROLLER (CENTRAL)
TIS HAZARI COURTS, DELHI
SUIT NO.1246/2009
UNIQUE CASE ID NO.: 02401C0238552002
IN THE MATTER OF :
The Managing Committee,
Aminia Muslim Girls School
(Through its General Secretary)
Gali Qasim Jan, Ballimaran,
Delhi110006. ..... Plaintiff
VERSUS
1. Sh. Sheikh Mohd. Sayeed
S/o Sh. Sheikh Mohd. Yakoob
2. Sh. Sheikh Mohd. Kamil
S/o Late Hafiz Rehmat Elahi
Suit No.1246/2009 Page 1 of 13
Both r/o 205859, Ward No.VI,
Gali Qasim Jan, Ballimaran,
Delhi110006. .....Defendants
SUIT FOR RECOVERY OF POSSESSION AND RECOVERY OF
RS. 36,000/ AS DAMAGES FOR USE & OCCUPATION
Date of Institution of the Suit : 27/09/1996
Date on which Judgment was reserved : 12/12/2012
Date of Judgment : 20/12/2012
JUDGMENT :
1. By way of present judgment, this court shall conscientiously adjudicate upon suit for recovery of possession and recovery of Rs.36,000/ as damages for use and occupation, filed by the plaintiff against the defendants.
By way of present suit, the plaintiff has prayed for decree of possession against the defendants with regard to godown situated at ground floor of property No. 20582059, Gali Qasim Jan, Ballimaran, Suit No.1246/2009 Page 2 of 13 Delhi110006 (hereinafter referred to as 'suit property').
The plaintiff has also prayed for decree of recovery of Rs. 36,000/ as damages for use and occupation of the suit property for the period of three years immediately preceding the filing of the suit alongwith interest @ 18% per annum. The plaintiff has also prayed for the costs of the suit in its favour.
2. Brief facts necessary for just adjudication of the present suit as stated in the plaint are that plaintiff is a registered society registered under Societies Registration Act. Sheikh Mohd. Ahmed Tezabwalie is its Secretary and is competent to sign, file and present this suit vide resolution dated 03/01/1995. The defendants were given the suit property at a monthly licence fee of Rs.250/ vide licence deed dated 14/02/1969 by the plaintiff. The defendants who are habitual defaulter in payment of licence fee did not pay licence fee w.e.f. 01/06/1984 and in these compelling circumstances, the plaintiff got issued a legal notice dated 27/02/1989 to the defendants terminating their licence and the said notice was duly served upon both the defendants. However, defendants had sent a false and frivolous reply dated Suit No.1246/2009 Page 3 of 13 04/04/1989 stating therein that they are sending a cheque of Rs. 14,000/ alongwith reply but surprisingly no such cheque was found. The plaintiff vide its reply dated 25/04/1989 notified to the defendants that no such cheque had been found with reply dated 04/04/1989. The defendants again sent false and frivolous reply dated 03/05/1989 alleging therein that a cheque of Rs.14,000/ was enclosed with reply dated 04/04/1989. The defendants are liable to vacate the suit property as their position after service of notice dated 27/02/1989 is simply as that of a trespasser and being in unauthorised occupation of the suit property they are liable to pay damages for use and occupation of suit property at the market rate w.e.f. 01/04/1989 till they vacate the suit property. The plaintiff to avoid litigation had sent a last and final notice dated 14/12/1995 to both the defendants to which the defendants could not give any reply. Hence, the present suit.
3. The defendant No.1 had contested the present suit by filing detailed written statement wherein preliminary objections had been taken by him interalia suit of the plaintiff is not maintainable as same is barred u/s 50 of the DRC Act. The present suit of the plaintiff is not properly valued. The suit of the plaintiff is barred by limitation. The Suit No.1246/2009 Page 4 of 13 present suit has not been signed by duly authorised person. The defendant No.1 is also entitled to take the benefit of Section 60B of the Indian Easement Act, in case he is held to be licencee.
On merits, the parawise reply had been given by the defendant No.1 to the plaint of the plaintiff by denying the allegations/ contentions of the plaintiff and prayed for dismissal of the present suit.
It is stated by the defendant No.1 in the written statement that the suit property was let out to the defendant at a monthly rent of Rs.200/ which was increased to Rs.250/ w.e.f. February, 1976. The defendant is regularly paying the rent to the plaintiff, but the plaintiff intentionally refused to accept the rent and also refused to issue the rent receipt. The defendant had sent a cheque of Rs.14,000/ towards the rent alongwith reply dated 04/04/1989 but plaintiff had refused to accept the rent which was sent by defendants through cheque without any reason and the same was returned back with the remarks refused. The defendant is in possession of the suit property as a tenant and regularly paid the rent to the plaintiff.
Suit No.1246/2009 Page 5 of 13
4. Summons of the suit were served upon the defendant No.2. On 17/10/1997, none had appeared on behalf of the defendant No.2. Accordingly, defendant No. 2 was proceeded exparte vide order dated 17/10/1997.
5. Plaintiff had filed the replication controverting the allegations/contentions in the written statement of the defendant No. 1and contents of the plaint had been reiterated and reaffirmed.
6. From the pleadings of the parties issues were framed vide orders dated 24/01/2003 and additional issue was also framed vide orders dated 17/07/2008 as under:
(i) Whether the plaintiff is entitled to a decree of possession against the defendants, as prayed?
OPP
(ii) Whether the plaintiff is entitled to a decree of Rs.36,000/ against the defendants, as prayed?
OPP
(iii) Whether the suit of the plaintiff is not
Suit No.1246/2009 Page 6 of 13
maintainable? OPD
(iv) Whether the suit of the plaintiff is barred by
limitation? OPP
(v) Whether the suit of the plaintiff is not correctly
valued? OPD
(vi) Whether the defendant no.1 is entitled to the
benefit under section 60B of Easement Act?
OPD
(vii) Relief.
7. The plaintiff in order to prove its case had led the evidence and got examined Sh.Umar Elahi Chhamma, Secretary as PW1. PW1 had filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the plaint. PW1 was crossexamined by counsel for the defendant No.1.
PW1 in his testimony had relied upon the copy of Resolution Ex.PW1/1, copy of Registration Certificate of the Society Ex.PW1/2, copy of Certificate of Registration by Wakf Board Ex.PW1/3, copies of Counter Foils/Receipts Ex.PW1/5 to Ex.PW1/7, copy of Notice Suit No.1246/2009 Page 7 of 13 dated 27/02/1989 Ex.PW1/8, copy of Reply dated 04/04/1989 Ex.PW1/9, copy of Notice dated 25/04/1989 Ex.PW1/10, Reply dated 03/05/1989 Ex.PW1/11 and Site Plan Ex.PW1/14.
8. Defendant No.1 had also led his evidence and got examined himself as DW1. DW1 had filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the written statement. DW1 was crossexamined by counsel for the plaintiff.
DW1 in his testimony had relied upon Letter dated 17/07/1974 Ex.DW1/1, UPC Receipt Ex.DW1/2, Reply dated 04/04/1989 Ex.DW1/3, Postal Receipt Ex.DW1/4, Return Envelope Ex.DW1/5 and Notice dated 05/01/1996 Ex.DW1/7.
9. This court heard the final arguments advanced on behalf of the plaintiff and defendant No.1 and perused the material available on record.
10. The issuewise findings of this court are as under: Suit No.1246/2009 Page 8 of 13 Issue No. (iii) is taken up first as same relates to maintainability of the suit.
ISSUE NO.(iii): Whether the suit of the plaintiff is not maintainable?
The onus of proving this issue was on the defendants. The defendant No.1 had not led any specific/documentary evidence on this issue and in support of his contentions. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Now, issue No. (iv) is taken up being legal issue. ISSUE NO.(iv): Whether the suit of the plaintiff is barred by limitation?
The onus of proving this issue was on the plaintiff. On perusal of record, this court is of the opinion that the present suit of the plaintiff is well within the period of limitation as prescribed under Limitation Act. The defendant No.1 had not led any specific evidence on this issue and in support of his contentions. Accordingly, this issue Suit No.1246/2009 Page 9 of 13 is decided in favour of the plaintiff and against the defendants.
Now, issue No. (v) is taken up as same relates to valuation of the suit.
ISSUE NO.(v): Whether the suit of the plaintiff is not correctly valued?
The onus of proving this issue was on the defendants. The defendant No.1 had not led any specific/documentary evidence on this issue and in support of his contentions. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Now, issue No.(vi) is taken up being legal issue. ISSUE NO.(vi): Whether the defendant no.1 is entitled to the benefit under section 60B of Easement Act?
The onus of proving this issue was on the defendants. The defendant No.1 had not led any specific/documentary evidence on this Suit No.1246/2009 Page 10 of 13 issue and in support of his contentions. Accordingly, this issue is decided in favour of the plaintiff and against the defendants. ISSUE NO.(i): Whether the plaintiff is entitled to a decree of possession against the defendants, as prayed?
The onus of proving this issue was on the plaintiff. In the present case, the plaintiff is claiming itself to be the licensor and defendants as its licensee in respect of the suit property. On the other hand, the defendant No.1 is claiming himself to be the tenant in respect of the suit property. The plaintiff in support of its contention had not proved on record original licence deed as alleged in the plaint and evidence by way of affidavit of PW1. PW1 in his cross examination had deposed that at present he has no original document Ex.PW1/4. PW1 in his crossexamination had deposed that suit property belongs to the Wakf. On perusal of plaint of the plaintiff, it is revealed that said fact had not been mentioned in the plaint. Even otherwise, the plaintiff had not proved/placed on record any documentary evidence in this regard. On the one hand, the plaintiff is claiming itself as licensor, on the other hand, PW1 in his cross Suit No.1246/2009 Page 11 of 13 examination had deposed that suit property belongs to the Wakf. The case of the plaintiff and testimony of the PW1 are contradictory in this regard. No reasonable explanation has been adduced on record by the plaintiff in this regard. In the present case, the plaintiff is seeking possession of the suit property from the defendants. For this purpose, the plaintiff has to prove its title. The plaintiff had not proved on record any documentary evidence showing its title in respect of the suit property. In these circumstances, the plaintiff is not entitled for the possession of the suit property from the defendants. Accordingly, this issue is decided in favour of the defendants and against the plaintiff. ISSUE NO.(ii): Whether the plaintiff is entitled to a decree of Rs.36,000/ against the defendants, as prayed? The onus of proving this issue was on the plaintiff. In view of the findings of this court on issue No.(i), this issue is also decided in favour of the defendants and against the plaintiff. ISSUE NO. (vii): Relief.
Suit No.1246/2009 Page 12 of 13
In view of the findings of this court on the aforesaid issues, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (VIJAY SHANKAR)
on 20/12/2012 CCJcumARC (Central),
Tis Hazari Courts, Delhi
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