Delhi District Court
Unknown vs Raj Kumar Dhingra on 27 July, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE CENTRAL9: DELHI
Suit No.
270/07
1. Sh. Kapil Gaba
S/o Sh. Rajinder Gaba,
R/o B1/18, Lajpat Nagar,
New Delhi110024
2.Smt. Komal Gaba
S/o Sh. Rajinder Gaba,
R/o B1/18, Lajpat Nagar,
New Delhi110024.
3.Smt. Sudha Gaba
w/o Sh. Sunil Gaba,
R/o A1/210, Lajpat Nagar,
New Delhi110024
4. Smt. Santosh Gaba
W/o Sh. Hansraj Gaba,
R/o A1/210, Lajpat Nagar,
New Delhi110024.
Suit No.270/07 Page 1 of 23
5. Ms. Megha
D/o Sh. Sunil Gaba
R/o A1/210, Lajpat Nagar,
New Delhi110024.
6. Rajinder Gaba
S/o Sh. Hansraj Gaba,
R/o B1/18, Lajpat Nagar,
New Delhi110024
............Plaintiffs
Versus
Raj Kumar Dhingra
Karta of R. K. Dhingra & sons (HUF)
S/o Late Sh. Nebh Raj Kumar Dhingra,
R/o 30, Hauzkhas Village,
New Power House Complex,
New Delhi110016.
.......Defendant
Suit filed on : 17.08.2007
Judgment on : 27.07.2011
Suit No.270/07 Page 2 of 23
JUDGMENT
1. Plaintiffs have filed the present suit for possession and recovery of rent with interest, damages for use and occupation / mesne profits praying for decree of possession in respect of property consisting of ground floor and back portion of basement of property no. A1/288, Safdarjung Enclave, New Delhi as shown in red colour in site plan ( hereinafter referred as suit property) in their favour against the defendant. The plaintiffs have also prayed for a decree for a sum of Rs. 5,25,000/ towards arrears of rent/ use and occupation charges till 15.8.07 alongwith pendente lite and future interest @ 12% pa and pendente lite and future damages for use and occupation @ 50,000/pm alongwith interest @ 12%pa from the date of suit till realisation. The suit of the plaintiff is that plaintiff no. 1 to 5 are the owners/landlords of the residential premises consiting of ground floor and back portion of the basement of property no. a1/288 Safdarjung Enclave, New Delhi and defendant was tenant under the plaintiffs in respect of said property comprising one hall measuring 2000 sq. ft on the Suit No.270/07 Page 3 of 23 ground floor and one hall, two toilets and pantry measuring 200 sq. ft in the basement at the rent of Rs. 50,000/pm excluding electricity and water charges and other expenses. The tenancy was negotiated by plaintiff no. 6 who was authorised by other plaintiffs to do so. The suit property was let out for residential purposes only and strictly for the defendant's personal use and as per the terms of tenancy agreed between the parties the defendant was not to part with, sub let or assign the tenancy to any other person in any manner. The defendant paid rent upto 30.9.2006 in respect of the suit property. Thereafter he did not pay any rent despite repeated reminders and requests of plaintiffs. The tenancy was terminated by the plaintiff vide legal notice dt. 15.5.2007 w.e.f midnight of 30.6.07 and defendant became illegal/ unauthorised occupant for the said property w.e.f 1.7.07 and thus rendered himself liable for payment of damages for use and occupation at the prevalent market rate. The plaintiffs however were claiming the damages for use and occupation thereafter at the same rate as that of rent. The total outstanding due towards the arrears of rent from 1.10.06 is Rs. Suit No.270/07 Page 4 of 23 4,50,000/. When the plaintiffs deputed their representative to have the site plan prepared, it was found that the premises were lying sealed on account of commercial use of residential property. The defendant never informed the plaintiff that the premises has been sealed and on further information from labours it was revealed that the defendant had removed all his articles from the property in order to harass the plaintiff. Hence the present suit.
2. The suit has been contested by the defendant who in his written statement has taken the preliminary objection inter alia that the plaintiffs have not filed any documents to show that they are owners of the suit property or that there is landlords tenant relation between the parties. Objection has also been taken that the suit is liable to be dismissed as plaintiffs have wrongly claimed themselves to be the owner of the basement portion of the suit property when they themselves know that the defendant is the owner of the said portion. Objections have also been taken that no termination notice U/s 106 of Transfer of Suit No.270/07 Page 5 of 23 property Act was ever served by the plaintiff or received by defendant or on his behalf. On merits it is admitted that the plaintiffs no. 1 to 5 are owners of residential premises consisting of ground floor of suit property It is however denied that the plaintiffs are landlords. It is also denied that the plaintiffs are the owners of the basement of the said property or defendant was tenants under the plaintiffs in respect of the suit property. It is also denied that rent of Rs. 50,000/ was paid by the plaintiffs or that any tenancy was negotiated by the plaintiff no. 6. The site plan has also been disputed. It is stated that in the year 2004 the defendant who is and for all relevant time was owner of basement, second floor and third floor of the property , approached the plaintiff no. 1 to 5 for taking on licence the ground floor of the said property, which is part of suit property since he wanted to use the ground floor alongwith basement and second and third floor of the said property of which the defendant was and is still the owner. Since the parties were the owners of different floors on the same property and the relation between them were very cordial an oral licence agreement Suit No.270/07 Page 6 of 23 subject to the condition that defendant will be entitled to rebuild the entire building and shall also be permitted to install a lift in the building connecting the ground floor with the first, second and third floor at his own expenses was entered into between the defendant and plaintiff no. 1 to 5. Thereafter acting upon the said licence the defendant reconstructed the entire ground floor and installed in it a lift, various columns and other RCC structures. The construction was to such an extent that the ground floor which had a covered area of approximately 90 sq. mt. was enlarged to almost 135 sq. mts. The defendant spent an amount of Rs. 1 lac 25 crores on the said construction. It was further agreed between the parties that an amount of Rs. 50,000/pm shall be payable by the defendant to the plaintiff as licence fees. It is categorically denied that suit property was let out to the defendant by the plaintiff. It is also denied that any notice dated 15.5.07 was ever served upon the defendant or the defendant has become unauthorised occupant of the suit property w.e.f. 1.7.07 or from any other date. It is also denied that there is outstanding rent of Rs. 4,50,000/ or any rent at all . Suit No.270/07 Page 7 of 23 It is also denied that the defendant has failed to pay the rent despite repeated reminders and emphasised that defendant is not a tenant. In the replication the plaintiff has mainly reitereated the contents of plaint and controverted the averment made by the defendant in the written statement .
3. On the pleadings of the parties following issues were framed for consideration on 19.1.2010:
i)Whether there is cause of action in favour of the plaintiff ?OPP
ii)Whether the suit of the plaintiff has not been properly verified ?OPD
iii)Whether the plaintiffs are owners in respect of the suit property ?OPD
iv)Whether notice U/s 106 of Transfer of Property Act was served upon the defendant ?OPP
v)Whether the defendant is licencee or tenant in respect of the suit property, if so to what effect ?OPD
vi) Whether the plaintiff is entitled to recovery of possession?OPP Suit No.270/07 Page 8 of 23
vii) Whether the plaintiff is entitled to damages, mesne profits for use and occupation, if so , at what rate and for which period?OPP
viii) Whether the plaintiff is entitled to interest, if so , at what rate and for which period?OPP
ix) Relief.
4. In order to establish the claim of the plaintiffs affidavit of plaintiff no. 1 Sh. Kapil Gaba and plaintiff no. 6 Sh. Rajinder Kumar Gaba have been tendered in evidence and they have also been examined as PW1 & PW2 respectively. Plaintiffs have also examined Sh. Amit Jeffery from DTDC Courier and Cargo Ltd. as PW3 . On the other hand on behalf of defendant testimony of defendant Sh. Raj Kumar Dhingra and one Sh. Rajinder Singh has been adduced by way of affidavit which have been tendered as Ex. DW1/A & Ex. DW1/B respectively. They have also been examined as DW1 & DW2 respectively.
5. I have thoroughly gone through the testimony of witnesses Suit No.270/07 Page 9 of 23 and perused the record. My findings on various issues are as under: Finding on Issue No. 1
6. It has been argued by ld. Counsel for defendant that suit is without cause of action since the plaintiffs were never the owners of back portion of the basement of property no. A 1/288 Safdarjung Enclave. PW1 also in his cross examination admitted that they were the owners of ground floor only and he had no knowledge if the defendant was the owner of the basement. PW2 also in his cross examination admitted that plaintiff never purchased any portion of the basement. The suit of the plaintiff however is also for possession of ground floor of the suit property and it is not disputed that the ground floor is owned by plaintiff no. 1 to 5 and in possession of defendant. Plaintiffs thus have sufficient cause of action in respect of the the ground floor of the aforesaid property. Issue no. 1 is thus decided in favour of plaintiff and against the defendant. Suit No.270/07 Page 10 of 23
7. Finding on Issue No.2 The onus to prove the said issue had been placed on the defendant. The defendant in his written statement has taken the plea that the suit has not been properly verified by all the plaintiffs. A perusal of the plaint reveals that the verification clause has been duly signed by all the plaintiffs and it has been verified that contents of para 1 to 10 are true to their knowledge and para 11 to 14 are true on the information received and believed to be true and the last para is the prayer to this court. The plaint thus has been properly verified and duly signed by the plaintiffs. ld. Counsel for defendant has not argued as to how the plaint has not been properly verified . Issue no. 2 is also decided in favour of plaintiffs and against the defendant.
8. Finding on Issue No.3 So far as the ground floor of the suit property is concerned, defendant has not at all disputed that plaintiffs are owners of the Suit No.270/07 Page 11 of 23 same . PW1 has also testified that the house tax of the ground floor of the property no. . A1/288, Safdarjung Enclave, New Delhi is in the name of plaintiff no. 1 to 5. He also proved the assessment and house tax receipt of the said property as Ex. PW1/2 to Ex. PW1/6 . Since there is no dispute regarding ownership with regard to the ground floor, the plaintiffs were not supposed to prove the same strictly. Regarding the rear portion of the basement, the defendant has disputed the ownership of plaintiffs. The plaintiffs have also failed to produce any document to prove their ownership in the basement. PW1 has also conceded that they were the owners only of the ground floor of suit property. In view of above discussion the plaintiffs have been able to establish their ownership on the ground floor of the suit property and failed to establish their title in the basement of the said property. Issue no. 3 is partly decided in favour of the plaintiffs.
9. Finding on Issue No.4 PW2 testified that the tenancy was terminated by the Suit No.270/07 Page 12 of 23 plaintiffs vide legal notice dt. 15.5.07 w.e.f the midnight of 30.6.07 , Copy of notice is Ex. PW2/10. The notice was sent by registered AD/ UPC/ courier and the receipts thereof are Ex. PW2/2 to Ex. PW2/5 . The plaintiffs have also examined PW3, official of DTDC courier & cargo Ltd. , who testified the Ex. PW1/4 and Ex PW2/5 in the court file pertain to their DTDC Courier. As per the record the same was issued from their franchise at Khan Market and the proof of delivery bears the signatures of receiving by the consignee. The defendant has disputed the receipt of the notice . ld. Counsel for defendant has also argued that U/s 106 of Transfer of Property Act , courier is not the prescribed mode of service of notice and notice can be sent only by three modes under Transfer of Property Act i.e either by post or personal delivery or by affixation to a conspicuous part of the property. He further argued that PW2 admitted in his cross examination that he did not post the notice and the notice was posted by the counsel. It is argued that the presumption U/s 114
(f) can be drawn regarding the receipt of letter, in case it is proved that the letter was posted. PW2 has duly proved the postal receipt Suit No.270/07 Page 13 of 23 which is Ex. PW2/3. For drawing presumption U/Section 114(f) of the Indian Evidence Act, posting of the letter is not to be established by personal examination of the person who has posted the same. Receipt Ex. PW2/3 itself is sufficient to establish a presumption that the notice had been posted and sent by post which is the prescribed mode U/s 106 of the Transfer of Property Act. PW2 testified that the notice was also sent by UPC and the UPC receipt is Ex. PW2/2. Section 106 of Transfer of Property Act does not prescribe only the registered post as a mode of service. It only prescribes service by post as one of the mode of service. Service by UPC thus is also prescribed mode which is covered under the mode of service by post. Further, the defendant has not at all disputed the signatures of the receiver in the courier receipt purported to have been signed by one Manoj & defendant admitted that three to four persons with name "Manoj" were employed with him. Ex. PW2/5 thus also establishes that notice has been duly served through courier agency. There is no dispute that the letter has been posted by UPC and registered post at the correct address. Thus, there is presumption that even Suit No.270/07 Page 14 of 23 the notice sent by UPC as well as registered post has also been duly served upon the defendant. Hence, there is sufficient evidence on record to establish service of notice U/s 106 of Transfer of Property Act. Issue No.4 is thus decided in favour of the plaintiff and against the defendant.
10. Issue No.5 & 6
The initial burden to prove the said issue has been placed on the defendant. DW1 testified that in the year 2004, he met the plaintiffs and offered to buy the rights of plaintiffs in the ground floor of the property. After negotiations it was agreed that he shall take the property on license and shall have permission to make alternations and raise permanent construction in the property and also rebuild the property. He told the plaintiffs that he was in the process of formalising the sale with respect to basement, second and third floor of the property and once the same is done, he shall rebuild the entire premises and install a lift in the premises connecting all the floors in the property and this condition was accepted by the plaintiffs. Since the said property was a lease Suit No.270/07 Page 15 of 23 hold property and lease had been terminated by DDA, the plaintiffs did not have any documents pertaining to their share in the property. For this reason, an oral license agreement was entered into between plaintiff no.1 to 5 and defendant with respect to the ground floor portion of the suit property. It was also agreed that he shall pay to plaintiff no.1 to 5 an amount of Rs. 50,000/ per month as license fee. Soon thereafter he got basement floor of the property and started construction in the premises. Thereafter in the year 2005, he had bought 2nd and 3rd floor of the plaintiff and acting upon the license granted by plaintiffs No.1 to 5, he started construction and reconstructed the entire ground floor and installed in it a lift, various columns and other RCC structures. The extent of construction was to such an extent that ground floor which had a covered area of approximately 90 sq. meters was enlarged to almost 135 sq. meter. In the said construction he spent an amount of more than Rs. 1.25 crores. On the other hand, PW2 testified that the suit premises was let out for residential purposes only @ rent of Rs. 50,000/ per month excluding electricity and water charges and as per terms of tenancy agreed Suit No.270/07 Page 16 of 23 between the parties, the defendant was not to part with or sublet or assign the tenancy to any other person in any manner. In his crossexamination, he testified that he never gave permission to defendant to install any lift or any other alterations. He had not given any permission for reconstruction of said property. He had not visited the suit property so, he could not say whether the suit property had been rebuilt and the cover area had been increased. Since he had no knowledge of reconstruction by defendant, he never stopped him from doing so. He further testified that he had not received the money as license fee. DW1 in his cross examination has admitted that he had not taken any permission from competent authority for said alterations. He admitted that there was no agreement between him and the plaintiffs for the license. He denied the suggestion that he had not taken the permission from the plaintiffs for the said reconstruction and had done the reconstruction illegally. He however admitted that no written permission was taken by the plaintiffs for getting the approval of rebuilding the premises. He also admitted that he had not taken any signatures from the plaintiff for applying for the lift Suit No.270/07 Page 17 of 23 permission. He testified that he had shown himself as owner of all the floors except the first floor while applying for lift. He denied the suggestion that he had wrongly claimed himself as the owner of ground floor for applying for the said lift. He admitted that he had not placed on record any statement of account/bills regarding expenditure of Rs. 1.25 crores spend by him on the said premises. He also admitted that the said premises is in the residential area on the main road and after taking the ground floor, and subsequently taking the other floors he had opened the health club/fitness store by the name of power house. Though the plaintiff has placed on record lease agreement MarkA, the same however has not been legally proved. Execution of lease agreement is also doubtful since the plaintiffs in their plaint have not made even a whisper about execution of any lease agreement between the parties. Defendant has categorically denied his signatures on the lease agreement. Thus, the execution of any lease agreement between the parties could not be established. On the other hand, though the defendant has taken the stand that the suit property was taken by him on license basis from the plaintiffs, he also failed Suit No.270/07 Page 18 of 23 to establish the execution of any licence agreement between the parties. Thus it could not be sufficiently established in what capacity defendant was residing in the suit property i.e lesseee or licencee . Notwithstanding in what capacity the defendant was in possession of the suit premises, it is however not disputed that plaintiff no.1 to 5 are the owners of the ground floor of the suit property. I have also already held that the notice of termination was also duly served upon the defendant. Since the plaintiff undoubtedly has better title over the suit property, the defendant is liable to vacate the same after receipt of the termination notice, unless he establishes that the license granted to him was irrevocable. Section 60 of the Indian Easement Act 1884, lays down "a license may be revoked by the granter unless: a) It is coupled with transfer of property and such transfer is in force, b) the licensee acting upon license, has executed a work of permanent character and incurred expenses in the execution. So far as the first of the two tests is concerned, there is no dispute that the suit property i.e Ground Floor had been transferred by the plaintiffs to the defendant. But as per Suit No.270/07 Page 19 of 23 the second test, a license is irrevocable only in those discerning cases if the licensee acting upon the license has executed some work of permanent nature after incurring expenses thereon. It implies thereby that at the time when the license was given, there must be a permission to execute a work of permanent nature and on the basis whereof, licensee has erected the work of a permanent character. The defendant though has testified that he had sought the permission of the plaintiffs to carry out the construction and installing a lift therein, has failed to establish that any such permission was given by the plaintiffs. Defendant himself has admitted that he had not taken any written permission from plaintiffs for getting approval for rebuilding the premises nor even taken any signatures for applying for lift permission. Though he denied the suggestion that he had wrongly claimed himself to be the owner of ground floor for applying the said lift, his testimony in this regard is falsified by the testimony of DW2, who allegedly had installed a lift in the suit property, as he testified that in the application form, the defendant had shown himself as the owner of entire floors. He also testified that as per Bombay Lifts Act, the lift Suit No.270/07 Page 20 of 23 permission is applied in the name of the client. Thus, it is established that the defendant misrepresented himself as the owner of first floor also for getting the lift installed without any permission of the plaintiff, who otherwise had to sign the application form for installation of the lift as per the Bombay Lifts Act. Thus the defendant has failed to establish that the alterations in the suit property were made by the defendant with the permission of the plaintiffs. In the facts, the defendant even if was a licensee in the suit property, his license was not irrevocable. After the termination of lease/license, the plaintiffs are entitled to recovery of possession. Issue No.5 and 6 are accordingly decided in favour of the plaintiff.
11. Issues No.7 & 8
There is no dispute that the defendant had been paying Rs. 50,000/ per month to the plaintiff as rent/license fee. PW1 testified that the defendant paid rent upto 30.09.2006 in respect of the tenanted premises. PW1 also testified that when the plaintiffs deputed their representatives to have the site plan prepared, it Suit No.270/07 Page 21 of 23 was found that the premises was lying sealed on account of commercial use on account of residential property. The defendant never informed the plaintiffs that the property had been sold. Though the defendant has denied the averment made by PW1, he however did not specify for how long the licence fee/rent was regularly paid by him. DW1 also in his testimony has not deposed that he has paid the upto date rent/licence fee. Defendant in the reply to para10 of the plaint regarding sealing of the ground floor of the suit premises has not disputed that the property was sealed because the same was being used for commercial purpose. DW1 in his crossexamination also admitted that the said premises is in residential area on the main road and after taking the ground floor and subsequently taking the other floors, he opened health club/fitness store by the name of Power House in December 2004 . He also admitted that the suit premises was sealed after 2005 and is still sealed . The plaintiff has claimed the pendente lite and future damages for use and occupation charges @ Rs. 50,000/ per month alongwith interest thereon @ 12% per annum from the date of filing the suit till its Suit No.270/07 Page 22 of 23 realisation. Though the suit property after being sealed was not in actual possession of the defendant, however since sealing of the property was not informed to the plaintiff and the same was sealed since it was being used for commercial purposes, the defendant is liable to pay the rent/license fee @ Rs. 50,000/ per month w.e.f 01.10.2006 till the filing of the present and future mesne profits/damages @ Rs. 50,000/ per month w.e.f date of filing the suit till the date alongwith an interest @ 6%. per annum.
12. Relief.
In view of my finding in the aforesaid issues, suit of the plaintiff is decreed for a sum of Rs. 29 lacs appx. alongwith pendente lite and future interest @ 6% per annum till the realisation of the decretal amount. Decree sheet be prepared on payment of court fee on the mesne profits to the plaintiff. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 27.07.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
Suit No.270/07 Page 23 of 23
Suit No. 270/07
23.07.2011
Present: None.
Order has been partly dictated. Put up for further
orders on 27.7.2011.
(SUKHVINDER KAUR)
ADDL. DISTRICT JUDGE
CENTRAL9: DELHI.
27.07.2011
Present: Ms. Purnima Maheshwari counsel for plaintiff.
Sh. Kalka Prasad Aggarwal counsel for defendant. Vide separate order dictated and announced in open court, suit of the plaintiff is decreed for a sum of Rs. 29 lacs appx. alongwith pendente lite and future interest @ 6% per annum till the realisation of the decretal amount. Decree sheet be prepared on payment of court fee on the mesne profits to the plaintiff. File be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE Suit No.270/07 Page 24 of 23 CENTRAL9: DELHI.
Suit No.270/07 Page 25 of 23