Delhi District Court
M/S Nagpur Timber Store vs Sh. Upkar Singh Kohli on 23 March, 2017
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER (SOUTH EAST), DISTRICT
COURTS, SAKET, NEW DELHI
RCA no. 28/16 (old no. 6/16)
CNR No.: DLSE030008572016
M/s Nagpur Timber Store,
Through its partner
Sh. Satish Juneja,
945, Arjun Nagar, Kotla Mubarakpur,
Opp. Defence Colony,
New Delhi 110003. ...........Appellant
VERSUS
Sh. Upkar Singh Kohli
945, Arjun Nagar, Kotla Mubarakpur,
Opp. Defence Colony,
New Delhi 110003. .............Respondent
Date of institution of appeal : 19.04.2016
Date on which Judgment reserved : 23.03.2017
Date on which judgment pronounced : 23.03.2017
Decision : Dismissed
JUDGMENT/ORDER
Vide the present judgment/order I shall be disposing of RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 1/35 appeal bearing RCA no. 6/16 preferred by the defendant (appellant herein) against judgment dated 18.02.2016 passed by the then Ld. Civil Judge Ms. Tanvi Khurana, CJ1, South, Saket Courts, New Delhi whereby the suit filed by the plaintiff (respondent herein) bearing suit no. 645/14 titled as Sh. Upkar Singh Kohli Vs. M/s Nagpur Timber Store and ors. was decreed as well as the appellant's application seeking permission to lead additional evidence.
Brief background of the case
1. The respondent Sh. Upkar Singh Kohli had filed the above civil suit seeking recovery of possession, arrears of rent, mesne profit/damages and injunction in respect of plot bearing no. 945 (Old No.
68) Arjun Nagar, Kotla Mubarakpur, opposite Defence Colony, New Delhi 110003 more specifically delineated in red ink in the site plan filed along with the plaint (hereinafter referred to as the suit property).
Plaintiff/respondent's version
2. It was the respondent's case before the Trial Court that he is the owner/landlord of the suit property. It was his case that appellant is RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 2/35 partnership firm and Sh. Satish Juneja ( defendant no. 2 as per the trial court record and through whom the present appeal has been preferred by the appellant) is one of the partner.
2.1 It was further the respondent's case that the suit property was let out to the appellant by means of rent deed dated 01.06.1965 executed by/between the father of the respondent namely Late Sardar Gurdev Singh and Sh. Amar Nath (uncle of Satish Juneja) who was at that time a partner of the appellant.
2.2 It was the respondent's case that suit property was let out for one year on a monthly rent of Rs. 700/ exclusive of electricity charges and after enhancement the rent was increased to Rs. 1500/ per month.
2.3 It was the respondent's case that appellant was also permitted to raise temporary structure as and when required but to be removed on termination of tenancy. It was the respondent's case that tenancy was from month to month commencing from first day of each calender month and ending on last of the month and vide notice dated 20.04.2010 the respondent terminated the tenancy of the appellant and the appellant was called upon to hand over the vacant possession of the suit property after removal of the structure raised upon it and also to pay the arrears of rent.
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 3/35 2.4 It was also the respondent's case that the appellant and Sh. Satish Juneja were contemplating raising further structure in the suit property and handing over the possession of the same to some third person.
2.5 Hence, the the suit was filed.
Defendant/appellant's version
3. It was the appellant's version that suit was a gross misuse of process of law and that there was no cause action to file the present suit. It was also contended that suit was barred by the provisions of Section 50 Delhi Rent Control Act, 1958.
3.1 It was further the appellant's case that the respondent has concealed the facts regarding the status of landlord i.e. M/s Fouji Timber Trading Company and it was not stated that whether it is a partnership firm or a proprietorship. It was contended that the respondent has not produced any document to show the nexus with M/s Fouji Timber Trading Company or any authorization on behalf of the same.
3.2 It was also the appellant's case that the respondent had not stated that rent for entire period was sent by the appellant by way of RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 4/35 cheque in favour of landlord i.e. M/s Fouji Timber Trading Co. but the cheques were returned and therefore a petition under Section 27 of Delhi Rent Control Act was filed to pay the rent before the Ld. Rent Controller. It was further the appellant's case that the tenancy was created by M/s Fouji Timber Trading Co. and the respondent had acted on behalf of the said landlord and accepted the rent.
3.3 It was further the appellant's case that the suit property was originally owned by Sardar Gurdev Singh Kohli father of the respondent who had expired in 1998 leaving behind his wife, respondent, another son and two daughters. It was claimed that the suit property would have devolved upon the all the Legal Representatives of deceased Sardar Gurdev Singh Kohli.
3.4 It was claimed that when the suit property was taken on lease, a room for the office purpose was already constructed which was used as office and open area was used to store the timber. It was denied that only temporary structure were raised on the property rather it was claimed that there are pucca/ permanent rooms constructed in the premises which is part and parcel of the tenancy. It was claimed that property under tenancy had permanent structure in shape of three distinct rooms.
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 5/35 3.5 It was further the appellant's case that the tenancy can not be determined by issuance of any legal notice as the tenancy is protected under Delhi Rent Control Act.
3.6 It was further the appellant's case that the rent has been tendered and a cheque no. 502563 for Rs. 45,000/ drawn on Indian Bank, Safdarjang Enclave dated 08.03.2010 and cheque no. 502564 for Rs. 18,000/ drawn on the same bank of the same date were issued in favour of M/s Fouji Timber Trading Company which were sent along with legal notice dated 13.03.2010 as landlord had refused to issue rent receipt. It was claimed that the cheques were not encashed and the appellant had filed petitions for deposit of rent before the Ld. Rent Controller under Section 27 of the Delhi Rent Control Act.
3.7 It was denied that the appellant was liable to pay mesne profits at the rate of Rs.5000/ per day and any other liability was also denied and it was prayed that suit be dismissed.
Replication
4. Respondent/plaintiff had filed replication denying the contents of the written statement while reiterating and reaffirming RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 6/35 the contents of the plaint. Additionally it was averred that the respondent is the sole owner of the suit property after the death of his father and that this fact was accepted and he was attorned as the landlord by the appellant.
Issues
5. From the pleading of the parties, the Ld. Trial Court framed the following issues:
Issue no. 1 Whether the plaintiff is entitled to relief of possession as prayed for ?OPP Issue no. 2 Whether the plaintiff is entitled for arrears of rent and damage/ mesne profits as prayed for ?OPP Issue no. 3 Whether the plaintiff is entitled to the relief of injunction as prayed for?OPP Issue no. 4 Whether the plaintiff is entitled to interest and cost?OPP Issue no. 5 Whether the property was leased out as an open plot?OPP Issue no. 6 Whether the suit is barred by provision of Section 50 of Delhi Rent Control Act Act? OPD RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 7/35 Issue no. 7 Whether the plaintiff has no locus sandi to file the present suit?OPD Issue no. 8 Relief.
Evidence Respondent/plaintiff's evidence
6. Respondent/ Plaintiff led his evidence and examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents:
1 Ex. PW1/1 i.e. Rent agreement 2 Ex. PW1/2 i.e. Site plan 3 Ex. PW1/3 i.e. Legal notice dated 20.04.2010 4 Ex. PW1/4 i.e. UPC 5 Ex. PW1/5 to Ex. PW1/7 i.e. Postal receipts 6 Ex. PW1/8 to Ex. P1/10 i.e.AD Cards 7 Ex. PW1/11 i.e. Legal notice dated 13.03.2010 8 Ex. PW1/12 i.e.Reply dated 20.04.2010 9 Ex. PW1/13 i.e. UPC 10 Ex. PW1/14 to Ex. PW1/16 i.e. Postal receipts RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 8/35 11 Ex. PW1/17 and Ex. PW1/18 i.e. AD cards 12 Ex. PW1/B i.e. Plaint Appellant/Defendant's evidence
7. The appellant examined Mr. Satish Junja as DW1 who tendered his evidence by way of affidavit Ex. DW1/A. He relied upon the following documents:
1 Ex. DW1/1 i.e. Site plan 2 Ex. DW1/2 (OSR) i.e.Receipt dated 27.10.2006 3 Ex. DW1/3 (OSR) i.e.Rent receipts dated 18.02.2005 4 Ex. DW1/4 (OSR) i.e. Receipt dated 18.02.2005 5 Ex. DW1/7 i.e. Letter dated 18.10.1965 6 Ex. DW1/8 i.e. Letter dated 18.12.1965 7 Ex. DW1/9 i.e. Rent Challan dated 07.09.2010 8 Ex. DW1/10 (OSR) and Ex. DW1/11 (OSR) i.e. Cheques 9 Mark A i.e. Letter dated 20.12.1965 10 Mark B i.e. Letter dated 12.02.1966 11 Mark C i.e. Letter dated nil 12 Mark D i.e. Letter dated 15.04.1968 13 Mark E i.e. Letter dated 17.02.1968 RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 9/35 14 Mark F i.e. Letter dated 15.02.1968 15 Mark G i.e. Copy of rent challan dated 20.05.2011 16 Mark H i.e. Copy of petition before the Ld. Rent Controller 17 Mark I i.e. Copy of plaint.
7.1 Appellant also examined Mr. Naresh Singh Bisht, LDC, SDMC Central Zone as DW7 and he proved document for renewal of license no. AZ00596896 as Ex. DW7/1 (OSR).
7.2 The appellant also examined Sh. Rajpal Singh, LDC, SDMC, South Zone, Green Park as DW8 who proved one letter as EX.
DW8/1.
8. Vide judgment under challenge i.e. judgment dated 18.02.2016 the Ld. Trial court while deciding all the issues in favour of the respondent/plaintiff, except for issue no. 3 decreed the suit and granted the following relief:
"Suit of the plaintiff is decreed with costs accordingly. Plaintiff is entitled to possession the part of the plot bearing no. 945 (old no.68) Arjun Nagar, Kotla Mubarakpur, Opp. Defence Colony, New Delhi110003 more specifically shown in red ink in the site plan. Defendants are directed to hand over the possession of the premises within three months from pronouncement of the judgment. Plaintiff is RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 10/35 also entitled to arrears of rent at the admitted rate from 01.10.2006 to 15.05.2010. Mesne profits from 16.05.2010 are adjudged for the year 2010 at the admitted rate of rent whereas for the subsequent year beginning from 2011 yearly enhancement at the rate 10% per annum is granted till handing over of the possession. Previous payment made be adjusted in total amount. Interest at the rate 6% per annum is also granted."
Grounds of appeal
9. The judgment has been challenged on numerous grounds and one application was also moved in the appeal seeking permission to lead additional evidence for producing house tax record pertaining to the suit property.
10. I have heard the rival contentions raised at bar and considered the record carefully.
Ground A, B, D, E, G, H and I.
11. The main contention of the appellant is that the suit property was a built up property at the time when the same was let out, hence the RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 11/35 tenancy has to be governed as per the provisions of Delhi Rent Control Act, 1958 and the civil suit for recovery of possession was barred. It was the appellant's contention that the Ld. Trial court failed to appreciate the fact that the respondent did not produce the title documents in his father's favour which could have proved the extent of the vacant plot and the built up area and on account of non production of the title documents the extent of construction/ super structure could not be denied by the respondent. It is the appellant's contention that the Ld. Trial Court was bound to draw adverse inference, as per the provisions of Section 114 of the Indian Evidence Act, 1872, against the respondent for non production of the title documents. However I find no merits in the contentions of Ld. Counsel for the appellant.
11.1 Suit bearing no. 645/14 was not a title suit. It was a suit filed against the appellant by the respondent seeking possession of the suit property claiming that there existed a relationship of landlord and tenant between the respondent and the appellant which stood terminated upon service of notice u/s 106 of The Transfer of Property Act, 1882 i.e. Ex. PW1/3. Appellant never denied its status in the suit property. Not only the tenancy was admitted but it was also admitted that the suit property was let out to the appellant by the father of the respondent. Once this relationship of landlord and tenant between the erstwhile owner/landlord and the appellant was admitted it was not incumbent RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 12/35 upon the respondent to produce the title documents vide which his father had become the owner of the suit property or the entire property of which the suit property is a part as the appellant had/has no right to challenge the title of the erstwhile landlord.
11.2 The most essential document for adjudication of the dispute before the Ld. Trial Court was the rent agreement i.e. Ex. PW1/1. It is this agreement, which was duly admitted by the appellant during the trial, which governs the right and the status of the parties in the suit property. I have meticulously gone through the translated copies of the same i.e. from Urdu to Hindi and Urdu to English. The suit property is described as plot no. 68 situated at Arjun Nagar, Kotla Mubarakpur, New Delhi. As rightly observed by Ld. Trial court there is no reference to any construction carried out at the premises. The word used is a plot and not a building or a room. This document puts the entire controversy i.e. as to whether a plot was let out or a building/room or plot consisting of super structure/constructed portion was let out to rest. Even if the title documents were produced on record by the respondent and even if the title documents reflected some construction in property no. 68 of which the suit property is a part still as far as rights of the parties, the nature of the tenancy, nature of the premises let out on the tenancy is concerned, it is only the rent agreement Ex. PW1/1 which shall govern the same. As per rent agreement only a plot was let out and no evidence to the RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 13/35 contrary/inconsistent with the said document i.e. Ex PW1/1 can be allowed and entertained in the court in view of bar under section 92 of the Indian Evidence Act, 1872 which restricts/prohibits the adduction of oral evidence for the variation of the contract interse between the parties. Reliance may be placed upon the law laid down in Roop Kumar Vs Mohan Thedani (2003) 6 SCC 595, Gangabai Vs. Chhabubai (1982) 1 SCC 4 and Ishwar Dass Jain Vs. Sohan Lal (2000) 1 SCC
434. 11.3 Furthermore, as observed by the Ld. Trial court, it has to be remembered that only a portion of plot/property no. 68 was let out and not the entire property. There could have been construction in some part of the property which would have remained with/in possession of the erstwhile landlord. The onus was upon the appellant to prove that the portion which was let out to the appellant was not a plot/vacant land but a built up/constructed portion. The appellant miserably failed to discharge the onus/failed to prove the same.
11.4 Therefore it was not incumbent upon the respondent to prove the title documents and accordingly there was no occasion for the Ld. Trial Court to draw an adverse inference u/s 114 of the Indian Evidence Act, 1872 against the respondent.
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 14/35 11.5 Though it was also one of the argument that the respondent could not prove any document of partition on record and thus could not prove his title or that the suit property out of property bearing no. 945 (Old no. 68) Arjun Nagar, Kotla Mubarak Pur, Opposite Defence Colony, New Delhi fell in his share, however even this line of argument is meritless. To begin with, during the crossexamination of the respondent i.e. PW1 Upkar Singh Kohli as recorded on 01.11.2011, it transpires that he was called upon to identify whether he had placed any title documents in respect of the suit property in his favour on record and the relevant portion of the proceedings/ crossexamination read as " After seeing the record, the witness is not able to find out any documents pertaining to his title. (Vol. I can produce the document). However as is evident from further crossexamination the witness/PW1, he was not called upon, the crossexamination was not deferred with directions to him to produce the relevant title documents. It is thus not now open to the Ld. Counsel for appellant to agitate that no title documents or partition documents were produced on record by the respondent.
11.6 Moreover it is not denied by the appellant that the respondent/plaintiff is the legal heir of the erstwhile landlord and therefore no challenge to the status/right of the respondent/plaintiff in the suit property can be entertained. In fact any challenge to the right and title of the respondent/plaintiff/legal heir of erstwhile landlord is RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 15/35 malafide and smells of foul play. Being the class I legal heir of the erstwhile owner/landlord the respondent is the landlord of the tenanted premises after the demise of his father. Reliance may be placed upon the law laid down in Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1.
11.7 Furthermore the law estops the tenant (appellant) from raising any such challenge to the title/status of the respondent. The law is well settled that to succeed in a petition under section 14 (1) (e) of Delhi Rent Control Act the landlord is not supposed to prove absolute ownership as required under the Transfer of Property Act. He is required to show that he is more than a tenant. I find no reasons why any distinguishment should be made in the suit of the present nature when the tenant is not setting up its title, and is rather admitting the tenancy and apart from the landlord no one else is claiming title in the suit property nor the tenant claims to be tenant of someone else who is the owner and to whom it is paying the rent.
11.8 In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held as under:
"the concept of ownership in a landlord tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit . If the premises was let out by a person and after the death , the premises has come in the hands of a RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 16/35 beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. "
11.9 In Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210, it has been held as under:
"in case of a petition u/s. 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in section 14 (1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under Delhi Rent Control Act."
11.10 In Capt. Praveen Davar (Retd.) & Another Vs. Harvansh Kumari and Ors; 2010 (119) DRJ 560, High Court of Delhi, it was held as under :
"15. From the aforesaid, in my opinion, there is no manner of doubt that the learned trial court rightly decided issue No. 1 in favour of the respondents and against the appellants. Reliance placed in this regard by the learned trial court on the provisions of Section 116 of the Evidence Act and the following observations of the Supreme Court in Anar Devi v. Nathu Ram, 1994 (2) RCJ 103, conclusively clinches the issues: "Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under the landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment of conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 17/35 11.11 In the case at hand as discussed above it is not the case of the appellant that it is tenant under someone else or that it is paying rent to somebody else. Rather the appellant has been depositing the rent by way of petitions u/s 27 of Delhi Rent Control Act, 1958 i.e. Mark H and Rent Challan Ex. DW1/9, Mark G etc. Though the petitions were filed by the appellant and the rent was deposited in the name of M/s Fouji Timber Trading Company however from the title of the petitions it is writ large that same were against the respondent as it is mentioned as "M/s Fouji Timber Trading Company......through its partner/owner Sh. Upkar Singh Kohli". In fact there are various documents on record which prove that the present ground of appeal is absolutely misconceived. For example in its legal notice dated 13.03.2010 i.e. Ex. PW1/11 addressed to the respondent as "Sh. Upkar Singh Kohli c/o M/s Fouji Timber Trading Company", the appellant/its partner Sh. Satish Juneja had stated "That you have not been issuing rent receipts for the rent paid/offered to you.........". Furthermore during his crossexamination DW1/Satish Juneja stated as "It is correct that after 1985 and thereafter the rent was paid to the plaintiff." This statement itself estops the appellant from challenging the respondent's right and status in the property qua it. Hence this ground of appeal lacks merits/bonafide.
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 18/35 11.12 Further reliance may be placed upon the law laid down in Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 wherein it was held as under:
"...Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly....."
11.13 In Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375, it has been held:
"In rent matters the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lessor quantum of proof may suffice for holding that the landlord is the owner of the premises in question."
11.14 As far as the contention that the respondent did not file the partition documents, in addition to the above it will be suffice to say that it is well settled law that one of the coowner can file a suit for possession. As far as the present dispute is concerned the respondent has enough locus to seek the reliefs prayed for.
11.15 Reliance may be placed upon the law laid down by Hon'ble Apex Court in Dhannalal vs Kalawatibai And Ors decided on 8 July, 2002 in Appeal (civil) no. 3652 of 2002 wherein it was held as under:
"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors., [1976] 4 SCC 184, Kanta Gael v. B.P. Pathan and Ors ., [1977] 2 SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors., [1989] 1 SCC 444 that one of the coowners can alone and in RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 19/35 his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other coowners if such other coowners do not object."
11.16 In M/s. India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla (dead ) by Lrs. And Ors. AIR 2004 Supreme Court 1321, Hon'ble Supreme Court observed that "one of the coowner can file a suit for eviction of a tenant in the property generally owned by the Coowners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and also as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant".
11.17 Further reliance may placed on the law laid down in Shri Ram Pasreja Vs. Jagan nath and ors. AIR 1976 SC 2335, Laxmi Shankar Hari Shankar Bhatt Vs. Yashram Vasta (dead) by LRs AIR 1993 SC 1587, Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1 and Fibre Bond (Sales) Pvt.Ltd. Vs. Smt. Chand Rani 1993 (1) RCR
492. 11.18 It was one of the contentions of the Ld. Counsel for the appellant that the Ld. Trial court failed to appreciate the fact that the RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 20/35 property in question was assessed to house tax and there was an admission by the landlord, of the existence of structure, at the time of purchase of the property by the father of the respondent and the portion, let out to the appellant was builtup. It was argued that the Ld. Civil Judge discarded the said documents on the ground that the same were filed at a belated stage.
11.19 However the said argument too is meritless. During the crossexamination PW1/respondent did not even once admit that the portion which was let out to the appellant i.e. suit property was built up at the time when the same was let out. It was the consistent stand of PW1 that only a plot was let out. As far as the contentions of the appellant, that the documents produced by it proved that the property in question is assessed to house tax and therefore a built up property/portion was let out to the appellant, are concerned they are absolutely meritless. The documents upon which the appellant has laid emphasis in support of his arguments are Ex. DW1/7, DW1/8 and Mark A to F as proved before the Ld. Trial court. Upon perusal of these documents I find no reasons to agree to the contentions of the appellant or differ with the findings of Ld. Trial court.
11.20 Ex. DW1/7 and Ex. DW1/8 dated 18.10.1965 and 18.12.1965 are documents pertaining to grant of license for storage of timber. These RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 21/35 documents mention the conditions/pre requisite for grant of license as must have been applied for by the appellant. Mark A to Mark E are the communications by the appellant with the concerned authorities in this regard. From none of these documents can it be even remotely inferred that the portion/the suit property let out to the appellant was the built up property. Same applies for Mark F as well. Even otherwise all these documents are subsequent to the execution of the rent agreement i.e. Ex. PW1/1. Therefore if some construction/structure was raised over the let out portion/suit property, with or without the consent of erstwhile landlord, it will not change the nature of the tenancy or the law governing the tenancy as it is well settled law that if a plot, vacant piece of land is let out then raising of construction/structure upon the same subsequently would not convert the same into a building so as to be governed by the provisions of Delhi Rent Control Act. For the civil suit to be barred, for the property to be covered under the provisions of Delhi Rent Control Act the let out portion/property had to be a constructed building at the time of letting out. Reliance may be placed upon the law laid down in A.R. Salay Mohamed Sait and ors Vs. Jaffer Mohamed Sait's Memorial Dispensary Charity and ors. AIRCJ (Supreme Court) III - 1969 200, Ram Saran and ors Vs. Harbhajan Singh and anr. 1964 (66) PLR 377, Shri Ram Prakash Chawla Vs. Smt. Amrit Kaur AIRCJ (Delhi) 1981 (2) 52 and Surender Kumar Vs. Hari Singh 2015 RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 22/35 VII AD (Delhi) 592.
11.21 In fact as far as Mark E dated 17.02.1968 is concerned it is a letter written by the Appellant firm through the then partner Sh. Gulshan Juneja wherein he informed the Delhi Municipal Corporation that one office built at the godown was dismantled. The said letter was reply to the notice i.e. Mark F issued to the appellant firm by the Zonal Superintendent, Municipal Corporation of Delhi as certain permissions of the license were flouted by the appellant. These documents Mark E and F go on to prove that the construction was raised subsequently and were demolished upon issuance of notice by the MCD. The relevant portion of crossexamination of DW1 in this regard read as "At this stage, the witness is shown Mark E (filed by the defendant). It is correct that this is the letter written by the defendant firm through its partner Sh. Gulshan Juneja to Zonal Assistant Commissioner, MCD South Zone informing that the office built at godown as found in the raid by the authorities on 10.01.1968 was dismantled."
11.22 Ld. Counsel for the appellant had argued that there were additional documents i.e. house tax records which the appellant wanted to bring on record however his application in this regard i.e. application dated 27.08.2015 was dismissed by the Ld. Trial court which seriously prejudiced the appellant's defence. Apart from the above contentions, as RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 23/35 has been discussed above, the appellant has also moved an application seeking permission to lead additional evidence either before this court or the Ld. Trial court to bring on record those documents. Even these contentions are devoid of merits for numerous reasons and I also find no grounds whatsoever to allow the application seeking permission to lead additional evidence.
11.23 Firstly, though the Ld. Trial court dismissed the application dated 27.08.2015 however despite the dismissal of the same the Ld. Trial court in its judgment under appeal discussed in detail all those documents which the appellant wanted to bring on record vide the said application. The first set of document included the certified copy of the rent petition, challans and it was rightly observed by the Ld. Trial Court that these documents do not prove that at the time of letting out the premises/the suit property was built up and not an open/vacant land/plot. The second document was a letter dated 16.05.1990 addressed by Sh. Manbir Singh i.e. brother of the respondent to the then Deputy Assessor and Collector. It was the case of the appellant that in the said letter Manbir Singh had written that "...........That a portion of 100 sq. yards with shed is on rent of Rs. 70/ per month, rest of the property is in our own use. This property has been purchased in the year 1965. Cost of plot was Rs. 9000/ including structure. We have not made any construction RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 24/35 after purchasing the property." It was its case that the use of the words "100 sq. yards with shed" and "we have not made any construction after purchasing the property" is itself of the prove of the fact that a built up structure was let out and not a plot. However I find no merits in the said contentions and this document does not come to the rescue of the appellant at all. To begin with this document pertains to year 1990 i.e. was written almost 25 years after the execution of the rent agreement. As far as use of words "we have not made any construction after purchasing the property" is concerned the word "We" refers only to Manbir Singh, his brother and family members and this word does not include the appellant or its partner. Furthermore the record would reveal that the submissions made in the letter were incorrect and false and there is ample proof available on record which shows that the construction was raised on numerous occasions before 1990 and since 1965. Construction was raised in 1968 and 1985 which has been discussed in later part of the judgment. The motive for making the above incorrect and false statements/submissions appear to be to avoid any penalty/action from the concerned authorities. Most importantly the letter is not written by the landlord or the respondent and hence it cannot be used against either of them and atleast not when it is inconsistent with Ex. PW1/1. As discussed above as per Ex. PW1/1 only a plot was let out to the appellant and the agreement is absolutely silent regarding any structure etc. As far as the use of word "with shed" is concerned it is not written that a RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 25/35 portion of 100 sq. yards with shed was let out. The letter has to be understood and appreciated in the light of the fact that it pertains to year 1990 and after the suit property was let out to the appellant, the appellant had raised construction/structure in the same for the purpose of obtaining the license as emerges from Ex. DW1/7, Ex. DW1/8 and Mark A to F. It has been the case of the respondent that structure was raised subsequently. At this stage it will be pertinent to highlight the questions put to and suggestions given to PW1/respondent during his cross examination which itself proves that the structure was raised subsequently.
CQ : When were the office and room constructed by the defendants? Ans: According to me they were constructed around 1985.
We have not complained about the construction. (Vol. No permission was obtained however we also did not raise any objection on account of cordial relations). It is wrong to suggest that my father, my uncle or myself were detained by the police on the complaint of defendant before 1985. It is wrong to suggest that the members of the market association had interfered in the matter and the compromise was arrived at the police station itself. It is wrong to suggest that the relationships were not cordial."
11.24 Therefore this document/letter dated 16.05.1990 does not help the cause of the appellant.
11.25 The next document the appellant wished to rely upon and as was discussed by Ld. Trial court is document dated 05.05.1987 which is RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 26/35 the form containing the details of property for determination of rateable value. As is evident from the date of document it pertains to year 1987 i.e. 22 years after the lease deed was executed nonetheless this document upon which the appellant wants to place reliance upon is rather fatal to the case of the appellant. In this document the year of construction in respect of the suit property, the structure raised in the suit property is given as 1969 and not 1965 i.e. the year of letting out. This document proves that the construction was raised, the super structure was raised for the first time in 1969. It has already been discussed above that subsequent construction/raising of construction shall not alter the nature of the property let out so as to bring it within the purview of Delhi Rent Control Act, 1958.
11.26 There is one more document bearing no. 485/1/16. The said document is absolutely illegible as was observed by Ld. Trial Court and again an illegible/blurred copy has been filed before this court. There is nothing in this document, so far is visible, which supports the case of the Appellant. The appellant could not point out the relevant portion/extract of the letter which supports its case. Moreover this document is of dated 01.04.1969 i.e. four years after the lease deed was executed.
11.27 Similarly the inspection report of MCD which the appellant wanted to bring on record also pertains to the years 1977 though the Trial RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 27/35 Court has opined that the date of inspection is 07.11.1969. These are three documents and the dates which appear on the documents are 18.01.1977, 01.04.1969, 28.08.1969 and 07.11.1969 i.e. again more than 4 years after the suit property was let out. None of these documents even remotely establish that in the year 1965 when the suit property was let out it was not a vacant piece of land/plot but there was a structure/built up portion existing over the same/building which was let out. Hence the Trial Court rightly dismissed the application.
11.28 Nonetheless as discussed above the Trial court did consider all the documents so it is not as if the appellant was prejudiced in any manner or he could not bring forth all the material available with him on record. Furthermore this order dismissing the application was passed on 27.11.2015 and the judgment was delivered on 18.02.2016 and the order having not being setaside had attained finality.
11.29 At this stage it will be pertinent to highlight, as was pointed out by Ld. Counsel for the respondent during the course of arguments, that only the documents as detailed in para 3 of application dated 27.08.2015 and which have been duly discussed in the judgment by the Ld. Trial court, were intended to be brought on record by the appellant before the Trial court whereas in the application which has been filed in appeal the appellant has not only not filed the list of the documents it RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 28/35 intends to bring on record but it has filed certain additional documents which were never filed before the Ld. Trial court for example document dated 16.04.1990 bearing signatures of Manbir Singh which is a proforma for filing objections to the rateable value for the assessment year 198990, letter dated 12.04.2010 written by Assistant Collector to the respondent in respect of the mutation of property no. 68, Arjun Nagar and one letter dated 25.01.2011 written by respondent to the Assistant Assessor Collector for issuance of certified copy of complete file in respect of the above property. The submissions made by the Ld. Counsel for the respondent are factually correct. In the application seeking permission to lead additional evidence details of the documents intended to be brought on record have not been given and it is simpliciter mentioned in para 7 as " That all the documents showing the super structure are on record. The appellant craves the leave of this Hon'ble Court to allow the appellant to produce the said house tax record, in the present proceedings, by leading additional evidence." The prayer clause of the application reads as "It is, therefore respectfully prayed that this Hon'ble Court may kindly be pleased to allow the Appellant for leading the additional evidence, in appeal, as submitted herein above. In the alternative the matter may kindly be remanded back for producing the House Tax record, to prove the existence of a super structure, in the interests of justice."
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 29/35 11.30 Before the Ld. Trial court and in application dated 27.08.2015 no such prayer was made for summoning of House tax records or to lead any evidence to prove the house tax records which has now been made before this court. The appellant has filed around 186 documents vide his application dated 15.12.2016. These documents as well as documents dated 16.04.1990, 12.04.2010 and 25.01.2011 as discussed above have only made the records bulky and the purpose seems to be to confuse the court and delay the trial/proceedings/ outcome. The documents do not serve any purpose as they have no significance whatsoever and even if these documents are taken on record they shall have no bearing on the outcome of the present trial/matter. These documents are not even remotely or minutely essential or necessary for the proper adjudication of the dispute. Without going into the details of the documents which have been filed suffice would be to say that on a meticulous scrutiny of the documents as above it is writ large that none of the documents pertain to the year 1965 i.e. year of letting out. Rather all the documents pertain to year 2014 and 2016. In fact it will not be wrong to say that such conduct of appellant is malafide and intended to defeat the ends of justice. Though in one of the ground of appeal i.e. ground H the appellant had claimed that the suit of the respondent is/was based on false averments and that he had not approached the court with clean hands however it is the appellant's whose own conduct is not clean and the case law relied upon by the RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 30/35 appellant i.e. S.P. Chengalavaraya Naidu through LRs Vs. Jagannath AIR 1994 SC 858 applies to the appellant than the respondent. I find no dishonesty or malafide or falsehood in the case of the respondent.
11.31 Therefore and as there is no requirement of any additional evidence in view of the fact that all the documents which were intended to be brought on record vide application dated 27.08.2015 have already been discussed by Ld. Trial court and reconsidered by this court as above and the remaining documents are not even remotely related to/connected with the controversy at hand and shall have no bearing on the outcome of the case the application for leading additional evidence stands dismissed.
11.32 Coming back to Ex. PW1/1 i.e. rent agreement, the said document duly corroborates the claims of the respondent that only a vacant piece of land/plot was let out. Appellant failed to lead any evidence to prove to the contrary or to discredit the claims of the respondent. The only significant witness examined by the appellant before the Ld. Trial court was DW1 i.e. Sh. Satish Juneja, partner of the appellant firm. However his testimony rather than helping the cause of the appellant rendered the respondent's case more credible/reliable/ trustworthy. The relevant portion of the testimony of DW1 in this regard read as under:
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 31/35 " I can not say whether the vacant plot was let out to the firm for use as a godown and subsequently temporary construction was made by father and brother later on after 196667. I have no knowledge as I came in the business in the year 1976 or thereabout. It is correct that in my affidavit as well as in the written statement I have not mentioned as to when the two rooms were constructed and when tin shed was made for storing Timber. The room marked as point A in the site plan Ex. DW1/1 was constructed in the year 1985. Again said the room was constructed earlier but he made staircase outside. The room shown at point B in the site plan Ex. DW1/1 has another room over the same which was constructed in the year 1985. The room at point B was constructed in the year 1970. It is incorrect to suggest that even room at point A was constructed later on in the year 1985. I must have visited the suit property sometimes in the year 1970 for the first time. It is correct that at the time of letting I was not present and had not visited the suit property.... I do not know that whether Mr. Gurdev Singh had leased out a vacant plot........It is correct that my statement in the affidavit and averment in the written statement that the suit premises at the time of letting comprised of constructed structures is not correct as I am not aware of what was situation at the time of letting."
11.33 Though the testimony of this witness looses much of its significance in the given context of the case as the dispute pertains to the year 1965 i.e. time of letting out whereas this witness admittedly came into picture only in the year 1976 or thereabout. Nonetheless as per the statement made by this witness the period of construction comes somewhere around 1970 to 1985. Therefore even this witness could not prove that there was some construction, raising of super structure in the year 1965 at the time of letting out leave apart letting out of the suit RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 32/35 property with a super structure/construction as claimed by the appellant.
11.34 Ld. Counsel for the appellant had also argued that Ld. Trial court failed to appreciate that the site plan Ex. PW1/2 filed by the respondent clearly showed existence of covered space as it mentions room above and there cannot be a room above unless there is construction below and it was not the case of the respondent that the appellant had raised construction and therefore Ld. Trial court failed to appreciate that structure existed in the suit property at the time of letting out. However I find no merits in the said arguments. It has been discussed above in detail that no structure existed at the time of letting out of the suit property. It was a plot without any structure. Construction was raised subsequently. Ex. PW1/2 merely depicts the construction raised subsequently. Neither the said document proves that structure existed at the time of letting out nor I find any admissions on record by the respondent to the extent that no construction was raised by the appellant subsequent to after the letting out.
Ground C and F
12. It was also one of the arguments of the Ld. Counsel for the appellant that the Ld. Trial court lost sight of the fact that the electricity connection could not have been granted on a vacant plot. It was argued RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 33/35 that if there had not been any construction, there could be no electricity connection installed in the property and thus there was no need of clause 6 in the rent agreement regarding payment of electricity bill, exclusive of rent, by the appellant. It was argued that if a plot had been let out, no question of electricity connection could arise as the electricity connection could be installed in a built up property only and therefore the existence of an electricity connection clearly affirms that there existed a structure, where the electricity connection was installed. It was argued that this itself is a conclusive proof of the existence of a structure. Reliance was placed upon order/judgment dated 04.12.2012 passed in Bhajan Lal Vs. Rajesh Goyal by Ld. ADJ Sh. Reetesh Singh in this regard. However I find no merits in the said contentions of Ld. Counsel for the appellant.
12.1 Admittedly there was no electricity connection installed in the portion/plot let out to the appellant. The electricity which was supplied to the appellant was through the electricity connection as was installed in the respondent's portion. The respondent's/PW1's deposition in this regard read as "......the defendant is drawing electricity from my meter." It was/is not the appellant's case that the electricity meter was installed in the portion/plot let out to it. Installation of electricity meter in the portion/plot let out to the appellant and supply of electricity to the portion/plot let out to it are two distinct aspects altogether. It has to be RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 34/35 remembered, as was also discussed by Ld. Trial court, that only 1/3rd portion of the plot/property no. 68 was let out to the appellant and remaining 2/3rd remained with the respondent. Hence I am of the firm opinion that the electricity connection was installed in the portion which remained with the respondent and it takes care of the arguments of the Ld. Counsel for the appellant that no electricity connection could have been installed unless there was a structure.
13. Therefore the appeal being meritless stands dismissed.
14. File be consigned to record room after necessary compliance.
announced in the open court (Gaurav Rao)
on 23rd March 2017 SCJ/RC/SouthEast
Saket Courts/New Delhi
RCA no. 28/16 Nagpur Timber Store Vs. Upkar Singh Kohli 35/35