Delhi District Court
Sh.Abdul Hameed vs Sh.Nanneh (Nalwala) on 17 February, 2008
Suit No.509/07 1
IN THE COURT OF SH. MUNISH MARKAN, CIVIL
JUDGE/ DELHI
Suit No.509/07
Sh.Mohammad Siddiqui
S/o Late Sh.Abdullah (Deceased)
through
Legal heirs and representatives:
1. Sh.Abdul Hameed,
S/o Late Sh.Mohd. Siddiqui
R/o 1088-C, Mehrauli, New Delhi
2. Sh.Abdul Majid
S/o Late Sh.Mohd. Siddiqui
R/o 1831, Kala Mahal,
Darya Ganj, Delhi ..... Plaintiffs.
Versus
1. Sh.Nanneh (Nalwala)
S/o Sh.Takhi Alias Kacchoo,
R/o 1088-B, Near MCD Primary
School, (Durgawalah),
opp. Primary Health Centre,
Mehrauli, New Delhi .... Defendant
2. Smt. Naseem Bano,
W/o Sh.Gulammuddin,
D/o Late Sh.Mohd. Siddiqui
R/o Gali No.8, Chauhan Bangar Pulia,
Seelam Pur,
Delhi Performa Defendant
3. Smt. Nasreen Bano
W/o Sh.Allamdar,
D/o Late Sh.Mohd. Siddiqui
R/o Kashmere Gate,
Ferozabad (UP) Performa Defendant
Suit No.509/07 2
Date of institution: 04/10/1988
Date of receipt of this case in this court: 14/09/07
Date of reserving this case for order: 11/01/08
Date of Decision: 14/02/08
JUDGMENT
1. This is a suit for possession.
2. The case of the Plaintiff is that Plaintiff is the owner of the land of super structure constructed thereon, except certain construction raised by the defendant on property No.1088-B, ward No.1, Mehrauli, New Delhi. Plaintiff also claims to be the owner of the property No.1088-C ward No.1, Mehrauli, New Delhi. It is stated that the Plaintiff has been from time to time creating tenancy in respect of open land in favour of persons and a portion of land measuring about 140 sqr. Yards (as shown red in Site Plan) was let out to the defendant in the year 1968, bearing property No.1088-B, ward No.1, Mehrauli, New Delhi at a monthly rent of Rs.50/- for which a formal rent note was executed by the defendant in favour of the plaintiff. The land was let out to the defendant in April 1968, particularly Suit No.509/07 3 on 22/04/1968 when the defendant executed a Rent note in favour of the Plaintiff on the same day under his signature in the presence of the witness and took possession of the land from the Plaintiff. It is stated that at the time of creation of tenancy, defendant was residing near Dargah, Mehrauli, New Delhi and so long he continued with the possession near Dargah, the defendant continuously paid the rent of said open land to the Plaintiff @ Rs.50/- per month for a continuous period of one and half years and when the defendant requested the plaintiff to raise small construction for proper use of the land, the plaintiff allowed the defendant to raise very small construction for the use of open land.
It is stated that parties agreed to make an enhancement in the rate of rent in respect of land and also to execute fresh agreement after raising of the construction, but the defendant did not enhance the rent nor executed any fresh agreement in favour of the Plaintiff. The defendant Suit No.509/07 4 even stopped payment of rent to the Plaintiff and it is stated that Plaintiff, however, never accepted the defendant to be his tenant in respect to the construction raised by the defendant. It is stated that since 1969-70, defendant has been raising construction without obtaining any written consent of the Plaintiff and Plaintiff has been objecting orally to the same and now the defendant has raised the construction on the land of the Plaintiff as shown in red in the site plan.
As land underneath the construction was stated to be owned by the Plaintiff and the house tax was assessed by the MCD in the name of the plaintiff and the Plaintiff being an illiterate, started making payment of the House Tax in respect of the super structure but it is stated that Plaintiff never accepted the defendant to be his tenant in respect of the entire structure raised on the land by the defendant. It is stated that Plaintiff objected to the construction and claimed back the possession of the land from the defendant but the Suit No.509/07 5 defendant refused. In the year 1981, Delhi Wakf Board filed the suit for possession against the Defendant vide suit No.30/81 treating the property No.1088B owned by Plaintiff to be the Wakf property. The said suit was dismissed vide judgment and decree dated 09/09/1983. It is stated that the defendant in the said suit has specifically admitted the plaintiff to be the owner of the property and asserted himself to be the licensee of the Plaintiff. It is stated that said statement of the defendant treating himself as licensee is wrong.
After dismissal of the said suit, the defendant applied with the MCD for assessing the said property in the name of the Defendant but the Corporation declined such request of the defendant as Plaintiff was already recorded as an owner of the said property with the MCD. It is stated that Plaintiff has called upon the defendant to handover the possession of the land/property to the Plaintiff but the defendant has refused. A registered notice dated 15/07/1988 Suit No.509/07 6 was also sent to the defendant under registered post and UPC and a reply dated 28/07/1988 was sent by the defendant. Hence the present suit for possession.
3. It is further stated that the defendant has become the unauthorised and illegal occupant of the aforesaid land/ property and is liable to handover the possession of the same to the Plaintiff after removing the construction raised by the defendant. The suit property is situated in Delhi. The Plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs.600/-, being the yearly rent of the tenanted land and accordingly paid the advolerum court fee. It is stated that the Plaintiff has let out only a piece of land and as such the provisions of Delhi Rent Control Act have no applicability in the present case. Hence, the plaintiff prays for decree of possession in respect of land measuring 140 Sqr. yards bearing municipal number 1088-B ward no.1, Mehrauli, New Delhi as shown in red in the site plan, by ordering the demolition of the construction raised by the Suit No.509/07 7 defendant over the land of the plaintiff raised within the boundary of the land shown in red colour in the site plan. Plaintiff also prays for damages from the date of filing of the suit till actual handing over of the possession @ Rs.200/- per month.
4. The defendant contested the suit and filed his written statement and has taken various defences among others that the suit is barred by limitation. It is stated that the right to sue i.e. cause of action arose to the plaintiff when the defendant raised pucca structure on the plot in violation of the terms of the Rent Deed some time in 1969- 70 (As per para 6 of the plaint), without consent of the plaintiff but no action was taken and it is stated that suit is liable to be dismissed as the same has not been filed within 12 years from the date of violation of the terms of the alleged Rent Deed which accrued to the plaintiff in 1960-70. It is further stated that the suit of the plaintiff is hit by the principle of acquiescence as the plaintiff has acquiesced in Suit No.509/07 8 the acts and deeds of the defendant and plaintiff never lodged any protest nor has taken any action when the defendant was raising the super structure in the presence of the Plaintiff. It is stated that on the contrary, the plaintiff allowed the defendant to invest huge amounts on the construction which is now worth more than Rs.5 lacs.
Defendant also states that suit is barred by principle of equitable estoppel and the Plaintiff is stopped by his own acts and Deeds to file the present suit as Plaintiff himself has made a statement in another suit filed by Delhi Wakf Board against the defendant wherein the plaintiff has stated that Plaintiff has allowed the defendant to live in the suit land as a licensee without any charge as defendant is from his dynasty. It is stated that Plaintiff is now stopped after more than 32-33 years. It is further stated that Plaintiff has described the suit property as the defendant's property in other document of title executed by the plaintiff and therefore, has acknowledged the defendant's title to the suit Suit No.509/07 9 property. It is stated by the defendant that suit of the plaintiff is also hit by section 60 of Indian Easement Acts as the Plaintiff has allowed the defendant to live in the suit land. (the alleged licensee to raise pucca structure of a valuable nature on land so given on license) and that therefore, the license has become irrevocable. The defendant further stated that suit is not maintainable unless the so called tenancy is determined in accordance with the provisions of section 106 of Transfer of Property Act as the plaintiff has filed the present suit for possession on the basis of alleged Rent Note of land. Defendant has specifically denied the execution of any such Rent Note by the defendant.
Defendant has also denied the legality and validity of the notice and stated that it has not been validly served in accordance with law and so the tenancy has not been validly terminated.
5. It is further stated that suit is not properly valued Suit No.509/07 10 for the purpose of court fee and jurisdiction as the defendant has raised the construction and the value is about Rs.5 lacs and since the suit is for possession against the trespasser, therefore, suit is liable to be valued on the present market value of the property including the costs of construction and the costs of the land as in the notice dated 15/07/1988, Plaintiff has described the defendant as unauthorized occupant and not as a tenant, therefore, it is submitted that this court has no pecuniary jurisdiction to entertain the present suit and the suit is liable to be returned for presentation to the appropriate court. Defendant has alternatively taken the plea of adverse possession without prejudice to the rights of the defendant by virtue of section 60 of Indian Easements Act.
It is stated that in case, Plaintiff prove his title to the land, even then the defendant has become owner by way of adverse possession because the plaintiff has not taken any action since 1969-70. As per plaintiff's own allegations in Suit No.509/07 11 the plaint that the defendant raised pucca structure without the consent of the plaintiff though the defendant is there since 1956-57.
6. It is further stated that Plaintiff has not come to the court with clean hands and the self contradictory claim has been taken by the plaintiff and that plaintiff wanted the defendant to purchase the suit land from him. It is stated that Plaintiff married one lady, later on her after usurping her land by foul means and sold the same to Sh.Sube Singh which is adjoining the suit land. Another alternative plea taken by the defendant is that defendant has been in possession of the suit property since 1956-57 (or since 1969- 70 according to the plaintiff) and defendant has been dealing with the property as full owner for more than 12 years. It is stated that defendant has perfected his title to the property by adverse possession with the lapse of time and that the plaintiff has not only lost the remedy but has also lost his right, if any, as envisaged u/s 27 of the Limitation Act. Suit No.509/07 12 Therefore, suit of the plaintiff is liable to be dismissed on this ground.
7. On merits, the defendant has challenged the plaintiff to prove his title to the suit land. Defendant denied that only certain constructions were raised by the defendant on the suit property. It is stated that super-structure so raised on the suit property is of the defendant and even the plaintiff's title to the land of property no.1088C is not admitted. Defendant has categorically denied the suit of the plaintiff on several grounds and stated that the contents of the plaint are false, frivolous and vague.
Defendant has denied that suit property was ever let out to the defendant in the month of April 1968 and also denied that any rent note was ever executed by defendant in favour of Plaintiff on 22/04/68. Defendant also denied the correctness of the site plan. It is stated that defendant never paid any fee towards rent to the plaintiff, therefore, no question of paying Rs.50/- as rent arose. Defendant also Suit No.509/07 13 denied his signature on the Rent note. It is stated that defendant has been living there prior to the so called Rent note and even the Plaintiff in his own statement made in the court has never mentioned of any such rent note. The defendant never took the land from the plaintiff.
8. It is stated that Plaintiff has made statement in another suit filed by Delhi Wakf Board that defendant has been living there(in suit property) for more than 20 years and that statement was made in the year 1983. It is stated that the plaintiff is guilty of offenses u/s 192 , 463, 464, 465 of IPC. The Rent note is stated to be forged one and it is stated that plaintiff is guilty under section 471 IPC as well as u/s 340 Cr.P.C.. Defendant denied that the defendant paid any rent for a fixed period of one and half year. Defendant denied that tenancy was created in favour of defendant at any point of time. Defendant further denied that defendant was residing near Dargah, Mehrauli, New Delhi. It is stated that construction is there even before the Suit No.509/07 14 said forged rent note and that the defendant raised construction in piecemeal manner. It is stated that no question of enhancing of rent and execution of fresh agreement in favour of plaintiff arose. The defendant is not the tenant of the Plaintiff.
9. However, it is not denied that defendant has been raising construction since 1969-70, rather prior to it. Though, it is denied that Plaintiff ever objected to it orally or in writing. The construction is an old one. Defendant has challenged the plaintiff to prove his title in affirmative. It is stated that Municipal Corporation of Delhi ought to have assessed the House Tax in the name of the defendant as the construction was raised by the defendant. Defendant denied that the plaintiff is an illiterate person and plaintiff has now started making payment of the House Tax just before filing the present suit. Defendant denied that it is an unauthorized construction. Defendant has denied the story of the plaintiff regarding the approaching the defendant with the assistance Suit No.509/07 15 of common friends. Defendant denied that Plaintiff has ever claimed back the possession of the suit land from the defendant. It is stated that Plaintiff has not only acquiesced but also induced the defendant to believe that there will be no interference or attempt to evict him from the land by anyone and it is conduct of the plaintiff which induced the defendant to raise permanent structure by demolishing Kaccha one, which was earlier raised by the defendant.
10. It is stated that even if defendant is a licensee, the license has become irrevocable upon raising pucca structure of valuable nature. The defendant entered into the land and construction of permanent character was raised with the acquiescence of the plaintiff. Defendant admitted that Delhi Wakf Board instituted a suit against defendant for possession which was dismissed.
11. It is further stated that defendant was persuaded by the plaintiff to admit him as a licensor of the property and to assert himself as a licensee of the plaintiff in that suit. It is Suit No.509/07 16 stated that defendant is illiterate and fell into the trap of the plaintiff and plaintiff got engaged a lawyer for the defendant in that case and stated him to take such plea. It is stated that an application u/o 1 rule 10 CPC for impleadment was made by the Plaintiff in Delhi Wakf Board case which was withdrawn. It is stated that defendant took a plea of licensee in the other suit at the instance of plaintiff to save himself from the eviction from the land but at the same time, Plaintiff who was a witness in Delhi Wakf Board case had admitted in that suit that defendant has been residing there for last more than 20 years or so and constructed permanent structure in the disputed land with the consent of the plaintiff and plaintiff is not charging any rent from the defendant.
12. It is stated that now the plaintiff is estopped on account of his own conduct to claim any right in suit property. It is stated that defendant made improvement in the construction to the knowledge of the plaintiff. It is Suit No.509/07 17 stated that defendant had applied with the MCD for assessing the suit property in his name but same has not yet been considered by the Corporation. It is stated that notice dated 15/07/1988 was illegal and invalid and that notice was replied by the defendant. However, plaintiff has denied that any cause of action has arisen subsequently on various dates when the defendant made addition in the construction over the land in dispute. Plaintiff admitted that all the construction was raised by the defendant without the consent and permission of the Plaintiff but stated that the Plaintiff acquiesced in it. Defendant denied that cause of action lastly arose on 15/07/1988 when the plaintiff claimed the possession by sending legal notice.
13. It is further stated that if the plaintiff successfully proves that the initial construction was raised by him as claimed by the plaintiff (although not admitted by defendant) in that case, the Delhi Rent Control Act would apply and this court will have no jurisdiction. Defendant Suit No.509/07 18 denied that the value of the suit property for the purpose of court fee and jurisdiction is Rs.600/- and submitted that Plaintiff be asked to pay the court fee on the market value of the land and property in suit as the plaintiff himself has called defendant as a trespasser in the notice and not a tenant.
14. It is stated that as per allegations in the plaint, there exists relationship of landlord and tenant although not admitted and the suit of the plaintiff is barred u/s 50 of the Delhi Rent Control Act, if the plaintiff proved the initial construction so raised by him. It is stated that suit of the plaintiff is barred by limitation. Hence the defendant prays for dismissal of the suit with special costs.
15. In replication Plaintiff reaffirmed his case and denied the defences of the defendant as made out in the written statement and stated that every time when the construction are raised, a fresh cause of action has arisen to the plaintiff and the cause of action arose during July 1988 Suit No.509/07 19 when the registered notice of possession of property was sent. Plaintiff reiterated that suit is falls within limitation, as period of 12 years have to be computed from the last cause of action. Plaintiff further submitted that in January 1985, the defendant made an attempt to obtain transfer of property of plaintiff with the Municipal Corporation of New Delhi by moving application dated 30/01/1985 and therefore, cause of action arose on that date also for filing the suit. Plaintiff denied that the suit is barred by principle of acquiescence and by the principle of estoppel. It is stated that the defendant misinterpreted the statement of plaintiff recorded in the Delhi Wakf Board case and that the construction was raised by the defendant from time to time at his own risk and responsibility and since the defendant was given only the land ,therefore, the defendant cannot take the benefit of such construction.
16. Plaintiff further submitted that no document has been executed by the plaintiff which described the suit Suit No.509/07 20 property as defendant's property and that no document conferring title in favour of defendant has been executed in respect of suit property by the plaintiff. Plaintiff denied that the provision of section 60 of Indian Easements Act are applicable in the present case. Plaintiff also denied that the suit is liable to be dismissed as the license has become irrevocable and Plaintiff reiterated that the suit has been properly valued for the purpose of court fee and jurisdiction and stated that Plaintiff has no concern with the construction carried out by the defendant. Plaintiff is concerned with the land underneath the construction which was let out to the defendant. It is stated that the value of the construction is immaterial for deciding the present suit. Plaintiff has further denied that any right has accrued in favour of defendant u/s 60 of the Easement Act and has stated that alternative plea of adverse possession as raised by the defendant is not permissible.
17. It is stated by the plaintiff that prior to 1968, the Suit No.509/07 21 defendant had been making attempt to use the land underneath the construction and at that time ,the defendant was residing somewhere near Dargah, Mehrauli, Delhi and in 1968 ,the land in question was let out to the defendant. Plaintiff has denied the defense of the defendant regarding plaintiff having married one lady. Plaintiff denied that defendant is in possession of the property since 1956-57 and has been dealing with the property as full owner for more than 12 years. Plaintiff further denied that the defendant has perfected his title to the property by adverse possession by lapse of time and that the Plaintiff has lost his right in the property by section 27 of Limitation Act.
18. On merits, plaintiff reiterated his case as made out in the plaint and stated that the title of the plaintiff is proved from the admission of the defendant made in the other case. Plaintiff has stated that the said Rent note may be read for collateral purposes and plaintiff denied that no Rent was ever paid by the defendant to the plaintiff. It is reiterated Suit No.509/07 22 that the statement of the plaintiff with regard to the possession of the defendant for the last 20 years was on the basis of mis-calculation as plaintiff is illiterate. Plaintiff has denied any criminal liability of plaintiff under various provisions of IPC. In para 5 of the replication, plaintiff has stated that Rent of land was only paid by the defendant and there was no occasion for the plaintiff to receive any rent with respect to the construction raised by the defendant.
19. Further, in para 7 of the replication, plaintiff has stated that no kuccha construction was raised by the defendant. The hut which was existing prior to 1969-70 was of the plaintiff and the defendant after demolishing such kuccha hut raised the construction from time to time. Plaintiff denied having granted any license to the defendant and also denied that the license become irrevocable upon raising a pucca structure. Plaintiff admitted that the application u/o 1 rule 10 CPC which was moved by the plaintiff in Delhi Wakf Board case was withdrawn and the Suit No.509/07 23 plaintiff appeared as witness in the said case on behalf of the defendant and the defendant examined the plaintiff as his witness in that case on 18/08/83. It is stated that as the plaintiff was the owner of the property he could not become party in the said case and therefore, the plaintiff was examined as a witness by the defendant. It is further stated that in order to save himself from eviction, the defendant induced the plaintiff to raise a plea of licensee in defence of the defendant in Delhi Wakf Board case. Further, plaintiff has denied the defenses of the defendant step by step and has reiterated his case as made out in the plaint.
20. From the pleadings, following issues were framed on 07/12/1989.
ISSUES
1. Whether suit is barred by time? OPD
2. Whether plaintiff is estopped from filing the suit in view of objection no.2 and 3 of the written statement? OPD
3. Whether suit is barred u/s 60 of the Easements Act? OPD
4. Whether suit is bad for want of legal and valid notice u/s 106 of Transfer of Property Act? OPD Suit No.509/07 24
5. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD
6. Whether defendant has become owner of the suit property by adverse possession ? OPD
7. Whether plaintiff is entitled to relief of possession? OPP
8. Relief.
21. Issue no.5 was reframed vide order dated 21/09/05 as under:
Whether the suit is liable to be dismissed for want of legal and valid notice u/s 106 of TP Act. ? OPD
22. In this case, plaintiff himself entered into the witness box as PW-1 on 21/05/01 and was partly cross examined and thereafter died on 05/01/02. After the death of the plaintiff, the only plaintiff witness PW-1 Sh.Abdul Hameed(one of the LR of plaintiff) entered into the witness box and gave his testimony. On behalf of defendant, the only defendant witness i.e. DW Nanneh was examined. Two other defendant witness DW-1 Sh.Sanjay Kumar and DW-2 Sh.Ashok Kumar were examined on 26/03/04 who only testified that they did not bring the summoned record.
23. Issuewise findings of the court are as under: Suit No.509/07 25
24. Issue no.2 and 3 are taken up first.
ISSUE No.2 Whether plaintiff is estopped from filing the suit in view of objection no.2 and 3 of the written statement? OPD ISSUE No.3 Whether suit is barred u/s 60 of the Easements Act? OPD
25. In the written statement, the defendant has taken a preliminary objection that suit of the plaintiff is hit by acquiescence as he has acquiesced in the acts and deeds of the defendant and that the suit of the plaintiff is barred by principle of equitable estoppel.
Before proceeding further, it is important to decide the relationship between the parties as the present suit has been filed by the plaintiff treating the defendant as a tenant in respect of the land underneath the super structure in the suit property. Plaintiff has relied on Ex.PW-1/14 which is the Rent note, which as per the plaintiff has been executed by the defendant. The suit has been filed for the recovery of land after directing the defendant to demolish the super Suit No.509/07 26 structure thereon as plaintiff is claimed to have let out the land only at the rent of Rs.50/- per month vide rent note Ex.PW-1/14 date 22/04/1968. Perusal of the Ex.PW-1/14 which is a document in Urdu and whose English as well as Hindi translation has been filed by the LR of plaintiff himself. The translation of the Rent note reads as under:
" RENT DEED In the honour of Respected Mohd. Siddiqui son of Abdullah, H. No.1831, Chhatta Aghazan, Kala Mahal, Delhi, it be known that as was orally finalized yesterday, that your Plot No.1088-B, admeasuring about 140 Sqr. yards situated near Primary Health Centre, Mehrauli, is taken on rent for a period of 11 months w.e.f. 22nd April 1968, on the terms and conditions as stated below:
1. Rent of the plot is amounting to Rs.50/- (Rupees Fifty) and water charges are Rs.... totalling Rs.50/-.
2. Rent of the plot shall be paid by 5th of every month or before that date and rent shall be paid advance in every Suit No.509/07 27 month. Whatever rent shall be paid, I will get its rent receipt. Oral tender will not be recognized.
3. I will not let out any portion of plot either in full or in part to any other person without the consent of the owner.
4. I will not raise any constructions or do any alterations in the plot without the written consent of the owner.
5. Any damage caused in the plot for example electricity fittings or breakage of glasses in doors etc. will be compensated by me by paying its cost without any objection or bargain.
6. The plot will be always available for inspection at any time and for keeping into consideration the safety measures and principles I will take full care and maintenance of the plot.
7. I will not do any illegal activities in the plot and will use same for residential purposes in a civilized manner.
8. Either of the party if required to vacate or to get vacated plot, on notice of 15 days to vacate the plot shall be Suit No.509/07 28 vacated.
9. On violation of any of the above terms and conditions, it shall be the right of the owner to take possession of the plot without giving any notice and to evict me from the plot and on the same date, tenancy will be over.
10.In witness whereof this writing is executed so that it may be used as and when required.
Sd/- Sd/-
Bashir Beg Sayed Sajjad Ali
Witness Dargah Kutub Sahib
Bashir Beg S/o Mehrauli
Sh.Abdullah Beg Sd/-
R/o 180, Kala Mahal Executant
Delhi Nanneh Khan
S/o Takki @ Kachhu
Plot No.1088-B,
Ward No.1,
Mehrauli, Delhi
26. Perusal of clause 2 shows that no oral tender of the rent will be recognized. In the body of the Rent note, the word "Plot" has been mentioned in reference to the suit property but in para 5, it is mentioned that any damage caused in the plot for consumable electricity fittings or Suit No.509/07 29 brokerage of glasses in door etc. will be compensated ......
and further in clause 7, the undertaking has been given to use the plot for residential purposes in a civilized manner. PW-1 Abdul Hameed in his affidavit Ex.PW-1/A has stated that Ex.PW-1/14 contains the signature of the defendant. PW-1 has also placed on record report of the handwriting expert Ex.PW-1/19A. Defendant counsel has objected to the mode of proof of Ex.PW-1/19A as no expert witness was examined by the Plaintiff, therefore, this document cannot be looked into and cannot be relied in any manner as the same has not been proved in accordance with well established rules of evidence, as no occasion arose to give any opportunity to defendant to discredit the genuineness or creditworthiness of Ex.PW-1/19A.
27. DW-1 in his cross examination has categorically denied that rent note Ex.PW-1/14 was executed by him in the year 1968 and categorically denied that open land was taken by him in the year 1968 on the basis of rent note Suit No.509/07 30 Ex.PW-1/14. On the other hand, DW-1 in his cross examination has stated that he started raising construction over the suit property 50-52 years back and that he has not taken any permission for raising any construction. Further, voluntarily stating that no permission is required as the property belongs to the defendant. The wording of the Ex.PW-1/14 i.e. Rent note does not suggest anything concrete as to whether an open plot of land was given on rent to the defendant. Ld. counsel for the defendant has argued that even going by para 5 of said Rent Deed Ex.PW- 1/14, it is difficult to explain as to how there can be glasses in doors and electricity fittings in an open plot and how an open plot can be used for residential purposes in a civilized manner.
28. Perusal of original Rent note Ex.PW-1/14 shows that it is an old document which is in printed form wherein certain blank columns have been filled, therefore, Ex.PW- 1/14 cannot be relied upon for two reasons, one the Suit No.509/07 31 contradictory wording regarding the open plot and the glasses on doors, electricity fittings and residential purposes does not make any coherent sense, secondly, in view of the denial of the defendant in para 3 of the reply on merits of the written statement that any Rent note was ever executed by the defendant in favour of the plaintiff and further in the absence of any handwriting expert being called by the plaintiff, therefore (though the report of the handwriting expert has been filed) the Rent Note Ex.PW-1/14 cannot be relied upon and two contradictory and mutual exclusive inferences cannot be drawn from one document.
29. The fact of a suit being filed by Delhi Wakf Board against the present defendant bearing suit no.30/81 is not disputed and in that suit, the present plaintiff had moved an application u/o 1 rule 10 CPC (Ex.PW-1/D-1) claiming himself to be the owner of the present suit property and mentioning therein the present defendant as a licensee being the cousin brother. The said application u/o 1 rule 10 CPC Suit No.509/07 32 was withdrawn and the present plaintiff deposed as a witness of the present defendant in suit no.30/81 (as DW-8 therein). It is worthwhile to note that the deposition of the present plaintiff as DW-8 in suit no.30/81 is Ex.DW-1/1. In Ex.DW-1/1, the plaintiff in the present case has stated that "...........defendant Nanneh is living in the suit property bearing No.1088B for the last 20 years". This testimony was recorded on 18/08/83. Plaintiff further stated therein that Nanneh (defendant herein) had hut first. During the Janta regime, he built pucca structure. I am not taking any rent from him. Further, in cross examination in suit no.30/81, Mohd. Siddique DW-8(present plaintiff) testified that House Tax was there before Janta regime as Naneh had kuccha, pucca room even before Janta regime and he had no idea about the length and width of Naneh's premises. He further testified that after Naneh (defendant) took the possession, the no.1088B came into existence. In suit no.30/81, defendant Nanneh in his written statement Ex- Suit No.509/07 33 DW-1/P-1 has categorically stated in para 4 of the preliminary objection that Mohd. Siddique (Plaintiff in the present suit) is the real owner of the suit property no.1088B. Further ,in para 6, defendant has categorically stated that defendant is a licensee under Mohd. Siddique son of Sh.Abdullah in respect of portion forming part of property No.1088B. From the testimony of the defendant as well as of plaintiff in suit no.30/81 what clearly emerges out is that plaintiff is the owner of the suit property and defendant is a licensee of the plaintiff and these facts have been admitted by both the parties in suit no.30/81.
30. Further, Ld. counsel for defendant has contended that prior to the notice dated 15/07/88 which is Ex.PW-1/15 no objection has been taken by the Plaintiff regarding the construction being carried out by the defendant in the suit property from time to time. Even no evidence has been placed on record by the Plaintiff to show that the plaintiff has taken objection regarding the construction being carried Suit No.509/07 34 out by the defendant in the suit property from time to time. Further, perusal of the legal notice dated 15/07/88 which is Ex-PW-1/15 shows that plaintiff has not made any mention of any construction raised by the defendant and even the generic term "property" has been used to describe the suit property. PW-1 Sh.Abdul Hameed has placed on record photocopies of certain documents, Surveyor Report Ex.PW- 1/2, House Tax Receipt for the year 1987-88 Ex.PW-1/4, copy of House Tax Receipt for the year 1988-89 Ex.PW-1/5, notice received by his father from MCD u/s 126 of MCD Act Ex.PW-1/7, Copy of rent receipt regarding the tenancy of one Sh.Amnesty Ex.PW-1/10 and Ex.PW-1/11, copy of defendant's application to MCD for Mutation of property Ex.PW-1/12. Plaintiff has filed photocopies of these seven documents and as same has not been proved by the Plaintiff, as per law, the same cannot be looked into for any purposes. In view of the statement of plaintiff made on 18/08/83 in suit no.30/81 that Nanneh was living in the suit property for Suit No.509/07 35 the last 20 years i.e. from 1963, therefore the story of the Rent note and any rent being paid by the defendant loses its credence. Further, PW-1 in his cross examination has stated that Jhopadi was there at the time, therefore, the contention of the plaintiff that defendant raised construction illegally and despite oral requests of the plaintiff, holds no ground.
31. From the totality of evidence, it emerges that defendant has been a licensee in the suit property and has raised construction from time to time. This fact has been admitted even by the only PW-1 in his cross examination that defendant has been raising construction on the suit property periodically since the date of his occupation till the date of filing of the suit. PW-1 has stated that oral protests were made but not in writing. Therefore, from the evidence on record, it emerges that Plaintiff has acquiesced in the acts and deeds of the defendant and Plaintiff has allowed the defendant to invest huge amount on the construction. PW-1 has admitted in his cross examination that as on date of Suit No.509/07 36 filing of the suit, two storey Haveli is in existence. Further, in view of the statement of the plaintiff in suit no.30/81, the plaintiff is now stopped by principle of equitable estoppel as plaintiff in suit no.30/81 has categorically admitted that no rent has been paid by the defendant to the plaintiff. Therefore, the status of the defendant being that of a licensee having executed the work of permanent character and incurred expenses in the execution, therefore, license cannot be revoked by the grantor. It has been held in Babu Fazal Haq v/s Lala Data Ram, AIR 1975 Allahabad 373, that the man who stands by and allows another man to built on his land, in the belief that he has power or authority to do so and incurs expenses in such building cannot turn around and claim removal of such building on the ground that latter had no authority to build. He is stopped by his conduct from taking that course and the law will presume the authority from him in such cases. Therefore, the defendant becomes a licensee and the license cannot be Suit No.509/07 37 revoked in view of section 60 of the Easement Act. Section 60 of the Easement Act is reproduced as under:
"License when revocable - A license may be revoked by the grantor, unless -
(a) it is coupled with a transfer of property and such transfer is in force,
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."
Therefore, both these issues are decided in favour of defendant and against the Plaintiff.
ISSUE No.4 Issue no.4 was reframed on 21/09/05 as under :
Whether suit is liable to be dismissed for legal and valid notice u/s 106 of Transfer of Property Act? OPD
32. This issue was decided by the court vide order dated 31/01/06 by treating it as a preliminary issue and it was decided in favour of plaintiff and against the defendant.
Further the defendant went in appeal against the order of the court dated 31/01/06 before the Hon'ble High Court and Hon'ble High Court vide order dated 31/01/07 has upheld the order of the Trial Court dated 31/01/06 and in view of Suit No.509/07 38 the same, there is nothing for this Court to give any finding in the light of the order of the Hon'ble High Court dated 31/01/07 coupled with the findings of the court as given in issues no.2 and 3.
ISSUE No.6 Whether defendant has become the owner of the suit property by adverse possession? OPD
33. Defendant in this case has claimed himself to be the owner by adverse possession. In the written statement, without prejudice to his rights available to him under section 60 of the Easements Act, the defendant has taken the alternative plea of adverse possession. It has been argued that if the Plaintiff proves his title to the land even then, the defendant has become the owner by way of adverse possession as Plaintiff has not taken any action since 1969- 70 and the defendant has raised pucca structure without the consent of the plaintiff though the defendant is there since 1956-57. Now this issue needs to be decided in view of findings given in issues no.2 and 3. The status of the Suit No.509/07 39 defendant which is emerges out is that of a licensee with an irrevocable license but that does not mean that defendant has become owner by way of adverse possession. A licensee remains a licensee. Adverse possession cannot be claimed until and unless defendant set up a title hostile to that of plaintiff after termination of that license. Mere unauthorized possession or termination of his license does not enable a licensee to claim title by way of adverse possession but there must be some over tact on the part of the defendant to show that he is claiming adverse title. Mere continuance of unauthorized possession even for a period of more than 12 years is not enough. In the present case, the plea of adverse possession has been taken by the defendant as an alternative plea and in view of the findings of the court based upon the evidence available and totality of facts and circumstances of the case, it cannot be said that defendant has become the owner of the suit property by way of adverse possession as delineated in Section 27 of Suit No.509/07 40 Limitation Act. Therefore, this issue is decided against the defendant and in favour of Plaintiff.
ISSUE No.1 Whether suit of the Plaintiff is barred by time? OPD
34. Present suit has been filed by the plaintiff for the possession of the suit property on the ground that defendant is a tenant under the plaintiff by virtue of rent note Ex.PW- 1/14. Ex.PW-1/14 cannot be relied upon for the reasons given above while deciding issues no.2 and 3. Further from the appreciation of evidence particularly, from the admissions and statement of the parties in suit no.30/81 what emerges out is that defendant is a licensee and the same has become irrevocable license by virtue of Section 60 (b) of the Easements Act.
This is a suit for possession on the basis of title and case of the plaintiff for the purpose of limitation clearly falls under Article 65 of schedule to the Limitation Act. Article 65 of Limitation Act is reads as under: Suit No.509/07 41
Description of suit Period of limitation Time from which period beings to run
65. For possession of Twelve years When the possession of immovable property or the defendant becomes any interest interim based adverse to the plaintiff.
on title Explanation-
(a)...........
(b)...........
(c) ...........
In view of article 65, the suit was to be filed by the plaintiff within 12 years from the date of adverse possession and the burden is on the defendant to prove such adverse possession and the defendant having not been found to have perfected his title by adverse possession. It is held that the issue regarding limitation is decided in favour of Plaintiff and against the Defendant.
ISSUE No.5 Whether suit is properly valued for the purpose of court fee and jurisdiction? OPD
35. Perusal of the prayer clause in the suit reflects that the plaintiff prays for decree of possession in respect of the suit property and also for directing the demolition of the Suit No.509/07 42 construction raised by the defendant over the suit land. Plaintiff has also prayed for damages from the date of filing of the suit till the possession of the land is handed over to the plaintiff @ Rs.200/- per month. In para 13 of the plaint, plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs.600/- being yearly rent of the tenanted land on which required ad volerum court fee has been paid. Ld. counsel for defendant has argued that as the plaintiff has described the defendant as a trespasser in the legal notice dated 15/07/1988, therefore, the plaintiff is liable to pay the court fee as per the market value of the land and property in suit.
36. Plaintiff has paid court fee relying on Section 7
(xi) (cc) of the Court Fee Act 1870, whereas the Ld. counsel for defendant has argued that suit of the plaintiff falls under section 7(v) of the Court Fees Act. In the prayer clause, plaintiff has sought the relief of mandatory injunction also but no valuation has been done by the plaintiff for the Suit No.509/07 43 purposes of Court fee and jurisdiction and no court fees has been paid by the Plaintiff thereon. Further from the findings given above, what emerges out is that defendant is a licensee and this fact has been admitted by the parties in suit No.30/81 and therefore, the plaintiff was required to pay ad volerum court fee on the market value of the land as per section 7 (v) of the Court Fee Act and further Plaintiff was required to value the suit for the purpose of mandatory injunction as per Section 7 (iv) (d) of the Court Fees Act and was required to pay the Court fees accordingly, therefore, in the totality of facts and circumstances, the suit of the plaintiff has not been valued properly and proper court fee has not accordingly been paid by the plaintiff. This issue is decided against the Plaintiff and in favour of the Defendant. ISSUE No.7 Whether Plaintiff is entitled to relief of possession? OPD
37. From the above, it is clear that defendant is a licensee under plaintiff and the plaintiff has permitted the Suit No.509/07 44 defendant to raise construction upon the suit land and has not taken any action against the defendant and the defendant has executed a work of a permanent character, incurred expenses in the execution and nothing has been placed on record by the plaintiff to show that any objections were raised by the plaintiff to the construction carried out by the defendant from time to time till 1988. The only objection raised was the legal notice dated 15/07/1988 which is Ex.PW-1/15 and in view of the findings given above in issues no.2 and 3 it becomes clear that now the plaintiff is stopped on account of acquiescence and equitable estoppel and the defendant has acquired the protection u/s 60 (b) of Indian Easements Act, 1882. Therefore, considering the totality of facts and circumstances of the case, the license cannot be revoked, therefore, plaintiff is not entitled to decree as prayed for. This issue is decided against the Plaintiff and in favour of the Defendant.
Suit No.509/07 45RELIEF
38. Considering the totality of the facts and circumstances of the case and in view of the findings given above on the all the issues, suit of the plaintiff is dismissed. Parties to bear their own costs. Decree of dismissal be prepared. File be consigned to Record Room. Announced in the open court.
(Munish Markan) C.J./Delhi/14/02/08