Delhi District Court
New Delhi Ymca vs Sh. Prashan Singh on 3 December, 2015
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No.566/2014
In the matter of
New Delhi YMCA
1, Jai Singh Road, New Delhi-110001
Through, its Authorized Representative,
Mr. Wilson John, Legal Advisor .....Plaintiff
Vs.
Sh. Prashan Singh, (since deceased through LRs)
1. Mrs. Nirmal Kuar @ Kamaljeet Kaur
Wd/o Late Sh. Prashan Singh,
2.Sh. Amrik Singh @ Jasbir Singh, S/o Late Sh. Prashan Singh
Both R/o Garrage No. 54, YMCA, Servant Quarters,
Jai Singh Road, New Delhi
3. Smt. Ravinder Kaur @ Tara Kaur
W/o Sh. Sunil Sharma, D/o Late Sh. Prashan Singh,
R/o H. No. 16/758, Ratia Marg, Sangam Vihar, New Delhi.
4. Smt. Balvinder Kaur @ Dali Kaur,
W/o Sh. Harvinder Singh, D/o Late Sh. Prashan Singh,
R/o A-227, DDA Flats, New Ranjit Nagar, New Delhi.
5. Smt. Parvinder Kaur @ Pali Kaur,
W/o Sh. Vinod Kumar,D/o Late Sh. Prashan Singh,
R/o Vill. Ali,Sapera Basti, Delhi. .....Defendant
Date of institution of the Suit : 28.05.1981
Date on which arguments were heard : 28.10.2015
Date of decision : 03.12.2015
New Delhi YMCA Vs. Prashan Singh 1
SUIT FOR RECOVERY OF POSSESSION AND FOR DAMAGES
JUDGMENT
A suit filed in 1981 for recovery of possession of immovable property from an alleged unauthorized occupant has seen continuous dismissal but has somehow survived with appellate intervention or otherwise and now again we are to arrive at some conclusion one way or the other. But in that process the original defendant died and his legal heirs were brought on record. Ld. Predecessor vide his order dated 16.11.2010 had already directed that the WS filed by the LR of defendant would not be read and that LR has to follow the WS filed by the original defendant. This particular order appears to have not been challenged and, therefore, the same has attained finality. We will, therefore, only consider the WS filed by the original defendant which appears to have been filed on 21.12.1981.
2. Keeping the above position in mind, we may look into the pleadings of the parties. The Plaintiff has alleged that it is the owner of leasehold rights of the plot upon which it made some constructions but the defendant unauthorizedly occupied a garage and, therefore, the plaintiff filed the present suit for recovery of possession and for damages. The defendant filed WS claiming himself to be a tenant under the plaintiff at a monthly rental of Rs.15/- and, therefore, the suit being barred by the DRC Act. The defendant also questioned the valuation of the suit.
3. From the plaint and WS, one thing is clear that the defendant does not contest the fact of ownership of the plaintiff or the authority of person New Delhi YMCA Vs. Prashan Singh 2 who filed the suit. A vague denial stating that it is denied for want of knowledge is no denial at all. We know that what has not been contested has to be treated as implied admission and, therefore, no evidence would be required on that count. We also know that nothing can be considered which was not pleaded. Further no amount of evidence can be looked into for anything which has not been pleaded and even if it has been recorded, the same has to be just ignored. If any authority is required, I would refer to Union of India vs Ibrahim Uddin (2012) 8 SCC 148 the ratio whereof has recently been applied by the Hon'ble High Court of Delhi in New Delhi Municipal Council vs M/S Prominent Hotels Limited on 11 September, 2015.
4. Now the only point which may remain is whether the defendant was occupying the property as a tenant or not. Obviously, if he was a tenant at a monthly rental of Rs.15/-, a normal civil suit cannot lie for possession and the plaintiff could avail remedy as per DRC Act. On the other hand, if the defendant is not a tenant, he has to hand over the possession as neither a licensee nor any unauthorized occupant has any right to continue in the possession of property when the owner thereof demands back the same. A three judges bench of Hon'ble Supreme Court in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (dead) through LRs Civil Appeal No. 2968/2012 dated 21.03.2012 has held that it is for the occupant to show and establish any right to continue in the possession of a property. The defendant had claimed only one right to continue in the suit property i.e. the tenancy. We have therefore to see as to whether the defendant has been able to establish the factum of tenancy or not.
5. The original defendant had not led any evidence but his wife later New Delhi YMCA Vs. Prashan Singh 3 on examined herself through affidavit as DW1 and almost reproduced the averments of WS filed by the original defendant except maintaining the time gap of occupancy as WS was filed in the year 1981 whereas affidavit was filed in the year 2015 and further introducing an adverse possession claim. There is however nothing in the entire affidavit as to in what mode & manner or when the tenancy was exactly created. As is well settled, a claim of tenancy cannot be accepted unless specific details are provided which are lacking in the WS and also in the evidentiary affidavit. Therefore, it is held that there is no support from the affidavit of DW1 in respect of factum of tenancy. Is there any support from the evidence of PW1 Wilson John regarding tenancy would be the next point of consideration. The affidavit of PW1 does not accept the defendant as a tenant. It is in the cross examination dated 17.10.2012 that the defendant side put specific question that rent was collected from the defendant by Sondhi and Gunga. Then again in the cross examination dated 17.11.2012, defendant side named one Moris as a person collecting rent from the defendant. Since PW1 answered these questions/suggestion in negative, it was for the defendant to prove otherwise. There is however nothing to show that defendant ever tried to establish these facts or to examine these persons as witness. There is nothing else in the entire evidence of PW1 which can anyhow support the claim of tenancy. I am further of the opinion that merely by depositing any purported rent by filing any application under Section 27 of DRC Act, no one can claim that there existed a landlord tenant relationship. It is held that the defendant side has failed to establish its claim for tenancy.
6. So far as contention that site plan filed by the plaintiff is not correct is concerned, the defendant has disputed the site plan of the New Delhi YMCA Vs. Prashan Singh 4 plaintiff and also confronted the witness PW1 with another site plan as Ex.PW1/D1. However, defendant has not tried to prove the said site plan. Even otherwise, the plaintiff has claimed recovery of garage and there is nothing in the WS to show that garage was not being used by the defendant. Therefore, whether there was any other space or Varanda or not is completely immaterial.
7. Having made the above discussion, we can now go through the issues framed in the present case one by one and may also try to answer them. Issues were framed on 02.03.1982. In the evidence, the plaintiff had examined one Basil Egbert as PW1 in the year 1990 in ex-parte mode but when the judgment was set aside this witness was not produced. The plaintiff then examined Rajinder Prashad as PW2 (some time recorded as PW3) but his cross could not be completed and seemingly he was dropped as appearing in the order dated 09.08.2012 passed by the Ld. Predecessor and later on plaintiff examined another person i.e. Willson John as PW1. The plaintiff also examined officials from Delhi Archives and NDMC respectively as PW4 and PW5. Defendant side examined Nirmal Kaur as DW1. In rebuttal, the plaintiff again examined Willson John. Both the parties have been heard. Written arguments of the defendant is also perused. I proceed to decide the controversy.
8. Issue No.1: Whether the suit is not maintainable as alleged? OPD Answer: The issue appears to be based on the preliminary objection number-1 of the WS which claims non-maintainability on the ground of absence of cause of action. The details as to why and how there was no New Delhi YMCA Vs. Prashan Singh 5 cause of action have not been disclosed by the defendant. Even affidavit of DW1 is of no help in this respect. Apart from the fact that such type of pleading is to be treated as vague which cannot culminate into any issue, the defendant side has failed to discharge its onus thereof. Therefore, this issue is decided against the defendant.
9. Issue No.2: Whether this court has no jurisdiction to try and entertain the present suit? OPD Answer: This issue appears to have been framed on the basis of preliminary objection number-2 & 3 of the WS which claim a bar of DRC Act. The above discussion shows that defendant side has not been able to establish the factum of tenancy. Therefore, there cannot be any applicability of DRC Act. This issue is decided against the defendant.
10. Issue No.3: Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD Answer: This issue appears to have been framed on the basis of preliminary objection number-5 of the WS which claims improper valuation. The details as to why and how valuation was improper have not been disclosed by the defendant. Even affidavit of DW1 is of no help in this respect. Apart from the fact that such type of pleading is to be treated as vague which cannot culminate into any issue, the defendant side has failed to discharge its onus thereof. Therefore, this issue is decided against the defendant.
11. Issue No.4: Whether the defdt. is in unauthorized occupation of the garage bearing No.54 of the suit property as alleged? OPP New Delhi YMCA Vs. Prashan Singh 6 Answer: A person can be in the occupation of any immovable property as owner, tenant, licensee or as unauthorized occupant. There has been no claim of the defendant that he was in the property as owner or licensee. His claim of tenancy has not been established on record. Then remains only one option in which the defendant could have been occupying the property i.e. as an unauthorized occupant. Nothing else is required to be established. It has to be held that defendant was occupying the property as unauthorized occupant. So far as the claim of adverse possession is concerned which has been made directly by DW1 in her affidavit, I am of the opinion that apart from being beyond pleading the same has no specific details to satisfy the concept of adverse possession (see judgment of Hon'ble Supreme Court in State Of Haryana vs Mukesh Kumar & Ors SLP(C) 28034/2011 dated 30.09.2011 and Tribhuvanshankar vs Amrutlal Civil Appeal 10316/2013 dated 13.11.2013). This issue is decided in favour of the plaintiff.
12. Issue No.5: Whether the plaintiff is entitled to damages/mesne profits, if so at what rate and what amount? OPP Answer: Plaintiff has claimed Rs.100/- per month for three years. The defendant simply declined the claim in the WS. No reason has been provided. However, paragraph-5 of reply on merits in the WS shows the intention of defendant when he states that the plaintiff is not entitled to recover any amount except the arrears of rent @ Rs.15/-. Clearly, the defendant premised his claim of denial against damages on the basis that he was tenant at Rs.15/- and plaintiff could only have asked for some arrears thereof. Now, we have seen that the claim of tenancy itself has failed. Therefore, the denial based on such claim of tenancy also cannot survive. Though in the cross examination of PW1, the defendant side New Delhi YMCA Vs. Prashan Singh 7 tried to question the witness as to how Rs.100/- was arrived at and PW1 answered that it was their estimation according to prevalent market rent and it appears that nothing contrary has been proved by the defendant, I am of the opinion that there is nothing to suggest that why a property at a prominent place in Delhi could not have fetched such a nominal amount. Apart from his own presumption of Rs.15 rental, the defendant has not provided any other figure. The claim of plaintiff is accepted. It is held that Rs.100/- per month could be recovered by the plaintiff. As such, Rs.3600/- is allowed in favour of the plaintiff and against the defendant. This issue is decided accordingly.
13. Issue No.6: Whether the plaintiff is entitled to the possession as prayed? OPP Answer: Above discussion shows that defendant has failed to establish any right to continue in occupation of the property which was essential in view of the three judges bench decision in Maria(supra). WS of defendant has not disputed the ownership rights of the plaintiff or authorization of person instituting the suit and therefore evidence could not have been led on any point not pleaded and even if any evidence is recorded thereon, the same has to be ignored in view of Ibrahim Uddin (supra). As such, it has to be held that plaintiff is entitled for possession as claimed. This issue is therefore decided in favour of the plaintiff.
14. In the light of the above, plaintiff is held to be entitled for possession of the garage as claimed and also for the damages. The suit is decreed in favour of the plaintiff and against the defendant (through his LRs) for possession of garage (bearing no. 54 in YMCA servant quarters block, Jai Singh Road) shown in the site plan and also for damages of New Delhi YMCA Vs. Prashan Singh 8 Rs.3600/-. In the facts and circumstances of the case, parties are left to bear their own costs.
15. Post Script:- Originally the suit was dismissed on 12.04.1983 though was later on restored on 15.07.1983 but in the mean time, the original file appears to have received a Goshwara Number from the Record Room whereas a new file continued from 1983 and has been continuously instituted in different courts and ultimately the office attached to the present court given the latest number i.e. Suit No. 566/2014 as indicated in the first page of the present judgment. The plaint, WS of the year 1981 and Ex.PW1/D1 appear to be available in the original file having Goshwara number. This is noted for clarity.
16. Decree be prepared accordingly.
Announced in the open (Rakesh Kumar Singh)
court today on 03.12.2015 CJ-11/CENTRAL/DELHI
New Delhi YMCA Vs. Prashan Singh 9