Delhi District Court
M/S Sumiti Dass And Bros vs Vishal Choudhary on 30 June, 2021
DLND010219272019
Presented on : 21-11-2019
Registered on : 22-11-2019
Decided on : 30-06-2021
Duration : 1 years, 7 months, 9 days
Decision : Suit Dismissed (Rejected
U/o VII Rule XI CPC)
IN THE COURT OF Additional District Judge(ADJ)
AT New Delhi,NEW DELHI
Presided Over by Mr.Munish Markan
CS/842/2019
M/S SUMITI DASS AND BROS
Through Sh. Ajit Rykan
S/O LATE SH D.S RAKYAN
R/O 7 ABULFAZAL ROAD,
NEW DELHI 110001 ..... Plaintiff.
VERSUS
VISHAL CHOUDHARY
S/O LATE SH VINAY KUMAR MAHAJAN
OFF AT: 19, REGAL BUILDING,
CONNAUGHT PLACE NEW DELHI
Also at;
10, Media Centre,
Gurgaon, Haryana .. Defendant
ORDER
1. Vide this order, I shall dispose of the preliminary issue no.5 which is as under: CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 1 /13 ISSUE NO5 Whether the suit does not disclose the cause of action and the suit is not maintainable in its present form? OPD
2. In nutshell, the plaintiff, extenant of defendant, after suffering eviction in proceedings under DRC Act, has filed the present suit for declaration and possession claiming adverse possession of the suit property.
3. As per plaint, the suit property bearing no. 18, Regal Building, Connaught Circus, New Delhi was taken on rent by the Tau of plaintiff in the year 1947 from one Sardar Bhagwant Singh, the original allottee of the suit premises. Late Sh. Dhanpat Singh Rakyan who was the father of the plaintiff, along with the said Tau carried on the business of Jewelers and items of similar nature under the name and style of M/s Sumiti Dass & Brothers from the suit premises. Sh. Sumiti Dass died in 1955 and the father of the plaintiff continued with the carrying of business from 1955 to 1973. On 06.09.1974, the father of the plaintiff entered into a partnership with his two sons which included the plaintiff as well and again another fresh partnership deed was executed on 03.03.1977. The father of the plaintiff died in 1992 but before that the plaintiff took over the business of the said firm.
4. Plaint further stated that since the demise of his father, plaintiff has been carrying on the family business solely and exclusively from the suit premises and is in exclusive possession CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 2 /13 thereof since June 1984 till 2019 that is for more than 21 years. In between, without the knowledge of the plaintiff, the owner of the suit property Sh. Sardar Bhagwant Singh entered into a registered agreement to sell, GPA, Will etc. with M/s K C Vanaspati through Sh. Vijay Kumar Mahajan (the father of the defendant) on 19.05.1986 on receiving part payment.
5. Further, as per plaint, on 28.05.2008 the said Sh. Vinay Kumar Mahajan (upon whom the property devolved because of the partition interse between the partners of K C Vanaspati) the father of the defendant filed the suit for eviction against the present plaintiff u/sec 14(1)(e) r/w Section 25B of Delhi Rent Control Act 1958. In the said eviction suit, the leave to defend filed by the plaintiff was dismissed and the eviction decree was passed vide judgment dated 09.10.2015 by the Ld. ARC, Patiala House Court, New Delhi. The said eviction order was also upheld by the Hon'ble High Court of Delhi in RC (Rev.) No. 130/2016 vide order dated 24.07.2017. The SLP filed before Hon'ble Apex Court was also dismissed (vide order dated 21.11.2017). Sh. Vinay Mahajan, the father of defendant died in 2018 and the present defendant, his legal heir joined the litigation. Further, on 01.06.2019 while the plaintiff was on business tour to Jaipur, the defendant took the forcible possession of the suit premises with the help of bailiff.
6. Further, As per plaint, the present defendant as well as his deceased father were aware that plaintiff was in possession of the suit property and there, plaintiff claimed that he is entitled to CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 3 /13 right, title and interest over the suit property by way of adverse possession.
7. Further as per plaint, the cause of action for filing the suit first arose in 2005 when the period of 12 years exclusive and heritable possession of the plaintiff took place and continued from June 2008 till June 2019 when the plaintiff was forcibly dispossessed and still continuing. Plaintiff further valued the suit for Rs. 2 crore for the purposes of jurisdiction and for the relief of permanent injunction, he valued the suit at Rs. 130 and for relief of declaration, valued the same at Rs. 200 and paid the Court fees on the relief of permanent injunction and the declaration.
STAND OF DEFENDANT:
8. The defendant admitted the previous litigation before the ARC and the various stages of the litigation and further stated that the Hon'ble Supreme Court in SLP no. 29918/17 while disposing of the same vide order dated 21.11.2017, had granted time to the plaintiff till the last date of the month in which the Diwali in the year 2018 fell to vacate the suit premises subject to filing the undertaking. Even the said affidavit of undertaking was filed. Despite that, the possession of the suit property was not handed over by the plaintiff and plaintiff also filed a review petition (Civil) DY no. 41899/18) in the said SLP which was also dismissed on 14.03.2019. Since the plaintiff did not hand over the possession of the suit premises, the defendant had to file the execution and defendant took the possession with the help of the CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 4 /13 bailiff on 01.06.2019. Defendant further took the plea that the suit has not been signed and verified in accordance with the Order 6 rule 15 CPC as there is no verification in the plaint and plaintiff has not paid the Court fees. The suit has been filed by partnership firm but no certificate of registration of the firm has been filed and after vacation of the suit premises by the plaintiff who was a tenant, he is left with no right in the suit premises.
9. Further, defendant stated that plaintiff had been a tenant and once a tenant is always a tenant and tenant had been making payment of rent to the owner /landlord and, therefore, the question of seeking adverse possession does not arise. It is stated that plaintiff never raised the plea of adverse possession in the defence taken by him in the eviction proceedings. Therefore, the defendant prayed for dismissed of the suit.
10. In the replication filed by the plaintiff in the form of rejoinder, plaintiff reiterated his case as made out in the plaint and further stated in para no. 89 that plaintiff is not raising any objection to the landlord status of the defendant but can certainly raise the question of title or ownership of the defendant as there was no registered sale deed as per the requirement of Transfer of Property Act in favour of the defendant and no rent had been paid or ever demanded by the defendant.
11. After the completion of pleadings at the time of framing of issues, the aforementioned preliminary issue was framed. Ld counsel for plaintiff had argued that plaintiff was never aware of the fact that suit property has been sold by Sardar CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 5 /13 Bhagwant Singh to M/s K C Vanaspati and neither K C Vanaspati nor the father of the defendant, namely, Sh. Vinay Kumar Mahajan had ever demanded any rent nor any rent was paid by the plaintiff to the defendant and since the there was no registered sale deed in favour of the Vijay Kumar Mahajan, therefore, Sardar Bhagwant Singh remained to be the owner and defendant has no right, title or interest in the suit property and plaintiff having remained in the continuous uninterrupted possession of the suit property since 1984 had perfected his title by way of adverse possession and remained in such possession for more than 21 years and, therefore, he has argued that the suit is maintainable in its present form. In its support, plaintiff has relied upon judgments titled as 'Ravinder Kaur Grewal Vs. Manjit Kaur', SLP(C) No. 7764 of 2014, 'Sheela Devi Vs. Firm Prahlad Rai Prem Prakash', SC(04.03.2002), 'Suraj Lamp Industries Vs. State of Haryana' 2012 1 SCC 656, 'State of J&K Vs. G. Mohammed Khuroo' on 19.05.2004, 'Asha M jain Vs. Canara Bank & Ors.' 'Gurjeet Singh Vs. Ashok Kumar Aggarwal', Unique Case ID/CNR no. DLCT04000052 2012. Perused all the judgments.
12. On the other hand, Ld. Counsel for defendant had argued that since the relationship of landlord and tenant between the parties had already been established and upheld by the Hon'ble Apex Court and once a tenant is always a tenant and it is not open to the tenant to reagitate the fresh contrary plea of CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 6 /13 adverse possession as it was never taken by the plaintiff in the first instance in the eviction proceedings. It is further argued that the suit is also barred by limitation as per plaint itself, the cause of action arose in the year 2005 but the suit was filed by the plaintiff in the year 2019 which is beyond a period of 12 years. It is further argued that for the relief of declaration, the limitation is 3 years as per Article 58 of Limitation Act and the suit is barred there under and has not even been valued as per law for the purposes of Court fees and jurisdiction. Therefore, Ld counsel for defendant had prayed that no cause of action arises and suit is not maintainable in its present form.
13. I have heard Ld. Counsel for both the parties and have gone through the record carefully.
14. The plaintiff has filed the present suit seeking a declaration of his right, title and interest in the suit property by way of adverse possession and has further prayed for mandatory injunction to direct the defendant to vacate the suit premises as forcibly being vacated by the LRs of the erstwhile landlord namely Sh.Vishal Choudhary. Ld. Counsel for plaintiff has strongly relied upon the judgment of Sh.Ravinder Kaur Vs. Manjeet Kaur (Supra) to contend that the adverse possession can not only be used as a sheild but also as a sword in case of forcible/ illegal dispossession. Perused the said judgment.
15. So far as the right of any plaintiff to file the suit on the ground of adverse possession is concerned, this right has been explicitly acknowledged by the judgment of "Ravinder Kaur CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 7 /13 (Supra). However, case of the plaintiff has to be appreciated in the background of the peculiar facts and circustances of the present case. As per the plaint itself, plaintiff through his predecessor in interest was a tenant in the suit property from Sardar Bhagwant Singh, the original allottee of the suit premises. It is also admitted fact that Sh.Vinay Kumar Mahajan the predecessor in interest of defendant Sh.Vishal Chaudhary derived his right on account of partition of M/s K. C. Vanaspati and M/s K. C. Vanaspati having purchased the suit property from Sardar Bhagwant Singh the original allottee by way of registered GPA, Agreement to Sell, Will etc. The said Sh.Vinay Kumar Mahajan had filed eviction petition u/s 14 (1) (e) r/w 25 (B) of DRC Act 1958 and admittedly, the leave to defend application moved by the present plaintiff (respondent therein) was dismissed vide judgment dated 09.10.2015 by the Ld. ACR, Patiala House Courts, New Delhi.
16. It is also an admitted fact that the revision petition filed before Hon'ble High Court against order dated 09.10.2015, vide RC (Rev) 130/2016 was also dismissed by Hon'ble High Court vide order dated 24.07.2017 and even the SLP filed before Hon'ble Supreme Court was also dismissed.
17. In the plaint, plaintiff has also admitted that the LRs of the Decree Holder took the possession of the suit premises along with Bailiff on 01.06.2019. In the replication in the form of rejoinder, the present plaintiff has also admitted that a review petition filed by the present plaintiff in the eviction proceeding was also dismissed by the Hon'ble Supreme Court on CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 8 /13 14.03.2019. Plaintiff also admitted that an undertaking was given by him before the Hon'ble Supreme Court to vacate the suit premises. Perused the order of Ld. ARC, Patiala House Courts, Hon'ble High Court as well as Hon'ble Supreme Court.
18. It is clear that in the eviction proceeding, so far as the relationship of landlord and tenant between the parties is concerned, that aspect has been heard and finally determined and attained finality. It has been held that present plaintiff was a tenant in the eviction proceedings, the said fact having attained finality on account of principle of resjudicata in view of Explanation VIII of Section 11 CPC. The said Explanation is reproduced as under:
" Explanation VIII.--An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. "
In somewhat similar case, it was held by Hon'ble High Court of Delhi in Jay Kant Mishra vs. S. Chand & Co. 2019 SCConlineDelhi 9957 as under:
" 11. The learned ARC was thus justified in saying the Court of the learned ARC, being a court of limited jurisdiction, per Section 11 explanation VIII CPC, if has decided an issue which is under its jurisdiction, the principle of res judicata would apply. Admittedly, the issue of landlord and tenant has since been decided by the learned ARC; having being upheld by the learned RCT; this Court and even by the Supreme Court. In view of above, the principle of resjudicata being applicable in CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 9 /13 the present case, the suit was rightly rejected under Order VII Rule 11 CPC, being barred."
19. It is also the case of the plaintiff itself that his predecessor in interest was inducted as a tenant in the suit property in the first instance. It is nowhere stated in the plaint that plaintiff or his predecessor in interest on any point of time parted with the possession of the property and ceased to be a tenant and re-entered into the suit property asserting his rights adverse to the owner. Therefore, since the status of the plaintiff in the suit property as a tenant has attacined finality, it acts as a bar to take a somersault at this stage after losing the eviction litigation in all rounds. Therefore, it is not open to the plaintiff to take contrary plea of being in adverse possession of the suit premises.
20. The contention of the plaintiff that plaintiff had never been apprised about the sale of the suit property by the original allottee Sardar Bhagwant Singh in favour of M/s K. C. Vanaspati nor the plaintiff was aware of the factum of the sale and the defendant never demanded any rent nor the plaintiff paid the same does not help the plaintiff in any manner as law does not require the landlord or the owner of a property to attorn or sell the property and inform or put it to the knowledge or with the consent of the tenant in the property.
21. Be that as it may. Once this fact that status of the plaintiff as a tenant has attained finality, after losing eviction litigation, plaintiff cannot take a fresh plea of adverse possession.
22. Plainiff has further taken the stand that predecessor in CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 10 /13 interest of the defendant having claimed to have purchased the suit property from original allottee Sardar Bhagwant Singh by way of registered Agreement to sell, GPA, Will etc. on 19.05.1986, the said transaction is invalid and has no sanctity in the eyes of law. In this regard he has relied on judgment of Suraj Lamp Industries Vs. State of Haryana 2012 1 SCC 656. Perused the same.
23. However, in my considered opinion, plaintiff has to make out case on his own. His stand that he is in adverse possession of the suit premises and in this regard he cannot rely upon the imperfectness of the title of the defendant, if any and therefore, this plea is not tenable and does not help the plaintiff in any manner. It is an admitted fact that the defendant got the possession of the suit property through the process of court in accordance with law. Therefore, it can't be said that plaintiff was forcible dispossessed without adopting due course of law.
24. Further, in the plaint, in the cause of action paragraph, plaintiff has stated that cause of action firstly arose in the year 2005. Admittedly, the eviction petition was filed by the father of the defendant in the year 2008 and the present suit was filed by the plaintiff on 22.11.2019. It was argued by Ld. Counsel for defendant that on the face of it, since the plaintiff is seeking declaration of right, title and interest in the suit premises by way of adverse possession and possession by way of mandatory injunction and the cause of action as per the plaint, firstly arose in the year 2005 and the suit filed in the year 2019 was beyond a period of limition of 12 years as per Article 65 of The Limitation CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 11 /13 Act.
25. Prima facie, I find merit in this contention of the plaintiff. The suit for declaration of any right has to be filed within a period of three years as per Article 58 of The Limitation Act and if the cause of action has arisen in the year 2005, the suit filed in the year 2019 is clearly barred by limitation. In fact, the plaintiff has chosen to file this plaint after possession of the suit premises was taken over by the defendant on 01.06.2019, after the long round of eviction litigation which reached upto the Apex level. The suit is also barred by limitation .
26. Further, Ld. Counsel for defendant argued that even the suit has not been valued properly.
27. Perusal of the valuation clause reflects that apart from valuing the suit at Rs.2 Crore for the purpose of jurisdiction, plaintiff has also valued the relief of permanent injunction at Rs.130/- and valued the relief of declaration at Rs.200/- which, prima facie, take the suit beyond the jurisdiction of this court. The relief of declaration and injunction as sought by the plaintiff are covered by section 7(iv)(c) and (d) of the Court Fees Act and therefore for the purpose of valuation, section 8 of the Suit Valuations Act has to invoked which provides the valuation for the purposes of court fees and jurisdiction has to be same. Therefore, suit of the plaintiff also prima facie fails on the valuation front, appears to be beyond the jurisdiction of this court.
28. Further, it is also argued by Ld. Counsel for defendant that the plaint has not been verified in accordance with the CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 12 /13 provision of Order 6 Rule 15 CPC. Perusal of the plaint reflects that the verification clause is missing. However, that is a technical defect which is curable. However, considering the totality of the facts and circumstances of the case, since the plaintiff was tenant in the suit property, after losing many rounds of eviction litigation, it is not permissible to the plaintiff to start litigation afresh taking altogether contrary plea of adverse possession and this is hit by principle of resjudicata. The suit is also barred by limitation. Therefore, it appears that no cause of action is made out and suit is not maintainable in its present form. Therefore, the preliminary issue no.5 is decided in favour of the defendant and against the plaintiff and plaint is rejected under Order 7 Rule 11 CPC.
File be consigned to Record Room.
Announced in open court on
30.06.2021 Digitally signed
by MUNISH
MARKAN
MUNISH Date:
MARKAN 2021.06.30
16:15:54
+0530
(Munish Markan)
Additional District Judge-03
New Delhi District/PHC/New Delhi
CS No.842/19 Sumiti Das Vs. Vishal Chaudhary Page 13 /13