Delhi District Court
Sh. R.R.Gupta Son Of Late Sh. Hari Ramji vs Sh.Ramji Lal Son Of Sh. Ganga Ram on 22 May, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA 125/2011
Date of Institution of Appeal : 19.05.2011
Date on which Reserved for Judgment : 21.03.2013
Date of Judgment/Order : 22.05.2013
Case I.D. Number : 02402C0151662011
IN THE MATTER OF:-
SH. R.R.GUPTA SON OF LATE SH. HARI RAMJI
RESIDENT OF R-30/2, GURUDWARA ROAD,
RAMESH PARK, LAXMI NAGAR DELHI ....APPELLANT
VERSUS
1. SH.RAMJI LAL SON OF SH. GANGA RAM
RESIDENT OF R-30/2, GURUDWARA ROAD,
RAMESH PARK, LAXMI NAGAR DELHI
2. SH.ANAND VERDHAN
SON OF LATE SH. SHIV CHARAN DAS GUPTA
RESIDENT OF 5/10, SINGH SABHA ROAD,
SHAKTI NAGAR DELHI 110006 ....RESPONDENTS
AND
RCA 157/2011
Date of Institution of Appeal : 24.08.2011
Date on which Reserved for Judgment : 21.03.2013
Date of Judgment/Order : 22.05.2013
Case I.D. Number : 02402C0253832011
IN THE MATTER OF:-
SH.ANAND VERDHAN
SON OF LATE SH. SHIV CHARAN DAS GUPTA
RESIDENT OF 5/10, SINGH SABHA ROAD,
SHAKTI NAGAR DELHI ....APPELLANT
VERSUS
1.SH.RISHI RAJ GUPTA (R.R.GUPTA)
SON OF LATE SH. HARI RAMJI
RESIDENT OF R-30/2, GURUDWARA ROAD,
RCA 125 and 157 of 2011 1/20
RAMESH PARK, LAXMI NAGAR DELHI 110 092
2.SH.RAMJI LAL SON OF SH. GANGA RAM
RESIDENT OF R-30/2, GURUDWARA ROAD,
RAMESH PARK, LAXMI NAGAR, DELHI 110092
...RESPONDENTS
JUDGMENT
1. By this common order, I shall decide two appeals viz. RCA No.125 and RCA No.157 of 2011 which arise out of the impugned order dated 19.4.2011.
2. RCA 125/2011 has been filed by the original plaintiff Sh.RR Gupta against the impugned order by which the learned Trial Court has rejected the suit of the plaintiff under the provisions of Order VII Rule 11(d) CPC on the ground that the same was barred in view of provisions of Section 50 of the Delhi Rent Control Act, 1958 (herein after referred to as the DRCA).
3. RCA 157/2011 has been filed by the original defendant No.2 against the impugned order in respect of findings of the learned Trial Court in the impugned order on issues No.1 and 2.
4. Brief facts leading to filing of both these appeals are that on 30.4.1999 Sh.RR Gupta filed a suit before the Trial Court in which it was averred that he was the biological son of Sh.Shiv Charan Dass who had given the plaintiff in adoption to Sh.Hari Ramji when the plaintiff was aged 6 months. The wives of Sh.Hari Ramji and Sh.Shiv Charan Dass were siblings. It was averred that Sh.Shiv Charan Dass was the owner of the bearing No.R-30/2, Gurudwara Road, Ramesh Park, Laxmi Nagar, Delhi. Sh.Shiv Charan Dass died on 1.9.1996, but after bequeathing the said property in favour of the plaintiff by his last will dated 28.5.1992. It is averred that adoptive father of the plaintiff died in March 1997.
5. At the time of institution of the suit, only Sh.Ramji Lal had been impleaded as a defendant. It was averred in the plaint that the defendant was living with Sh.Shiv Charan Dass as his domestic servant in his other property bearing No. RCA 125 and 157 of 2011 2/20 1340/5/10, Singh Sabha Road, Shakti Nagar, Delhi. It is averred that after the defendant got married he was shifted to and was permitted to live in one room on the ground floor of property bearing No.R-30/2, Gurudwara Road, Ramesh Park, Laxmi Nagar, Delhi (herein after referred to as the suit property). It was averred that the defendant was enjoying common facilities of bathroom and latrine with other occupants on the ground floor and was also enjoying electricity supply without any charges. It was averred that the defendant subsequently started working as a driver of Ashok Kumar, cousin of the plaintiff. The defendant, however, continued to reside in the suit property.
6. It was averred that after the death of Sh.Shiv Charan Dass the plaintiff became owner of the suit property by testamentary succession through the will dated 28.5.1992 of deceased Sh.Shiv Charan Dass. It was averred that the defendant left the services of Sh.Ashok Kumar on 15.3.1997 and was also not working as domestic servant of late Sh.Shiv Charan Dass. It is averred that the defendant thus did not have any right to continue in the said property and to avail electricity and water supply. It is averred that in these circumstances, the plaintiff vide notice date 2.2.1999 terminated the license of the defendant and called upon him to vacate the suit property. It is averred that the notice sent by registered post was received back with the remark "declined to receive". It was averred that the plaintiff has a right to recover vacant possession of the room in question and also right to recover damages at the rate of Rs.2,000/- per month till such time he gained possession of the suit premises. In these circumstances, the plaintiff filed his suit praying for a decree for recovery of possession of the suit property; recovery of damages at the rate of Rs.2000/- per month besides costs of the suit.
7. Upon summons of the suit being issued, the original defendant Ramji Lal filed his written statement raising preliminary objections to the effect that the plaintiff was neither the owner nor landlord of the suit property; that the suit was barred under the provisions of Section 50 of the DRCA as the defendant was a tenant under late Sh.Shiv Charan Dass in respect of one room at the monthly rent of Rs.40/- let out to him in the year 1990; that the defendant was paying the rent RCA 125 and 157 of 2011 3/20 regularly to Sh.Shiv Charan Dass till his death but he was not issued any rent receipt; that Sh.Shiv Charan Dass upon his death was survived by four sons namely Vijay Kumar, Ashok Kumar, Ramesh Kumar and Anand Vardhan. Sh.Anand Vardhan had filed CS 45/1992 before the Hon'ble High Court for partition of the property in which Sh.Shiv Charan Dass was also a party. The defendant claimed that Sh.Shiv Charan Dass did not disclose anything about the alleged will dated 28.5.1992 and thus the same was forged and fabricated.
8. On merits, the defendant averred that he was working as a driver in the firm M/s Shiv Charan Dass Jyoti Prasad since the year 1978 in which Sh.Shiv Charan Dass was a partner. It is averred that during the course of his employment in the said firm, Sh.Shiv Charan Dass inducted him as a tenant in the suit property in the year 1990 at a monthly rent of Rs.40/- exclusive of electricity charges of Rs.15/- per month. It is averred that services of the defendant had been illegally terminated by the firm on 16.3.1997 and the defendant had raised Industrial Dispute vide ID 139/1998 which was pending before the Labour Court.
9. Replication to the written statement was filed by the plaintiff in which he re- iterated the averments made in the plaint.
10. During the pendency of the suit an application under Order I Rule 10 CPC dated 12.2.2004 was filed by Sh.Anand Vardhan praying for being impleaded as a defendant in the suit. Sh.Anand Vardhan claimed that he along with other persons were joint owners of the suit property in respect of which CS 45/1992 titled Anand Vardhan versus Shiv Charan Dass & Others was pending in the Hon'ble High Court of Delhi. It was stated in the application that the plaintiff Sh.RR Gupta had moved an application under Order I Rule 10 CPC before the Hon'ble High Court to be impleaded as defendant in CS 45/1992 on the ground that he was owner of the property on the basis of the will dated 28.5.1992. It is contended that there was a dispute of ownership of the suit property between the plaintiff RR Gupta and the applicant - Anand Vardhan & other persons, which was pending before the Hon'ble High Court. He therefore prayed that he should be RCA 125 and 157 of 2011 4/20 impleaded as a defendant in the suit.
11. Along with the said application, Sh.Anand Vardhan also moved an application dated 12.2.2004 under section 10 CPC praying for stay of the proceedings of the suit on the ground of pendency of CS 45/1992 before the Hon'ble High Court. Vide order dated 13.2.1994, the application under Order I Rule 10 CPC was allowed on the concession of the plaintiff and the applicant Sh.Anand Vardhan was impleaded as defendant No.2. Thereafter vide order dated 19.5.2004 application of the defendant No.2 Anand Vardhan under Section 10 CPC was allowed and trial of the suit was stayed pending outcome of CS 45/1992 before the Hon'ble High Court.
12. Aggrieved by the order dated 19.5.2004, Sh.RR Gupta filed CM (Main) 592/2005 before the Hon'ble High Court. The said application was allowed by the Hon'ble High Court vide order dated 11.9.2006 holding that the suit did not relate to title and if defendant No.1 Sh.Ramji Lal was found to be in unauthorized occupation of the suit property, then he could not avail benefit of disputes between the owners inter se. Before the Hon'ble High Court, defendant No.2 Anand Vardhan had stated that he had no objection if the suit proceeds and stated that he would withdraw the application under Section 10 CPC so long as the suit property was protected awaiting final outcome of CS 45/1992 pending in the Hon'ble High Court of Delhi. Hon'ble High Court therefore allowed the application and directed that suit for possession filed by Sh.RR Gupta would continue but in case the same was decreed and possession taken over, the plaintiff RR Gupta would not occupy the suit property for self use and would not give the same to any third party without leave and liberty of the Court where CS 45/1992 was pending. Since this order is material for the purposes of this appeal, the relevant portion thereof is reproduced hereunder:
"On hearing learned counsel for the parties, I am of the considered view that the impugned order suffers from patent error and erroneous exercise of jurisdiction by the trial court and, thus, needs to be set aside. The present proceedings are not one of title and if respondent No.2 is in unauthorized occupation of the suit property, then he can not avail of any RCA 125 and 157 of 2011 5/20 dispute between the owners. In fact, learned counsel for respondent No. 2 states that he has really no difficulty in the suit proceeding and would seek to withdraw his application under Section 10 of the Code so long as the property is protected to await the final verdict between the parties, which is stated to be pending in the High Court. Learned counsel for the petitioner has no objection to the same.
In view thereof, it is directed that the suit for possession would continue but in case the same is decreed and possession is taken over, the property shall neither be dealt with by the petitioner not occupied for self-use or given to a third party without leave and liberty of the Court ceased with the title dispute between the owners.
The petition stands allowed in the aforesaid terms leaving the parties to bear their own costs.
The parties to appear before the Trial Court on 9.10.2006 for further proceedings."
13. Thereafter proceedings in the suit were restored and Sh.Anand Vardhan as defendant No.2 filed written statement raising preliminary objections that the plaintiff had falsely claimed ownership rights in the suit property and that the will dated 28.5.1992 was a forged document; that defendant No2 was coparcener of Hindu Undivided Family consisting of Sh.Shiv Charan Dass and other family members and by virtue thereof he came joint owner of the suit property. It was contended that Sh.Shiv Charan Dass did not have any right to execute any will in respect of the suit property in favour of any person including the plaintiff. Defendant No.2 also raised objection that the suit was barred under Section 50 of the DRCA as the defendant No.1 was a tenant inducted by Sh.Shvi Charan Dass on account of his employment with the firm M/s Shiv Charan Dass Jyoti Prasad.
14. Replication to the written statement of defendant No.2 was also filed by the plaintiff. Thereafter vide order dated 9.5.2007 the following issues were framed by the Trial Court:-
1.Whether the plaintiff is the owner and landlord of the property in dispute?
OPP
2.Whether the plaintiff has locus standi to file the present suit?OPP
3.Whether the defendant No.1 is a tenant in respect of property in dispute and whether the jurisdiction of the Court is barred under Section 50 of DRC Act ?OPD's.
RCA 125 and 157 of 2011 6/204.Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction?OPD's
5.Whether the plaintiff is entitled to the relief of possession as prayed for? OPP
6.Whether the plaintiff is entitled to claim damages from the defendant no. 1, if yes, at what rate and for which period?OPP
7.Relief
15. It may be noted that prior to appearance of defendant No.2 before the Trial Court issues were originally framed vide order dated 31.10.2002. The plaintiff had examined himself as PW-1 and led evidence by way of affidavit Ex.PW-1/A. At that time he was cross examined by the counsel for the original defendant Ramji Lal. In his cross examination by the counsel for defendant No.1, PW-1 admitted that he was given in adoption and that it was correct that after adoption, he had no legal right or connection with his biological father Sh.Shiv Charan Dass. He deposed that Sh.Shiv Charan Dass had other children as well. He admitted that there was a dispute between the plaintiff and other sons of Sh.Shiv Charan Dass before the Hon'ble High Court of Delhi. He denied the suggestion that he had forcibly entered into and shifted to the property where the suit property was situated without the consent and permission of Sh.Shiv Charan Dass. He denied the suggestion that he was trying to grab the property of Sh.Shiv Charan Dass. He admitted that other sons of Sh.Shiv Charan Dass did not acknowledge his right in the suit property and also did not implead him in the suit before the Hon'ble High Court. He denied the suggestion that he was the only person aware about the will. He deposed that he was not aware of the will prior to the year 1976. He denied the suggestion that he had filed this suit as the defendant Ramji Lal had filed a petition before the Labour Court. He denied the suggestion that the defendant Ramji Lal was a tenant under Sh.Shiv Charan Dass at a monthly rent of Rs.40/- or that he was a statutory tenant in the suit property. He denied the suggestion that the defendant was in unauthorized occupation of the suit property or that he was not liable to pay damages to him. He deposed that he could not say whether the defendant was still paying rent to Sh.Anand Vardhan at RCA 125 and 157 of 2011 7/20 the rate of Rs.40/- per month. He voluntarily deposed that the defendant may be making payment but he could not do so as the plaintiff was owner of the suit property.
16. After Sh.Anand Vardhan was impleaded as defendant No.2 and the suit was revived, the plaintiff as PW-1 was cross examined by defendant No.2 through his counsel. In the cross examination on behalf of defendant No.1, PW-1 admitted that he was given in adoption to Sh.Hari Ramji but denied the suggestion that the suit property was a Joint Family property. He deposed that he got information about the will in the year 1998 through one of his friend Sh.DN Tandon who handed over the original will to him in an envelope. He denied the suggestion that the said will was fabricated by him. He also denied the suggestion that he did not have cordial relations with his father Sh.Shiv Charan Dass after his adoption. He deposed that it was Sh.Shiv Charan Dass who permitted him to reside in the suit premises. He denied the suggestion that Sh.Shiv Charan Dass was hard of hearing and was suffering from poor eye sight and bad health at the time of his death.
17. PW-2 is Sarvan Kumar who deposed by way of affidavit Ex.PW-2/A which was tendered in chief on 6.1.2004. PW-2 is an attesting witness of the will dated 28.5.1992. In his affidavit, he deposed that he knew Sh.Shvi Charan Dass for more than 15 years. He deposed that on 28.5.1992 he accompanied Sh.Shiv Charan Dass to Kashmere Gate with another attesting witness Manohar Lal as he wanted to execute a will. He deposed that on the instructions of Sh.Shiv Charan Dass the will was drafted by the deed writer on 28.5.1992 which after typing was signed by Sh.Shiv Charan Dass and he and the other attesting witness signed in the presence of each other. It was thereafter registered in the office of Sub Registrar. He deposed that he could identify the signatures of the testator and the attesting witnesses on the Will. He identified the signatures of Sh.Shiv Charan Dass on the Will Ex.PW-1/B at point A and his own signatures at point B and signatures of the other attesting witness at point C. RCA 125 and 157 of 2011 8/20
18. PW-2 was cross examined by defendant No.2 Ramji Lal through his Advocate. In cross examination, he deposed that he knew father of the plaintiff for the last 15 years as he was a friend of his own father. He deposed that he did not have family relations with the father of the plaintiff. He deposed that Sh.Shiv Charan Dass died at the age of 85 years and was aged about 82 years at the time of execution of the Will. He deposed that name of the deed-writer was Sh. Sumer Chand who drafted the will under the instructions of Sh.Shiv Charan Dass at the house of Sh.Sumer Chand. He deposed that the deed-writer was resident of Kucha Seth Dariba Kalan. He deposed that the will was typed in his presence but could not remember as to at how many places he signed the same. He denied the suggestion that Sh.Shiv Charan Dass came from Green Park for executing the will. He deposed that Sh.Shv Charan Dass never informed him about the case pending in the Hon'ble High Court. He deposed that he was not aware as to where the other witness was residing. He deposed that he was not aware whether he was dead or alive. He deposed that he was not aware as to after how many days Sh.Shiv Charan Dass got the will registered. He deposed that he could not remember as to at how many places he signed before the Registrar. He deposed that he was not aware as to how many times Sh.Shiv Charan Dass was married. He denied that he had come to depose on the asking of the plaintiff.
19. It is relevant to note that even though defendant No.2 Anand Vardhan was impleaded in the suit, he did not chose to cross examine PW-2 - the only attesting witness of the will examined by the plaintiff.
20. PW-3 is Rakesh Ranjan, Record Clerk from the office of Sub Registrar Kashmere Gate. He brought the record relating to the registration of the will dated 28.5.1992 of Sh.Shiv Charan Dass and deposed that the same was registered vide No.34977 in additional Book No.3, Volume No.1476 at pages 1-4 on 28.5.1992. He deposed that the Will placed on the record Ex.PW-1/B was the same as has been registered. PW-3 was cross examined by both the defendants in which he deposed that he did not have any personal knowledge about the RCA 125 and 157 of 2011 9/20 execution of the will and that he was posted in the office of Sub Registrar since the year 2007.
21. On behalf of the defendants, defendant No.1 examined himself as DW-1 and deposed by way of affidavit Ex.DW-1/A. Defendant No.2 also deposed by way of affidavit Ex.DW-1/1. Evidence by way of affidavits of DW-1 and DW-2 were tendered in chief on 19.7.2009. Since none was present on behalf of the plaintiff both the witnesses were discharged. Thereafter an application was moved by the plaintiff under Order XVIII Rule 4 CPC praying for permission to cross examine DW-1 and DW-2. Vide order dated 15.10.2009, the said application was allowed. However, permission was granted to cross examine only DW-1. No reason was assigned in the said order as to why permission to cross examine DW-2 had been declined although the grounds were the same.
22. In his cross examination, defendant No.1 deposed that he had come to Delhi through his uncle in the year 1978 and used to reside at Malka Ganj. At that time, he was aged 10-12 years. He deposed that he was working as a Cleaner and serving tea at a shop. He was working as a Driver when he left the services. At that time, he was getting salary of Rs.2,000/- per month. He deposed that when he left the services, he was residing in the suit property as a tenant at monthly rent of Rs.55/- inclusive of electricity charges of Rs.15/-. He deposed that even before marriage he was residing in the same house. He deposed that he took the house on rent in the year 1990. He deposed that he could not remember that he had filed ID 139/1998 against the management of M/s Shiv Charan Dass Jyoti Prasad. He deposed that he could not remember whether he received Rs.35,000/- from the Court of Sh.PK Saxena, POLC-VI, Kkd Courts, Delhi. He denied the suggestion that he started his services in the year 1978 as a driver. He denied the suggestion that he left the service at the time of death of Sh.Shiv Charan Dass. He deposed that since Sh.Shiv Charan Dass was receiving rent from all tenants in the property at Laxmi Nagar he came to know that he was the owner of the property. He deposed that he had not seen whether Sh.Shiv Charan Dass issued receipts to other tenants. He denied the suggestion RCA 125 and 157 of 2011 10/20 that Sh.Shiv Charan Dass did not issue any rent receipt to him but used to issue rent receipts to other tenants. He deposed that he never asked for issuance of the rent receipt from Sh.Shiv Charan Dass. He deposed that there were 8 other tenants including him in the suit property but he never spoke to other tenants about the payment of rent.
23. He deposed that he was residing as a tenant and the same did not have any relevance with his services with M/s Shiv Charan Dass Jyoti Prasad. He deposed that Sh.Anand Vardhan had issued rent receipt in his favour. He deposed that he could not remember since when Sh.Anand Vardhan had been issuing rent receipts. He deposed hat he could not remember the date of receipt. He deposed that he paid Rs.40/- as rent to Sh.Anand Vardhan after receiving his notice dated 9.9.2004. He deposed that he was giving rent since the year 1997 to 6.9.2004 to Sh.Anand Vardhan. He admitted that he had not filed receipt for the years 1997 to 2004 with the suit. He deposed that he was not aware whether Sh.Anand Vardhan had 24% share in the suit property. He denied that he was not paying rent to any other brother of Sh.Anand Vardhan. He deposed that he was not aware about the will of Sh.Shiv Charan Dass.
24. As recorded, defendant No.2 was not subjected to any cross examination and as such his version in his affidavit has gone unrebutted and unchallenged.
25. After considering the evidence on record, the learned Trial Court decided issues No.1 and 2 in favour of the plaintiff on the ground that the defendant No.1 being a tenant could not challenge title of the plaintiff and with respect to issue No.3 the trial Court held that the defendant was in occupation of the suit property not as a licensee but in the capacity of a tenant. It was also held that the since defendant No.1 was paying rent of Rs.100/- per month, the relief for possession would be barred under section 50 of the DRCA and on account of the said findings suit of the plaintiff was rejected under the provisions of Order VII Rule 11(d) CPC.
RCA 125 and 157 of 2011 11/2026. Learned counsel for the appellant Sh.RR Gupta (appellant in RCA 125/2011) has argued that the learned Trial Court has failed to appreciate that the defendant No.1 did not produce on record any rent receipt or rent agreement and in the absence thereof inference which can be drawn is that the defendant No.1 is a licensee in the suit property. He submitted that the appellant had duly proved the Will dated 28.5.1992 by examining the attesting witness and its registration by examining a witness from the office of Sub Registrar. He submitted that since defendant No.1 claimed himself to be a tenant the onus was upon him to prove the tenancy. He further argued that defendant No.1 can not be permitted to take advantage of any dispute between the plaintiff and the defendant No.2.
27. Counsel for Sh.Anand Vardhan (Appellant in RCA 157/2011) has argued that the learned Trial Court has failed to appreciate that the dispute regarding validity of the will was pending adjudication in the High Court in CS 45/1992 and no findings on the same could have been returned. He submitted that the plaintiff had not proved the will in according with law and therefore issues No.1 and 2 could not have been decided in favour of the plaintiff. He submitted that without giving any reason, the learned Trial Court has decided issue No.1 in favour of the plaintiff which was whether the plaintiff was the owner and landlord of the property in dispute. He submitted that findings on issue No.1 will come in the way of the defendant No.2 in CS 45/1992 which was pending before the Hon'ble High Court.
28. Counsel for the tenant (defendant No.1) - Ramji Lal has argued that in para 2 of the Will it was mentioned that the plaintiff would have a right to recover the rent and from the said contents it can be presumed that the defendant No.1 was a tenant in the suit property. He submitted that the plaintiff did not deny the averments of the defendant No.1 in his replication regarding the tenancy. He submitted that in his cross examination the plaintiff admitted that the defendant No.1 was paying rent to Sh.Anand Vardhan - defendant No.2 and thus defendant No.1 was a tenant of defendant No.2 after the death of Sh.Shiv Charan Dass. He submitted that the defendant No.1 had proved on record letter of defendant No.2 as Ex.DW-2/1 asking him to tender the rent for the suit premises and that by RCA 125 and 157 of 2011 12/20 Ex.DW-1/2 the defendant No.1 has tendered the rent to defendant No.2. He submitted that the Trial Court has rightly held that the defendant No.1 was a tenant in the suit property and not a licensee.
29. I have heard counsel for the parties and have perused the record. My findings are as under:-
ISSUE NO.3
30. Admittedly there is no rent receipt or rent agreement produced by defendant No.1 who claims himself to be a tenant under Sh.Shiv Charan Dass while he was working as a driver for M/s Shiv Charan Dass Jyoti Prasad - a partnership firm. In the case of Prem Pal Singh versus Jugal Kishore Gupta reported as 50(1993) DLT 49 (DB), the plaintiff therein had contended that the defendant was a licensee but the defendant contended that he was a tenant under the plaintiff and that the suit for possession was barred under section 50 of the DRCA. Issue No.2 framed in the said matter was whether the defendant was a tenant in the suit premises and the suit was barred under section 50 of the DRCA. The defendant did not produce any rent agreement or rent receipt and the learned Trial Court concluded that the relationship was of licensor and licensee and decided the said issue against the defendant. In appeal the Division Bench of the Hon'ble High Court upheld the findings of the learned Trial Court and held in para 3 as under :
"3. As noted above, on the second issue the defendant has not led any documentary evidence except his own statement that he was the tenant. He admits that he has no document to show that he was tenant in the premises. Tenancy rights are created by contract under the statute being the Transfer of Property Act and Court has to be satisfied that there in fact a tenancy existed, and when landlord denies the same a mere statement of the tenant may not be enough. Mr. Chopra has also referred to a judgment of the Calutta High Court in shore note in Satinath Mukherjee V. Satlendra Nath Sen alias Aailen Sen. AIR 1991 NOC 55 (Calcutta), to contend that to prove the tenancy it is not necessary to prove an agreement, That of course, will depend up to the facts of each case and the evidence that may be led in a case. In the present case the defendant has been unable to prove that he had been a tenant."
(emphasis supplied) RCA 125 and 157 of 2011 13/20
31. The judgment in the case of Prem Pal Singh (supra) was followed by the Hon'ble High Court in the case of Praveen Narang versus Dinesh Gulati & Another reported as 2009(2) RCJ 220 in which the Hon'ble High Court in para 18 reiterated that a "mere statement of the defendant that he is a tenant in the suit property without producing any document in support thereof cannot be accepted as sufficient proof of tenancy." It has thus been held mere claim of a party of being a tenant without producing any document to prove tenancy would not be sufficient and the only inference which can be drawn is that the party was a licensee in the property.
32. In this matter defendant No.1 did not produce any rent receipt or rent agreement. Having claimed himself to be a tenant and not a licensee the onus was upon him to prove the same. In the absence of any documentary evidence on record produced by Defendant No.1 in this regard, the only inference which can be drawn is that he was a licensee in the suit property and not a tenant in view of the law laid down by the Hon'ble High Court in the case of Prempal Singh (supra) and Praveen Narang (supra).
33. The defendant no.1 had claimed tenancy under the defendant no.2 by virtue of rent receipts issued to him by the defendant no.2. Cross examination of the defendant no.1 in this regard is crucial. In his cross examination the defendant no.1 had that Sh.Anand Vardhan had issued rent receipt to him but could not remember since when Sh.Anand Vardhan had been issuing him rent receipts. He deposed hat he could not remember the date of the rent receipts. He thereafter deposed that he paid rent to Sh.Anand Vardhan after receiving his notice dated 9.9.2004. He again deposed that he was giving rent to Sh. Anand Vardhan since 1997 to 6.9.2004 but then admitted that he had not filed the rent receipts for the years 1997 to 2004 with the suit.
34. It is clear that the testimony of the defendant no.1 regarding him paying rent to the defendant no.1 Anand Vardhan is unreliable as he positively stated that he started paying rent to Anand Vardhan receiving his notice dated RCA 125 and 157 of 2011 14/20 9.9.2004 but again stated that he was paying rent since 1997 probably to cover for the period since the death of Sh.Shiv Charan Dass. It appears that since the plaintiff was having a title dispute with the defendant no.2 before the High Court, the defendant no.1 and the defendant no.2 colluded with each other to create a story of tenancy of the defendant no.1 with the defendant no.2. The same is compounded when the deposition of the defendant no.1 is read with his written statement where he has not made any such averments.
35. The Trial court while rendering its findings on issue No.3 has relied up the document mark A which is stated to be an admitted document of the plaintiff. Mark A is the certified copy of the cross examination statement of Sh.Ramji Lal in ID 139/1998 recorded in the Court of Sh.PK Saxena, POLC-VI, Kkd.Courts Delhi. This cross examination was conducted by the authorized representative of the management M/s Shiv Charan Dass Jyoti Prasad. In his cross examination, he has deposed that it was correct that he had been given separate accommodation for his residence in the year 1990. He deposed that the said accommodation was provided to him by management. He deposed that the management used to take rent from him and used to charge Rs.100/-from him. He thereafter deposed that "I have no proof for that". In other words, there was documentary evidence produce by the defendant No.1 even in the Court of POLC-VI regarding his claimed tenancy in the suit property. Thus in the opinion of this Court mark A could not have been relied upon the Trial Court as a proof of tenancy of defendant No.1 in the suit premises. In view of the above, findings of the learned Trial Court on issue No.3 can not be sustained and are set aside. It is held that the defendant No.1 was a licensee in the suit property and not a tenant.
ISSUES NO. 1 AND 236. Issue No.1 was whether the plaintiff was the owner and landlord of the property in dispute and issue No.2 was whether the plaintiff had locus standi to file the suit. Both these issues were decided in favour of the plaintiff. Original defendant No.1 Ramji Lal has not filed any appeal against findings of the learned Trial Court on these issues. However defendant No.2 Sh.Anand Vardhan vide RCA 125 and 157 of 2011 15/20 RCA 157/2011 has challenged these findings. The contention of Sh.Anand Vardhan is that the plaintiff had not proved the will of Sh.Shv Charan Dass in accordance with law. Regarding the mode and manner of proving the will, In the case of Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780 the Hon'ble Supreme Court was pleased to hold as under:-
"11. As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator."
37. In the present case, the plaintiff has examined Sh.Sarvan Kumar one of the attesting witness to the Will as PW-2. His evidence has already been discussed above. He has clearly deposed in his examination in chief that the will Ex.PW-1/B was executed by Sh.Shiv Charan Dass in his presence and he has signed the same along with the other attesting witness on the asking of Sh.Shiv Charan Dass in his presence. He identified the signatures of the testator, his own as well RCA 125 and 157 of 2011 16/20 as signature of the other attesting will of the will. Even though Sh.Anand Vardhan was impleaded as defendant No.2 but he did not choose to cross examine PW-2. The version of PW-2 regarding the execution of the Will has gone unrebutted and unchallenged. PW-3 the Record Clerk from the office of the Sub Registrar, Kashemre Gate, Delhi proved that the will was registered. PW2 Sh.Sarvan Kumar the attesting witness to the will was not cross examined by the defendant no.2. His evidence has thus gone unrebutted qua the defendant no.2. No suspicious circumstances surrounding the execution of the will have been claimed or proved by the defendants. Thus the plaintiff has duly proved the execution of the will dt. 28.5.1992 by late Shiv Charan Das in his favour.
38 As recorded, initially defendant No.2 had moved an application under Section 10 CPC for stay of the proceedings in the suit on the basis of pendency of CS 45/1992 in the Hon'ble High Court. The said application was allowed and against the order of the Trial Court, the plaintiff had filed CM(Main) 592/2005 before Hon'ble High Court which was allowed vide order dated 11.9.2006. The operative portion of the order of the Hon'ble High Court has been reproduced above. From a perusal of the said order, it is apparent that Sh.Anand Vardhan made a statement before the Hon'ble high Court that he will withdraw his application under Section 10 CPC and would let the suit proceed to be decided on merits. However, he had made a submission that the suit property be protected awaiting outcome of the Civil Suit pending before the Hon'ble High Court. Counsel for the present plaintiff assented to the same. Thus order dated 11.9.2006 of the Hon'ble High Court is a consent order between the plaintiff and the defendant No. 2 to the effect that the suit be proceeded with and in case the matter was decreed, the plaintiff would not deal with the suit property in any manner and would await outcome of the Civil Suit for partition before the Hon'ble High Court. In other words, the defendant No.2 gave up his challenge on the locus standi of the plaintiff to maintain the suit against Sh.Ramji Lal subject to the condition that the suit property would be protected and would be subject to final outcome of CS 45/1992 before the Hon'ble High Court.
RCA 125 and 157 of 2011 17/2039. In the opinion of this Court, once defendant No.2 has consented to the locus standi of the plaintiff to maintain the suit, it was not open to the defendant No.2 to challenge the findings of the Trial Court on issues No.1 and 2, especially for the reason that the Hon'ble High Court in CM (Main) 592/2005 has already directed that the right to the suit property between the plaintiff and the defendant No.2 would be subject to final determination of CS 45/1992 pending before the Hon'ble High Court. Hence for these reasons the findings of the learned Trial Court on issues No.1 and 2 need not be disturbed. It is however clarified that these findings on issues no.1 and 2 would not operate as conclusive proof of ownership of the suit property qua defendant No.2 or other parties to the CS 45/1992. The same would, however, operate qua defendant No.1 who has no title to the suit property.
ISSUE No.4
40. Issue No.4 was whether the suit has not been properly valued for the purpose of court fee and jurisdiction. This has already been decided in favour of the plaintiff. Neither the defendant No.1 nor defendant no.2 have challenged the said findings. Hence the same is not being gone into in the appeal.
ISSUE No.5
41. Issue No.5 was regarding entitlement of the plaintiff to the relief for possession of the suit property. I have already held while deciding issue No.3 the defendant No.1 was merely a licensee in the suit property and did not have any right to retain possession after license was terminated. In these circumstances, the plaintiff would be entitled to possession of the suit property. However, in terms of the order dated 11.9.2006 passed by the Hon'ble High Court in CM (Main) 592/2005, the plaintiff after gaining possession of the suit premises shall neither occupy the same for self use nor shall induct any third party without leave and liberty of the Hon'ble High Court in CS 45/1992.
ISSUE No.6
42. Issue No.6 was whether the plaintiff was entitled to claim damages from RCA 125 and 157 of 2011 18/20 the defendant No.1, at what rate and the period for the same. No findings on this issue have been given by the learned Trial Court. The plaintiff has claimed damages at the rate of Rs.2,000/- per month from the date of filing of the suit till the date of gaining possession of the suit property. The plaintiff has examined only himself in regard to rate of damages. The plaintiff has not examined any other witness or produced any document to prove that the rate of rent of the similar premises in the locality was Rs.2,000/- per month. In the case of M.C. Agrawal HUF versus Sahara India and others, reported in 183 (2011) DLT 105, the Hon'ble High Court of Delhi was pleased to hold that in such situations the Court could resort to the provisions of sections 57 and 114 of the Indian Evidence Act and grant appropriate relief. As per the site plan Ex.PW-1/3 the suit property is a room situated on the ground floor having an opening towards the street and is being used for residential purposes. The measurements of the said room are not mentioned in the site plan. Thus in the opinion of this court in the absence of any documentary or oral evidence in support of the contention, use and occupation charges/damages at the rate of Rs.1,000/- per month would be sufficient as on the date of filing of termination of the licence. However since the licence was terminated in February 1999, the plaintiff would be entitled to revision of damages @ 15 % every two years.
43. In these circumstances, it is directed that the plaintiff would be entitled to mesne profits at the rate of Rs.1000/- per month with effect from March 1999 with revision of the mesne profits @ 15% every two years till the date of handing over of possession of the suit premises to the plaintiff. However in view of the order of the Hon'ble High Court in CM (Main) 592/2005 the plaintiff shall keep the mesne profits so recovered in fixed deposit till the decision of CS 45/1992 before the Hon'ble High Court.
44. The net result of the above discussion is as under :-
(i) RCA No.157/2011 filed by Sh.Anand Vardhan is dismissed;
(ii) RCA No.125/2011 filed by RR Gupta is allowed and the appellant therein is granted the following decrees:-RCA 125 and 157 of 2011 19/20
(a) decree for possession of the suit premises - one room situated on the ground floor of property bearing No.R-30/2, Gurudwara Road, Ramesh Park, Laxmi Nagar, Delhi;
However, in terms of the order dated 11.9.2006 passed by the Hon'ble High Court in CM (Main) 592/2005, the plaintiff after gaining possession of the suit premises shall neither occupy the same for self use nor shall induct any third party without leave and liberty of the Hon'ble High Court in CS 45/1992
(b) decree for recovery of mesne profits at the rate of the rate of with effect from March 1999 with revision of the mesne profits @ 15% every two years till the date of handing over of possession of the suit premises to the plaintiff. However in view of the order of the Hon'ble High Court in CM (Main) 592/2005 the plaintiff shall keep the mesne profits so recovered in fixed deposit till the decision of CS 45/1992 before the Hon'ble High Court;
(c) the plaintiff shall be entitled to the costs of the suit and of the appeal.
45. Decree sheet be prepared accordingly. TCR be sent back with a copy of this judgment and appeal file be consigned to the record room.
Announced and dictated to the steno in open Court today i.e. 22.5.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA 125 and 157 of 2011 20/20