Delhi District Court
Jagdish Chander vs Tasleem on 12 January, 2023
IN THE COURT OF SH. AJAY GULATI-II,
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL), THC, DELHI.
RCA No. 61428/16
CNR No: DLCT 01-001234-2013.
Jagdish Chander
S/o Late Shri Lachman Dass
R/o 6612, Neem Wala Chowk,
Nabi Karim, New Delhi-110055 APPELLANT
VERSUS
Tasleem
S/o Late Mohd. Ferozuddin,
R/o 6612, Neem Wala Chowk,
Nabi Karim, New Delhi-110055 RESPONDENT
Date of Institution: 30.11.2013
Date of Reserving Judgment: 09.12.2022
Date of Judgment: 12.01.2023
JUDGMENT
1. The present appeal, which is the second round of appellate proceedings, has been preferred by the appellant, who was the plaintiff before the Ld. Trial Court, being aggrieved by the judgment/decree dated 29.10.2013, vide which the suit filed by the appellant/plaintiff was dismissed by the Ld. Trial Court.
2. The suit, from which the present appeal has arisen, was initially filed in the year 2001 by the appellant/plaintiff seeking possession of the suit property i.e. single room shop on the Ground Floor and one room on RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.1/28 the First Floor in the property bearing no. 6612, Neemwala Chowk, Nabi Karim, Delhi-110055, hereinafter referred to as the Suit Property.
3. For the sake of convenience, the parties are being hereinafter referred to as per their original status/rank before the Ld. Trial Court i.e. the appellant herein shall be referred to as the plaintiff and the respondent herein shall be referred to as the defendant.
BRIEF FACTS OF CASE
4. The plaintiff had filed a suit for possession and damages pleading inter-
alia as follows:
i. That the father of the plaintiff (since deceased) namely Late Sh.
Lachhman Dass was the owner of the property bearing no 6612, Neemwala Chowk, Nabi Karim, Delhi-110055 comprising of the suit property and the defendant was inducted as a tenant by the father of the plaintiff somewhere in the year 1975 in a single room shop on the Ground Floor and a room on the First Floor at a monthly rent of Rs. 1000/- and Rs. 500/- respectively.
ii. That after the death of the father of the plaintiff, the mother of the plaintiff Smt. Basanti Devi started collecting rent from the defendant.
iii. The defendant was a persistent defaulter in payment of rent and has not paid rent w.e.f. from November, 1992 and procrastinated the payment on one pretext or another.
iv. That the plaintiff is one of the LRs of Late Sh. Lachhman Dass and after the death of Late Sh. Lachhman Dass and Smt. Basanti Devi, the plaintiff became one of the co-owners of the suit property and RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.2/28 thus he was competent to demand the rent from the defendant and institute the present case.
v. The plaintiff served a demand notice dated 06.11.2001 upon the defendant to pay the arrears of rent with effect from November, 1992 till the date of the notice and as such the tenancy of the defendant was terminated.
vi. The said notice was served upon the defendant and the defendant sent his reply dated 13.11.2001 and in the said reply, the defendant had denied the relationship of landlord and tenant between the parties and also disowned the right of the plaintiff in the suit property while claiming himself to be the absolute owner of the suit property by virtue of various documents i.e. Agreement to Sell, GPA, receipt, Will executed by the mother of the plaintiff on 25.05.1992 in favour of M/s Gaus & Company in which the defendant was one of the partner.
vii. That since the defendant has disowned the landlord/tenant relationship between the parties and has claimed ownership in his favour in respect of the suit property therefore the plaintiff filed the present suit on 20.11.2001 for possession and damages.
5. The defendant filed his written statement challenging the suit of the plaintiff on the following grounds:-
i. That the plaintiff is neither the owner nor the landlord of the suit property and the plaintiff has no interest, title and right in the suit property.
ii. That the plaintiff has not approached the court with clean hands RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.3/28 and has suppressed material facts as the defendant has become the owner of the suit property in 1992.
iii. The defendant though admitted that he was inducted in the suit property as a tenant by the father of the plaintiff in the year 1975 however it was denied that the rate of rent was Rs 1,000/- and 500/- respectively and it was claimed that the rate of rent was Rs 100/- per month.
iv. It was further pleaded that the defendant has become the owner of the suit property having purchased the suit property on 25.05.1992 from Smt Basanti Devi i.e. the mother of the plaintiff being one of the partner of M/s Gaus & Company for a sum of Rs 30,000/- vide Agreement to Sell, General Power of Attorney, Cash Receipt and registered Will, hereinafter referred to as the GPA sales documents.
6. The Plaintiff filed his replication and denied the execution of the said documents by the mother of the plaintiff and it was asserted that after the death of Late Sh. Lachhman Dass all his LRs became the co-owners of the property bearing no. 6612, Neemwala Chowk, Nabi Karim, New Delhi-110055 comprising of the suit property and as such the documents executed by the mother of the plaintiff were forged and fabricated and could not have been executed.
7. The Ld. Trial Court vide order dated 23.08.2002 framed the following issues for adjudication as under:
1. Whether the suit of plaintiff not maintainable in the preliminary objection no. 1? OPD RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.4/28
2. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD
3. Whether there is no cause of action arose in favour of plaintiff and against the defendant? OPD
4. Whether the plaintiff is entitled for relief of decree of possession as prayed? OPP
5. Whether the plaintiff is entitled for recovery of damages and amount of Rs. 54,000/- as such amount is calculated after enquiry?OPP
6. Relief.
8. In order to prove his case, the plaintiff examined 3 witnesses i.e. the plaintiff himself as PW-1, one Mr. Govind as PW-2 and one Mr. Om Prakash as PW-3.
9. The defendant, on the other hand, had sought to examine 5 witnesses however the defendant examined only 3 witnesses i.e. the defendant himself as DW-1, Mohd. Saleem as DW-3 and Sh. Swaroop Thakur, Advocate as DW-5 however the other 2 witnesses namely Shrinath and Sunderlal who were to be examined by the defendant as DW-2 and DW-4 respectively were not examined since the said witnesses had already expired before their evidence could be recorded and the said fact is duly recorded by the Ld Trial Court in the ordersheet dated 05.07.2008.
10. The Ld. Trial Court, vide judgment/decree dated 25.01.2010, dismissed the suit of the plaintiff holding that since the plaintiff had been informed by the defendant that the defendant had become the owner of RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.5/28 the suit property by virtue of GPA sales document then the plaintiff should have sought a declaration against the defendant or atleast sought cancellation of the said documents and therefore the suit of the plaintiff was held to be not maintainable in the absence of seeking requisite declaration and the Ld. Trial Court relied upon the judgment of the Hon'ble High Court of Delhi in the case of Asha M. Jain vs. Canara Bank and Ors, 1994 (2001) DLT841 (DB). The Ld Trial Court also held that the defendant had successfully proved to have become the owner of the suit property by virtue of the GPA sales document and as such the suit of the plaintiff was dismissed.
FIRST ROUND OF APPEAL
11.The plaintiff challenged the judgment and decree dated 25.01.2010 by preferring an appeal i.e. RCA No. 05/2010 and the then Ld. Appellate Court, vide judgment dated 20.10.2010, partly allowed the said appeal and it was held that since the mother of the plaintiff namely Late Smt. Basanti Devi, from whom the defendant had alleged to have purchased the suit property by virtue of GPA sales document, did not become the exclusive owner of the property by virtue of execution of any Will or any other document executed in her favour by Late Sh, Lacchman Dass and since Late Sh. Lacchman Dass was also survived by his children therefore the property had devolved upon all the LRs of Late Sh Lacchman Dass equally therefore by no stretch of imagination Smt Basanti Devi could have validly transferred the suit property in favour of M/s Gaus & Company or the defendant. It was also held that there was no valid transfer of the suit property in favour of M/s Gaus & Company or the defendant by Smt Basanti Devi since Smt Basanti Devi RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.6/28 was not the exclusive owner.
12. The Ld. Appellate Court also observed that the suit was also otherwise bad for non-joinder of necessary parties since the other two brothers namely Shri Sri Nath and Shri Raghubir and sister of the plaintiff namely Smt. Meena, who were admittedly also the co-owners of the suit property, were not impleaded in the suit and as such the Ld. Appellate Court remanded the matter back to the Ld Trial Court to decide the suit afresh in the light of the observation made in the judgment dated 20.10.2010 in RCA No. 05/2010.
13. It is also a matter of record that the plaintiff had sought review of the judgment dated 20.10.2010 passed in RCA No. 05/2010 on the ground that in para 10 of the said judgment though the Appellate Court had observed that the suit was also otherwise bad for non-joinder of necessary parties but the word "not" has inadvertently not been mentioned in the said observation since as per the plaintiff, the Ld. Appellate Court was of the view that the suit was not bad for non- joinder of necessary parties however the review application filed by the plaintiff was dismissed vide order dated 05.07.2012.
14. It is significant to note here that though the claim of the defendant to be owner of the suit property was completely rejected by the Ld. Appellate Court in the judgment dated 20.10.2010 however surprisingly the defendant did not prefer any appeal against the same and the said judgment thus attained finality qua rejection of the claim of ownership of the defendant.
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.7/28PROCEEDINGS AFTER REMAND
15. After being remanded, the plaintiff moved an application under Order 1 Rule 10 CPC before the Ld. Trial Court so as to implead the other LRs of Late Sh. Lacchman Dass in the suit however the Ld. Trial Court, vide order dated 02.09.2013, dismissed the said application observing that at no point of time the Ld. Appellate Court had directed to implead the other co-owners/LRs of Late Sh. Lacchman Dass as a party to the suit.
16. It is also a matter of record that the plaintiff did not challenge the order dated 02.09.2013.
17. That thereafter, the Ld. Trial Court vide impugned judgment and decree dated 29.10.2013 again dismissed the suit.
18. The suit of the plaintiff was dismissed by the Ld. Trial Court primarily on two counts i.e. (1) that the plaintiff failed to prove his ownership qua the suit property and (2) that the suit was bad for non-joinder of necessary parties.
PRESENT APPEAL
19. In the present appeal, the appellant/plaintiff moved an application under Order 41 Rule 27 CPC and the same was allowed vide order dated 01.10.2014 and the appellant/plaintiff was permitted to lead additional evidence to prove his ownership qua the suit property. The said order was challenged by the defendant before the Hon'ble High Court of Delhi by filing CM (M) No 1012/2014 however the said petition was dismissed vide order dated 13.04.2015.
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.8/2820. Since the plaintiff was allowed to lead additional evidence therefore the plaintiff examined three witnesses including himself again as PW-1 and tendered his evidence by way of affidavit as Ex. PW1/A bearing his signatures at point A and B. He relied upon the following documents:
S. No. Mark/Exhibit Date & Year Description
1. Mark-PX1 27.07.1954 Original receipt issued by the Ministry
of Rehabilitation, Office of the custodian
of Evacuees' Property, Delhi Province,
New Delhi in the name of father of the
plaintiff namely Late Sh. Lachman Das.
2. Mark-PX2 07.10.1955 Same as of serial no. 1.
3. Mark-PX-3 10.02.1956 Same as of serial no. 1.
4. Mark-PX-4 13.03.1957 Same as of serial no. 1.
5. Mark-PX-5 24.06.1956 Same as of serial no. 1.
6. Mark-PX-6 19.10.1956 Same as of serial no. 1.
7. Mark-PX-7 18.05.1976 Same as of serial no. 1.
8. Mark-PX-8 22.10.1975 Same as of serial no. 1.
9. Mark-PX-9 07.05.1967 Same as of serial no. 1.
10. Mark-PX-10 Not legible Same as of serial no. 1.
11. Mark-PX-11 Not legible Same as of serial no. 1.
12. Mark-PX- 19.04.1966 Same as of serial no. 1.
11A
13. Mark-PX-12 Not legible Same as of serial no. 1.
14. Mark-PX-13 14.09.1954 Same as of serial no. 1.
15. Mark-PX-14 06.05.1954 Same as of serial no. 1.
16. Mark-PX-15 05.12.1954 Same as of serial no. 1.
17. Mark-PX-16 Not legible Original house tax/property tax receipt.
18. Mark-PX-17 07.03.1974 Original house tax/property tax receipt.
19. Mark-PX-18 06.03.1955 Same as of serial no. 1.
20. Mark-PX-19 12.11.1954 Same as of serial no. 1.
21. Mark-PX-20 10.06.1955 Same as of serial no. 1.
22. Mark-PX-21 05.05.1956 Same as of serial no. 1.
23. Mark-PX-22 Not legible Demand Notice under Secion 154 (1) of
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.9/28
the DMC Act, 1957.
24. Mark-PX-23 Not legible Back side of PX-22
25. Mark-PX-24 21.11.1955 Same as of serial no. 1.
26. Mark-PX-25 29.08.1955 Same as of serial no. 1.
27. Mark-PX-26 03.02.1967 Original receipt issued by the Ministry
of Rehabilitation, Office of the Regional
Settlement Commissioner, Management
wing, New Delhi in the name of father of
the plaintiff namely Late Sh. Lachman
Das.
28. Mark-PX-27 07.09.1966 Same as of serial no. 26.
29. Mark-PX-28 13.04.1967 Same as of serial no. 26.
30. Mark-PX-29 26.11.1974 Same as of serial no. 1.
31. Mark-PX-30 16.12.1972 Original house tax receipt by MCD in
the name of Lachman Dass.
32. Mark-PX-31 18.02.1974 Original house tax receipt.
33. Mark-PX-32 07.02.1979 Original house tax receipt
34. Mark-PX-33 28.04.1966 Same as of serial no. 26.
35. Mark-PX-34 07.09.1966 Same as of serial no. 26.
36. Mark-PX-35 03.02.1966 Same as of serial no. 26.
37. Mark-PX-36 20.03.1957 Same as of serial no. 1.
38. Mark-PX-37 10.08.1956 Same as of serial no. 1.
39. Mark-PX-38 07.06.1954 Same as of serial no. 1.
40. Mark-PX-39 16.01.1954 Same as of serial no. 1.
21. PW-2/Sh. Nagender Shah was a summoned witness from the office of Land & Building, EP Cell, Vikas Bhawan, New Delhi. The PW-2 deposed that the summoned record pertaining to the suit property are not traceable/available and he placed on record the notesheet dated 25.07.2017 issued by the concerned department to the effect that the file in respect of the suit property is not traceable. The said notesheet was exhibited as Ex. PW2/A and his further examination-in-chief was deferred. The said witness again appeared before the Court on RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.10/28 01.02.2018 and in his further examination-in-chief conducted on 01.02.2018, he brought the file pertaining to property bearing old no. 8903 to 8914, Neem Wala Chowk, Nabi Karim, Delhi-110055 however since as per the documents filed by the appellant/plaintiff the Old No. of the suit property was 8900 therefore the record pertaining to the property bearing no. 8900 was directed to be produced and the matter was adjourned for 03.04.2018. On 03.04.2018, the PW-2 brought the record pertaining to property bearing no. 8900 as available in the Land and Building Department (Evacuees' Property) and after going through the receipts marked as Mark PX-1 to PX-39, he deposed that the said record of receipts is not available in the said file since the said file was received by the department in the year 1989 and the record pertains to the period prior to the year 1989. He further deposed that the said record may be available with Ministry of Home Affairs, Rehabilitation Division, FFR and RD (Rehabilitation Division), Settlement Wing, NDCC-11, Building, Jai Singh Road, New Delhi-110002.
22. The third witness namely Anil Kumar, (inadvertently examined as PW-
2 again though he ought to have been examined as PW-3), was also a summoned witness from the Ministry of Home Affairs, Rehabilitation Division, Department of Rehabilitation, NDCC-11, Building, Jai Singh Road, New Delhi-110002. He deposed that the summoned record had already been transferred along with the concerned record to the Government of NCT of Delhi vide order 4 (32)/85-SS-II dated 20.04.1989 and the photocopy of the said order was placed on record as Mark X.
23. The PW-1 was again cross-examined by the Ld. Counsel for the RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.11/28 defendant and in his cross-examination conducted on 22.11.2018, the PW-1 deposed that the father of the plaintiff had 3 sons and a daughter including the plaintiff and at the time of filing of the suit all the sons and the daughter were alive. The PW-1 in his further cross-examination conducted on 14.03.2019 admitted that he had not taken any permission or NOC from his brothers and sister before filing of the suit against the defendant however he volunteered that he had asked his brothers and sister to join him in filing the suit against the defendant however they refused to do the same. In his further cross-examination dated 18.07.2019 the Ld. Counsel for the defendant/respondent put a specific question to the PW-1 which is reproduced below:-
"Q. I put it to you that their mother Smt. Basanti Devi was the owner of the suit property and sold the same to the defendant?
24. However the said question was disallowed by the court. The PW-1 in his further cross-examination admitted that he is not in possession of any registered sale deed qua the suit property. On being further cross- examined as to whether DDA or any Government Authority had ever issued any allotment letter in respect of the suit property in the name of Late Sh. Lacchman Dass to which the plaintiff deposed that he had placed on record all the documents which were available with him and except the said documents (PX-1 to PX-39) no other documents is available. Thereafter the plaintiff closed his evidence.
ARGUMENTS ON BEHALF OF THE APPELLANT
25. Ld. Counsel for the Appellant has challenged the judgment and decree dated 29.10.2013 on the following grounds:
i. The respondent/defendant had never objected to the non-joinder of RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.12/28 necessary parties in his written statement and the suit could not have been dismissed on account of non-joinder of necessary parties since it is settled law that a co-owner can maintain a suit against the trespasser without impleading other co-owners. ii. It is further contended that though the order dated 02.09.2013, vide which the application of the plaintiff under Order 1 Rule 10 CPC was dismissed, was not challenged before any Ld. Appellate Authority however it has been submitted that the same was not required in as much as there can be no estoppel against law and if the law permits a co-owner to maintain a suit against a trespasser without impleading the other LRs then any observation by the Ld. Trial Court in respect of the suit being bad for non-joinder of necessary parties cannot prejudice the case of the plaintiff when the plaintiff is otherwise permitted to maintain such a suit by prescription of law.
iii. The Ld. Counsel for the plaintiff further submitted that the defendant has admitted the ownership of the predecessor-in-interest of the plaintiff i.e. Late Sh. Lacchman Dass as also the landlord and tenant relationship however the defendant renounced the status of tenancy by setting up title in himself by virtue of having become the owner of the suit property through the GPA sales document executed by the deceased mother of the plaintiff therefore the defendant became a trespasser in the suit property losing protection of rent control legislation and as such the suit for possession against the defendant without impleading other LRs of Late Sh. Lacchman Dass was maintainable.
iv. The Ld. Counsel for the plaintiff further contended that even the RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.13/28 claim of ownership of the defendant qua the suit property was rejected by the then Ld. ADJ vide judgment dated 20.10.2010 passed in RCA No. 05/2010 and since the defendant did not prefer any appeal against the said judgment therefore the defendant has no right, title or interest in the suit property and as such the defendant is required to handover the possession of the suit property to the plaintiff.
v. Lastly it was contended by the Ld. Counsel for the plaintiff that the plaintiff is not required to prove absolute ownership vis-a-vis the defendant since the defendant has never disputed the ownership of the predecessor-in-interest of plaintiff and rather claimed to have derived the ownership from the mother of the plaintiff therefore the defendant is also estopped from challenging the title of the plaintiff or his predecessors-in-interest and as such the present appeal deserves to be allowed.
ARGUMENTS ON BEHALF OF THE RESPONDENT
26. Per Contra, Ld. Counsel for the respondent/defendant has supported the judgment of the Ld. Trial Court and submitted as under:
i. That the plaintiff has filed the suit seeking possession claiming his father to be an owner of the suit property and as such the plaintiff was required to prove that his father was an absolute owner of the suit property and since the plaintiff has failed to prove the same therefore the plaintiff is not entitled to seek possession from the defendant and the appeal is liable to be dismissed. ii. That admittedly there were other LRs of Late Sh. Lacchman Dass however they were not impleaded as parties to the suit and thus the RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.14/28 filed by the plaintiff against the defendant without impleading other co-owners is not maintainable and as such the suit was bad for non- joinder of necessary parties more particularly in view of the fact that the plaintiff had himself sought to implead the other LRs in the suit before the Ld. Trial Court and the said application was dismissed by the Ld. Trial Court vide order dated 02.09.2013 and since the said order was not challenged by the plaintiff therefore the suit was rightly dismissed being bad for non-joinder of necessary parties.
iii. It is also contended on behalf of the defendant that this court is also bound by the observation given by the then Ld ADJ in the judgment passed in RCA No 5/2010 qua the suit being bad for non-joinder of the necessary parties and therefore the suit was rightly dismissed by the Ld Trial Court on account of non-joinder of necessary parties. iv. Lastly, the Ld. Counsel for the defendant has contended that the suit was not valued properly for the purposes of the relief of possession in as much as since the defendant is alleged to be a trespasser therefore the plaintiff ought to have valued the suit for the relief of court-fees and jurisdiction on the market value of the suit property and should have paid ad-valorem court fees on the same and admittedly the plaintiff has valued the suit on the basis of annual rent therefore the suit was under-valued and ought to have dismissed on this count as well.
ANALYSIS AND REASONING
27. I shall first deal with the plea as whether the suit filed by the plaintiff was bad for non-joinder of necessary parties.
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.15/2828. The Ld. Counsel for the appellant/plaintiff has submitted that the plaintiff was not required to implead the other co-owners of the suit property to maintain the suit for possession against the defendant since the law in this regard is very well settled and there cannot be any estoppel against the law and in support of his submissions he relied upon following judgments which are as under:-
1. Shri Ram Pasricha vs. Jagannath, (1976) 4SCC 184.
2. Dhanna Lal vs. Kalawatibai (2002) 6SCC 16.
3. Mohinder Prasad Jain vs. Manohar Lal Jain II (2006) SLT 608.
4. Dharam Singh vs. Jagdish, AIR 2005, Himanchal Pradesh 10 and AIR 167, Mysore 143 (V54C47).
29. On the other hand, the Ld. Counsel for the respondent/defendant submitted that in the facts and circumstances of the present case the other LRs of Late Sh. Lacchman Dass were required to be impleaded in the suit being necessary parties and without them the suit was bad in law and in support of his arguments he relied upon the following judgments:-
1. Ranbir Yadav vs. LIC 253 (2018) DLT611.
2. S.K. Sattar, S.K. Mohd. Chaudhary vs. Gundappa Amabadas Bukate date of judgment 11.10.1996.
3. Temsu AO and Ors vs. Nagpenger and Ors, AIR 1994, Guwahati, 130.
30. In so as the plea relating to the proposition of law that a suit can be dismissed for non-joinder of necessary party is concerned, there cannot be any dispute with regard to the same since Order 1 Rule 9 CPC provides that a suit can be dismissed if the same is bad for non-joinder of necessary parties however before applying the said provision it has to be scrutinized that the parties, which are claimed to be the necessary RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.16/28 parties, are actually necessary or not for the adjudication of the disputes raised between the parties in the present case.
31. The Hon'ble Supreme Court of India in the case of Aliji Momonji & Co.
vs Lalji Mavji & Ors. (1996) 5 SCC 379 has led down the test to ascertain whether a party is a necessary party to suit or not. The test, whether a party is a necessary party or not, is twofold i.e. (1) where the presence of a party is necessary for complete and effectual adjudication of the disputes, though no relief is sought, he is a proper party and (2) if in the absence of the said party no effective and complete adjudication of the dispute could be made and no relief could be granted then the said party is a necessary party.
32. In the backdrop of the above it has to be seen that whether the suit, as filed by the plaintiff, the other LRs of Late Sh. Lacchman Das were required to be impleaded as a necessary party or not.
33. The law related to filing of a suit for possession by the co-owners is well settled by catena of judgments and it has been held time and again that a co-owner can maintain a suit for possession against the trespasser or a tenant without impleading other co-owners.
34. The Hon'ble Supreme Court of India way back in the year 1976 in the case of Shri Ram Pasricha vs. Jaganath (Supra) has observed as under:
"There are two reasons for our not being able to accept the above submissions. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth, at the earliest oppor-tunity. It was not done. Secondly, the relation be-tween the parties being that of RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.17/28 landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-impleadment of co-owners as such."
35. The Hon'ble Supreme Court of India in Om Prakash and Anr vs. Mishri Lal (Dead) represented by his LR (Supra) has observed as under:
"32. It is no longer res-integra and is settled by this Court in Sri Ram Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184, Dhannalal vs. Kalawatibai and Ors. (2002) 6 SCC and India Umbrella Manufacturing Co. and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.) and Ors. (2004) 3 SCC 178 that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. The judicially propounded proposition is that when the property forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto."
34. "That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.18/28 his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well- settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan vs. P. Padmavathu (1999) 7 SCC 474 and Bhogadi Kannababu and Ors. vs. Vuggina Pydamma and Others (2006) 5 SCC 53. In any view of the matter, the appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-a-vis the original defendant and the respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non- suit them for want of locus."
36. The Hon'ble High Court of Delhi in the case of Shashank Shekhar vs. Rajinder Kumar, (2016) (58) (DRJ) 459 has held that merely because the other co-owner was not impleaded as a party to the suit being the co-owner of the suit property, the suit could not be held to be not maintainable since it is well settled that as suit for ejectment/possession may be filed by any of the co-owners and it is not necessary to join as a party to such a suit.
37. Perusal of the record shows that the defendant had never challenged the suit of the plaintiff being bad for non-joinder of necessary parties as per the mandate of Order 1 Rule 13 CPC and the observation that the suit being bad non-joinder of necessary parties had been given by the then Ld. ADJ while deciding the RCA No. 05/2010 and the said observation was further relied upon by the Ld. Trial Court to dismiss the suit of the plaintiff being bad for non-joinder of necessary parties.
38. However I am unable to concur with the view taken by the Ld. Trial Court since it is settled law that a co-owner can maintain a suit for possession against the an unauthorized occupant without impleading RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.19/28 other co-owners and it is also settled law that there cannot be an estoppel against the law therefore the suit filed by the plaintiff cannot be held to be bad for non-joinder of necessary parties. The judgments relied upon by the defendant are not applicable to the facts of the present case since in the said cases the co-owners were held to be necessary party because there were disputes in between the co-owners and it is also settled law that when there is a dispute between the co- owners of a property then one co-owner cannot terminate the tenancy and take possession from the tenant unilaterally however in the present case nothing has been proved on record that there were disputes between the co-owners of Late Sh Lacchman Dass qua the suit property.
39. The other plea of the defendant supporting dismissal of the suit on the ground of it being bad for non-joinder of necessary parties was that that once the plaintiff had himself accepted the observation made by the then Ld. ADJ in RCA No. 05/2010 and moved an application under Order 1 Rule 10 CPC for impleading the other LRs of Late Sh. Lacchman Dass as a necessary party in the suit before Ld. Trial Court and when the said application was dismissed by the Ld. Trial Court and admittedly the said order was not challenged by the plaintiff and as such the said order had attained finality and therefore now the plaintiff cannot turn around and argue that the suit was not bad for non-joinder of necessary parties.
40. The aforesaid plea though appears to be impressive however the same cannot be accepted for the simple reason that once the law provides that there cannot be an estoppel against law then any observation which RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.20/28 tantamount to cause such an estoppel cannot be accepted.
41. Examining the situation from another angle, it is seen that the plaintiff, having suffered the observation of the Ld. Appellate Court, moved the application under Order 1 Rule 10 CPC before the Ld. Trial Court however para 5 and 6 of the said application is required to be taken note of and the said paras are reproduced below:-
5. "That as the suit before this Hon'ble Court is a suit for recovery of possession against tenant and though, as per law one of the co-owners can maintain a suit against tenant, yet the present application is being moved for abundant precaution.
6. That the proposed plaintiffs i.e. namely Shri Nath Raghubir and Meera, being his co-owners, are proper and necessary parties and their presence is necessary for the just disposal of the present suit."
42. A perusal of the aforesaid paras clearly show that the plaintiff has categorically stated that as per law one of the co-owners can maintain a suit against the tenant yet the present application under Order 1 Rule 10 CPC is being moved for abundant precaution therefore it cannot be said that the plaintiff had accepted unequivocally that the other co- owners/other LRs of Late Sh. Lacchman Das were necessary parties to the suit. Even otherwise if the law permits a co-owner to file a suit for possession against the tenant/unauthorized occupant without impleading the other co-owners then there cannot be any estoppel against the law and as such the suit filed by the plaintiff without impleading the other co-owners cannot be held to be bad for non- joinder of necessary parties. It shall also not be out of place to mention here that the suit filed by the plaintiff against the defendant was that for RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.21/28 possession and damages and by no stretch of imagination it can be said that without impleading the other co-owners of the suit property no effective order/adjudication can be done in the present case and even as per the test led down in the case of Aliji Momonji (Supra) for determining as to who is the necessary party then it can be safely held that the other co-owners of a property are not required to be impleaded in a suit for possession as a necessary party since an effective order of possession and damages can be passed in the absence of such co- owners and at best the other co-owners could only be a proper party and a suit is not bad for not impleading proper parties.
43. Lastly it has been contented by the Ld. Counsel for the respondent that since the then Ld ADJ, in the judgment passed in RCA No. 05/2010, had already observed that the suit filed by the appellant was bad for non-joinder of necessary parties and thus the said observation, which is in the nature of a finding, is binding on this Court and therefore the suit was rightly dismissed by the Ld. Trial Court being bad for non-joinder of necessary party.
44. The aforesaid plea of the Ld. Counsel for the defendant is also not tenable since it has already been noted above that the defendant has not taken the objections of non-joinder of necessary party in his written statement filed before the Ld. Trial Court and the said observation had been given by the then Ld. ADJ while deciding the RCA No. 05/2010 and thereafter the matter was remanding back to the Ld. Trial Court for deciding the matter afresh and thereafter the impugned judgment came to be passed against which the present appeal, which is also a first appeal, has been filed by the plaintiff therefore in my considered view RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.22/28 the observation given the then Ld. ADJ in RCA No. 05/2010 qua the suit being bad for non-joinder of necessary parties in not binding upon this Court since this court is also exercising its powers as the first appellate court over the judgment passed by the Ld. Trial Court.
45. Now I shall deal with the other contention as to whether the plaintiff has proved the ownership and thus entitled to a decree of possession against the defendant.
46. Perusal of the record shows that before filing of the suit the plaintiff had issued legal notice to the defendant directing him to vacate and handover the possession of the suit property since the defendant was in arrears of rent however the defendant though admitted to have been inducted as a tenant by the father of the plaintiff but he set-up title in himself and replied to the said notice by claiming to be the owner of the suit property having purchased the same from the mother of the plaintiff by way of GPA sales documents and since the defendant had set-up title in himself therefore the suit for possession was filed against the defendant as a defendant had lost protection under the Delhi Rent Control Act despite the fact that the monthly rent was less that Rs. 3500/-.
47. The Hon'ble High Court of Delhi in the case of S. Makhan Singh vs Amarjeet Bali 2008 (106) DRJ 705 has held that where a tenant refuses the title of the landlord and claims title in himself he ceases to be the tenant in the eyes of law and the protection of Delhi Rent Control legislation is not available to him.
48. In a suit between a landlord and tenant the issue of title is not relevant and a landlord is required to show a better title than the tenant. The RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.23/28 concept of absolute ownership comes when two parties set-up their respective titles rival to each other in respect of the suit property whereas in a landlord-tenant relationship the ownership of the suit property is immaterial since a person can be a landlord of the premises without being the owner of the same.
49. In the present case the defendant has never disputed the landlord-tenant relationship nor has he ever disputed the ownership rights of the father of the plaintiff and rather the whole case of the defendant was that the defendant had become the owner of the suit property by virtue of the GPA sales documents executed by the mother of the plaintiff in his favor. Though the plaintiff has led additional evidence in the present appeal to prove that the father of the plaintiff was the owner of the suit property, which he was unable to prove, since it has come on record that the suit property was given to the father of the plaintiff by the Ministry of Rehabilitation and the father of the plaintiff had been paying the necessary charges to the concerned authority and later on to the MCD in the form of house tax and all the said receipts which have been duly proved on record show that the father of the plaintiff was himself a tenant under the Ministry of Rehabilitation. However the defendant cannot be allowed to take advantage of the same since the defendant has never disputed the ownership of the father of the plaintiff and rather the defendant has admitted to have been a tenant of the father of the plaintiff and later on he had set up title in himself only through the mother of the plaintiff which clearly shows that the defendant had always considered the predecessors-in-interest of the plaintiff to be the owner of the suit property and therefore in the opinion of this court no further evidence was required to be led by the RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.24/28 plaintiff to prove his ownership vis-a-vis the defendant since it is settled law that admitted facts need not be proved.
50. It shall also be imperative to note here that even during the time of cross-examination of the PW-1 before this Court, as already noted in para 23 above, the Ld. Counsel for the defendant had categorically put a question to the PW-1 to suggest that the mother of the plaintiff was the absolute owner of the suit property however the said question was disallowed. Under these circumstances once the defendant has throughout set-up his case on the basis of a derivative title having been derived from the predecessor-in-interest of the plaintiff only therefore the defendant is estopped from challenging the title of plaintiff qua the suit property vis-à-vis himself and as such the plaintiff was not required to prove absolute ownership in respect of the suit property vis-à-vis the defendant since the defendant cannot be allowed to approbate and reprobate so as to take advantage of his own wrongs by continuing the possession of the suit property without having any right, title or interest in the same. The defendant having admitted the landlord-tenant relationship between himself and predecessor-in-interest of the plaintiff and later set-up title in himself that too from the predecessor-in-interest of the plaintiff only and once the said title has been rejected to be not a valid title then the only natural and legal corollary is that that the defendant is an unauthorized occupant in the suit property and the defendant having lost the protection of rent control legislation cannot be allowed to retain the possession of the suit property.
51. In so far as the plea of the defendant that the plaintiff has not valued the suit properly for the purposes of court-fees as the same ought to have RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.25/28 been valued at the market rate and ad-valorem court fee should have been paid is concerned, even the plea is not tenable in the eyes of law. In the case of S. Makhan Singh (supra), it has been held that where a tenant continues to be in occupation after he repudiates the title of the landlord then lease comes to an end by operation of law because of the repudiation of title and the landlord/owner can file a suit for possession in Civil Court and the valuation of the said suit has to be on the basis of annual rent in view of Section 7 (xi) (cc) of the Court Fee Act. It is also relevant to mention here that the onus to prove the issue relating to the suit being not properly valued was on the defendant however the defendant has not led any positive evidence to prove the said issue. In view of the same, this plea of the defendant is also liable to be rejected.
52. The plaintiff in his suit has also claimed damages to the tune of Rs.
54,000/- for the period of last 3 years prior to the filing of the suit and towards future damages at the rate of Rs. 1,500/- per month which was the last paid rent. Though the defendant has disputed the rate of rent to be Rs 1,500/- per month however in the cross-examination of PW- 1/plaintiff conducted on 15.07.2003 before the Ld Trial Court, the PW- 1/plaintiff had categorically stated that as on that date the suit property could easily fetch Rs 4,000/- per month. Even the PW-3 in his cross- examination conducted on 20.08.2004 before the Ld Trial Court had categorically deposed that the rate of rent was Rs 1,500/- per month however no suggestion was given by the defendant to the said witnesses qua the fact that rate of rent was not Rs 1,500/- per month. It has also been duly proved on record that the defendant has not paid any rent to the plaintiff after 26.05.1992 since from the said date the defendant has claimed to have become the owner of the suit property.
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.26/28Therefore keeping in mind the aforesaid the interest of justice would be served if the plaintiff is awarded damages of Rs. 54,000/- for a period of 3 years prior to the institution of the suit and the ends of justice would also be met if the plaintiff is awarded damages at the rate of Rs. 1,500/- per month w.e.f. the date of filing of the suit till actual, physical and vacant possession of the suit property is handed over to the Appellant/plaintiff.
53. In view of the above discussion and reasoning, the judgment and decree dated 29.10.2013 passed by the Ld. Trial Court is hereby set aside and the appeal filed by the appellant is allowed and consequently the suit filed by the appellant is hereby decreed in the following manner:
1. A decree of possession is hereby passed in favor of the appellant/plaintiff against the respondent/defendant in respect of the suit property forming part of property bearing no. 6612, Neemwala Chowk, Nabi Karim, New Delhi as shown in red colour in the site plan Ex PW1/1.
2. A decree of Rs. 54,000/- damages is also passed in favor of the appellant/plaintiff and against the respondent/defendant and the defendant is directed to pay damages at rate of Rs.
1500/- per month to the plaintiff from the date of institution of the suit till the handing over of the possession.
3. A decree of damages is also hereby passed in favor of the appellant/plaintiff and against the respondent/defendant at rate of Rs. 1,500/- per month for the use and unauthorized occupation of the suit property to the plaintiff from the date of institution of the suit till actual, physical and vacant possession of the suit property is handed over to the RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.27/28 Appellant/plaintiff.
54. The parties are left to bear their own costs.
55. Appellate decree sheet be prepared accordingly after deposit/furnishing of the deficient court fees on the quantum of damages as awarded hereinabove.
56. Trial Court Record be sent back and alongwith copy of this judgment.
57. Appeal file be consigned to Record Room after due compliance.
Pronounced in the Open Court (AJAY GULATI-II)
(Judgment contains 28 pages) ADJ-01(Central)/THC
Delhi/12.01.2023
RCA No. 61428/16 Jagdish Chander vs. Tasleem Page No.28/28