Delhi District Court
Sh. Rattan Lal Sharma vs Smt. Kamlesh on 23 December, 2014
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 90/12
ID No. 02401C0137512008
Sh. Rattan Lal Sharma
S/o late Sh. Bhim Singh
R/o Building No. 14/13,
Mansa Ram Building,
Yusuf Sarai, New Delhi. ............. plaintiff
vs.
Smt. Kamlesh
D/o late Sh. Chandan Singh
R/o Builing No. 14, 1st Floor,
Yusuf Sarai, New Delhi. ............. defendant
Date of Institution of Suit : 31012008
Date of reserve for judgment : 13082014
Date of announcement of Judgment : 23122014
SUIT FOR PERMANENT & MANDATORY INJUNCTION AND POSSESSION
Judgment :
1.Initially the suit was filed for the permanent and maandatory injunction but later on it was amended to the suit for permanent and mandatory injunction and for possession.
2. The brief facts as per averments of the plaint, are that the building no. 14, Yusuf Sarai, New Delhi in which the tenanted premises bearing no. 14/13, Suit No. 90/12 1/16 Rattan Lal Sharma vs Kamlesh Yusuf Sarai, New Delhi is situated, was in the joint ownership of Sh. Mansa Ram and Hargobind. That father of the plaintiff namely Sh. Bhim Singh was the tenant in one room, varandah, kitchen and bathroom situated on the ground floor at a monthly rent of Rs.120/ excluding all other charges since last 35 years, as shown in red colour in the site plan. That after death of Mansa Ram, the plaintiff started paying rent to Sh. Chandan Singh being LRs and son of Sh. Mansa Ram since 03 101978 @ Rs.120/ p.m. That thereafter, Sh. Chandan singh also expired and then Sh. Avtar Singh being one of the coowners and LRs of late Sh. Mansa Ram started claiming half of the rent from the plaintiff and the plaintiff started paying half rent i.e. Rs.60/ per month to Sh. Avtar Singh w.e.f. 01102005 to 30062006. That now the defendant who is one of the coowner and landlord of the tenanted premises being LR of Sh. Chandan Singh is harassing, torturing and putting pressure and adopting all means to get possession from the plaintiff. That in the evening of 27012008 at about 5 p.m., when the plaintiff was present in his tenanted premises came alongwith his brotherinlaw namely Sh. Satbir alongwith two labourers and started raising wall at point A to B shown yellow in site plan and as the said wall was illegal, so the plaintiff requested the defendant not to restrain his entry in the tenanted premises but the defendant and his associates did not pay any heed to the request of the plaintiff and continued to raise the said wall. That the plaintiff, thereafter, immediately lodged a complaint to the SHO, Hauz Khas, New Delhi on 28012008 but the police officials did not take any action against the Suit No. 90/12 2/16 Rattan Lal Sharma vs Kamlesh defendant and his associates on the ground that the same is a civil dispute. That on 29012008 at about 11 a.m. when the plaintiff went to his tenanted premises, he found that the defendant alongwith his brotherinlaw namely Satbir and other associates were present their and threatened to vacate the premises and they started throwing goods from the tenanted premises. However, the defendant and his associates could not succeed in getting the possession from the plaintiff but while going back they threatened the plaintiff that if he would not vacate the tenanted premises, then the defendant knows how to get possession from him. Thereafter, the plaintiff again went to the police station but the police officials did not take any action against the defendant and his associates. That the defendant having raised the wall from point A to B shown in yellow in the site plan had completely locked and restrained the entry of the plaintiff to his tenanted premises as there is no other way or gate etc. That on 30012008, the plaintiff in the morning at about 10 a.m. again requested the defendant to remove the said wall and provide the space so that he may enter in his tenanted premises but the defendant again threatened him. That the defendant had illegally and unlawfully removed the entire household goods and belongings of the plaintiff from the tenanted premises during the pendency of the case and he came to know about the said illegal act on 11022008 at about 7 a.m.. That the plaintiff prayed for a decree of permanent injunction restraining the defendant from demolishing or making any structural change in the tenanted premises or from transferring, Suit No. 90/12 3/16 Rattan Lal Sharma vs Kamlesh alienating or otherwise creating 3rd party interest in the tenanted premises as shown in red colour in the site plan and also prayed for a decree of mandatory injunction directing the defendant to remove/ demolish the entire wall mark A to B as shown yellow in the site plan of the tenanted premises which is shown in red colour in site plan of the property no. 14/13, Yusuf Sarai, New Delhi and to provide clear entrance to the plaintiff to his tenanted premises.
3. WS filed on behalf of the defendant wherein in preliminary objections, it is stated that the suit of the plaintiff is absolutely false, frivolous and motivated as he had surrendered and abandoned the possession of premises more then 7 years back and now his intentions have become malafide and with his dishonest and malafide intentions to extract money from the defendant illegally, he has filed the present suit on false and fabricated allegations. That the suit of the plaintiff is legally not maintainable as there is no privity of contact between the parties and there is no relationship of landlord and tenant between them and the defendant had never seen the plaintiff in possession of the suit premises and the entire suit premises is in physical possession of the defendant. That there exists no relationship of landlord and tenant between the LRs of late Sh. Mansa Ram and his Son's LRs and plaintiff had never paid any rent to them and the alleged receipt nos. 305307 have been fraudulently obtained by him through unlawful means and he is permanent resident of 29, Jia Sarai, Hauz Khas, New Delhi since prior to the year 2000. The site plan filed by the plaintiff is false and fabricated, however, the Suit No. 90/12 4/16 Rattan Lal Sharma vs Kamlesh same is in accordance with the actual site and the portion shown in red colour was never in possession of the plaintiff and he was allegedly in occupation of only one room, which he had already surrendered and vacated long back.
4. On merits, it is admitted by the defendant that Sh. Mansa Ram was her grandfather and he was owner of the suit property. It is further stated that Sh. Avtar Singh had no right to claim rent from the plaintiff and the alleged dealings between him and Sh. Avtar singh are malafide. Other averments of the plaint have been denied as wrong.
5. Replication filed on behalf of the plaintiff wherein averments of the WS have been denied and averments of the plaint are reiterated and reaffirmed.
6. From the pleadings of the parties, following issues were framed vide order dated 15112011:
1. Whether the plaintiff surrendered and abandoned his possession of premises to the defendant seven years back from the date of written statement? OPD
2. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
3. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for? OPP
4. Whether the plaintiff is entitled for a decree of possession, as prayed for?OPP
5. Relief.
7. To substantiate his case, the plaintiff filed and tendered his affidavit in evidence and he has been crossexamined on behalf of the defendant. PW2 HC Suit No. 90/12 5/16 Rattan Lal Sharma vs Kamlesh Ram Narain, Sh. Radhey ShayamPW3, PW4Ashok Kumar, PW5 ASI Ravinder Kumar, PW6Nand Kishore and PW7Raghubir Singh were also examined by the defendant and they all were crossexamined on behalf of the defendant. No other evidence has been led on behalf of the plaintiff.
8. To prove her case, the defendant filed and tendered her affidavit in evidence and she has been crossexamined on behalf of the plaintiff. Sh. Satbir Singh DW2 and DW3Sh. Gian Singh were also examined on behalf of the defendant and they were crossexamined on behalf of the plaintiff. No other evidence has been led on behalf of the defendant.
9. I heard final arguments of ld. counsel for both the parties. Written arguments filed on behalf of both the parties.
10. I considered the submissions of ld. counsel for both the parties, written arguments filed on their behalf and evidence on record. My issuewise findings are as under :
Findings on issue no. 1 : Whether the plaintiff surrendered and abandoned his possession of premises to the defendant seven years back from the date of written statement? OPD
11. The onus of proving this issue was fixed upon the defendant. The defendant has to prove that the plaintiff had surrendered and abandoned his possession in the suit premises to the defendant seven years back from the date of filing of the WS. The WS was filed by the defendant on 05042010 wherein the Suit No. 90/12 6/16 Rattan Lal Sharma vs Kamlesh defendant has taken plea that the plaintiff had already surrendered and abandoned the possession of the tenanted premises more than seven years back, thereby the defendant has to prove that the plaintiff had surrendered and abandoned the possession of the premises under his occupation prior to April, 2003. DW1Smt. Kamlesh has stated in para 4 of her affidavit that the plaintiff has been permanently residing in house No. 29, Jia Sarai, Hauz Khas, New Delhi alongwith all his family members since prior to 2000 and has never resided in the suit premises for the last more than 15 years. She has further stated in the said para that he had already surrendered and abandoned the possession of the suit premises more than 7 years prior to filing of the suit as per information received and gathered by her from her father. The plaintiff has claimed that he had never surrendered and abandoned possession of the suit premises and has been dispossessed illegally and unauthorizedly by the defendant. During crossexamination, DW1 has stated that "my father had issued rent receipts to the plaintiff and the plaintiff had paid rent upto 30062000". She has further stated that "no written deed of surrender was executed between the plaintiff and my father regarding surrender of tenanted premises and no written document was prepared for surrender of the possession of the tenanted premises". She has further stated that "my father had not written any letter to House Tax Department for getting the House Tax reduced on the ground that the tenant has left out the tenanted premises".
Suit No. 90/12 7/16
Rattan Lal Sharma vs Kamlesh
12. Ld. counsel for the plaintiff has cited case law namely Veeran Devi plaintiff vs. S. Subhashdefendant, reported as 160 (2009) DLT 171, wherein it has been held that :
"abandonment of tenancy does not end landlord tenant relationship. The tenancy agreement is bilateral and tenancy rights can be surrendered by a bilateral agreement which may be expressed and implied. The abandonment of tenancy being a unilateral act does not result in surrender of tenancy and a tenant is liable to pay rent till there is surrender of tenancy which brings the landlord tenant relationship to an end".
13. It is clear that as per ratio of judgment Veeran Deviplaintiff vs. S. Subhashdefendant (supra), the tenancy rights can be surrendered by bilateral agreement which might be implied. In the present case, it is the defence of the defendant that the tenancy rights were surrendered by the plaintiff by a bilateral agreement which was implied and it is not the defence of the defendant that any document was executed in respect of surrender of tenancy rights by the plaintiff and it was only because of the conduct of the plaintiff, the defendant had inferred that he had surrendered his tenancy rights in the premises prior to April, 2003.
14. By the testimony of PW2, only it has been proved that traffic challan/ notice no. 11471399 under Section 133 of the Motor Vehicle Act was issued regarding vehicle no. DL4CF4548 which was issued on 14122006 Ex. PW2/1 for defective number plate. It has already been proved by PW2 that the said traffic challan was never attended and fine was never paid by the plaintiff which was later Suit No. 90/12 8/16 Rattan Lal Sharma vs Kamlesh on consigned to the record room by the Hon'ble Court. It shows that this notice was never received by the plaintiff. Had it been received by the plaintiff at the address in the challan, he must have approached to the concerned court for either contesting it or admit his guilt and payment of fine. It would have been disposed off at the instance of the plaintiff. Therefore, the testimony of PW2 is only to the effect that the challan was issued at 14/13 Yusuf Sarai, New Delhi on the basis of the address of the plaintiff in the RC of the vehicle. Therefore, it could not be proved by the traffic challan issued by the traffic police at the address 14/13 Yusuf Sarai, New Delhi that the plaintiff was in possession of the tenanted premises on the date of issuing of challan i.e. 14122006.
15. The plaintiff has also filed photocopies of pass books of chit nos. UTVII (47)07 Ex. PW1/10 and UTVII (51) 07 Ex. PW1/11, where the address of the suit property has been mentioned. It is submitted by the ld. Counsel for the plaintiff that since the address of the plaintiff has been mentioned in the pass books Ex. PW1/10 and Ex. PW1/11, it shows that he was in possession of the suit property. These pass books are regarding chits of the plaintiff with Upkar Trading (India) Chit Fund Private Limited. No witness has been examined from Upkar Trading (India) Chit Fund Private Limited to prove that Chit No. UTVII (47) 07 had initially started from 24102005. The address of the plaintiff has been mentioned in the pass books issued regarding chits from his previous address given with Upkar Trading (India) Chit Fund Private Limited. The plaintiff has not stated in his Suit No. 90/12 9/16 Rattan Lal Sharma vs Kamlesh affidavit that when he had initially started chit with Upkar Trading (India) Chit Fund Private Limited, previous address of the plaintiff has been mentioned in the pass books of the chits. Therefore, it has not been proved that the plaintiff was in possession of the suit property in the year 2005 or in the year 2006 when these chits again started by the plaintiff.
16. The plaintiff has filed photocopy of envelop Ex. PW1/9 which was sent by Dr. Yoganand Shashtri, then Health and Social Welfare Minister, Delhi Government on his address i.e. 14/13, Yusuf Sarai, New Delhi to prove that he was in possession of the said property on 03012008. It has not been proved by the plaintiff that the envelop Ex. PW1/9 was sent by Dr. Yoganand Shashtri, then Health and Social Welfare Minister, Delhi Government on his address i.e. 114/13 Yusuf Sarai, New Delhi as neither Dr. Yoganand Shashtri nor any other person examined to prove that this envelop allegedly written by him. Therefore, this letter does not prove that the plaintiff was in possession of the suit property on the date when this letter was allegedly sent.
17. Ex. PW1/2 to Ex. PW1/6 are income tax return filed by the plaintiff with the Income Tax Department for the period 20012002 to 20072008 in which address of the plaintiff has been mentioned as the address of the suit property. The plaintiff has not filed income tax return after his alleged dispossession from the suit property to prove that he had changed his address in the income tax return from 14/13, Yusuf Sarai, New Delhi to his new address. Since, the plaintiff has Suit No. 90/12 10/16 Rattan Lal Sharma vs Kamlesh mentioned his address of suit property in income tax return when he had started filing income tax return as he was residing at that time in the suit property as per Ex. PW1/2 and the said address remained continued to have mentioned in his income tax return filed later on. Therefore, I am of the view that showing address of the suit property in the income tax return does not prove that the plaintiff was in possession of the suit property.
18. The documents Ex. PW1/7 is transfer RC of the vehicle DL4CF 4548 which was transferred in the name of the plaintiff on 10122003 which shows that he was in possession of the suit property on 10122013. I am of the view that the vehicle was transferred in the name of the plaintiff by giving documents showing that he was residing at the given address. No document has been produced by the plaintiff to show that vehicle was transferred on 10122003 verifying the fact that he was in possession of the suit property on 10122003. Therefore, it can not be proved by the document Ex. PW1/7 that he was in possession of the suit property on 10122003.
19. The plaintiff has filed copy of NDMC Pension Book and copy of Identity Card to prove that he was in possession of the suit property till he was dispossessed. On perusal of photocopies of Pension Book and Identity Card, it is observed that the Pension Book was prepared on 27092000 in which the address of the plaintiff has been shown as 14/13 Yusuf Sarai, New Delhi and the Identity Card is dated 01102000 in which the address of the plaintiff has been shown as Suit No. 90/12 11/16 Rattan Lal Sharma vs Kamlesh 14/13 Yusuf Sarai, New Delhi - 16. By way of these documents, the plaintiff has only proved that his address upto 01102000 was of the suit property and these documents did not prove that he was in possession of the suit property after 0110 2000 and therefore, these documents do not prove that the plaintiff was in possession of the suit property after 01102000. Therefore, these documents can not disprove the plea of the defendant that the plaintiff has abandoned the suit property in the year 2003.
20. It is stated by PW3 Radhey Shyam that the plaintiff got changed his address from 14/13 Yusuf Sarai, New Delh16 to 29, Village Jia Sarai, Near IIT Hauz Khas, New Delhi on 21102008 on the basis of electricity bill but he has not produced any document to prove that the address of the plaintiff was changed on 21102008.
21. The plaintiff has claimed that Sh. Avtar Singh, being one of the co owners and legal heirs of late Sh. Mansa Ram started claiming half of the rent from the plaintiff and the plaintiff started paying half of the monthly rent @ Rs.60/ out of enhanced rate of Rs.120/ per month to the said Sh. Avtar Singh and duly paid the same to him w.e.f. 01102005 to 30062006 amounting to Rs.540/ against receipt. He has relied upon counter foils of the rent receipts of the rent for proving that he had paid rent to Sh. Avtar Singh and Sh. Chandan Singh. The plaintiff has not examined Sh. Avtar Singh to prove the fact that he had received ½ of monthly rent @ Rs.60/ and paid Rs.540/ against receipt w.e.f. 01102005 to 30062006 Suit No. 90/12 12/16 Rattan Lal Sharma vs Kamlesh and as such the photocopies of Ex. PW1/16 to Ex. PW1/21 have not been proved by the plaintiff by examining the said Sh. Avtar Singh and therefore, documents Ex. PW1/16 to Ex. PW1/21 can not be considered in evidence.
22. In view of the above discussions and reasons therein, it is held that the plaintiff has failed to prove that he was in possession of the suit property after 2000 onwards as such it is held that the plaintiff had surrendered / abandoned his possession of the tenanted premises to the defendant about seven years back from the date of filing of the WS in this case. This issue is decided accordingly. Findings on issue no. 2 : Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
23. The onus of proving this issue was fixed upon the plaintiff. The plaintiff has prayed in respect of relief of permanent injunction that the defendant be restrained from demolishing/ making any structural change in the tenanted premises or from transferring, alienating or otherwise creating any 3 rd party interest in the tenanted premises shown as red colour in the site plan enclosed with the plaint. It is the case of the plaintiff that he was tenant in respect of one room, varandah, kitchen and both room situated on the ground floor of the property bearing no. 14/13, Yusuf Sarai, New Delhi as shown in site plan attached with the plaint, however, the defendant has denied it and stated that the plaintiff was tenant only in respect of one room on the ground floor of the property bearing no. 14/13, Yusuf Sarai, New Delhi and the site plan attached with the plaint is not correct. It is Suit No. 90/12 13/16 Rattan Lal Sharma vs Kamlesh claimed by the plaintiff that the defendant started raising wall on 27012008 at point 'A' to 'B' as shown in yellow colour in the site plan enclosed in order to restrain the entry of the plaintiff to the tenanted premises and in spite of the resistance raised by the plaintiff, the defendant raised the wall and the said wall was duly completed on 29012008 and as such restrained the entry to the tenanted premises of the plaintiff. Therefore, I am of the view that the relief of permanent injunction to the effect that the defendant be restrained from demolishing and making any structural change in the tenanted premises has been raised without any cause of action. On the other hand, it is stated by the defendant that the plaintiff has created a story that the defendant had raised wall on point 'A' to 'B' as shown in site plan and the said wall was completed on 29012008. It is stated that the said wall was already there for the last many years.
24. I perused the affidavit of the plaintiff tendered in evidence and it is observed that the plaintiff has nowhere stated in his affidavit that the defendant had tried at any point of time to demolish or make any structural change in the tenanted premises. Since the plaintiff is tenant in the suit premises and the defendant being one of the coowners can not be directed not to transfer, alienate or create 3 rd party interest in the tenanted premises. Therefore, the plaintiff is not entitled the relief of restraining the defendant from transferring, alienating or otherwise creating any 3 rd party interest in the tenanted premises as shown in the site plan enclosed with the plaintiff.
Suit No. 90/12 14/16
Rattan Lal Sharma vs Kamlesh
25. In view of my findings as above, this issue is decided against the plaintiff.
Findings on issue no. 3 : Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for? OPP
26. The onus of proving this issue was fixed upon the plaintiff. The plaintiff has prayed that a decree of mandatory injunction may kindly be passed in his favour directing the defendant to remove/ demolish the entire wall mark 'A' to 'B' as shown in yellow colour in the site plan attached with the plaint and to provide clear entrance to him to his tenanted premises. Since in view of my findings on issue no. 1, the plaintiff had surrendered and abandoned the possession of tenanted premises to the defendant about seven years back from the date of filing of the WS in this case, therefore, he is not entitled for relief of mandatory injunction, as prayed for. This issue is decided against the plaintiff. Findings on issue no. 4 : Whether the plaintiff is entitled for a decree of possession, as prayed for?OPP
27. The onus of proving this issue was fixed upon the plaintiff. The plaintiff has prayed for a decree of possession/ mandatory injunction in his favour directing the defendant to restore / hand over the physical possession of the suit premises/ tenanted premises to him as shown in red colour in the site plan attached with the plaint to provide clear entrance to him to his tenanted premises. Suit No. 90/12 15/16
Rattan Lal Sharma vs Kamlesh Since in view of my findings on issue no. 1, the plaintiff had abandoned and surrendered the possession of tenanted premises to the defendant about seven years back from the date of filing of the WS in this case. Therefore, the plaintiff is not entitled for the relief of possession/ mandatory injunction and restoration / handing over the physical possession of the suit premises, as prayed for. This issue is decided accordingly.
Relief
28. In view of my findings on all the issues as above, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced in the open court on the 23rd day of December, 2014 (CHANDRA BOSE) Civil JudgeSenior Division Central District, Delhi.
Suit No. 90/12 16/16
Rattan Lal Sharma vs Kamlesh