Delhi District Court
Mst. Shahida Begum (Widow) vs Hazi Nizam Ahmed on 23 July, 2011
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII, (NORTHWEST), ROHINI COURTS,
DELHI
CS No. 814/10
Haji Abdul Ghani
S/o Late Haji Hafiz Nooruddin
(Deceased Through his LR's)
1. Mst. Shahida Begum (Widow)
2. Shehzad Abdul Sami (Son)
3. Nawab Abdul Hannan (Son)
4. Mst. Rani Yusuf (married daughter)
5. Feroz Ghani (son)
6. Imran Ghani (son)
All residents of :
M/s Abdul Ghani & Sons
C58, New Subzi Mandi,
Azadpur, Delhi110033. .......Plaintiffs
Versus
Hazi Nizam Ahmed
S/o Haji Idris
C55, New Subzi Mandi,
Azad Pur, Delhi110033. ........Defendant
CS No. 814/10 & 815/10 Page No. 1 of 51
Date of Institution the suit : 02.03.2010
Date on which the order was reserved : 19.07.2011
Date of decision : 23.07.2011
CS No. 815/10
Hazi Nizam Ahmed
S/o Haji Idris
C55, New Subzi Mandi,
Azad Pur, Delhi110033. ........Plaintiff
Versus
Haji Abdul Ghani
S/o Late Haji Hafiz Nooruddin
(Deceased Through his LR's)
1. Mst. Shahida Begum (Widow)
2. Shehzad Abdul Sami (Son)
3. Nawab Abdul Hannan (Son)
4. Mst. Rani Yusuf (married daughter)
5. Feroz Ghani (son)
6. Imran Ghani (son)
All residents of :
M/s Abdul Ghani & Sons
C58, New Subzi Mandi,
Azadpur, Delhi110033. .......Defendants
CS No. 814/10 & 815/10 Page No. 2 of 51
Date of Institution the suit : 02.03.2010
Date on which the order was reserved : 19.07.2011
Date of decision : 23.07.2011
JUDGMENT
1. Vide this common judgment, I shall dispose off the two cross suits in between the same parties and involving the same issues. First of all, I would like to mention here that both the above said suits were consolidated together to be tried by the same court vide orders dated 17.05.2010 passed by the Hon'ble High Court of Delhi and thereafter, vide order dated 18.04.2011, both the suit were consolidated for the purposes of evidence as well. One of the suits is bearing suit no. 814/10 titled as Haji Abdul Ghani Vs. Haji Nizam Ahmed which is a suit for recovery of possession with mesne profits/damages for unauthorized use and occupation of the suit property and the other suit is CS No. 814/10 & 815/10 Page No. 3 of 51 bearing Suit no. 815/10 titled as Haji Nizam Ahmed Vs. Haji Abdul Ghani which is a suit for declaration, perpetual and permanent injunctions.
SUIT NO. 814/10:
2. Now coming to the plaint in suit no. 814/10 titled as Haji Abdul Ghani Vs. Haji Nizam Ahmed which is a suit for possession, recovery of the damages, the plaintiff has averred that he is the sole and absolute owner and in possession of the shop bearing no. C58, New Subzi Mandi, Azadpur, Delhi comprising of basement, ground floor and the first floor allotted by the DDA to the plaintiff. It has been alleged that defendant is at present in unauthorized use and occupation of the entire basement and 60% portion of the ground floor of the said shop (hereinafter called the suit property). It has been further stated that at present the plaintiff is in exclusive possession CS No. 814/10 & 815/10 Page No. 4 of 51 of 40% of the ground floor, the entire fist floor and above of the suit shop. It has been further stated that the plaintiff is aged about 75 years, remains ill and on account of the old age, he has authorized his son Shehzad to use the said shop for doing the business of fruit selling in New Sabzimandi, having licence no. B4112 issued by APMC. It has been further stated that the defendant was allowed by the plaintiff to use the public space in front of the said shop and he had assured the plaintiff that he will stop using the said public space in front of the said shop as and when asked by the plaintiff. It has been alleged by the plaintiff that the defendant did not stop the using of the said public space at the asking of the plaintiff and rather illegally trespassed in less than 1/3 portion in basement on 18.04.2009 as well as in less than 1/3 portion on ground floor of the shop and the defendant's also put his fruits on CS No. 814/10 & 815/10 Page No. 5 of 51 the suit shop in the intervening nights of 18.04.2009 and 19.04.2009 and since then, the defendant has illegally occupied the suit shop and his status is that of a trespasser. It has been further stated that the defendant has also filed a false and frivolous suit for declaration and permanent injunction claiming himself to be the tenant under the alleged oral agreement. It has been further stated that the defendant has already shop allotted in the name of Nizam Ahamd Islamuddin and brothers bearing no. C55, New Sabzimandi, Delhi but even then, he is unauthorizedly occupying the suit shop. It has been further stated that after passing of the orders dated 16.12.2009, in the appeal filed by the plaintiff against the interim orders, the defendant has further illegally and unauthorizedly extended his illegal possession in the entire basement and 60% portion on the ground floor. It has been further stated CS No. 814/10 & 815/10 Page No. 6 of 51 that the defendant is liable to pay damages @ Rs. 50,000/ per month from 18.04.2009 for the illegal use and occupation of the suit shop.
3. On the basis of the above said allegations as contained in the plaint, the plaintiff has prayed for a decree of possession in his favour and against the defendant thereby directing the defendant to hand over the physical possession of the entire basement and 60% portion on ground floor of the said shop as shown in red colour in the site plan annexed with the plaint to the plaintiff. The plaintiff has also prayed for a decree of damages @ Rs. 50,000/ per month w.e.f. 18.04.2009 till February 2010 and the future damages as well @ Rs. 50,000/ per month along with the interest @ 18% per annum till the date of handing over of the physical possession of the suit shop along with the costs of the suit.
CS No. 814/10 & 815/10 Page No. 7 of 51
4. Written statement has been filed on record by the defendant stating therein that the present suit is barred by Section 50 of the DRC Act because the defendant is the tenant under the plaintiff at the rate of Rs. 2000/ per month in respect of the entire basement and half ground floor portion with the right to use the toilet on the terrace and the terrace of the said shop. It has been further stated that the suit shop was let out by the defendant to the plaintiff in August 1998 w.e.f. 01.08.1998. It has been further stated that the present suit is counter blast to the suit filed by the defendant herein bearing Suit no. 815/10. The defendant has admitted that the plaintiff is the sole and absolute owner of the said shop and that the plaintiff is 75 years of age. It has been further stated that shop no. C55, New Subzi Mandi has been allotted to the partnership of Nizam Ahmed Islamuddin of which the defendant is one of the CS No. 814/10 & 815/10 Page No. 8 of 51 partners. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
5. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
6. From the pleadings of the parties, vide order dated 15.09.2010, the following issues were framed: i. Whether the suit is barred under Section 50 of the DRC Act as alleged?OPD ii. Whether the plaintiff had let out half portion of ground floor, entire basement with right to use the toilet on terrace and terrace of the suit premises on a monthly rent of Rs. 2000/ as alleged and to what effect?OPD iii. Whether the defendant is in unauthorized occupation of CS No. 814/10 & 815/10 Page No. 9 of 51 basement and 60% of ground floor of shop no. C58, as alleged in para no. 1 of the plaint?OPP iv. Whether the plaintiff is entitled to decree of possession as prayed? OPP v. Whether the plaintiff is entitled to damages from defendant? If so, at what rate, which period and to what amount?OPP vi. Relief, if any.
SUIT NO. 815/10:
7. The defendant in suit no. 814/10 is the plaintiff in the present suit bearing no. 815/10. As stated herein above, the present suit is a suit for declaration, perpetual and mandatory injunctions. The averments of the written statement in the other suit mentioned herein above bearing suit no 814/10 constitute the averments of the plaint in the present suit. In the present suit the plaintiff has stated that CS No. 814/10 & 815/10 Page No. 10 of 51 the tenancy was oral w.e.f. 01.08.1998 at the rate of Rs. 2000/ per month and the plaintiff has paid the rent till the month of 31.03.2009 and the plaintiff has also paid the electricity and water charges. It has been further stated that for the past two days, the defendant has started demanding the plaintiff to quit and surrender the physical possession of the above mentioned accommodation. The plaintiff has prayed for a decree of declaration in respect of the portion of shop no. C58, as shown in red colour in the site plan annexed with the plaint, holding that there exist the relationship of landlord and tenant in between the plaintiff and the defendant as mentioned in para no. 1 of the plaint. The plaintiff has also prayed for a decree of perpetual injunction restraining the defendant and his associates from dispossessing the plaintiff from the portion shown in red colour in the site plan annexed with the plaint. The plaintiff CS No. 814/10 & 815/10 Page No. 11 of 51 has also prayed for a decree of mandatory injunction directing the defendant to issue a proper rent receipt at the rate of Rs. 2000/ per month after taking the rent from the plaintiff as provided under the DRC Act.
8. The defendant in the present suit is the plaintiff in the above mentioned suit no. 814/10 and the averments of the plaint in that suit constitute the averments of the written statement in the present suit.
9. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
10. From the pleadings of the parties, vide orders dated 13.05.2009 the following issued were framed as under:
i. Whether the plaintiff is entitled for declaration as prayed for? OPP CS No. 814/10 & 815/10 Page No. 12 of 51 ii. Whether the plaintiff is entitled for decree of perpetual injunction as prayed for? OPP iii. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP iv. Any other relief, as prayed for?
Vide order dated 30.10.2010, an additional issue was framed to the following effect: "Whether suit of the plaintiff is barred by Limitation? OPD"
EVIDENCE IN SUIT NO. 814/10:
11. The plaintiff led the evidence in Suit no. 814/10 and examined as many as thirteen witnesses. Sh. Uma Shankar Sharma is summoned witness and examined as PW1. PW1 has brought the policy status report in the name of the defendant regarding policy no. 124100687 and same is marked as Mark 'A'. PW2, Sh. Piyush Shrivastav CS No. 814/10 & 815/10 Page No. 13 of 51 is also a summoned witness and he brought the letter bearing no. ITO/ward 19(4)/201011/160 dated 28.01.2011 which has been exhibited as Ex. PW2/1 vide which the IT department had informed the joint director regarding the use of one premises by three persons for availing the PAN Card facility by IT Deptt, copy of letter/reply dated nil filed by Sh. Nizam Ahmed to I.T.O has been exhibited as Ex. PW2/2, which has been written in reply to letter/PAN verification letter dated 20.08.2010 sent by Sh. Ajay Kumar(Income Tax Officer) which is exhibited as Ex. PW2/3. PW4 Sh. Shehzad Abdul Sami, tendered his supplementary evidence affidavit as Ex. P4. He further exhibited the Copy of GPA dated 26.11.10 is Ex.PW4/A. Perpetual lease deed alongwith site plan dated 13.02.76 is Ex.PW4/1, receipt no. 049 for Rs.100/ is Ex.PW4/2, receipt no. 048 is Ex.PW4/3; order of APMC dated CS No. 814/10 & 815/10 Page No. 14 of 51 01.06.06 is Marked as "mark A"; T. No. 1351/HP66 dated 12.06.09 is marked as "Mark B"; T.No. 1686/HP33 dated 26.06.09 is marked as "Mark C"; APMC receipt no. 067 dated 13.03.09 is Ex. PW4/4 which is wrongly mentioned in the affidavit as Ex. PW5/4; ITS2D issued by Income TAx Department is marked as"Mark D", copy of order dated 09.10.09 whereby an inquiry has been initiated as to how the telephone connection installed in the name of the defendant without verification is Ex. PW4/5, letter dated 15.09.09 is Ex. PW4/6, notice dated 29.06.10 is Ex. PW 4/7, letter dated 05.06.09 written by plaintiff to APMC is Ex. PW4/8, letter/RTI dated 25.05.09 issued by MTNL is Ex. PW4/9, RTI application dated 01.05.09 is Ex. PW4/10, complaint/application dated 21.05.10 is Ex. PW4/11, complaint/application dated 23.04.09 is Ex. PW4/12, NDPL bill for Rs.1400/ is Ex.PW4/13, NDPL bill for CS No. 814/10 & 815/10 Page No. 15 of 51 Rs.2109.41 is Ex.PW4/14, NDPL protocol of meter installation and meter removal is Ex.PW4/15, site plan is Ex.PW4/16, Letter of Directorate Income Tax dated 23.04.10 is Ex.PW4/17, complaint made by plaintiff to the SHO, MP against defendant is marked as "Mark E", copy of notice dated 04.05.10 issued to Secretary, APMC, New Delhi is marked as " Mark F", Copy of letter dated 05.06.09 addressed to chairman, APMC by Abdul Ghani is marked as "Mark G", Copy of complaint dated 24.07.09 written to NDPL is Ex. PW4/18, copy of complaint dated 20.01.10 is Ex. PW4/19; postal receipt as Ex. PW4/20, copy of order dated 16.12.09 is Ex.PW4/21. PW5, Sh. Satyawan is a summoned witness and he has brought the summoned filed bearing no. CIC/AD/A/2009/001259 and exhibited the copy of letter dated 10.11.2010 issued by Sh. M.L Sharma Information Commissioner CIC addressed to Sh. Hazi CS No. 814/10 & 815/10 Page No. 16 of 51 Abdul Ghani, CPIO and Appellate Authority (MTNL) as Ex. PW5/1. PW6 Sh. Pratap Singh is another summoned witness but he could not bring the summoned record because same has been destroyed as per the official circular dated 04.10.99 and as per the said circular, the official record pertaining to the license issued by the MLO are being destroyed within six months for learning license and one year for permanent license. He has exhibited the copy of official circular as Ex. PW6/A. This witness has further deposed that the driving license cannot be issued without the residential proof. Sh. Govind Ram Mongia examined as PW7 and he tendered his evidence by way of affidavit as Ex. P7 and deposed that he is in occupation of shop no. C57, New Subzi Mandi, Azad Pur, Delhi. PW8 Sh. Hare Mohan Sharma brought the summoned file of suit no. 199/10 in the case titled as "Haji Abdul Ghani Vs. CS No. 814/10 & 815/10 Page No. 17 of 51 APMC & Others" and compare the copy of written statement filed by defendant no. 1 APMC with the original record brought by him and the copies of the same are exhibited as Ex. PW8/1 and Ex. PW8/2. PW9 Sh. Shakir Abbas tendered his evidence affidavit as EX. P9 and deposed that he saw the defendant sitting outside the suit property off and on. Summoned witness Sh. R.P. Dabas, Assistant Secretary APMC examined as PW10 and he brought the record of license No. B4522 and A4127 in the name of M/s Mohd.Nizamuddin and Company at shop No. B877 in New Subzi Mandi, Azad Pur, Delhi. As per record the said property was purchased by Anwar Ahmed and Mohd. Nizamuddin on 06.12.04. The record also contains the photocopy of DL,issued in the name of Mohd. Nizamuddin on 31.11.05 at the aforesaid shop. Copy of GPA, Agreement to sell both dt. 06.12.04 in the name of CS No. 814/10 & 815/10 Page No. 18 of 51 aforesaid two persons are also available in our record. Mohd. Nizamuddin applied for the said 2 licenses on 31.10.07 and same were granted on 11.01.08 at the aforesaid shop. The said licenses were issued in the name of Mohd. Nizamuddin and company on 11.01.08. But the record does not show any document issued in the name of Mohd Nizamuddin prior to 06.12.04. Copy of noting/order dt. 11.01.08 is Ex PW10/1 and copy of application form A for issuance of license applied by Mohd. Nizamuddin on 31.10.07 is Ex PW10/2, copy of DL No. P 08112005464616 in the name of Mohd. Nizamuddin is marked PW10/A, copy of undertaking dt. 17.10.07 given by Mohd. Nizamuddin is Ex PW10/3, copy of affidavit cum NOC of Haji Anwar Ahmed dt. 17.10.07 Ex PW10/4, copy of registered GPA dt. 06.12.04 Ex PW10/5, copy of registered Agreement to sell dt. 06.12.04 is Ex PW10/6. CS No. 814/10 & 815/10 Page No. 19 of 51 PW12 Sh. S.C. Gupta has brought the summoned record of telephone no. 27616387 and 27678108 and he deposed that as per their record Mohd. Mustaqeem applied for a telephone connection on 17.12.03 and accordingly telephone No. 27616397 was alloted in the name of Mohd. Mustaqeem. Prior to allotment of said number in the name of Mohd. Mustaqeem it was alloted in the name of Rishi as per his record. Telephone bearing No. 27678108 has been disconnected vide order dt. 20.12.10, as per directions of GM(North). As per record there is no document in the name of Nizam Ahmed at C58 New Subzi Mandi, Azad Pur, Delhi. Further there is no document filed by Nizam Ahmed to get the said telephone No. 27678108 at C58, New Subzi Mandi, Azad Pur, Delhi in support of his documentary evidence to show any interest in the said shop. The said number 27678108 was installed in the CS No. 814/10 & 815/10 Page No. 20 of 51 name of Nizam Ahmed at C557 New Subzi Mandi, Azad Pur Delhi. There is no NOC from the side of owner of said shop C58, New Subzi Mandi, Azad Pur, Delhi filed by Nizam Ahmed in our record. Copy of application form dt. 17.12.03 filed by Mohd. Mustaqeem, acknowledgment slip dt. 17.12.03 and copy of record card inquiry dt. 28.02.11are in respect of telephone No. 27616387 are Ex PW12/1 to PW12/3 (OSR). Copy of order dt. 20.10.10 for disconnection of telephone No. 27678108 and letter dt. 30.11.10 issued by DGM (A)/APIO(North) (OSR) are exhibited PW12/4 and PW12/5. MTNL started allotting 8 digit telephone numbers since October, 2002 and prior to this telephone numbers were being alloted in 7 digit by MTNL. PW13 Sh. Om Parkash has brought the summoned record i.e. copy of lease agreement dated 23.08.2010 executed between Sujinder Singh and M/s CS No. 814/10 & 815/10 Page No. 21 of 51 Aaush Impex duly registered as document no. 13228, Additional Book No. 1, Volume no. 3037, on pages 163 to 166 registered on 25.08.2010 in his office as Ex. PW13/1. Thereafter, plaintiff evidence was closed.
EVIDENCE IN SUIT NO. 815/10 :
12. The plaintiff in suit no. 815/10 also examined as many as four witnesses. Plaintiff, Sh. Hazi Nizam Ahmed himself examined as PW1 and tendered his evidence affidavit as Ex. P1. This witness has further testified the original site plan is Ex.PW1/1. Copy of the PAN card is Ex.PW1/2 (OSR). MTNL bills are Ex.PW1/3 to PW1/33. Passbook of Vijay Bank is Ex.PW1/34 (OSR). Certified copy of statement of account of the plaintiff with Vijaya Bank is Ex.PW1/35(coly) and Ex.PW1/36. Certificate issued by Vijaya Bank in respect of plaintiff is Ex.PW1/37. Bills of the goods purchased by the plaintiff during the course of his CS No. 814/10 & 815/10 Page No. 22 of 51 business are Ex.PW1/38 to Ex.PW1/53. The mobile phone bill of the plaintiff is Ex.PW1/54 and Ex.PW1/55.
The LIC premium receipts of the plaintiff are Ex.PW1/56 to PW1/60. Photocopies of electricity and water bills in respect of suit premises paid by the plaintiff are Mark A to M. Insurance covernote of the car owned by the plaintiff are Ex.PW1/61 to Ex.PW1/62(OSR). The carbon copy of the letter dated 30.04.09 is Ex.PW1/63. Original postal receipt is Ex.PW1/64. The photographs taken by Local Commissioner during his visit are Ex.PW1/65 (coly). Sh. Sayeed Hazi Nizam Ahmed examined as PW2 and he tendered his evidence affidavit as Ex. P2 and he deposed that oral tenancy was created before the plaintiff and defendant in his presence. Sh. Jabrdeen examined as PW3 and tendered his evidence affidavit as Ex. P3 and he deposed that terms of tenancy between the plaintiff and CS No. 814/10 & 815/10 Page No. 23 of 51 defendant has been settled in front of him. PW4 Sh. Satish Kumar brought the summoned record pertaining to the electricity connection in premises C58, Azadpur Subzi Mandi. Thereafter, PE was closed. Thereafter, defendant led evidence and Sh. M.N. Vijayan, Nodal Officer appeared as DW1 and brought the following record i.e. Customer Application Form of Mobile No. 9212154706 dated 30.03.2006 containing 4 pages which was subscribed in the name of Mr. Mohd. Mushikeen as per his record and the attested copy of the said form is Ex. DW1/1, Customer Application Form of Mobile No. 9212171619 containing 2 pages which was subscribed in the name of Mr. Riyajudadeen as per record and the attested copy of the said form is Ex. DW1/2. DW2, Sh. Anuj Bhatia, Manager Nodal and Regulatory, from Vodafone Essar Mobile Services Ltd. brought the Customer Application Form of CS No. 814/10 & 815/10 Page No. 24 of 51 Mobile No. 9811630693 dated 19.05.2007 containing 8 pages which was subscribed in the name of Mr. Jitender Kumar C/o Prem Singh, F7, Ist Floor, Katwaria Sarai, New Delhi10 and the attested copy of the said form is Ex. DW2/1. The said connection was converted from prepaid to postpaid as per the records on 21.05.2007. The said conversion record is Ex. DW2/2. DW3 Sh. Sanjeev Lakra, Nodal Officer from Reliance Communication Ltd. brought the Subscriber record of Mobile No. 9312897525 dated 12.02.2004 and the attested copy of the said form is Ex. DW3/1. As per record, subscriber record is in the name of Mr. Mohd. Kayyum. The commercial services of Reliance Communication Ltd. started in Delhi on 01.05.2003. Thereafter vide separate statement defendant closed defendant's evidence.
Thereafter, vide order dated 18.04.2011, both the CS No. 814/10 & 815/10 Page No. 25 of 51 above said suits were consolidated for the purposes of evidence and the evidence of plaintiff in suit no. 815/10 was to be read as evidence of defendant in suit no. 814/10 and the evidence led by the plaintiff in suit no. 814/10 was to be read as the evidence of the defendant in suit no. 815/10. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
13. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsel for both the parties. The plaintiff and the defendant have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
My issue wise findings on the above said issues in suit no. 814/10 & in suit no. 815/10 are as under:
Issue no. 1, 2, 3, 4 and 5 in suit no. 814/10 CS No. 814/10 & 815/10 Page No. 26 of 51 & Issue no. 1, 2 and 3 in suit no. 815/10.
14. All these issues are taken up together as the same are concerned interse, overlap each other and relate to the prayer clause of the respective suits.
The crux of the controversy involved in both the above said suits is that as to whether the plaintiff in suit no. 815/10 is a tenant in respect of the suit shop and as to whether the plaintiff has been able to prove his tenancy under the landlordship of the defendant. Another vital question to be determined by this court is as to whether the plaintiff in suit no. 814/10 has been able to prove that the defendant is in unauthorized use and occupation of the suit shop.
15. Now coming to the evidence in suit no. 814/10. The LR's of the deceased plaintiff have examined Sh. Uma CS No. 814/10 & 815/10 Page No. 27 of 51 Shankar Sharma as PW1 who has stated that he has brought the policy status record in the name of the defendant regarding policy no. 124100687 and the photocopy of the same was mark 'A' and address of the defendant was C58, Azadpur, Delhi. This witness has stated that he could not say whether the verification of the address given by the defendant was done or not.
16. The next witness examined by the plaintiff is PW2, Sh. Piyush Srivastva, I.T. Inspector, who has stated that the plaintiff moved an application/letter dated 08.03.2010 against the defendant for fabrication of proof/address for the allotment of PAN number. During the investigation a letter was written to the defendant and he filed on record a letter as Ex. PW2/1.
In the cross examination PW2 has stated that he did not know on what basis, the PAN card was issued to the CS No. 814/10 & 815/10 Page No. 28 of 51 defendant.
17. The next witness examined by the plaintiff is Shri. Brij Pal, MLO from Transport Authority who has stated that he had not brought the complete record in respect of the driving licence no. P08042006481575.
The next and one of the material witnesses examined by the plaintiff is PW4, Shri Shehzad Abdul Shami, son of the deceased plaintiff who has been examined as PW4 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as stated by the plaintiff in the plaint. He has filed on record the following documents namely mark 'A' to 'G' and Ex. PW4/1 to Ex. PW4/21.
In the cross examination, this witness has stated that he does not know whether any telephone connection bearing no. 27678108 was ever installed in the suit CS No. 814/10 & 815/10 Page No. 29 of 51 premises. He has further stated that he does not remember whether he has received the calls from the said telephone number on his mobile phone no. 9811386591. PW4 has denied the suggestion that the defendant was inducted as a tenant in the suit premises by his father in the year 1998 by way of oral tenancy. PW4 has further denied the suggestion that the defendant was inducted as a tenant in the suit premises.
18. The next witness examined by the plaintiff is Sh.
Satyawan, Asstt. from Central Information Commission has stated that CIC has found allotment of the land line telephone to the Hazi Nizam Ahmed is totally incorrect and fraudulent.
The next witness examined by the plaintiff is PW6, Sh. Partap Singh, dealing assistant from the office of the MLO, N/W Zone who has stated that the official record CS No. 814/10 & 815/10 Page No. 30 of 51 pertaining to the licence issued by the MLO was being destroyed within six months and the copy of the official circular was Ex. PW6/A.
19. The next witness examined by the plaintiff is PW7, Sh. Govind Ram, who has stated in his evidence by way of affidavit that in the year 1998, market rent in the new Sabzimandi area was not less than Rs. 20,000/ to Rs. 25,000/ per month for two floors and the current market rate of rent was Rs. 60 to 80,000/ per month for two floor.
In the cross examination, this witness has stated that he does not have any personal knowledge in respect of the present suit.
20. The next witness examined by the plaintiff is PW8, Shri Hari Mohan Sharma, who has produced the file of the case titled as Hazi Abdul Ghani Vs. APMC.
21. PW9, Sh. Shakir Abbas, is the next witness CS No. 814/10 & 815/10 Page No. 31 of 51 examined by the plaintiff who has stated in this examination in chief that he had never seen Haji Nizam Ahmed prior to April 2009 in suit shop.
In the cross examination this witness has stated that he had seen the defendant sitting outside the suit property off and on and he has no personal knowledge of the case.
22. PW10, Sh. R.P. Dabbas, Asstt. Secretary of the APMC is the next witness who has not stated anything material.
Sh. Manish Kumar Singh, from TATA Tele Services has been examined by the plaintiff as PW11 who has not stated anything material.
Sh. S.C. Gupta, Commercial Officer from the MTNL has been examined by the plaintiff as PW12, who has stated in his examination in chief that there was no document filed by Nizam Ahmed to get the said telephone CS No. 814/10 & 815/10 Page No. 32 of 51 number 27678108 at C58, New Sabzimandi, in support of his documentary evidence to show any interest in the said shop and there is no NOC from the side of the owner of the said shop.
The next and the last witness is Sh. Om Prakash from the office of SubRegistrar and this witness has not stated anything material.
23. Now coming to the evidence in suit no. 815/10, the plaintiff, Sh. Hazi Nizam has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by him in the plaint. He has filed on record the following documents Ex. PW1/3 to Ex. PW1/33 MTNL Bills, Ex. PW1/34 to Ex. PW1/37 account statement and passbook as well as certificate issued by Vijay Bank Ex. PW1/38 to Ex. PW1/53 bills of goods purchased by plaintiff, Ex. PW1/54 to Ex. PW1/55 CS No. 814/10 & 815/10 Page No. 33 of 51 mobile bill of plaintiff, Ex. PW1/56 to Ex. PW1/60 LIC premium receipt of plaintiff, Ex. PW1/61 to Ex. PW1/62 Insurance cover note of the car of the plaintiff and Ex. PW1/63 to Ex. PW1/64 copy of letter/receipts.
In the cross examination, PW1 in suit no. 815/10 has stated that at the time of creation of oral tenancy, he along with the defendant, Hazi Shehzad, Sayyad Bhai, Mullah Jabruddin were present. PW1 has further stated that the tenancy was at Will. PW1 has stated that no receipt was ever received by hims for paying the rent. He has further stated that he has not filed any document to show the payment of the rent to the deceased defendant. He has further admitted that he is an income tax payee but he is not sure whether he has shown any details of rent/business/charges/electricity charges in the income tax return and he has not filed any document of income tax CS No. 814/10 & 815/10 Page No. 34 of 51 return in the present case.
24. The plaintiff has further examined PW2 & PW3, Sh.
Sayyad Ahmed and Sh. Jabruddin as a witness to the alleged oral tenancy and both of them in their evidence by way of affidavit had supported the case of the plaintiff.
PW2 in his cross examination has admitted that it be correct that the oral tenancy was created in his presence at the rate of Rs. 2000/ per month and the oral tenancy was at Will.
PW3 in the cross examination has stated that he knows the plaintiff as well as the defendant but he has stated that he knows Hazi Abdul Ghani for last more than 20 years and he also knows Sh. Hazi Nizam Ahmed for the last about five years.
25. The last witness examined by the plaintiff is Sh.
Satish Kumar,who has been examined as PW4 from the CS No. 814/10 & 815/10 Page No. 35 of 51 office of NDPL and he has deposed about the telephone connections.
26. In the written final arguments, Ld. Counsel for the plaintiff in suit no. 815/10 has argued that the plaintiff has placed on record various documents such as the telephone connections and other documents as well from Ex. PW1/1 to Ex.PW1/65. It has been also argued that the witnesses examined by the plaintiff have been able to prove their case whereas, the witnesses examined by the plaintiff in suit no. 814/10 have not been able to prove the case of the plaintiff and as such, the plaintiff in suit no. 815/10 has been able to prove the oral tenancy.
27. Whereas on the other hand, Ld. counsel for the plaintiff in suit no. 814/10 has vehemently argued that the defendant has failed to prove the factum of oral tenancy. It has been argued that plaintiff has been able to prove his CS No. 814/10 & 815/10 Page No. 36 of 51 case in its entirety. Ld. counsel for the plaintiff has relied upon 2003(2) RCR (Civil). Ld. counsel for the plaintiff has also relied upon "Ram Chand Premi Vs. Nawab Kaur 2004(2) RCR 237 and Sheodhari Rai and Ors. V. Suraj Prasad Singh & Ors. AIR 1954 SC 758". In order to contend that to prove the tenancy the person claiming so is required to prove the certain features i.e. existence of the contract in the form of lease deed or otherwise possession have been taken in the capacity of a tenant on payment of proof on rent and in the absence of any such necessary proof of tenancy can not be presumed to be assumed merely on oral evidence controverted by the oral evidence.
28. In Ram Chand Premi (supra) it has been observed as under: "After hearing the learned counsel for the parties, I am of the considered CS No. 814/10 & 815/10 Page No. 37 of 51 view, that this appeal lacks merit and the same is liable to be dismissed. It is well settled that certain essential features would have to be proved before it could be assumed that there is relationship of landlord and tenant. It necessarily involves the existence of a contract in the form of lease deed or any circumstantial evidence showing that such a contract was in existence.
It further requires that possession of the immovable property should be proved by the tenant in his capacity as such on payment of rent. A reference in this regard can be made to Section 105 of the Transfer of Property Act, 1882. However, in the present case, no material has been placed on record to substantiate the claim that the appellant was a tenant and the respondent was his landlady. There is CS No. 814/10 & 815/10 Page No. 38 of 51 no lease deed or rent note placed on the record which could have been a direct piece of evidence establishing the fact of relationship between the appellant and respondent. No rent receipt has been proved on the record.
Alt that has been brought on record is the statements of witnesses produced by the plaintiffappellant which have been controverted by the witnesses of the defendantrespondent. The veracity of the oral statements made by the witnesses of the plaintiffappellant has been controverted by the statement made by the witnesses of the defendantrespondent. In such a situation, no finding could be recorded to conclude the relationship of landlord and tenant between the parties. In somewhat similar circumstances, this court in the case of Jagdish Singh CS No. 814/10 & 815/10 Page No. 39 of 51 (supra) has held that such evidence is wholly insufficient, and in fact no evidence of the fact that there is relationship of landlord and tenant."
29. It has been further argued by the Ld. counsel for the plaintiff in suit no. 814/10 that there is no document on record to infer that the Hazi Nizam Ahmed has been in possession of the suit shop since the year 1998. The defendant has also forged the driving licence as disclosed by the PW6 in suit no. 814/10 because the driving licence could not be issued without the residential proof. Further defendant in suit no. 814/10 has also obtained fraudulently the telephone connection as stated by the PW
5. It has been further argued that even the defendant, Hazi Nizam Ahmed, in suit no. 814/10 has failed to establish that in what capacity he has deposited the electricity bills CS No. 814/10 & 815/10 Page No. 40 of 51 issued in the name of plaintiff, in respect of the suit shop by cheques. It has been further contended that the bill exhibited by the defendant Hazi Nizam Ahmed in suit no. 815/10 alleged to have been issued by Mohd. Mustaqeem, Mohd. Saleem & Sons as Ex. PW1/38 to Ex. PW1/50 are forged and fabricated as the MTNL telephone number mentioned on the said bills issued by the Mohd. Mustaqeem, Mohd. Saleem and sons consist of 8 digit MTNL number i.e. 27616387 whereas these 8 digits number were started by MTNL in the month of October, 2002 and the said telephone number has been detailed in the bill Ex. PW1/38 to Ex. PW1/41. Similarly the mobile number 9212154706 is stated to have been issued in the name of Riazuddin by DW1 in suit no. 815/10 also find mentioned in Ex. PW1/38 to Ex. PW1/41. It is further argued that bill number Ex. PW1/42 and Ex. PW1/47 have CS No. 814/10 & 815/10 Page No. 41 of 51 been issued in the year 2002 and 2001 respectively which bears the mobile number 9312897525 whereas DW3 in suit no. 815/10 has deposed that reliance communication has started its services in the year 2003 so the said bills have also been forged and fabricated. It has been further argued that Mohd. Nizamuddin and Co. has issued bills from 2001 to 2003 but the firm Mohd. Nizamuddin and Co. came into existence in the year 2006, this fact has also been proved by PW10 in suit no. 814/10 that Mohd. Nizamuddin & Co. came into existence after 2006 so bills Ex. PW1/44, Ex. PW1/45, Ex. PW1/46 and Ex. PW1/48 are forged and fabricated. Even DW2 in suit no. 815/10 has deposed that Vodafone Service Ltd. has issued a mobile no. 9811630693 in the year 2007 in the name of Jitender Kumar whereas the said number has been mentioned in the bill Ex. PW1/44 to Ex. PW1/46 as well as CS No. 814/10 & 815/10 Page No. 42 of 51 Ex. PW1/48 to Ex. PW1/50. Therefore, all these bills are forged and fabricated.
30. Even if, it is proved that this document relied upon by the defendant in suit no. 815/10 are forged and fabricated even then, document Ex. PW1/38 to Ex. PW1/50 placed on record in suit no. 815/10 i.e the bill issued by the MTNL in the name of defendant Hazi Nizam Ahmed in suit no. 814/10 which bears the address of the suit shop at least lead to the inference that the defendant Hazi Nizam Ahmed in suit no. 814/10 and plaintiff in Suit no. 815/10 is in settled possession or permissible occupancy of suit shop.
31. It has to be seen that the plaintiff Sh. Hazi Nizam Ahmed has taken the plea of oral tenancy and the burden was upon him to prove the oral tenancy w.e.f. 1998. Ld. counsel for the plaintiff in suit no. 815/10 has vehemently argued that he has been able to prove on record various CS No. 814/10 & 815/10 Page No. 43 of 51 bills such as the bills from the MTNL and the bills of electricity etc. but to my mind, by any stretch of imagination, these bills can at best prove the possession of the plaintiff with respect to the suit shop but the plaintiff has utterly failed to prove on record even a single document to show that he was a tenant with respect to the suit shop. Plaintiff claims himself to be a tenant right form 1998 but despite the passing of such as long span of time, the plaintiff has not been able to place on record even a single document to show his tenancy. He has not written any where even to the MTNL or to other various departments, from which bills have been placed on record, that he is a tenant in respect to the suit shop. PW12 in suit no. 814/10 has categorically asserted that Hazi Nizam Ahmed did not place on record any documentary evidence to show any interest in the said shop and there was no NOC from the CS No. 814/10 & 815/10 Page No. 44 of 51 said of the owner of the said shop.
32. The mentioning of address of plaintiff in suit no.
815/10 as that of the suit property/suit shop in the telephone bills issued by the MTNL, the alleged payment of bill issued by NDPL in respect of the electricity meter installed in the name of defendant in suit no. 815/10 by way of cheques by the plaintiff (in suit no. 815/10), and other documents placed on record by the plaintiff (in suit no. 815/10) wherein the address of plaintiff has been shown as that of the suit shop can, by no stretch of imagination, be held equivalent to an agreement of tenancy. It is also the admitted case of witnesses and the plaintiff that no inquiry with regard to the status of person/plaintiff is conducted at the time of installation of telephone connection in the suit shop. Simply because a man is in occupation over a particular property he can not be termed as a tenant or a CS No. 814/10 & 815/10 Page No. 45 of 51 licensee on the basis of his occupation. A tenancy like any other fact is a fact which is to be proved by evidence. A person can not be held to be tenant merely on basis of documents showing him to be in possession of the disputed property when neither any lease deed nor any rent note or any other piece of paper was placed on record in support of the contention.
33. Needless to mention that like other contracts, tenancy is also a bilateral contract which is entered in to in between the parties out of their free will and volition. In the case in hand, the plaintiff has not only failed to place on record any document from the defendant Hazi Abdul Ghani (in suit no. 815/10) to show the tenancy but he has also utterly failed to place on record any document written by him to any of the authorities such as the MTNL or the electricity companies etc. claiming himself to be a tenant in respect of CS No. 814/10 & 815/10 Page No. 46 of 51 the suit shop. I am of the opinion that ration of the authority cited as 2003(2) RCR (Civil)227 is squarely applicable in the facts and circumstances of the present case wherein it has been held that certain essential features would have to be proved before it could be assumed that there was relationship of landlord and tenant. I have not hesitation to hold that the plaintiff has utterly failed to prove any of the essential features to prove the tenancy in his favour.
34. Therefore, there was no relationship of landlord or tenant between the plaintiff and defendant but the plaintiff is in settled possession of suit shop as he placed on record the bill issued by the MTNL (Ex PW1/3 To Ex. PW1/33 in suit no. 815/10) wherein the address of plaintiff has been depicted as that of suit shop i.e C58 since 2003. The plaintiff is in actual physical possession of the property over a sufficiently long period and the possession prima facie is CS No. 814/10 & 815/10 Page No. 47 of 51 within the knowledge either express or implied of the owner or without any attempt of concealment and which contains an element of animus possidendi as such the possession of plaintiff in suit no. 815/10 is either settled possession or permissible occupancy, as the possession which may termed as settled possession must be effective, undisturbed and in the knowledge of the true owner. The plaintiff is Suit no. 814/10 has also failed to show that the defendant Hazi Nizam Ahmed is an unauthorized occupant of the suit property. From the above discussion, I am of the opinion that the defendant Hazi Nizam is at least in settled possession or permissible occupancy of the suit property as from the evidence on record the defendant Hazi Nizam has failed to prove that he is in possession of the suit property either in the capacity of tenant or a licensee. The plaintiff in suit no. 815/10 has been able to CS No. 814/10 & 815/10 Page No. 48 of 51 show his possession with respect to the suit shop to my mind, but in what capacity he was in possession, the plaintiff has utterly failed to prove the same on record. The plaintiff in suit no. 814/10 has also failed to prove on record that the defendant Hazi Nizam Ahmed is in unauthorized th occupation of suit shop since the intervening night of 18 th April 2009 and 19 April 2009. So when the plaintiff (in suit no. 814/10) has failed to prove that Hazi Nizam Ahmed is in unauthorized occupation of suit shop, the plaintiff is not entitled for any damages or mense profit as alleged. Therefore, the defendant in suit no. 814/10 and plaintiff in 815/10 being in settled possession is not liable to be evicted from the suit property except following the due process of law.
In the light of above discussion, I hereby decided the issue no. 1, 2 and 3 against the plaintiff and in favour of the CS No. 814/10 & 815/10 Page No. 49 of 51 defendant in suit no. 815/10 and issue no. 3, 4 and 5 are decided against the plaintiff and in favour of the defendant in suit no. 814/10. In suit no. 814/10, the onus to prove the issue no. 1 and 2 is on the defendant but the defendant has failed to prove that there was a tenancy between the parties @ Rs. 2000/ per month. So these issues are decided in favour of the plaintiff and against the defendant.
Additional Issue in suit no. 815/10: "Whether suit of the plaintiff is barred by limitation? OPD"
35. Ld. counsel for the defendant has argued that this suit is barred by the law of limitation because there was no permanent tenancy permissible without any registered document in the light of the authority cited as 2009(1) AD Delhi. It has to be seen that the present suit is a suit for declaration, as well as a suit for perpetual and mandatory CS No. 814/10 & 815/10 Page No. 50 of 51 injunctions. The cause of action has been shown by the plaintiff to have arisen immediately prior to the filing of the present suit. There can not be deviation from the proposition of the law as narrated in the authority relied upon by the Ld. counsel for the defendant but in the facts and circumstances of the present suit, I am of the opinion that the suit of the plaintiff is not barred by the law of limitation.
Relief:
36. In the light of above discussion, suit no. 815/10 is hereby dismissed with no order as to cost. The other suit no. 814/10 is also hereby dismissed. No order as to cost. Reader is directed to prepare decree sheet accordingly. Copy of this judgment be placed in the file of Suit no. 815/10. File be consigned to record room.
Announced in the Open Court (VIJAY KUMAR DAHIYA)
On this 23.07.2011 ADJII : ROHINI : DELHI
CS No. 814/10 & 815/10 Page No. 51 of 51
CS No. 814/10 & 815/10
23.07.2011
Present: Ld. counsel for the parties.
Vide separate judgment, suit no. 815/10 is hereby dismissed with no order as to cost. The other suit no. 814/10 is also hereby dismissed. No order as to cost. Reader is directed to prepare decree sheet accordingly. File be consigned to record room.
(VIJAY KUMAR DAHIYA) ADJII(NW):ROHINI:DELHI.
23.07.2011 CS No. 814/10 & 815/10 Page No. 52 of 51