Delhi District Court
New No.8653/16 vs Sh. Sushil Pachori on 30 January, 2017
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 785/2009
New No.8653/16
Smt. Vidyawati
W/o Late Sh. Dev Dutt Sharma
R/o E63, Laxmi Nagar,
Vikas Marg, Delhi110093. ... Plaintiff
Versus
Sh. Sushil Pachori
S/o Late Sh. Budh Sen Pachori
R/o D323, Ganesh Nagar,
Pandav Nagar Complex,
Delhi.
IInd Add.: E222 (Basement)
Jawahar Park, Vikas Marg,
Laxmi Nagar, Delhi92. ... Defendant
SUIT FOR POSSESSION AND MESNE
PROFITS/DAMAGES
DATE OF INSTITUTION : 05.03.2005
DATE OF FINAL ARGUMENTS : 23.12.2016
DATE OF DECISION : 30.01.2017
JUDGMENT
1. The plaintiff has filed the present suit against the defendant seeking reliefs of possession and mesne profits/damages. The exact prayer made by the plaintiff, in the plaint, is reproduced below: "It is, therefore, respectfully prayed as under: (I) That a decree of possession may kindly be passed in Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 1 of 18 favour of the plaintiff and against the defendant with respect to portion of the basement of the property No.E22, Laxmi Nagar, Vikas Marg, Delhi as shown in red colour in the site plan attached with the plaint.
(ii) That a decree of Rs.50,000/ may kindly be passed in favour of the plaintiff and against the defendant as mesne profit and damages @ Rs.2500/ p.m. w.e.f. 1.7.2003 and further directing the defendant to continue to mesne profit and damage till the vacation of the suit premises.
(iii) That any other relief which this Hon'ble court may deem fit andproper may kindly be granted in favour of the plaintiff and against the defendant along with the cost of the suit, in the interest of justice."
2. In order to justify the grant of the aforesaid reliefs/prayers, the plaintiff has interalia pleaded in the plaint that Late Sh. Dev Dutt Sharma was the owner of property no. E22, Laxmi Nagar, Vikas Marg, Delhi; that Late Sh. Dev Dutt Sharma had bequeathed the property no. E22, Laxmi Nagar, Vikas Marg, Delhi to the plaintiff vide registered will dated 18.03.1999; that after the death of Late Sh. Dev Dutt Sharma on 29.07.1999, the plaintiff has become the owner of the property no. E22, Laxmi Nagar, Vikas Marg, Delhi; that the defendant is the son in law of the plaintiff; that the defendant was married to Smt. Sunita Pachori, daughter of the plaintiff, on 29.10.1990; that in March, 1997, the defendant had approached Late Sh. Dev Dutt Sharma and requested Late Sh. Dev Dutt Sharma to permit him to use a room in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi as a godown, for a limited period; that keeping in view the relationship with the defendant, the plaintiff Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 2 of 18 and Late Sh. Dev Dutt Sharma had permitted the defendant to use a 7' x 15' area in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi (henceforth 'licensed premises')1, as a licensee, without any license fee; that at the time of grant of the license to the defendant, the defendant had assured the plaintiff and Late Sh. Dev Dutt Sharma that he would vacate the licensed premises within two years; that thereafter, the defendant had not vacated the licensed premises; that the plaintiff had terminated the license of the defendant qua the licensed premises by serving legal notice dated 28.06.2004, upon the defendant; that despite service of the legal notice dated 28.06.2004, the defendant had not vacated the licensed premises; that pursuant to service of the legal notice dated 28.06.2004 upon the defendant, the defendant is an unauthorized occupant qua the licensed premises since 01.07.2003 2 and is liable to pay damages/mesne profits at the rate of Rs.2500/ per month, to the plaintiff and that as such, the plaintiff is entitled to the reliefs of possession and damages/mesne profit as prayed for, in the plaint.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing a written statement. In the written statement, the defendant has taken preliminary objections to the effect that the present suit is bad for nonjoinder and misjoinder of necessary parties i.e. the other legal representatives of Late Sh. Dev Dutt Sharma viz. Sh. Shashi Prakash, Sh. Amit Bhardwaj, Ms. Jyotsna, Ms. Sunita, Ms. Sarita, Ms. Manju, Ms. Usha and Ms. Jaya Bhardwaj; that the jurisdiction of this Court to entertain this suit is barred by Section 50 the Delhi Rent Control Act, 1958 because the defendant is a tenant at the alleged licensed premises and is paying rent at the rate of Rs.500/ per month since 1 The licensed premises has been shown in red colour in the site plan filed alongwith the plaint. 2 Upon seeking clarification regarding the said date, the Ld. Advocate for the plaintiff had submitted that the said date is a result of typographical error and it should have actually been typed as 01.07.2004.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 3 of 18 03.03.1997 and that the plaintiff has not properly valued this suit for the purpose of Court fees and jurisdiction. In reply on merits, the defendant has pleaded that property no. E22, Laxmi Nagar, Vikas Marg, Delhi is an ancestral property that was inherited by Late Sh. Dev Dutt Sharma from Sh. Khem Chand and therefore, all the legal heirs of Late Sh. Dev Dutt Sharma are the owners of the said property; that Late Sh. Dev Dutt Sharma had not executed the will dated 18.03.1999 in favour of the plaintiff; that on 18.03.1999, Late Sh. Dev Dutt Sharma was mentally unfit and incapable of executing the will in favour of the plaintiff; that since the property no. E 22, Laxmi Nagar, Vikas Marg, Delhi was not the self acquired property of Late Sh. Dev Dutt Sharma, he could not have executed the will dated 18.03.1999 qua the said property; that the defendant is a tenant qua the alleged tenanted premises; that the defendant had never made any assurance regarding vacation of the alleged tenanted premises to Late Sh. Dev Dutt Sharma; that ordinarily, no rent receipts were issued to the defendant but the defendant was issued one rent receipt for the rent paid qua February, March and April 1998; that the defendant had paid rent qua the alleged licensed premises uptill April 2004; that the defendant had not received the legal notice dated 28.06.2004; that being a tenant qua the alleged tenanted premises, the defendant has the legal right to use the tenanted premises and that the defendant is not liable to pay damages/mesne profits at the rate of Rs.2500/ per month, to the plaintiff, since 01.07.2003.
4. In the replication qua the written statement of the defendant, the plaintiff has traversed the contents of the written statement, made the necessary denials and reiterated the contents of the plaint. Also, the plaintiff has pleaded that the legal representatives of Late Sh. Khem Chand had executed a registered relinquishment deed dated 26.04.1988, in favour of Late Sh. Dev Dutt Sharma, making Late Sh. Dev Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 4 of 18 Dutt Sharma, the exclusive owner of property no. E22, Laxmi Nagar, Vikas Marg, Delhi.
5. On the aforesaid pleadings of the parties, the following issues were framed by the Ld. Predecessor Judge on 13.09.2005: "1. Whether the plaintiff is entitled to a decree for possession as prayed for? OPP
2. Whether the plaintiff is entitled to a decree for mesne profits and damages as prayed for? OPP
3. Whether this Court has no jurisdiction to try the present suit? OPD
4. Whether the suit of the plaintiff is bad for nonjoinder and misjoinder of necessary parties? OPD
5. Relief claimed."
6. During trial conducted before the Ld. Predecessor Judge, four witnesses viz. PW1 Vidyawati, PW2 Narender Kumar Gautam, PW3 P.C. Tiwari and PW4 Phool Singh were examined in support of the case of the plaintiff and six witnesses viz. DW1 Sushil Pachori, DW2 HC Devi Sharan, DW3 Gyan Prakash Mishra, DW4 Syed Faizal Huda, DW5 Om Prakash and DW6 Nasir Khan were examined in support of the case of the defendant. The testimonies of the aforesaid witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
7. I had heard Sh. Sanjeev Bhardwaj, Ld. Advocate for the plaintiff and Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 5 of 18 Sh. Vikas Bhatia, Ld. Advocate for the defendant on 23.12.2016. The issue wise findings, in this case, are as follows:
ISSUE NO.3
8. This issue has been taken up ahead of the issues no.1 and 2 because the finding qua this issue has a direct bearing on the findings qua issues no.1 and 2. The onus of leading evidence qua issue no. 3 was placed on the defendant. In order to discharge the onus qua issue no. 3, the defendant has examined three witnesses viz. DW1 Sushil Pachori, DW2 HC Devi Sharan and DW4 Syed Faizal Huda. Per contra, the plaintiff has examined herself as PW1 Vidyawati.
9. During examination in chief, DW1 Sushil Pachori has interalia deposed that he is a tenant at property no. E22, Laxmi Nagar, Vikas Marg, Delhi since 03.03.1997; that the rate of rent payable by him is Rs.500/ per month; that ordinarily, no rent receipts were issued in his favour by Late Sh. Dev Dutt Sharma and the plaintiff, but Late Sh. Dev Dutt Sharma had executed one rent receipt viz. rent receipt dated 24.03.1998, Ex.PW1/DA, in his favour qua the rent paid for three months viz. February, March and April, 1998; that on account of threats received from the plaintiff, he had made complaints dated 29.09.1999, 03.12.1999, 29.10.1999 and 02.01.2002, Mark DW1/D (colly) to the police and that on 05.11.1999, a settlement, Mark DW1/E was made between him and the plaintiff wherein, the plaintiff had admitted that he is her tenant at property no. E22, Laxmi Nagar, Vikas Marg, Delhi. During cross examination, DW1 Sushil Pachori has interalia denied that no landlord tenant relationship existed/exists between him and Late Sh. Dev Dutt Sharma or the Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 6 of 18 plaintiff and that he had never paid rent to Late Sh. Dev Dutt Sharma or the plaintiff.
10. During examination in chief, DW2 HC Devi Sharan has tendered in evidence complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B. The complaint dated 03.12.1999, Ex.DW2/A reflects that by way of the said complaint, the defendant had claimed that he is a tenant at property no. E22, Laxmi Nagar, Vikas Marg, Delhi. The complaint dated 29.10.1999, Ex.DW2/B reflects that by way of the said complaint, the defendant had claimed that he had been granted license to use the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi, by Late Sh. Dev Dutt Sharma, with the consent of the plaintiff and his children. During cross examination, DW2 HC Devi Sharan has deposed that the originals of the complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B had been destroyed and he had brought the original of the register, Ex.DW2/C (colly), reflecting receipt of the said complaints at PS Shakarpur.
11. During examination in chief, DW4 Syed Faizal Huda has tendered in evidence his report, Ex.DW4/A and deposed that he is a Forensic Expert, having obtained degree of BSc (Honours), Forensic Sciences from Amity University and having deposed in more than 250 cases in various Courts of Delhi/NCR and that he had taken photographs of the admitted and disputed signatures of Late Sh. Dev Dutt Sharma on 09.04.2012 and after careful examination of the same, found that both the signatures are of Late Sh. Dev Dutt Sharma. In support of his testimony, DW4 Syed Faizal Huda has relied upon his report, Ex.DW4/A. During cross examination, DW4 Syed Faizal Huda has interalia deposed that he had taken the photograph of the admitted signatures of Late Sh. Dev Dutt Sharma from the photocopy of specimen Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 7 of 18 signature card, Ex.DW3/A1 but not mentioned the said fact in his report, Ex.DW4/A; that the parameters of handwriting can be compared by examining photocopies; that in this case, he had not felt the need to examine the original of the admitted signatures, Mark A1; that he had not examined the ink used in the execution of the disputed signatures, Mark D1, on the receipt, Ex.PW1/DA; that he had only compared the admitted signatures, Mark A1 with the disputed signatures, Mark D1; that minimum two signatures are required to identify the natural variations in the signatures of a person; that the formation, Mark A on the admitted signatures, Mark A1 is not present in the disputed signatures, Mark D1; that the formation, Mark Z on the disputed signatures, Mark D1 is not present in the admitted signatures, Mark A1; that the dot, Mark Y on the disputed signatures, Mark D1 is not present in the admitted signatures, Mark A1 and that he had not reported the said facts in his report, Ex.DW4/A because they were minor differences that mandated ignorance due to the other observations made in the report, Ex.DW4/A. Also, DW4 Sayed Faizal Huda has denied that the length of the stroke, Mark X is different on the admitted signatures, Mark A1 and the disputed signatures, Mark D1; that the stroke, Mark P is crossing the diagonal stroke on the admitted signatures, Mark A1 but just touching the diagonal stroke on the disputed signatures, Mark D1; that the three points, marked as point 1 on the disputed signatures, Mark D1 are unnatural pen pauses; that there is a unnatural retouching against arrow mark at point 2 on the disputed signatures, Mark D1 and that the disputed signatures, Mark D1 are forged signatures.
1 The original of the account opening form, Ex.DW3/A was seen and returned to the witness, DW3 Gyan Prakash Mishra on 27.09.2011.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 8 of 18
12. During examination in chief, PW1 Vidyawati has deposed in line with the plaint. During cross examination, PW1 Vidyawati has interalia deposed that no settlement was made between her and the defendant at PS Shakarpur on 02.01.2002 and that the receipt, Ex.PW1/DA does not bear the signatures of Late Sh. Dev Dutt Sharma at point A.
13. After analyzing the probative value of the aforesaid evidence led by the parties qua this issue, I find that in order to prove that he is a tenant at property no. E22, Laxmi Nagar, Vikas Marg, Delhi, the defendant has relied upon the rent receipt dated 24.03.1998, Ex.PW1/DA, the complaints dated 29.09.1999, 03.12.1999, 29.10.1999 and 02.01.2002, Mark DW1/D (colly), settlement dated 05.11.1999, Mark DW1/E. However, during trial, the defendant has only led evidence qua the rent receipt dated 24.03.1998, Ex.PW1/DA, complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B.1 In respect of the rent receipt dated 24.03.1998, Ex.PW1/DA, the defendant has examined himself and DW4 Sayed Faizal Huda. The testimony of the defendant viz. DW1 Sushil Pachori is per se incompetent to prove the execution of the rent receipt dated 24.03.1998, Ex.PW1/DA by Late Sh. Dev Dutt Sharma because the execution of the rent receipt dated 24.03.1998, Ex.PW1/DA was expressly denied by the plaintiff viz. PW1 Vidyawati, during her cross examination. The testimony of DW4 Sayed Faizal Huda is unbelievable because during cross examination DW4 Sayed Faizal Huda was unable to justify how he had compared the disputed signatures of Late Sh. Dev Dutt Sharma on rent receipt dated 24.03.1998, Ex.PW1/DA with the photocopy of signatures of 1 In this regard, the Ld. Predecessor Judge had observed in the evidence sheet dated 01.08.2011, that the defendant viz. DW1 Sushil Pachori will have to interalia prove complaints, Mark DW1/D (colly) and settlement dated 05.11.1999, Mark DW1/E by summoning witnesses from other departments.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 9 of 18 Late Sh. Dev Dutt Sharma on the account opening form, Ex.DW3/A (OSR), when as per his own version, atleast two admitted signatures are required to understand the natural variations in the signatures of a person, because during cross examination DW4 Sayed Faizal Huda has admitted that in his report, Ex.DW4/A he had not mentioned that the formation, Mark A visible on the admitted signatures, Mark A1 is not visible in the disputed signatures, Mark A1; that the formation, Mark Z on the disputed signatures is not present in the admitted signatures, Mark A1 and that the dot, Mark Y on the disputed signatures, Mark D1 is not present in the admitted signatures, Mark A1 and because exfacie, the disputed signatures, Mark D1 on the rent receipt dated 24.03.1998, Ex.PW1/DA differ with the admitted signatures, Mark A1 on the account opening form, Ex.DW3/A (OSR). In respect of the complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B, the defendant has examined DW2 HC Devi Saran. The said witness had no personal knowledge regarding the said complaints. At point X to X on the complaint dated 29.10.1999, Ex.DW2/B, the defendant has stated that the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi was granted to him by Late Sh. Dev Dutt Sharma with the consent of the plaintiff and his sons, till the defendant finds his own place. In the complaint dated 29.10.1999, the defendant has not claimed that he is a tenant qua the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi at a monthly rent of Rs.500/. In the complaint dated 03.12.1999, Ex.DW2/A, the defendant has claimed himself to be a tenant qua the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi. From a combined reading of both the aforesaid complaints, it appears that the theory of the defendant being a tenant at the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi is an after thought of the defendant, incorporated for the first time in the complaint dated 03.12.1999, Ex.DW2/A. Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 10 of 18 Therefore, the complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B, cannot be accepted as sufficient proof for establishing that the defendant is a tenant qua the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi. Even otherwise, I find that the theory of the defendant that he is a tenant qua the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi cannot be accepted because admittedly the defendant is the son in law of Late Sh. Dev Dutt Sharma and the plaintiff, and it is unlikely in our society, that a father in law or a mother in law would demand rent from their son in law, qua such a small area of property, and because the defendant has never filed any petition under Section 45 of the Delhi Rent Control Act, 1958 against the plaintiff or the other LRs of Late Sh. Dev Dutt Sharma, despite disconnection of electricity at the basement of property no. E 22, Laxmi Nagar, Vikas Marg, Delhi since April 2004.
14. In view of the aforesaid findings, particularly the findings qua the rent receipt dated 24.03.1998, Ex.PW1/DA, complaint dated 03.12.1999, Ex.DW2/A and complaint dated 29.10.1999, Ex.DW2/B, the issue is decided in favour of the plaintiff and against the defendant. It is held that since the defendant is not a tenant qua 7' x 15' area in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi, the jurisdiction of this Court to entertain this suit is not barred by Section 50 of Delhi Rent Control Act, 1958.
ISSUE NO.4
15. This issue has been taken up ahead of the issues no.1 and 2 because the finding qua this issue has a direct bearing on the findings qua issues no.1 and 2.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 11 of 18 The onus of leading evidence qua issue no. 4 was placed on the defendant. In order to discharge the onus qua issue no. 4, the defendant has examined two witnesses viz. DW1 Sushil Pachori and DW5 Om Prakash. Per contra, the plaintiff has examined three witnesses viz. PW1 Vidyawati, PW2 Narender Kumar Gautam and PW3 P.C. Tiwari.
16. During examination in chief, DW1 Sushil Pachori has interalia deposed that Late Sh. Dev Dutt Sharma had not executed the will dated 18.03.1999, bequeathing the property no. E22, Laxmi Nagar, Vikas Marg, Delhi, in the name of the plaintiff; that on 18.03.1999, Late Sh. Dev Dutt Sharma was of unsound mind and could not have executed the will dated 18.03.1999 and that Late Sh. Dev Dutt Sharma could not have executed the will dated 18.03.1999 qua property no. E22, Laxmi Nagar, Vikas Marg, Delhi because he was not the exclusive owner of property no. E22, Laxmi Nagar, Vikas Marg, Delhi on 18.03.1999. During cross examination, DW1 Sushil Pachori has interalia deposed that the medical documents, Mark DW1/A relate to shoulder fracture suffered by Late Sh. Dev Dutt Sharma and that he has not filed any documents regarding mental illness of Late Sh. Dev Dutt Sharma.
17. During examination in chief, DW5 Om Prakash has tendered in evidence medical documents, Ex.DW5/A. During cross examination, DW5 Om Prakash has interalia deposed that he has no personal knowledge regarding the present case and that he had never examined Late Sh. Dev Dutt Sharma.
18. During examination in chief, PW1 Vidyawati has interalia deposed that by way of registered will dated 18.03.1999, Mark PW1/A, she has become the owner Civil Suit No.785/2009 Vidyawati v Sushil Pachori Page No. 12 of 18 of the property no. E22, Laxmi Nagar, Vikas Marg, Delhi. During cross examination, PW1 Vidyawati has interalia deposed that she had knowledge about the will dated 18.03.1999, Mark PW1/A since the date of its execution and that her son, Amit Bhardwaj had accompanied her husband, Late Sh. Dev Dutt Sharma at the time of execution of the will dated 18.03.1999, Mark PW1/A.
19. During his testimony, PW2 Narender Kumar Gautam had brought the record of suit no. 171/07, Sunita Pachori v Vidyawati decided on 14.01.2008 by Sh. Sudhanshu Kaushik, the then Ld. Civil Judge, Karkardooma Courts, Delhi and consigned to the record room vide Goshwara no.163/08. From the said record, the original will dated 18.03.1999, Mark PW1/A was seen and compared with the copy available on the file. Also, the will dated 18.03.1999, Mark PW1/A was exhibited as Ex.PW2/A (OSR).
20. During examination in chief, PW3 P.C. Tiwari has tendered in evidence the relinquishment deed dated 26.04.1988, Ex.PW1/K. During cross examination, PW3 P.C. Tiwari has deposed that he has no personal knowledge of this case.
21. After analyzing the probative value of the aforesaid evidence led by the parties qua this issue, I find that on account of the principle of estoppel provided under Section 116 of the Evidence Act, 1872, the defendant has no right to question the title of the plaintiff qua the property no. E22, Laxmi Nagar, Vikas Marg, Delhi. 1 1 In this regard, it is noteworthy that in his evidence affidavit, Ex.DW1/1, the defendant has deposed that he had been paying rent to the plaintiff. Also, it is noteworthy that in the complaint dated 03.12.1999, Ex.DW2/A and the complaint dated 29.10.1999, Ex.DW2/B, the defendant has stated that he was inducted in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi by Late Sh. Dev Dutt Sharma with the consent of the plaintiff.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 13 of 18 Further, I find that even otherwise, the failure of the plaintiff to prove the will dated 18.03.1999, Ex.PW2/A (OSR), in accordance with Section 68 of the Evidence Act, 1872, does not defeat the case of the plaintiff and does not make, Sh. Shashi Prakash, Sh. Amit Bhardwaj, Ms. Jyotsna, Ms. Sunita, Ms. Sarita, Ms. Manju, Ms. Usha and Ms. Jaya Bhardwaj, necessary parties to this suit because till a partition takes place between the legal heirs of Late Sh. Dev Dutt Sharma, all his legal heirs including the plaintiff are equal owners of property no. E22, Laxmi Nagar, Vikas Marg, Delhi and the defendant, cannot take benefit of the dispute, if any, between the legal heirs of Late Sh. Dev Dutt Sharma and continue to enjoy possession of basement of property no.E22, Laxmi Nagar, Vikas Marg, Delhi.1
22. In view of the aforesaid findings, the issue is decided in favour of the plaintiff and against the defendant. It is held that the present suit is not bad for non joinder and mis joinder of necessary parties viz. Sh. Shashi Prakash, Sh. Amit Bhardwaj, Ms. Jyotsna, Ms. Sunita, Ms. Sarita, Ms. Manju, Ms. Usha and Ms. Jaya Bhardwaj.
ISSUE NO.1
23. While deciding issue no.3, it has already been held that the defendant is the licensee of the plaintiff qua the licensed premises. Therefore, the only aspect that remains for consideration, qua this issue is, whether the license of the defendant qua 1 In this regard, it is noteworthy that in the written statement, the defendant has not pleaded that he has the right to occupy the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi on account of the consent given by any of the legal heirs of Late Sh. Dev Dutt Sharma. Also, it is noteworthy that the wife of the defendant, who is one of the legal heirs of Late Sh. Dev Dutt Sharma, has not appeared in the Court, in support of the case of the defendant.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 14 of 18 the licensed premises, was legally revoked by the plaintiff. In Section 61 of the Easements Act, 1882, it is stated that the revocation of license can be express or implied. The complaint dated 29.10.1999, Ex.DW2/B reflects that even before 29.10.1999, the defendant knew that the plaintiff does not wish to keep him as a licensee qua the licensed premises. Therefore, primafacie, it appears that the license of the defendant qua the licensed premises was revoked even before 29.10.1999. In the plaint, the plaintiff has relied upon the service of legal notice dated 28.06.2004, upon the defendant, to prove the revocation of license of the defendant qua the licensed premises. The service of the legal notice dated 28.06.2004 upon the defendant stands proved because the receipt of service of the legal notice dated 28.06.2004 was refused at H.No. D323, Ganesh Nagar, Pandav Nagar Complex, Delhi921 after 28.06.2004, which is a property owned by the wife of the defendant since 18.10.20002 and the property/address, at which the summons for settlement of issues of this suit were served upon the defendant on 06.04.2005. Therefore, it is held that the license of the defendant qua the licensed premises was legally revoked by the plaintiff by serving legal notice dated 28.06.2004, upon the defendant.
24. In view of the finding given qua issue no.3 and the aforesaid finding qua the revocation of license of the defendant qua the licensed premises, by service of the legal notice dated 28.06.2004 upon, the defendant, the issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to decree for possession qua the licensed premises viz. 7' x 15' area in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi as shown in red colour in the site 1 The said fact can be inferred from the returned envelope/AD card, Ex.PW1/G. 2 During cross examination, the defendant viz. DW1 Sushil Pachori has admitted that he had purchased H.No. D323, Ganesh Nagar, Pandav Nagar Complex, Delhi92, in the name of his wife, on 18.10.2000.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 15 of 18 plan, Ex.PW1/B. ISSUE NO.2
25. While deciding issue no.3 and 1, it has already been held that the defendant is a licensee of the plaintiff qua the licensed premises and the license of the defendant qua the licensed premises was revoked by the plaintiff by serving legal notice dated 28.06.2004, Ex.PW1/C upon the defendant. Therefore, the issue is decided in favour of the plaintiff. It is held that the plaintiff is entitled to recover mesne profits/damages from the defendant. On the aspect of rate of mesne profits/damages payable by the defendant, the defendant has neither cross examined the plaintiff, PW1 Vidyawati nor led any evidence. Therefore, it is held that the plaintiff is entitled to recover mesne profits/damages from the defendant at the rate of Rs.2500/ per month. Today, the Ld. Advocate for the plaintiff had made a statement before this Court that due to typographical errors in the plaint, the plaintiff had claimed mesne profits/damages with effect from 01.07.2003 and the correct date should have been 01.07.2004. In view of the said statement, it is held that the plaintiff is entitled to recover mesne profits/damages from the defendant from 01.07.2004 till the handing over of the licensed premises by the defendant to the plaintiff. The record of the Court file shows that during the pendency of this suit, pursuant to Order dated 08.05.2006, the defendant has paid occupation charges at the rate of Rs.500/ per month to the plaintiff, for the period May 2004 to December 2016, amounting to Rs.76,000/. Therefore, it is held that the defendant shall be entitled to the benefit of the said payment, while calculation of mesne profits/damages payable by the defendant, in pursuance of the decree passed on the basis of this judgment.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 16 of 18 Relief
26. In view of the aforesaid findings, the present suit is decreed in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant, possession of the licensed premises viz. 7' x 15' area in the basement of property no. E22, Laxmi Nagar, Vikas Marg, Delhi as shown in red colour in the site plan, Ex.PW1/B and damages/mesne profits at the rate of Rs.2500/ per month, from 01.07.2004 till the handing over of possession of the licensed premises by the defendant to the plaintiff. Also, it is held that defendant shall be entitled to the benefit of payment of Rs.76,000/, made in pursuance of Order dated 08.05.2006, while calculation of mesne profits/damages payable by the defendant, in pursuance of the decree passed on the basis of this judgment.
27. Before parting with this Judgment, it is clarified that the objection taken by the defendant to the effect that the plaintiff has not properly valued this suit for the purpose of Court fees and jurisdiction, has not been factored in the aforesaid adjudication because no issue was framed in this regard by the Ld. Predecessor Judge, because even during final arguments, the said objection was not pressed by the Ld. Advocate for the defendant, because in respect of the said objection, the defendant has only examined DW6 Nasir Khan, whose testimony relates to the value of property no. E22, Laxmi Nagar, Vikas Marg, Delhi in 2014 and not 2005, the year of filing of this suit and because, in effect, this Court has no evidence to dislodge the valuation of this suit for the purpose of Court fees and jurisdiction, as made by the plaintiff.
Civil Suit No.785/2009Vidyawati v Sushil Pachori Page No. 17 of 18
28. The Reader shall prepare the decree sheet, as per the aforesaid findings, after supply of additional Court fees by the plaintiff. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Jay Thareja)
today on 30.01.2017 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Civil Suit No.785/2009
Vidyawati v Sushil Pachori
Page No. 18 of 18