Delhi District Court
M/S Jaina Properties Pvt Ltd vs Gurbachan Singh on 13 September, 2024
IN THE COURT OF SH. ANIL KUMAR PASWAN, LD. DISTRICT
JUDGE-04 (EAST), KARKARDOOMA COURTS, DELHI.
Suit No. 244/2023
M/s Jaina Properties Pvt Ltd
Through its Managing Director
Shri Rakesh Jaina
M-132, Connaught Circus,
New Delhi-110001
...........Plaintiff
Versus
1. Shri Gurbachan Singh
S/o Shri Basant Singh
R/o 40-A, Ram Nagar, Krishna Nagar,
New Delhi-110051
2. Shri Ashwani Kumar Gupta
S/o Shri Nand Lal Chopra
R/o 11/246, Geeta Colony
Delhi-110031
3. Shri Sunil Kumar Gupta
S/o Shri Anand Parkash Gupta
R/o 3926, Ajmere Gate
Delhi-110006
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 1 of 29
4. Shri Talukdar Singh
S/o Shri Namwar Sigh
R/o A-43, First Floor, MCIE,
Mathura Road, New Delhi-110044
5. Mrs. Neerja Gulati
W/o Shri Navneet Gulati
R/o G-161, Ground Floor
Preet Vihar, Delhi-110092
6. Shri Amarjeet Singh @ Pummy
C/o M/s S. S. Diamonds
Flat no. 121, Vardhman Tower,
Plot no. 16, 17 & 18, Preet Vihar,
Commercial Complex
New Delhi-110092
7. M/s Puncture Man
Junction of Tyres Pvt Ltd
117-119, First Floor, Vardhman Tower,
Plot no. 16, 17 & 18,
Preet Vihar Commercial Complex
New Delhi-110092
...........Defendants
Date of Institution : 18.05.2023
Date of final arguments : 28.08.2024
Date of decision : 13.09.2024
Final decision : Decreed
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 2 of 29
JUDGMENT
CASE OF PLAINTIFF
1. The present suit has been filed for permanent and mandatory injunction and recovery of damages and future damages.
2. The plaintiff is a private limited company and is incorporated under the Companies Act 1956 and Sh. Rakesh Jaina has been authorised to pursue this case as the Managing Director of the plaintiff company vide board resolution dated 01.05.2023. The plaintiff submits that they are builder and promoter and are engaged in building activities. For that purpose plaintiff acquired lease hold rights in the building constructed on the plot no. 16, 17 and 18 Preet Vihar Commercial Complex, Delhi-110092 from Delhi Development Authority (DDA) in the open auction conducted by the DDA wherein the plaintiff company was the highest bidder. After completing formalities possession of the plot was taken and as per sanction, building was constructed alongwith various spaces which were allotted to various persons on license basis as per the terms and conditions.
3. Defendant no.1 to 5 are the licensees of Spaces numbers 116A, 117, 121, 122 and 123A respectively in the building "Vardhman Tower" constructed on the plot no. 16, 17 and 18 Preet CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 3 of 29 Vihar Commercial Complex (shown in red color in the site plan). The license agreement was duly signed and accepted by defendant no. 1 to 5.
4. As per the terms of auction, the plaintiff is bound to pay the ground rent and e-ground rent every six months in advance to DDA without any demand being raised by DDA and upon failure the plaintiff is liable to pay interest/penalty. In addition, DDA has right to cancel the lease and resume the possession of entire building. The defendants no. 1 to 5 are bound to make the proportionate payment of ground rent and e-ground rent every year in advance. The plaintiff company regularly made payments of the said charges to the DDA in advance every year as the DDA is very punctual and had given due importance to the mandatory payment of ground rent and e-ground rent.
5. Similarly as per Clause 16 A of the Agreement signed between the parties, the defendants no. 1 to 5 are equally bound by the terms of auction/perpetual lase of the plot on which the building is constructed. As per the notice/knowledge of plaintiff, the defendant no.1 to 5 had sub-let, assigned or parted with the possession of the above said space no. 116A, 117, 121, 122 and 123 A at the above mentioned premises to defendant no.6 and defendant no.6 had transferred the possession of the space no. 116A and 117 to the defendant no.7 and the defendant no.6 is in possession of space no. 121, 122 and 123A, as such the possession CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 4 of 29 of defendant no. 6 & 7 over the above said spaces are illegal and void and they are only a trespasser in the eyes of law.
6. It also came to the notice of plaintiff that defendant no.6 has unauthorisedly and illegally demolished the common stair case marked A in the site plan enclosed in violation of the terms and conditions. Further, they have also not paid the ground rent and e- ground rent as agreed.
WS OF DEFENDANT NO.2
7. Defendant no.2 has filed written statement and has submitted that the present suit is not maintainable in the eyes of law as the same is barred by the provision of Section 41 (i) and (j) of the Specific Relief Act 1963 on the ground that the plaintiff is not having any personal interest in the present matter and the plaintiff has not approached this Court with clean hands and has suppressed the true and material facts regarding the ownership of impugned property in Jagdamba Tower, Plot no. 16 to 18, Preet Vihar, Commercial Complex. Further the plaintiff has not paid the requisite Court fees and the suit is not properly valued and verified. The defendant has also taken a stand that plaintiff has not impleaded DDA as necessary party as the alleged premises is the property owned and managed by DDA and plaintiff is having limited rights to use and enjoy the same also it is submitted that the suit of plaintiff is not having proper site plan and there is no cause CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 5 of 29 of action in favor of the plaintiff as the suit is based on false and fabricated story.
8. Further, the plaintiff had violated the rules guidelines and norms of DDA and in a very illegal manner had sold the common spaces, converted the common spaces into shop and further sold the said shops to the present occupier, sold the open terrace spaces which is against the by-laws of DDA and had also extended the area of the market. The defendant had taken stand that the plaintiff is charging illegal money in the name of ground rent charges from the occupier of the shops and unit holders, whereas as per the norms of the DDA, the plaintiff is only entitled to charge 2.5% of the total consideration amount of the perpetual lease dated 05.08.1988. The consideration amount of lease deed is Rs. 36,51,000/- and the 2.5 % of the same would come to Rs. 91275/- of the entire complex which is further calculated as per area of the entire plot no. 13 and is equal to 173.09 (1863.125 sq fts.) sq mts. The plaintiff is charging ground rent as per area for the area of 10951 sq fts for which the plaintiff is charging Rs. 134259.26/- in lieu of ground rent charges for the entire complex from the rate of per square feet of Rs. 12.26 whereas the plaintiff is entitled to charge Rs. 8.33 per sq ft. only. Hence, the plaintiff has himself violated the norms of DDA and is extracting illegal money from the unit/shop occupier.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 6 of 29
9. Defendant has further contended that the plaintiff is acting against the sanction plan dated 31.05.1998 in which plaintiff himself shows shops constructed on the ground floor and is comprising nine shops, on first floor 14+1 store, second floor 14+1 store, third floor 14+1 store and one basement floor. Whereas as per the document of the plaintiff, regarding installation of electricity meters, the plaintiff had shown basement-one, ground floor-nineteen, first floor-sixteen, second floor-sixteen, third floor- sixteen, which total comes to 68 and therefore, the plaintiff has constructed additional units without sanction plan from DDA.
WS OF DEFENDANT NO.6
10. WS has been filed by defendant no.6 and it is submitted that the present suit is not maintainable in law as the same has been filed against a dead person. Further there is no privity of contract between the plaintiff and defendant no.6 and the plaintiff has not come to the Court with clean hands as the property has not been built as per the sanctioned plan and rules of DDA/MCD as there ought to be three stair cases. Further, there is only one stair case and two other space for stair case has been converted into shops by the plaintiff for their illegal gains and profit. Besides, it is submitted that the plaintiff has not duly signed and verified and there can be no suit for recovery of possession and damages as defendant no.6 is not an allottee. Also the suit is bad for misjoinder and non joinder of parties as DDA is not impleaded as necessary CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 7 of 29 and proper party.
11. A defence has been taken that the defendant no.6 is a bonafide purchaser and had purchased the suit property on payment of entire sale consideration amount to its lawful owner and got executed necessary sale documents after completing all formalities and payment of its requisite charges to the authority concerned. The liability to pay ground rent charges to the DDA has been denied by the defendant no.6 and it is submitted that defendant no.6 is not bound by any clause in the license agreement especially clause no. 27.
REPLICATION/REJOINDER
12. Replication has been filed to the written statement of the defendant no.6, wherein the plaintiff has reaffirmed and reiterated the contents of the plaint and have denied the contents of the written statement of the defendants. It is submitted that defendant no.6 has no right in the suit property and he is merely a trespasser and illegal occupant in the suit property. Further the plaintiff has not entered into any agreement with the defendant no.6 and the defendant no.1 to 5 were the licensees and whose license rights have been terminated as per clause 29 of the license agreement and they had already accepted the refund of security deposit which clearly amounts to surrender of all their rights as per clause 38 and 39 of the License Agreement.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 8 of 29
13. The document if any annexed by the defendant no.6 in his WS in respect of the suit property are prima facie illegal and fabricated and have no recognition or legality in law and cannot be considered by this Court as they are not registered. The defendant no.1 to 5 despite being fully aware of the license agreement and its clauses such as Clause no. 27 in respect of the suit property may have entered into illegal documents in respect of some of suit properties intentionally, deliberately and fraudulently and also violated the terms and conditions of license agreement where they could not have entered into agreement with the third party in any manner without prior approval of the lessor and the licenser.
ISSUES
14. On the basis of pleadings of the parties, following issues have been framed for trial on dated 12.04.2024:-
1. Whether the plaintiff is entitled for permanent injunction against the defendants to transfer the possession of the suit property as mentioned in prayer A? OPP
2. Whether the plaintiff is entitled to decree of mandatory injunction against the defendants to vacate the suit property as mentioned in prayer B? OPP.
3. Whether the plaintiff is entitled to decree of damages @ Rs. 10,000/- per month as mentioned in prayer C? OPP.
4. Whether the plaintiff is entitled to decree of future damages @ Rs. 10,000/- per month as mentioned in prayer D? OPP.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 9 of 29
5. Whether the plaintiff is entitled to cost against the defendants? OPP.
6. Whether the suit is barred due to mis-joinder of parties? OPD-2 & 6.
7. Whether the plaint has not been filed by the duly authorised person? OPD -2 & 6.
8. Whether the suit of plaintiff is maintainable in its present form? OPD -2 & 6.
9. Relief.
PLAINTIFF'S EVIDENCE
15. In order to prove his case, plaintiff examined Sh. Naresh Kumar as PW1 by way of affidavit in evidence Ex.PW1/A. He relied upon the following documents-
1. Attested copy of board resolution dated 13.05.2024 passed in favour of the deponent is Ex.PW1/1.
2. Copy of incorporation certificate is Ex.PW1/2 (OSR).
3. Attested true copy of the resolution dated 01.05.2023 is Ex.PW1/3.
4. Copy of perpetual lease of plot no. 16 is Ex.PW1/4 (OSR).
5. Copy of perpetual lease of plot no. 17 is Ex.PW1/5 (OSR).
6. Copy of perpetual lease of plot no. 18 is Ex.PW1/6 (OSR).
7. Site plan is Ex.PW1/7.
8. Copy of licence agreement executed between the plaintiff and defendant no. 1 is Ex.PW1/8 (OSR).
9. Copy of licence agreement executed between the plaintiff and defendant no. 2 is Ex.PW1/9 (OSR).
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 10 of 29
10. Copy of licence agreement executed between the plaintiff and defendant no. 3 is Ex.PW1/10 (OSR).
11. Copy of licence agreement executed between the plaintiff and defendant no. 4 is Ex.PW1/11 (OSR).
12. Copy of licence agreement executed between the plaintiff and defendant no. 5 is Ex.PW1/12 (OSR).
13. Copy of the letter dated 20.01.2021 is marked as Mark A.
14. Copy of said advertisement/press note is Mark B (mentioned in affidavit as Ex. PW1/13 (OSR) which is now de-exhibited).
15. Copy challans of the payments and acknowledgments from the DDA are Ex.PW1/14 (OSR) (colly).
16. Copy of demand letters are Ex.PW1/15 (OSR) to Ex.PW1/19 (OSR) and copy of postal receipts are Ex.PW1/20 (OSR) to Ex.PW1/29 (OSR).
17. Notice of cancellation/termination with postal receipts are Ex.PW1/30 (colly).
DEFENDANT'S EVIDENCE
16. In order to prove his case, defendant examined defendant no. 6 Sh. Amarjeet Singh S/o Late Sh Ajit Singh Proprietor of M/s S S Diamonds International as DW1 by way of affidavit in evidence Ex.DW1/A.
17. I have heard Ld counsel for plaintiffs and Ld counsel for the defendants and I have perused the record.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 11 of 29 My observation is as under:-
ISSUES NO. 1 AND 218. All these issues are taken up together being connected and onus to prove these issues is upon the plaintiff.
19. As per order dated 09.01.2024, the right to file WS for defendant no.2 was closed. Later on WS was filed on 22.05.2024, however, as the right to file the WS was closed, therefore, the WS filed later on cannot be looked into.
20. The plaintiff were allotted the plot numbers 16, 17 and 18, Preet Vihar Commercial Complex, Delhi -110092 from DDA in an open auction and thereafter the plaintiff has constructed a building on that property. After construction the defendants no. 1 to 5 were given license (Ex.PW1/8 to Ex.PW1/12) with respect to the shop numbers, 116A, 117, 121, 122 and 123A.
21. In order to determine and adjudicate this case, different aspect needs to be decided under various heads.
PAYMENT OF GROUND RENT/ OTHER CHARGES
22. According to the plaintiff, the defendants were bound to make the payment of proportionate ground rent, e-ground rent every year in advance and the license fee in advance. The plaintiff CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 12 of 29 company according to its perpetual lease agreement with the DDA (Ex.PW1/4 to Ex.PW1/6) is regularly making the payment so as to avoid the cancellation of lease of the entire building by DDA in compliance of the perpetual lease agreement.
23. Further according to the plaintiff, the defendants were bound by clauses 16(a), 16(b), 17(a), 17(b), 17(c) and 20(f) of the agreement with the plaintiff and also the perpetual lease between plaintiff and the DDA. For that purpose, several notices (Ex.PW1/15 to Ex.PW1/19) were sent to the defendants, however, no reply was sent regarding those notices. Thereafter, the license was cancelled vide Ex.PW1/30. Alongwith the cancellation, the amount paid by the defendants to the plaintiff at the time of execution of the license agreement was also returned through cheques vide Ex.PW1/30.
24. According to the agreement between plaintiff and defendant, following are the relevant clauses:-
16.(a) The Space Licencee will pay his share of property/house taxes, Ground Rent, Vacant Land Tax, Fire tax, Education Tax, scavenging tax, Water Charges, Fire safety, Fire Fighting Equipment charges, Electric Meters, Electric Connection or any other taxes/charges in advance every year, which may be levied on the property for the period or construction as well as thereafter. The said charges shall be borne by the Licencee in proportion to the areas of his space, irrespective of the fact that Licencee is not enjoying the/any benefit of his space since it has not been CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 13 of 29 completed. The charges become payable from the date of first payment of the space to the name of Licencee.
The amount payable by the Licencee will be apportioned to each Space Licencee by the Builders and the Space Licencee(s) will be required to pay the same immediately and the same shall be conclusive, final and binding upon the Licencee. The Builder shall be competent to recover the same either from the property, the subject matter of the present agreement, or from the person of the Licencee, or from any of his other assets. The Builders will not be responsible for any consequences arising therefrom and the Builders will be entitled to take any other suitable action including discontinuation of the services i.e. water supply and electricity etc. In addition to this, recovery of such dues plus surcharges besides any losses or damages, which may become payable to Builders or to other Licencee due to such payments shall be unprejudiced entitlement of the Builders. The Builders or their authorised representatives, firms or agencies or the corporate Body, Society mentioned hereunder as may be nominated or set up by the Builders will continue to manage the properties and recover all dues as payable by the Lincencee, irrespective of the fact whether the Space(s) are transferred to any co- operative society or Body Corporate of individuals singly or in association with other Licencees. The provision of clause (29) hereof shall apply in case of non-payments. The Licencee shall pay these charges immediately on Receiving Demand from the Builder or the Corporate Body as the csea may be. It is confirmed and agreed by the Licencee that the liability of these charges is of the Licences to the builder/or his nominee Society etc. The Licencee would not be concerned in any manner, whether the Builder/Promoters/Society etc. have received demand from the authorities or not.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 14 of 29
(b) These charges shall be paid by the Licencee in advance upto 31st March following the date of occupation and thereafter yearly in advance by the 30th of April of every year for the period from 1 st April to 31st March of the following year irrespective of whether any notice is received from the builder (or his nominee) or not. Nevertheless at the time of possession if the possession is offered after 1 st Nov. of the current year, the charges will be payable for the next financial year also in addition to the remaining period of the current financial year.
(c) The builder/promoter or its nominee will utilise the same at the appropriate time and the Licencee shall not question the same.
25. The above mentioned rule categorically says that the licensee shall pay the various charges including the ground rent. The defendant no.6 has deposed that the suit property was transferred to him by defendant no.1 for valuable consideration and he is the bonafide purchaser. Further, they are not the recorded allottee with the plaintiff and therefore they are not liable to pay the ground rent charges.
26. The facts which are admitted need not be proved as per Section 58 of Indian Evidence Act.
Section 58 of Indian Evidence Act- Facts admitted need not be proved-
"No fact needs be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 15 of 29 admit by any writing under their hands, or which by any rule of pleading of force at the time they are deemed to have admitted by their pleadings. Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
27. If the testimony of DW1 is perused carefully, the following is the relevant portion of evidence of DW1:-
"No agreement is exhibited between M/s Jaina Properties and me till date. It is correct that I am in possession of five spaces which are subject matter of the suit. It is correct that the allottee of the five spaces which are the subject matter of the suit namely, Sh. Gurbachan Singh, Sh. Ashwini Kumar Chopra, Sh. Sunil Kumar Gupta, Sh. Talukdar Singh and Mrs. Nirja Gulati.
It is correct that I am not paying any ground rent, e-ground rent, licence fee, etc. of the suit spaces to the plaintiff company which is payable to the DDA. I am not aware of the fact that in case of non-payment of ground rent, e-ground rent, the DDA has right to cancel the lease of the entire plot and DDA has published public notice in newspaper in this regard. (Vol. I am ready to pay all dues and rent in case the builder provide all legal and legitimate facilities i.e. lift, toilets and staircase as per law)."
28. No documentary evidence has been placed on record to show the nature of possession of defendant no.6 (Amarjeet Singh). There is admission that he is in possession of five shops which was allotted to different persons who are also party in this case CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 16 of 29 (defendant no.1 to 5), however, how he obtained the possession of shops has not been substantiated by evidence. He may have purchased the shops for valuable consideration but no document has been placed on record and proved by the defendant showing the transaction. Nothing has been shown regarding the origin of possession with the defendants keeping in view that, a property which is a subject matter of license cannot be sold for valuable consideration. Plaintiff has placed on record the original license agreement with DDA which is first in point of time. If the defendant has purchased the suit property for valuable consideration then this fact is specially within their knowledge and has to be proved through cogent evidence. The record exhibited by plaintiff shows that they were licensees of DDA and they have duly produced the relevant documents which have not been disputed by the defendant being forged and fabricated. Therefore, on one hand the plaintiff has produced and proved documents in their favor and on the other hand the defendants have no documents showing their entitlement and escape from the liability of paying the ground rent.
SUBLETTING OR ASSIGNMENT
29. The next aspect is that there is violation of the agreement by defendant no.1 who had illegally sublet assigned or parted with the occupation of the above said space in the building 'Vardhman Tower' to the defendant no.6 who is in illegal occupation. In this context it is relevant to peruse the relevant portion of terms and CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 17 of 29 conditions which are as follows-
"27. Transfer of licencee rights of the Space will be at the discretion of the builder. Administrative charges as prescribed by the builders and also that of such bodies from time to time will be paid by the transferer at the time of transfer. Any change in the name (including/addition/deletion) registered as Licencee with the Company will be deemed as transfer for this purpose. The transfer charges for transfer fo the rights in space amongst family member husband, wife and their children) will be 50% of the normal transfer charges, for each transfer. Claims if any, between the transferee and transferee will be their mutual concern and the builders will not be a party to this.
38. The provisions of Delhi Apartment Ownership Act, 1986 are not applicable to this agreement as the Licensor has given only rights to the Licencee to use the space specified in the agreement for a period of five years and thereafter to claim refund of the agreed deposit without interest any time after the expiry of five years from the date of first payment on certain terms and conditions specified hereunder in this agreement.
39. The Agreement is for five years and the stipulated Agreed Deposit is refundable without interest at any time after the expiry of five years from the date of Licence Agreement on the condition that at the time of the refund a nominal Licence fee equal to the amount calculated at the rate of Rs. 5/- per sq. ft. per months from the date of Licence Agreement to the date of occupation of the space by the Licensor/Builder, shall be charged from the Licencee. Thereupon, the Licncee shall, if called upon by the Licensor/Builder, remove from the stipulated space all furnishings, belonging to him or his nominee, and all fittings or fixtures therein CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 18 of 29 installed with the consent of the Licensor provided always that if such removal causes any damage to the stipulated space, the same will forthwith be made good by Licencee or the cost of making good the same will be paid by him to the Licensor."
30. Therefore no discretion/permission of the builder has been placed on record by defendant no.1. Defendant no.6 who is the purchaser/transferor has also failed to place on record discretion/permission as per the rule above mentioned. The plaintiff has substantiated its claim through the terms and conditions in the agreement. Defendants are also bound by the initial agreement between DDA and the plaintiff and as per the admission of defendant no.6 that he has purchased the suit property from defendant no.1, it becomes imperative upon him to be bound by the terms and conditions to which the defendant no.1 was bound as he stepped into his shoes through the transfer. The defendants cannot challenge the primary document which establishes the origin of suit property in this case. In case there is any change or other terms to be followed, the onus is upon the defendant to establish and prove the same. However defendants have failed to place on record any other terms and condition which could prove otherwise.
ALTERATION/CHANGES IN THE SUIT PREMISES
31. Regarding the change of the structure, it is submitted that the defendants in an unauthorised and illegal manner demolished the CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 19 of 29 common stair case marked A in the site plan Ex.PW1/7 and they have converted the said stair case space into his own workshop. Defendants also raised unauthorised construction in the said space by removing partition walls, columns and beams and also made major changes in the structure of the space in violation of clause 11, 20(f) and 21(a) of the license agreement along with violation of the building bylaws.
32. According to the agreement between plaintiff and defendant, following are the relevant clauses:-
"21. If, after the handing over of the said Space to the Licencee, any additions or alterations in or about or relating to the said building are required to be carried out by the Govt./Delhi Development Authority/ Delhi Municipal Corporation of or any other Statutory Authority, the same shall be carried out by the Licencee in co-operation with the Licencees of the other spaces in the said building at their own costs and risks and the builder/promoter shall not be, in any manner, liable or responsible for the same. All such additions and alterations shall be carried out after getting the plans thereof sanctioned by the Delhi Development Authority/ Delhi Municipal Corporation or other concerned Authorities.
20(f) That the terms and conditions of the lease have duly been notified to the Licencee who has fully understood the same. In case, if the premises is misused in any manner against the terms of the lease either of its user or raising any construction, additions or alterations or commits any act in violations of the said terms of the lease or omits to do such acts which are necessary to be followed in terms of the lease then in consequence thereof by CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 20 of 29 the office of the DDA/MCD Authorities or by any other statutory or semi-Statutory Body shall be born by the Licencee himself. It can be penalty, compensation or composition charges or any other charges or interest due thereupon or even cancellation of the lease, then consequence of the same either any payment, penalty, compensation, composition having any right to the builders.
21(a). The Licencee shall not at any time demolish the Space or any part thereof agreed to be taken by him nor will he at any time make3 or cause to be made any additions alterations or whatever nature to the said Space or any part thereof."
33. In place of refuting / denying the fact that defendants have not changed the structure/demolished any part of the suit premises, the defendant has leveled allegations that the plaintiff has themselves converted the stair case into shops and two bathrooms into shops. However no document has been placed on record to show the conversion/demolition. If the plaintiff being licensee of DDA has raised any illegal construction or demolished any part of the structure, then the licensor/DDA has a right to take necessary action against the licensee / plaintiff. The DDA only has the locus standi to take up this issue and the defendants are free to approach the DDA for redressal of the grievance. However this Court cannot consider these submissions at this stage without any evidence being led on this aspect. The defendant cannot take advantage of the loop holes in the story of plaintiff when the defendant himself has no documents to produce regarding his possession of the suit property.
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 21 of 29 POSSESSION OF DEFENDANT
34. Defendant no.6 has taken a stand that he has acquired rights in the suit property from defendant no.1 who had transferred the suit property to him for valuable consideration and execution of requisite documents. However the defendant no.6 has not placed on record any document showing any transactions between defendant no.1 on one side and defendant no.6 being the second party. There is no evidence as to who received the payment made by plaintiff of the amount which was received at the time of execution of license agreements/endorsement as return. On one hand, the defendant seeks to retain the possession and on the other hand, nothing has come on record regarding the various cheques drawn in the name of defendants. There is no cross examination on this aspect. Therefore there is deemed acceptance on the part of defendants. Though there are some documents like GPA, SPA dated 24.02.1995 along with Will, Agreement, receipt etc. executed between defendant no.2 and defendant no.6, however those documents were not proved by the defendant. In view of the discussion above, both these issues are decided in favor of the plaintiff and against the defendants.
ISSUE NO.6
35. It is submitted that the DDA is a necessary party in the present matter and has not been impleaded. In the present case the defendants have not disputed the license agreement entered into CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 22 of 29 between the plaintiff and DDA. It is not the case of defendant that the license agreements Ex.PW1/4 to Ex.PW1/6 are forged and fabricated. They have only taken the defence that they are not bound by the terms and conditions of those license agreements. Instead, there is admission that the defendant has purchased the suit property from other defendants. When the agreement between the plaintiff and DDA is not disputed, there is no need to implead the DDA as a party. Further, the defendants also had liberty to implead DDA as the party in this case, however they have failed to do so. Therefore, this issue is decided in favor of the plaintiff and against the defendant.
ISSUES NO. 7 AND 836. The onus to prove these issues was upon the defendants. No evidence has been led in this regard by the defendants. Instead, the plaintiff has placed on record copy of board resolution Ex.PW1/1 and resolution dated 01.05.2023 Ex.PW1/3 to prove the authority of PW1 to depose. Therefore, these issues are decided in favor of the plaintiff and against the defendant.
APPLICATION U/O 7 RULE 11 CPC
37. Application has been filed U/o 7 rule 11 CPC by defendant no.6. It is submitted that the present suit is without any cause of action as defendant no.1 and 4 have already expired. Further the CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 23 of 29 plaint is not specific regarding the date when the plot in question were acquired and the date of license. Further the agreements upon which the plaintiff is relying are not registered and no stamp duty has been paid on it. Apart from the other objections it is submitted that the non payment of ground rent does not create any cause of action in favor of the plaintiff in totality.
38. The defendant has filed various judgments regarding right to sue and cause of action. However some judgments are squarely not applicable to this case as the same are classical cases pertaining to HUF property. The record shows that the present suit has been filed by plaintiff on the basis of license agreement and the plaintiff has placed on record the original license agreement with the Government authority i.e DDA and they have shown that there is a property the license whereof was granted in their favor and the possession of that property has been obtained by the defendant.
39. Further, to establish that the defendants are in unauthorised occupation of the suit property, the plaintiff has to establish through trial and evidence that they are entitled to the possession of the property for which they have procured license.
40. The Hon'ble Supreme Court held in 'Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by LRs' dated 13.03.2019 that the cause of action are bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 24 of 29 the defendant. Further it was also held that a cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. License was granted to the plaintiff regarding plots on which shops were constructed the possession whereof is with the defendant. There is a question the answer whereof will be ascertained through trial as to how the property came in possession of the defendants. Therefore, it can be said that there is cause of action in favor of the plaintiff which they have to prove in this case by adducing evidence. Also the submission that the suit is filed against dead persons is also not acceptable as the same is beyond the plaint. Further the license is clearly mentioning the plot numbers and the property which was given to the plaintiffs along with date of agreement. Therefore, the contentions that the plaintiff is not disclosing the date and space is not acceptable keeping in view that the license agreements Ex.PW1/8 to Ex.PW1/12 are detailed documents.
41. The defendant has submitted that the present suit is barred by limitation. The record shows that the cause of action arose in favor of the plaintiff when the enhanced ground rent was lastly raised through registered AD Post and further arose when license agreement were canceled and the defendant continued in possession of the suit property without any justification. Issue of limitation herein is a mixed question in law and fact and had to be decided as per evidence and trial. In the trial the defendant could CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 25 of 29 not produce any document to show their nature of possession. However the plaintiff has produced the document in their favor and through those documents it is proved that the defendant is in unauthorised occupation and that unauthorised occupation is a continuous state of affairs. Still the defendant is in possession of the property without any document being shown in support of that possession. It is submitted that the defendant had purchased the suit property from another defendant for valuable consideration, however, the suit property is a license property which cannot be got bought and sold. Hence this submission that the suit is barred by limitation cannot the accepted.
42. Another submission came from the side of the defendant that the title documents were not registered under The Indian Registration Act and cannot be accepted. It is a settled law that there is a difference between the lease and license.
43. In the classical case of 'Associated Hotels of India Ltd. VS R. N. Kapoor', dated 19.05.1959, the Hon'ble Supreme Court has differentiated between the lease and license. It says that-
"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under s. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is there-' fore a transfer of an interest in land. The interest, transferred is called the leasehold CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 26 of 29 interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas s. 52 of the Indian Easements Act defines a licence thus :
"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose'. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest n the property. There is, therefore, cleat distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee."
44. In view of the above law laid down, no right, title or interest is created through license as compared to a lease. Therefore, there is no requirement that the document pertaining to license should be registered as per Section 17 of the Indian Registration Act. Further CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 27 of 29 regarding the improper Court fees, the contention of the defendant is that the Court fee has to be paid as per the market value of the suit property is also not acceptable as market value of the said property cannot be ascertained being a licensed property. Keeping in view the above observations and other reasons in the judgment, the application U/o 7 rule 11 CPC is dismissed.
ISSUES NO.3, 4 AND 545. No evidence has been led in this case regarding the nature and extent of damages to be paid to the plaintiff. The onus to prove this issue was upon the plaintiff and the plaintiff has failed to adduce evidence regarding the same. Nothing is available on record to estimate the damages. As the suit property is a licensed property, the parameters of rent law and sale cannot be applied to the same. Therefore, the plaintiff has failed to discharge the burden and therefore all these issues are decided in favor of the defendant and against the plaintiff. However, the plaintiff can as per law and after proper estimate claim the damages.
RELIEF
46. In view of the discussion above, it seems that the plaintiff has a better case in their favor supported by evidence and the defendant has no case at all as there is no evidence in favor of the defendant. Therefore, the plaintiff is entitled to the following CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 28 of 29 reliefs-
(i) Decree of permanent injunction thereby restraining the defendants to transfer the possession of the suit property to any third person or to create any third party interest in the suit property i.e space nos. 116A, 117, 121, 122 and 123A respectively in the building "Vardhman Tower" constructed on the plot no. 16, 17 & 18 Preet Vihar Commercial Complex Delhi-110092 in favor of the plaintiff and against the defendant, and
(ii) Decree of mandatory injunction thereby restraining the defendants to vacate the suit property and remove themselves and their belongings from the suit space nos. 116A, 117, 121, 122 and 123A respectively and the stair case space Marked A illegally occupied by the defendant no.6 in the building "Vardhman Tower"
constructed on the plot no. 16, 17 & 18 Preet Vihar Commercial Complex Delhi-110092 in favor of the plaintiff and against the defendant.
Decree sheet be prepared accordingly. Digitally
signed by
ANIL ANIL KUMAR
PASWAN
File be consigned to record room. KUMAR Date:
PASWAN 2024.09.13
16:24:26
+0530
Pronounced in the open court (Anil Kumar Paswan)
on 13.09.2024 DJ-04 (EAST), KKD, Delhi
13.09.2024
CS no. 244/23 M/s Jaina Properties Pvt Ltd Vs. Gurbachan Singh Page no. 29 of 29