Delhi District Court
Addl. District Judge : Delhi vs Sh. Ramesh Chand Sahni on 8 January, 2008
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IN THE COURT OF SH. PARAMJIT SINGH
ADDL. DISTRICT JUDGE : DELHI
Suit No.-98/03/01
1 Sh. Neeraj Madhok
S/o Sh. Ved Raj Madhok
2 Smt. Geeta Madhok
W/o Sh. Rajiv Madhok
Both r/o 301-302, Amibika Apartments,
Rohini, Delhi-110085 ...Plaintiffs
Vs.
1 Sh. Ramesh Chand Sahni
S/o Sh. Chunni Lal Sahni
2 Smt. Krishna Anand
W/o Sh. Shyam Sunder Anand
3 Sh. Shyam Sunder Sahni
S/o Sh. Chunni Lal Sahni
4 Smt. Nirmal Anand
W/o Sh. Satpal Anand
2
5 Smt. Lalita Anand
W/o Sh. Anil Anand
6 Sh. Subhash Chandra Sahni
S/o Sh. Chunni Lal Sahni
7 Sh. Sheela Sabharwal
W/o Sh. Ashok Sabharwal
8 Miss. Kiran Sahni
D/o Sh. Chunni Lal Sahni
All to be served at :
4-A/26, Old Rajinder Nagar,
Delhi. ... Defendants
Date of institution of the suit - 20.01.2001
Date on which, judgment have been reserved - 24.12.2007
Date of pronouncement of judgment - 08.01.2008
SUIT FOR POSSESSION, RECOVERY OF DAMAGES AND
PERMANENT INJUNCTION
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JUDGMENT
The present suit for possession, recovery of damages and permanent injunction has been filed on behalf of the plaintiffs against the defendants.
2. Brief facts, as made out from the plaint are that the property bearing No.113, Shanker Road, Market, New Rajinder Nagar, New Delhi was purchased by the plaintiffs, vide a duly registered Sale Deed dated 13.2.1995 from Smt. Bimla Rani, who was the registered owner of the property and had originally purchased the property vide Deed of Conveyance dated 20.3.1965 from the Govt. of India. It is stated that one Sh. Chunni Lal became a tenant and was put in possession of the portion of property by Smt. Bimla Rani on 1.4.1971 with respect to two rooms with kitchen, bath and latrine on the first floor and one room on the ground floor. Further, Smt. Kaushalya Devi wife of late Sh. Chunni 4 Lal was a tenant of Smt. Bimla Rani with respect to the room on the ground floor (back portion) and temporary store on the second floor since 1.12.1970.
3. It has been stated that from the information received from Smt. Bimla Rani and as per the records, it has come to the knowledge of the plaintiffs that the predecessor in interest of the plaintiffs had filed an eviction petition against Sh. Ramesh Chander Sahni (defendant no.1 herein) bearing Eviction Petition No.3/82 on 14.1.1982, stating therein that he is a tenant in the portion of the aforesaid property bearing No.113, Shanker Road Market at a monthly rental of Rs.1,200/- and the said premises was let out to him w.e.f. 1.4.1976 vide a Memorandum of Letting and the rent receipts were being issued by Smt. Bimla Rani. In the W.S. filed by Sh. Ramesh Chand Sahni (S/o Sh. Chunni Lal and Mrs. Kaushalya Devi) in the eviction proceedings, he had taken the defence 5 that the property in dispute was allegedly purchased by his mother Smt. Kaushalya Devi from Smt. Bimla Rani on 7.2.1970 for a total consideration of Rs.30,000/- and Smt. Kaushalya Devi is in possession of the property as owner in part performance of the Sale Agreement and as 12 years have passed since the execution of the alleged Agreement to Sell, Smt. Kaushalya Devi and her legal heirs are in possession of the property adversely to the interest of Smt. Bimla Rani. In the replication filed by Smt. Bimla Rani, it was specifically denied that Sh. Ramesh Chander is the owner of the property through his mother and it was clarified that the aforesaid agreement of purchase was cancelled by Smt. Kaushalya Devi herself on 17.5.1970 and she also received back the entire sum of Rs. 30,000/-.
4. It has been stated that no plea of adverse possession is available to the tenant under law as a tenant is put in possession of a 6 property by the landlord/owner himself. There is no Agreement to Sell or Sale Deed between Smt. Kaushalya Devi and Smt. Bimla Rani and in the eviction proceedings filed by Smt. Bimla Rani, the plaintiffs had filed application u/o 1 rule 10 CPC to be impleaded as parties having purchased the property on 13.2.1995. The said application was allowed by the Ld. ARC and the said order was upheld by the court of the Ld. RCT and a Civil Misc. (M) bearing No.108/96 was preferred in the Hon'ble High Court by the defendant no.1 herein and while deciding the said petition on 19.2.1997 the Hon'ble High Court interpreted that the title of the property can be determined by the Civil Court and the Rent Controller cannot proceed with the eviction proceedings as such. It is further stated that Smt. Kaushalya Devi had expired in 1984 and during her life time at her instance and at the instance of her husband, Sh. Chunni Lal, an Agreement for Letting had been entered with Sh. Ramesh Chander by Smt. Bimla Rani and in the year 1981, Smt. Bimla Rani had 7 filed a Suit for Recovery of Arrears of Rent against Sh. Ramesh Chander. It is stated that the plaintiffs have purchased all the rights in the property and the property stands mutated in the records of L & D. O in their names w.e.f 28.11.1995 and as such the status of the defendants is that of unauthorized occupant in the property and they are liable to be evicted from the same.
5. It has been stated that the defendants have disclaimed the right of earlier owner Smt. Bimla Rani and the plaintiffs and have claimed adverse possession and the disclaimer of the title of the landlord by setting up a title himself by a tenant results in forfeiture of the lease. Thus, the defendants are in unauthorized occupation of the property and no right as a tenant vests in them as legal heir of the tenant or independently. It is further stated that as the defendants are in unauthorized occupation of the property, they are liable to pay damages 8 for the last three years @ Rs.8,000/- per month which comes to Rs.2,80,000/- for the portion of ground floor and first floor in their occupation and @ Rs. 1500/- p.m with respect to the room on second floor.
It has been stated that the defendants have expressed their intentions in the market to sell the property in their occupation which led to the filing of the present suit wherein it has been prayed that a decree of possession may be passed in favour of the plaintiffs and against the defendants with respect to the portion of the property bearing Govt. built shop no.113 constructed on a piece of land measuring 89.9 Sq. yrds comprising of one room on ground floor, entire first floor and one room on the second floor. It is further prayed that a decree for recovery of past damages and future damages for use and occupation of the suit property may be passed in favour of the plaintiffs and against the defendants. It has also been prayed that a decree of permanent injunction 9 may be passed in favour of the plaintiffs and the defendants may be restrained from parting with possession or creating any third party interest in the suit property.
6. The defendants contested the present suit and filed their W.S. wherein it has been stated that there is no landlord - tenant relationship in between the plaintiffs and the defendants.. It is stated that the suit property was purchased from Smt. Bimla Rani by the deceased mother of the answering defendants vide agreement dated 7.2.1970 and said Smt. Bimla Rani after the receipt of entire consideration transferred the possession of the suit property to the defendants' mother and since then the defendant (s) are in possession of the suit property by virtue of "part performance of the agreement". Smt. Bimla Rani forged memorandum of letting and rent receipt and these forged documents were the subject matter of F.I.R No.79/94 P.S. Rajinder Nagar, New Delhi and in the said 10 case, the police filed a charge sheet against Smt. Bimla Rani from whom the plaintiffs stated to have purchased the suit property and the criminal trial is pending before the court of Ld. M.M. It is stated that the plaintiffs have no cause of action for the suit and the suit is bad for non- joinder of necessary parties. It is further stated that the plaintiff's allegations are all false, fictitious and frivolous and the suit is not maintainable being hit by Delhi Rent Control Act and also being in contravention of Section 52 of the Transfer of Property Act. It has been stated that the suit has not been properly valued as the market value of the suit property is more than Rs. One Crore and the plaintiffs have deliberately undervalued it to escape the liability of paying the due court fees. It is stated that the suit is liable to be stayed in view of the fact that matters in issue in the present suit are directly and substantially in issue in the previously instituted suits between the same parties and the plaintiffs have got no locus-standi to seek the relief through the present 11 suit as the present suit is barred by the Limitation Act-1963.
7. It has been stated that the suit is hit by order 2 rule 2 CPC as the plaintiffs filed a suit for permanent injunction and mandatory injunction vide suit no.2510/95 before the Hon'ble High Court of Delhi which was disposed of vide judgment dated 26.2.2001 and in that suit the plaintiffs relinquished the claim for reliefs claimed herein. The suit is also barred as in eviction petition no.3/82 and E-80/94 , the plaintiffs relinquished their claims in respect of the suit property which are being claimed herein. It is stated that the alleged sale of the suit property vide so-called sale deed dated 13.2.1995 has been declared void. It is stated that Sh. Ved Raj Madhok, father of Sh. Rajiv Madhok was inducted as tenant and after the death of Sh. Ved Raj Madhok, Sh. Rajiv Madhok became the tenant of the suit property. All other averments made in the plaint have also been denied on behalf of the defendants 12 and it has been prayed that the present suit filed on behalf of the plaintiffs may be dismissed with cost.
8. The replication has been filed on behalf of the plaintiffs, wherein the contents of the W.S have been denied as incorrect and those of the plaint have been reiterated as correct.
9. On the basis of the pleadings of the parties, the following issues were framed on 24.5.2004 by the Ld. Predecessor of this Court.
ISSUES 1 Whether the plaintiffs derived any title to the suit property from Bimla Rani and are the owners of the suit property ? OPP 2 Whether the defendants are unauthorized occupants in the suit property ? OPP 3 Whether the defendants have any title of the suit property by adverse possession or otherwise ? OPP 13 4 Whether the suit is bad for non-joinder of necessary parties ? OPD 5 Whether the suit is bad for contravention of Section 52 Transfer of Property Act ? OPP 6 Whether the suit has not been properly valued for the purposes of court fees and jurisdiction ? OPD 7 Whether the suit is barred under the Delhi Rent Control Act ? OPP 8 Whether the suit is barred u/o 2 rule 2 CPC ? OPD 9 Whether the plaintiff is entitled to decree of possession, as prayed for ? OPP 10 Whether the plaintiff is entitled to any damages. If yes, at what rate and for what period ?OPP 11 Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP 12 Relief.
During the pendency of the present suit, an application was moved on behalf of the defendants for framing of an additional issue and 14 accordingly the following additional issue was framed vide order dated 19.9.2007 :
Additional Issue :
"Whether the present suit of the plaintiff is not maintainable being barred by Limitation Act ? OPD"
10. In their evidence, the plaintiffs have examined PW-1 Sh. Rajiv Madhok, PW-2 Sh. Ravi Kumar, PW-3 Sh. Rajesh Kumar, LDC from the Office of the Assessment & Collection Department and PW-4 Sh. Sanjay Kumar, Assistant Grade-III, BSES Yamuna Power Ltd.
11. In their evidence, the defendants have examined DW-1 Sh. Ramesh Chand Sahni, DW-2 Sh. Subhash Chand Sahni and DW-3 Sh. Shyam Sunder Sahni.
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12. I have heard the arguments at length put forward by Ld. counsels for the plaintiffs and defendants have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the plaintiffs and defendants. I have also carefully perused the brief synopsis filed on behalf of both the parties and case law relied upon by the Ld. Counsels for the plaintiffs and defendants.
13. My findings on the issues are as under:-
14. ISSUE NO.6 It has been submitted on behalf of the defendants that the plaintiff has not properly valued the present suit for the purpose of court fee and jurisdiction. It is submitted that the market value of the suit property at present is about 1.5 crores and at the time of the filing of the suit the same was about one crore and as such the plaintiffs should have valued the suit on the basis of the aforesaid market value of the 16 suit property.
On the other hand, it has been submitted on behalf of the plaintiffs that the present suit has been properly valued for the purpose of court fee and jurisdiction. It is submitted that initially the present suit was valued on the basis of the value of the suit property as mentioned in the sale deed (Ex.PW1/2) and the defendants moved an application u/o 7 rule 11 CPC and the said application was disposed of vide order dt. 17.8.2001 passed by one of the ld. Predecessors of this court, wherein he was pleased to direct the plaintiff to value the suit at Rs. 5,05,000/- as plaintiffs have exercised their option and has valued the suit property at that value in a suit for permanent injunction filed before the Hon'ble High Court of Delhi. It is further submitted that vide aforesaid order dt. 17.8.2001, the plaint was returned to the plaintiffs, who filed the same before the the Hon'ble High Court of Delhi and the present suit was transferred to this court on enhancement of pecuniary 17 jurisdiction of the District Courts.
It has been submitted that the issue regarding the valuation the suit has already been decided by the ld. Predecessor of this court vide aforesaid order dt. 17.8.2001 and as such the defendants can not reagitate the said issue again and again. It is submitted that the defendants themselves have filed a suit for specific performance in respect of the property no. 114, Shanker Road Market (i.e property adjoining the suit property) and therein the defendants themselves have valued the said property for Rs. 8 lacs and as such the defendants are not entitled to challenge valuation of the suit when they themselves have valued their suit pertaining to the adjoining property at the aforesaid value.
In the present case, it has been submitted on behalf of the defendants that the present suit has not been properly valued for the purpose of court fee and jurisdiction and the onus to prove this issue was 18 upon the defendants and in order to discharge the said onus the defendants have examined the DW-1 and DW-2 who deposed that the value of the property in dispute occupied by the defendants at the time of filing of the suit was more than 80 lacs to one crore. Further DW-3 has also stated that the value of property no. 114,Shanker Road Market, (i.e property adjoining the suit property) was Rs. One crore in the year 1998 and at present value of the said property is about 1.5 crore and it has been submitted on behalf of the defendants that the present suit has not been properly valued by the plaintiff for the purpose of court fee and jurisdiction however the said contention put forward on behalf of the defendants does not hold water as in a suit for specific performance filed before the Hon'ble High Court of Delhi, the defendants themselves have valued the said suit pertaining to the adjoining property i.e shop no. 114 at Rs. 8 lacs. This fact is also corroborated from the evidence of DW-3 who deposed that in the aforesaid suit, a compromise was 19 arrived at and the defendant therein agreed to execute the sale deed in respect of the said property in their favour after increasing the consideration from 8 lacs to Rs. 9 lacs.
It is pertinent to note here that this issue regarding the valuation of the suit was also earlier dealt with by one of the ld. Predecessor of this court, who vide his order dated 17.8.2001 was pleased to direct the plaintiffs to value the suit at Rs. 5,05,000/- as plaintiffs have exercised their option and have valued their suit for permanent injunction before the Hon'ble High Court of Delhi at the said value. Pursuant to the said order dt. 17.8.2001, the plaint was returned to the plaintiffs who filed the same before the the Hon'ble High Court of Delhi and after the enhancement of pecuniary jurisdiction of the District Court, the suit was transferred to this court.
Further it is well settled law that the plaintiff is the master of his suit and he can place any valuation that he likes on the reliefs sought 20 by him and the court should not usually interfere with the valuation of the suit. In the case titled as "Commercial Aviation and Travel Co." (reported as AIR 1988SC 1636) it has been held that the paragraph (iv) of section 7 of the Act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the reliefs he seeks, subject however to any rules made u/o 9 of the suit Valuation Act and the court has to accept the plaintiff's valuation.
Ld. Counsel for the defendants have relied upon the case law cited as AIR 1983 Calcutta 337 and 93(2001) DLT 1, however, the said case law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the aforesaid case law.
Thus, in view of the aforesaid discussion and observations and having regard to the fact and circumstances of the present case, I am 21 of the considered opinion that the present suit has been properly valued for the purpose of court fee and jurisdiction.
Hence, in view of the above, the issue no.6 is decided in favour of the plaintiffs and against the defendants.
15. ADDITIONAL ISSUE It has been submitted on behalf of the defendants that the present suit is barred by limitation. It is submitted that as per Article- 64 of Limitation Act, the suit for possession of immovable property based on the previous possession is required to be filed within 12 years from the date of dispossession and Article -65 of the said Act provides that a suit for possession of immovable property or any interest therein based on title is also required to be filed within 12 years from the date when the possession of the defendants become adverse of the plaintiff. It is further submitted that the present suit has been filed 22 on behalf of the plaintiff almost after 19-20 years from the date when the defendants came in possession of the suit property and as such the present suit is time barred and is not maintainable in view of the provisions of Section -27 of the Limitation Act.
On the other hand, it has been submitted on behalf of the plaintiffs that the present suit has been filed within the statutory period prescribed by law. It is submitted that the suit property was purchased by the plaintiffs herein vide sale deed (Ex.PW1/2) dated 13.2.95 and thereafter the cause of action for filing of the present suit arose in favour of the plaintiffs and the said cause of action is subsisting as defendants are still in unauthorized occupation of the suit property.
It has been submitted on behalf of the defendants that the present suit filed on behalf of the plaintiffs is not maintainable being barred by Limitation Act , however the said submissions made on behalf of the defendants are devoid of any merits and are contrary to the 23 record as the perusal of the record reveals that the suit property was purchased by the plaintiffs vide sale deed ( Ex. PW-1/2) dt. 13.2.95 from erstwhile owner Smt. Bimla Rani. In these circumstances, the cause of action for filing the present suit will arise in favour of the plaintiffs only from the date when they become the owner of the suit property in terms of aforesaid sale deed ( Ex.PW-1/2) dated 13.2.95. As per the provisions of Article-65 of Limitation Act the period of limitation for filing the present suit will be 12 years and the said period of limitation will start from the date when the cause of action first arose in favour of the plaintiff i.e w.e.f. 13.2.95. The present suit has been filed on behalf of the plaintiffs on 20.1.2001 i.e well within the period of limitation prescribed by law.
Thus in view of the aforesaid discussion and observations and having regard to the fact and circumstances of the present case , Iam of the considered opinion that the present suit filed on behalf of the 24 plaintiffs is not barred by limitation.
Hence, in view of the above, the additional issue is decided in favour of the plaintiffs and against the defendants. 16. ISSUE NO. 4
It has been submitted on behalf of the defendants that the present suit is bad for non-joinder of the necessary parties as Smt. Bimla Rani who was the erstwhile owner of the suit property has not been made a party in the present suit, whereas on the other hand, it has been submitted on behalf of the plaintiffs that the said Smt. Bimla Rani is not a necessary party in the present suit and the present suit is not bad for non-joinder of the said Smt. Bimla Rani as a party in the suit.
The present suit for possession, recovery of damages and permanent injunction have been filed on behalf of the plaintiffs against the defendants. The perusal of the plaint shows that no relief 25 whatsoever have been claimed against the said Smt. Bimla Rani in the present suit. In these circumstances and having regard to the fact and circumstances of the present case , I am of the considered opinion that the said Smt. Bimla Rani is not a necessary party in the present suit.
Thus, the present suit is not bad for non-joinder of the said Smt. Bimla Rani as a party in the suit.
Hence, in view of the above, the issue no.4 is decided in favour of the plaintiffs and against the defendants.
17. ISSUE NO.5 In the W.S, it has been stated on behalf of the defendants that the present suit is bad for contravention of section -52 Transfer of Property Act, however, it has not been explained on behalf of the defendants as to how the present suit is barred u/s -52 of the aforesaid Act . Further this issue was not pressed on behalf of the defendants 26 during the course of the final arguments. In fact, no arguments were addressed on this issue by the ld. Counsel for the defendants and no evidence whatsoever have been led on this issue by the defendants.
Hence , in view of the above, Issue no.5 is decided in favour of the plaintiffs and against the defendants.
18. ISSUE NO.8 It has been submitted on behalf of the defendants that the present suit is barred u/o 2 rule 2 CPC as the plaintiffs have earlier filed a suit for permanent and mandatory injunction before the Hon'ble High Court of Delhi , wherein they have not prayed for the reliefs as claimed in the present suit which implies that they have relinquished the relief which are now being claimed in the present suit. It is submitted that issues involved herein were also raised in the eviction petition filed against the defendants on behalf of the previous owner of the suit 27 property and as such the present suit is also barred u/o 2 rule 2 CPC in view of the said eviction petition.
On the other hand, it has been submitted on behalf of the plaintiffs that the present suit is not barred u/o 2 rule 2 CPC as the aforesaid suit filed before the Hon'ble High Court of Delhi was a simplicitor suit for injunction and the matter in issue in the present suit was not directly or substantially in issue in the said suit. It is submitted that the aforesaid suit and the present suit have been instituted on two separate and distinct cause of action and order 2 rule 4 CPC prohibit the joining of relief with the suit for recovery of immovable property unless and until the claim are based on the same cause of action. It is further submitted that as far as the eviction petition filed on behalf of the erstwhile owner Smt. Bimla Rani is concerned, the said petition can not be a bar for filing the present suit as plaintiffs were not party in the said eviction petition.
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In the present case, a suit for permanent and mandatory injunction was filed before the Hon'ble High Court of Delhi by the plaintiffs, however the perusal of the record reveals that the issues involved in the present suit were not involved in the said suit and both these suit have been filed on two separate and distinct cause of action. Further, Order 2 rule 4 CPC provides that no cause of action shall be joined with a suit for recovery of immovable property unless the relief sought is based on the same cause of action and the reliefs claimed in the present suit as well as in the earlier suit filed before the Hon'ble High Court of Delhi can not be said to be based on the same cause of action and as such the provisions of Order-2 rule 2 CPC are not attracted and the plaintiffs can not be said to be precluded from filing the present suit. In addition to this, the aforesaid eviction petition filed on behalf of the previous owner Smt. Bimla Rani cannot be a bar for filing of the present suit as admittedly the plaintiffs herein are not the 29 parties in the said eviction petition.
Thus, in view of the aforesaid discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the present suit filed on behalf of the plaintiffs is not barred u/o2 rule 2 CPC.
Hence , in view of the above, issue no.8 is decided in favour of the plaintiffs and against the defendants.
19 ISSUES NOs.1, 2, 3, 7 & 9:
Issues Nos.1, 2, 3, 7 & 9 are being taken up together as all these issues are interconnected and have to be decided on the basis of the same evidence.
The onus to prove the aforesaid issues was upon the plaintiffs and in order to discharge the said onus, the plaintiffs have examined PW-1 Sh. Rajiv Madhok, who has filed his evidence by way of affidavit 30 (Ex. PW-1/X) wherein it has been stated that he is the attorney of the plaintiffs vide attorney ( Ex. PW-1/A) and stated that the property bearing no.113, Shanker Road Market, New Rajinder Nagar, New Delhi was purchased by the plaintiffs vide duly registered Sale Deed dated 13.2.1995 from Smt. Bimla Rani who had originally purchased the said property vide Deed of Conveyance dated 20.3.1965 from the Govt. of India. He has proved the certified copies of the aforesaid Conveyance Deed, Sale Deed dated 13.2.1995, letter dated 29.3.1995 and Mutation Certificate dated 28.11.1995 as Ex. PW-1/1 to Ex. PW-1/4 respectively.
He further stated Sh. Chunni Lal and Smt. Kaushalya Devi became tenants and were put in possession of the portions of the property by Smt. Bimla Rani on 1.4.1971 and 1.12.1970 and has proved the certified copies of the eviction petition no.-3/82 , W.S filed by Sh. Ramesh Chand Sahni and the replication filed by Smt. Bimla Rani therein as Ex. PW-1/4A to Ex. PW-1/6 respectively. He has further 31 proved the certified copies of the eviction petition no. 80/94 and order dated 17.2.296 passed therein as Ex. PW-1/7 and Ex. PW1/8 .
In his evidence, the PW-1 has reiterated most of the averments made in the plaint and has proved the attorney in his favour executed by Smt. Bimla Rani, the certified copies of the plaint, W.S and replication in the suit bearing old No.78/83 (new no.131/02) pending before the Court of Ld. Civil Judge, Delhi as Ex. PW-1/9 to Ex. PW- 1/12 respectively. He has further proved the certified copies of the cancellation receipt and the rent receipt exhibited in the aforesaid suit for recovery as Ex. PW-1/13 to Ex. PW-1/19 respectively. He has also proved the certified copies of the W.S filed on behalf of Smt. Bimla Rani and the order sheets in the standard rent petition as Ex. PW-1/20 to Ex. PW-1/23 respectively. He further stated that the plaintiffs have purchased all the rights in the property and the property stands mutated inthe record of L & D. O in their names and the status of the defendants 32 is that of unauthorized occupants in the property and they are liable to be evicted from the same. He stated that the plaintiffs got issued a legal notice to the defendants before filing the present suit and he has proved the said legal notice and its reply dated 7.12.2000 and the site plan of the suit property as Ex. PW-1/24 to Ex. PW-1/26 respectively. He also stated that the suit of the plaintiffs is correct. 20 In support of their case, the plaintiffs have also examined PW-2 to PW-4.
PW-2 Sh. Ravi Kumar, LDC brought the summoned record pertaining to the Suit No.2416/95 titled as "Sh. Shyam Sunder Sahni Vs. Inderjit Singh Bajaj" from the Record Room of the Hon'ble High Court of Delhi and stated that the certified copies of order sheet dated 11.12.1998, statement dated 11.12.1998 list of documents the documents filed alongwith the said list and I.A No. 11241/98 ( i.e 33 E.x.PW-2/1 to Ex.PW2/6 respectively) are correct as per record brought by him.
PW-3 Sh. Rajesh Kumar, LDC Assessment and Collection Department, brought the summoned record pertaining to the property bearing suit shop no.113, and proved the certified copies of the inspection report of the year 1959, inspection reports dated 23.6.1964, 10.12.1969,25.8.1996 and 20.8.1996 as Ex. PW-3/1 to Ex. PW-3/5 respectively.
PW-4 Sh. Sanjay Kumar, Assistant Grade-III, BSES Yamuna Power Ltd. stated that the electricity connection in the name of Sh. Chunni Lal bears K. No.15 Z 471858 (Old) and new K. No.114041720345 and for said connection, the security amount was deposited on 9.7.1969 and he has proved the slip in this regard as Ex. PW-4/1. He further stated that the electricity connection bearing no. 15 Z 130153 (old) and New No.114041720421 was initially installed in the 34 name of Smt. Sheela Rani and the said connection was transferred in the name of Smt. Bimla Rani and the security amount in her name was deposited vide receipt dated 13.10.1965 and he has proved the said receipt and request letter dated 28.6.1965 as Ex. PW-4/3 and Ex. PW- 4/4 respectively.
21. On the other hand, in their evidence the defendants have examined DW-1 Sh. Ramesh Chand Sahni and DW-2 Sh. Subhash Chand Sahni who have filed their evidence by way of affidavits ( Ex. DW-1/A and Ex. DW-2/A respectively ) wherein it have been stated that their mother Smt. Kaushalya Devi, entered into an agreement to sell (Ex. PW-1/D-1) with Smt. Bimla Rani, the previous owner of the suit property and the possession of the ground floor back portion, first floor and the second floor was delivered to Smt. Kaushalya Devi by Smt. Bimla Rani in part performance of the said agreement ( Ex. PW-1/D-1) 35 They stated that their father or mother never came in possession of any portion of the property in dispute as tenant at any time and the documents Ex. PW-1/22 and Ex. PW-1/23 does not bear the signatures of his father or mother. They further stated that the rent receipts Ex. PW- 1/14 to Ex. PW-1/17 are not signed by their mother and Sh. Subhash Chand has filed an FIR against Smt. Bimla Rani in respect of the aforesaid rent receipts being forged and fabricated. The police charge sheeted and challaned Smt. Bimla Rani and others who are facing trial for criminal case of forgery and fabrication. They stated that the agreement to sell Ex. PW-1/13 was never cancelled nor any amount was returned by Smt. Bimla Rani to Smt. Kaushalya Devi. Smt. Bimla Rani filed an eviction petition in respect of the property in dispute and the matter was stayed by the Hon'ble High Court of Delhi. DW-1 stated that the possession of the premises occupied by Sh. Ravinder Gandhi was taken by Smt. Kaushalya Devi as per the agreement to sell Ex. PW-1/D1 36 directly and Smt Bimla Rani never came in possession of any portion of Sh. Ravinder Gandhi at any time. The defendants are in possession of the property in dispute as heirs of Smt. Kaushalya Devi who was in possession of the same in part performance of the agreement to sell (Ex. PW-1/D1).
They stated that Smt. Bimla Rani had no right to execute the sale deed in respect of the entire property bearing no.113, Shanker Road Market and the sale deed executed in favour of the plaintiffs is entirely false, wrong and does not create any title in favour of the plaintiffs and the suit of the plaintiff is false and is liable to be dismissed.
22. The present suit for possession, recovery of damages and permanent injunction have been filed on behalf of the plaintiffs against the defendants.
It has been submitted on behalf of the plaintiffs that they 37 purchased the suit property from the erstwhile owner Smt. Bimla Rani vide a duly registered sale deed (Ex.PW1/2) dated 13.2.1995 and the said Smt. Bimla Rani was the registered owner of the property in the official record vide conveyance deed dated 20.3.1965. The suit property also stand mutated in the name of the plaintiff in terms of letter dt. 29.3.1995 ( Ex. PW1/3) and mutation certificate( Ex. PW1/4). It is submitted that the father and mother of the defendants herein were inducted as a tenant in the suit property by the erstwhile owner Smt. Bimla Rani and after purchase of the suit property by the plaintiffs, the defendants have disclaimed the title of earlier owner Smt. Bimla Rani and the plaintiffs and as such lease in their favour stands determined by forfeiture in terms of Section -111(g) of the T.P.Act and thus the defendants have become the unauthorized occupants in the suit property and are liable to be evicted from the same. It is further submitted that the defendants have failed to handover the peaceful and vacant 38 possession of the suit property to the plaintiffs despite legal notice ( E. PW1/24) and it has been prayed that a decree of possession in respect of the suit property may be passed in favour of the plaintiffs and against the defendants.
On the other hand , it has been submitted on behalf of the defendants that they are not unauthorized occupants in the suit property and are in possession of the suit property in part performance of the agreement to sell ( Ex. PW-1/D-1) entered in to between their mother and the erstwhile owner Smt. Bimla Rani on 7.2.1970.
In the present suit, the defendants have claimed their title/possession in the suit property on the basis of the part performance of agreement to sell dated 7.2.1970 executed between their mother and the erstwhile owner Smt. Bimla Rani. The law relating to the 'doctrine of part performance' have been laid by the Hon'ble Supreme Court of India in the case cited as AIR 1982 SC 989.
39
In the aforesaid case titled as "Sardar Govindrao Mahadik and another Vs.Devi Sahai and ors. (cited as AIR 1982 SC 989)", it has been laid down by the Hon'ble Supreme Court of India that:-
"To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidence by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part-
performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the properly or any part thereof or the transferee being already in 40 possession continues in possessions in part-
performance of the contract and has done some act in furtherance of the contract.
There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract."
In view of the above, it is clear that to qualify for the protection of the doctrine of part performance, it was incumbent upon the defendants to show that there was a contract to transfer for consideration the suit property between their mother and the erstwhile owner Smt. Bimla Rani and the said contract/agreement still subsists, however no evidence, documentary or otherwise, have been brought on record by the defendants to show that the said agreement ( Ex. PW1/D-1) is still in subsistence although they were required to do so, especially in view of the fact that it has been 41 stated on behalf of the plaintiff that the said agreement stood cancelled in terms of cancellation receipt ( Ex. PW-1/13) and in lieu of said cancellation the entire amount of consideration was received back by the mother of the defendants. This claim of the defendants regarding the ownership in respect of the suit property has also been controverted/denied by the erstwhile owner Smt. Bimla Rani in her replication ( Ex.PW1/6) filed in the eviction petition between the defendants and the erstwhile owner. Further , in their cross-examination, DW-1 and DW-2 have also admitted that no receipt of possession was executed on 7.2.70 and no sale deed was executed by Smt. Bimla Rani in favour of their mother and no document was ever registered. DW-1 also admitted that his mother had never issued any notice in writing to Bimla Rani for executing the sale deed .Similarly DW-2 also admitted in his cross-examination that his mother and father have never filed any case or made any statement on the basis of alleged sale of February , 42 1970 . These admissions made in the cross-examination of DW-1 and DW-2 have in fact demolished the case of the defendants that they are in possession of the suit premises in part performance of the agreement to sell dated 07.2.70 between their mother and erstwhile owner because had that been the case, the mother of defendants during her life time would have definitely initiated the proceedings to get the said agreement specifically enforced. Further it also fortifies the claim of the plaintiffs that the said alleged agreement to sell between the mother of the defendants and erstwhile owner Smt. Bimla Rani was cancelled by Smt. Kaushalya Devi (mother of the defendants ) herself vide cancellation receipt dated 17.5.70 ( Ex. PW1/13) . It is stated that the original of the said cancellation receipt was filed in the suit for recovery of arrears of rent and was exhibited in the evidence of the plaintiff therein i.e. Smt. Bimla Rani through her attorney Sh.Deewan Chand. In the said cancellation receipt( Ex. PW1/13), it has been stated that the 43 consideration amount of Rs. 30,000/- was received back by Smt. Kaushalya Devi from Smt. Bimla Rani and the said document also bears the signatures of defendant no.1 as an attesting witness. The fact regarding the cancellation of the aforesaid agreement to sell between the mother of the defendants and the erstwhile owner Smt.Bimla Rani is also corroborated from the fact that the said erstwhile owner has herself filed the eviction petition as well as the suit for recovery of arrears of rent against the defendants which implies that the defendants never came in the possession of the suit property in part performance of the said agreement to sell dt. 7.2.70 because in that event there would have been no occasion for the erstwhile owner Smt. Bimal Rani to file the aforesaid eviction petition or the suit for recovery of arrears of rent against them. It is pertinent to note here that Smt. Kaushalya Devi the mother of the defendants during her life time or even her legal heirs i.e defendants herein have not initiated any proceedings or filed any suit for 44 specific performance of the said alleged agreement to sell dt. 7.2.70 which implies that the said agreement to sell was in fact cancelled vide cancellation receipt ( Ex.PW-1/3) and had there been any such agreement to sell in subsistence, the defendants or their predecessor in interest would have definitely initiated the appropriate proceedings for the specific performance of the said agreement.
In view of the above, it is clear that the defendants are not entitled to the protection of 'doctrine of part performance' in the present suit. In addition to the protection of doctrine of part performance, the defendants herein are also claiming their title on the basis of adverse possession, however the plea of adverse possession is inconsistent with the plea of right to possession on the basis of part performance by operation of section-53A of Transfer of Property Act. Both these pleas are self contradictory defences which are not permissible as is evident from the law laid down by the Hon'ble Supreme Court of India 45 in the case cited as (2000)3 SCC 708. Even otherwise, the contention of the defendants that they have perfected their title in respect of the suit property by virtue of law of adverse possession is not tenable in law as from the material on record, it is clear that the defendants were put in possession of the suit property as tenants by the erstwhile landlord/owner Smt. Bimla Rani which means that the defendants were in permissive possession and the permissive possession for long does not convert to adverse possession as is evident from the law laid down by the Hon'ble Supreme Court of India in the aforesaid case cited as (2000)3 Supreme Court Cases 708 .
23. In the present suit, the plaintiffs have purchased the suit property from the erstwhile owner Smt.Bimla Rani vide a duly registered sale deed ( Ex. PW-1/2) dated 13.2.95. The suit property also stands mutated in the name of the plaintiffs in the official record as is evident 46 from the letter dated 29.3.1995 ( Ex. PW-1/3) and mutation certificate (Ex. PW-1/4). The defendants have disclaimed the title of the erstwhile owner and the plaintiffs by setting up a title themselves and the said disclaimer of the title has resulted in the determination of their lease by forfeiture in terms of the provisions of section -111(g) of the Transfer of Property Act.
Section -111(g) of the Transfer of Property Act reads as under:-
"111. Determination of lease- A lease of immoveable property determines-
(a) --------------------------------------------- to
(f) --------------------------------------
(g) by forfeiture that is to say,(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee 47 renounces his character as such by setting up a title in a third person or by claiming title in himself or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event) and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease".
In view of the above provisions of section -(111)(g) (2) of Transfer of Property Act it is clear that the lease of immoveable property is determined by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself.
Further, in the case titled as "Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and another (cited as AIR 1965 SC 1923)", it has been laid down by the Hon'ble Supreme 48 Court of India that :-
" Permanent tenancies are within the rule of S.111(g) and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlords title. The disclaimer or the repudiation of the landlords title must, however, be clear and unequivocal and made to the knowledge of the landlord".
In the present case also, the disclaimer of the title of the erstwhile owner and the plaintiffs by the defendants by setting up a title in themselves have resulted in the determination of their lease by forfeiture in terms of the provisions of section -111 (g) of Transfer of Property Act and the plaintiffs have also given notice ( Ex. PW-1/24) in writing in this regard to the defendants. In these circumstances, the status of the defendants in the suit property have been rendered as that of unauthorized occupants and as such they are liable to vacate the same and the plaintiffs have become entitled to get the possession of the suit 49 property.
Ld. counsel for the defendants have relied upon the case - law cited as AIR 1957 Manipur 9, AIR 1968 SC 1413,AIR 1981 SC 977, AIR 1939 Lahore 285, AIR 1948 Madras 388, 2002(3) and (2005)7 SCC 653 however the said case- law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the aforesaid case law and in my considered opinion, the aforesaid case law is not of any help to the defendants in present suit in view of the law laid down by the Hon'ble Supreme Court of India in the cases cited as AIR 1965 SC 1923, AIR 1982 SC 989 and (2000)3 Supreme Court Cases 708.
Thus, in view of the aforesaid discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the plaintiffs have properly derived their title in the suit property from the erstwhile owner Smt. Bimla Rani . 50 Further, the defendants do not have any title in the suit property by adverse possession or otherwise and as such they are unauthorized occupants in the suit property and therefore the present suit is not barred under the Delhi Rent Control Act. Since the defendants are unauthorized occupants in the suit property they are liable to be evicted from the same and as such the plaintiffs have become entitled to the decree of possession as prayed for in the present suit.
Hence, in view of the above, Issues no. 1, 2, 3, 7 & 9 are decided in favour of the plaintiffs and against the defendants.
24. ISSUE NO.10 It has been submitted on behalf of the plaintiffs that since the defendants are in unauthorized occupation of the suit property they are liable to pay the damages for the use and occupation of the same. The 51 plaintiffs have claimed damages @ Rs. 8000/- p.m for the portion of ground floor and first floor and @ Rs. 1500/- p.m with respect to the room on the second floor. The plaintiffs have also claimed future damages for the period after filing of the suit till recovery of possession of the suit property @ Rs. 15,000/- p.m and it has been prayed on behalf of the plaintiffs that the aforesaid damages may be awarded in their favour and against the defendants . On the other hand, it has been submitted on behalf of the defendants that the plaintiffs are not entitled to any damages whatsoever. It is further submitted that the amount of damages claimed by the plaintiffs is exorbitant as premises in dispute can not fetch the said amount in the market.
I have carefully considered the submissions on the point of damages made on behalf of the plaintiffs and defendants and have carefully gone through the record of the case. In the present case, the fact remains that the tenancy of the defendants have been determined 52 by forfeiture in terms of provisions of section -111 (g) of Transfer of Property Act and as such the defendants are in unauthorized occupation and use of the suit property for which they are liable to pay damages to the plaintiffs.
In the present suit, the plaintiffs have sought damages @ Rs. 8000/- p.m for the portion of ground floor and first floor and @ Rs. 1500/- p.m with respect to the room on the second floor till the filing of the suit. The plaintiffs have also prayed for future damages for the period after filing of the suit till recovery of possession of the suit property @ Rs. 15,000/- p.m , however the aforesaid amount of damages appears to be on the higher side. In these circumstances and having regard to the fact and circumstances of the present case, I am of the considered opinion that it will be expedient in the interest of justice that the defendants be directed to pay the damages to the plaintiffs for the unauthorized use and occupation of the suit premises @ Rs. 5,000/- p.m 53 from the date of notice (Ex. PW1/24) i.e w.e.f. 15.11.2000 till the peaceful and vacant possession of the suit premises is handed over by the defendants to the plaintiffs. Further, in view of the provisions of Section-111(g) of the Transfer of Property Act and having regard to the facts & circumstances of the present case, the plaintiffs will not be entitled to the damages for the period prior to the date of notice (Ex. PW1/24).
Hence, in view of the above, the Issue no. 10 is decided accordingly.
25. ISSUE NO. 11
It has been submitted on behalf of the plaintiffs that they have apprehension that the defendants may part with possession or create third party interest in the suit property and as such it has been prayed on behalf of the plaintiffs that a decree of permanent injunction may be 54 passed in their favour and the defendants may be restrained from parting with possession or creating any third party interest in respect of the suit property.
In the present suit, in view of my findings on the aforesaid issues no. 1,2,3,7&9, the plaintiffs have become entitled to a decree of possession in respect of the suit property. In these circumstances, the defendants have become liable to hand over the peaceful and vacant possession of the suit property to the plaintiffs and till they do so, they are liable to be restrained from creating any third party interest in the suit property. Accordingly, the plaintiffs have become entitled to a decree of permanent injunction as prayed for in the present suit.
Hence, in view of the above, issue no. 11 is decided in favour of the plaintiffs and against the defendants.
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26. RELIEF In view of my findings on the Issues no. 1 to 11 & additional issue, a decree of possession is passed in favour of the plaintiffs and against the defendants in respect of the portion of the property bearing Govt. Built Shop no. 113, constructed on a piece of land measuring 89.9 sq. yds, comprising of one room on ground floor, entire first floor and one room on the second floor as shown in the site plan (Ex. PW-1/26).
Further, a decree of damages is also passed in favour of the plaintiffs and against the defendants and the defendants are directed to pay damages to the plaintiffs for unauthorized use and occupation of the suit premises @ Rs. 5,000/- p.m from the date of notice (Ex PW1/24) i.e. w.e.f. 15.11.2000 till the peaceful and vacant possession of the suit property is handed over by the defendants to the plaintiffs.
In addition to above, a decree of permanent injunction is also passed in favour of the plaintiffs and against the defendants and the 56 defendants are hereby restrained from parting with possession or creating any third party interest in the suit property till the peaceful and vacant possession of the same is handed over by them to the plaintiffs.
Costs of the suit is also awarded to the plaintiffs. The plaintiffs shall pay deficient court fee on the amount of damages awarded to them within 15 days from today.
Decree sheet be prepared accordingly on filing of the deficient court fee and file be consigned to the record room.
(Announced in the open) (Paramjit Singh)
(court on 08.1.2008) Addl. District Judge,
Delhi
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Suit No.-98/03/01
08.1.2008
Present: None.
Vide separate judgment, announced in the open court, a decree of possession has been passed in favour of the plaintiffs and against the defendants in respect of the portion of the property bearing Govt. Built Shop no. 113, constructed on a piece of land measuring 89.9 sq. yds, comprising of one room on ground floor, entire first floor and one room on the second floor as shown in the site plan (Ex. PW-1/26).
Further, a decree of damages has been passed in favour of the plaintiffs and against the defendants and the defendants have been directed to pay damages to the plaintiffs for unauthorized use and occupation of the suit premises @ Rs. 5,000/- p.m from the date of notice (Ex PW1/24) i.e. w.e.f. 15.11.2000 till the peaceful and vacant possession of the suit property is handed over by the defendants to the plaintiffs.
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In addition to above, a decree of permanent injunction has also been passed in favour of the plaintiffs and against the defendants and the defendants have been restrained from parting with possession or creating any third party interest in the suit property till the peaceful and vacant possession of the same is handed over by them to the plaintiffs.
Costs of the suit is also awarded to the plaintiffs. The plaintiffs shall pay deficient court fee on the amount of damages awarded to them within 15 days from today.
Decree sheet be prepared accordingly on filing of the deficient court fee and file be consigned to the record room.
(Announced in the open) (Paramjit Singh)
(court on 08.1.2008) Addl. District Judge,
Delhi