Delhi District Court
Sh. Sardul Singh vs Suit No. 769/14 Tara Singh Vs Surinder ... on 6 August, 2016
Page No. 1 of 32
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Suit No.769/14
1.Sh. Sardul Singh
S/o Late Sh. Tara Singh
2. Sh. Shamsher Singh
S/o Late Sh. Tara Singh
3. Sh. Ranjit Singh
S/o Late Sh. Tara Singh
All the resident of:
A14, Nariana Industrial Area,
Phase - I, New Delhi
4. Smt. Kuldeep Kaur
W/o Late Sh. Gurvinder Singh
D/o Late Sh. Tara Singh
R/o H.No. 644, Gali No. 4,
Amritsar (Punjab)
5. Smt. Paramjeet Kaur
W/o Sh. Manmohan Singh
D/o Late Sh. Tara Singh
R/o Vijay Nagar, Ghaziabad (U.P.)
............. Plaintiffs
Versus
Suit No. 769/14 Tara Singh Vs Surinder Singh
Page No. 2 of 32
Sh. Surinder Singh
S/o Sh. Piara Singh
H.No. 3772, Tri Nagar, Delhi
Proprietor of M/s Flora Engineering Works
A14, Naraina Industrial Area
PhaseI, New Delhi28
Date of Institution of the Suit : 26.09.1989
Date of Reserving of Judgment : 12.07.2016
Date of Judgment : 06.08.2016
JUDGMENT
1. This is a suit for Mandatory Injunction with a claim for recovery of damages against the defendant.
2. Plaintiff Tara Singh claims to be the lessee of the suit property bearing plot no A14, Narayana Industrial Area, PhaseI, New Delhi28. It is stated that a perpetual lease deed dated 08.09.1970 and a conveyance deed dated 28.03.1983 exists in favour of the plaintiff Tara Singh, whose name has been mutated in the records of DDA as the exclusive lessee of the suit property. Plaintiff Tara Singh states that after obtaining lease hold rights of the suit property/plot no. A14, he had raised Pakka Structure on the same for the purpose of running his Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 3 of 32 factory. It is claimed that in the year 1982, plaintiff Tara Singh gave an open space measuring 288 square feet on license vide license deed dated 01.03.1982 to the defendant Surinder Singh. It is alleged that somewhere in the last week of June, 1987, Tara Singh and his family members had gone to Amritsar and on their return on 01.07.1987, he found out that Surinder Singh has raised pillars on the boundary wall on the suit property and installed a Tin Shed over it. It is alleged that these constructions were carried out without the consent of Tara Singh. Therefore, a police compliant was filed by Tara Singh on 01.07.1987 and Surinder Singh was also served with a notice dated 01.07.1987, to which he gave a reply dated 08.07.1987. It is stated that the site was also inspected by DDA officials after which a notice was served upon Tara Singh regarding the unauthorized construction.
3. It is stated that Surinder Singh had executed one undated writing and the license deed dated 01.03.1982 on the same date and that by virtue of the said documents, Surinder Singh had agreed to pay a sum of Rs. 800/ per month as license fee of the suit property. It is claimed that it was orally settled between the parties that 25 % of the electricity bill would be paid by Surinder Singh. It is alleged that Surinder Singh had failed to pay electricity charges w.e.f. 12.02.1985 to 30.11.1987 and hence, parties were now at variance with each other. It is also alleged that Surinder Singh had failed to pay license fees to Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 4 of 32 Tara Singh @ Rs. 800/ per month from July, 1987 and hence, his license to occupy the suit property had been cancelled w.e.f. 01.07.1987. It is stated that Surinder Singh is liable to pay damages w.e.f. the said date @ Rs. 2,000/ per month and Tara Singh is entitled to receive the said amount at interest @ 24 % per annum. Tara Singh has issued a notice dated 11.03.1988 upon Surinder Singh to which a notice dated 23.04.1988 has been sent by Surinder Singh as the reply.
4. Tara Singh claims that he is entitled to recovery of the following dues from Surinder Singh:
i) Damages @ Rs. 2000/ per month w.e.f. 0.07.1987 to 30.09.1989 amounting to Rs. 52,000/ and future damages.
ii) Electricity charges vide schedule 'A' annexed with the plaint
5. Tara Singh also claims that Surinder Singh is liable to surrender the vacant possession of the open space of the suit property back to him. Accordingly, the present suit has been filed.
6. In the written statement filed by defendant Surinder Singh, it has been claimed that there exists a relationship of landlord and tenant between the parties and therefore, the present court has no jurisdiction to entertain the suit. It has further been stated that Sh. M. L. Mehta, Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 5 of 32 ARC (as he then was) had passed orders u/s. 45 of the Delhi Rent Control Act holding that there exists a relationship of landlord and tenant and he had also directed Tara Singh to restore electricity supply to the tenanted premises. It is stated that no appeal against the said order has been filed and therefore, the order has attained finality. It has also been stated that the agreement dated 01.03.1982 has been executed by partnership firm M/s. Panesar Engineering Works and thus, only they are competent to institute the present suit. Surinder Singh has further alleged that there has been concealment of material facts by Tara Singh as he has not disclosed regarding security amount of Rs. 10,000/ received by him by way of cheque at the time of letting out of the premises. It is also stated that the suit for mandatory injunction is not maintainable and that a suit for possession is the appropriate remedy. In this regard, it has been argued that Tara Singh has intentionally framed the suit so as to avoid payment of appropriate amount of court fees on the relief sought. It has also been claimed that Tara Singh has manufactured two documents; i.e. notices dt. 01.07.1987 and 18.07.1987. It is claimed that the said notices have never been received by Sh. Surinder Singh or any reply has been sent on his behalf by Sh. R.N. Khanna, Advocate. It is claimed that Tara Singh has obtained this reply by acting in collusion with the advocate and hence, the same is not liable to be acted upon. It has also been Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 6 of 32 stated that no open space was given on license to Surinder Singh. It has been stated that the suit property was under the tenancy of one Sh. Mohinder Singh, who was running a Randa machine from the same, with the help of 3 phase electric power supply. It is claimed that the latrine and bathroom were in the tenancy of Sh. Mohinder Singh. Surinder Singh claims to have purchased this machinery in February, 1982. It has also been stated that the suit property was never an open space and was infact a constructed shed with four walls made of bricks. Surinder Singh has denied that he has carried out unauthorized construction and it is infact his plea that the tin shed was let out to him at a monthly rent of Rs. 400/ per month w.e.f. 01.03.1982. Surinder Singh has denied that he has unexecuted undated writing and a license agreement dt. 01.03.1982 and instead he has stated that his signatures were procured on stamp papers and blank papers by Sh. Tara Singh. It has also been claimed that a separate submeter of Sh. Surinder Singh was installed in the suit property and he was regular in making payments as per demand raised. It has been claimed that it was Tara Singh, who refused to accept rent @ Rs. 400/ per month and therefore, Surinder Singh deposited the same for the month of August and September, 1987 in the Court of Sh. Rakesh Kapoor, Ld. ARC, Delhi. It has been claimed that rent is being timely deposited in the court of ARC and hence, it is stated that there is no default on the part Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 7 of 32 of Surinder Singh. Surinder singh claims that he is a tenant in respect of tin shed existing on the suit property and he cannot only be evicted without due process of law. It was stated that the competent court constituted under Delhi Rent Control Act has jurisdiction to deal with the matter and accordingly, it was prayed that the civil suit was liable to be dismissed.
7. This court is dealing with three connected suits, the present one bearing no. 769/14 titled "Tara Singh Vs Surinder Singh", the second one being CS No. 770/14 titled "Surinder Singh Vs Tara Singh and the third one being CS No. 771/14 Titled "Surinder Singh Vs DDA and Ors." . All the three suits are consolidated vide orders dt. 20.01.1997 passed in Cs no 769/14. The proceedings of the present suit bearing no. 769/14 have been ordered to be considered as the main proceedings by orders dt. 20.01.1997.
8. On the basis of pleadings on record, following issues were framed for adjudication on 20.03.1997 (in suit no 769/14):
1. Whether the plaintiff is the allottee and has got the perpetual lease hold rights regarding the premises in dispute from DDA? OPP
2. Whether the defendant Surinder Singh is tenant of the plaintiff, if so, to what effect? OPD
3. Whether the present suit of the plaintiff is not maintainable u/s 10 of the CPC?
Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 8 of 32
4. Whether this suit as framed is not maintainable without consequential relief of possession, if so, to what effect?
5. Whether the plaintiff is entitled to the damages claimed, if so at what rate and for what period?
6. Whether the plaintiff is entitled to the relief claimed for? OPD
7. Relief.
Issues were also framed on 16.08.1989 : (in suit no. 771/14)
1. Whether the plaintiff is tenant in the suit premises under defendant no. 2 and the defendants are threatening to dispossess plaintiff to demolish the suit premises? OPP
2. Whether the plaintiff was merely a licensee in the suit premises and that license has been cancelled and the present status the plaintiff is that of an unauthorised occupant? OPD No. 2
3. Whether the plaintiff has not approached the court with clean hands, if so its effect? OPD
4. Whether the suit merely for injunction in absence of declaration is not maintainable? OPD
5. Whether the jurisdiction of the civil court is barred to entertain the suit? OPD No.1
6. Whether the suit premises has been constructed unauthorisedly and has been subletted illegally. If so its effect on the rights of the plaintiff?
OPD No. 1Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 9 of 32
9. In support of the case of Tara Singh, his son Sardool Singh has examined himself as PW1. He has deposed on the strength of a Power of Attorney; Mark A (Later on Ex. DW2/1A) executed in his favour by his father. He has also relied upon the following documents in his evidence:
1. Lease deed of suit property - Mark B.
2. Copy of Conveyance Deed of suit property - Mark C.
3. Agreement of License dated 01.03.1982 - Ex. DW2/1B.
4. Undated Agreement on the letter head of M/s. Flora Engineering Firm
- Ex. DW2/1C.
5. Copy of notice dated 01.07.1987 sent by Counsel Sh. B. K. Sarin - Ex. P1.
6. Reply of Surinder Singh to notice Ex P1 - Mark D.
7. Notice issued by Tara Singh to cancel the license of Surinder Singh dated 11.03.1988 - Mark E.
8. Reply of Surinder Singh to notice Mark E - Mark F.
9. Copy of complaint made by Tara Singh in police against the unauthorized construction, dated 02.7.1987 Ex. P2.
10. Copy of notice sent by DDA to plaintiff Tara Singh regarding the unauthorized construction - Mark G.
11. Site plan - Ex. P3.
Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 10 of 32
12. Certified copies of order passed in CM (M) no. 287/92 arising out of suit no. 226/94 for appointment of Arbitrator Mahender Singh - Ex. PW1/DC.
13. Certified copy of order passed by Sh. S. K. Sarvaria, ARC, on 29.02.1992 in petition u/s. 45 of Delhi Rent Control Act - Ex. DW2/1D.
14. Copy of order dated 13.02.2002 regarding cancellation of lease deed of Tara Singh by DDA - Ex. D1W1/P1.
10. PW2 is Sh. Ashok Kumar, UDC, Land Sales Branch, Industrial DDA. He has brought the file no. F6A (163)/67LSB I pertaining to suit plot no. A14, Naraina Industrial Area, PhaseI, New Delhi. He has also exhibited copy of notice sent to the firm of the plaintiff Tara Singh namely M/s. Panesar Engineering Works on 18.12.1987 as document Ex.PW2/1 (earlier Marked as Mark G).
11. PW3 is one Sh. Arjun Prasad, Engineer, North Division, DDA. He has deposed that he had carried out inspection of the suit plot on 27.11.1987 and had prepared an inspection report, which is Ex. PW3/1.
12. PW4 is Sh. T. B. Joshi, Deputy Director, Survey, Housing, Urban Project Wing, DDA. This witness has also signed the inspection report Ex. PW3/1 and has relied upon the same in his Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 11 of 32 evidence.
13. In the evidence led by Surinder Singh, he has himself stepped into the witness box apart from various other official witnesses. Surinder Singh has examined himself and relied upon the following documents :
1. Site Plan of the suit property - Ex. PW2/A .
2. Copy of challan by which Surinder Singh was summoned by the Court of Sh. A. S. Yadav, MM, Delhi - Ex. PW2/B.
3. Copy of order by which Surinder Singh was fined by the Court of Sh. A. S. Yadav, MM, Delhi - Ex. PW2/C.
4. Photographs of the site - Ex. PW2/X3.
5. Application moved before the Court of Sh. Rakesh Kapoor, ARC, Delhi for depositing rent for the month of August / September, 1987 - Ex. PW2/X4.
6. Copy of Kalandara dated 23.05.1987 u/s. 107/151 Cr.P.C - Ex. DW1/B.
7. Certified copy of order passed by the Court of Sh. K. S. Gupta, Rent Control Tribunal - Ex. DW1/C.
8. Certified copy of order of the High Court dismissing the petition of Tara Singh filed against the order of Rent Control Tribunal - Ex.
DW1/D.
Suit No. 769/14 Tara Singh Vs Surinder Singh
Page No. 12 of 32
9. Reply sent by Surinder Singh to the notice of Tara Singh dated
March, 1988Ex. DW1/F.
10. Counter foil of cheque drawn on Indian Overseas Bank, having account no. NRI 410 Karol Bagh, drawn for an amount of Rs. 10,000/ paid as security to Tara Singh - Mark X.
11. Photocopy of registration certificate issued to Surinder Singh under the Delhi Shops & Establishment Act, 1950 - Mark Y.
12. Receipt dated 18.02.1982 issued on the letter head of G.S. Engineering Works (firm of Sh. Mahender Singh) - Ex. PW1/DX.
14. Sh. Sanjay Kumar, LDC, Record Room, Sessions, Tis Hazari has brought the record of Suit no. 225/94 titled Tara Singh Vs. DESU decided on 11.09.1995 (having Goshwara no. 1334/D). Certified copy of the plaint in the said suit is Ex. DW3/1 whereas certified copy of ordersheet dated 11.09.95 by which the suit was withdrawn - Ex. DW3/2. This witness has again appeared as DW6 and has brought the summoned record of HMA Case no. 376/86 titled Hem Lata Vs Santosh Singh. Certifed copy of the petition is Ex. DW6/1 and certified copy of vakalatnama of Sh. B. K. Sarin, Advocate is Ex. DW6/2.
15. Sh. Mahender Singh, S/o Sardar Bawa Singh has also been examined by Surinder Singh as a witness (DW4) in favour of his case.
Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 13 of 32
16. Sh. Suresh Kumar, LDC from office of RTO, Janak Puri has produced the record of license of Scooter no. 88061699 issued on 17.06.1988. It contains the driving license record and signature of Sh. B. K. Sarin Advocate. The document is Ex. DW5/1.
17. Sh. Wazir Singh, S/o Sh. Lal Singh is also examined as a witness in favour of the case of Surinder Singh (DW7).
18. One Sh. Bipin Badwal, Clerk from Indian Overseas Bank, Karol Bagh has appeared as DW8 and deposed that the record of cheque is not available as records beyond 8 years are not preserved as per the guidelines of RBI.
19. Sh. Umed Singh has appeared as PW3, in favour of the case of Surinder Singh and has brought the summoned record from Indian Overseas Bank to prove the counter foil of the cheque encashed on 24.02.1982. The document is exhibited as Ex.PW3/A after bearing compared with the document Mark A already on record.
20. In the evidence of DDA, one Sh. Harcharan, Assistant Director, LSB (Industrial) is examined as DW1. He has relied upon the following documents :
1. Perpetual lease deed of the suit property - Ex. DW1/1.
2. Show Cause notice dated 18.12.1987 - Ex. DW1/2.
3. Show Cause notice dated 23.08.1990 - Ex. DW1/3.
Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 14 of 32
4. Show Cause notice dated 08.10.1991 - Ex. DW1/4.
5. Final Show Cause notice dated 30.07.1992 - Ex. DW1/5.
6. Show Cause notice dated 11.09.1996 - Ex. DW1/6.
7. Letter dated 13.02.2002 determing the lease - Ex. DW1/7.
21. After conclusion of evidence, final arguments were heard by this court.
22. There are three connected suits between Tara Singh and Surinder Singh which are pending before this Court for final disposal today. The main suit is suit no. 769/14 titled "Tara Singh V/s Surinder Singh" which is a suit filed by Tara Singh on the ground that Surinder Singh was allowed to occupy the suit property as a licensee vide license agreement dated 01.03.1982, but he had refused to vacate the property on cancellation of his license. Inter alia , it was also alleged by Tara Singh that Surinder Singh had not been paying the electricity dues as per consumption on a regular basis and therefore, the electricity supply to the suit property had been disconnected. It was also claimed that Surinder Singh was a habitual defaulter in payment of license fee on time and had infact not paid license fee for use and occupation of the suit property from July, 1987. On the other hand, Surinder Singh had claimed that he was a tenant in occupation of the suit property and was paying monthly rent of Rs. 400/ to the landlord Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 15 of 32 Tara Singh. It was denied that there was any default in payment of electricity dues or rent to the government authority or the landlord and instead, it was claimed that the suit was an abuse of the process of the Court to get the property vacated from the tenant. The suit no. 769/14 titled "Tara Singh V/s Surinder Singh" was filed with a prayer to grant the relief of mandatory injunction to direct Surinder Singh to vacate the suit property. It was also prayed that the defendant be ordered to clear arrears of license fee and damages on account of continued unlawful occupation of the suit property after termination of license.
23. Before filing of the suit for mandatory injunction i.e. suit no. 769/14, Surinder Singh had already filed two separate suits, one against Tara Singh and the other against DDA and Tara Singh, which are also pending for decision today. The suit against Tara Singh is bearing no. 770/14 whereas the suit against DDA and Tara Singh bears no. 771/14. Both suits are filed for seeking the relief of permanent injunction in order to restrain the defendants from illegally dispossessing the plaintiff Surinder Singh from the suit property.
24. Vide orders dated 20.01.1997, passed in suit no. 769/14, the Predecessor Court had ordered for consolidation of the above stated three suits. Perusal of the ordersheets of the three files show that issues have been framed twice during the proceedings. Seven issues have been framed in suit no. 769/14 on 20.03.1997 whereas six issues have Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 16 of 32 been framed in suit no 771/14 on 16.08.1989. The evidence as recorded by the Court is common for disposal of the above stated thirteen issues and I have gone through the documents filed on behalf of both sides in all the three files. Both sides have also referred to a catena of judgments in reliance of their case and I have carefully considered the contentions arising out of the rival claims of the parties.
25. My issue wise findings are as follows : ISSUE NO. 1 FRAMED ON 20.03.1987.
Whether the plaintiff is the allottee and has got the perpetual lease hold rights regarding the premises in dispute from DDA? OPP
26. The Ld. Predecessor of this Court Ms. Richa Gosain Solanki had passed orders dated 13.03.2013 in proceedings of CS No 769/14 wherein she held that there was no dispute on the question of the plaintiff Tara Singh being the allottee of the suit property. She had also held that a perpetual lease deed of the suit property had been executed in the name of the plaintiff Tara Singh by DDA and hence, parties were not at variance on this issue. Accordingly, the said issue was deleted vide the orders dated 13.03.2013 by the Predecessor Judge. None of the parties have challenged this order, which has since Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 17 of 32 attained finality. Therefore, there is no need to give finding on this issue now.
ISSUE NO. 3 AS FRAMED ON 20.03.1997 Whether the present suit of the plaintiff is not maintainable u/s 10 of the CPC?
27. This issue does not remain for adjudication in view of the fact that all three suits have been consolidated vide orders dt. 20.01.1997 in suit no. 769/14.
ISSUE NO. 2 FRAMED ON 20.03.1987 Whether the defendant Surinder Singh is tenant of the plaintiff, if so, to what effect? OPD1.
& ISSUE NO. 1 AND 2 FRAMED ON 16.08.1989
1. Whether the plaintiff is tenant in the suit premises under defendant no. 2 and the defendants are threatening to dispossess plaintiff to demolish the suit premises? OPP
2. Whether the plaintiff was merely a licensee in the suit premises and that license has been cancelled and the present status the plaintiff is Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 18 of 32 that of an unauthorised occupant? OPD No. 2
28. The above stated three issues can be disposed off by way of a common finding, which is as under :
29. Tara Singh and Surinder Singh have been involved in continuous adversarial litigation since last more than 25 years. In fact, Tara Singh has already expired and he is being represented by his LRS in all the suits. As per the case of Surinder Singh, trouble started brewing between the parties when the intentions of Tara singh turned malafide as he wished to get the property vacated so that the same could be let out for fetching more rent. Surinder Singh has claimed that Tara Singh had concocted the story of him carrying out unauthorized construction in June 1987, with a view to make out grounds to pressurize him to vacate the suit property. However, Surinder Singh claims that the property was already constructed as a tin shed when the same was let out to him on 01.03.1982. Surinder Singh also alleged that Tara Singh was in the habit of disconnecting the electricity supply to the suit property with a view to harass him. Constrained by the conduct of Tara Singh, Surinder Singh had filed a petition u/s. 45 of the Delhi Rent Control Act in the court of ARC, Delhi praying that the landlord be directed to fix the electricity supply to the demised premises (suit property). It is in the proceedings before the court of Additional Rent Controller that Tara Singh came up with Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 19 of 32 the plea that property was given on license to Surinder Singh. Tara Singh consequently denied to having let out the property to Surinder Singh and placed reliance upon the licence deed dated 01.03.1982 (Ex. DW2/1B) and another undated letter written on the letter head of M/s. Flora Engineering Firm (Ex. DW2/1C). Tara Singh denied that there was any relationship of tenant landlord between him and Surinder Singh or that he was being paid rent @ Rs. 400/ per month. Instead, it was stated that Tara Singh was receiving license fee @ Rs. 800/ per month from Surinder Singh for occupation of the property by him. A petition was preferred by Surinder Singh u/s. 45 (1) (11) of the DRC Act as petition no. 50/87 in the Court of Sh. M. L. Mehta, ARC, Delhi, wherein an order u/s. 45 (3) of DRC Act was passed by Sh. M. L. Mehta on 30.11.1987. The said order is exhibited in the evidence of Surinder Singh and is otherwise not disputed by the opposite side. While allowing the application of Surinder Singh, the Ld. ARC was of the view that the applicant Surinder Singh had succeeded in making out a prima facie case showing that there existed the relationship of landlord and tenant between him and Tara Singh. Tara Singh was accordingly directed to restore the electricity supply to the demised premises on payment of Rs. 1,000/ by Surinder Singh to him. However, it so seems that even after passing of this order, the electricity supply to the demised premises was again disconnected Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 20 of 32 whereafter, Surinder Singh again approached the Court of ARC with a similar petition u/s. 45 of ARC Act (petition no. 50/87 in the Court of Sh. S. K. Sarvariya). An objection to the jurisdiction of the Rent controller and applicability of the provisions of the Delhi Rent Control Act was taken by Tara Singh wherein he succeeded in obtaining a favourable order dated 29.02.1982. This order is on record of the file . The Ld. ARC in his orders dated 29.02.1992 held that the relationship between the parties was that of a licensor and licensee and not that of a landlord and a tenant. It was also opined that the Court of Rent Controller had no jurisdiction to entertain and continue with the petition u/s. 45 of the Act and accordingly, the petition of Surinder Singh was dismissed. It is against this order that Surinder Singh went in appeal to the Rent Control Tribunal. The appeal of Surinder Singh was accepted by the Court of Sh. K. S. Gupta, Rent Control Tribunal in RCA no. 122/92. Vide orders of Rent Control Tribunal dated 04.08.1992, the orders of ARC Sh. S. K. Sarvariya dated 29.02.1992 were set aside by holding that there existed a relationship of landlord and tenant between Tara Singh and Surinder Singh. Additionally, the factory shed existing upon the suit property was construed to be a "premises" under provisions of Sec. 2 of the Delhi Rent Control Act. The court also held that the mere use of the words "license deed" or "licensor" or "licensee" in the deed dated 01.03.1982 did not preclude Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 21 of 32 the Court from gathering the intentions of the parties while executing the document. The court also observed that the terms of the deed dated 01.03.1982 created a lease on a monthly rent of Rs. 400 / per month instead of any license and that the status of Surinder Singh was that of a tenant/lessee. Tara Singh has challenged the orders of the Rent Control Tribunal dated 04.08.1992 till the Hon'ble Supreme Court, but no favourble relief has been granted to him. In fact, High Court has endorsed the opinion of Rent Control Tribunal in orders dated 17.04.2000 and Supreme Court has refused to interfere in the findings of the Rent Control Tribunal. It, therefore, follows that the judgment of the Rent Control Tribunal dated 04.08.1992 has attained finality, putting the controversy regarding the relationship between the parties, at rest.
30. The relationship between Tara Singh and Surinder Singh is that of landlord and tenant, wherein monthly payment of Rs. 400/ was fixed as rent of the demised premises. Therefore, the plea of Tara Singh that Surinder Singh was occupying the suit property as a licensee falls flat to the ground. It being so, the service of notice dated 11.03.1988 upon Surinder Singh cannot be deemed to have cancelled his right to occupy the suit property and hence, it becomes clear that Surinder Singh is not occupying the property as an unauthorized occupant.
Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 22 of 32
31. This is a suit for mandatory injunction seeking the relief to direct the defendant Surinder Singh to vacate the suit property. The plaintiff Tara Singh had filed the suit for injunction on the ground that Surinder Singh was occupying the suit property as a licensee and hence, it was claimed that the suit for mandatory injunction was proper. However, two fold objections were taken by Surinder Singh claiming that he was protected by virtue of provisions of Delhi Rent Control Act and hence, the Court of Civil Judge did not have the jurisdiction to order eviction in this case. Addditionally, it was also pleaded that since Surinder Singh was occupying the property as a tenant, the suit property could only be repossessed by filing a suit for possession and not injunction.
32. Ld. Counsel for plaintiff Tara Singh had placed reliance upon a judgment of the Supreme Court of India titled "Mitter Sen Jain Vs. Shakuntala Devi" (Decided on 19.04.2000), in order to show that the provisions of Delhi Rent Control Act were not applicable to the area, wherein the suit property was situated . I have gone through the said judgment of the apex court. It has been observed in the above said case that the provisions of Delhi Rent Control Act cannot be enforced to the area of Sagar Pur as no notification has been issued under proviso to Sub Section (2) of Section (1) of the Delhi Rent Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 23 of 32 Control Act to specify the area of Sagar Pur within the schedule of the Act. A perusal of the plaint or the evidence led by plaintiff Tara Singh shows that there is no averment to the effect that the suit property is situated in the area of Sagar Pur. Infact, the suit property has been described as plot no. A14, Narayana Industrial Area, PhaseI, New Delhi28. The suit plot is infact leased out by DDA to Tara Singh by virtue of a conveyance deed. There is no ground in the replication to the effect that the suit property is situated in the area, wherein the provisions of DRC Act are not applicable. No such objection has been taken by Tara Singh in the Court of Rent Controller or before the higher Courts. It was the consistent objection of Tara Singh that he had never leased out the property to Surinder Singh, but had merely granted him a license by virtue of the license agreement dated 01.03.1982. The plaintiff Tara Singh had once objected to the jurisdiction of the Additional Rent Controller by pleading that the factory shed could not be construed to be a "premises" u/s. 2 of Delhi Rent Control Act, however, no objection regarding the applicability of the Act on the ground of the area not being notified was taken at the said stage. It, therefore, appears that the ground has been raised at the fag end of the trial, in order to circumvent the favourable orders passed in favour of Surinder Singh by the Rent Control Tribunal. Even otherwise, defendant counsel has placed a copy of notification bearing Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 24 of 32 SO No. 1236, New Delhi, dated 27.03.1979 published in the Gazette of India , PARtII, Sect. III (II) dated 14.04.1979, which shows that the entire remaining area of the Revenue Estate of Naraina, which had not been urbanized till the time of passing of the earlier notification, was now notified in the official gazette, to be covered under the provisions of the Delhi Rent Control Act. Hence, no circumstances exist to suggest that the provisions of Delhi Rent Control Act are not applicable to the area , wherein the suit property is situated. Therefore, the objection of plaintiff Tara Singh is rendered redundant on this count.
33. Plaintiff counsel has also relied upon a judgment of the Delhi High Court titled "Mulk Raj Khullar Vs. Anil Kapur & Ors"
2014 (1) CLJ 303 Del., in order to show that the suit for injunction was maintainable in the circumstances of the present case. I have gone through the copy of judgment filed on record, but I am constrained to hold that the observations made in the said referred judgment are not applicable to the facts of the present case. I state so as it is not the case that Surinder Singh has been occupying the suit property as a mere licensee or that his occupation has become unauthorized after termination of the license. In fact, the observations of the High Court that a licensee is bound to surrender possession on termination of his Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 25 of 32 license are not applicable in this case as it has been the consistent ground of Surinder Singh that he is a tenant in occupation of the property. Hence, by no stretch of imagination, can his occupation be termed as illegal. Even otherwise, by filing of a mere suit for injunction, it cannot be construed that the tenancy of Surinder Singh has come to an end. It can also not be construed that the tenancy of Surinder Singh has come to an end by service of notice dated 11.03.1988 as the notice was served upon him stating that his license to occupy the property was being extinguished. Proper notice for termination of the tenancy of Surinder Singh has not been served upon him. It appears that Tara Singh has filed a mere suit for injunction in order to avoid payment of Court Fees on the relief of possession, which otherwise would have been barred in view of the fact that provisions of Delhi Rent Control Act are applicable to the facts of the present case. Accordingly, plaintiff Tara Singh cannot seek possession of the suit property from Surinder Singh by filing a mere suit for mandatory injunction in the present Civil Court. Accordingly, the issues are decided in favour of the defendant Surinder Singh.
34. In view of the above stated findings, the issue no. 4 as framed on 20.03.1987 (Whether this suit as framed is not maintainable without consequential relief of possession, if so, to what effect?) and issue no. 3, 4 and 5 (Whether the plaintiff has not approached the Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 26 of 32 court with clean hands, if so its effect? OPD, Whether the suit merely for injunction in absence of declaration is not maintainable? OPD and Whether the jurisdiction of the civil court is barred to entertain the suit? OPD No.1) as framed on 16.08.1989 are also decided against the plaintiff Tara Singh and in favour of defendant Surinder Singh.
ISSUE NO. 6 (AS FRAMED ON 16.08.1989) Whether the suit premises has been constructed unauthorisedly and has been subletted illegally. If so its effect on the rights of the plaintiff?
OPD No. 135. Tara Singh had alleged that Surinder Singh had carried out unauthorized construction in the suit property by installing pillars and affixing a tin shed on the same. It was claimed by Tara Singh that the premises was let out as an open piece of land to Surinder Singh, who had later on carried out unauthorized construction behind his back in the month of June, 1987. DDA has inspected the site and has exhibited an inspection report dated 27.11.1987 (Ex.PW3/1) in order to show that there is unauthorized construction and subletting by the lessee. In the testimony of PW3 (Engineer from DDA), it was stated that the left side back portion of the suit plot had been subletted to the firm of defendant Surinder Singh namely M/s Flora Engineering Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 27 of 32 Works. Another witness of DDA namely PW4 Sh. T. D. Joshi, Deputy Director, Survey, Housing, Urban Project Wing, DDA had signed on the inspection report Ex. PW3/1 and he has entered into the witness box to prove the report. In his crossexamination, the said witness has admitted that he has not inspected the site before signing on the report. He has also admitted that he had never inspected or visited the site in question. He has stated that he has no personal knowledge regarding the extent of unauthorized construction carried out on the suit property. None of the officials of DDA have testified that the unauthorized construction was carried out by Surinder Singh. On the other hand, Surinder Singh has claimed that the premises was let out as a factory shed and not as an open plot at the time of agreement dated 01.03.1982. In this regard, contents of legal notice of the plaintiff Tara Singh dated 11.03.1989 (Ex. PW1/DA) are germane. Paragraph 2 of the notice states that Surinder Singh was given a part of the shed of the said building on the suit plot on license basis, which fact is an admission on the part of Tara Singh that the property was not vacant or an open plot at the time of it being let out. The reply of the defendant Surinder Singh dated 23.04.1988 (Ex. PW1/DB) also states that he is not a licensee in the building on 288 square ft of land. There is no rebuttal to the contents of the reply of Surinder Singh dated 23.04.1988 to affirm that the property was let out as an open plot and Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 28 of 32 not as a constructed piece of land. Surinder Singh had claimed that the property was earlier in occupation of one Mahender Singh who had installed his randa machine in the premises for carrying out his business. It was also claimed by Surinder Singh that the property was already built up as a tin shed with walls and pillars from the time of tenancy of Sh. Mahender Singh, but this fact was not admitted by Tara Singh in his suit. When the attorney of Tara Singh entered into the witness box, he did not deny the suggestion that Mahender Singh was the person who was earlier in occupation of the tin shed on the suit property. The witness evaded the suggestion by claiming that he could not affirm or deny the same. Surinder Singh had examined Mahender Singh (DW4) as a witness in favour of his case. In his examination in chief, Mahender Singh had stated that at the time of his tenancy, a tin shed was in existence at the suit plot. Counsel for plaintiff Tara Singh had crossexamined this witness, but no suggestion was given to him to the effect that the property was let out as a vacant plot of land. Similarly, there was no suggestion to this witness that it was Surinder Singh who had carried out unauthorized construction on the suit property. The witness from DDA (PW3), who has exhibited the inspection report has reported that the other parts of suit property are also unauthorizedly constructed and subletted to other tenants. In the absence of any conclusive evidence to prove that it was Surinder Singh Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 29 of 32 who had carried out unauthorized construction, coupled with the fact that other parts of the suit property, not in possession of Surinder Singh were also illegally constructed, it cannot be held that it is the defendant Surinder Singh (plaintiff in suit no. 770/14 and 771/14) who has carried out unauthorized construction in the suit property.
36. Surinder Singh had alleged that DDA had not served a notice of sealing or demolition upon him despite the fact that he was in possession of the suit property as a lawful tenant of the plaintiff Tara Singh. In the evidence of DDA, it was admitted that notice of demolition and other show cause notices were only issued to Tara Singh/ partner of leasee M/s. Panesar Engineering Works. DDA witnesses have exhibited the inspection report proving that Surinder Singh is in possession as a sublette of Tara Singh. Surinder Singh has been held to be a tenant of Tara Singh and hence, it is trite to record that his possession in the suit property is peaceful and settled since 1982. During the course of arguments, it was apprised to the Court that the lease of Tara Singh/ M/s. Pansar Engineering Works had already been cancelled by DDA, for which a writ petition for revocation of cancellation was pending in the High Court. It is also stated that since the writ petition was filed by Tara Singh, Surinder Singh was not a party in the same. I have already observed that Surinder Singh is not an unauthorized occupant in the suit property and hence, possession Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 30 of 32 cannot be regained from him except according to due process of law. Admittedly, there is no privity of contract between Surinder Singh and DDA, nonetheless, since, Surinder Singh has approached the present court and proved his settled possession in the suit property, hence, equity demands that I injunct both Tara Singh and DDA from dispossessing him from the suit property without due course of law. Issues are accordingly decided in favour of Surinder Singh.
ISSUE NO. 5 AS FRAMED ON 20.03.1997.
Whether the plaintiff is entitled to the damages as claimed, if so at what rate and for what period?
37. Plaintiff Tara Singh has not stepped into the witness box and has instead authorized his son Sardool Singh to appear as PW1 and prove the case on his behalf. The witness claims to have personal knowledge about the facts of this case. He has deposed that the license agreement dated 01.03.1982 was executed in his presence. He has also deposed that Surinder Singh had not paid license fee and commission from July, 1987. On the other hand, Surinder Singh had claimed that he was regularly depositing rent in the sum of Rs. 400 per month as per the orders of ARC, Delhi. It is admitted by PW1 Sardool Singh Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 31 of 32 that they were withdrawing the rent being deposited by Surinder Singh. PW1 had stated that Surinder Singh was depositing electricity charges in the Court as per the reading of the submeter installed at the property. The Rent Control Tribunal has already held that the rate of rent between the parties was Rs. 400/ per month. PW1 Sardool Singh has claimed that commission was also to be paid by Surinder Singh, but he has also admitted that there was no notice on record showing that such charges were ever demanded by Tara Singh from Surinder Singh at any point of time. Pw1 has also testified that Surinder Singh used to pay Rs. 400/ per month by way of cheque, which is the stand of the opposite party in their pleadings. However, it is admitted that Tara Singh has not maintained a statement of account for the money paid to him. It is also admitted that no receipt was issued to Surinder Singh in lieu of the money paid by him. PW1 has failed to file details of the cash payment made by the defendant to him/ his father. He has testified that only his father Tara Singh can tell whether the amounts received have been duly reflected in the income tax return or not. PW 1 has stated in his crossexamination that he is not certain, but thinks that the license fees is due from March/ April 1987. The above circumstances show that the plaintiff has miserably failed to prove that any amount of money is liable to be paid by Surinder Singh on account of arrears of rent / damages. Accordingly, issue is decided Suit No. 769/14 Tara Singh Vs Surinder Singh Page No. 32 of 32 against the plaintiff Tara Singh.
RELIEF
38. In view of my findings as stated above, suit No. 769/14, titled "Tara Singh Vs Surinder Singh" filed for Mandatory injunction and recovery of damages is dismissed. The other connected suits, filed as suit no. 770/14 titled "Surinder Singh Vs Tara Singh" and CS no. 771/14 titled "Surinder Singh Vs DDA & Anr.", both filed for Permanent Injunction are decreed.
Parties to bear their individual costs of the suit.
39. Decree sheet be prepared in all three cases.
Announced in the Open Court (CHHAVI KAPOOR)
today on 6th of August , 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 32 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 769/14 Tara Singh Vs Surinder Singh