Delhi District Court
Sh. Jasdev Singh vs Sh. Bal Kishan on 30 September, 2019
Jasdev Singh V. Bal Kishan & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 29/2019
UNIQUE CASE ID NO.: 614945/2016
IN THE MATTER OF :
Sh. Jasdev Singh
Son of Sardar Rajdev Singh
resident of 2, Curzon Road,
New Delhi. ....Plaintiff
VERSUS
1. Sh. Bal Kishan
son of late Shri Hoti Lal
2. Sh. Mohan Kumar
son of Shri Bal Kishan
3. Sh. Naresh Kumar
son of Shri Bal Kishan
4. Ms. Anita Kumari
daughter of Shri Bal Kishan
All residents of Servant Quarter No.4,
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Jasdev Singh V. Bal Kishan & Ors.
Vakil Lane, rear side of 4,
K.G. Marg, New Delhi110001.
5. Smt. Jyoti
wife of Shri Narinder
resident of 3013/9B, Ranjit Nagar,
Gali No. 18, Near Shiv Chowk,
Patel Nagar, New Delhi.
6. Smt. Sunita Kumari
wife of Shri Ravinder Singh
resident of RZF1054/4, Raj Nagar,
PartII, Palam Colony,
Near Dadadev Mandir,
New Delhi. ....Defendants
SUIT FOR POSSESSION, RECOVERY & MESNE PROFITS
Date of institution of the Suit : 31/05/2007
Date on which Judgment was reserved : 19/08/2019
Date of Judgment : 30/09/2019
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon suit for possession, recovery and mesne profits filed by the
plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
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Jasdev Singh V. Bal Kishan & Ors.
(a) S. Ranjit Singh, son of Rai Bahadur S. Narain Singh acquired
on perpetual lease Plot no.19, in Block 148, measuring 0.914
Acre commonly known as 4, Curzon Road (now known as
Kasturba Gandhi Marg), New Delhi from the Secretary of State
for India in Council, vide perpetual lease deed dated 15 th
June, 1932 and registered as no. 3155 in Additional Book
no.1, Volume no. 33 on pages 143 to 152 on 5 th December,
1932 in the office of SubRegistrar, Delhi. S.B. Sardar Ranjit
Singh, son of R.B. Sardar Narain Singh constructed a
bungalow and some servants quarter and Garages on the
aforesaid plot of land. By registered Gift Deed dated
02.12.1953 and registered as document no. 3348 in Book no.
I Vol. no. 256 in the Office of SubRegistrar, Delhi (Nazul) Sub
District at pages 299 to 313 on 03.12.1953 S.B. Sardar Ranjit
Singh grandfather of the plaintiffs no. 1 and 2 gifted the entire
property known as 4, Curzon Road, New Delhi to the plaintiff
and S. Hardev Singh, real elder brother of the plaintiff. Both
S. Jasdev Singh, plaintiff and S. Hardev Singh were then
minors S. Rajdev Singh, father of S. Jasdev Singh and S.
Hardev Singh acted as their Trustee.
(b) On 19.01.2001, S. Hardev Singh executed a Registered
Relinquishment/ Release Deed in respect of his one half
undivided share in respect of property constructed on the said
plot no. 19, Block 148, New Delhi110001, commonly known
as 4, Curzon Road, New Delhi, admeasuring 0.914 acres.
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Jasdev Singh V. Bal Kishan & Ors.
Thus, the plaintiff became the exclusive owner of the property
and the perpetual lessee rights.
(c) The plaintiff obtained a registered Conveyance Deed dated
06.03.2006 registered in the office of SubRegistrar as
document no. 7271 in Book no.1, volume no. 1971 on pages
185 to 187 on 31.03.2006 in the office of SubRegistrar VII,
New Delhi from the President of India through the Land &
Development Office, Nirman Bhawan, New Delhi converting
from Lease Hold rights to Free Hold in respect of the above
property and the plaintiff paid the sum of Rs.1,60,71,114/
for the same. This included all misuse charges and penalty
levied by the L&DO for the period ending 31.03.2006.
(d) In or about 1940, Kundan Dhobi, son of Munni Dhobi was
employed as Washerman by S.B. Sardar Ranjit Singh. One
servant room admeasuring 10' x 10' together with a right to
use common W.C. and Bath with other occupants of Servant
Quarter Block was let out by S.B. Sardar Ranjit Singh to said
Kundan Dhobi at a rental of Rs.6/ per month on account of
his being under employment of S.B. Sardar Ranjit Singh as
"Dhobi". No other space was ever letout to said Kundan.
After the death of Sh. Kundan Dhobi, his widow Smt. Lacho
Devi became tenant qua the said servant quarter and after the
death of Smt. Lacho Devi, Smt. Sukh Devi alias Sukhia
daughter of late Shri Kundan Dhobi and wife of Bal Kishan
became the sole tenant under the plaintiff and S. Hardev
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Singh qua the servant quarter by operation of law. In 1995,
Smt. Sukh Devi alias Sukhia made certain illegal and
unauthorised construction and she dealt with the premises
in suit in a manner contrary to the conditions imposed by
Land & Development Office, while granting the perpetual lease
of land on which property no. 4, Curzon Road (Kasturba
Gandhi Marg) New Delhi is constructed.
(e) S. Jasdev Singh and S. Hardev Singh received a notice no.
LI0/148(19)/97/344, dated 22.10.1997 and another notice
no.L1/148(19)/2001/71, dated 06.02.2001 from the
Government of India, Ministry of Urban Affairs &
Employment, Land & Development Office, Nirman Bhawan,
New Delhi regarding misuse and breach of the covenant of the
terms of the perpetual lease by its tenants/ occupants. The
breaches complained of against Smt. Sukh Devi, as
mentioned at item no. 5 of the Notice, dated 22.10.1997
which reads as under:
"V. Damages charges for Shed occupied by Sh. Bal Kishan
area 9.406 Sq. Mts.
(i) @ 9529/PA from 26.2.97 to 31.3.98 Rs.10417.00
In the notice dated 06.02.2001 the breaches complained of are
mentioned at F which reads as under:
"F. Damages charges for Shed occupied by Sh. Bal Kishan
area 9.406 Sq. Mts.
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i) from 1.4.98 to 31.3.2000 @ Rs.10,479/ PA
Rs.20,958.00.
ii) from 1.4.2000 to 31.3.2001 @ Rs.10,479.00
(Provisional) Rs.10,479.00
The Land & Development office, Nirman Bhawan,
New Delhi had also sent another notice
L1/9/148(19)/2004/291 dated 26.07.2004 to the plaintiff. In
the said notice at paragraph (D) the under mentioned amount
as damages had been claimed in respect of the premises in
suit concerning the misuse by the defendants:
"D. Damages charges for shed
occupied by Shri Bal Kishan area
9.406 sq. mtrs. w.e.f. 01.04.2001 to
29.04.2003 @ 10,479/ per annum
(provisional)" ......Rs.21,791/.
(f) The plaintiff sent a Notice of Eviction and demand on 28 th May
2001 through their counsel Shri Prem Shankar Khandelwal,
Advocate to Smt. Sukh Devi alias Sukhia by Registered Post,
Speed Post and U.P.C. This notice was duly acknowledged by
the addressee vide reply dated 05.07.2001 through her
counsel Sh. Vijay Kumar Goyal, Advocate.
(g) Smt. Sukh Devi alias Sukhia had filed two suits against the
plaintiff S. Jasdev Singh for permanent injunction being suit
no. 622 of 2002 and 307 of 2003 in the court of Shri Raj
Kumar, Civil Judge, Tis Hazari Courts, Delhi. After the death
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Jasdev Singh V. Bal Kishan & Ors.
of Smt. Sukh Devi alias Sukhia, deceased plaintiff, the
defendants herein applied to the said court for bringing them
on record as plaintiffs in place of the deceased plaintiff Smt.
Sukh Devi alias Sukhia, who died on 1st February 2002 at
New Delhi. By order dated 21.05.2004, Shri Raj Kumar, Civil
Judge, Delhi directed the present defendant to show that the
right to sue survived in their favour after the death of Smt.
Sukh Devi alias Sukhia. The above suits were consolidated
for trial.
(h) The said Smt. Sukh Devi alias Sukhia being a statutory
tenant had only personal rights to remain in possession of the
said servant quarter no.4 and had no heritable interest, which
could pass on to his heirs and legal representatives on her
death. None of the heirs or legal representatives of the
deceased tenant has any right, title or interest in the property
in suit and owned by the plaintiff and they are not entitled to
occupy the property in suit and owned by the plaintiffs. The
tenancy is not heritable interalia on the following grounds:
1) That the premises in suit had been let out to the
deceased tenant for RESIDENTIAL PURPOSES.
2) That none of the heirs of late Smt. Sukh Devi alias
Sukhia were financially dependent upon her at the time
of her death on 01.02.2002.
3) That none of heirs of late Smt. Sukh Devi alias Sukhia
except defendant no. 1, 2, 4 were resident with her at
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the time of her death at servant quarter no. 4, the
premises in suit.
4) Section 2(1) of the Delhi Rent Control Act 1958 (Act 59
of 1958) lays down the ORDER OF SUCCESSION after
termination of tenancy in respect of residential premises
which firstly is 'SURVIVING SPOUSE'. Explanation II to
the said Sub Section further provides that the right to
continue in possession after termination of tenancy of
the said spouse, who was not financially dependent on
the deceased person on the date of death is for a
LIMITED PERIOD OF ONE YEAR ONLY. Accordingly,
Shri Bal Kishan, defendant no.1, at best was protected
for a limited period of one year from 1 st February 2002,
the date of death of Smt. Sukh Devi alias Sukhia.
Therefore, w.e.f. 2nd February, 2003 onwards all the
defendants have no right, whatsoever, to occupy the
premises in suit and owned by the plaintiffs. Their
status is that of trespassers of unauthorised occupants
as hold by the Division Bench in Re : Krishana
Prakash Vs. Dalip Chenoy 2002 (2), R.C.J. page 1
(Delhi).
(i) After the death of Smt. Sukh Devi, the defendants are in
possession of the said property and to the best of the
knowledge of the plaintiff, the defendants are the only legal
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Jasdev Singh V. Bal Kishan & Ors.
representatives of the deceased tenant, who are in possession
of the same. Upto 31.03.2006 i.e. the date of conversion of
the property no. 4, Curzon Road, New Delhi from Lease Deed
to Free Hold, the plaintiff has paid Rs.3.00 Lacs
approximately to the L&DO. This includes the amounts
claimed by the L&DO together with further damages upto the
period 31.03.2006. These amounts were paid by the plaintiff
in order to save the property from reentry by the President of
India and the plaintiff paid the said amount because of the
breaches committed by Late Smt. Sukh Devi alias Sukhia.
These amounts are attributable for misuse committed by
Smt. Sukh Devi alias Sukhia and her heirs, which the
defendants are liable to pay to the plaintiff. The plaintiff is
claiming Rs.2 Lacs only from the defendants by way of
damages, penalty and interest. The plaintiff is entitled to
recover the under mentioned amounts:
Amount Description
Rs.1,80,000/ From the defendants mesne profit @
Rs.5,000/ per month for the last
three years for the premises in suit
unlawfully occupied by the
defendants which are within
limitation.
Rs.2,00,000/ Paid as damages, penalty and
interest to the L&DO towards misuse
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Jasdev Singh V. Bal Kishan & Ors.
of the property owned by plaintiff.
Total Rs.3,80,000/
(j) The plaintiff had requested the defendants to vacate and
surrender possession of the premises in suit, but the
defendants have failed to do so.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT
Summons for settlement of issues were issued to the
defendants and the defendants have filed their joint written
statement in the present case. Succinctly, the case of the
defendants is as under:
(a) There is absolutely no relationship of landlord and
tenant between the parties to the suit. In fact, the
parties to the suit do not have any dealings between
them in any manner, whatsoever.
(b) The plaintiff does not have any locus standi to file the
suit inasmuch as that the occupation, enjoyment, user
and possession of the defendants in the suit premises is
by virtue of adverse possession since the defendants
have been uninterruptedly using, occupying, enjoying
and holding the suit premises since 1980 absolutely
illegally and openly without paying any licence fee, rent
or any other charges for the same and such
uninterrupted and illegal user of the said premises by
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Jasdev Singh V. Bal Kishan & Ors.
the defendant has remained unchallenged from any
quarter, whatsoever, including the plaintiff.
(c) The suit is bad for misjoinder and nonjoinder of causes
of action. The suit is absolutely without any cause of
action inasmuch as that the occupation of the suit
premises by the defendants is in their own independent
right and the defendants have never attorned to the
plaintiff or anyone else for that matter.
(d) Since according to the pleadings in the case, the plaintiff
is claiming that the premises was rented at Rs.6/ per
month on which amount the plaintiff has valued the suit
for jurisdiction and court fee, this Court will not have
the jurisdiction to entertain or decide the suit. Only the
Court of Ld. Rent Controller, Delhi can have the
jurisdiction to entertain and decide the dispute, if any,
between the parties relating to the premises in suit.
(e) The plaintiff has been guilty of misjoinder of causes of
action with regard to the claim for damages/ mesne
profits for the suit premises amounting to Rs.1,80,000/
without specifying the basis on which the plaintiff had
calculated such amount and the other for claiming
damages, penalty and interest to the L&DO towards the
alleged misuse of the property at Rs.2,00,000/, merely
with the intent to bring the suit within the pecuniary
jurisdiction of this Court. The suit is, as such, wholly
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Jasdev Singh V. Bal Kishan & Ors.
misconceived, untenable and thus, liable to be
dismissed with costs.
(f) On merits, the contents of the plaint have been denied
and it has been submitted that it would be a travesty of
things to allege that as early as the year 1940, such
premises could be letout at a monthly rent of Rs.6/
when the total salary of even a Superintendent or Head
Clerk used to be in the range of Rs.15/ to Rs.20/ per
month. Besides, the plaintiff has also claimed that such
licensed occupation had been as a perk with the
employment as Dhobi which would further reduce such
amount notwithstanding the title given to Sardar
Bahadur Sardar Ranjit Singh. It has been denied that
except for the premises shown in red in the site plan, no
other space was ever letout to Sh. Kundan. The
plaintiff has failed to explain as to how and why Smt.
Lacho Devi, W/o Late Kundan Dhobi had been allowed
to hold back possession of the suit premises, which had
been given on a monthly rent of Rs.6/ only as a perk
with the employment given to Kundan Dhobi and also
whether Smt. Lacho Devi and thereafter, Smt. Sukh
Devi alias Sukhia, daughter of late Kundan Dhobi had
also been given employment or not. The plaintiff has
also not given the dates of death of Sh. Kundan Dhobi or
his widow Lacho Devi or even Smt. Sukh Devi nor
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explained whether all those persons had also been
employed with the plaintiff or his ancestors in a manner
similar to that of Kundan Dhobi. The plaintiff has not
impleaded other heirs and legal representatives of Late
Kundan Dhobi while he has based his claim relating to
the suit premises on the plea of the same being a
tenanted premises. It is denied that Smt. Sukh Devi
had become the sole tenant in the suit premises.
(g) The defendants have been occupying the suit premises
in their own independent right without ever paying
anything towards rent, licence fee or any other charges.
In fact, the occupation of the suit premises by the
defendants has been illegal and belligerent,
uninterrupted, continuous and adverse for all intents
and purposes by virtue of which they have become the
owner of the suit property. It has been prayed to
dismiss the suit with compensatory costs.
REPLICATION AND ISSUES
Plaintiff has not filed any replication.
From the pleadings of the parties, following issues were
framed vide order dated 10.03.2008:
ISSUES
(1) Whether Kundan Dhobi was a tenant for residential
purposes, under S.B. Sardar Ranjit Singh and after his death
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Jasdev Singh V. Bal Kishan & Ors.
his wife Smt. Lacho Devi became tenant in respect of portion
shown red in the site plan attached, if so its effect? OPP
(2) Whether the tenancy of Lacho Devi was terminated vide
notice dated 28.5.2001, if so its effect? OPP
(3) Whether the defendants are in unauthorized occupation of
premises of one servant room measuring 10x10ft in property
bearing no.4 KG Marg, New Delhi as shown in red in the site
plan attached. If so its effect? OPP
(4) Whether the plaintiff is entitled to possession from the
defendants of the aforesaid property? OPP
(5) If issue no.4 is decided in favour of plaintiff, whether the
plaintiff is entitled to the damages/ use and occupation
charges, if so at what rate and for what period? OPP
(6) Whether the plaintiff is entitled to recover from the
defendants a sum of Rs.two lacs towards damages/penalty
and interest paid by the plaintiff to L&DO? OPP
(7) Whether the defendants are in adverse possession of the suit
premises since 1980, if so its effect? OPD
(8) Whether the suit is bad for misjoinder and non joinder of
parties or cause of action, if so its effect? OPD
(9) Whether the suit of the plaintiff is barred under Section 50
Delhi Rent Control Act and is not maintainable, if so its
effect? OPD
(10) Relief.
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EVIDENCE OF THE PLAINTIFF & DEFENDANTS AND
DOCUMENTS RELIED UPON BY THEM
Plaintiff, in order to prove his case, led plaintiff's
evidence and got examined himself as PW1. PW1 has filed his
evidence by way of affidavit, wherein he reiterated and reaffirmed
the contents of the plaint. PW1 was crossexamined by counsel for
the defendants. PW1 in his testimony has relied upon the
documents:
(i) Ex.PW1/1 is the certified copy of Conveyance Deed executed
in favour of Sh. Jasdev Singh in respect of 4, Kasturba
Gandhi Marg, New Delhi.
(ii) Site Plan is Ex.PW1/2.
(iii) Ex.PW1/3 to Ex.PW1/6 are the certified copies of the plaints
and replications of the suit filed by Smt. Sukh Devi against
Sh. Jasdev Singh.
(iv) Ex.PW1/7 is the copy of notice sent by Smt. Sukh Devi to Sh.
Jasdev Singh and its AD card is Ex.PW1/7A.
(v) Ex.PW1/8 is the reply dated 05.07.2001 sent on behalf of the
defendants to the notice of plaintiff.
(vi) Ex.PW1/9 is the certified copy of order dated 21.05.04.
The plaintiff also examined Sh. Manoj Kumar, UDC,
L&DO, Nirman Bhavan, New Delhi as PW2, who filed on record
copies of the following documents:
1. Ex.PW2/1 is the copy of notice no.LI0/148(19)/97/344,
dated 22.10.1997 from the Government of India, Ministry of
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Jasdev Singh V. Bal Kishan & Ors.
Urban Affairs & Employment, Land & Development Office,
Nirman Bhawan, New Delhi.
2. Ex.PW2/2 is the copy of notice no.L1/148(19)/2001/71,
dated 06.02.2001 from the Government of India, Ministry of
Urban Affairs & Employment, Land & Development Office,
Nirman Bhawan, New Delhi.
3. Ex.PW2/3 is the copy of notice no. L1/9/148(19)/2004/291
dated 26.07.2004 from the Government of India, Ministry of
Urban Affairs & Employment, Land & Development Office,
Nirman Bhawan, New Delhi.
4. Ex.PW2/4 is the copy of letter dated 06.07.2001 written by
the plaintiff to the Land & Development Officer with respect to
mutation of plot no. 19, Block148, commonly known as 4,
Kasturba Gandhi Marg, New Delhi.
5. Ex.PW2/5 and Ex.PW2/6 are the copies of Inspection
Reports dated 25.02.1997 and 30.04.2003 respectively.
6. Ex.PW2/7 is the copy of letter dated 21.06.2001 written by
the plaintiff to the Land & Development Officer with respect to
mutation of plot no. 19, Block148, commonly known as 4,
Kasturba Gandhi Marg, New Delhi.
7. Ex.PW2/8 is the copy of Revenue Deposit Slip bearing Diary/
Voucher no.3228(20052006), dated 07.02.2006.
8. Ex.PW2/9 is the copy of Revenue Deposit Slip bearing Diary/
Voucher no.2852(20052006), dated 06.01.2006.
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9. Ex.PW2/10 is the copy of Challan dated 08.12.2005 with
respect to Conversion from Lease Hold into Free Hold.
During crossexamination of PW2, photocopies of
Inspection Reports dated 03.11.1977, 24.05.1983 and 10.11.1988
are Ex.PW2/11A, Ex.PW2/11B and Ex.PW2/11C respectively.
On the other hand, the defendants have examined Smt.
Anita Kumari as DW1 on 04.03.2013 and she was partly cross
examined on that date. She was further partly crossexamined on
16.05.2013. DW1 was further partly crossexamined before the
Local Commissioner on 10.07.2014. Thereafter, vide order dated
07.10.2015, Ld. counsel for the defendant submitted that he would
like to file an additional affidavit of DW in terms of the liberty
granted to him by the Court through order dated 20.05.2014 and
31.08.2015 and she was allowed to file the additional affidavit. On
19.11.2015, additional affidavit of DW1 Smt. Anita Kumar was
filed and she was examined and crossexamined on 01.12.2015.
DW1 has filed the following documents on record:
1. Copy of ration card of Sh. Bal Kishan is Ex.DW1/30 (OSR).
2. Copy of voter I card of DW1 is Ex.DW1/51 (OSR).
3. Copy of voter of mother of DW1 is Ex.DW1/52 (OSR).
4. Copy of application dated 03.05.2014 is Ex.DW1/42 (OSR).
The following witnesses of the defendants were got
examined through the Local Commissioner:
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(i) Sh. Ram Pal Sharma (Teechu) as DW3, who filed on
record photocopy of his voter ICard as Ex.DW3/1
(OSR).
(ii) Sh. Din Dayal as DW4.
(iii) Sh. Ramesh as DW5.
(iv) Sh. Anil as DW6.
The defendants also examined Sh. Mohan Kumar as
DW8, who relied upon the following documents:
1. Photocopy of School Leaving Certificate of Sh. Mohan Kumar
is Ex.DW8/1 (OSR).
2. One registered post envelope pertaining to the period 2001,
showing the address of suit premises in the name of Sh.
Mohan Kumar is Ex.DW8/2 (OSR).
3. Photocopy of Indane Customer Subscription Voucher is
Ex.DW8/3 (OSR).
4. Photocopy of Payment Receipt issued by Usha Gas Service is
Ex.DW8/4 (OSR).
5. Letter dated 01.03.2002 issued by Delhi Administration to Sh.
Mohan Kumar is Ex.DW8/5.
6. Letter dated 13.11.2001 issued by Delhi Administration to Sh.
Mohan Kumar is Ex.DW8/6.
7. Envelope sent by American Express Travel Related Services to
Sh. Mohan Kumar is Ex.DW8/7.
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8. Copies of Birth Certificates of children of Sh. Mohan Kumar
are Ex.DW8/8 to Ex.DW8/9 (OSR).
9. Copies of Caste Certificates of children of Sh. Mohan Kumar
are Ex.DW8/10 to Ex.DW8/11 (OSR).
10. Copies of school certificates of Sh. Mohan Kumar are
Ex.DW8/12 to Ex.DW8/13 (OSR).
11. 13 photographs of marriage of sister of Sh. Mohan Kumar are
MarkA1 (Colly.).
12. Copy of Caste Certificate of Sh. Bal Kishan is MarkB.
13. Electricity bills for the months of March 1987, February 1987,
April 1987, June 1987, August 1987, July 1987, September
1987, December 1987, April 1989, April 1990, May 1990,
March 1990 and June 1990 are Ex.DW8/14 (OSR) to
Ex.DW8/26 (OSR).
14. Blank envelope bearing date 03.11.1990 bearing DL no.17118
is Ex.DW8/27 (OSR).
15. Blank envelope from NDMC bearing date 06.02.1990 and RL
no.2144 is Ex.DW8/28 (OSR).
16. Marriage card of Narender weds Jyoti is Ex.DW8/29 (OSR).
17. Notice dated 04.02.1992 from Judicial Committee constituted
by Hon'ble Supreme Court of India is Ex.DW8/30 (OSR).
18. Photocopy of electricity and water bill for January 2013,
issued by NDMC is MarkC.
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19. Voter ICard of Shri Bal Kishan is Ex.DW8/31 (OSR).
20. Caste Certificate dated 12.07.1999 issued to Naresh Kumar is
Ex.DW8/32 (OSR).
21. ESICT.I.C. in the name of Naresh Kumar, bearing date
04.05.1996 is Ex.DW8/33 (OSR).
22. School Leaving Certificate of Sh. Naresh Kumar is
Ex.DW8/34 (OSR).
23. Post card addressed to Mohan Kumar by Shri Lahori Ram is
Ex.DW8/35 (OSR).
24. Report card of Sunita for the class VIIIA, issued by S.G.H.K.
Girls Sr. Sec. School, Bangla Sahib, New Delhi is Ex.DW8/36
(OSR).
25. Document bearing registration no. 17332 in the name of Ms.
Sukhdevi during the period 01.10.1973 to 03.10.1973 is
Ex.DW8/37 (OSR).
26. The post card bearing date 11.08.1981 is Ex.DW8/38 (OSR).
27. The post card bearing date 01.07.1989 is Ex.DW8/39.
During crossexamination of DW8, following documents
were exhibited:
1. Certified copy of application under Order 39 Rules 1 & 2 read
with Section 151 CPC dated 10.05.2001 filed in Suit no.
307/2003 titled as Smt. Sukh Devi @ Sukhia Vs. S. Jasdev
Singh and its supporting affidavit are Ex.DW8/PX1.
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2. Certified copy of application under Order 39 Rules 1 & 2 read
with Section 151 CPC dated 26.12.2000 filed in Suit no.
622/2002 titled as Smt. Sukh Devi @ Sukhia Vs. S. Jasdev
Singh and its supporting affidavit are Ex.DW8/PX2.
3. Amended memo of parties dated 18.03.2002 from the judicial
record of Suit no. 307/03 is Ex.DW8/PX3.
4. Amended memo of parties dated 08.04.2002 from the judicial
record of Suit no. 622/02 is Ex.DW8/PX4.
The defendants also examined and summoned the
following witnesses:
(a) Mohd. Zakir Qureshi, Manager at Usha Gas Services, Mata
Sundri Road, New Delhi as DW9, who filed on record copy of
the pages of consumer register as Ex.DW9/1 and history of
consumer as Ex.DW9/2 in respect of Gas Consumer no.
18915 in the name of Sh. Mohan Kumar.
(b) Sh. Anand Singh Rawat, Clerical Staff, P&T Sr. Sec. School
T25, Atul Grove Road, New Delhi as DW10, who filed on
record photocopy of Admission Register showing the entry of
Sh. Naresh Kumar as Ex.DW10/1 (OSR2 pages).
(c) Sh. Om Prakash, Bailiff, Office of SDM, Chanakya Puri, New
Delhi as DW11, who filed on record photocopy of register of
Schedule Caste Certificate as Ex.DW11/1.
Suit No. 29/2019 Page 21 of 65
Jasdev Singh V. Bal Kishan & Ors.
(d) Sh. Manohar Lal Mathur, Lecturer (Math), Govt. Boys Sr. Sec.
School, Rouse Avenue Road, new Delhi as DW12, who filed
on record attested copy of Admission Register as Ex.DW12/1.
During crossexamination of DW12 stated that as per
their records, School Leaving Certificate refers to number
3218/2558, number 2558 encircled at point D does not relate to
the records of Mohan Kumar and is of some other person and the
said document was exhibited as Ex.DW12/X1.
(Note: As per the record, no witness as DW2 and DW7 was
examined by the defendants).
This Court heard final arguments, as advanced by Ld.
counsels for the parties. I have perused the material available on
record.
ISSUEWISE FINDINGS
Issues Nos.1 to 9 are interrelated and interconnected
to each other and accordingly, they are decided together.
ARGUMENTS OF THE DEFENDANTS
1. That plaintiff has prima facie failed to prove his own case. The
documents relied by the plaintiff itself disproved the case of
the plaintiff. The whole case of the plaintiff depends on the
termination notice dated 28.05.2001, which itself is not a
termination notice, as per DRC Act and Section 106 of T.P.
Suit No. 29/2019 Page 22 of 65
Jasdev Singh V. Bal Kishan & Ors.
Act. Vide order dated 25.08.2011, the Court of Ms. Swati
Katyar, Ld. Civil Judge, West District, Tis Hazari Court, Delhi,
has already held in a connected matter between the same
parties that notice dated 28.05.2001 was not a termination
notice. There was no averment in the notice dated 28.05.2001
that the tenancy of Smt. Sukhdevi is being terminated and
Smt. Sukhdevi is liable to handover a vacant possession of
the suit premises.
2. It is submitted that the present suit is barred under Section
50 of DRC Act, as according to pleadings in the case, the
plaintiff is claiming that the premises was letout at the rental
of Rs.6/ per month, on which amount the plaintiff has
valued the suit for jurisdiction and court fees, this Hon'ble
Court does not have the jurisdiction to entertain or decide the
present suit and in the given situation, only the Court of Ld.
Rent Controller, Delhi can have the jurisdiction to entertain
and decide the dispute relating to the premises in the suit.
The plaintiff himself deposed in his cross examination dated
08.03.2010 that "rent receipt were issued in favour of till the
time Sukhdevi was alive till about February 2002". Further, in
crossexamination dated 23.10.2010, the plaintiff deposed
that "notice was given by me to Sukhdevi only with regard the
illegal construction".
3. It is submitted that the plaintiff has been guilty of misjoinder
of causes of action with regard to the claim for damages/
Suit No. 29/2019 Page 23 of 65
Jasdev Singh V. Bal Kishan & Ors.
mesne profits for the suit premises amounting to
Rs.1,80,000/ without specifying the basis on which the
plaintiff had calculated such amount and the other for
claiming damages/penalty and interest having been paid to
the L&DO towards the alleged misuse of the property at
Rs.2,00,000/ merely with the intent to bring the suit within
the pecuniary jurisdiction of this Hon'ble Court. In fact, the
plaintiff is not entitled to take different stands qua the
disputed premises, as is being done by him in the present
proceedings when he had alleged that the suit premises had
fetched the rent of Rs.6/ per month initially and on the
other, the plaintiff had sought to claim damages at such an
exorbitant rate without even explaining the manner for
arriving at such calculation.
4. It is submitted that the plaintiff has alleged that the
defendants have raised illegal construction of front portion in
1995, whereas the photographs of the marriage of one of the
defendants in the year 1992 show that the said front portion
existed there even at that point of time, which clearly falsifies
the stand of plaintiff that the illegal construction was raised in
1995. It is submitted that the photographs of the said
marriage in the year 1992 are exhibited and marked as
Ex. DW 1/41 (Colly.).
5. The counsel for the plaintiff has argued his case at the time of
final argument, which was beyond his own pleadings. The
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Jasdev Singh V. Bal Kishan & Ors.
plaintiff has relied on some citations which are not related to
the present facts and circumstances of the case.
ARGUMENTS OF THE PLAINTIFF
1. In case of residential tenancies, the law has been crystallized
over the years not only by the Hon'ble Apex Court but also by
Hon'ble High Court of Delhi. The consistent view is that on
the death of a tenant, whose tenancy has not been terminated
(or has not expired by efflux of time), the tenancy rights
devolve upon the natural heir/s of the tenant. However, if a
(residential) tenancy has been determined (or has expired by
efflux of time), the tenancy rights are heritable if and only if
such a tenant (after the determination / termination of his
tenancy) was actually residing in the premises in his tenancy
along with his family.
2. The second condition is that even if the tenant was residing
there with his family, the tenancy rights would devolve upon
the spouse alone, if the spouse was also living there and was
financially dependent upon the statutory tenant. The third
condition was/ is that if the spouse was not financially
dependent upon the tenant (who had died), the statutory
protection would be inherited by the spouse only for a period
of one year (to be computed from the date of the death of a
tenant). The fourth condition was and is (as per the statute
itself ....... condition which were / are prescribed by the
statute itself) that it is also settled law that the statutory
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Jasdev Singh V. Bal Kishan & Ors.
protection in respect of tenanted 'premises', which was
inherited, if at all, by the spouse, would disappear into thin
air, either on the expiry of limited period of one year,
mentioned above, or on the death of the spouse, whichever
was earlier.
3. In the present case, the natural heirs of the tenant Smt.
Sukhia @ Sukh Devi are the original defendants to this plaint.
On her death, she left behind not only her spouse / husband
living in the demised premises [but also her children]. The
spouse (of Smt. Sukhia) is Shri Bal Kishan (defendant no. 1)
and the children are defendant nos. 2 to 7. None of them was
dependent upon Smt. Sukhia @ Sukh Devi on the day she
died, even though, they were living with her in the premises in
which she was a statutory tenant on the date of her death.
Therefore, the statutory rights of protection, that were
available to Smt. Sukhia @ Sukh Devi, were inherited by her
husband/ spouse Shri Bal Kishan for a limited period of one
year [vide Section 2(l) of the Act].
4. Admittedly, Shri Bal Kishan (defendant no. 1; spouse of the
statutory tenant, Smt. Sukhia @ Sukh Devi - who is also
dead) has died (albeit during the pendency of this suit).
Therefore, the statutory protection, that was available to Smt.
Sukhi @ Sukh Devi, came to an end once and forever on the
death of Shri Bal Kishan (the husband / spouse of Smt.
Sukhia).
Suit No. 29/2019 Page 26 of 65
Jasdev Singh V. Bal Kishan & Ors.
5. This is a suit for ejectment [recovery of possession in respect
of a small portion servant room, to be precise of the
immovable property forming part of the building bearing no.
4, Curzon Road (Kasturba Gandhi Marg), near India Gate,
New Delhi110001]. The plaintiff has instituted this action
against the heirs of an erstwhile (statutory) tenant on the
score that the protection accorded by the Delhi Rent Control
Act, 1958 (for short, the 'Act') to the erstwhile "tenant"
(and/or her/his heirs) stood obliterated on the death of the
"tenant" the moment the "tenant", whose tenancy had been
determined during his/her lifetime (by serving upon him/her
a notice to quit, and was consequently, at the maximum, a
'statutory' tenant in the demised premises) died. It is
submitted by the plaintiff that it was only the statutory tenant
who was entitled to protection under the Act till the day s/he
was alive.
6. In other words, according to the plaintiff, the statutory
protection in respect of the aforesaid 'premises in suit' (which
were once the premises demised to the tenant), disappeared
into thin air with the death of (statutory) tenant and,
therefore, the present occupants [who were/ are the natural
heirs of the tenant (deceased)] cannot claim to be "tenants" in
the 'premises in suit' (which were once the subject matter of
the tenancy).
Suit No. 29/2019 Page 27 of 65
Jasdev Singh V. Bal Kishan & Ors.
7. Admittedly, prior to the institution of this action, the plaintiff
had served upon the (admitted by sole) tenant (Smt. Sukhia) a
notice to quit (being the notice dated May 28, 2001
Ex. P.W1/7). The same was duly replied to by the noticee
(tenant) vide reply dated 5th July, 2001 (Ex. P.W1/8).
8. The notice propounded as under:
"3. That Kundan Dhobi son of Munni Dhobi was
employed as washerman by S. B. Sardar Ranjit
Singh. One Servant Room admeasuring 10' x 10'
together with a right to use common W.C. and Bath
with other occupants of Servant Quarter Block was
let out by S. B. Sardar Ranjit Singh to said Kundan
Dhobi at a rental of Rs.6/ per month on account of
his being under employment of S. B. Sardar Ranjit
Singh as "Dhobi". No other space was ever let out to
the said Kundan.
6. That Sh. Kundan Dhobi died long back and on
his death his widow Smt. Lacho Devi became
tenant qua the said servant quarter referred to
above. On the death of the said Smt. Lacho Devi,
you became the sole tenant under my said client
and his brother S. Hardev Singh qua the above
referred servant quarter by operation of law........."
The above quoted paras of notice Ex. P.W1/7 were
replied as under vide reply dated 5th July, 2001 (Ex. P.W1/8):
"3. That para 3 of your notice is wrong and
hence denied. In this respect it is submitted that
Shri Kundan Dhobi, father of my client was a
tenant in respect of one room pucca built up and
Suit No. 29/2019 Page 28 of 65
Jasdev Singh V. Bal Kishan & Ors.
with one covered tin shed and common W. C. and
bath.
That para 6 of the notice is admitted to the extent
that finally my client became tenant in respect of
the said premises after the death of her father and
mother. However, your client is neither the owner
nor the landlord of the premises under the
occupation of my client. Moreover, your client has
never visited my client nor seen in the said
premises, nor your client is residing in the subject
premises and as such my client by virtue of
adverse possession of the said premises also got
conferred with ownership rights over the said
premises............."
9. It is the admitted case of the contesting parties and in any
case, the facts proved by the documentary evidence already
exhibited on record clearly show that:
The Plaintiff is the sole owner of Property No. 4,
Kasturba Gandhi Marg, New Delhi110 001
including the premises in suit by a Conveyance
Deed dated 06.03.2006, Ex. PW 1 /1.
10. Admittedly, before this action was instituted, the plaintiff had
addressed to the defendant/s a legal notice dated May 28,
2001 Ex. P.W1/7 propounding himself to be the owner of the
Property no. 4, Kasturba Gandhi Marg, New Delhi110 001
including the premises in suit and that illegal constructions
had been made by the Noticee and the plaintiff had to pay
damages & charges to the L&DO, as per details mentioned in
Suit No. 29/2019 Page 29 of 65
Jasdev Singh V. Bal Kishan & Ors.
para 9 of the Plaint. An official of L&DO has also been
examined to prove the same. In his / their reply dated 5 th
July, 2001 (Ex. P.W1/8) to the aforesaid notice dated May 28,
2001 (Ex. P.W1/7), the noticee(s), namely, Smt. Sukhia @
Sukh Devi (who was the wife - now deceased of the
defendant no.1; and mother of the other defendants to this
plaint), had repudiated the tenancy and propounded that she
had become the owners of the 'premises in suit' [which were
in her use and occupation (earlier as a 'tenant') because she
was in adverse possession (of the said 'demised premises') for
more than 12 years prior to the day on which she had
received the aforesaid notice dated May 28, 2001 Ex. P.W1/7.
11. In the Written Statement, the defendants have raised various
Preliminary Objections. The material portion of Preliminary
Objections are Para 1 "That there is absolutely no relationship
of landlord and tenant between the parties to the suit.. ....."
and Para 2 "........the occupation, enjoyment, user and
possession of the defendants in the suit premises is by virtue of
adverse possession since the defendants have been
uninterruptedly using, occupying, enjoying and holding the suit
premises since 1980.........".
12. In terms of Section 111 (g) of the Transfer of Property Act,
1882, the tenancy rights of a tenant are automatically
forfeited once and forever when the tenant denies the title of
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Jasdev Singh V. Bal Kishan & Ors.
the landlord or asserts the title (allegedly) vesting in somebody
else (other than the landlord) or in himself (i.e., the 'tenant'
himself). In other words, refuting the title of the landlord,
results in the tenancy rights being 'forfeited' by operation of
law. Section 111 (g) of the Transfer of Property Act, 1882
reads as under:
"111. Determination of lease
A lease of immovable property determines
(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 reenter; or (2) in case
the lessee 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
reenter 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,"
13. On forfeiture of tenancy rights, these/such rights disappear
into thin air and the protection, if any, accorded to the
tenant:
(i) either by contract between the 'landlord' and the
'tenant'; or
(ii) by the law (including the Delhi Rent Control Act,
1958);
Suit No. 29/2019 Page 31 of 65
Jasdev Singh V. Bal Kishan & Ors.
ceases to be available to such a tenant for all times to come.
This is the express mandate of law.
14. The tenant cannot approbate / reprobate (blow hot and cold)
at the same time. He cannot claim to be a "tenant" and then
assert to be in "adverse possession" of the "tenanted
premises". The law (Section 111 of the Transfer of Property
Act) has been consistently interpreted to hold that if a 'tenant'
pleaded to be in 'adverse possession', his tenancy rights
disappear into thin air (once and forever).
15. This issue has been (recently) considered by a learned Single
Judge of the Hon'ble High Court of Delhi in the case of
S. Makhan Singh Versus Amarjeet Bali, 154(2008) DLT
211.
16. Subsequently, another learned Single Judge of the Hon'ble
Court of Delhi doubted the veracity of the earlier view
expressed by another learned Single Judge of this Hon'ble
Court in the case of S. Makhan Singh (supra) and
consequently, placed the cause for consideration by a Division
Bench of the Hon'ble High Court of Delhi.
17. The matter was considered by the Division Bench in Naeem
Ahmed Versus Yashpal Malhotra, reported as 188 (2012)
DLT 579 and the Division Bench opined that the earlier view
of the learned Single Judge in the case of S. Makhan Singh
Versus Amarjeet Bali (supra) was the correct exposition of law
Suit No. 29/2019 Page 32 of 65
Jasdev Singh V. Bal Kishan & Ors.
[and the doubts expressed by the other learned Single Judge
in the order of reference dated 28 th August, 2001 were
unsustainable/incorrect on the issue / law of "forfeiture"].
18. In spite of having made tremendous hue and cry before this
Hon'ble Court, learned counsel appearing for the contesting
defendants has not been able to show any precedent [either
from the Hon'ble Supreme Court or from the Hon'ble High
Court of Delhi] which may doubt the veracity of the views
expressed by the learned Single Judge in the case of 'S.
Makhan Singh' or by the Division Bench in the case of 'Naeem
Ahmed' (both being the judgments of the Hon'ble High Court
of Delhi).
19. The view of the Hon'ble High Court of Delhi is essentially
binding upon us (including this Hon'ble Court), unless and
until it is shown that the Hon'ble Apex Court or a larger
bench of our own Hon'ble High Court has expressed a
contrary view.
20. In spite of his remarkable presentation, learned counsel
appearing for the contesting defendants, has not been able to
show even, prima facie, any such precedent either from the
Hon'ble Apex Court or from a larger bench of the Hon'ble High
Court of Delhi which may be contrary to the view expressed
and the ratio decidendi laid down in the case of 'S. Makhan
Singh' and 'Naeem Ahmed'. Apparently, it is now very well
settled law that on repudiation of tenancy rights by the
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Jasdev Singh V. Bal Kishan & Ors.
tenant, the tenancy rights disappear into thin air. In fact, the
Hon'ble Supreme Court or the Hon'ble High Court of Delhi has
never expressed a contrary view on the plea of forfeiture.
21. Even otherwise, the very fact that the contesting defendants
have clandestinely raised the plea of their having acquired
title to the 'premises in suit' by prescription (adverse
possession for 12 years) in the estate of the plaintiff, goes to
show that they admit the title of the plaintiff to the 'premises
in suit', more so as prior to propounding, for the first time, the
plea of adverse possession in the reply dated 5 th July, 2001
(Ex. P.W1/8) notice to quit, Smt. Sukhia @ Smt. Sukh Devi
(predecessor in interest contesting defendants) had been
admittedly / consistently paying usufruct / rentals at the rate
of Rs. 10/ (Rupees ten only) per month to the plaintiff (and /
or his predecessors in interest). Therefore, the paramount title
of the plaintiff cannot be denied or disputed by the defendants
in view of the mandate of Section 116 of the Evidence Act,
read with the ratio decidendi of the numerous judgments of
the Hon'ble Apex Court, including that in the case of Anar
Devi (Smt.) Versus Nathu Ram, 1994 (4) SCC 250 [read
with Om Prakash vs. Mishri Lal, 2017 (5) SCC 451]. It is
very well settled that a permissible occupant, particularly a
"tenant" cannot set up or propound a plea of adverse
possession, because permissible possession cannot be [easily]
Suit No. 29/2019 Page 34 of 65
Jasdev Singh V. Bal Kishan & Ors.
converted into adverse / hostile possession. The plaintiff has
relied upon 188 (2012) DLT 579 (DB).
22. In this particular case where a tenant or a "permissive"
occupant wishes to propound adverse possession, he has to
show categorical and strenuous assertion of hostile title
against the "landlord" (where for the tenancy rights
automatically cease to exist forever; more so as the plea of
'tenancy' on the one hand and the plea of 'adverse possession'
on the other hand are mutually destructive pleas). The
plaintiff has relied upon the relevant words of first five lines of
Para 13 at page 587 of 188 (2012) DLT 579 (DB).
23. It is also settled law that one cannot propound adverse
possession in an action in which the owner of the immovable
property of which adverse possession is propounded, is not a
party. It is also settled law that in case one propounds a
defence of his being in adverse possession of immovable
property, he must insist in any action relating to such
immovable property on the owner thereof being impleaded as
a party to the proceedings. The plaintiff has relied upon
Dagadabai (Dead) by LRs vs Abbas @ Gulab Rustum
Pinjari, 2017 (13) SCC 705.
24. The (only) two hypertechnical objections / pleas propounded
by learned counsel for the contesting defendants are:
Suit No. 29/2019 Page 35 of 65
Jasdev Singh V. Bal Kishan & Ors.
a) the contesting defendants are tenants in the immovable
property subject matter of this suit and, therefore, the
jurisdiction of this Hon'ble Court to try this action is
specifically barred by Section 50(4) of the Delhi Rent
Control Act (for short, the 'Act'); and
b) without prejudice to the foregoing (it is so submitted by
learned counsel for the contesting defendants that) this
Hon'ble Court does not possess the pecuniary
jurisdiction to entertain this action in as much as the
'rent' payable for the 'premises in suit' by the contesting
defendants (and or / their predecessorsininterest)
was / is only Rs. 8/ (Rs. eight only) per month,
wherefore this action ought to have been instituted in
the Court of the learned Senior Civil Judge / Rent
Controller (being the Court of the lowest grade
competent to try this action - vide Section 15 CPC).
25. The contesting defendants, in the text of their written
statement, as also during the course of their evidence, having
propounded that they have become the owners of the
'premises in suit' by adverse possession, the contesting
defendants cannot now fall back and (once again) plead that
they are 'tenants' in the 'premises in suit' or that the
jurisdiction of this Hon'ble Court to try this action is expressly
barred (as alleged) under Section 50 of the Act (and that the
exclusive jurisdiction to entertain this action, the same being
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Jasdev Singh V. Bal Kishan & Ors.
a dispute between the 'landlord', on one hand, and the
'tenant', on the other hand, must necessarily go before the
learned Rent Controller for adjudication in accordance with
law and cannot be entertained by this Hon'ble Court being a
Civil Court). The submissions of the contesting defendants
apparently are far fetched and untenable.
26. The relevant portion of judgment Abdul Rahman Thangal
Sahib & Anr. vs. Syed Sahib (D) by LRs' 2001
(Supplementary2) Judgments Today 297 passed by the
Hon'ble Apex Court reads as follows:
"6.........It may be stated that earlier the
appellants claiming themselves as landlords and
the respondent as the tenant sought eviction of
the respondent on the ground of default in payment of rent before the rent controller. There, the respondent denied the relationship of landlord and tenant between the parties and claimed title over the property by adverse possession. The respondent having taken a definite stand before the rent controller that he has acquired title over the property by adverse possession, it was not open to him to shift from the said stand and take plea before the civil court that he is a tenant of the premises in dispute......."
27. The judgment of the Hon'ble Supreme Court in the case of Abdul Rahman Thangal Sahib & Anr. is binding upon this Hon'ble Court, this Hon'ble Court [in view of the categorical Suit No. 29/2019 Page 37 of 65 Jasdev Singh V. Bal Kishan & Ors.
assertion of adverse possession propounded by the contesting defendants (in the reply to the notice to quit - as also in the written statement filed before this Hon'ble Court)] is the only learned Court possessed of the requisite jurisdiction to entertain this action [being a suit for recovery of actual physical vacant possession of the 'premises in suit' being a specified portion of the immovable property bearing no. 4, Curzon Road (now known as Kasturba Gandhi Marg), New Delhi-110001].
28. If the defendants once propound the plea of adverse possession, they cannot fall back and say that they are 'tenants'. If they do not admit to be "tenants" (and plead "adverse possession"), the learned Rent Controller does not possess the requisite jurisdiction to entertain any controversy between the parties to this cause in respect of the 'premises in suit'. It is well known that the learned Rent Controller is competent to decide disputes between the landlord and the tenant (and not disputes of title, such as that which arise in the present proceedings). The exclusive jurisdiction to entertain, in these facts and backgrounds, the question of "title" and / or this suit for ejectment /possession, necessarily vests exclusively in the civil court (including this Hon'ble Court).
29. The plea (propounded by learned counsel for the contesting defendants) that jurisdiction of this Hon'ble Court to try this Suit No. 29/2019 Page 38 of 65 Jasdev Singh V. Bal Kishan & Ors.
action is expressly barred by Section 50 of the Delhi Rent Control Act is also hit by at least two direct judgments of Hon'ble High Court of Delhi, namely:
i) Jai Kunwar vs Dharam Devi reported as 2016 (3) AD (Delhi) 749 (Vipin Sanghi J); and
ii) Naeem Ahmed vs Yash Pal Malhotra reported as 2012 (9) AD (Delhi) 138 (DB).
30. The second objection propounded by learned counsel for the contesting defendants to the effect that this Hon'ble Court does not possess the pecuniary jurisdiction to entertain this action has also to be necessarily rejected by this Hon'ble Court on the short ground that no such plea has been propounded by the contesting defendants in their written statement (or for that matter, at any stage, starting from the 'framing of issues' in this cause till the commencement of final arguments). In this context, SubSection (2) of Section 21 of the CPC which reads as under: "21. Objections to jurisdiction. (1)......
(2) No objection as to the competence of a Court with reference to the pecuniary limits of jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where sues are settled, at or before such Suit No. 29/2019 Page 39 of 65 Jasdev Singh V. Bal Kishan & Ors.
settlement, and unless there has been a consequent failure justice."
31. This objection having not been urged at any time prior to the commencement of the final arguments in this cause, this objection cannot now be propounded by the contesting defendants (or on their behalf) and the objection having not been urged in the written statement or at the time of framing of the issues in this cause, the objection cannot now be raised at the stage of final disposal. In order to fortify the said arguments the plaintiff has relied upon K.G. Mal and another vs Sham Bihari Lal reported as 1996 AIHC 3201 and Smt. Lachawwa alias Laxmavva vs. Pandappa Hanamappa Shiragavi and another reported as 2000 AIHC 3657.
32. Even otherwise, this objection, on the face of the plaint, is bereft of merit. It is settled law that for instituting a plaint the aggregate value of the relief(s) prayed for in the plaint has to be the criteria for determining the learned Court possessed of the pecuniary jurisdiction (for the institution of the plaint). In this context the Ld. counsel has made reference to clause (i) of Rule 1 under Order VII CPC read with Sections 8 and 11 of the Suit Valuation Act, as supplemented by Order II Rule 3 CPC. Hence, on every count, the second objection propounded by the contesting defendants must also be rejected, outright.
Suit No. 29/2019 Page 40 of 65Jasdev Singh V. Bal Kishan & Ors.
33. The Hon'ble Supreme Court and the Hon'ble Delhi High Court in various cases has laid down following proposition of law:
In case defendant's repudiate and renounce the Landlord - Tenant relationship and sets up his own title to the property, then the plaintiff is entitled to seek recovery of possession in the civil court since the occupation of the defendant's had become unauthorised and that of a trespasser.
Jurisdiction of the Rent controller is based on a preassumption of a landlord - tenant relationship and when this fact is itself denied, it is for the civil court to decide this disputed question of fact.
Once the tenant denies the title of his landlord then such a person is deemed to have renounced the tenancy whereby the tenancy comes to an end forthwith and therefore once tenancy comes to an end there is no bar of jurisdiction of the civil court to decide the suit for possession because then the bar contained in section 50 of the Delhi Rent Control Act would not apply.
A person cannot be allowed to approbate and reprobate, no party can take stand as per convenience and a party cannot be allowed to withdraw from the admissions made by it in the pleadings in respect of the same.
34. Documents only showing possession but lacking assertion of hostile title against the owner cannot prove the case of Suit No. 29/2019 Page 41 of 65 Jasdev Singh V. Bal Kishan & Ors.
adverse possession and that mere possession and even long possession is not equal to claim of adverse possession. FINDINGS AND CONCLUSIONS OF THE COURT The first question arises for consideration is whether Smt. Sukh Devi alias Sukhia was the tenant in the suit property. The paras no.5 and 6 (Ex. PW1/3) of the plaint, filed by Smt. Sukh Devi alias Sukhia against S. Jasdev Singh (present plaintiff), are reproduced as under: "5. That the landlord S. Rajdev Singh also expired and defendant alongwith his brother S. Hardev Singh sent a notice dated 16/06/1977 through their advocate Harjinder Singh to the plaintiff which notice was totally false and frivolous. However, the plaintiff in order to avoid any controvary and litigation sent to rent through money order to them but the rent was not accepted by the defendant and his brother and the said M.C was returned back to the plaintiff unaccepted. Thereafter even the plaintiff tried to pay the monthly rent to the defendant and his brother at number of occasions but they refused to receive the same.
6. That the defendant has never been see in the premises in question , nor they are residing in the subject premises and as such the plaintiff by virtue of the adverse possession of the suit premises also got conferred with ownership rights over the suit premises asthe defendant has not claimed or visited at the suit premises from the last more than 20 years."
Suit No. 29/2019 Page 42 of 65Jasdev Singh V. Bal Kishan & Ors.
The bare perusal of the aforesaid paras of the plaint filed Smt. Sukh Devi alias Sukhia reveals that there is categorical admission on the part of Smt. Sukh Devi alias Sukhia that she was the tenant of S. Hardev Singh and the plaintiff and she has herself stated that she has also sent money order but the same was not accepted by them. She has also stated she has tried to pay the monthly rent but the said persons have not accepted the rent. Similarly, Smt. Sukh Devi alias Sukhia has accepted in the other pleadings, which were filed by her that she was the tenant of the plaintiff. In the reply dated 05.07.2001 to the notice dated 28.05.2001, Smt. Sukh Devi alias Sukhia has categorically admitted in reply to para no.6 that she was the tenant after the death of her mother and father. The bare perusal of pleadings, filed by Smt. Sukh Devi alias Sukhia, the case of Smt. Sukh Devi alias Sukhia is that since the plaintiff has not cared to receive the rental amount, therefore, Smt. Sukh Devi alias Sukhia became the owner by way adverse possession as she is in uninterrupted use and occupation of the property. The plea of the adverse possession, as raised by Late Smt. Sukh Devi alias Sukhia and/or by the defendants, cannot withstand to the legal scrutiny and the same falls flat on account of various counts, as discussed hereinbelow.
It is well settled law that once a tenant always a tenant and for proving the hostile/adverse possession, the onus is very heavy on the shoulders of tenant. The tenant has to prove that tenant has renounced his/her character as tenant and claimed Suit No. 29/2019 Page 43 of 65 Jasdev Singh V. Bal Kishan & Ors.
his/her ownership by way of adverse/hostile possession by putting into the notice of the landlord/landlady that landlord/landlady ceases to be landlord/landlady and tenant is claiming the adverse possession/hostile possession in the tenanted property. The said law has been enunciated in number of Judgments by the Hon'ble Apex Court and Hon'ble High Court and I have profit to refer one of the Judgments of our own Hon'ble High Court passed in RSA No.140/2008 titled as Gulati & Co. P. Ltd. Versus Ram Chander through L.Rs & Ors. decided on 22/01/2014. The relevant portion of para no.6 is reproduced herein for apt understanding: "6. So far as the first and third defences of the appellant are concerned, the same can be dealt with together. In law, once a tenant will always be a tenant. How so long is the possession of the tenancy premises by the tenant, the tenant's possession does not get converted to adverse possession and thus a title holder /owner. In order to convert the title of tenancy into that of an owner there has to be categorical and clearcut evidence led as to on which specific date/time/month and year the tenancy was relinquished and which is accordingly so informed to the landlord. At the time of relinquishment of tenancy title, a specific case has to be taken that the tenant such as the appellant is now the owner and his possession of the tenancy premises is not as a tenant but in his own right as an owner.
Suit No. 29/2019 Page 44 of 65Jasdev Singh V. Bal Kishan & Ors.
No evidence in this regard has been led before the trial court showing any specific notice to late Sh. Nihal Singh or the plaintiff who file the suit that the appellanttenant is no longer the tenant and the original landlord is no longer the owner because the appellanttenant has set up a title in itself and which is adverse to the original owner/landlord/plaintiff. The documents which have been relied upon on behalf of the appellant are only with respect to returns filed before the Urban Land Ceiling Department in 1976 as also applying to DDA in 1977 for sanctioning of Group Housing Flats and not a specific notice to the owner. Firstly, these documents cannot help the appellant because the suit itself was filed on 12.2.1980 ie not 12 years after these documents. Secondly, these documents, in my opinion, cannot lead to commencement of adverse possession as against the original owner/landlord/Nihal Singh/ plaintiff inasmuch as, the tenancy title comes to an end only on making of a specific assertion being made to the landlord that the tenancy had come to an end and the tenant in fact claims title to the property of an owner and which is adverse to the owner. Also, non - payment of a rent for a longer period of time will not convert possession of tenant to the possession of an owner because it is settled law that long possession is not adverse possession. For commencement of adverse Suit No. 29/2019 Page 45 of 65 Jasdev Singh V. Bal Kishan & Ors.
possession, setting up of a title adverse to the ownerlandlord is necessary. In this regard the relevant observations of the Supreme court are contained in paras 13 &14 of the judgment reported as Chatti Konati Rao & Others Vs. Palle Venkata Subba Rao (2010) 14 SCC 316. These paras read as under: "13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf v. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession.
Paragraph 11 of the judgment which is relevant for the purpose reads as follows:
11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion.
Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of Suit No. 29/2019 Page 46 of 65 Jasdev Singh V. Bal Kishan & Ors.
the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karimv. Bibi Sakina AIR 1964 SC 1254, Parsinni v.
Sukhi : (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka :
(1997) 7 SCC 567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his Suit No. 29/2019 Page 47 of 65 Jasdev Singh V. Bal Kishan & Ors.
favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma : (1996) 8 SCC 128.
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The Plaintiff is bound to prove his title as also possession within 12 years and once the Plaintiff proves his title, the burden shifts on the Defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the Defendant should be adverse to the Plaintiff and the Defendant must Suit No. 29/2019 Page 48 of 65 Jasdev Singh V. Bal Kishan & Ors.
continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law."
(The portions bolded in order to highlight) There is no iota or scintilla of evidence to show that prior to reply dated 05.07.2001 to the notice dated 28.05.2001, Smt. Sukh Devi alias Sukhia had taken the plea of adverse Suit No. 29/2019 Page 49 of 65 Jasdev Singh V. Bal Kishan & Ors.
possession or she renounced her character as tenant in the suit property. The defendants have failed to prove even the fundamental and basic requirements of adverse possession, as required under law and as also expounded in the aforesaid Judgment. Cumulatively, from the pleadings of the parties and the evidence on record and aforesaid Judgment of our Hon'ble High Court, there is no doubt that prior to serving of the Notice dated 28.05.2001, Smt. Sukh Devi alias Sukhia was the tenant of plaintiff and she was not the owner by adverse possession, as claimed by her.
The next question, which arises of consideration is, whether the Notice dated 28.05.2001 Ex. PW1/7 amounts to end of contractual tenancy of Smt. Sukh Devi alias Sukhia, which is the foundation and basis of the entire case of the plaintiff in the present suit. The perusal of the said Notice reveals that paras no.1 to 10 are the narration of facts and the same is more or less incorporated in the plaint and as mentioned hereinabove. The operative portion of the Notice is as under: "It is hereby notified on behalf of my said client to remove the breaches committed by you and pay the penalty within the statutory period failing which my said (clientnot written) shall be constrained to take legal action for your eviction from the aforesaid demised premises under your tenancy.
Please further note that if you fail to comply with this notice, my said clients shall take legal action and you shall be liable to all costs and consequences."
Suit No. 29/2019 Page 50 of 65Jasdev Singh V. Bal Kishan & Ors.
Whether the words "...shall be constrained to take legal action for your eviction..." and ".....shall take legal action....." amounts to end of contractual tenancy. The plaintiff has nowhere shown his intention to end the contractual tenancy but the plaintiff has shown his intention that in case, Smt. Sukh Devi alias Sukhia will not remove the breaches and pay the damages/penalty levied by the L&DO, then the plaintiff will approach the Court of law/concerned Tribunal. Moreover, as per the pleading of the plaint, it is mentioned that the plaintiff has sent the eviction and demand notice but nowhere stated that contractual tenancy of Smt. Sukh Devi alias Sukhia was terminated. It is worthwhile to mention that without terminating the contractual tenancy, the plaintiff is not debarred from approaching the Court/Tribunal and there are various grounds in Section 14(1) of the Delhi Rent Control Act, where the eviction proceedings can be initiated without even serving a notice. However, for the nature of breaches, as mentioned in the notice, the plaintiff was required to give notice but that does not mean that said notice would be termed as notice to end the contractual tenancy. The notice in question i.e. Ex.PW1/7 has nowhere terminated the contractual tenancy of Smt. Sukh Devi alias Sukhia and the plaintiff has not produced any other document, whereby, the plaintiff has terminated the contractual tenancy Smt. Sukh Devi alias Sukhia. Accordingly, in my considered view, the Smt. Sukh Devi alias Sukhia was the Suit No. 29/2019 Page 51 of 65 Jasdev Singh V. Bal Kishan & Ors.
contractual tenant and not the statutory tenant, as alleged by the plaintiff in his detailed arguments.
The next vital question arises for consideration is whether without specific pleading in the plaint regarding forfeiture of tenancy in view of Section 111(g) of the Transfer of Property Act, this Court is debarred from looking into the said aspect, even if it is borne from pleadings, documents and evidence of the defendants. This Court can take leaf from the Judgment passed by our Hon'ble High Court in in RFA No. 157/2019 decided on 22nd February, 2019 in the case titled as Anuja Sharma Versus Memo Devi & Ors. The relevant portion of paras no.5 and 6 is reproduced herein for apposite understanding: "5. No doubt, the provision of Section 22 of the Specific Relief Act does provide that where a relief is not claimed with respect to refund of earnest money or advance price/deposit, the courts will not grant such a relief. The provision of Section 22 of the Specific Relief Act however allows amendment of the plaint at any stage of the proceedings to seek refund of the amount paid under an agreement to sell. In the facts of the present case, there was no specific prayer in the plaint with respect to the refund of the price. The issue is that whether nonmention in the plaint by writing and seeking refund of the advance price paid results in a complete prohibition for the courts to refund the price received by a seller under an agreement to sell, once it is found that the agreement to sell does not have to go through Suit No. 29/2019 Page 52 of 65 Jasdev Singh V. Bal Kishan & Ors.
and the suit for specific performance is being dismissed.
6. In order to interpret the provision of Section 22, it is necessary to note as to what is the object and requirement of a pleading to be filed by a party. Pleading is defined under Order VI CPC. A pleading will include a plaint and a written statement. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. The object of giving notice of a case to the other party is to ensure that the other party can meet the case. On this principle, the appellate courts have allowed issues which are pure questions of law even at the appellate stage, even in cases till the Hon'ble Supreme Court, if the issue of law goes to the root of the matter, and even if there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record. Thus, the trial court as also the appellate courts can, depending on facts of a particular case, allow a pure issue of law to be raised, at any stage of the legal proceedings......."
(The portions bolded in order to highlight) From the bare perusal of the aforesaid Judgment, it is clearly elicit out that even if, the issue of law goes to the root of the Suit No. 29/2019 Page 53 of 65 Jasdev Singh V. Bal Kishan & Ors.
matter and even if, there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record, then the same can be looked into by the Court. Now, the question arises, whether there is an application of forfeiture of tenancy in view of Section 111(g) of the Transfer of Property Act. In para no.6 of the reply dated 05.07.2001 (Ex. PW1/8 & Ex. P2) to the notice dated 28.05.2001, Smt. Sukh Devi alias Sukhia, has categorically submitted as under: "That para 6 of the notice is admitted to the extent that finally my client became tenant in respect of the said premises after the death of her father and mother. However, your client is neither the owner nor the landlord of the premises under the occupation of my client. Moreover, your client has never visited my client nor seen in the said premises, nor your client is residing in the subject premises and as such my client by virtue of adverse possession of the said premises also got conferred with ownership rights over the said premises. ............"
Smt. Sukh Devi alias Sukhia had also towed the aforesaid plea in the Suit for Permanent Injunction filed by her against the plaintiff (who is the defendant in the said case) and Paras no.2 to 6 of Ex. PW1/3 are reproduced hereinbelow: "2. That the aforesaid premises in question was let out to the father of the plaintiff namely shri Kundan S/o Sh. Munna Dhobi about 70 years back and the monthly rent was Rs. 6/, which was later on enhanced to Rs.9/ per month. The premises was Suit No. 29/2019 Page 54 of 65 Jasdev Singh V. Bal Kishan & Ors.
let out by S.Rajdev Singh S/o S.B.S. Ranjit Singh to Sh. Kundan and the factum of the same is also mentioned in the annexed copy of the notice dated 22/12/1954 sent by Sh. Rajdev Singh to Sh. Kundan through his advocate Radha Krishan Makhija.
3. That after the demise of plaintiff's father her mother Smt. Lacho Devi became a lawful tenant in possession of the suit premises in question at the same agreed rate of rent and the rent was paid regularly. The rent receipt as issued by the landlord was annexed herewith for the ready reference of this Hon'ble Court.
4. That theereafter Smt. Laho Devi also died and the plaintiff being the representative became the lawful tenant and continue to in possession of the suit premises.
5. That the landlord S. Rajdev Singh also expired and defendant alongwith his brother S. Hardev Singh sent a notice dated 16/06/1977 through their advocate Harjinder Singh to the plaintiff which notice was totally false and frivolous. However, the plaintiff in order to avoid any controvary and litigation sent to rent through money order to them but the rent was not accepted by the defendant and his brother and the said M.C was returned back to the plaintiff unaccepted. Thereafter even the plaintiff tried to pay the monthly rent to the defendant and his brother at number of occasions but they refused to receive the same.
6. That the defendant has never been see in the premises in question , nor they are residing in the Suit No. 29/2019 Page 55 of 65 Jasdev Singh V. Bal Kishan & Ors.
subject premises and as such the plaintiff by virtue of the adverse possession of the suit premises also got conferred with ownership rights over the suit premises asthe defendant has not claimed or visited at the suit premises from the last more than 20 years."
The aforesaid plea was also further towed by the defendants in the present case and Paras no.1 and 2 of Preliminary Objections are reproduced hereinbelow: "1. That there is absolutely no relationship of landlord and tenant between the parties to the suit. In fact, the parties to the suit do not have any dealings between them in any manner whatsoever, hence the present suit is liable to be dismissed with costs.
2. That the plaintiff does not have any locus standi to file the suit inasmuch as that the occupation, enjoyment, user and possession of the defendants in the suit premises is by virtue of adverse possession since the defendants have been uninterruptedly using, occupying, enjoying and holding the suit premises since 1980 absolutely illegally and openly without paying any licence fee, rent or any other charge for the same and such uninterrupted and illegal user of the said premises by the defendant has remained unchallenged from any quarter whatsoever including the plaintiff herein, hence the suit is liable to be dismissed with costs."
Smt. Anita Kumari, W/o Shri Vishal Chauhan, who is the daughter of Smt. Sukh Devi alias Sukhia, in her evidence by Suit No. 29/2019 Page 56 of 65 Jasdev Singh V. Bal Kishan & Ors.
way of Affidavit Ex.DW1/A deposed the contentions, as mentioned in paras no.1 and 2 of the Written Statement. Similarly, Shri Mohan Kumar, S/o Smt. Sukh Devi alias Sukhia, in his evidence by way of Affidavit Ex.DW8/A deposed the contentions, as mentioned in paras no.1 and 2 of the Written Statement. Accordingly, in the evidence also, the defendants have continuously taken the stand that there is no landlord and tenant relationship between the plaintiff and the defendants and further, the defendants are owners by way of adverse possession. As held hereinabove, the plea of adverse possession, as raised by the defendants, falls flat on the face of it. From the bare perusal of the aforesaid submissions of Late Smt. Sukh Devi alias Sukhia and the defendants, Smt. Sukh Devi alias Sukhia and defendants have renounced their character of tenant in the suit property and claimed the right of ownership in the suit property in question. I am fully in agreement with the arguments addressed by Ld. counsel for plaintiff that in the present case, there is forfeiture of tenancy rights in terms of Section 111(g) of the Transfer of Property Act as the defendants have renounced the character of tenant and set up their own ownership rights by way adverse possession. At the cost of repetition, the defendants have failed to prove the ownership rights by way of adverse possession by adducing any cogent, convincing and authentic evidence, as required under law and discussed hereinabove. As Late Smt. Sukh Devi alias Sukhia and defendants have renounced the character of landlord and tenant relationship, the occupation of the Suit No. 29/2019 Page 57 of 65 Jasdev Singh V. Bal Kishan & Ors.
said persons in the suit property had become unauthorized and that of a trespasser. In terms of Judgments, as relied upon by the Ld. counsel of the plaintiff and incorporated hereinabove, this Court is clothed with jurisdiction to decide the present suit and the bar, as mentioned in Section 50 of the Delhi Rent Act, does not apply to this case. Accordingly, the arguments of Ld. counsel for the defendants to this effect sans merit and is hereby rejected. The plaintiff has proved on record the relief of possession by cogent, convincing and authentic evidence.
The Ld. counsel of defendants has argued that the plaintiff is guilty of misjoinder of causes of action with regard to the claim for damages/mesne profits for the suit premises amounting to Rs.1,80,000/ without specifying the basis on which the plaintiff had calculated such amount and the other for claiming damages, penalty and interest to the L&DO towards the alleged misuse of the property at Rs.2,00,000/. The plaintiff has categorically mentioned in the Plaint "that mesne profit @ Rs.5,000/ per month for the last three years for the premises in suit unlawfully occupied by the defendants which are within limitation." Therefore, as far as Rs.1,80,000/, the plaintiff has categorically defined the said amount and the plaintiff can only claim mesne profits only for three years prior to filing of the suit.
The defendants have failed to pay the damages, penalty and interest to the L&DO towards the alleged misuse of the property in spite of the demand raised by the plaintiff from Smt. Suit No. 29/2019 Page 58 of 65 Jasdev Singh V. Bal Kishan & Ors.
Sukh Devi alias Sukhia, therefore, the plaintiff has valued the same at Rs.2,00,000/ and whether the plaintiff is entitled to the same or not is the question of trial.
Moreover, the contention of the defendants is that the plaintiff is guilty of misjoinder of causes of action and it is not the plea of the defendants that the suit has been overvalued in order to file the same before the Court of Ld. District Judge, Delhi. There is no plea of the defendants as far as Section 15 of CPC is concerned. As far as misjoinder of cause of action is concerned, it is relevant to reproduce Order 2 Rules 3 & 4 CPC: "3. Joinder of causes of action.--(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subjectmatters at the date of instituting the suit.
4. Only certain claims to be joined for recovery of immovable property.--No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;
Suit No. 29/2019 Page 59 of 65Jasdev Singh V. Bal Kishan & Ors.
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property."
In terms of the aforesaid provisions, the plaintiff has rightly joined the cause of action against the defendants and the plea of the defendants that the plaintiff is guilty of joinder of cause of action sans merit and the same is hereby rejected. The issue is also framed that the suit is bad for nonjoinder of parties but the defendants neither argued on this point nor able to elucidate the name of the person, on account of whose nonjoinder, the suit of the plaintiff is bad for nonjoinder of parties. There is no dispute that in the earlier suit filed by Smt. Sukh Devi alias Sukhia, the defendants in the present case got impleaded themselves after the death of Smt. Sukh Devi @ Sukhia. Accordingly, the said submission of the defendants is also hereby rejected. ON THE QUESTION REGARDING DAMAGES, PENALTY AND INTEREST TO THE L&DO TOWARDS MISUSE OF THE PROPERTY OWNED BY PLAINTIFF.
The plaintiff has examined PW2 and he has proved on Suit No. 29/2019 Page 60 of 65 Jasdev Singh V. Bal Kishan & Ors.
record the Inspection Reports regarding the claim of unauthorized construction in the portion occupied by Smt. Sukh Devi alias Sukhia. The said unauthorized construction was characterized in the name of Shri Balkishan, husband of the Smt. Sukh Devi alias Sukhia and the L&DO has claimed a sum of Rs.10,479/ per annum from 01.04.1998. The L&DO has claimed about Rs.20,958/ for the period from 01.04.1998 till 31.03.2000 and a sum of Rs.10,479/ for the period from 01.04.2000 till 31.03.2001 (provisional) in view of the Notice sent by the L&DO. The said demand was raised by the plaintiff from Smt. Sukh Devi alias Sukhia by means of legal Notice dated 28.05.2001 (Ex. PW1/7) but Smt. Sukh Devi alias Sukhia has failed to comply with the said Notice and instead claimed that there was no unauthorized construction. The L&DO has come out with the plea that there was unauthorized construction and there is no dispute that the portion, which is mentioned by the L&DO, falls in the occupation of Smt. Sukh Devi alias Sukhia. The plaintiff has put to the notice of the same by means of legal notice dated 28.05.2001 (Ex. PW1/7) to Smt. Sukh Devi alias Sukhia. In case, there was no unauthorized construction, Smt. Sukh Devi alias Sukhia or after her death, the defendants could have challenged the same in the appropriate Court of law. Smt. Sukh Devi alias Sukhia has filed the Suit for Permanent Injunction against the plaintiff herein but failed to challenge the Notices issued by L&DO. In the present case, L&DO is not the party and the witness was summoned and examined as Suit No. 29/2019 Page 61 of 65 Jasdev Singh V. Bal Kishan & Ors.
PW2 in order to substantiate the plea that L&DO has issued the Notices and recovered the amount of damages and penalty from the plaintiff. The witness has described the total amount recovered from the plaintiff for conversion from lease hold to free hold but the said witness has not described the exact amount recovered from the plaintiff regarding damages, penalty and interest towards the unauthorized construction as said construction was compoundable but this Court can take judicial notice of the fact that at the time of conversion from Lease hold to free hold in favour of the plaintiff, the L&DO must have recovered the charges from the plaintiff till the end of financial year on the date of payment of conversion charges. The minimum charges, as demanded by the L&DO, were Rs.10,479/ per financial year from 01.04.1998 and the property was converted from Lease hold to free hold in the financial year 01.04.2005 to 31.03.2006. Accordingly, the plaintiff must have at least paid Rs.10,479/ per financial year for eight years from 01.04.1998 till 31.03.2006 for converting the property from Lease hold to free hold and the aggregate of the same comes to Rs.
83,832/. The plaintiff has claimed a sum of Rs.2,00,000/ towards the same but the plaintiff has failed to place on record the exact amount of payment to the L&DO towards the said head. As submitted above, neither the defendants nor Late Smt. Sukh Devi alias Sukhia has challenged the demand, being illegal and unlawful in the appropriate forum, now, in the present case, they cannot challenge the same as unlawful and illegal and moreso, in view of Suit No. 29/2019 Page 62 of 65 Jasdev Singh V. Bal Kishan & Ors.
the fact that L&DO is not the party in the present case and PW2 was only the witness, who has produced the record by showing the inspection reports, whereby, the L&DO officials came to the conclusion that the portion was illegally constructed. In view of discussions made hereinabove, the plaintiff is entitled to Rs. 83,832/ towards this relief against the defendants alongwith simple interest @ 6% per annum.
QUESTION OF MESNE PROFITS Onus to prove this issue is upon the plaintiff. The plaintiff has claimed damages @ Rs.5,000/ per month stating that same is the prevalent rent in the area in respect of the suit property. PW1 deposed on the same lines in his examinationin chief. The plaintiff has not examined any independent witness in this regard nor has given any basis of arriving at such figure nor did given details of the nearby property fetching such rent, including the name of tenant and landlord. However, keeping in mind the fact that nowadays jhuggis within the city of Delhi costs Rs.2,000/ to Rs.3,000/ per month and keeping in mind the fact that award of damages necessarily and inevitably involves certain amount of guess work because even similar portion almost at similar location will give different amount of rent depending upon number of other market factors. Hence, in these circumstances, interest of justice would be served if plaintiff is awarded damages @ Rs.3,000/ per month alongwith simple interest @ 6% per annum towards mesne profits from 01.06.2004 (three years prior to filing of Suit No. 29/2019 Page 63 of 65 Jasdev Singh V. Bal Kishan & Ors.
the suit) till the recovery of possession of suit property by the plaintiff from the defendants.
Considered from any view and from the discussions, as adumbrated hereinabove, the issue nos.1 to 9 are decided in the aforesaid terms.
RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) A decree of possession is passed in favour of the plaintiff and against the defendants thereby directing them to handover the peaceful physical possession of the property in dispute i.e. Servant quarter no.4 at Bungalow no.4, Curzon Road (now known as Kasturba Gandhi Marg), New Delhi, more specifically shown in red colour in the Site Plan Ex. PW1/2. The defendants are granted three months' time to vacate the suit property.
(b) a decree of recovery of Rs. 83,832/ (qua the relief of damages, penalty and interest paid to the L&DO towards misuse of the property) is passed in favour of the plaintiff and against the defendants jointly and severally alongwith simple interest @ 6% per annum till its realization.
(c) a decree of recovery of damages/ mesne profits is also passed in favour of the plaintiff and against the defendants jointly and severally for unlawful and unauthorized use and Suit No. 29/2019 Page 64 of 65 Jasdev Singh V. Bal Kishan & Ors.
occupation of the suit property @ Rs.3,000/ per month alongwith simple interest @ 6% per annum from 01.06.2004 till the recovery of the possession of suit property by the plaintiff from the defendants. This relief is not executable until & unless the plaintiff will not pay the deficient court fees, on the mesne profits awarded by this Court, till the passing of this judgment.
(d) The cost of the suit is also passed in favour of plaintiff and against the defendants.
Decreesheet be prepared accordingly in terms of this decision.
File of the suit be consigned to Record Room after due compliance.
Announced in the open court on this 30th Day of September, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 29/2019 Page 65 of 65