Delhi District Court
Avinash Chandra Jain vs Ravi Chand Jain (Since Deceased) on 1 March, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17 (CENTRAL) : TIS HAZARI COURTS : DELHI
Suit No. 107/14 (Old Suit no. 239/10/04)
Unique Case ID No. 02401C0024942004
Avinash Chandra Jain,
S/o Late Shri Areh Dass Jain,
R/o 103, Pushpanjali,
Vikas Marg Extension,
Delhi. ........... Plaintiff.
VERSUS
Ravi Chand Jain (since deceased)
Through legal heirs :
1. Smt. Trishla Jain,
Widow of Sh. Ravi Chand Jain,
2. Sh. Kapil Jain,
S/o Late Sh. Ravi Chand Jain,
3. Sh. Vikas Jain,
S/o Late Sh. Ravi Chand Jain,
All R/o 1st & 2nd Floor of front portion
of H. No. 451012, 7/33, Darya Ganj,
Ansari Road, New Delhi110002 ......... Defendants.
Date of institution of the suit : 10.08.2004
Date on which order was reserved: 13.02.2014
Date of decision : 01.03.2014
Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 1/51
SUIT FOR POSSESSION, RECOVERY OF MESNE PROFITS &
INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff, as disclosed in the plaint are that the plaintiff is the owner/ landlord of the property in dispute by means of a family partition effected in suit bearing no. 682/1976 titled as "Avinash Chandra Jain Vs. Sh. Areh Dass Jain & Ors." decided on 15.12.1976 by the Hon'ble High Court of Delhi and reiterated as mentioned in the memorandum dated 15.05.2001. It has been further stated that the copy of the memorandum was duly registered along with other documents with SubRegistrarIII, New Delhi. It has been further stated that one Sh. Deep Chand Jain was the tenant of the entire first and the second floor and latrine on the ground floor of the front residential flat of House No. 451012 at 7/33, Darya Ganj, Ansari Road, New Delhi for residential purposes at monthly rental of Rs. 33.25/ inclusive of house tax but exclusive of electricity and water charges. It has been further stated that the premises was let out for the residential purposes and the same are being used as such. It has been further stated that the said Sh. Deep Chand Jain had died on 01.07.1947 leaving behind his wife Smt. Sushila Devi, sons Ravi Chand Jain and Ramesh Chand Jain and daughters Smt. Bimla Jain, Smt. Urmila Jain, Smt. Prabha Jain, Smt. Rajni Jain and Smt. Madhu Garg. It has been Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 2/51 further stated that however, after the death of Sh. Deep Chand Jain, only Smt. Sushila Devi succeeded to the tenancy rights and she alone paid the rent of the suit premises. It has been further stated that this fact was admitted by Smt. Sushila Devi in her statement recorded in the eviction petition bearing no. E378/1967, decided by Sh. M.A. Khan, the then Ld. ARC, Delhi and in eviction petition bearing no. 223/1978 decided by Sh. A.K. Garg, the then, Ld. ARC, Delhi. It has been further stated that the eviction petition bearing no. E378/1967 culminated in RCA no. 588/1975. It has been further stated that the children of late Sh. Deep Chand Jain never paid any rent, nor asserted any rights in the tenanted premises. It has been further stated that the tenancy of Smt. Sushila Devi was terminated by notices dated 10.08.1967 and 27.07.1977. It has been further stated that no reply was received to these notices, either from Smt. Sushila Devi or any of her children despite service. It has been further stated that as a matter of abundant caution and without prejudice to the earlier notices dated 10.08.1967 and 27.07.1977, the tenancy of Smt. Sushila Devi was once again terminated vide notice dated 01.05.1999 which was duly served upon her. It has been further stated that no reply was received to the said notice dated 01.05.1999 as well. It has been further stated that in RCA no. 588/1975, the then Ld. RCT, Delhi Sh. P.K. Bahri, was pleased to hold that the other legal heirs of Sh. Deep Chand Jain remained passive and never asserted their tenancy rights or paid any Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 3/51 rent and allowed Smt. Sushila Devi alone to become the tenant in the premises and so by implication and conduct, it is clear that the other legal heirs of Sh. Deep Chand surrendered their tenancy rights. It has been further stated that it was also held that Smt. Sushila Devi was estopped from pleading that there were other cotenants in the premises when she had been accepting the rent receipts showing her alone to be the tenant. It has been further stated that the said findings of the Ld. Tribunal were never challenged either by Smt. Sushila Devi or by any of her children and as such, the same became final. It has been further stated that Smt. Sushila Devi expired on 18.01.2002 and at the time of her death, the defendant alone was residing with her in the suit premises. It has been further stated that the other LRs of Smt. Sushila Devi were either residing out of India or outside the premises in dispute. It has been further stated that the defendant Sh. Ravi Chand was not financially dependent upon his mother Smt. Sushila Devi. It has been further stated that as per the definition of "tenant" in Section 2(1) of the Delhi Rent Control Act, 1958, the defendant succeeded to the limited rights under the DRC Act for a period of one year from the date of death of Smt. Sushila Devi Jain and as such, the right to reside in the suit premises was personal to him. It has been further stated that the limited right of the defendant to remain in possession of the tenanted premises was curtailed by means of the notice dated 10.04.2002 sent by Sh. O.P. Gupta, Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 4/51 Advocate, Delhi which was served upon the defendant. It has been further stated that by way of the said notice, the damages/ mesne profits were demanded @ Rs. 25,000/ per month along with the costs and the interest @18% per annum was also demanded from 18.01.2003 till the date of recovery of possession. It has been further stated that no reply to these notices has been received by the plaintiff from the defendant. It has been further stated that the defendant is liable to surrender the possession of the tenanted premises to the plaintiff as the status of the defendant is that of an unauthorized occupant. The plaintiff has alleged that the defendant has threatened to part with the possession of the tenanted premises and to create 3rd party interest therein in order to defeat the legitimate rights of the plaintiff and hence the present suit.
2. On the basis of the said allegations as contained in the plaint, the plaintiff prayed for a decree of possession in respect of the suit property more specifically shown in red colour in the site plan annexed with the plaint. The plaintiff has also prayed for a decree for an amount of Rs. 25,000/ per month as damages. The plaintiff has also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendant stating therein that the present suit is without any cause of action. It has been further stated that the defendant and his family members have been residing in the tenanted premises for the last more than 60 years and the Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 5/51 suit of the plaintiff is not maintainable. It has been further stated that the suit of the plaintiff is barred by Section 50 of the Delhi Rent Control Act, 1958. It has been further stated that the defendant and his family members are the tenants at a monthly rental of Rs. 33.25/. It has been further stated that the plaintiff has no locus standi to file the present suit because he is neither the landlord nor the owner of the tenanted premises. The defendant has admitted that the suit property was taken on rent by Sh. Deep Chand Jain, father of the defendant, from one Sh. Rai Sahib Ulfat Rai, who was the Karta of the Joint Hindu Family, which was owned 3 ½ storeyed building bearing Municipal No. 4510 to 4525, Private no. 7/33, Ansari Road, Darya Ganj, Delhi. It has been further stated that Sh. Areh Dass Jain, one of the coparceners of the Joint Hindu Family had filed a suit for partition of the said property and a decree for partition was passed. It has been further stated that the portion of the said property was allotted to Sh. Areh Dass Jain. It has been further stated that after the decree of the partition, Sh. Areh Dass Jain and Sons became the owner and landlord in respect of the said property. It has been further stated that after the demise of Sh. Areh Dass Jain, all his legal heirs i.e. Sh. Avinash Chand Jain, Sh. Atul Jain, Sh. Amit Jain and Smt. Manorma Jain have become the owners and landlords in respect of the demised premises and the present suit filed by the plaintiff alone is not maintainable. The defendant has alleged that the plaintiff is in the habit Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 6/51 of filing of false and frivolous eviction petitions against the defendant and his family members on one ground or the other. It has been further stated that the eviction petition bearing no. E378/1967 U/s 14(1)(j) & (k) of the Delhi Rent Control Act, 1958 had been filed by late Sh. A. Dass & Sons through Sh. Areh Dass, Karta of the HUF, against Smt. Sushila Devi, the mother of the defendant and the said petition was dismissed by Sh. M.A. Khan, the then Ld. ARC, Delhi vide orders dated 18.04.1975. It has been further stated that the appeal filed by Sh. Areh Dass Jain against the said orders dated 18.04.1975 was also dismissed by the Court of Sh. P.K. Bahri, the then, Ld. RCT, Delhi vide orders dated 07.09.1978. It has been further stated that one more eviction petition bearing no. E508/1974 was also instituted by Sh. Areh Dass Jain & Sons U/s 14(1)
(e) of the DRC Act, 1958 and the said petition was ultimately dismissed as withdrawn by Sh. Areh Dass Jain. It has been further stated that one more eviction petition bearing no. E346/1980 was filed by the plaintiff against Smt. Sushila Devi U/s 14(1)(a) of the DRC Act and the said eviction petition was also withdrawn by the plaintiff vide orders dated 01.05.1986. It has been further stated that the plaintiff obtained the collusive partition decree with the malafide intention of seeking an eviction order. It has been further stated that the plaintiff filed a petition U/s 14(1)(e) of the DRC Act against Smt. Sushila Devi, (the defendant herein) and other legal heirs of late Sh. Deep Chand Jain. It has been Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 7/51 further stated that in the said eviction petition, an eviction order was passed against all the respondents. It has been further stated that the Civil Revision bearing no. 982/1984 was filed by the tenants and the Hon'ble High Court of Delhi was pleased to confirm the said orders vide orders dated 17.01.1985. It has been further stated that the tenants preferred an SLP bearing no. 4089/1985 against the said orders and the Hon'ble Supreme Court of India vide orders dated 19.02.1987 allowed the appeal and remanded the revision petition to the Hon'ble High Court of Delhi for fresh disposal. It has been further stated that the Hon'ble Mr. Justice N.N. Goswamy vide orders dated 11.01.1988 allowed the aforesaid Civil Revision bearing no. 982/1984 and dismissed the eviction petition and held that "From the facts it appears that the family continues to be a joint family and the partition decree has been obtained only in order to defeat the rights of the tenants and to create an additional ground for eviction". It has been further stated that the plaintiff preferred an SLP no. 5340/1988 against the said orders and the Hon'ble Supreme Court of India was pleased to dismiss the said SLP vide orders dated 27.04.1988. It has been further stated that the review preferred by the plaintiff against the said orders was also dismissed leading to the finality of the orders dated 11.01.1988 passed by the Hon'ble Mr. Justice N.N. Goswamy. It has been further stated that thus the plaintiff has no locus standi to file the present suit. It has been further stated that admittedly Sh. Deep Chand Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 8/51 Jain was the tenant in the tenanted premises and after the death of Sh. Deep Chand Jain, all his legal heirs have inherited the tenancy rights. It has been further stated that all the legal heirs of late Sh. Deep Chand Jain are still the contractual tenants in the demised premises. It has been further stated that the tenancy of all legal heirs have never been terminated by the plaintiff or late Sh. Areh Dass Jain at any point of time. It has been further stated that all the legal heirs of late Sh. Deep Chand Jain are required to be impleaded as the defendants in the present suit. It has been further stated that at no stage, legal heirs of late Sh. Deep Chand Jain surrendered their tenancy rights. It has been further stated that Smt. Sushila Devi, the mother of the defendant, never obtained any receipt exclusively in her name as tenant. It has been further stated that Sh. M.A. Khan, the then Ld. ARC, Delhi in the orders dated 18.04.1975 has categorically held that "All the legal heirs of deceased Deep Chand inherited the contractual tenancy rights of Deep Chand as tenants in common and there was no evidence to show that other co tenants had surrendered their tenancy rights." It has been further stated that the orders passed by Sh. M.A. Khan, the then Ld. ARC, Delhi was challenged in appeal by the plaintiff before the Court of Sh. P.K. Bahri, the then Ld. RCT, Delhi, but the Ld. RCT, Delhi was also pleased to dismiss the appeal vide orders dated 07.09.1978. It has been further stated that the said orders dated 07.09.1978 were not challenged by the plaintiff Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 9/51 and as such, there was no occasion to file any cross objections to any of the observations of the said Court. It has been further stated that any observations made in the judgment of Sh. P.K. Bahri, the then Ld. RCT, Delhi does not affect the rights of the plaintiff and the legal heirs of Sh. Deep Chand Jain continued to be the tenants in respect of the tenanted premises as has been held by the Court of Sh. M.A. Khan, the the Ld. ARC, Delhi. It has been further stated that in the earlier litigations filed by the plaintiff against the defendant and his family members, the plaintiff has admitted the other legal heirs of late Sh. Deep Chand Jain as his tenants and has impleaded them as the respondents. It has been further stated that the present suit is also barred by the principle of res judicata. It has been further stated that no notice whatsoever had ever been served upon late Smt. Sushila Devi. It has been further stated that the alleged notices dated 10.08.1967, 22.07.1977, 01.05.1999 or 10.04.2002 were never received either by late Smt. Sushila Devi Jain or by any of the legal heirs of late Sh. Deep Chand Jain. It has been further stated that for the sake of arguments, even if it is admitted, though denied that only Smt. Sushila Devi succeeded the tenancy rights in respect of the said property then also as per explanation III to Section 2(I)(iii) of the DRC Act, after the death of Smt. Sushila Devi, her sons and daughters being the legal heirs of Smt. Sushila Devi have acquired the tenanted rights in respect of the tenanted premises. It has been further stated that if Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 10/51 the right of any successor to continue in the possession after the termination of the tenancy becomes extinguished, such extingushment shall not effect the right of any other successor of the same category to continue in possession and as such, the present suit only against the defendant is not maintainable.
4. On merits as well, the defendant has reiterated his above said stand as taken by him in the preliminary objections and stated that the plaintiff is not the owner/ landlord of the property in dispute. The defendant has denied that the suit premises was let out for the residential purposes only. The defendant has reiterated the stand that the partition decree obtained by the plaintiff is collusive. It has been further stated that the premises was let out for the residential purposes as well as for commercial purposes. The defendant has admitted that Sh. Deep Chand Jain had died on 01.07.1947 leaving behind his wife Smt. Sushila Devi, sons Ravi Chand Jain and Ramesh Chand Jain and daughters Smt. Bimla Jain, Smt. Urmila Jain, Smt. Prabha Jain, Smt. Rajni Jain and Smt. Madhu Garg. It has been further stated that the rent had always been deposited by Smt. Sushila Devi on behalf of all the legal heirs of late Sh. Deep Chand Jain. It has been further stated that after the demise of late Sh. Deep Chand Jain, other legal heirs of Sh. Deep Chand Jain were residing and working in the premises in question. The defendant has denied that he was not financially dependent upon his mother Smt. Sushila Devi Jain. The Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 11/51 defendant has denied the service of the notice dated 10.04.2002 upon him. The rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with exemplary costs.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 22.11.2004.
1) Whether the suit is barred by Section 50 of the Delhi Rent Control Act as alleged by the defendant? OPD.
2) Whether the defendant is unauthorized occupant in the suit premises as alleged by the defendant.
3) Whether the plaintiff is entitled to recover the suit premises from the defendant?OPP.
4) Whether the plaintiff is entitled to recover mesne profits as claimed by the plaintiff? If so at what rate, for what period and to what amount?
5) Relief.
6. From the perusal of the case, it is revealed that my Ld. Predecessor vide orders dated 12.05.2009 was pleased to frame the following two additional issues as well :
a) Whether judgment dated 18.04.1976 in case E378/1967 passed by Sh. M.A. Khan, Addl. Rent Controller, Delhi operates as res judicata in the case?OPD.
Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 12/51
b) Whether judgment dated 07.09.1978 in RCA no. 588/1975 passed by Sh. P.K. Bahri, Rent Control Tribunal, Delhi operates as res judicata in the case?OPP EVIDENCE
7. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. P1, Copy of the final decree for partition dated 15.12.1976 passed by Hon'ble High Court of Delhi in suit no. 682/1976 as Ex. PW1/1; memorandum dated 15.05.2001 as Ex. PW1/2; site plan of the premises in question as Ex. PW1/3; certified copy of the judgment dated 07.09.1978 passed by Sh. P.K. Bahri, the then RCT, Delhi in RCA no. 588/1975 as Ex. PW1/4; certified copy of the rent receipt dated 12.10.1961 as Ex. PW1/5; certified copy of the appeal filed by the plaintiff as Ex. PW1/6; certified copy of the application U/o 22 rule 10 of the CPC as Ex. PW1/7; copy of the application of Smt. Sushila Devi for domestic electricity dated 23.04.1960 as Ex. PW1/8; copy of another application filed in 1966 as Ex. PW1/9; certified copy of the rent receipt dated 17.11.1965 as Ex. PW1/10; copy of the application dated 12.04.1966 for water connection as Ex. PW1/11; letter dated 28.07.1967 along with its original envelope as Ex. PW1/12 & PW1/13 respectively; certified Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 13/51 copy of the orders dated 28.09.1968 passed by the Court of Sh. Mohan Lal Jain, the then Ld. RCT, Delhi as Ex. PW1/14A; certified copy of the judgment dated 18.04.1975 passed by the Court of Sh. M.A. Khan, the then Ld. ARC, Delhi as Ex. PW1/14B; copy of the notice dated 27.07.1977 as Ex. PW1/15; certified copies of postal receipts of notice dated 27.07.1977 as Ex. PW1/16 to PW1/20A, PW1/21, PW1/21, PW1/22A and PW1/22B; certified copy of the UPC certificates as Ex. PW1/23; certified copies of the acknowledgment cards as Ex. PW25 to PW1/29; certified copies of returned registered envelopes addressed to the defendant and Rajni Jain as Ex. PW1/30 to PW1/31; notice dated 01.05.1999 as Ex. PW1/32; registered AD post, UPC and posting as Ex. PW1/33 to PW1/35; envelope as Ex. PW1/36; envelope of notice dated 01.05.1999 is Ex. PW1/37; certified copy of the eviction petition bearing no. E223/1978 as Ex. PW1/38; certified copy of the orders of Ld. ARC, Delhi Sh. M.A. Khan as Ex. PW1/39; certified copy of the application and affidavit of Smt. Sushila Devi as Ex. PW1/40 & PW1/40A and of Ravi Chand as Ex. PW1/41 & PW1/41A; certified copy of the written statement in eviction petition titled as Sh. Avinash Chander Jain & Anr. Vs. Smt. Sushila Devi Jain & Ors. as Ex. PW1/42; certified copy of the orders dated 02.02.1983 in the eviction petition titled as Sh. Avinash Chander Jain Vs. Smt. Sushila Devi Jain & Ors. as Ex. PW1/43; certified copy of the eviction petition bearing no. E378/67 as Ex. PW1/44; Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 14/51 certified copy of the written statement in eviction petition bearing no. E378/1967 as Ex. PW1/45; certified copy of the statement of Smt. Sushila Devi Jain recorded on 10.01.1975 as Ex. PW1/46; certified copy of the evidence of Sh. Avinash Chander Jain recorded in the eviction petition bearing no. E223/78 as Ex. PW1/47; certified copy of statement of Smt. Sushila Devi recorded in the eviction petition bearing no. 223/1978 as Ex. PW1/48; certified copy of the judgment passed by Sh. A.K. Garg, the then Ld. ARC, Delhi in eviction petition bearing no. E223/1978 as Ex. PW1/49; certified copy of the grounds of revision as Ex. PW1/50; the notice dated 10.04.2002 as Ex. PW1/51; registered AD post vide registration receipt as Ex. PW1/52 and PW1/52A; certificate of posting as Ex PW1/53; copy of the notice dated 10.04.2002 as Ex. PW1/54; envelopes of the notice as Ex. PW1/55 and Ex. PW1/55A; envelope received by the plaintiff as Ex. PW1/56; notice dated 26.04.2002 as Ex. PW1/57; counterfoil of rent receipts no. 1 dated 02.01.1977 and no. 144 dated 05.09.2004 as Ex. PW1/58 and PW1/58A; counterfoil of rent receipt no. 2 dated 02.02.1977 as Ex. PW1/59 and money order towards rent for the period 01.09.2004 to 31.10.2004 as Ex. PW1/59A.
8. In the cross examination, PW1 states that he does not know as to whether Sh. Deep Chand was a contractual tenant or not. PW1 further states that he was not born when Sh. Deep Chand died and therefore, he Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 15/51 cannot say as to whether his tenancy was terminated during his lifetime or not. PW1 denies the suggestion that he is not the owner and landlord of the premises in question. PW1 further states that the front portion of the property no. 4510 to 4512, situated on plot no. 7/33, Ansari Road, Darya Ganj, New Delhi has fallen to his share under the family partition. PW1 denies the suggestion that whenever any proceedings were initiated by his father against the defendant and his mother, all the legal heirs of Sh. Deep Chand were made as parties. By way of volunteer, PW1 states that no proceedings were initiated by his father against any other legal heirs of Sh. Deep Chand except Smt. Sushila Devi. PW1 further states that judgment of Sh. P.K. Bahri, the then Ld. RCT, Delhi being matter of record is already in the judicial file. PW1 further states that they did not file any appeal against the judgment of Sh. P.K. Bahri, the then Ld. RCT, Delhi. PW1 denies the suggestion that notices dated 10.08.67, 27.07.77, 01.05.99 and 10.04.02 were never served on the respective addresses. PW1 denies the suggestion that his claim of damages is inflated.
9. The defendant has examined himself as DW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. He has filed on record his evidence by way of affidavit as Ex. D1, certified copy of the judgment dated 18.04.1976 in the eviction petition bearing no. E378/67 as Ex. DW1/1; certified copy of the judgment dated 07.09.1978 in RCA no. Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 16/51 588/1975 as Ex. DW1/2; certified copy of the eviction petition bearing no. 223/78 as Ex. DW1/3; certified copy of the judgment dated 10.09.1984 in the eviction petition bearing no. 223/78 as Ex. DW1/4; certified copy of the order dated 17.01.1985 in CRA no. 982/1984 as Ex. DW1/5; certified copy of the SLP bearing no. 3015/1985 as Ex. DW1/6; certified copy of the order dated 19.02.1987 in Civil Appeal no. 4089/1985 as Ex. DW1/7; certified copy of the order dated 11.01.1988 in the Civil Revision No. 982/1984 as Ex. DW1/8; certified copy of the order dated 27.04.1988 passed in SLP no. 5340/1988 as Ex. DW1/9; certified copy of the order dated 30.09.1988 passed in review petition no. 571/1988 as Ex. DW1/10; certified copy of the petition no. 598/1974 along with the certified copies of the order sheets and certified copy of the written statement as Ex. DW1/11(colly); certified copy of the order sheets in the eviction petition bearing no. 346/1980 as Ex. DW1/12(colly); certified copy of the MCD House Tax General Revision Form applicable w.e.f. 01.04.1968 as Ex. DW1/13; certified copy of the DR application bearing no. 207/99 as Ex. DW1/14; the original electricity bills dated 29.04.1985 and 16.10.1985 as Ex. DW1/26 and DW1/27; the original telephone bills dated 02.11.1977, 16.11.1976, 16.01.1979 and 18.10.1979 as Ex. DW1/28 to Ex. DW1/31; original bill dated 23.02.1987 as Ex. DW1/32; original water bill dated 24.05.1984 and 16.09.1991 as Ex. DW1/33 and DW1/34.
Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 17/51
10. In his cross examination, DW1 states that when his father died, he was 14 years of age. DW1 admits it to be correct that talks of tenancy with regard to premises in dispute did not take place in his presence. DW1 further states that his father expired on 01.07.1947. DW1 further states that his family consists of himself, his wife, his sisters, his brother and his children. DW1 admits it to be correct that there is no ration card in the name of his sisters and brothers at the address of the premises in dispute and their names have not been mentioned in the ration card. DW1 further states that his brother is residing in America at Walsh Avenue, Philidelphia, USA. DW1 further states that Smt. Bimla Jain his married sister now a widow is staying at SDA, Delhi alone. DW1 further states that her children are staying separately. By way of volunteer, DW1 states that she had stayed for sometime at Darya Ganj also for about 15 years after her marriage. DW1 further states that he does not have any documentary proof to show that Smt. Bimla Jain ever resided in the premises in question after her marriage. DW1 denies the suggestion that after the death of his father, his mother only became the tenant. DW1 admits that her sisters Smt. Urmila, who is also widow lives in USA for the last about 8 years. DW1 admits it to be correct that the plaintiff had filed the petition U/s 14(1)(e) of the DRC Act against his mother, brother, he himself and his sisters. DW1 admits it to be correct that in the said petition filed in the year 1978, the address of his sister Urmila Jain was Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 18/51 given as of New York, USA. DW1 admits it to be correct that in the said petition, the address of Smt. Bimla Jain was given that of 40, Sunder Nagar. DW1 further states that the addresses of late Sh. Deep Chand as given in the said petition are correct and the certified copy of the memo of party showing their correct addresses is Ex. DW1/PA. DW1 further states that he is General Attorney of all his sisters and brother except Smt. Urmila Jain. DW1 further states that in any of the petition filed under the DRC, Act for depositing of rent, he has not given the addresses of any of the legal heirs of late Sh. Deep Chand of the premises in dispute. DW1 further states that he has not filed the certified copies of those DRs. DW1 further states that his mother died on 18.01.02. DW1 admits it to be correct that prior to 1999, neither Sushila Devi nor himself or any other LRs of Deep Chand ever deposited rent under Section 27 of DRC Act. DW1 further states that he became a major in the year 1951. DW1 further states that he does not know when the youngest of his sister namely Madhu Garg became a major. DW1 further states that his brothers and sisters have asserted their tenancy rights in the premises in question in writing. DW1 admits it to be correct that he has not filed any original or certified copy of the statement. DW1 admits it to be correct that all the brothers and sisters except Smt. Urmila are aware of the pendency of the suit. DW1 admits it to be correct that he has not filed on record any rent receipts in the name of Sh. Deep Chand, Smt. Sushila Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 19/51 Devi etc. or Deep Chand and sons. DW1 denies the suggestion that during the lifetime of his mother, the rent receipts were used to be issued in the name of his mother only. DW1 further states that Ex. DW1/P2 has been filed by him on record and the same is correct. DW1 admits that water connection was in the name of his mother initially. DW1 further states that subsequently, the same was transferred in his name in the year 1982. DW1 further states that his address as mentioned on Ex. PW1/51, Ex. PW1/53, Ex. PW1/55 and Ex. PW1/55A is the correct address. DW1 admits that address of Smt. Sushila Devi as given on Ex. PW1/32, PW1/34 is the correct address. DW1 further states that he does not remember having given affidavit before Hon'ble Supreme Court Ex. DW1/P3. DW1 further states that he does not know whether Ex. PW1/D3 bears his signatures at points A and B. DW1 admits it to be correct that neither Smt. Sushila Devi nor himself nor any other legal heirs of Deep Chand ever assailed or challenged the orders of Sh. P.K. Bahri, the then Ld. RCT, Delhi. DW1 further states that Smt. Sushila Devi was a house wife and he is the eldest son. DW1 further states that all the brothers and sisters attained the age of majority in the year 1966. DW1 denies the suggestion that the accommodation in his possession can fetch out the rent @ Rs. 25,000/ per month, if let out. DW1 further states that the rent in the adjoining premises as on date is Rs. 2030 per month. DW1 admits it to be correct that the area where the premises in question is situated is Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 20/51 commercial area but it is also a residential area.
11. DW1 was recalled for further examination in chief in pursuance of the orders dated 02.09.05 and he filed his evidence by way of affidavit as Ex. DW1/A. In the examination in chief of the said witness, the portion marked X to X1 duly underlined in red colour in his affidavit was duly deleted and the same was not to be red as part of his examination in chief. The documents Ex. DW1/15 to Ex. DW1/25 were also directed to be de exhibited.
12. In his cross examination, DW1 states that he had filed DR in the court of Smt. Seema Maini, Ld. ARC, Delhi for depositing of rent for the period 01.03.05 to 28.02.06. DW1 further states that copy of the said DR is signed by him and is exhibited as Ex. DW1/PX. DW1 further states that he does not remember whether Smt. Urmila gave him any power of attorney or not. DW1 further states that when his mother died on 18.01.02, the power of attorney came to an end. DW1 further states that he does not know whether the property of late Sh. Ulfat Rai Jain had been partitioned vide document Ex. DW1/PX2. DW1 further states that the said property was partitioned by way of a court decree. DW1 further states that as on date, there was only electricity meter which is in working order and which is in his name. DW1 further states that the second meter is out of order. DW1 further states that initially the meters were in the name of his mother, but after taking NOC from his mother, he got those Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 21/51 meters transferred in his name. DW1 further states that his youngest sister Madhu attained the age of majority in the year 1964. DW1 further states that since 1964, none of his brothers and sisters asserted their joint tenancy rights against him. DW1 further states that as on date, property stands in the name of Sh. A.D. Jain, father of the plaintiff. DW1 further states that he has no knowledge if the mutation has been transferred in the name of the plaintiff. DW1 further states that about three months back, he had visited the MCD office and property was in the name of Sh. A.D. Jain. DW1 further states that Smt. Sushila Devi deposited the rent on behalf of all the legal heirs. DW1 further states that he does not have any document filed by him in any court till date to show that Smt. Sushila Devi had deposited the rent on behalf of all the legal heirs of late Sh. Deep Chand Jain.
13. Both the parties have already filed on record their written final arguments respectively. Ld. Counsels for the parties have addressed the final arguments orally as well. I have carefully gone through the entire material on record including the written final arguments filed on record by both the parties.
14. My issuewise findings on the abovesaid issues are as under:
ISSUE No. a & b framed on 12.05.2009 :
15. Both the issues are taken together as the same are connected inter Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 22/51 se and overlap each other.
16. In the written final arguments filed on record by the plaintiff, it has been argued that applying the doctrine of merger, the judgment delivered by the Appellate Court is merged in the judgment delivered by the lower court. It has been argued that the doctrine of merger applies without distinction between order of reversal or modification of the order or confirmation of the order passed by the Appellate Authority. It has been further argued that the question of the tenancy of the suit premises decided by the Court of Sh. M.A. Khan, the then Ld. ARC, Delhi was put to challenge in appeal before the Ld. RCT, Delhi and as such, the findings of the implied surrender and tenancy of Smt. Sushila Devi after the death of Sh. Deep Chand as recorded by Ld. RCT will apply by applying the doctrine of merger. It has been argued that the doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. It has been further argued that the said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It has been further argued that it is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. It has been further argued that Section 11 of the CPC read with Explanation Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 23/51 VI & VIII thereto bars this Court from trying the issue of cotenancy which was directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim. It has been further argued that this Court is precluded from going into the question of tenancy of Smt. Sushila Devi in suit premises at the behest of the defendant, her eldest son, who was a privy in terms of Explanation VII to Section XI of the CPC. It has been further argued that it is not open to the defendant to plead that he had no right of appeal against the findings of Sh. P.K. Bahri, on the core question of tenancy which was directly and substantially in issue before him and which was decided after hearing the parties to the appeal. It has been further argued that the findings of Sh. P.K. Bahri, the then Ld. RCT, Delhi on the core issue of tenancy of Smt. Sushila Devi were in law challengeable not only by Smt. Sushila Devi but by the defendant and others as well but were not challenged as admitted by the defendant in his cross examination leading to the finality of the said findings. Ld. Counsel for the plaintiff has relied upon the following judgments :
1) "AIR 2000 SC 2587 titled as Kunhayammed Vs. State of Kerala". In para no. 9 of the said authority, it has been held by the Hon'ble Supreme Court that "IN Ws. Gojer Brothers Pvt. Ltd. v. Shri Ratanlal this Court made it clear that so far as merger is concerned on principle there is no distinction Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 24/51 between an order or reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this court in U.J.S. Chopra vs. State of Bombay" wherein it was held."
In para no. 11 of the said authority, it has been held by the Hon'ble Supreme Court that "The logic underlying the doctrine of merger is that there cannot be more than one decree of operative orders governing the same subjectmatter at a given point of time. When a decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 25/51 order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subjectmatter of challenge laid or which could have been laid shall ahve to be kept in view".
2) "AIR 1974 SC 1380 titled as Gojer Brothers (Private) Ltd. Vs. Ratan Lal Singh". In para no. 18 of the said authority, it has been held by the Hon'ble Supreme Court that "The fundamental reason of the rule that where there has been an appeal the decree to the executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appeallate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasijudicial and executive authorities".
In para no. 23 of the said authority, it has been held by the Hon'ble Supreme Court that "The principle that the decree of the trial Court merges in the decree of the appellate Court was held to be applicable in U.J.S. Chopra v. State of Bombay, Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 26/51 (1955) 2 SCR 94 =(AIR 1955 SC 633)".
3) "AIR 1972 Allahabad 357 titled as Paras Ram & Ors.
Vs. Smt. Narayani Devi & Ors." wherein it has been held by the Hon'ble High Court of Allahabad that "the plaintiff cannot be allowed to succeed against his own pleadings."
4) "AIR 1977 SC 1268 titled as Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu". In para no. 1 of the said authority, it has been held by the Hon'ble Supreme Court that "Civil Procedure Code, 1908 Section 11 - Res judicata - Common claim -
Application on partition suit - A decree becoming final against one person operates as res judicata against another person representing identical or common claim. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right in common for themselves and others. Each of them can be deemed, by reason of explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 27/51 two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here."
In para no. 2 of the said authority, it has been held by the Hon'ble Supreme Court that "Civil Procedure Code, 1908 - Section 11 - Res judicata - Finality of decision - Grant of certificate of fitness to appeal against the decree does not take away the finality of decision. The question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in Section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, if course, to the rights of parties to appeal. The mere fact that the defendant - appellant could come up to this Court in appeal as of right of means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 28/51 made to question to the correctness or finality of that decision even by means of an application for Special Leave to Appeal."
5) "AIR 1994 SC 152 titled as Sulochanaamma Vs. Narayanan Nair". In the operating para no. 1 of the said authority, it has been held by the Hon'ble Supreme Court that "Code of Civil Procedure, 1908 - Section 11, Explanation VIII
- The Expression 'The Court of Limited Jurisdiction' in Explanation VIII is very wide and includes a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto - Therefore, where an order or issue which had been arisen directly or substantially between the parties or their privies and decided finally by a competent court, though of limited or special jurisdiction which include pecuniary, will operate as res judicata in a subsequent suit, notwithstanding the fact that such court was a not a competent court to try the subsequent suit."
In the operating para no. 2 of the said authority, it has been held by the Hon'ble Supreme Court that "It is obvious from the object underlying the Explanation VIII, that by operation of the nonobstante clause finality is attached to a decree of Civil Court of limited pecuniary jurisdiction also to put an end to the vexatious litigation, when the same issue is Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 29/51 directly and substantially in issue in later subsequent suit between the same party or their privies by operation of Section
11. The parties would be precluded to raise once over the same issue for trial".
17. In the written final arguments, the Ld. Counsel for the defendant has vehemently argued that earlier, Late Sh. Deep Chand Jain, father of the defendant was the tenant in respect of property in question who expired on 01.07.1947. It has been further argued that all the legal heirs of Late Sh. Deep Chand Jain who were residing with him became the tenant as per section 2 of the Delhi Rent Control Act. It has been further argued that the allegations of the plaintiff that only Smt Sushila Devi Jain inherited the tenancy rights qua the premises in dispute are absolutely frivolous and misconceived. It has been further argued that it is a matter of common practice that if a person is residing in the property alongwith his family members, the rent receipts, the electricity connections and other amenities are always in the name of the senior most member of the family but that does not mean that only the senior most member of the family is the tenant. It has been further argued that alleged termination of the tenancy by serving the allege notice upon Smt Sushila Devi Jain does not give any right to the plaintiff to file the present suit for possession against the defendants. It has been further argued that in the petition Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 30/51 decided by Sh M.A. Khan, the then Ld. ARC vide orders dated 18.04.1975, the Ld. ARC had categorically held that all the legal heirs of the deceased Sh Deep Chand inherited the contractual tenancy right. It has been further argued that the appeal preferred against the said orders was also dismissed by Sh P.K. Bahri, the then Ld. RCT, Delhi. It has been further argued that any observations made in the judgment of Ld. RCT does not effect the rights of the defendants and the other legal heirs of Late Sh. Deep Chand Jain. It has been further argued since the appeal was ultimately dismissed, the respondent did not have any right to challenge the findings of the Ld. RCT and therefore, any finding given by the Ld. RCT is not binding upon the respondent or any other party. It has been further argued that in the earlier litigations filed by the plaintiff against the defendant and his family members, the plaintiff has admitted the other legal heirs of late Sh Deep Chand Jain as his tenants and has impleaded them as the respondents. It has been further argued that it was never alleged by the plaintiff in any of the proceedings filed by the plaintiff that the other legal heirs of Late Sh Deep Chand Jain had surrendered their tenancy. It has been further argued that the defendants or his deceased mother had no occasion to file any appeal or revision against the aforesaid findings of the Ld. RCT, Delhi. It has been further argued that the various Hon'ble High Courts have held that a party has no right to challenge any findings against him in case the main order in his Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 31/51 favour. Ld. Counsel for the defendant has relied upon the following authorities :
1) AIR 1968 ALLAHABAD 282: In the case titled as Sri Pal and Ors. Vs. Swami Nath Others, the Hon'ble Court has held that finding given against a party in proceeding which terminates in favour of that party doest not operate as resjudicata in subsequent litigation in which similar controversy arises.
2) (1974) 2 SUPREME COURT CASES 393: In this suit titled as " Smt. Ganga Bai Vs. Vijay Kumar and Ors.", the Hon'ble Supreme Court has held that there can not be any right to appeal against a mere finding."
3) AIR 1977 MADRAS 25 (DB): In this case titled as Corporation of Madras Vs. P.R. ;Ramachandriah and Ors., the Division Bench of the Hon'ble Madras High Court has held that " It is well settled law that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue is found against him."
4) AIR 1961CALCUTTA 39 (FULL BENCH): In this Full Bench judgment of the Hon'ble Calcutta High Court titled as Commissioner for the port of Calcutta Vs. Bhairandinram Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 32/51 Durga Prasad", it has been held that "where a decree is entirely in favour of a party and there is an adverse finding against that party not effecting the decree, the party has no right to appeal."
5) AIR 1938 OUDH 18: In this judgment titled as Pateshwari Din and Anr, Vs. Mahant Sarju Dass, the Hon'ble Oudh High Court has held that "where a decree in a previous suit is wholly in favour of a person and given him all the reliefs sought for by him,he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such a suit. Hence such adverse finding can not operate as res judicata as against him in subsequent suit."
6) AIR 1985 Delhi 118: In the aforesaid case titled as Indra Sharma Vs. Gopal Dass and Ors., the Hon'ble Court has held that there can not be any implied surrender of tenancy when the legal heirs of the tenant did not defend their rights by paying rent themselves to the landlord and obtaining rent receipts in their own names and the same could not amount to implied surrender in terms of Sec. 111 of the T.P.Act.
7) AIR 1978 CALCUTTA 174 : In the aforesaid case, the Hon'ble High Court of Calcutta has held that "In absence of any evidence to show that there was ever any Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 33/51 agreement between the parties from which it could be said that there was implied surrender in respect of the premises sub let and the new tenancy was created between the Plaintiff and the Defendant.
8) AIR 2000 ANDHRA PRADESH 417 : In this judgment titled as "S.A. Wali Quadri Vs. Sadar Anjuman e Islamia, it has been held by the Andhra Pradesh High Court that " notwithstanding the fact that the other legal heirs are not paying the rents and they have relinquished the tenancy rights, in absence of clear evidence to the effect that possession of the premises was taken by the lessor pursuant thereto, no valid implied surrender can be inferred from of the same. Mere abandonment of possession by the tenant does not ipso facto amount to surrender unless accompanied by the acceptance on the part of the lessor."
9) 1989 (2) RCJ 246 DELHI : In this judgment titled as " Jaimal Singh Vs. Jaswant Singh", the Hon'ble High Court of Delhi has held that when the original tenant continues to be a contractual tenant till his death, all his heirs would become tenant by inheritance.
10) 1985(1) AIRCJ 640 : In this judgment titled as "
Smt. Gian Devi Anand Vs. Jeevan Kumar and Ors." In this Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 34/51 case, the constitutional bench of the Hon'ble Supreme Court of India held that the tenancy is inheritable and after death of a tenant, all his heirs would inherit the tenancy, whether the same is residential or commercial."
18. Onus to prove issue (a) has been placed upon the defendant whereas the onus to prove issue no (b) has been placed upon the plaintiff. As stated by me hereinabove, both these issues are connected inter se and overlap each other.
19. The vital question to be considered by this court is as to whether the findings of the Ld. ARC operate as resjudicata or the findings of the Ld. RCT as recorded in the appeal operate as resjudicata. Needless to mention that the defendant himself has relied upon the findings of the Ld. ARC in eviction petition no E378/1967 Ex DW 1/1 on record. The certified copy of the judgment of the Ld. RCT in RCA no. 588/1975 is also thereon record as Ex DW 1/2.
20. Perusal of the certified copy of the judgment EX DW 1/1 of the Ld. ARC reveals that the respondent in that petition had categorically taken an objection that the said petition was bad for nonjoinder of necessary parties as the respondent alone was not the tenant and the sons and daughters of Late Sh Deep Chand Jain were also the cotenants. The Ld. ARC on internal page no 7 of the said judgment recorded a finding to Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 35/51 the effect that it could not be presumed that the other tenants had given up their tenancy rights and as such, the eviction petition was not maintainable on that count as well.
21. It is not in dispute the said orders were challenged in appeal bearing RCA no. 588/1975 which was disposed of by the court of Sh. P.K. Bahri, the then Ld. RCT, Delhi vide orders/ judgment dated 07.09.1978. In para no 8 & 9 of the said judgment dated 07.09.1978, the Ld. RCT has held as under :
"The Additional Rent Controller has held that heirs of Deep Chand the original tenant have inherited the tenancy rights and the eviction petition having being filed only against the respondent without joining the other cotenants is not maintainable and even the notice of the termination served only on the respondent is illegal as under the law notice ought to have been served on each of the cotenants. It is not disputed that Deep Chand was the original tenant as this fact has been admitted by Ulfat Rai AW 7, the previous owner/landlord. However this is also undisputed that Deep Chand died about 20 years back and since then, the rent receipts have been always issued in the name of the respondent showing her as the tenant. At no stage, for all these years, the other heirs of Sh. Deep Chand asserted the tenancy rights or paid any rent. They had allowed the respondent alone to become the tenant in the premises by accepting the rent receipts in the name of the respondent Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 36/51 alone showing her as the sole tenant. So by implication and conduct, it is clear that the other heirs of Sh. Deep Chand surrendered their tenancy rights.
22. It was argued that they could have taken some relief in the replication at least that the other heirs of Deep Chand had surrendered their tenancy rights and as no such plea has been raised, the contention advanced by the Ld. Counsel for the appellant on this point should not be given any importance. Again this contention of the Ld. Counsel for the respondent is not tenable because what has been stated in the pleadings is that the respondent has been the tenant. It was a matter of evidence as to whether respondent in fact alone is the tenant in the premises or not. The facts as have been admitted by the respondent are that after the death of Sh Deep Chand she alone had been getting the rent receipts in her own name showing her as the sole tenant while the other heirs of Deep Chand remained alive and never asserted their tenancy rights. So by their conduct, it is clear that they surrendered their tenancy rights. At any rate, the respondent is estopped from pleading that there are any other co tenants in the premises when she had been accepting the rent receipts showing her alone to be the tenant. So this particular finding of the ARC that there are other cotenants in the demised premises is also not sustainable which I setaside."
23. There can not be any deviation from the proposition of the law as Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 37/51 laid down in the authorities relied upon by both the Ld. Counsels for the parties, but the question to be considered is as to whether the findings of the Ld. ARC operate as resjudicata or the findings of the Ld. RCT operate as resjudicata.
24. In the light of the abovesaid findings as reproduced herein above, it is crystal clear that the findings of the Ld. ARC about the cotenancy were the vital findings which were setaside by the Ld. RCT by his detailed findings recorded in paras no. 8 & 9 of the judgment EX DW 1/2 on record. Needless to mention that the said judgment of Ld. RCT was never challenged either by the defendant or by his mother Smt. Sushila Devi Jain leading to the finality of the said judgment/orders. I do not find any force in the submissions of Ld. Counsel for the defendant when he argues that there was no occasion for the defendant to challenge the said findings. To my mind, the Ld. RCT had recorded the findings on a very vital aspect of the matter and if the respondent in that petition or defendant herein felt aggrieved, it was open to them to challenge the said findings.
25. This Court can not loose sight of the fact that none other but DW 1 i.e. the defendant himself in his crossexamination admits that EX DW 1/P2 has been filed by him on record and correct. Ex DW 1/P2 is a rent receipt in the name of Smt Sushila Devi alone. Furthermore, it has to be seen that the defendant in his crossexamination categorically admits that Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 38/51 neither Smt. Sushila Devi nor he himself nor any other legal heirs of Deep Chand Jain ever assailed or challenged the orders of Sh. P.K. Bahri, the then Ld. RCT. DW 1 in the crossexamination admits it to be correct that he has not filed on record any rent receipt in the name of Deep Chand Smt Sushila Devi etc or Deep Chand & Sons.
26. I am also of the opinion that once the defendant relies upon the findings of Ld. ARC as contained in EX DW1/1 on record, the defendant can not be allowed to argue that the findings of the Ld. RCT as recorded in Ex DW 1/2 on record are not binding upon him because EX DW 1/2 is nothing but the orders of the Ld. Appellate Court arising out of the Judgment EX DW 1/1.
27. DW 1 in the crossexamination, has admitted that his youngest sister Madhu attained the age of majority in the year 1964. DW1 further states that since 1964 none of his brothers or sisters asserted their joint tenancy rights against him. Ld. Counsel for the plaintiff has relied upon an authority cited as 1989(2) RCJ 629 titled as Sushil Kumar Vs Bhagwanti Devi wherein the Hon'ble High Court of Delhi has held as under :
"It is settled principle of law that implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinquishment of possession. Implied surrender does not depend on the intention of the Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 39/51 parties like express surrender. It has to be implied from the conduct of the parties."
28. From the entire material on record, including the pleadings of the parties and the evidence led by the parties, particularly the cross examination of DW 1, I am of the opinion that none of the other legal heirs of Late Sh. Deep Chand ever asserted their tenancy rights.
29. In the light of the abovesaid discussion, I have no hesitation to hold the plaintiff has been able to prove issue no. (b) in his favour and the defendant has failed to prove issue no. (a) in his favour. Consequently, issue no. (b) is decided in favour of the plaintiff whereas issue no. (a) is decided against the defendant.
Issues no. 1, 2, 3 & 4 framed on 22.11.2004 :
30. All these issues are taken up together as the same are connected interse and overlap each other. Issue no. 1 relates to the preliminary objections of the written statement and onus to prove issue no. 1 has been placed upon the defendant. Issue no. 2 relates to the assertion of the plaintiff as contained in the plaint whereas issues no. 3 & 4 relate to the prayer clause of the present suit. The onus to prove issues no. 3 & 4 has been placed upon the plaintiff.
31. The defendant in the preliminary objections of the written Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 40/51 statement has taken an objection that the present suit is barred by Section 50 of the DRC Act because the defendant and his family members are the tenants at a monthly rental of Rs. 33.25/. In fact, the defence of the defendant as is discernible from the entire written statement filed on record is two fold. The first defence is that the present suit is barred by Section 50 of the DRC Act and the second defence is that the other legal heirs of Late Sh Deep Chand are also the contractual tenants. The defendant has further taken a defence that Smt Sushila Devi Jain was not the sole tenant and the tenancy was inherited by the other legal heirs of the deceased Sh Deep Chand Jain as well. It has been further argued that as per Explanation III to section 2 (l) (iii) of the DRC Act, alleged termination of tenancy of Late Smt Sushila Devi Jain shall not effect the rights of other legal heirs of Late Sh Deep Chand Jain who are continuously in possession of the tenanted premises after the demise of Late Sh Deep Chand Jain.
32. The plaintiff has filed the present suit claiming himself to be the owner of the premises in question on the basis of the final decree of partition EX PW 1/1 on record and the memorandum EX PW 1/2 on record. As per the defence of the defendant, plaintiff alone can not maintain the present suit. The defendant has argued that the plaintiff is not the sole owner but the plaintiff is merely a coowner as is reflected from the defence of the defendant as contained in the written statement. Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 41/51 It has to be seen that in the authority titled as Krishna Prakash & Anr Vs Dilip Harel Mitra Cheoy cited as 2002 AIR (Delhi) page no 81, the Hon'ble High Court of Delhi has held that a suit for possession by a co owner against a trespasser without impleading other coowners is maintainable.
33. Under issues no. (a) & (b), it has already been discussed that Smt Sushila Devi alone was the tenant as has been held by the Ld. RCT, Delhi. As per Section 50 (1) of the DRC Act, it is evidently clear that the existence of tenantlandlord relationship is a must to attract the jurisdiction of the Rent Controller in respect of a particular premises. The jurisdiction of the Civil Court to entertain any suit or proceeding is barred if it relates to the eviction of a tenant from a particular premises to which the Rent Act applies.
34. In the light of the abovesaid proposition of the law, this Court has to consider as to whether this suit is barred by section 50 of the DRC Act or not. Ld. Counsel for the plaintiff has relied upon the judgment of the Hon'ble High Court of Delhi in RSA no. 61/2009 decided on 24.05.2011 titled as Sh Ghansyam Dass Gupta & Anr Vs. Sh Prem Chand. The Hon'ble High Court of Delhi in the said RSA has held as under:
"The bar of Section of 50 of DRCA was thus not applicable : there was no relationship of landlordtenant between the parties. The period of one year available after the Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 42/51 death of statutory tenant to heirs who are not financially dependent upon the deceased was long since over. The defendant being an unauthorized tenant was rightly ordered to be evicted."
35. As stated by me hereinabove, the Ld. RCT has categorically held that Smt Sushila Devi, mother of the deceased defendant Sh Ravi Chand alone was the tenant in respect of the said premises. It has already been held under issues no. (a) & (b) that the said findings of the Ld. RCT operate as resjudicata. The rent receipts in form of Ex. DW1/P2 showing Smt Sushila Devi to be the sole tenant, the rent receipt in form of EX PW 1/5 dated 12.10.1961, the rent receipt dated 17.11.1965 EX PW 1/10 on record in the name of Smt Sushila Devi only, the application of Smt Sushila Devi dated 12.04.1966 for domestic water connection etc. are the other documentary evidence on the record to bring the home point that Smt Sushila Devi was alone the tenant.
36. The next question which assumes importance is as to whether the nature of the premises in question was residential or not. In this regard it has to be seen that the plaintiff in his evidence by way of affidavit who has been examined as PW1in para no 8 thereof categorically asserted that the premises in question was let out for residential purposes. The abovesaid assertion of the plaintiff i.e. PW 1 is uncontroverted and unchallenged during his entire crossexamination. The law is wellsettled Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 43/51 that if a part of examinationinchief of a particular witness is not cross examined then the said part stands admitted. EX PW1/8 is the letter of the deceased Smt. Sushila Devi to the Electricity Supply Undertaking which goes to show that the electricity connection was applied for domestic purposes only. To the same effect, are the letters EX PW1/9 & EX PW1/11 on record. The defendant in para no. 2 of his written statement has admitted that he and his family members have been residing in the premises in question for the last more than 60 years. As such, I am of the opinion that the plaintiff has been able to bring home the point that the premises in question was residential in nature and the same was being used as such.
37. The next question is about the termination of the tenancy. EX DW1/1, the judgment of the then Ld. ARC in para no. 8 clearly states that the tenancy of Smt Sushila Devi was terminated during her lifetime vide legal notice dated 10.08.1967 EX AW8/9 on record of that petition and the said service of the notice was not disputed. In para no. 8 of the said judgment, it has been further observed that the notice required a respondent to quit premises within one month from the receipt of the said notice. The plaintiff has further placed on record the legal notice dated 27.07.1977 EX PW1/15 on record together with its postal receipts and AD card etc. The plaintiff has further placed on record the legal notice dated 01.05.1999 EX PW1/32 together with its postal receipts and UPC receipts Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 44/51 etc. The plaintiff i.e. PW1 in his evidence by way of affidavit has stated about the aforesaid legal notices. The defendant i.e. DW1 in his cross examination has categorically admitted that the address of Smt. Sushila Devi as given on EX PW1/32 and EX PW1/34 is the correct address. As such, I have no hesitation to hold that the plaintiff has been able to prove by way of cogent and reliable testimony that the tenancy of Smt. Sushila Devi stood terminated.
38. The defendant in the written statement has admitted the date of death of Smt. Sushila Devi who was a statutory tenant as on 18.01.2002. The next question is as to whether the deceased defendant Sh. Ravi Chand (the elder son of Smt. Sushila Devi) alone was ordinarily living with his deceased mother in the residential premises and the rest of her children were residing somewhere else. It has to be seen that DW 1 in the crossexamination has admitted that the address of his brothers and sisters as mentioned in EX DW1/PX 1 is the correct address. EX DW1/PX 1 is the copy of the petition under Section 27 of the DRC Act instituted by Smt. Sushila Devi Jain and her children. From the said document, it is crystal clear that the address of the rest of the children of the deceased Smt. Sushila Devi is not that of the premises in question and the address of Sh. Ravi Chand Jain has been given as that of the premises in question. Furthermore, it has to be seen that in para no. 12 of his evidence by way of affidavit, the plaintiff has spoken about the residence Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 45/51 of other brothers & sisters of the deceased defendant being in USA. PW 1 has not been crossexamined on this aspect of the matter and as such the testimony of PW 1 is unrebutted. I am of the opinion that in this way, the plaintiff has been able to prove that only the defendant alone was ordinarily residing with the deceased Smt. Sushila Devi Jain in the premises in question at the time of her death.
39. The next point which has to be discussed is as to whether the deceased defendant Smt. Ravi Chand was financially dependent on the deceased tenant or not. The defendant as DW 1 in his crossexamination has admitted that Smt. Sushila Devi Jain was a housewife. Ld. Counsel for the plaintiff has argued that the defendant in his evidence by way of affidavit EX D1 and EX D1/A has not claimed that he was the financially dependent on his mother who died on 18.01.2002 at the age of 83 years. It has been further argued that there is not even a whisper about his financial dependence on Sushila Devi in his evidence. I am of the opinion that the plaintiff has been able to prove that the deceased Sh Ravi Chand was not financially dependent upon the deceased Smt. Sushila Devi Jain at the time of her death. Nothing contrary has been brought on record by the defendant on this aspect of the matter.
40. In terms of Explanation II Section 2 (l) (iii) of the DRC Act, Sh. Ravi Chand Jain had acquired the right to live in the suit premises for a limited period of one year from the date of the death of Smt Sushila Devi Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 46/51 who admittedly expired on 18.01.2002, in my opinion. It is worthwhile to mention here that defendant Sh. Ravi Chand also expired on 23.05.2010 during the pendency of the present suit but the legal heirs of the deceased defendant have already been brought on record vide orders dated 12.10.2010 passed by my Ld. Predecessor.
41. I am of the opinion that the right of Sh. Ravi Chand Jain, the deceased defendant to reside in the premises in the question came to an end on 18.01.2003 after the expiry of one year from 18.01.2002 (the date of death of Smt. Sushila Devi). I am also of the opinion that the plaintiff has been able to prove that the status of Sh. Ravi Chand in the suit premises was that of an unauthorized occupant after 18.01.2003. It has also to be further seen that the plaintiff has placed on record the legal notice dated 10.04.2002 EX PW 1/51 on record addressed to Sh. Ravi Chand Jain together with its postal receipts and UPC receipts etc. The defendant in the crossexamination as DW 1 has admitted that his address as mentioned on EX PW1/51, EX PW1/53, EX PW1/55 & EX PW1/55A is the correct address. As such, I am of the opinion that the plaintiff has been able to prove the service of the notice EX PW1/51 on record upon the deceased defendant.
42. Ld. Counsel for the defendant has argued that the partition decree was obtained by fraud for creating false scarcity of accommodation by the plaintiff which is reflected from the orders passed by Hon'ble Mr Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 47/51 Justice N.N. Goswamy of the Hon'ble High Court of Delhi in Civil Revision no. 982/84. It is true that the partition decree was ignored by the Hon'ble High Court of Delhi for the purposes of that civil revision which arose out of a petition under Section 14(1)(e) of the DRC Act but at the same time, it has to be seen that the said Civil Revision does not say anything about the cotenancy or contractual tenancy of the LRs of the deceased Smt Sushila Devi Jain. As such, I am of the opinion that the submission of the Ld. Counsel for the defendant does not hold much water on this count.
43. Last but not the least, Ld. Counsel for the defendant has vehemently argued that even during the pendency of the RCA no. 588/1975, the plaintiff herein impleaded all other legal heirs of the deceased Sh. Deep Chand Jain in the litigation instituted by the plaintiff herein and as such, the plaintiff himself accepted that the other legal heirs were also the contractual tenants. Ld. Counsel for the plaintiff has stated that the other legal heirs were added as the parties in the litigation instituted during the pendency of the RCA no. 588/1975 without prejudice to the outcome of the RCA no. 588/1975. I am of the opinion that once it has been held that the findings of Ld. RCT as recorded in RCA no. 588/1975 operates as res judicata, the above submission of the Ld. Counsel for the defendant does not have any substance.
44. In the light of abovesaid discussion, I have no hesitation to hold Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 48/51 that the defendant has utterly failed to prove that the present suit is barred by Section 50 of the DRC Act. As such, I hereby decide issue no. 1 against the defendant and in favour of the plaintiff. I am of the opinion that the plaintiff has been able to prove that the defendant is an unauthorized occupant in the premises in question and accordingly I hereby decided issue no. 2 in favour of the plaintiff. To my mind, the plaintiff is entitled to recover the suit premises from the defendant and as such, issue no. 3 is hereby decided in favour of the plaintiff and against the defendant.
45. So far as issue no. 4 is concerned, the plaintiff in the legal notice EX PW 1/51 on record has claimed the damages for use and occupation at the rate of Rs. 25,000/ per month w.e.f. 18.01.2013 together with interest 18% per annum. The prayer of the plaintiff in the present suit, is also to the same effect. The defendant in the crossexamination has denied the suggestion that the accommodation in his possession can be let out at a monthly rent of Rs. 25,000/ per month. DW1 in cross further states that the rental of the adjoining premises was Rs. 2030/ per month. DW1 admits it to be correct the premises in question was situated in an area which was commercial as well as residential. PW1 i.e. the plaintiff in para no. 17 of his evidence by way of affidavit has spoken about the present market rate of rent of the suit property to be more than Rs. 25,000/ per month. PW 1 has not been crossexamined on this aspect Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 49/51 of the matter at all and as such the testimony of PW 1 is uncontroverted and unchallenged.
46. The settled law is that the court can take judicial notice of the increase in rental of the premises keeping in view the area where the premises is situated and keeping in view the purpose for which the premises in question was let out. In the case in hand, the premises was residential and the tenancy was very old. The rate of rent was Rs. 33.25/ per month. As such, I am of the opinion that if the damages at the rate of Rs. 10,000/ are awarded w.e.f. 18.01.2003, the same would be sufficient to meet the ends of justice. Accordingly, I hereby grant the damages at the rate of Rs. 10,000/ per month w.e.f. 18.01.2003 till the date of handing over of the premises in question as shown in red colour in the site plan EX PW 1/3 by the defendant to the plaintiff. Issue no. 4, thus stand decided accordingly.
Relief :
47. In the light of my findings upon the foregoing issues, I hereby decree the suit of the plaintiff for the relief of possession and pass a decree of possession in favour of the plaintiff and against the defendant in respect of the premises as shown in the red colour in the site plan EX PW1/3 on record.
48. I also hereby award damages for use and occupation of the suit property to the plaintiff at the rate of Rs. 10,000/ per month w.e.f. Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 50/51 18.01.2003 till the date of handing over of the vacant and peaceful possession of the suit premises by the defendant to the plaintiff. The plaintiff shall also be entitled to the interest @ 9% per annum on the decreetal amount from the date of the decree till the date of realisation of the suit amount.
49. Costs of the suit are also awarded in favour of the plaintiff.
50. Decree sheet be prepared accordingly by the Reader after payment of the additional court fees, if any after calculation thereof.
File be consigned to record room after necessary compliance.
Announced in the open court (RAJ KUMAR)
on this 01st day of March 2014. ADJ17 (Central)
Tis Hazari Courts, Delhi.
Suit No. 107/14 (Old Suit No. 239/10/04) Page No. 51/51