Delhi District Court
Jai Bhagwan (Since Deceased) & Ors. vs . Sh. Narender Parkash Gupta. Cis No. ... on 13 September, 2018
Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16
IN THE COURT OF CIVIL JUDGE06, (CENTRAL), TIS
HAZARI COURTS, DELHI
DATE OF INSTT: 18.09.2000
CIS NO. :599966/16
CNR NO. :DLCT030001132000
DATE OF DECISION : 13.09.2018
PRESIDING OFFICER: Mr. KAMRAN KHAN
As Per Amended Memo Of Parties
1. Jai Bhagwan (Since Deceased)
Represented by his LR's:
(I) Sh. Ashok Bhati
S/o Late Shri Jai Bhagwan
(II) Smt. Brijbala
W/o Late Sh. Vijay Kumar (Predeceased son)
(III) Pulkit
S/o Late Sh. Vijay Kumar
(IV) Master Yash (Minor)
S/o Late Sh. Vijay Kumar
(V) Ms. Gunjan
Married daughter of Late Sh. Vijay Kumar
(VI) Nidhi
D/o Late Sh. Vijay Kumar
All Resident of H.No. 273, Kucha Ghasi Ram, Chandni
Chowk, Delhi110006.
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Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16
2. Shri Jagan Nath (Since Deceased)
Represented by his LR's
(i) Smt. Urmila Devi
Widow of Late Sh. Jagan Nath
(ii) Ms. Seema Sharma
D/o Late Shri Jagan Nath
(iii) Shri Pankaj Sharma
S/o Late Shri Jagan Nath
(iv) Shri Rajesh Sharma
S/o Late Shri Jagan Nath
All R/o H.No. G18A, Shiv Mandir, Nizamuddin (West),
New Delhi.
(v) Ms. Manju Bala
D/o Late Shri Jagan Nath
R/o H.No. 3663, Shanti Mohalla, Raghubarpura, No. 2,
Delhi
3. Shri Kamal Kishore
S/o Late Sh. Shyam Sunder
R/o H.No. G18A, Shiv Mandir, Nizamuddin (West), New
Delhi
4. Shri Naval Kishore
S/o Late Sh. Shyam Sunder
R/o H.No. G18A, Shiv Mandir, Nizamuddin (West), New
Delhi
5. Smt. Sarita Sharma
W/o Sh. Padam Sharma
D/o Late Sh. Shyam Sunder
R/o H.No. D7, Pandav Nagar, Delhi
6. Smt. Archana Sharma
W/o Sh. Ashok Kumar Sharma
D/o Late Sh. Shyam Sunder
R/o H.No. D45, Ganesh Nagar, Delhi
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Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16
7. Smt. Chanchal Sharma
W/o Sh. Kamal Sharma
D/o Late Sh. Shyam Sunder
R/o H.No. 162, Gali No. 5, Sarpanch Mandavali, Delhi
8. Smt. Raj Dulari
Widow of Late Shri Bhagwan
R/o H.No. G18A, Shiv Mandir, Nizamuddin (West), New
Delhi110013
.......Plaintiffs
Versus
Shri Narender Parkash Gupta
S/o Shri B.L. Gupta
R/o H.No. G18A, Shiv Mandir,
Nizamuddin (West), New Delhi
.....Defendant
SUIT FOR RECOVERY OF POSSESSION AND DAMAGES /
MESNE PROFIT.
JUDGMENT
Present suit for recovery of possession and damages / mesne profit has been filed by the plaintiffs claiming themselves to be lawful owners of the property bearing municipal no. G18A situated at Nizamuddin (West) New Delhi. As per the plaintiffs, different portions CNR No. DLCT030001132000 Page No. 3 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 of the property are occupied by the plaintiffs where they reside with their family while in some portion of the property there is a private temple of the plaintiffs. Further, as per the plaintiffs the entire property was managed by Sh. Shyam Sunder for and on behalf of all other co owners, being the eldest member of the family during his life time and he was dealing with the tenants on behalf of all the coowners as a co owner / colandlord.
2. As per the plaintiffs, Sh. Shyam Sunder, during his life time created a lease in respect of a vacant plot of land measuring 18x24, forming part of the property mentioned above (herein after referred to as "suit property"), in favour of the defendant at a monthly rent of Rs.100/ vide rent agreement dated 16.10.1974 for commercial purposes and the defendant was also allowed to raise constructions at his own costs. However, defendant made some unauthorized constructions for which he was booked under Section 343 of the Delhi Municipal Corporation Act and on account of the said unauthorized construction on the suit property, disputes ensued between the parties and the defendant also stopped paying rent to Sh. Shyam Sunder which continued for some years. However, a compromise was arrived between defendant and Sh. Shyam Sunder, which was reduced into writing, in the form of agreement dated 14.05.1993 as per which the rate of rent was increased to Rs.175/ per month and on account of previous arrears of rent, settlement was made at Rs.12,400/ till 30.04.1994 out of which CNR No. DLCT030001132000 Page No. 4 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 Rs.1,200/ was paid to MCD and the remaining amount of Rs.11,200/ was agreed to be paid in equal installments of Rs.300/ per month along with rent @ Rs.175/ per month. Further, the defendant was allowed to raise additional construction on the suit property without any objection from the landlord / owner. As per the plaintiffs, after entering into the agreement dated 14.05.1993, defendant issued only one cheque bearing no. 277307 drawn on Punjab National Bank for a sum of Rs.475/ for which rent receipt no. 115 dated 26.10.1993 was issued. Thereafter, no rent was paid by the defendant for any period. In the meantime, Sh. Shyam Sunder died on 27.03.1994, leaving behind his legal representatives i.e., plaintiffs no. 3 to 9 who succeeded to his share in the property. After the death of Sh. Shyam Sunder, management of the property was jointly given to plaintiffs no. 1 & 2 and a general power of attorney was executed in their favour by all other coowners of the property. Due to non payment of rent by the defendant, a legal notice of demand dated 18.01.1996 was issued to the defendant. However, even after receiving the said notice no payment was made by the defendant and accordingly, plaintiffs were forced to terminate the tenancy of the defendant by means of serving a legal notice dated 07.08.1997, whereby the lease of the defendant in respect of the suit property was terminated w.e.f. 30.09.1997. However, the defendant did not comply with the said notice and accordingly, eviction petition was filed by the plaintiffs, treating him to be a tenant in respect of the suit property u/s 14(1)(a)(j) CNR No. DLCT030001132000 Page No. 5 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 of the Delhi Rent Control Act. However, the said eviction petition was dismissed by the court of Sh. P.K. Saxena, the then Ld. Additional Rent Controller, Delhi vide order dated 02.12.1999 on the ground that lease was created in respect of a vacant plot of land and as such the provisions of Delhi Rent Control Act do not apply. As per the plaintiffs even after the termination of the lease, the defendant has failed to hand over the vacant possession of the suit property and is an unauthorized occupation on the same and hence, necessity arose to file the present suit seeking a decree of possession of the suit property along with a claim for damages / mesne profit for use and occupation of the suit property w.e.f. 01.10.1997 onwards.
3. On notice, defendant appeared and filed his written statement in which preliminary objections were taken on the ground of no locus standi, nonjoinder of necessary parties, no cause of action, false and frivolous suit etc. Defendant submitted that the plaintiffs are neither the owners nor the landlords of the suit property qua him. Further, it was submitted that the defendant has received a notice bearing no. Enf/15/7 (5577)/2001/17 dated 25.01.2001 from the Land & Development Office, Nirman Bhawan, New Delhi claiming that the suit property belongs to the government and the defendant also received a summon of the Estate Officer under Sub Section 1 and clause (b)(ii) of Sub Section 2 of Section 4 of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 claiming that land in dispute is a CNR No. DLCT030001132000 Page No. 6 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 government land and further another notice bearing no. L&DO/Enf.15 7(5583)/113 dated 10.07.2001 for payment of damages for alleged unauthorized use and occupation of government land and vacation of the sight thereof, the government demanded Rs.13,05,353/. Further, the Delhi Development Authority and the Municipal Corporation of Delhi are claiming interest in the property. Further, as per the defendant the suit has not been properly valued for the purpose of court fees and jurisdiction. As per the defendant, the plaintiffs have no right, title or interest in the property in dispute and even Late Sh. Shyam Sunder Bhatt was not having any ownership rights in the property and he was not the Pujari of the Shiv Mandir, Nizamuddin, West and the residence of the area / locality are claiming the Shiv Mandir and its adjoining land as the public property and have challenged the right, title or interest of the plaintiffs before the Hon'ble High Court and the said suit, titled as "Lord Shiva & Ors. Vs. Shyam Sunder & Ors. Bearing no. 2036/92 and another suit titled as "Lord Shiva & Ors. Vs. Jai Bhagwan & Ors, bearing no. 560/95" are still pending. It is denied that there is some private temple of the plaintiffs and rather, submitted that the temple known as Brahm Bhatt Shiv Mandir Shivala Shakkar Kuin, is a public temple which is worshiped by the general public and plaintiffs by hook and crook wants to grab the property in suit. It was submitted that Late Sh. Shyam Sunder was only managing the affairs for and on behalf of Brahm Bhatt Shiva Temple and he was having no personal interest in CNR No. DLCT030001132000 Page No. 7 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 the temple. Further, it was submitted that the defendant was allowed to use the suit property and super structure thereon in any manner as he likes and accordingly, defendant is using the ground floor for commercial purposes and the first floor for residential purposes. It was denied that the defendant stopped paying rent to Sh. Shyam Sunder and submitted that the defendant never refused to pay the rent and so far as the agreement dated 14.05.1995 is concerned the same is a matter of record. Further, as per the defendant the entire rent was paid by him till the death of Sh. Shyam Sunder and after his death there is no legal claimant of rent from the defendant and the plaintiffs have no right to recover the rent from the defendant. Besides this some additional statements were made by the defendant in which it was submitted that there is a Shiva Temple on the property bearing municipal no. G18A, Nizamuddin (West), New Delhi and the said temple was acquired by the government under the Land Acquisition Act in or about 1913. However, the Collector refused to allot compensation for the said temple to one Sh. Ram Chand and Sh. Bishambhar Nath and referred the matter u/s 19 of the Land Acquisition Act to the competent court, which by order dated 23.05.1914 declined to give compensation to Sh. Ram Chand and Sh. Bishambhar Nath but ordered that the compensation be used to raise new temple and as regards the acquired temple the government appointed Sh. Siya Ram Saran Das as a Pujari of the temple who continued to manage the temple until his death in CNR No. DLCT030001132000 Page No. 8 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 November, 1957. After his death, the government did not appoint any Pujari and thereafter, the dispute regarding possession and management of the said temple began in which Sh. Shyam Sunder, Sh. Ram Nath and the residence of the locality claimed the possession of the said temple. In 1959, the temple was sealed by a magistrate order dated 09.07.1959 and he appointed the management of Laxmi Narayan Temple to look after the disputed temple, its land and properties till the matter was decided by Civil Court. The said Civil Court vide order dated 20.01.1969 hold that Sh. Ram Nath besides other were in possession of the temple, its land and properties and accordingly, possession was given to Sh. Shyam Sunder and also Sh. Ram Nath on 26.10.1972. As per the defendant, the plaintiffs are not the owners of the temple, its land and properties and it is the presiding deity or in any case belongs to the government as the land acquisition collector has acquired in the year 1911. Besides this all other averments of the plaintiffs were denied specifically and prayer to dismiss the suit with costs was made.
4. Replication was filed by the plaintiffs in which the averments of the written statement were denied specifically and to the additional statements it was submitted by the plaintiffs that the temple in all respects is being managed by the plaintiffs. It was further submitted that initially the property was donated by Maharaja of Patiala State to the forefathers of the plaintiffs and ever since they are the owners of the property including the private temple situated therein.
CNR No. DLCT030001132000 Page No. 9of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 Further, it was not denied that the said temple and its land was acquired by the government in or about 1913 and the collector refused to release the compensation. However, as per the defendant no compensation was paid and no alternative sites was found and no new temple was constructed and as such the alleged acquisition was infact a camouflage and cannot be deemed as acquisition at all. Besides this all other averments of the additional statements were denied specifically.
5. From the pleadings of the parties, following issues were framed for adjudication on 23.04.2003:
1. Whether the plaintiffs has no locus standi to file the present suit as they are neither the owners nor the landlords, qua the deft.? OPD
2. Whether the suit is bad for nonjoinder of necessary parties.
3. Whether the suit has not been valued properly for the purpose of court fees and jurisdiction, if so, its effect? OPD
4. Whether the plaintiffs is entitled for a decree of possession with respect to suit property shown as per site plan as prayed in the plaint? OPP
5. Whether the plaintiffs is entitled for damages / arrears of rent as prayed for? OPP
6. Relief.
6. During the pendency of the suit, original plaintiffs no. 3 & CNR No. DLCT030001132000 Page No. 10 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 4 died and their names were accordingly ordered to be deleted vide order dated 01.10.2011. Original plaintiff no.2 also expired and his LRs were impleaded vide order dated 20.07.2013. Original plaintiff no.1 died during the proceedings and his LRs were impleaded vide order dated 11.02.2015.
7. In order to prove the issues, plaintiffs firstly examined Sh. Jagan Nath as PW1 who tendered his affidavit Ex.PW1/A along with the documents. His part crossexamination was recorded on 22.05.2012 and 24.07.2012. However, before the completion of his cross examination, he died.
Thereafter, plaintiffs examined Sh. Ashok Kumar Bhatt as PW2 who tendered his affidavit Ex.PW2/A and also proved some documents. He was party crossexamined on 11.08.2016 but he thereafter did not appear for his remaining crossexamination.
Plaintiffs also examined Sh. Ravinder Kumar, JJA as PW3 who deposed that file bearing no. E175/97 titled as Jai Bhagwan Vs. Narender Prakash Gupta bearing Goshwara No. 297RC has been destroyed in weeding out in 27.06.2009 as per Goshwara Register of December, 1999.
Plaintiffs also examined Sh. Manish Yadav, JJA, Record Room, THC as PW4 who brought the summoned record of suit file no. 530/2006 titled as Narender Prakash Gupta Vs. Union of India & Ors.
CNR No. DLCT030001132000 Page No. 11of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 and proved certified copy of the plaint as Ex.PW1/10.
Thereafter, PE was closed by court order on 19.09.2017.
8. Defendant failed to lead any evidence despite availing opportunities for the same and accordingly, DE was closed by court order on 21.12.2017.
9. Written arguments were filed by ld. Counsel for the parties. File perused. Having gone through the records very carefully my issue wise findings are as under: ISSUE NO. 1, 2 & 3:
10. The onus to prove all these issues were casted on the defendant. However, these issues were not pressed by ld. Counsel for the defendant in his arguments and accordingly, these issues are decided against the defendant being not pressed.
ISSUE NO. 4 & 5:
11. The onus to prove both these issues were on the plaintiffs. For these issues, ld. Counsel for the plaintiffs argued that although no conclusive evidence has been led by the plaintiffs but the admissions made by the defendant can be taken into consideration for the purpose CNR No. DLCT030001132000 Page No. 12 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 of adjudication of the present case. It was submitted that the defendant has not denied the fact that eviction petition was filed against him and in the written statement Ex.PW1/9 the defendant admitted the agreement dated 16.10.1974 and 14.05.1993 executed by him and Late Sh. Shyam Sunder Bhatt. Further, it was submitted that defendant filed a civil suit bearing no. 290/2001 against Union of India, copy of plaint is Ex.PW1/10, wherein defendant claimed to be a tenant in respect of the suit property under Sh. Shyam Sunder who was claiming himself to be exclusive owner of the property. For notice regarding termination of lease, it was argued that even if it is presumed that defendant has not received any notice of termination then also it is a settled law that filing of suit for possession itself amounts to notice of termination of lease and no prior notice is required to be served. Further, it was also contended that as per Section 116 of the Indian Evidence Act, the defendant is estopped from denying the title of Late Sh. Shyam Sunder. Hence, decreetal of the suit was prayed.
12. On the other hand, ld. Counsel for the defendant argued that none of the plaintiffs completed their crossexamination and accordingly, defendant was denied the opportunity to crossexamine them and as such their evidence is no evidence in the eyes of law and the same cannot be read in evidence. Further, it was submitted that the documents exhibited by PW1 and PW2 cannot be read into evidence as no opportunity to crossexamine the witness was provided.
CNR No. DLCT030001132000 Page No. 13of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 Accordingly, it was prayed that the suit be dismissed with costs.
13. After hearing ld. Counsel for the parties and having perused the case file carefully and meticulously, this court is of the considered opinion that the ld. Counsel for the defendant rightly argued that evidence tendered by PW1 and PW2 is no evidence in the eyes of law as crossexamination of PW1 could not be completed as he died during the proceedings and PW2 did not appear for his remaining cross examination. Hence, the entire suit of the plaintiffs is based on the alleged admissions made by the defendant in some other suits.
14. As per the ld. Counsel for the plaintiffs, in a suit for recovery of possession only two aspects are to be taken into consideration i.e., whether the premises was let out by the plaintiffs or their predecessor in interest and the lease was duly terminated as per the requirement of Section 106 of the Transfer of property Act. In the opinion of this court, it is not in dispute that the plaintiffs had filed a eviction petition against the defendant. In the written statement Ex.PW1/9 the defendant denied existence of relationship of landlord and tenant between the parties. However, it is also to be noted that defendant had filed a suit for declaration against the Union of India, copy of plaint is Ex.PW1/10 on record, and in the said plaint, defendant (plaintiff in the said case) claimed to be tenant in the suit property under one Sh. Shyam Sunder since 1974 by virtue of rent agreement dated CNR No. DLCT030001132000 Page No. 14 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 16.10.1974. Further, it was also claimed by the defendant that there was some dispute between him and Late Sh. Shyam Sunder and a compromise was finally arrived vide agreement dated 14.05.1993. To this extent, the suit of the plaintiffs stands proved that defendant was tenant under Late Sh. Shyam Sunder and there was a rent agreement in the year 1974 and a compromise agreement dated 14.05.1993. However, it is pertinent to mention here that on the basis of these admissions, plaintiffs had filed an application under Order XII R 6 CPC which was ultimately dismissed by my ld. Predecessor vide order dated 22.09.2004 with the observation that the defendant has not admitted the allegations of the plaintiffs in the present suit and the plaintiffs are required to prove their own title first as they are seeking recovery of possession. The said order was never challenged by the plaintiffs and accordingly, the said order attained finality.
15. Hence, after passing of the aforesaid order the plaintiffs were under a bounden duty to prove their title in the suit property as they are claiming themselves to be coowners in the suit property. The factum of proving the ownership by the plaintiffs becomes all the more important as admittedly it has come on record that the entire property including the suit property has already been acquired by the government and the government had sent a notice to the defendant regarding eviction as well as for damages. This also gets duly corroborated from the part crossexamination of PW2 who admitted that Land and CNR No. DLCT030001132000 Page No. 15 of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16 Development Office, Govt. of India claims the property as government property. Further, PW2 do not deny that order of eviction has already been passed against the defendant in a petition under the provisions of Public Premises Act. The plaintiffs have failed to prove their title / ownership over the suit property and accordingly, they are not entitled to recover possession of the suit property as such as well as any damages / mesne profit. Accordingly, both these issues are decided against the plaintiffs.
16. The court, therefore, draws following conclusion upon the issues: As to issue No.1 Negative As to issue No.2 Negative As to issue No.3 Negative As to issue No.4 Negative As to issue No.5 Negative ORDER ISSUE NO. 6 : Relief
17. In view of my discussion to the aforesaid issues, the suit of the plaintiffs stands dismissed with cost.
18. Decree sheet be prepared accordingly.
CNR No. DLCT030001132000 Page No. 16of 17 Jai Bhagwan (Since Deceased) & Ors. Vs. Sh. Narender Parkash Gupta. CIS No. 599966/16
19. File be consigned to record room after due compliance.
Announced in the open Court KAMRAN KHAN
Dated:13.09.2018 Civil Judge 06 (Central)
Tis Hazari Court, Delhi
Note: This judgment contains seventeen pages and each page has been checked and signed by me.
KAMRAN KHAN Civil Judge 06 (Central)/THC Delhi/13.09.2018 CNR No. DLCT030001132000 Page No. 17 of 17