Delhi District Court
Sh. Jai Singh vs Sh. Dhian Singh on 1 August, 2011
Suit No. 121A/02 -1- Dated : 01/08/2011
IN THE COURT OF SH. ABHILASH MALHOTRA,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Suit No. 121A/02
1. Sh. Jai Singh,
s/o. Late Lala Bharat Singh,
c/o. Federal Motors (P) Ltd.
Scindia House, New Delhi-110001.
2. Sh. Virender Singh,
s/o. Late Lala Bharat Singh,
c/o. Federal Motors (P) Ltd.
Scindia House, New Delhi-110001.
.....plaintiffs
Versus
1. Sh. Dhian Singh,
s/o. Sh. Gainda Singh,
r/o. J-8/111, Rajouri Garden,
New Delhi-110027.
2. M/s. India Iron Traders Corporation
Plot No. 1, Block-B,
Jhandewalan Estate,
Behind Karol Bagh Depot,
Deshbandhu Gupta Road,
Karol Bagh, New Delhi.
Through its Sole Proprietor
Sh. Ram Loharia (now deceased)
Represented Through LRs
i) Smt. Karuna Rani
wd/o. Late Ram Loharia
r/o. N-32, NDSE, Part-I, New Delhi-110049.
Pages: 1/23
Suit No. 121A/02 -2- Dated : 01/08/2011
ii) Sh. Manoj Loharia
s/o. Late Ram Loharia
r/o. N-32, NDSE, Part-I,
New Delhi-110049.
iii) Smt. Preetija Agarwal
(d/o. Late Ram Loharia)
w/o. Sh. Dilip Agarwal
r/o. Kalpatru, Kidwai Puri,
Patna, Bihar
3. M/s. Loharai Iron & Steel Co.,
Plot No. 1, Block-B, Jhandewalan Estate,
Behind Karol Bagh Depot,
Deshbandhu Gupta Road,
Karol Bagh, New Delhi.
Through its Sole Proprietor
Sh. Ram Loharia (now deceased)
Represented Through LRs
i) Smt. Karuna Rani
wd/o Late Ram Loharia
r/o. N-32, NDSE, Part-I,
New Delhi-110049.
ii) Sh. Manoj Loharia
s/o. Late Ram Loharia
r/o. N-32, NDSE, Part-I,
New Delhi-110049.
iii) Smt. Preetija Agarwal
(d/o. Late Ram Loharia)
w/o. Sh. Dilip Agarwal
r/o. Kalpatru, Kidwai Puri,
Patna, Bihar
Pages: 2/23
Suit No. 121A/02 -3- Dated : 01/08/2011
4. M/s. Loharia Enterprises (P) Ltd.,
Plot No. 1, Block-B,
Jhandewalan Estate,
Behind Karol Bagh Depot,
Deshbandhu Gupta Road,
Karol Bagh, New Delhi.
5. M/s. Manoj Enterprises,
Through its Sole Proprietor
Sh. Manoj Loharia
Plot No. 1, Block-B,
Behind DTC Karol Bagh Depot,
Deshbandhu Gupta Road,
Jhandewalan Estate, Karol Bagh, New Delhi.
......defendants
Date of Institution:20/05/1982
Date of reserve of Judgment:28/05/2011
Date of pronouncement of Judgment:01/08/2011
JUDGMENT
1. This suit has been filed seeking the following reliefs :
The plaintiffs respectfully pray that this Hon'ble Court be pleased to pass decree -
(a) for recovery of possession in respect of the suit plot of land measuring 100' x 50', situated in Block-B, Plot No. 1 behind D.T.C. Depot, Desh Bandhu Gupta Road, Karol Bagh, New Delhi as shown in read in the plan attached herewith.
(b) a decree of Mandatory Injunction asking the defendants to demolish the tin shed or any other structures existing on the suit plot of land.
(c) a decree for recovery of Rs. 3600/- besides interest at 18% per annum from the date of the suit till realisation of the same.
(d) costs of the suit be also awarded in favour of the plaintiffs and against the defendants.
Pages: 3/23 Suit No. 121A/02 -4- Dated : 01/08/2011
(e) any other relief or reliefs which the Hon'ble court deems fit and proper in the fact and circumstances of the case be also passed in favour of the plaintiffs and against the defendants.
2. It is stated in the plaint that Lala Bharat Singh was owner of the plot situated at Jhandewalan Estate, Karol Bagh, Delhi. Defendant no. 1 was tenant under Sh. Bharat Singh in respect of the vacant plot measuring 100' x 50' situated at Block No. B, Plot No. 1, Jhandewalan Estate, Behind DTC Depot, Deshbandhu Gupta Road, Karol Bagh New Delhi at monthly rent of about Rs. 100/-. Defendant no. 1 failed to pay rent and Sh. Bharat Singh filed suit no. 672/1964 for recovery of rent for the period upto 31.07.1964. The suit was decreed by the court of Sh. Amir Chand Rampal, Sub-Judge, Delhi by judgment and decree dated 19.01.1965. Sh. Bharat Singh died on 26.11.1965 leaving behind the plaintiffs and other legal heirs. Sh. Bharat Singh bequeathed aforesaid property in favour of plaintiffs by will dated 12.08.1965. By operation of law plaintiffs have become owner of the suit property and defendant no. 1 became a tenant under the plaintiffs. It is further stated that defendant no. 1 further went into arrears for rent for a period from 01.08.1964 to 30.04.1972 for a sum of Rs. 9200/-. As some of the part of claim became time barred therefore suit for recovery bearing no. 285/72 for a sum of Rs. 3600/- was filed and decreed in favour of plaintiff in RCA No. 81/1975 decided by Sh. V.B. Bansal, Ld. ADJ, Delhi by judgment and decree dated 01.03.1976. A sum of Rs. 4100/- was Pages: 4/23 Suit No. 121A/02 -5- Dated : 01/08/2011 deposited by defendant in the trial court towards satisfaction of the decree.
3. Defendant no. 1 again fell into arrears of rent for a period ending on 31.08.1976 and suit bearing no. 41/1977 for a sum of Rs. 3600/- was filed. The suit was decreed by Sh. V.K. Jain, Sub-Judge, Delhi by judgment dated 13.03.1979 in favour of plaintiff. It is further stated that defendant no. 1 sublet, assigned or otherwise parted with the possession of the plot of land under his tenancy to defendant no. 2 to 5 without any permission from the plaintiffs. It is stated that tin shed was erected on the said plot unauthorizedly without permission of the plaintiff. The contractual tenancy of the defendant no. 1 was terminated by the plaintiffs by notice dated 17.02.1972 which was duly served on defendant no. 1. A copy of said notice was also affixed on the suit property on 28.08.1972 in the presence of the witnesses. It is stated that tenancy of defendant no. 1 stood determined after 31.08.1972. It is stated that rent was recovered for the said period from the defendant which accrued to them by notice dated 17.02.1972. It is further stated that plaintiffs besides the legal representatives of the deceased Sh. Bharat Singh also applied for seeking permission under Section 19 of the Slum Areas (Improvement & Clearance) Act 1956 against defendant no. 1 and permission was granted to the plaintiff by order dated 04.11.1974 passed by Sh. H.C. Arora, Competent Authority, Slum Areas, Delhi in Pages: 5/23 Suit No. 121A/02 -6- Dated : 01/08/2011 case no. 1755/1972. It is stated that defendants have no right in the suit property as they have been unauthorizedly inducted in the suit property without permission of plaintiff.
4. Defendant no. 1 did not contested this case. Defendant no. 2 to 5 have filed common written statement on record and have stated that defendant no. 1 is dead person and therefore, the suit is not maintainable. It is stated that suit is not maintainable due to non- joinder of three daughters of Late Sh. Bharat Singh. It is stated that the value of the suit property is worth more than Rs. 2,00,000/- and no proper court fees has been paid. It is stated that court has no pecuniary jurisdiction over the matter as the same is beyond the pecuniary limit of this court. It is stated that plaintiffs are not the owners of the suit property nor Sh. Bharat Singh was the owner. It is stated that no valid Will dated 12.08.1965 has been executed by Sh. Bharat Singh. Defendant has also denied the constructions in the suit property. It is denied that Lala Bharat Singh was owner of the suit property and defendant no. 1 was his tenant. It is stated that defendant no. 2 to 5 were not party in the litigation between Lala Bharat Singh and defendant no. 1 and not bound by the judgment passed in the cases as stated in the plaint. It is denied that Lala Bharat Singh executed will dated 12.08.1965 and after that plaintiff has became owner of the suit property. It is stated that defendant no. 1 Sh. Dhiyan Singh has already died in the year 1977 or 1978. It is Pages: 6/23 Suit No. 121A/02 -7- Dated : 01/08/2011 denied that tenancy was terminated by notice dated 17.02.1972. The fact of affixation of said notice is also denied by the defendant. It is denied that defendant no. 2 to 5 were inducted in the suit property by defendant no. 1. It is stated that plaintiffs have no right title or interest in the suit property as Delhi Transport Corporation has claimed rights in the suit property and as already being initiated proceedings against the occupants including the answering defendants under Public Premises Act. It is stated that defendants are in occupation on their premises which is a built up property from more than ten years. It is stated that Sh. Jai Singh has also appeared in the proceedings before Estate Officer under the Public Premises Act and plaintiffs has concealed this fact from the court. It is stated that claim has been made by plaintiff against defendant no. 1 and it does not relate to defendant no. 2 to 5.
5. Plaintiffs in replication has reaffirmed the averments made in the plaint. It is denied that defendant no. 1 is dead person. It is stated that daughter of Late Sh. Bharat Singh are not required to be impleaded as Sh. Bharat Singh has executed a Will during his life time bequeathed the suit property. Probate in respect of the said Will has been already granted by Hon'ble High Court of Delhi. It is stated that only "open land" was let out to defendant no. 1 and present suit is maintainable in this court. It is stated that suit has been properly valued and proper court fees has been paid. It is admitted that Pages: 7/23 Suit No. 121A/02 -8- Dated : 01/08/2011 defendant no. 2 to 5 were not parties in the suit filed by plaintiff against defendant no. 1 because defendant no. 2 to 5 were not in possession of the suit property at the relevant time. It is stated that the said Will dated 12.08.65 was probated on 16.08.1982 in probate case no. 14/1975 by Hon'ble High Court of Delhi. It is stated that tenancy of defendant no. 1 has been duly terminated. It is further stated that DTC has nothing to do with the suit property and claim of DTC in respect of suit property is absolutely false. It is denied that built up property was let out to defendant no. 1 by the plaintiffs.
6. After completion of pleadings the following issue were framed by my Ld. Predecessor by order dated 30.01.1985 :
"1. Whether the defendant no. 1 is dead person and suit is not maintainable in view of preliminary objections no. 1 in W.S.? OPD.
2. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD.
3. Whether Lala Bharat Singh was the owner of the suit property as alleged in para no. 1 of the plaint? OPP if so to what effect.
4. Whether Sh. Bharat singh executed a valid Will dated 12.08.65 as alleged in para no. 3 of the plaint? If so to what effect? OPP.
5. Whether DTC is claiming suit property as alleged in para no. 7 of the W.S. If so to what effect? OPD.
6. Whether the plaintiff is entitled to decree of possession of the suit property against which or all the defendant as prayed? OPP.
7. Whether the plaintiff is entitled to decree to mandatory injunction? OPP.
8. To what amount plaintiff is entitled? OPP.
9. Relief."
7. Thereafter issue 6A was framed as additional issue on 17.08.87 by my Ld. Predecessor. The said issue is also reproduced below :
Pages: 8/23 Suit No. 121A/02 -9- Dated : 01/08/2011 "6a. Whether the present suit is maintainable for possession and mesne profits against the tenant ? OPP."
Issue no. 6A was fixed for arguments as preliminary issue however within consent of parties on 10.01.90 it was agreed to be decided alongwith other issues.
8. Before proceeding further it is relevant at this juncture to point out that suit was decreed exparte by my Ld. Predecessor on 29.09.1993. Thereafter, an application under order 9 rule 13 CPC was filed by defendant. Some evidence was also led in this application. Later on plaintiff did not opposed the application under order 9 rule 13 CPC and same was allowed by order dated 23.12.2002 and suit was restored.
9. Defendant Sh. Ram Avtar Loharia has given statements on 31.07.2002 and 29.09.1997. The said statements have been reproduced below :
Statement dated 31.07.2002 :
"I undertake to not to sell the suit property to any third person and dispose of and create any third party interest in the suit property. But my business with partners will continue."
Statement dated 29.09.1997 :
"That defendant No. 1, Sh. Dhian Singh died earlier than the filing of this suit. He has never appeared in the court in this case."
Pages: 9/23 Suit No. 121A/02 -10- Dated : 01/08/2011
10.By order dated 24.12.02 my Ld. Predecessor has allowed application under order 39 rule 1 & 2 CPC and defendant no. 2 to 5 were restraining from selling, mortgaging or by any other manner, means creating any third party interest qua the suit property till further orders.
11.By order dated 23.07.2002 Sh. S.K. Singh, Advocate was appointed as Local Commissioner. He was directed to file report alongwith photographs. Local Commissioner has filed on record his report dated 31.07.2002. By order dated 25.05.2005 the application under order 8 rule 1A(3) CPC filed by applicant was allowed and documents relied upon by defendant were taken on record.
12.The present suit was instituted in the year 1982. It came before me for final arguments in September, 2010. During course of final arguments it came to my knowledge that some of the documents relied upon by parties have been mutilated/torn with the passage of time and therefore permission of Ld. District Judge was sought to reconstruct the documents which have been mutilated/torn with the passage of time. By letter no. 22050/Compt./Vig./F.-24/11 dated 24.03.2011 sanction from the Office of Ld. District Judge received. Thereafter, both the parties were directed to file certified copies and certified copies of documents were placed on record. The said documents were marked as "PW1/1R to PW1/9R". It is clarified that Pages: 10/23 Suit No. 121A/02 -11- Dated : 01/08/2011 originals exhibits are not lost and they are already on record but the certified copies were taken on record for the purposes of reconstruction of torn off and illegible documents. The certified copies of documents Ex. PW1/2 to Ex. PW1/7 and Ex. PW1/9 were taken on record. However, certified copies of documents Ex. PW1/1 and Ex. PW1/8 were seen and returned as the paper of certified copy available with parties was in very sensitive condition. It is also relevant to point out that both the parties by statement dated 07.04.11 agreed to take into consideration probate petition and will marked as "Mark A" and "Mark B".
13.Plaintiff in order to discharge his onus has examined Sh. Jai Singh as PW1 Sh. Jai Singh and PW2 Sh. Bhagmal Sharma. On the other hand defendant has examined Sh. Ram Loharia as DW1. The issue wise findings in the present case are as follows :
14.ISSUE NO. 1The onus to prove this issue was on defendant. Defendant has raised the contention in the written statement that suit is not maintainable as defendant no. 1 Sh. Dhiyan Singh is a dead person and was not living at the time of filing of the suit. In his testimony DW1 has stated that he do not know defendant no. 1 Sh. Dhiyan Singh. He came to know about the death of Sh. Dhiyan Singh in 1977/78 after making inquiry at the address given in the plaint. It is Pages: 11/23 Suit No. 121A/02 -12- Dated : 01/08/2011 further stated that he never saw any document/death certificate of defendant no. 1 and information about the death of defendant no. 1 was based on his personal visit to the address of defendant no. 1 at address provided in the plaint. It is further stated that the said information was given by the neighbourer living nearby. DW1 has failed to provide the name and details of the said neighbourer. DW1 has failed to bring on record the death certificate of defendant no. 1 or bring on record any person who is known to defendant no. 1 Sh. Dhiyan Singh. The testimony of DW1 in respect of death of defendant no. 1 is merely a heresay which cannot looked into. Defendant has failed to discharge his onus in respect of this issue. This issue is decided in favour of plaintiffs and against defendant.15.ISSUE NO. 2
15a. The onus to prove this issue was on defendant. Defendants have challenged the valuation of the suit done by plaintiff in para 12 of the plaint. Relief of possession has been valued at Rs. 1200/-, relief of mandatory injunction has been valued at Rs. 130/- and relief of recovery of arrears of rent has been valued @ Rs. 3600/-. On the aforesaid sum plaintiff has paid the necessary court fees. Contention of defendant is on the suit property is worth more than Rs. 2,00,000/- and has been under valued by the plaintiffs for the purposes of the suit valuation and court fees.
Pages: 12/23
Suit No. 121A/02 -13- Dated : 01/08/2011
15b. The present suit has been filed by plaintiffs claiming defendant no. 1 to be their tenant and defendant no. 2 to 5 as unauthorized occupants. Defendant no. 1 has not appeared in the present case and was proceeded exparte. The contention of the plaintiffs that defendant no. 1 was his tenant has remained unrebutted. This contention is also supported by document Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/3AR, Ex. PW1/4R. Defendants have also failed to lead any evidence to show that defendant no. 1 was not tenant under plaintiffs in respect of the suit property. Section 7(xi)(cc) of Court Fees Act provides that court fees has to be paid on annual value of rent payable i.e. for the year next before the date of presenting the plaint. Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/3AR and Ex. PW1/4 shows that premises have been let out for Rs. 100/- and accordingly relief is valued at Rs. 1200/-. Court fees for all the three reliefs have been properly valued and paid by plaintiffs. Accordingly, this issue is decided in favour of plaintiffs and against defendant.16.ISSUE NO. 3
The onus to prove this issue was on plaintiff. The present suit has been filed by plaintiff seeking relief of possession and no declaration as to title has been sought by the plaintiffs. No court fees has been also paid on the said relief. Defendant has also not filed any counter claim claiming relief of the declaration as to title. Accordingly, I am of the opinion that this issue has been wrongly framed by my Ld. Pages: 13/23 Suit No. 121A/02 -14- Dated : 01/08/2011 Predecessor and is accordingly striked out exercising power in order
14 rule 5 CPC.
17.ISSUE NO. 4The onus to prove this issue was on plaintiff. Plaintiff has brought on record copy of Ex. PW1/1R i.e. judgment dated 16.08.1982 passed in Probate case no. 14/75 by Hon'ble High Court of Delhi. By said order the letters of administration in respect of property as stated in the annexure A of the petition was granted in favour of plaintiffs. Parties by their statements given in the court on 07.04.11 have adopted documents Mark A and B which are Probate petition and Will dated 12.08.1965 respectively. Perusal of Will Mark B shows that property known as Jhandewalan Estate situated at Faiz Road, Karol Bagh, New Delhi including property under Delhi Transport Corporation was bequeathed in favour of plaintiffs. Probate petition Ex. PW1/1R has been duly proved on record. It shows that letter of administration has been granted on the basis of said Will dated 12.08.1965. Ex. PW1/8 brought on record also shows that lease hold rights in suit property (Plot No. 1 as well as in Plot No. 2) were granted in favour of deceased father of the plaintiffs by Gwalior Northern India Transport Co. Ltd. From the documents on record it is clear that Late Lala Bharat Singh acquired lease hold rights in suit property and the same were bequeathed in favour of plaintiff by Will dated 12.08.65. It is proved on record that Lala Bharat Singh has Pages: 14/23 Suit No. 121A/02 -15- Dated : 01/08/2011 executed Will dated 12.08.1965 alleged in para 3 of the plaint. Accordingly, this issue is decided in favour of plaintiffs and against defendant.
18.ISSUE NO. 518a. The onus to prove this issue was on defendant. It is admitted by PW1 in his testimony that he has filed suit for declaration against DTC in respect of entire property at Jhandewalan including the suit property and said suit was pending in Hon'ble High Court of Delhi. DTC was made defendant in the said suit. It is stated by PW1 that said suit was instituted as a DTC started challenging the title of the plaintiff in the suit property. It is further stated that present suit property is also part of the suit property of which title was challenged by DTC. It is further stated that some proceedings were also pending before Estate Officer and defendant no. 5 was also a party in the said proceedings.
18b. However, defendants on the other hand have failed to show on record that how the proceedings between the plaintiff and DTC are relevant in the present case or in other words how those proceedings justify the possession and title of defendants in the suit property. Contention of defendant that plaintiff failed to provide documents called upon in notice under order 12 rule 8 CPC cannot be sustained. The record called upon was public record and it could Pages: 15/23 Suit No. 121A/02 -16- Dated : 01/08/2011 have been summoned by defendant from the Hon'ble High Court for proving their case. PW1 in his testimony has stated that he has no personal knowledge regarding any proceedings by or against DTC in respect to the suit property. On the other hand plaintiffs have shown lease hold rights in the suit property by way of documents Ex. PW1/8R, Ex. PW1/1R and Mark B. Defendant has failed to discharge his onus. Accordingly, this issue is decided in favour of plaintiffs and against defendant.
19.ISSUE NO. 619a. The onus to prove this issue was on plaintiff. Plaintiff has brought on record Ex. PW1/1R to Ex. PW1/9R. Perusal of Ex. PW1/2, Ex. PW1/3, Ex. PW1/3A and Ex. PW1/4 shows that defendant no. 1 was tenant in respect of the suit property under the plaintiffs. Ex. PW1/8R shows that lease hold rights were acquired by father of plaintiffs Lala Bharat Singh in the suit property. Ex. PW1/1R and Mark B shows that the suit property has been devolved upon the legal heirs/plaintiffs of Lala Bharat Singh by way of Will dated 12.08.1965 (Mark B).
19b. On the other hand defendant has brought on record documents Ex. DW1/1 to Ex. DW1/6. These exhibits shows the registration of the defendant with various government authorities. Ex. DW1/1 and Ex. DW1/2 are in the name of M/s. Manoj Enterprises. Ex. DW1/4, Pages: 16/23 Suit No. 121A/02 -17- Dated : 01/08/2011 Ex. DW1/5 and Ex. DW1/6 are in name of Sh. Manoj Loharia and Ex. DW1/3 is not addressed to any particular individual. DW1 is neither executant nor these documents have been addressed to him. No witness who executed these documents or to whom these documents have been addressed have been brought on record to prove these documents. Even otherwise these documents cannot be inferred to confer any title in the suit property in favour of the defendants. At the most these documents can be used to show possession of the defendants in the suit property since particular period.
19c. The tenancy of defendant no. 1 has been terminated by plaintiffs by notice under section 106 Transfer of Property Act dated 17.02.1972 Ex. PW1/5R. Postal receipts are Ex. 1/6A to Ex. 1/6C, Ex. 1/7A to Ex. 1/7C. PW2 has also proved affixation of said notice outside the suit premises. By notice dated 17.02.1972 the tenancy of defendant no. 1 was terminated from 31.08.92. From the documents brought on record it is clear that tenancy of defendant no. 1 was clearly terminated as per law.
19d. Defendant no. 2 to 5 on the other hand have failed to show how they have come into possession of the suit property. DW1 in affidavit in chief have stated that his father was doing business in the property since 1944 and he succeeded in the year 1973. Further in Pages: 17/23 Suit No. 121A/02 -18- Dated : 01/08/2011 his cross-examination he has stated that he do not have any document/title of the ownership of the said plot in the name of his father. He has also expressed his ignorance has to fact whether his father has purchased suit property or not. DW2 to DW5 have also failed to show how they have come into possession of the suit property. Defendant no. 2 to 5 have failed to show their title as well as any lease hold interest in the suit property. In the absence of any record brought on record by defendants they cannot be said the authorised occupants in the suit property. Moreover, Ex. PW1/8R i.e lease deed, Ex. PW1/1R and Mark B clearly shows that plaintiffs have acquired rights and lease hold interest in the suit property from their deceased father. Accordingly, I hold that defendant no. 2 to 5 are unauthorized occupants in the suit property. As the lease has been properly terminated as per law, the plaintiffs are entitled to receive back the possession of the suit property.
19e. So far as the contention of defendant regarding maintainability of relief of possession in view of Delhi Rent Control Act is concerned it is clear from the documents Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/4R, Ex. PW1/8R and Mark B that the the suit property comprises of vacant land. Hon'ble High Court of Delhi in S. Ajit Singh vs. Smt. Ram Swaroop Devi; 63 (1996) DLT 599 held that :
"15. For the reasons stated above, I am of the considered view that the tenancy consisted of "open land" which does not fall within the purview of Section 2(i) of the DRC Act and cannot be called Pages: 18/23 Suit No. 121A/02 -19- Dated : 01/08/2011 building. Even if for the arguments sake it is presumed that tin shed existed and was appurtaining to the open land, it would not fall in the definition of "premises". Hence, the Civil Court was the competent Court to try the suit for possession and not the Court of Rent Controller. This was the only point on which the Supreme Court remanded the case. The question is answered in favour of the respondent. The appeal is accordingly dismissed with costs."
19f. From the aforesaid documents brought on record by plaintiff it is clear that suit premises was let out as "vacant plot" and in case of vacant plot Delhi Rent Control Act do not apply. Therefore, Civil Court is competent to try suit for possession.
This issue is decided in favour of plaintiffs and against defendant.
20.ISSUE NO. 6A 20a. The onus to prove this issue was on plaintiff. It has been contended by defendant that the present suit is not maintainable in view of the provision of Delhi Rent Control Act as the rent is below Rs. 3500/-. However, the perusal of documents Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/4R, Ex. PW1/8R and Mark B shows that the suit property is vacant land. It has been held by Hon'ble High Court of Delhi in S. Ajit Singh vs. Smt. Ram Swaroop Devi; 63 (1996) DLT 599 held that :
"15. For the reasons stated above, I am of the considered view that the tenancy consisted of "open land" which does not fall within the purview of Section 2(i) of the DRC Act and cannot be called building. Even if for the arguments sake it is presumed that tin shed existed and was appurtaining to the open land, it would not fall in the definition of "premises". Hence, the Civil Court was the competent Court to try the suit for possession and not the Court of Pages: 19/23 Suit No. 121A/02 -20- Dated : 01/08/2011 Rent Controller. This was the only point on which the Supreme Court remanded the case. The question is answered in favour of the respondent. The appeal is accordingly dismissed with costs."
20b. Therefore it cannot be said the Civil Court's jurisdiction is barred. Moreover, from the record it is also clear that defendant no. 1 was tenant of the plaintiffs. It is also clear that defendant 2 to 5 have failed to establish any right in the suit property. I have already held that defendant no. 2 to 5 are unauthorized occupants in the suit property. Tenancy of defendant no. 1 has been validly terminated and thereafter the present suit has been filed. Therefore, the suit has been properly instituted and is maintainable under law and plaintiff is entitled to relief prayed for. Accordingly, this issue is decided in favour of plaintiffs and against defendant.
21.ISSUE NO. 721a. The onus to prove this issue was on plaintiff. Perusal of documents Ex. PW1/8R, Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/4R and Mark B shows that vacant piece of land was let out to the defendant. Report dated 31.07.02 and photographs filed on record by Local Commissioner shows that the unauthorised construction have been made by the defendants in the suit property.
21b. From the findings in the aforesaid issues it is clear that defendants are unauthorized occupants in the suit property. DW1 in Pages: 20/23 Suit No. 121A/02 -21- Dated : 01/08/2011 his testimony has stated that they had not taken any permission from the plaintiffs for the construction of tin shed or other construction in the suit premises which were earlier an open piece of land. From the report of Local Commissioner and statement of DW1 on record it is clear that construction in the suit property has been raised by the defendants without permission and sanction of the plaintiffs. It is also clear from record that only the vacant piece of land was let out to defendant no. 1 and which was later on unauthorizedly occupied by defendant no. 2 to 5. As the construction has been raised without permission of the plaintiffs therefore plaintiffs are entitled to relief of mandatory injunction and demolition of the tin shed and other constructions is inevitable. Accordingly, this issue is decided in favour of plaintiffs and against defendant.
22.ISSUE NO. 8The onus to prove this issue was on plaintiff. Plaintiff is claiming a decree for recovery of Rs. 3600/- for use and occupation charges for a period of three years prior to filing of suit. From Ex. DW1/1 to Ex. DW1/6 it is clear that defendants are in possession of the suit property since the year 1972. DW1 has also admitted their possession in the suit property. It is also admitted position that no rent/charges has been paid by defendants to plaintiffs. Plaintiff has claimed rent @ 100/- per month. From Ex. PW1/2R, Ex. PW1/3R, Ex. PW1/3AR, Ex. PW1/4R it is clear that arrears of rent have been Pages: 21/23 Suit No. 121A/02 -22- Dated : 01/08/2011 awarded to the plaintiff @ 100/- per month. Therefore, defendants being unauthorised occupants of the suit property are liable to pay Rs. 3600/- to the plaintiffs for their occupation of three years before filing of the suit.
Accordingly, this issue is decided in favour of plaintiffs and against the defendants.
23.RELIEF In view of the above findings decree for possession in respect of suit property bearing no. Block-B, Plot No. 1 behind D.T.C. Depot, Desh Bandhu Gupta Road, Karol Bagh, New Delhi (Shown as Red in site plan Ex. PW1/9) is passed in favour of plaintiffs and against defendant.
A decree for mandatory injunction directing the defendant to demolish the tin shed or any other construction in the suit property also passed in favour of plaintiffs and against defendant. Money decree for a sum of Rs. 3600/- alongwith pendentelite and future interest @ 6% till date of payment is also passed in favour of plaintiffs and against defendant.
Decree sheet be prepared accordingly. Costs are awarded in favour of plaintiffs.
However before closing this case, I am unable to keep my eyes off from the famous maxim "Justice delayed is Justice denied". The Pages: 22/23 Suit No. 121A/02 -23- Dated : 01/08/2011 present suit was instituted in the year 1982 and is decreed in year 2011. This case has seen seasons in trial court for around 29 years and approaching the appellate court is still a legal remedy which is available to the parties. Pendency of huge number of cases can never be made an excuse to run away from expeditious disposal of cases. Solus Populi Suprema Est lex means welfare of people is paramount law. But giving a decision after 29 years cannot be said to be a welfare exercise. A sincere effort is required on part of all of us to provide expeditious disposal to old cases. The delay in decisions may kill the legislative intent and there is huge possibility of suit becoming infructuous. As I have written this judgment, I shoulder all the responsibility on behalf of all my Ld. Predecessors for delay caused in present case and will endeavour in future to give speedy justice to litigants.
File be consigned to record room as per rules.
Announced in the open (Abhilash Malhotra)
court on 01/08/2011 Civil Judge, Central-02
Tis Hazari Courts, Delhi
Pages: 23/23