Delhi District Court
Shri Rahees Ahmed vs Kadir Ahmed on 21 May, 2024
IN THE COURT OF SH. AASHISH GUPTA, DISTRICT
JUDGE-01, NORTH EAST, KARKARDOOMA COURTS:
DELHI
RCA DJ No. 19/2022
CNR No. DLNE01-003591-2022
Shri Rahees Ahmed
s/o late Sh. Nasir Ahmed
r/o C-6 H Block,
Gali no. 24, Ghonda Chauhan Bangar,
Seelampur, Delhi-53 .....Appellant
Versus
Kadir Ahmed
s/o late Sh. Nasir Ahmed
r/o C-6 H Block,
Gali no. 24, Ghonda Chauhan Bangar,
Seelampur, Delhi-53 .....Respondent
Date of institution of the appeal : 04.11.2022
Date on which order was reserved : 20.05.2024
Date of decision : 21.05.2024
JUDGMENT
1. The present appeal filed by the appellant/defendant assailing the judgment and decree dated 27.08.2022 (hereinafter referred to as "the impugned judgment") passed by Ld. ASCJ/GJ/JSCC, North-East, KKD Courts, Delhi. For the sake of convenience, parties will be referred by their original status. The appellant shall be referred as defendant whereas the respondent shall be referred as plaintiff.
2. Vide impugned order, the suit of the plaintiff was decreed RCA DJ No. 19/2022 Page no. 1 of 23 thereby directing the defendant to remove himself and his belongings from the suit property and to hand over the vacant possession of the suit property to the plaintiff. The defendant was also restrained from creating third party in the suit property. The plaintiff was also granted mesne-profits/damages at the rate of Rs.2500/- per month from the date of filing of suit till the date of the decree and Rs.3000/- per month were awarded from the date of decree till the handing over the possession of the suit property to the plaintiff.
Factual Matrix
3. The plaintiff and defendant are real brothers. The plaintiff claims himself to be registered owner of the entire property bearing no. C-6, H Block, Lane no.24, Ghonda Chauhan Banger, Seelampur, Delhi. It is stated that out of love and affection the defendant was allowed to reside in one room at the first floor of the property bearing no. C-6, H Block, Lane no.24, Ghonda Chauhan Banger, Seelampur, Delhi (hereinafter as 'suit property'). It is stated that the defendant started misbehaving with the plaintiff for which vide legal notice 14.08.2015 the license of the defendant was terminated and he was asked to hand over the vacant possession of the suit property to the plaintiff. It is stated that despite service of legal notice the defendant not vacated the suit property and hence the present suit.
4. The defendant opposed the suit by filing the written statement wherein it is stated that the present suit is barred by Section 4 of Benami Transaction of Prohibition Act as the property in question was purchased by the mother of the plaintiff and defendant namely late Smt. Saddiqan in the name plaintiff RCA DJ No. 19/2022 Page no. 2 of 23 and Samshad Ahmed who was the husband of her daughter. It is stated that the consideration amount of suit property was Rs.1700/- which was paid by the mother of plaintiff and defendant when she vacated the tenanted premises bearing no.1085, Sadar Nala road, Sadar Bazar, Delhi-110006 and the landlord had paid the sum of Rs.1500/- to her in the year 1969. It is stated that out of entire consideration amount of Rs.1700/- the major part of Rs.1500/- came from the amount which was received as the time of vacation of tenanted premises and the remaining Rs.200/- was paid from the joint income of the family. It is stated that in these circumstances defendant became co- owner of the suit property and he was not a licensee.
5. It is further stated that the area of the suit property which is under the possession of defendant comes under the share of the defendant in the suit property. It was further stated that the suit was not valued for the purpose of the court fees and the jurisdiction. It is further stated that there was no partition between Samshad Ahmed and the plaintiff and as such without impleading Samshad Ahmed, the present suit is not maintainable.
6. The defendant denied all the avernment of the plaintiff and prayed for the dismissal of the suit.
7. Vide replication all the avernments of the plaintiff were denied. Thereafter, after the evidence of both parties, the suit of the plaintiff was decreed in terms indicated above.
Grounds of appeal/arguments of appellant/defendant.
8. Ld. Counsel for the appellant argued that the Trial Court committed error while decreeing the suit as it was not appreciated by the Trial Court that the suit property was RCA DJ No. 19/2022 Page no. 3 of 23 purchased by the mother of the parties to the present suit. It was vehemently argued that it was not appreciated that out of entire consideration of Rs.1700/- the major part of the consideration i.e. Rs.1500/- was paid from the amount which the mother of the parties received at the time of vacating the tenanted premises situated at Sadar Bazar.
9. It was further argued that the defendant is in the possession of the part of the suit property in the capacity of co-owner since the property is ancestral property as purchased from joint family funds but in the name of the plaintiff and brother-in-law of parties Samshad Ahmed.
10. It was further argued that Samshad Ahmed was the necessary party to the present suit and without he being impleaded the present suit is not maintainable at all.
11. It was further argued that documents as proved on record by the defendant during the trial reveals that the defendant is in the occupation of the suit property for more than 50 years and as such there was no cause of action in the favour of the plaintiff.
12. It was further argued that the plaintiff was not able to discharge his burden of proof that he and Samshad Ahmed were having the capacity to pay Rs.1700/- as consideration amount when the sale deed was executed in the year 1971 and as such the defendant cannot be said to be the licensee in the suit property.
Arguments on behalf of respondent/plaintiff
13. Ld Counsel for the respondent argued that the present appeal is liable to be dismissed with cost since the impugned judgment is based upon sound appreciation of law and facts. It RCA DJ No. 19/2022 Page no. 4 of 23 was argued that the defendant was allowed to reside in the suit property as licensee out of natural love and affection and thus the defendant cannot himself to be the co-owner of the suit property.
14. It was argued that it is well settled law that a co-owner can maintain a suit for evicting a licensee or trespassers even without impleading the another co-owner in the suit.
15. It was further argued that the defence of the defendant that the suit property was purchased by joint family funds or from the amount which was allegedly received by the mother of the parties at the time of vacating the previous tenanted premises is just a naked avernment and cannot be relied upon.
16. It was further argued that the sale deed is in the name of the plaintiff and the defendant has no right to continue to occupy the suit property and as such the present appeal is liable to be dismissed.
17. I have heard arguments advanced by Ld Counsels for both the parties. In view of the the judgment of Hon'ble Apex Court titled as Sabir Hussain (Dead) through LRs and & ors vs Sayed Mohd Hassan (Dead) through LRs & ors Civil Appeal no. 5049/2009 decided on 06.11.2023, this court being the first appellant court is required to record its findings dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties, while deciding the present appeal.
Points of determination in the present appeal.
18. Considering the pleadings, impugned judgment, appeal filed and arguments advanced at length, the following points of RCA DJ No. 19/2022 Page no. 5 of 23 determination arises in the present appeal:-
a) What was the capacity of the plaintiff/respondent in the suit property?
b) What was the capacity of defendant in the suit property?
c) Whether the property was purchased from joint family funds, which could affect the capacity of the defendant in the suit property or whether the property was purchased as benami in the name of the plaintiff?
d) Whether the suit was maintainable before the Trial Court without impleading Samshad as party to the present suit?
e) Whether the suit for mandatory and permanent injunction was maintainable in the form in which the same was filed before the Trial Court? And
f) Whether the decree of mesne-profit was passed as per law or not?
19. The adjudication of above-mentioned points of determination would decide the entire lis between the parties.
20. The plaintiff relied upon the sale deed qua the suit property which is Ex.PW1/B (OSR). The execution of this sale deed is not in dispute between the parties. As per this sale deed the suit property (though there is a difference in the specification of the suit property yet the identity of the property in question is not in dispute) was purchased by plaintiff Kadir Ahmed and one Samshad Ahmed s/o Sadiq on 12.01.1971 from Sh. Raghbir Singh against the consideration of Rs.1700/-. As per this sale deed the vendor has given the actual physical possession of the suit property to the vendee.
RCA DJ No. 19/2022 Page no. 6 of 23
21. The above-mentioned sale deed makes out that the plaintiff is the co-owner of the suit property. The another owner Samshad is not the party to the present suit. By virtue of proving this sale deed on record, the plaintiff discharged his burden of proof that he is the owner of the suit property. After proving this document the onus shifted upon the defendant to prove that the plaintiff was not the owner of the suit property despite sale deed in his name.
22. The defendant when examined in the court on oath proved on record various birth certificate(s) and Adhar Card(s) of his family members but failed to bring on record any counter title document qua the suit property in his name. The ownership in any immovable property of more than value of Rs.100/- can be created only by virtue of registered sale deed. When there is no sale deed in the favour of the defendant qua the suit property, the alleged ownership rights in the favour of defendant does not exist. Without any document revealing the right, title or interest in the suit property in favour of the plaintiff, the plaintiff cannot claim any ownership title in his favour.
23. The defence taken by the defendant is that the major part of the consideration for the purchase of the suit property i.e. Rs.1500/- out of total Rs.1700/- came from the amount which was received by the mother of the parties when she vacated the previous tenanted premises. For the sake of arguments if this avernment is taken as correct that the part consideration came from the amount which was received by the mother of parties while vacating the tenanted premises then also this fact does not create any ownership in the favour of the defendant.
24. Moreover there is no evidence on record at all that the RCA DJ No. 19/2022 Page no. 7 of 23 mother of the parties received Rs.1500/- while vacating the previous tenanted premises in the year 1969. There is no document on record that the mother of the parties received Rs.1500/- from her previous landlord as a consideration for vacating the tenanted premises. No steps were taken to examine the previous landlord of the mother of parties or the legal heirs of the previous landlord of the mother of the parties who could depose as to payment of any consideration for vacating the tenanted premises. In these circumstances, it is completely a naked avernment without anything to substantiate the same. These kinds of avernments which the party miserably failed to prove on record is of no consequence.
25. It was further stated that remaining consideration of Rs.200/- came from the joint family funds of the property. This is again a naked avernment without any basis whatsoever to prove the same. What was the joint family income of the family, who was maintaining the nucleus of the joint family income, who was contributing what amount in the joint family income and when this Rs.200/- was withdrawn from the joint nucleus fund is nowhere on record. Merely alleging after 40 years of the purchase of the property that part consideration for purchase of the property was paid from joint family funds without bringing any evidence whatsoever for proving the same is of no consequence.
26. Even otherwise, in light of Section 91 and 92 of Indian Evidence Act, 1972, once the plaintiff has proved his title in the suit property on the basis of a registered sale deed, the plea of the defendant are, at best, oral averments which cannot be looked at RCA DJ No. 19/2022 Page no. 8 of 23 by this court. Any oral averment which is contrary to the contents of a written document cannot be taken into consideration in light of the above said provisions. In view of the above, the plea of the defendant qua his ownership is nothing but a sham defence taken up by him to deny possession of the suit property to the plaintiff.
27. The next arguments that the property was purchased as benami in the name of the plaintiff and one Samshad by the mother of the parties is again a submission without anything to prove the same. The mother of the parties could not be examined as she got expired long back before the filing of the present suit. The father of the parties pre-deceased mother of the parties. The defendant was minor at the time of purchase of the property. In these circumstances, the alleged fact that the property was purchased benami in the name of plaintiff and Samshad by the mother of the parties stands not proved.
28. Now coming to the capacity of the defendant in the suit property. It is already discussed that the plaintiff is the owner of the suit property by virtue of sale deed in his name. The avernment as to the suit property being the joint family property stands not proved on record. It is to be appreciated in what capacity the defendant is in the possession of the suit property.
29. Admittedly there is no title document in name of the defendant qua the suit property as such the defendant is not the owner of the property. The defendant is not claiming himself to be the tenant in the suit property. The plaintiff claimed defendant as the licensee in the property in question which is denied by the defendant by declaring himself as the co-owner of the suit property. The alleged co-ownership of the defendant stands not RCA DJ No. 19/2022 Page no. 9 of 23 proved on record. This reveals that the defendant does not have any separate independent title in the suit property and in these circumstances, the only capacity vide which the defendant is occupying the suit property could be of licensee only.
30. The fact that the defendant is occupying the suit property for around 50 years is not something which can change the capacity of the defendant from a licensee to an owner of the suit property. Till date, admittedly, the defendant has not filed any suit for any declaration in his favour regarding any interest in the suit property by virtue of adverse possession, on the basis of alleged joint ownership which he failed to prove in this suit or for any other title in the suit property. Once a licensee in the property is always a licensee no matter what how long could be the length of possession in the property unless there is shift in the capacity of the licensee by executing any document vide which the licensee acquire any separate independent title or interest in the suit property.
31. In the case in hand there is no avernment that in the last 50 years of the defendant being in the possession of the suit property he acquired any ownership in the suit property by any document as per the Transfer of Property Act. The defendant is residing in the suit property for long but in the capacity of licensee only.
32. Now coming to the another objection that the co-owner Samshad Ahmed has not been implead as party in the present suit. In the considered opinion of this court this objection of the defendant is again meritless. It is trite that a co-owner can maintain a suit for possession against licensee or trespasser without impleading the another co-owner. Support in this regard RCA DJ No. 19/2022 Page no. 10 of 23 could be drawn from the full bench judgment of Hon'ble Punjab and Haryana High Court titled as Ajmer Singh (deceased) by LRs vs Samsher Singh & Anrs AIR 1984 Punjab and Haryana 58 wherein it was held that a co-sharer can institute and maintain suit for possession against a trespasser in respect of the entire property without impleading the other co-sharers. The Hon'ble High Court of Allahabad in the judgment titled as Kalan vs The District Judge, Allahabad & Ors AIR 1981 Allahabad 168 also held that the suit for eviction by a co-owner without impleading the co-owner for eviction is maintainable. The Hon'ble High Court of Delhi in the judgment titled as Mahavir Parshad vs Sukhdev Mongia & ors 40 (1990) Delhi Law Times 82 held that a suit for eviction can be maintained by co-owner without impleading another co-owner in the suit. In these circumstances the non impleadment of Samshad Ahmed in the present case was not fatal to the case of plaintiff and as such co-owner Samshad Ahmed was not necessary or proper party to the present suit.
33. Further the suit in the form of the mandatory injunction vide which the relief has been sought that defendant be directed to remove himself from the suit property along with his belonging and to hand over the possession of the suit property to the plaintiff is maintainable. Reliance on this aspect can be placed upon judgment titled as Bharat Bhushan Gupta vs Pratap Narain Verma & Ors (2022) 8 SCC 333 wherein in the similar facts where the plaintiff alleged the defendant to be the licensee and sought mandatory injunction obliging them to remove themselves and their belonging held that the mandatory injunction is maintainable in that form and the valuation of the mandatory injunction is not required to be made at the market RCA DJ No. 19/2022 Page no. 11 of 23 value of the property.
34. In view of the same, it cannot be said that the present suit was not properly valued for the purpose of court fees and jurisdiction. The suit was properly valued both for the purpose of court fees and the jurisdiction. In these circumstances the testimony of DW2 in which he proved the valuation of the property in question is totally irrelevant.
35. Now coming to the aspect of termination of license of defendant by the plaintiff. The plaintiff alleged that vide legal notice dated 14.08.2015 the license of the defendant was terminated. This notice was proved as Ex.PW1/A during the trial. The original postal receipt is also proved by the plaintiff. Further the filing of the present suit is also notice upon the defendant in itself that the plaintiff does not want to keep him as licensee in the suit property. When the license of defendant was terminated he was under obligation to vacate the suit property.
36. Now coming to the last aspect as to the mesne profit granted by the Ld. Trial Court. The Ld Trial Court granted mesne profit at the rate of Rs.2500/- per month from the date of filing of the suit till the date of decree and Rs.3000/- per month from the date of decree till the handing over of the vacant and peaceful possession by the defendant.
37. A person doing something with full knowledge of its adverse consequences must face the consequences. Applying the said principle to cases of continued occupancy despite termination of lease/license, it is to be held that such a person is liable for paying mesne profits and damages at a rate which may be higher than the agreed rent and may be equivalent to the then RCA DJ No. 19/2022 Page no. 12 of 23 the prevalent market rate of rent. It is also a common sight in our litigation system that unscrupulous parties delaying the disposal of cases and even when the landlord succeeds in obtaining a decree for possession in his favour, the execution of such a decree still takes a long time. It is, therefore, necessary for the Courts to remain mindful of such extenuating circumstances and award reasonable mesne profits, as per the prevailing market rent. It is further to be noted that even grant of enhanced mesne profits, in such circumstances, to accommodate the loss of rent endured during the pendency of the suit proceedings cannot be deemed as granting relief beyond the pleadings of the parties. A substantive right of this nature cannot be diluted on the pretext of a technicality and a landlord of the suit property cannot be estopped from claiming a larger sum as mesne profits than what was claimed in the plaint.
38. It would be appropriate to first refer to Section 2(12) of the CPC, which defines mesne profits and also to Order XX Rule 12 CPC, which prescribes the procedure to be followed by the Court while dealing with a claim for grant of mesne profits. These aforesaid provisions read as under:-
"Section 2(12) "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;"
"Order XX Rule 12:-Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immovable property RCA DJ No. 19/2022 Page no. 13 of 23 and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until--
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry."
39. The calculation of mesne profits always involves some guesswork and the Courts in several cases, taken judicial notice of the prevalent market rents of different areas within the city while awarding mesne profits. Rents may vary based on location of properties, nature of construction, a period of construction, purpose/user for which the premises are let, variation between demand for tenanted premises and availability of premises and RCA DJ No. 19/2022 Page no. 14 of 23 even factors relating to the position of the economy. In this regard, reference may be made to judgment of Suman Verma & Ors V. Sushil Mohini Gupta & Ors - 2014 (10) DRJ 595 wherein it was held as under:-
"(a) though undoubtedly the Division Bench of this Court in National Radio & Electronic Co. Ltd. supra has held that judicial notice, only of a general increase in rent in the city of Delhi and not of the rates of rent, in the absence of proof thereof can be taken but it cannot be lost sight of that the Courts are for doing justice between the parties and not for, on hyper technicalities, allowing the parties to suffer injustice.
b) the property of the respondents/plaintiffs which the appellants/defendants are admittedly in unauthorized occupation of, is situated in one of the poshest colonies of the city of Delhi, properties wherein fetch high rentals and which only the elite, affluent, expats and foreigners are able to afford.
(c) the said property is a independent bungalow constructed over 400 sq. yd. of land and comprising of two and a half floors.
(d) the calculation of mesne profits always involves some amount of guess work, as held by this court in International Pvt. Ltd. Vs. Saraswati Industrial Sundictes Ltd. (1992) 2 RCR 6, M.R. Sahni Vs. Doris Randhawa and reiterated in Consep India Pvt.
Ltd. supra and applicability of prevalent rents in the city and of which the Judges manning the Courts and who are born and brought up in the same city, are generally aware of.
e) The Division Benches of this court in Vinod RCA DJ No. 19/2022 Page no. 15 of 23 Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 32 and S.Kumar Vs. G.K. Kathpalia 1991 (1) RCR 431, taking judicial notice, refused to interfere with the rate of mesne profits even where the landlord had not led any documentary evidence. Notice of such increase has also been taken by the Supreme Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18."
40. It is important to note that the list of facts mentioned in Section 57 of the Indian Evidence Act, 1872 of which the Court can take judicial notice is not exhaustive and indeed the purpose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. In the case titled M.C. Agrawal Vs. Sahara India and Ors., 183 (2011) DLT 105, Hon'ble High Court of Delhi has held that in absence of any evidence led by the landlord in respect of rent prevalent in the area even then judicial notice of increase of rent in urban areas can be taken by applying Sec.114 and Sec.57 of Evidence Act, 1872. In the aforesaid case an increase of 15% every year was awarded to the landlord for illegal occupation. The relevant portion of the aforesaid judgment reads as:
"8. What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area If there is no registered lease deed for a fixed period of three years, then, the tenant continues to stay in the premises, not because of any relationship of landlord and tenant pursuant to a lease of three years but only as an unauthorized occupant after the expiry of lease period by efflux of time. I therefore do not agree RCA DJ No. 19/2022 Page no. 16 of 23 with the argument of the learned counsel for the tenants and I hold that since in this case tenancy expired by efflux of time on 30.11.2000 and the suit was filed on 3.4.2001, clearly, the tenant would become liable to pay mesne profits from 1.12.2000. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Connaught Place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 3.4.2005. I rely upon and refer to a Division Bench judgment of this Court in the case of S. Kumar v. G.R. Kathpalia 1999 RLR 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent."
41. In the case of National Radio and Electronic Co. VMotion Pictures Associations-122 (2005) DLT 629(DB), the Division Bench of Hon'ble Delhi High Court observed as under:-
"31. We find that this Court has in several cases taken judicial notice of the factum of increase of RCA DJ No. 19/2022 Page no. 17 of 23 rent and made awards of mesne profits and damages. Noteworthy in this behalf is a judicial pronouncement of the Division Bench reported at (supra) entitled Vinod Kumar v. Bakshi Sachdev.........
21........It is true that no substantial evidence has been led by the plaintiff in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court making judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D.C. Oswal v. V.K. Subbiah.
22. In that view of the matter we have no hesitation in our mind in holding that the Trial Court did not commit any illegality in taking judicial notice of the fact of increase of rents and determining the compensation in respect of the suit premises........"
42. The question as to whether the plaintiff can be awarded future mesne profits at a rate higher than what has been claimed in the plaint has been dealt with in various decisions. In the case of Santosh Arora Vs. M. L. Arora -2011 (2014) DLT 312 where the Division Bench of Delhi High Court held that the rate of mesne profits, is to be determined by evidence and is not a matter of contract. The relevant portion of the judgment reads as under:-
RCA DJ No. 19/2022 Page no. 18 of 23 "25. The Supreme Court in Gopalakrishna Pillai Vs. Meenakshi Ayal AIR 1967 SC 155 has held:-
"With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit.."
It is for this reason only that payment of Court Fees of future mesne profits decreed is a condition to the execution thereof and is not to be paid at the time of institution of the suit. At the time of institution of the suit and which often remain pending for long, it is not possible for the plaintiff to state as to what benefits the defendant in wrongful possession of the property would receive from time to time.
27. In our opinion the plaintiff in such a situation would be entitled to such higher rate since he was not obliged to make a claim for future mesne profits, not obliged to pay Court Fees thereon and could not have in any case known to future mesne profits at what rate he would be entitled to as observed by the Supreme Court in Gopalakrishna Pillai supra. Once it is held to be the duty of the Court under Order 20 Rule 12 to award future mesne profits even without a specific prayer in this regard, the specific prayer even if made by the plaintiff cannot limit the entitlement of the plaintiff to future mesne profits.
29. The Division Bench of the Calcutta High Court in Gauri Prosad Koondoo Vs. Reily ILR 9 Cal 112, High Court of Andhra Pradesh in Magunta Kota Reddy Vs. Pothula Chendrasekhara Reddy AIR 1963 AP 42 and the High Court of the Rajasthan in Prithvi Singh Vs. Pahap Singh MANU/RH/0369/2006 have also held that a plaintiff is not estopped from claiming a larger sum as mesne profits than what was claimed in the plaint."
RCA DJ No. 19/2022 Page no. 19 of 23
43. It is also settled proposition of law that interest forms an integral part of the mesne profits and, therefore, once the Court awards mesne profits, the interest accruing thereon has to be allowed in the computation of the mesne profits itself. A tenant cannot be permitted to urge that mesne profits which in fact ought to have been paid years ago, should not bear any interest. In the case of Consep India Pvt Ltd V CEPCO Industries Pvt Ltd
-(2010) ILR 3 Del 766 wherein the Hon'ble Delhi High Court, after examining the decision of the Hon'ble Supreme Court in State Bank of Bikaner and Jaipur v. I.S. Ratta and Ors.- 120 (2005) DLT 407, observed that interest is an integral part of the mesne profits and, therefore, the same has to be allowed in the computation of mesne profits itself.
44. A common vein of the judgment is that mesne profits, which a landlord is entitled to receive from a tenant who is continuously in the occupation of the lease property despite the termination of the lease, has been laid down to mean the rate of rent which would otherwise, accrue on a suit premises during the period of its illegal occupation by a tenant. However, the burden which the Courts are often tasked with is to determine the appropriate amount payable to the landlord towards such mesne profits. This process of determination of mesne profits begins with the landlord discharging the onus placed upon him to prove his claim for mesne profits, in accordance with the law. Thereafter, it is for the Court to ascertain the appropriate mesne profits to be awarded to the claimant by adhering to the parameters as set out in Order XX Rule 12 CPC which prescribes that while passing the decree for possession, the Court may either RCA DJ No. 19/2022 Page no. 20 of 23 straightaway pass a decree for mesne profits or direct that an inquiry be conducted for assessing the rate of mesne profits payable. If the Court finds that it is sufficient and authentic evidence available on record for determination of the landlord's claim for mesne profits, the Court may, in its discretion, award the same by relying on such evidence. In the alternative, in situations when the Court finds that the evidence brought on record is not sufficient for such determination, the court may direct that an inquiry be conducted thereto, in accordance with the provisions of the CPC and/or take judicial notice under Section 114 and 57 of the Evidence Act, 1872.
45. In the case in hand the plaintiff had not lead any affirmative evidence as to how he claimed Rs.5000/- per month as mesne-profits from the filing of the suit till the handing over the possession of the suit property to the plaintiff. In what circumstances and on what basis the plaintiff arrived at the figure of Rs.5000/- per month is not clear. In these circumstances the entitlement of the plaintiff of mesne-profits at the rate of Rs5000/- per month as claimed by him is not made out.
46. The careful appreciation of the testimony of the defendant on the aspect of what could be rate of rent of the area of the property which is under in possession of the tenant there is an admission of the defendant. The defendant when stepped into the witness box as DW1 deposed that the rate of rent of the portion which is under in his possession is around Rs.2000/- per month. Even this admission of the defendant makes out that the plaintiff is entitled to Rs.2000 per month minimum from the defendant.
RCA DJ No. 19/2022 Page no. 21 of 23
47. The aspect of inflation is also to be taken care of while granting mesne profits in view of the aforesaid judgments of the Hon'ble High Court and Hon'ble Apex Court. The mesne profits as fixed by the Ld. Trial Court at the rate of Rs.2500/- per month from the date of filing of the suit till the date of the decree and Rs.3000/- per month from the date of decree till the handing over the possession by the defendant is fair and reasonable. Accordingly the finding of Trial Court on this aspect is found correct.
48. Accordingly, in view of the discussion, the points of determination in the present appeal are answered as follows:-
a) The plaintiff is the owner of the suit property;
b) The capacity of the defendant in the suit property was of licensee of the plaintiff;
c) The property in question is not proved to be the joint family property;
d) The license of the defendant has been terminated by the plaintiff for which he is under obligation to vacate the property and to hand over the possession to the plaintiff;
e) The alleged plea of benami transaction of the defendant stand not proved on record;
f) The suit in the form of permanent and mandatory injunction was maintainable and appropriate court fees was paid;
and
g) The aspect of mesne-profit was correctly dealt by the Ld. Trial Court.
RCA DJ No. 19/2022 Page no. 22 of 23 Conclusion
49. In view of above-mentioned findings, there is no illegality in the impugned judgment of Ld. Trial Court. Accordingly, the present appeal is hereby dismissed. No order as to cost. Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present appeal be consigned to record room.
Typed to the direct dictation and (Aashish Gupta) announced in the open court District Judge-01, North-East on this 21st May, 2024 KKD Courts, Delhi RCA DJ No. 19/2022 Page no. 23 of 23