Delhi District Court
Gopal Gupta vs Sh. O.N. Sharma on 1 August, 2011
IN THE COURT OF MS. NEHA PALIWAL, DELHI CENTRAL06,
TIS HAZARI COURTS, DELHI
SUIT NO. 51/10/91
Unique Case ID no. : 02401C1356772007
In the matter of :
Gopal Gupta
(Earlier a minor),
Suit instituted by Sh. Rajkishore Gupta,
as his next friend,
R/o House no. 3361, Kucha Kasgiri, Bazar Sita Ram, Delhi ..... Plaintiff
V.
1. Sh. O.N. Sharma
S/o Late Sh. Triloki Nath Sharma
R/o 2761, Gali Peepal Mahadev
near Baradari Sher Afghan, Delhi110006.
2. Sh. Ramesh Sharma,
S/o Late Sh. Triloki Nath Sharma
R/o 2761, Gali Peepal Mahadev
near Baradari Sher Afghan, Delhi110006.
3. Mrs. R.L. Sharma
D/o Late Sh. Gopal Krishan Sharma,
R/o 27, Aarakashan Road, Paharganj,
New Delhi.
4. Sh. Prithvi Nath Sharma,
Suit no. 51/10/91
Gopal Gupta v. O.N. Sharma Page 1 of 63
s/o Late Sh. Gopal Krishan Sharma,
r/o Gali Jhankarwali, Faridabad (Haryana) .... Defendants
Date of institution of the suit : 16.04.1991.
Date of receipt of this case in this court : 18.09.2010.
Date of reserving Judgment/Order : 26.07.2011.
Date of pronouncement : 01.08.2011.
JUDGMENT
1. By filing the present suit the Plaintiff is seeking the relief of possession and recovery of mesne profits from the Defendants.
2. Briefly as per the plaint the case of the Plaintiff is as under: Plaintiff being a minor at the time of institution of the suit has filed this suit through his next friend Sh. Raj Kishore Gupta who is his natural father however the Plaintiff is the adopted son of Late Sh. Gir Parshad. It is averred that Smt. Sona Devi, w/o Late Sh. Gir Prashad was the owner of three storeyed property no. 2761, Peepal Mahadev, near Baradari Sher Afgan Khan, Hauz Qazi, Delhi (herein after known as the suit property) as per the sale deed dated 26.10.1970, registered on 27.10.1970.
3. It is the case of the Plaintiff that Smt. Sona Devi had no child of her own and Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 2 of 63 therefore Sh. Raj Kishore Gupta, the next friend of the Plaintiff being the grand son of the sister of Smt. Sona Devi was brought up by Smt. Sona Devi as her own son and she also performed his marriage. Plaintiff is the natural son of Sh. Raj Kishore Gupta and Smt. Sona Devi adopted him as her son on 17.10.1980, according to Hindu rites. She acknowledged the factum of the adoption of the Plaintiff in her last will dated 16.07.1981, registered on the same day as per which she bequeathed all her movable and immovable properties in favour of the Plaintiff. It is averred by the Plaintiff that Smt. Sona Devi died on 09.07.1983 and on her death the Plaintiff has become the absolute owner of the suit property being her adopted son as well as on the basis of the will dated 16.07.1981.
4. It is further averred that the Plaintiff has obtained a Probate of the said will from the court of Ld. District Judge in Probate case no. 246/85. It is the case of the Plaintiff that Sh. Gopal Krishan Sharma was a tenant under Smt. Sona Devi in respect of the suit property at a monthly rental of Rs 31/ for residential purposes, however vide notice dated 18.05.1971 his contractual tenancy was terminated. He died on or about 26.12.1971 as a statutory tenant leaving behind his widow Smt. Lakshmi Devi and two sons Sh. Triloki Nath Sharma and Sh. Prithvi Nath Sharma and a daughter Mrs. R.L. Sharma as Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 3 of 63 his legal heirs. It is the case of the Plaintiff that on the death of Sh. Gopal Krishan only his widow inherited the tenancy rights for her life time as provided in Section 2(l) of the Delhi Rent Control Act. It is further averred that in 1978 Smt. Sona Devi filed a eviction petition against Smt. Lakshmi Devi for eviction from the suit premises, u/s 14(1)(e) read with section 25(B) of the Delhi Rent Control Act being eviction case no. 202/78 wherein it was specifically mentioned that on the death of Sh. Gopal Krishan his widow alone has become the tenant in the premises and no other legal heir of Sh. Gopal Krishan had inherited the tenancy rights.
5. It is the case of the Plaintiff that with a view to avoid any complications the sons and daughter of Late Sh. Gopal Krishan Sharma are impleaded as Defendants in the present case. It is further averred that in the eviction matter it was held by the Ld. Additional Rent Controller vide his judgment dated 24.12.1981 that the joint family was not the tenant but Shri Gopal Krishan was the tenant with respect to the suit premises and his contractual tenancy was terminated vide notice dated 18.05.1971. The said eviction petition was dismissed as Smt. Sona Devi was not able to show her bonafide requirement of the suit property. It is further averred that against that judgment a civil revision no. 382 of 1982 was filed by Smt. Sona Devi however during its pendency she Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 4 of 63 died. Thereafter an application was filed by Sh. Raj Kishore Gupta to get himself impleaded as the legal representative of Smt. Sona Devi on the plea that he was her adopted son. However on 29.04.1985, the Hon'ble High Court of Delhi gave a finding that Sh. Raj Kishore Gupta was not the adopted son of Smt. Sona Devi and therefore the revision petition was dismissed as abated. It is further the case of the Plaintiff that after the said judgment of the Hon'ble High Court of Delhi in Civil Revision, Smt. Lakshmi Devi also died and as under the law her tenancy was not heritable it came to an end and therefore the Defendants are the unauthorized occupants in the suit premises. Defendant no. 1 and 2 are in actual and physical possession of the suit property and Defendant no. 3 is residing with her inlaws and Defendant no. 4 is also residing in Gali Jhankar Wali, Faridabad, Haryana.
6. It is the case of the Plaintiff that none of the Defendants have inherited the tenancy rights of Smt. Lakshmi Devi and therefore after her death have no right to remain in possession. Thus, it is averred that the possession of the Defendants is illegal and unauthorized and they are to hand over the vacant and peaceful possession of the suit property to the Plaintiff. It is further averred that despite the fact that the Plaintiff had asked the Defendants to vacate the suit premises the Defendants have not complied Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 5 of 63 with the Plaintiff's demand and are still holding over the suit property. Therefore the present suit is filed by the Plaintiff wherein he is further claiming mesne profits @ Rs. 500/ p.m. from the date of death of Smt. Lakshmi Devi till the time the Defendants actually and physically deliver vacant and peaceful possession of the suit property to the Plaintiff. The Plaintiff is claiming mesne profits with effect from 1.09.1989, as the Plaintiff pleads ignorance to the exact date of death of Smt. Lakshmi Devi. Thus the Plaintiff has prayed that a decree of possession be passed in his favour and against the Defendants with respect to the suit property and further a decree of recovery of Rs 9500/ be also passed in his favour and against the Defendants on account of mesne profits for the period from 1.09.1989 to 31.03.1991 @ Rs 500/ p.m. The Plaintiff is further praying for future mesne profits @ Rs. 500/ p.m. till the Defendants actually and physically deliver the vacant and peaceful possession of the suit property to him.
7. Written Statement was filed on behalf of Defendant no. 1 and 2 wherein preliminary objections were taken by the Defendants that the present suit is not maintainable against the Defendants as they are tenants in the suit property and even Smt. Sona Devi had admitted and recognized them and their predecessors as tenants of the suit property in eviction petition no. 202/1978 and in civil revision no. 382/1982. Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 6 of 63 Thus, it is their case that their rights are protected under the Delhi Rent Control Act and therefore they cannot be evicted from the suit premises on any grounds except the grounds mentioned u/s 14(1) of the Delhi Rent Control Act and thus, the present suit is also barred under the provisions of Section 50 of the Delhi Rent Control Act.
8. It is further the case of the Defendants that Master Gopal Gupta is not the adopted son of Smt. Sona Devi and therefore the present suit filed through Sh. Raj Kishore Gupta as next friend is not maintainable as Smt. Sona Devi has died issueless and without any legal heirs. It is their case that the property passes to the Government there being no heir at the time of the death of Smt. Sona Devi. Thus, it is their case that the Plaintiff has got no locus standi to file the present suit as neither the Plaintiff is the adopted son nor Smt. Sona Devi had executed any will in his favour. It is further averred that the suit is bad for non joinder of necessary parties as all the legal heirs of Smt. Lakshmi Devi and Shri Triloki Nath Sharma are not made Defendants in the present matter and further more Sh. Prithvi Nath Sharma and Smt. R.L. Sharma are not in actual possession of any portion of the suit premises. It is further their case that the Plaintiff is further estopped by rule of estoppel as he is claiming his title as the alleged successor of Smt. Sona Devi to plead that the Defendants are not tenants as Smt. Sona Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 7 of 63 Devi in the eviction petition has specifically admitted Defendants no. 1 to 4 as her tenants in the suit property and therefore the present suit is liable to be dismissed.
9. In their reply on merits the Defendants have denied the contentions of the Plaintiff as stated in the plaint and have averred that the Plaintiff is neither the adopted son of Late Sh. Gir Prasad nor any will was executed in his favour by Smt. Sona Devi. It is their case that Smt. Sona Devi has died intestate and issue less, thus leaving behind no legal heirs. Thus the Defendants deny the existence of any genuine registered will left by Smt. Sona Devi. It is thus their case that the Plaintiff is not the owner of the suit property as he is not the adopted son and no will was ever executed by Smt. Sona Devi in his favour. It is averred that the probate, if any, was obtained by the Plaintiff by fraud and therefore the Defendants are not bound by the decision of the said probate case. It is further their case that an application u/o 22 rule 3 and 11 read with Section 151 CPC dated 28.07.83 being CM no. 2457 of 1983 was preferred by Sh. Raj Kishore Gupta, the next friend of the Plaintiff, claiming himself to be the adopted son of deceased Smt. Sona Devi in Civil Revision no. 382/1982 which was filed by Smt. Sona Devi in her lifetime and this application was duly supported by an affidavit of the next friend of the Plaintiff. It is thus the case of the Defendants that till the order in that civil revision was Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 8 of 63 pronounced Sh. Raj Kishore Gupta maintained and pleaded himself to be the adopted son and only legal heir of Smt. Sona Devi. That order was pronounced on 29.04.1985 and the alleged will is dated 16.07.1981. It is thus averred that therefore Shri Raj Kishore Gupta is estopped from pleading otherwise either as a next friend or in any other capacity. It is further the case of the Defendants that Sh. Gopal Krishan Sharma was a tenant under Smt. Sona Devi in respect of the suit property however and after his death Smt. Sona Devi accepted all the legal heirs of Sh. Gopal Krishan Sharma as tenants of the suit property and therefore after the death of Smt. Lakshmi Devi, wife of Late Sh. Gopal Krishan Sharma the tenancy rights have passed and succeeded to her legal heirs in accordance with law. Similarly after the death of Sh. Triloki Nath Sharma his legal heirs have inherited the tenancy rights in the premises in accordance with law. Thus the Defendants deny that contractual tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.05.1973.
10. It is further the case of the Defendants that as Sh. Raj Kishore Gupta, the next friend of the Plaintiff had failed in his attempts to get himself declared as an adopted son of Smt. Sona Devi he has now falsely and frivolously introduced the Plaintiff only to play fraud on the court. It is further their case that Smt. Sona Devi in the eviction Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 9 of 63 petition has admitted the sons, daughter and wife of Sh. Gopal Krishan Sharma as the tenants and therefore the Plaintiff cannot plead otherwise. It is further their case that through out the proceedings before the Ld. Additional Rent Controller, Delhi and before the Hon'ble High Court of Delhi it was the case of Smt. Sona Devi that Sh. Raj Kishore Gupta is her adopted son and till her death she had maintained this plea.
11. Thus it is the case of the Defendants that tenancy rights of Smt. Lakshmi Devi have passed to legal representatives in accordance with law. She was a co tenant along with Sh. Triloki Nath Sharma, Sh. Prithi Nath Sharma and Smt. R.L. Sharma. Thus it is their case that they are not bound to vacate and handover the possession of the suit premises to the Plaintiff. It is further their case that as the Plaintiff has got no right to ask the Defendants to vacate and deliver the possession of the premises to him and therefore the Defendants are not liable to pay any mesne profits even @ Rs. 500/ p.m. or at any other rate to the Plaintiff. Thus, it is their case that no cause of action in favour of the Plaintiff and thus have prayed that the suit of the Plaintiff be dismissed.
12. Replication was filed by the Plaintiff to the written statement of Defendant no. 1 and 2 wherein the Plaintiff denied the preliminary objections taken by the Defendants and denied the case of the Defendants as stated in the written statement and reiterated Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 10 of 63 the contents of the Plaint in its entirety. It is further averred that the right of property of the Plaintiff cannot be affected by the omission of Smt. Sona Devi in mentioning that the Plaintiff was her adopted son. It is his case that Defendant no.1 to 4 were never accepted as tenants in the suit property by any court. It is further his case that the Defendants cannot challenge the grant of probate in favour of the Plaintiff as a probate was granted in probate case no. 246 of 1985 and it is a judgment in rem and is binding on all. It is further his case that will was executed by Smt. Sona Devi and in that it was specifically referred that Plaintiff is her adopted son. Thus, any statement made by Smt. Sona Devi contrary to a document executed by her is not binding upon the Plaintiff. Thus the Plaintiff has prayed that his suit be decreed.
13. Defendant no.3 and 4 were served by way of publication in the present matter however they chose not to appear and contest the present suit.
14. Issues were framed in this matter on 23.11.1993 and they are as under:
1. Whether the suit is barred under Section 50 of DRC Act? (OPD).
2. Whether the suit is bad for non joinder of the parties if so, its effect (OPD).
3. Whether the Plaintiff is adopted a son of Smt. Sona Devi if not to what effect? (OPD).
Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 11 of 63
4. Whether the Defendant are tenants in the suit property? (OPD).
5. Whether the Plaintiff is entitled to the possession of the disputed property? (OPP).
6. Whether the Plaintiff is entitled to recover the mesne profits from the Defendants, if so, at what rate and to what extent? OPP.
7. Relief.
15. Plaintiff in support of his case examined five witnesses. PW1 Sh. Irshad Ahmad was witness to the site plan who exhibited the site plan as PW1/1. PW2 was Sh. Jai Krishan who was the witness with respect to the rate of rent as per market rate of the suit premises. PW3 Sh. Raj Kishore Gupta was the next friend of the Plaintiff. PW4 was Plaintiff itself and PW5 was the mother of the Plaintiff.
16. In the present matter, when examination in chief of PW3 was going on matter was adjourned sine die vide order dated 15.04.2004 on the request of the Plaintiff with a liberty to the Plaintiff to revive the same in accordance with law after the matter pending in the Hon'ble High Court of Delhi is disposed off, which pertained to the challenge of the order of the Ld. Additional District Judge with respect to the dismissal of the petition of the Defendants seeking revocation of the probate of Will. Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 12 of 63
17. Thereafter an application for revival of the suit was moved by the Plaintiff on 11.10.2006 and vide order dated 6.07.2007, the application of the Plaintiff u/s 151 CPC for reviving the present suit was allowed and the suit was accordingly revived. The Plaintiff has also moved an application U/o 32 rule 11 and 12 which was also allowed vide order dated 15.07.2008 and vide that order the title of the suit was also corrected as under:
"Gopal Gupta, Late a minor by Sh. Raj Kishore Gupta, his next friend but now having attained majority".
However as the said title is not correct in grammatical terms the title of the suit is now corrected at the stage of pronouncing final judgment and the title would be as under:
"Gopal Gupta (Earlier a minor), Suit instituted by Sh. Rajkishore Gupta, as his next friend"
18. After the revival of the matter, PW3 was further examined in chief and cross examined and PW4 and PW5 were also examined.
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19. PW3 in his examination in chief has exhibited the following documents:
1. Ex. PW3/1 - Copy of the sale deed and PW3/1A Certified copy of the sale deed.
2. Ex. PW3/2 - Certified copy of the will dated 16.07.1981.
3. Ex. PW3/3 - Certified copy of the judgment of the court of Sh. P.K.Bahri, Ld. District Judge in probate case no. 246/85.
4. Ex. PW3/4 - Certified copy of grant of Probate in probate case no. 246/85 in favour of Sh. Raj Kishore Gupta.
5. Ex. PW3/5 - Certified copy of the Judgment of the court of Sh. G.P. Mittal, Ld. Additional District Judge in MPC4/2011 titled as O.N. Sharma and others V. Raj Kishore Gupta and others.
6. Ex. PW3/6 - Certified copy of the Judgment of the court of Sh.V.B.Gupta, Ld. Additional Rent Controller in Suit no.E202/78.
20. PW3 in his cross examination has been confronted with the following documents :
1. Ex. PW3/D1 - Affidavit of PW3 in Civil Revision no. 382/82 dated 28.07.1983.
2. Ex. PW3/D2 - Application u/o 22 rule 3 and section 11 and Section 151 on behalf of PW3 in Civil Revision no. 382/82 dated 28.07.1983. Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 14 of 63
3. Ex. PW3/D3 - Rejoinder on behalf of PW3 to the reply filed by the respondents to the application under order 22 rule 3 in civil revision no. 382/82 dated 6.01.1984.
4. Ex. PW3/D4 - Affidavit of PW3 in Civil Revision no. 382/82 annexed with the rejoinder dated 6.01.1984.
5. Ex. PW3/D5 - Amended memo of parties in civil revision no. 382/82 dated 21.03.1984.
6. Ex. PW3/D6 - Amended written statement of PW3 in litigation titled as Sh. Shyam Sunder Sharma V. Shri Raj Kishore Gupta.
21. In the present matter, an application u/o 7 rule 14 was also moved by the Plaintiff for placing on record additional documents which was allowed vide order dated 6.11.2008. Another application of the Plaintiff under order 26 rule 9 was also disposed off vide order dated 17.11.2008 whereby the application for reconstruction of document i.e sale deed of Smt. Sona Devi which was Ex.PW3/1 and which was not traceable on record was disposed off as the certified copy of the same was taken on record vide order dated 6.11.2008.
22. PW4 in his affidavit has relied upon and exhibited the following documents: Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 15 of 63
1. Ex. PW4/1 - Election ID card (OSR).
2. Ex. PW4/2 - Driving license (OSR).
3. Ex. PW4/3 - PAN Card (OSR).
4. Ex. PW4/4 - Identity Card of Zakir Hussain Evening College (OSR).
5. Ex. PW4/5 - Identity Card of School (OSR).
6. Ex. PW4/6 - Passing Certificate of 10th Class (OSR).
7. Ex. PW4/7 - Passing Certificate of 12th Class (OSR).
8. Ex. PW4/8 - Character Certificate of Zakir Hussain Evening College (OSR).
9. Ex. PW4/9 - ID Card of Directorate of Employment (OSR).
10.Ex. PW4/10 - Property tax mutation fees receipt (OSR).
11. Ex. PW4/11 - Mutation certificate of the property in favour of the Plaintiff (OSR).
12.Ex. PW4/12 - Property Tax Receipt(OSR).
13.Ex. PW4/13 - Property Tax Receipt(OSR).
14. Ex. PW4/14 - Property Tax Receipt (OSR).
15.Ex. PW4/15 & PW4/16 - Certified copy of the petition and written statement in the eviction case no. 202/78 titled as Smt. Sona Devi v. Smt. Gopal Krishan Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 16 of 63 Sharma.
16.Ex. PW4/17 - Certified copy of notice dated 3.05.1977.
17. Ex. PW4/18 - Certified copy of copy of reply dated 11.10.1977 coupled with certified copies of the postal receipts and AD cards.
23. In the present matter, an application u/o 16 rule 1 was also moved by the Plaintiff however vide order dated 24.09.2010 on the request of the counsel of the Plaintiff the application was put in abeyance. As till the stage of final arguments that application is not pressed upon by the counsel of the Plaintiff, the application is disposed off as such. Another application u/s 151 CPC for filing additional list of witnesses and another application u/s 151 CPC for making correction in the evidence recorded on 13.01.2010 was also dismissed as withdrawn vide order dated 24.09.2010.
24. Thereafter an application u/o 6 rule 17 was moved by the Defendants which was dismissed vide order dated 15.03.2011.
25. Defendants in support their case have examined one witness Sh. O.N. Sharma, who is Defendant no. 1 in the present case as DW1. He in his affidavit has exhibited the following documents:
1. DW1/1 - Judgment of Hon'ble High Court of Delhi in RSA no. 169/2007 and CM Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 17 of 63 Application no. 8676/2007 titled as Raj Kishore v. Shyam Sunder Sharma now represented by Sh. Ramesh Chand Sharma.
2. Ex. DW1/2 - Certified copy of memo of parties in the petition under Article 227 of the Constitution of India in Civil Miscellaneous main petition no.86/2011 in the matter of Gopal Gupta v. State.
3. Ex. DW1/3 - Certified copy of the Petition under article 227 of the Constitution of India in Civil Miscellaneous main petition no.86/2011 in the matter of Gopal Gupta v. State.
26. In his cross examination DW1 was confronted with the following document:
1. Ex. DW1/P1 - Deposition of Defendant no. 1 Sh. O.N. Sharma in eviction petition no. E 202/78.
27. On 11.08.2009, the original case file bearing no. CR382/82 was brought by the Senior Judicial Assistant and the certified copy of the relevant documents from this file were exhibited by the Defendant. Separate statement of the Ld. Counsel of the Defendant was recorded whereby he exhibited certified copies of the following documents which were duly compared with the original file brought by the summoned witness:
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1. Ex. D1 - Judgment of the Court of Sh.V.B.Gupta, Ld. Additional Rent Controller pronounced on 24.12.1981 in the eviction case no. 202/78.
2. Ex. D2 - Objections and reply to the application u/o 22 rule 3 and section 11 and 151 on behalf of respondents in civil revision no. 382/82.
3. Ex. D3 - Affidavit of Sh. Triloki Nath Sharma in civil revision no. 382/82.
4. Ex. D4 - Order of the Hon'ble High Court of Delhi dated 15.03.1984 in Civil Revision no. 382/82.
5. Ex. D5 - Decision of the Hon'ble High Court of Delhi dated 29.04.1985 in Civil Revision no. 382/1982.
28. In the present matter after the examination of DW1, an application u/s 151 CPC was moved by the Defendants for summoning certain witnesses which was dismissed vide order dated 5.07.2011. Thereafter the matter was fixed for final arguments.
29. Issue wise findings of this court in the present matter are as under: Issue no. 1 and 4 : Issue no. 1: Whether the suit is barred under Section 50 of DRC Act? (OPD). Issue no. 4: Whether the Defendant are tenants in the suit property (OPD). Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 19 of 63
30. As issue no. 1 and 4 involve common questions of law and common appreciation of evidence, they are dealt together. The onus to prove these issues was on the Defendants.
31. It is the case of the Defendants that the present suit is hit by the provisions of Section 50 of the Delhi Rent Control Act as the Defendants are tenants in the suit premises rented out for residential purposes at a monthly rent of Rs.31/. As the rate of rent is Rs. 31/ only, they are protected under the provisions of Delhi Rent Control Act and therefore could be evicted under the provisions of Section 14 of that Act only and in view of Section 50 of the Delhi Rent Control Act, Civil Court has no subject matter jurisdiction to try the present suit for possession. In support of these averrments, it is contended by the Ld. Counsel for the Defendants that the notice dated 18.05.1971 sent by Smt. Sona Devi to Sh. Gopal Krishan Sharma was waived off by Smt. Sona Devi by firstly continuing to receive rent from Shri Gopal Krishan Sharma in his lifetime and thereafter by sending another notice dated 3.05.1977, Ex.PW4/17. It is further contended by the Ld. Counsel that Smt. Sona Devi in the eviction petition no. E202/78 has deposed that she has accepted the rent from the respondents during slum proceedings. Thus, it is the case of the Defendants that in the eviction proceedings Smt. Sona Devi has admitted Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 20 of 63 the Defendants as contractual tenants and has never treated the Defendants as unauthorized occupants and further by sending notice dated 3.05.1977 she waived the earlier notice dated 18.05.1971. Thus it is their case that their contractual tenancy was never terminated. It is further argued by the Ld. Counsel for the Defendant that the present suit is not maintainable as no notice u/s 106 of the Transfer of Property Act was given to them prior to the institution of the present suit.
32. Ld. Counsel for the Defendant have relied upon the following judgments in support of their arguments:
1. AIR 2004 Madras 267 titled as Kazhugumalai Raja(deceased by LRs) and another v. Rajapalayam Palapalayam Boopalarajaptti Illthar Samuga Puttu Nala Fund.
2. AIR 1971 S.C. 102 titled as Tayabali Jaferbhai Tankiwala v. M/s Ahsan and Co. and others.
3. AIR 1973 Punjab & Haryana 353 titled as M/s Chuni Lal Om Prakash v.
Inder Singh.
4. AIR 1976 Allahabad 321 titled as Makhan Lal v. Mst. Chandravati and Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 21 of 63 others.
5. AIR 2006 Karnataka 57 titled as B.S. Sadananada v. K.S. Chinnappa.
33. It is inturn argued by the Ld. Counsel for the Plaintiff that the contractual tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.05.1971 and therefore he became a statutory tenant. After his death as his wife became a statutory tenant and Smt. Sona Devi required the premises for her requirement she gave another notice dated 03.05.1977 to Smt. Lakshmi Devi, Sh. Triloki Nath Sharma and Sh. Prithvi Nath Sharma. However, the notice was basically addressed to Smt. Lakshmi Devi and her sons were also given notice in order to avoid legal complications. It is argued by the Ld. Counsel for the Plaintiff that it was categorically clarified in the later notice that by way of earlier notice dated 18.05.1971 the contractual tenancy of Sh. Gopal Krishan Sharma was terminated and Smt. Lakshmi Devi was, after the death of Sh. Gopal Krishan Sharma, living in the premises in the capacity of a statutory tenant and the notice was given to the other persons in order to avoid complication as they were also in possession. Thus it is argued that sending of another notice in 1977 Ex. PW4/17 does not in any manner tantamounts to the waiving of the earlier notice. In support of this Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 22 of 63 contention Ld. Counsel for the Plaintiff has relied upon the judgment reported in 2010 (119) DRJ 560 titled as Capt. Praveen Davar (Retd) and Anr. V. Harvansh Kumari & Ors."
34. It is further argued by the Ld. Counsel for the Plaintiff that the fact that the contractual tenancy of Sh. Gopal Krishan Sharma was terminated and he became a statutory tenant and after his death Smt. Lakshmi Devi alone was the legal heir of Sh. Gopal Krishan Sharma is decided vide the judgment of the court of Sh. V.B. Gupta, Ld. Additional Rent Controller in eviction petition no. E202/78 Ex. PW3/6, as it was held by the Ld. Rent Controller that rent receipts were issued in the name of Sh. Gopal Krishan only and therefore Sh. Gopal Krishan was the tenant and his contractual tenancy was terminated vide notice dated 18.05.1971 and as he alone was the tenant and the joint family was not the tenant therefore after his death only his legal representatives can be taken to be tenant in the premises in dispute. It is further argued by the Ld. Counsel that as per the provisions of Section 2(l) of the Delhi Rent Control Act only the wife of Sh. Gopal Krishan Sharma would be the tenant and after her death the tenancy rights would not devolve upon her heirs and therefore the Defendants are in the capacity Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 23 of 63 of unauthorized occupants. Ld. Counsel for the Plaintiff in support of these averments is relying upon the following judgments:
1. Prem Prakash Kapoor & Others v. Atma Ram AIR CJ VIII1989(2) 150.
2. Prem Prakash Kapoor & Others v. Atma Ram AIR 1976 Delhi 316.
3. Capt. Praveen Davar (Retd.) and Anr. v. Harvansh Kumari & Ors. 2010 (119) DRJ 560.
4. Mukesh Kumar Decd. Thr. LRs v. Saini Cooperative Thrift & Credit Society Ltd. 156 (2009) DLT 550 (DB).
5. Sandhya Jamwal (Smt.) v. Sushil Kumar Bhatia & Ors. 2006 IX AD (Delhi)
372.
6. Trilochan Singh v. Daya Shanker & Others. 174(2010) DLT 266.
35. It is further argued by the Ld. Counsel for the Plaintiff that the contentions of the Ld. Counsel for the Defendants that no notice u/s 106 Transfer of Property Act was given prior to the filing of the present suit holds no ground as the Defendants are unauthorized occupants and therefore there was no requirement of giving notice u/s 106 Transfer of Property Act to the Defendants.
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36. Before going into the evidence led by the parties and before dwelling into the appreciation of the facts of the present case it is necessary to discuss the Law of the Land as laid down in Delhi Rent Control Act.
37. Section 50 of the Delhi Rent Control Act reads as under: Section 50 : Jurisdiction of Civil Courts barred in respect of certain matters
1. "Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
38. As per section 50(1) of the Act the jurisdiction of the civil courts is barred with respect to proceedings relating to eviction of any tenant which the Rent Controller is empowered by or under this Act to decide.
39. Section 2(l) of the Delhi Rent Control Act defines the Tenant as under: Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 25 of 63 "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes i. a subtenant;
ii. any person continuing in possession after the termination of his tenancy; and iii. in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
a) spouse;
b) son or daughter, or, where there are both son and daughter, both of them,
c) parents,
d) daughterinlaw, being the widow of his predeceased son, as had been
ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include: A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 26 of 63 opened under the proviso to section 3 of the Delhi Rent Control Act (Amendment) Act, 1976 (18 of 1976);
B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation I : The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:
a) firstly, his surviving spouse;
b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
d) fourthly, the daughter in law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 27 of 63 surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
Explanation II : If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue the possession after the termination of the tenancy shall become extinguished. Explanation III: for the removal of doubts, it is hereby declared that
a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 28 of 63 pass on to any other successor, specified in any lower category or categories, as the case may be;
b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall no, on the death of such successor, devolve on any of his heirs;
40. Section 2(l) of the Act defines who would be falling under the category of a tenant coming under the purview of Delhi Rent Control Act. Section 2(l)(iii) deals with the case of the legal representatives of the persons who were continuing in possession after the termination of their contractual tenancy by the landlord. Explanation I gives the order of succession in the event of death of the person and explanation II states that if the person acquires tenancy rights by succession was not financially dependent on the deceased person on the date of his death, the successor will acquire the right of tenancy for a period of one year only and on the expiry of that period or his death which ever is earlier his right to continue in possession after the termination of tenancy will become extinguished. Explanation III(a) of section 2(l) makes it clear that once the right of the successor falling under one category (as specified in explanation I) are extinguished then the right to continue in possession will not pass to any other successor specified in Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 29 of 63 the lower category or categories. Thus explanation III makes it clear that the right of a successor to the statutory tenant is confined to the persons in the same category to the exclusion of persons in the lower categories.
41. The Hon'ble Supreme Court of India in the cases of Damadi Lal and others v. Parashram and others AIR 1976 Supreme Court 2229 and in Gian Devi Anand v. Jeevan Kumar AIR 1985 Supreme Court 796 has explained the concept of statutory tenancy and contractual tenancy. It was held that the concept of statutory tenant is imported into the jurisprudence of this country and is derived from English Rent Acts and the expression denotes a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. The statutory tenant is placed on the same footing as contractual tenant so far as the Rent Act is concerned as the Act does not make any distinction between the contractual tenant and statutory tenant. Thus a tenant even after the determination of his tenancy continues to have a stake or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant will step into Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 30 of 63 the position of the deceased tenant.
42. The law relating to the aspect of tenancy protected under Delhi Rent Control Act is thus very well laid down.
43. In the present case in hand it is an admitted position that Sh. Gopal Krishan Sharma was a tenant in the suit premises under the landlordship of Smt. Sona Devi at a monthly rental of Rs. 31/ only. It is a further admitted position that Smt. Sona Devi has given a notice of eviction to Smt. Lakshmi Devi, Sh. Triloki Nath Sharma and Sh. Prithvi Nath Sharma Ex. PW4/17 and after that notice has instituted an eviction petition under the provisions of section 25(A) and (B) in the court of Ld. Rent Controller. In that eviction petition Smt. Lakshmi Devi, Sh. Triloki Nath Sharma, Sh. Prithvi Nath Sharma and Smt. R.L. Sharma were made as respondents. Judgment was passed by the court of Sh. V.B. Gupta, Ld. Additional Rent Controller in that suit bearing no. E202/78 on 24.12.1981 which is exhibited by the Plaintiffs as Ex. PW3/6 and by the Defendants as Ex. D1.
44. In that judgment it was held by the Ld. Additional Rent Controller as under:
"...only Gopal Krishan was the tenant. ...contractual tenancy of Gopal Krishan was terminated vide notice dated 18.05.1971 ... and the mere fact that Gopal Krishan Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 31 of 63 Sharma has been residing in joint family will not mean that the tenancy has been created in the name of joint family ... . So, I hold that after the death of Sh. Gopal Krishan Sharma only his LR's can be taken to be tenant in the premises in dispute and the joint family cannot be taken to be the tenant and as such, the present petition against LR's Gopal Krishan is perfectly maintainable. Accordingly, this issue is disposed of."
45. Ld. Counsel for the Plaintiff is relying upon this judgment to plead that vide this judgment the issue that Sh. Gopal Krishan Sharma alone was the tenant and the joint family was not the tenant was set at rest and therefore the Defendants cannot argue that all the legal heirs of Sh. Gopal Krishan Sharma are the tenants, as in view of Section 2(l) only Smt. Lakshmi Devi had inherited the rights of tenancy for her life time from Sh. Gopal Krishan Sharma. Ld. Counsel for the Defendant in turn have argued that as in the said judgment it is held that the LRs of Sh. Gopal Krishan Sharma are the tenants therefore all the Defendants herein are the tenants with respect to the suit property being the LRs of Sh. Gopal Krishan Sharma.
46. The Ld. ARC in his judgment has categorically held that after the death of Sh. Gopal Krishan Sharma only his legal representatives can be taken as tenants and the joint family cannot be the tenant and therefore the petition against the legal Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 32 of 63 representatives is perfectly maintainable.
47. One needs to read this judgment Ex. PW3/6 in the light of the law as laid down in Section 2(l) of the Delhi Rent Control Act. The construction of the term legal representatives has to be done keeping in view the provisions of the Delhi Rent Control Act and the law as laid down in the various judgments of the Hon'ble Apex Court in various decisions relating to statutory and contractual tenancy. Once it is determined that a person is a statutory tenant his contractual tenancy having being determined by a legally valid notice, after his death the tenancy rights would devolve upon his legal heirs however, the question who are the legal heirs who would inherit the tenancy rights is answered by Section 2(l)(iii) coupled with its explanation as per which on the death of a statutory tenant if his spouse is surviving only his spouse will succeed to the tenancy rights for her life time if she is financially dependant upon the deceased at the time of his death and is living with him. After the death of the spouse however no other legal heirs would be entitled to inherit the tenancy rights and thus the status of the other legal heirs would be of unauthorized occupants as they would not be the tenants in the premises in dispute. In the present case in hand Sh. Gopal Krishan Sharma was survived by his wife, his sons and daughter and as his wife was alive she alone would Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 33 of 63 have inherited the tenancy rights in question and after her death the tenancy rights could not devolve upon the sons and daughters as it was held by the Ld. ARC in his judgment that Sh. Gopal Krishan Sharma alone was the tenant and the joint family was not the tenant.
48. The Ld. Counsel for the Defendant is arguing that the finding of the Ld. ARC in treating Sh. Gopal Krishan Sharma alone as a tenant cannot be treated as final as during the lifetime of Sh. Gopal Krishan Sharma Smt. Sona Devi accepted rent from him. However the said contention of the Ld. Counsel holds no ground as the law is very well laid down that a tenant protected under Delhi Rent Control Act has the same rights and liabilities as a contractual tenant that is he has to pay rent to his land lord the protection is only with respect to his eviction from the premises in dispute. Thus, even if after sending notice dated 18.05.1971 if Smt. Sona Devi has accepted rent from Sh. Gopal Krishan Sharma she was well within her rights to do so as Sh. Gopal Krishan Sharma was her statutory tenant and by doing so it cannot be said or argued that she has waived her notice of terminating the tenancy of Sh. Gopal Krishan Sharma.
49. Ld. Counsel for the Defendant is further arguing that by sending another notice dated 03.05.1977 Ex. PW4/17 Smt. Sona Devi has waived the earlier notice sent by her Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 34 of 63 and is further relying upon section 113 illustration (b) of the Transfer of Property Act which reads as under:
"b. A, the lessor , gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived".
50. He is also relying upon the case of M/s Chuni Lal Om Prakash v. Inder Singh (supra) wherein it was held that looking into the language of the illustration as soon as the second notice was given the first notice would stand waived. The counsel is further relying upon the case of Tayabali Jaferbhai Tankiwala v. M/s Ahsan and Co. and others (supra) wherein it was held that where the landlord gives another notice and in that notice demands rent for the intervening period between the first and the second notice and claims damages for use and occupation for period subsequent to second notice shows that landlord was aware of distinction between rent and compensation for use and occupation and therefore he in effect waives the first notice and treat the tenancy as subsisting till the second notice.
51. In these matters, the basis of the second notice was also contractual tenancy and it Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 35 of 63 was never the case of the landlords that the contractual tenancy had come to an end. In Chuni Lal's case (supra) the question in dispute was different and it was never the case of the landlord that the contractual tenancy had come to an end. In Tayabali Jaferbhai's case (supra) the landlord had demanded rent for the period between first and the second notice and has demanded damages for use and occupation of the period subsequent to the second notice.
52. These cases do not apply to the present case in hand as the landlord i.e Smt. Sona Devi in her second notice dated 03.05.1977 given to Smt. Gopal Krishan Sharma, Shri Triloki Nath Sharma and Shri Prithi Nath Sharma has specifically mentioned that she had terminated the contractual tenancy of Shri Gopal Krishan Sharma vide earlier notice dated 18.05.1971 and thereafter has treated his tenancy to be statutory tenancy. The notice also specifically states that the wife of Shri Gopal Krishan Sharma is alone the tenant in view of the provisions of the Delhi Rent Control Act and the notice is given to Shri Triloki Nath Sharma and to Shri Prithi Nath Sharma to avoid legal complications. It thus shows that the intention of Smt. Sona Devi was clear that the contractual tenancy was already terminated by earlier notice. Notice dated 03.05.1977 is Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 36 of 63 not a simplicitor notice between landlord and tenant as the tenancy was already terminated by earlier notice and the status of the tenant has become to be statutory tenants protected under the purview of Delhi Rent Control Act and after his death his wife was protected under the purview of the Delhi Rent Control Act. Thus, after going through the contents of Ex.PW4/17, this court is of the considered opinion that the earlier notice dated 18.05.1971 was not waived by Smt. Sona Devi by issuing another notice dated 3.05.1977. Thus this case is different from the cases relied upon by the Ld. Counsel for the Defendant. Further more the judgment relied upon by the Ld. Counsel for the Plaintiff Capt. Praveen Davar (supra) squarely applies to the present case in hand wherein it was held as under:
"In the case of Parwati Bai v. Radhika MANU/SC/0372/2003: AIR 2003 SC 3995, the following apposite observations were made in this context by the Supreme Court:
(AIR P.3996) "The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in written statement. The Defendant has not raised any specific objection as to the validity of the notice. An Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 37 of 63 objection as to invalidity of infirmity of notice under section 106 of TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ex. P4".
In Delhi Development Authority v. Durga Chand Kaushish popularly known as the 'Shiela Cinema case' MANU/SC/0329/1973 : AIR 1973 SC 2609, the Supreme Court referring to the dicta laid down by it in an earlier case, held as under: AIR Page 2614.
Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim. MANU/SC/0122/1958:AIR 1959 SC 24 at P.29.
Now, it is settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim "ut res magis valeat quam pereat".
Adverting next to the plea of waiver sought to be urged by the learned counsel for Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 38 of 63 the appellant, there is no force in the plea of the appellant that the first notice dated 07.06.1974, served on Dr. M.C. Dawar stood waived on the service of the second notice dated 12.02.1990, which was served upon his wife, Smt. Leelawati Dawar. A bare glance at the said notice shows that the entire tenor of the said notice (Ex. PW1/5) was that Dr. Dawar's tenancy was being treated by the appellants as a statutory tenancy. The mere fact that in this notice it was mentioned that the tenancy of Smt. Leelawati Dawar was terminated, does not mean that the earlier notice sent to Dr. M.C. Dawar stood waived".
53. Thus this judgment also deals with the case where the first notice was sent by the landlord to the tenant terminating his contractual tenancy and thereafter another notice was sent, after the death of the tenant, to his wife treating her as a statutory tenant and asking her to evict the premises.
54. In view of the said judgment and in view of the above observations it is held that Smt. Sona Devi has not waived her earlier notice dated 18.05.1971 by sending another notice dated 03.05.1977 Ex. PW4/17.
55. It is further argued by the Ld. Counsel for the Defendant that before filing the Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 39 of 63 present suit no notice u/s 106 of the Transfer of Property Act was given to the Defendants and therefore the present suit of possession is not maintainable. In support of their case they have relied upon the judgment of AIR 2004 Madras 267 (supra) wherein it was held that issuance of notice u/s 106 of Transfer of Property Act is mandatory in cases of seeking eviction of tenants and the earlier notice given under Rent Control Act for eviction of tenant would not hold good for the later eviction proceedings. However, the present judgment would apply to the present case in hand only when the Defendants are able to show that they are tenants of the suit premises and not otherwise. As it is held that only Smt. Lakshmi Devi inherited tenancy rights from Sh. Gopal Krishan Sharma therefore after her death the status of the Defendants have become to that of unauthorized occupants and therefore there was no need to give notice under section 106 of Transfer of Property Act before instituting a suit for possession.
56. Ld. Counsels for the Defendants are further relied upon the judgment in Makhan Lal (supra) wherein it was held that where a suit for ejectment against the original tenant has been dismissed by the court the notice u/s 106 TPA cease to have effect and Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 40 of 63 the tenant is restored to the position of a contractual tenant and is liable to ejectment only after termination of his tenancy by fresh notice and this position will apply to his heirs as well and they cannot be treated as trespassers and there ejectment could not be sought without terminating their tenancy by a valid notice.
57. This judgment also does not apply to the facts of the present case in hand as in the present case the earlier notice of 1971 was replied to and no eviction proceedings were there consequent to the said notice. The later notice Ex. PW4/17 relied upon the earlier notice and treated the wife alone as the statutory tenant and was addressed to the wife basically and the sons were also addressed in order to avoid legal complications.
58. Therefore after the death of the wife, the sons and daughters cannot be said to be the legal heirs in terms of inheriting tenancy under the provisions of Delhi Rent Control Act therefore there is no need to serve a notice u/s 106 TPA to them.
59. It was also observed by the court of Sh. V.B. Gupta, Ld. ARC in the judgment Ex. D1 in eviction case 202/78 that: "further notice dated 03.05.1977 has admittedly been sent by the Petitioner to the present Respondents and service of this notice has been admitted by the Respondents, as respondents have filed themselves copy of the reply which they have sent in response to the Petitioners notice dated 03.05.1977. Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 41 of 63 ...the Respondents in their reply dated 11.10.1977 ... in reply to para 2 the respondents have admitted the service of notice dated 18.05.1971.
So in view of the admissions made by the Respondents themselves in their reply, it is admittedly clear that contractual tenancy of Gopal Krishan was terminated vide notice dated 18.05.1971...".
60. It is further argued by the Ld. Counsel for the Defendants that Smt. Sona Devi has admitted the Defendants as tenants and has also admitted the receipt of rent from the Defendants as is clear from the examination in chief of Smt. Sona Devi in execution petition no. E202/78. It is inturn argued by the Ld. Counsel for the Plaintiff that statement of Smt. Sona Devi made by her in the eviction petition was not mentioned in the pleadings or in the affidavit of the Defendant and therefore the same cannot be considered. However, this court while deciding the application u/s 151 of the Defendants to summon certain official witnesses with relevant judicial record has held vide order dated 05.07.2011 that with respect to the record of eviction case no. 202/78 the prayer of the Defendant is disallowed as the said file is already attached with the present file and therefore no purpose would be served by calling the record of the said file. In view of the said order the contention of the counsel for the Plaintiff that the Defendant have not Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 42 of 63 led any evidence with respect to the referred deposition holds no ground and the said deposition of Smt. Sona Devi in eviction case no. 202/78 is read into evidence being relevant and admissible in the present case in hand. Smt. Sona Devi in her deposition recorded on 19.08.1980 in eviction case no. 202/78 has stated in her examination in chief that "Sh. Gopal Krishan was my original tenant in the property in dispute ... During slum proceedings the respondants paid rent to me of the premises in dispute". In the cross examination conducted on the same date it was deposed "it is incorrect to suggest that the rent is paid by the respondents including Sh. T.N. SharmaSharma and his sons to me except Rs. 2,000/ which I accepted before the Competent Authority (Slums)."
61. The application of the Defendants to summon the record from the Slum proceedings was dismissed vide order dated 05.07.2011 on the ground that the Defendants have failed to explain as to why the complete file of case no. CAI(6232) needs to be summoned and no list of witness was filed and the Defendants failed to give any plausible explanation to summon that record.
62. Going by the deposition in the eviction case it cannot be ascertained with certainty that whether the rent of Rs. 2,000/ accepted by Smt. Sona Devi in slum proceedings was accepted by her from Sh. Triloki Nath Sharma and his sons on their Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 43 of 63 behalf or on behalf of Smt. Lakshmi Devi. The intention of Smt. Sona Devi has to be gathered from all the material available on record. Perusal of the entire record shows that the balance of probabilities is tilted in favour of the Plaintiff as even after taking permission from the Competent Authority (Slums) in the eviction petition instituted under section 25 (A) and (B) of the Delhi Rent Control Act the petitioner Smt. Sona Devi maintained her position that the tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.05.1971 and he died as a statutory tenant and due to the enactment of the Delhi Rent Control (Amendment) Act 1976 all the legal heirs of deceased Sh. Gopal Krishan Sharma have not become the tenants in the premises except the widow Smt. Lakshmi Devi but in order to avoid complications the Petitioner has impleaded all the legal heirs of Sh. GopalGopal Krishan Sharma as tenants in the premises. As Smt. Sona Devi has in the eviction petition maintained that only Smt. Lakshmi Devi was her tenant being statutory tenant the fact that she has stated in her examination in chief that she has accepted Rs. 2,000/ as rent from the Respondents would be on behalf of Smt. Lakshmi Devi as Smt. Sona Devi was well entitled to receive rent from a statutory tenant and Smt. Lakshmi Devi was the statutory tenant in the premises. The fact that she has received a certain sum of money by way of rent from the Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 44 of 63 Defendants does not conclusively determine that she has waived the earlier notice of determining contractual tenancy as she has maintained her position in the eviction petition which was instituted by her on the ground of bonafide requirement. Smt. Sona Devi was well within her rights to accept rent from a statutory tenant and the fact that the rent was accepted from a statutory tenant does not convert the position of a statutory tenant to that of a contractual tenant. As the notice dated 03.05.1977 and the eviction petition categorically shows the intention of Smt. Sona Devi the fact that she accepted Rs. 2,000/ as rent from Sh. Triloki Nath and sons in slum proceedings as rent does not tilt the balance in favour of the Defendants as the rent could have been accepted by her from the Defendants being the sons / daughter of Smt. Lakshmi Devi, the statutory tenant. Only one statement or act cannot nullify the entire conduct of a litigant and it has to be read in its entirety so as to gather the intention of the person. The eviction proceedings were initiated by Smt. Sona Devi on the ground of bonafide requirement and not on the ground of arrears of rent. The factum that she accepted rent from a statutory tenant does not waive of the notice sent by her and does not in effect treat the Defendants as contractual tenants. The Defendants were made a party in the eviction proceedings and in the slum proceedings by way of abundant precaution by Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 45 of 63 Smt. Sona Devi and this intention is manifestly clear from the notice Ex. PW4/17 and the eviction petition filed in suit no. E202/78. Therefore keeping in view the balance of probabilities it is held that the rent of Rs. 2,000/ taken by Smt. Sona Devi from the Defendants was on behalf of Smt. Lakshmi Devi.
63. Thus, Smt. Sona Devi has not waived the notice dated 18.05.1971 and therefore the Defendants are not the tenants and are staying in the suit property in the capacity of unauthorized occupants.
64. In view of the above said observations the Defendants are not tenants in the suit property and as they are not the tenants their status is that of an unauthorized occupant and therefore they are not protected under the provisions of Delhi Rent Control Act and therefore the jurisdiction of this court is not barred under the purview of section 50 of DRCA.
65. Thus issues no. 1 and 4 are decided against the Defendant and in favour of the Plaintiff.
Issue no. 2: Whether the suit is bad for non joinder of the parties if so, its effect (OPD).
Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 46 of 63
66. The onus to prove this issue was on the Defendants.
67. It is the case of the Defendants that the present suit is bad for non joinder of necessary parties as all the legal heirs of Smt. Lakshmi Devi and Sh. Triloki Nath Sharma are not made a party in the present matter. In view of the findings in issue no. 1 and 4 the legal heirs of Smt. Lakshmi Devi and Sh. Triloki Nath Sharma even if in possession would be in the capacity of unauthorized occupants. DW1 in his cross examination has submitted that he along with Sh. Ramesh Sharma are residing in the suit premises who are Defendant no. 1 and 2 in the present matter. Thus the present suit is not bad for non joinder of necessary parties as, as per the own version of the Defendants, Defendant no. 1 and 2 are residing in the suit premises and they are made a party in the present suit. The legal representatives of Defendant no. 1 and 2 would be bound by any decision between the Plaintiff and Defendant no. 1 and 2 and therefore their impleadment is not necessary for the purpose of effectively and completely adjudicate the present matter in controversy between the parties.
68. Thus the present suit is not bad for non joinder of necessary parties and therefore this issue is decided in favour of the Plaintiff and against the Defendants. Issue no. 3: Whether the Plaintiff is adopted son of Smt. Sona Devi if not to what Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 47 of 63 effect? (OPD).
69. The onus to prove this issue was on the Defendant.
70. It is argued by the Ld. Counsel for the Defendant that the Plaintiff is not the adopted son of Smt. Sona Devi and this issue was decided by the Hon'ble High Court of Delhi in the judgment dated 27.09.2010 Ex. DW1/1 in the case of Sh. Raj Kishore Gupta v. Sh. Shyam Sunder Sharma wherein the Hon'ble Court upheld the judgment of the Ld. Trial Court dated 29.04.1985 wherein it was observed that Master Gopal Gupta is not the adopted son of Smt. Sona Devi. In that matter the Ld. Trial Court has disbelieved the plea of the Defendant, who is the next friend of the Plaintiff in the present case, that his son, that is, the Plaintiff was adopted by Smt. Sona Devi on the grounds that the Defendant has failed to prove the adoption ceremony by not producing his wife, there is no adoption deed on record and the Defendant has failed to show that the ceremoney of adoption had taken place. The Trial Court has further treated the probate of the will as a document to be looked for the purpose of corroboration of the factum of adoption and as the Defendants therein failed to prove in the first instance the factum of adoption mere probated will was not relied upon so as to determine that Master Gopal Gupta was the adopted son of Smt. Sona Devi.
Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 48 of 63
71. It is argued by the Ld. Counsel for the Defendant that Doctrine of res judicata would apply against the present Plaintiff as the issue that whether the Plaintiff was an adopted son of Smt. Sona Devi was decided by the Ld. Trial Court in that case in negative and that decision was affirmed by the first appellate court and also by the Hon'ble High Court of Delhi in the second appeal. The Hon'ble High Court of Delhi has held that it cannot go into the sufficiency of the evidence at the stage of second appeal and where from a given set of circumstances two inferences are possible, the one drawn by the lower appellate court would be adopted by the High Court and the High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position or was based on inadmissible evidence or arrived at without evidence.
72. It is further argued by the Ld. Counsel for the Defendant that principle of res judicata would apply to the present issue and issue estoppel would apply to the Plaintiff. Ld. Counsel for the Defendant has relied upon the judgment of AIR 2005 SC 626 (631,632) titled as Bhanu Kumar Jain v. Archana Kumar wherein it is held that Res Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 49 of 63 judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estoppel By Accord.
73. The contention of the Ld. Counsel for the Defendant that Doctrine of Res judicata would apply to the present case in hand holds no merit as the bar u/s 11 of the Civil Procedure Code applies when a issue has been directly and substantially in issue in a former suit between the same parties. In the present case the parties were different as the present Defendant was not a party in that matter which was a matter between the next friend of the Plaintiff and a third party.
74. Doctrine of Issue Estoppel also does not apply to the present case in hand as Issue Estoppel is a situation where it is found that one of the parties to the suit has made an averment and the other party on the basis of that representation has altered his position. The party representing cannot be allowed to turn back from that representation to the detriment of the other party. However, if the court has already determined that issue on such representation then issue estoppel will apply as per the general principle stated Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 50 of 63 above in the same suit or a subsequent suit. At the same time since the issue is already determined resjudicata will also apply with repsect to that issue if the conditions of Section 11 are fulfilled.
75. Thus the Doctrine of Issue Estoppel will apply on person in the later proceedings however the parties should be the same in the earlier litigation and in the later litigation. The judgment relied upon by the Ld. Counsel for the Defendant titled as Sh. Shyam Sunder Sharma v. Raj Kishore Gupta was not between the same parties therefore neither the Doctrine of res judicata nor the Doctrine of Issue Estoppel would apply to the present issue as the factum that the parties should be the same in the two litigations is an essential requirement. Further more the suit for possession and mesne profits are not judgments in rem and are judgments in personam and therefore a decision in a judgment which is a judgment in personam would apply only with respect to the facts of that case and would be applicable visavis the same parties.
76. Thus as the judgment in that case and the decision in the issue in that case is not applicable to the present case in hand Ex. DW1/1 not being a judgment in rem the present matter has to be determined on the basis of its own merits.
77. In the present matter both the natural father and the natural mother of the Plaintiff Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 51 of 63 are examined as witnesses to prove the adoption of the Plaintiff by Smt. Sona Devi and the Plaintiff is further relying upon the probated will Ex. PW3/2 wherein it is stated by Smt. Sona Devi that she has adopted the Plaintiff as her son. Ld. Counsel for the Defendant are challenging the reliability of PW3, that is, the natural father and next friend of the Plaintiff on the ground that he has given false affidavits in the Hon'ble High Court of Delhi in Civil Revision no. 382/82 wherein he has on oath in the form of an affidavit stated that he is the adopted son of Smt. Sona Devi and now in the present case is stating that he is the father of the adopted son of Smt. Sona Devi.
78. It is in turn argued by the Ld. Counsel for the Plaintiff that to prove the adoption of the Plaintiff they have examined the natural father and the natural mother of the Plaintiff and there can be no better witness other than the natural parents to prove the adoption and he is further relying upon the letter of probate of will and is relying upon the judgment in the probate case Ex. PW3/3.
79. Ex. PW3/D1 is the affidavit of the next friend of the Plaintiff and his natural father in Civil Revision no. 382/82 dated 28.07.1983 which he has annexed along with his application u/o 22 rule 3 and 11 and section 151 CPC which is Ex. PW3/D2 in the civil revision wherein he has stated that he is the adopted son of Smt. Sona Devi and Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 52 of 63 Smt. Sona Devi has died leaving him behind as her legal representative. Ex. PW3/D4 is another affidavit in the said revision petition which is accompaning Ex. PW3/D3 the rejoinder wherein he has again stated that he is the adopted son of Smt. Sona Devi. The will Ex. PW3/2 which is relied upon by the Plaintiff is dated 16.07.1981 and is mentioning the name of Sh. Raj Kishore Gupta as one of the attesting witnesses who is PW3 in the present matter. PW3 is the attesting witness to the probated will and the will is dated 16.07.1981 the affidavits in the Hon'ble High Court of Delhi Ex. PW3/D1 and Ex. PW3/D4 are dated 28.07.1983 and 06.01.1984 respectively.
80. PW3 as a witness is not reliable as if he was an attesting witness to the will and has himself given his son in adoption to Smt. Sona Devi his affidavits Ex. PW3/D1 and D4 are false. It seems that he has changed his stand to suit the occasion. When it was held by the Hon'ble High Court of Delhi in the civil revision that he is not the adopted son he filed probate case no. 246/85 in order to obtain the probate of will dated 16.07.1981.
81. The conduct of PW3 renders his testimony highly unreliable in the present case in hand and only certified copies of the judgments and documents exhibited by him can be read as they are otherwise admissible in evidence. The conduct of the next friend of Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 53 of 63 the Plaintiff in the present matter would apply as an estoppel to the Plaintiff in the present matter however the conduct of PW3 in earlier litigations cannot apply as an estoppel to the Plaintiff in the present matter.
82. As PW3 is highly unreliable on the aspect of the fact that who is the adopted son of Smt. Sona Devi his deposition with respect to the adoption ceremonies of the Plaintiff herein cannot be relied upon.
83. Plaintiff in support of his adoption has further examined his mother Smt. Gayatri Gupta as PW5 in the present matter. She in her affidavit has stated that the Plaintiff was given in adoption to Smt. Sona Devi on 17.10.1980 in accordance with hindu rights and ceremonies and has given the name of some other persons who were present on the occasion of that adoption. Though the mother has deposed about the adoption of the Plaintiff, her testimony is not finding any corroboration with the testimony of any other independent witness. PW3 is untrustworthy witness and it seems that the mother has been examined in order to controvert the observations of the Ld. Trial Court in its judgment in the case of Shyam Sunder Sharma v. Raj Kishore Gupta. Except the mother the Plaintiff has not examined any other person as a witness who is named by the mother to be present at the time of the adoption ceremony. The mother is an interested Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 54 of 63 witness in the present matter and besides her the only witness is the Plaintiff who was infant at the time of his alleged adoption and therefore cannot be the witness to the same. The documents relied upon by the Plaintiff to show that he is the adopted son Ex. PW4/1 to Ex. PW4/9 are all the documents which were originated pending the present litigation between the parties and therefore do not inspire much confidence.
84. Though the Plaintiff is further relying upon the probated Will however, the Will only can be looked into for the purpose of corroboration of the said adoption and if the adoption per se is not proved the averment in the Will is of no consequence.
85. Thus in view of the above said observations it is held that the Plaintiff is not able to prove that he is the adopted son of Smt. Sona Devi. However, the fact that the Plaintiff is not the adopted son of Smt. Sona Devi would not have any effect on the decision of the present matter as in order to show that the Plaintiff is the owner of the suit premises after the death of Smt. Sona Devi, the Plaintiff is relying upon the certified copy of the Will of Smt. Sona Devi dated 16.07.1981 Ex. PW3/2 and is further relying upon Ex. PW3/3 which is the judgment of the Ld. District Judge in probate case no. 246/1985 and is further relying upon the probate certificate Ex. PW3/4.
86. It is argued by the Ld. Counsel for the Defendant that probate of the Will in the Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 55 of 63 present matter has not attained finality and is still under challenge before the Hon'ble High Court of Delhi as the Defendants herein have preferred FAO 471/2002 against the said grant of probate. It is further their case that the probate certificate dated 23.11.1990 Ex. PW1/4 was not granted in favour of the Plaintiff but was granted in favour of Sh. Raj Kishore Gupta. Ld. Counsel for the Defendant have further relied upon the judgment of the Hon'ble Supreme Court in AIR 2008 SC 295 titled as Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal wherein it was held that the probate court, undisputably, exercises a limited jurisdiction; it is not concerned with the question of title. He is further relying upon (2008) 4 SCC 300 titled as Krishan Kumar Birla v. Rajender Singh Lodha & ors. wherein it was held by the Hon'ble Apex Court that the question of title and construction of a will relating to the right, title and interest of any person are beyond the jurisdiction of the probate court.
87. Ld. Counsel for the Plaintiff in turn is arguing that probate was granted in the name of the next friend of the Plaintiff as the Plaintiff was a minor at that time and therefore letter of probate was issued in the name of the executor mentioned in the Will. It is further argued that Defendants have no locus standi to challenge the validity of the Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 56 of 63 Will when the probate has been granted and their petition u/s 263 of the Indian Succession Act was also dismissed vide order dated 20.04.2002 of the Ld. Additional District Judge Sh. G.P. Mittal (as he then was) in MPC4/2011 titled as O.N. Sharma and others V. Raj Kishore Gupta and others.
88. It is an admitted position by both the parties that the will Ex. PW3/2 was probated vide judgment dated 04.05.1987 of the Ld. District Judge in probate case 246/1985 and a probate certificate was granted in favour of Sh. Raj Kishore Gupta being the executor of the said will. A petition u/s 263 of the Indian Succession Act was preferred by Defendant no. 1 and 2 which was dismissed vide order dated 20.04.2002 of Ld. Additional District Judge Ex. PW3/5. It is further an admitted position that the Defendants have filed an appeal against the said order in the Hon'ble High Court of Delhi, as the present case was adjourned sine die on 15.04.2004 in view of the pendency of those proceedings. However, as the Hon'ble High Court held that there is no stay in the proceeding of the present matter, the present matter was revived, after an application of the Plaintiff for revival of the matter was allowed vide order dated 06.07.2007.
89. The law with respect to the probate of Will is clearly laid down. Section 227 of Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 57 of 63 the Indian Succession Act reads as under:
227. Effect of Probate - "Probate of a Will when granted establishes the Will from the death of the testator, and render valid all intermediate acts of the executor as such".
90. Judgment of probate is a judgment in rem and a probate is only conclusive as to the appointment of executors and the valid execution of the Will. It does not decide any question of title. It was held by Hon'ble Apex Court in Rukmani Devi v. Narander Lal AIR 1984 SC 1866 that a probate granted by a competent court is conclusive of the validity of such Will unless it is revoked and no evidence can be admitted to impeach it except in a proceedings for revoking the probate. Thus a probate does not in any manner decides the title or even to the existence of the property devised. It decides only the genuineness of the Will and the executor's right to represent the estate.
91. In the present case in hand the will in question is a probated Will and the probate is in existence as it is not revoked till date by any court. Though the probate of the Will by itself does not confer any title on the Plaintiff yet the probate conclusively determines that the will was valid unless the probate is revoked. In the present case in hand it is an Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 58 of 63 admitted position that Smt. Sona Devi was the owner of the suit premises. Her title over the suit property is not disputed by the Defendants. As the Probate of the Will establishes that the Will had been validly executed by Smt. Sona Devi therefore it further establishes that Smt. Sona Devi has bequeathed her property in favour of the Plaintiff. Until the probate of the Will is revoked the Probate Certificate Ex. PW3/4, the Probated Will Ex. PW3/2 and the Judgment in the Probate case Ex. PW3/3 are valid and are conclusive with respect to the appointment of Sh. Raj Kishore Gupta as the valid executor of the Will and with respect to the fact that the Will was genuine and was executed by Smt. Sona Devi. Thus, as on date there is a genuine Will duly executed by Smt. Sona Devi in favour of the Plaintiff, the Plaintiff is the owner of the suit premises by virtue of the Will Ex. PW3/2 whereby Smt. Sona Devi has bequeathed the suit property to him which she was duly entitled to do being the owner of the same irrespective of the fact whether the Plaintiff was her adopted son or not.
92. This issue is decided accordingly.
Issue no. 5: Whether the Plaintiff is entitled to the possession of the disputed property? (OPP).
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93. The onus to prove this issue was on the Plaintiff.
94. In view of the findings in issue no. 3 as the Plaintiff has acquired the ownership of the suit property by virtue of a duly registered and probated Will which is not revoked till date by any court, the Plaintiff can bring the present suit for possession against the Defendants who are unauthorized occupants in view of the findings in issue no. 1 and 4.
95. Thus in view of the findings in the above issues as the Plaintiff is the owner of the suit property and as the Defendants are not the tenants therein but are unauthorized occupants the Plaintiff is entitled to the recovery of the possession of the suit premises that is the disputed property from the Defendants.
96. Thus this issue is decided in favour of the Plaintiff and against the Defendants. Issue no. 6: W hether the Plaintiff is entitled to recover the mesne profits from the Defendant, if so, at what rate and to what extent? OPP.
97. The onus to prove this issue was on the Plaintiff.
98. It is argued by the Ld. Counsel for the Plaintiff that the Defendants are residing in the premises for a long time and are not paying any amount to any body for the use and occupation of those premises. It is the case of the Plaintiff that they are entitle to recover Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 60 of 63 mesne profits @ Rs. 500/ p.m. from the Defendants, as at the time of the institution of the present suit the rate of the rent of the premises was approximately Rs. 500/ p.m. They have claimed mesne profits from the date of the death of Smt. Lakshmi Devi till the actual and physical possession of the premises is given to them.
99. In view of the findings in the above issues as the Plaintiff is entitled to possession of the suit premises being the owner thereof and the Defendants are residing in the capacity of unauthorized occupants they are liable to pay mesne profits to the Plaintiff.
100. Plaintiff in support of the rate of mesne profits has examined as PW2 Sh. Jai Kishan. It is deposed by the said witness that he is the broker and the property may fetch about Rs. 500/ p.m. at the market rate. In his cross examination it has further reaffirmed the stand and has stated that the property can be fetch Rs. 500/ p.m. as rent and the ground floor of the same would fetch Rs. 250/ p.m. as the rent.
101. In view of the said deposition as there is nothing on record to assail the credibility of PW2 the Plaintiff is entitled to the mesne profits @ Rs. 500/ p.m.
102. It is not the case of the Defendants that they have deposited the rent of the suit premises in any court proceedings or to anybody else. Further more DW1 in his cross examination has deposed that Smt. Lakshmi Devi had died on 27.08.1989. In view of the Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 61 of 63 same the Plaintiff is entitled to the mesne profits @ Rs. 500/ p.m. from the date of the death of Smt. Lakshmi Devi as after that date the Defendants were in the possession of the suit premises as unauthorized occupants.
103. In view of the same, mesne profits @Rs. 500/ p.m. are awarded to the Plaintiff from 27.08.1989 till the realization of the possession of the suit premises.
104. This issue is decided accordingly.
Issue no. 7 : Relief.
105. In view of the above findings in issue no. 1 to 6 the suit of the Plaintiff is decreed and a decree of recovery of possession is passed in favour of the Plaintiff and against the Defendants in respect of property no. 2761, Gali Peepal Mahadev, near Baradari Sher Afgan Khan, Hauz Qazi, Delhi and further a decree of recovery of mesne profits is passed whereby the Defendants are directed to pay to the Plaintiff Rs. 500/ p.m. from 27.08.1989 till the actual and physical possession of the suit premises are handed over by the Defendants to the Plaintiff.
106. Costs of the suit are also awarded to the Plaintiff.
107. Decree Sheet be prepared accordingly.
108. File be consigned to record room.
Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 62 of 63 Announced in open court on this 1st day of August, 2011.
(Neha Paliwal) Civil Judge6 Delhi/01.08.2011 Certified that this judgment contains 63 (Sixty Three) pages and each page bears my signature.
(Neha Paliwal) Civil Judge6 Delhi/01.08.2011 Suit no. 51/10/91 Gopal Gupta v. O.N. Sharma Page 63 of 63