Delhi District Court
Brij Bhushan Saran vs Dr. Suresh Gupta on 16 April, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
CS No. 335/12
Brij Bhushan Saran
..... Plaintiff
Vs.
Dr. Suresh Gupta
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application u/o 6 rule 17 CPC moved by the defendant.
2. Brief facts necessary for disposal of application are that plaintiff has filed the present suit for possession, damages and mesne profits against the defendant. The case of the plaintiff is that he is the owner of two pieces of land, one measuring 1.632 acre and the other measuring .857 acre know as Jaipur Estate. These two pieces of land were given on perpetual lease w.e.f. 16.08.1947 to Sh. Seth Ramnath, Gauri Shankar and Ghanshyam Das vide lease deed dated 30.08.1947 executed by Maharaja Sahib Bahadur of Jaipur, which was duly registered on 25.09.1947. Sh. Seth Ramnath, Gauri Shankar and CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 1 of 13 Ghanshyam Das agreed to transfer their right, titles, interests/obligations in respect of two pieces of leasehold land to the plaintiff and they transferred their leasehold rights to the plaintiff vide conveyance deed dated 20.11.1947 which was duly registered on 26.11.1947. The transfer of lease in favour of the plaintiff was duly informed to Maharaja Sahib Bahadur of Jaipur who accepted and confirmed the same vide letter dated 06.05.1950. The plaintiff sub leased the portion of the plot marked No. 12 admeasuring approximately 616.22 sq. yds. for the rests of the period of 99 years for a premium of Rs. 9243/4/9 with an annual lease money of Rs. 92/ to Smt. Om Pyari Khanna on 22.02.1952 who transferred her leasehold rights in respect of plot no. 12 in favour of Smt. Savitri Devi who again vide two separate leases dated 28.06.1979 and 30.03.1979 transfered her rights in respect of plot no. 12 in favour of the defendant. The defendant had paid the lease money to the plaintiff till 15.08.2005. The plaintiff in the beginning of 2006 came to know that the defendant had encroached upon the portion of land of the plaintiff adjacent to plot no. 12. After some negotiation, the defendant conveyed to the plaintiff that he would like to get the said encroachment regularized on payment of Rs. 50,000/ and he would also pay a annual lease of Rs. 1/ in respect of encroached portion. The plaintiff agreed to proposal/regularization of the said CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 2 of 13 encroachment on accepting premium of Rs. 50,000/ and annual lease of Rs. 1/ in addition to annual lease already payable by the defendant @ Rs. 92/ per year. Accordingly, both the parties signed the said plan/map on 04.12.2006. As such, land encroached by the defendant was regularized by the plaintiff and the same formed part of plot no. 12 at an annual lease of Rs. 93/. It is stated that the defendant neglected and failed to pay the lease money and committed breach by defaulting in payment of lease money. The plaintiff terminated the lease in respect of plot No. 12, Jaipur Estate, Nizamuddin East, New Deli vide notice dated 30.06.2008 by which defendant was called upon to pay the lease money with interest and to hand over the physical and vacant possession of plot, but the defendant did not reply the said notice despite service. The plaintiff has learnt that the defendant has approached the Govt. of Rajasthan for converting the leasehold rights in respect of plot no. 12 into freehold and that the Govt. of Rajasthan has converted the leasehold rights into freehold in respect of plot no. 12. It is stated Govt. of Rajasthan has/had no right to convert leasehold rights of plaintiff into freehold. The defendant had no right to deal with the Govt. of Rajasthan in any manner and conversion of leasehold rights in respect of two pieces of lands into freehold could be done in favour of plaintiff only. It is stated that the defendant cannot claim himself to be owner of the plot in question CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 3 of 13 whose lease stood terminated vide legal notice dated 30.06.2008 and he has failed to hand over the physical possession of the plot in question despite service of legal notice. Hence, the present suit. The plaintiff has prayed for a decree of possession of plot no. 12 situated at Jaipur Estate, Nizamuddin East, New Delhi, a decree for Rs. 3,00,000/ on account of damages for use and occupation for the period 16.07.210 to 15.01.2011 @ Rs,. 50,000/ per month. The plaintiff has also prayed for an inquiry to be held under Order 20 Rule 12 CPC for determining the mesne profits.
3. The defendant in the written statement has not denied the execution of lease deed dated 30.08.1947 granted by Maharaja of Jaipur in favour of Seth Ram Nath, Gauri Shankar and Ghansham Dass and conveyance deed dated 20.11.1947 in favour of the plaintiff. However, the defendant inter alia has contended that on 30.03.1949, the State of Jaipur merged with other States to form State of Rajasthan and the reversionary rights under the deed 30.08.1947 came to vest with the State of Rajasthan and the lessee rights continued with the plaintiff. The State of Rajasthan as the paramount lessor, terminated the lease vide notice dated 24.02.1992 and filed a suit against the plaintiff and other sub lessee on the ground that condition of lease had been breached. However, on request of the residents of Jaipur Estate, the Rajashtan Cabinet approved a policy of conversion of Jaipur CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 4 of 13 Estate plots to freehold for an amount and based on said policy, the money was paid directly by plot holders to Rajasthan Government as consideration for conveyance of the reversionary interest. Thereafter the reversionary rights were conveyed by the State of Rajasthan to the individual plot holders against a premium and as such most of the sublessee including the defendant became owners in freehold. As such, the defendant claims to have become the owner of 766.36 yards of land after leasehold rights of the defendant were converted into freehold rights in terms of Rajasthan Government Policy dated 22.02.2003 and conveyance deed dated 30.04.2007 and contended that plaintiff has no right, title or interest in the plot in question. The defendant has prayed for dismissal of the suit.
4. After completion of pleadings, issues were framed and the matter was proceeding for plaintiff's evidence when the miscellaneous applications including the present application has been moved by the defendant.
5. By way of present application, the defendant wants to incorporate para No. 43A to 43M to the Preliminary Submissions in the written statement elaborating the facts regarding family settlement dated 22.04.2003 between the plaintiff and others and conveyance deeds dated 06.05.2003 by which the Govt. of Rajasthan granted, conveyed, sold, transferred, assigned all its reversionary right, title CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 5 of 13 and interest in the property No. 3A, 11A and 11B, Jaipur Estate, New Delhi in favour of the purchasers who are the family members of the plaintiff. The defendant also wants to add para No. 46A to the Preliminary Submissions and also wants to add a line in existing para 10 of the Reply on Merits that the notice dated 30.06.2008 was defective and which account too, the suit is not maintainable. It is stated that the proposed amendments merely elaborate the earlier written statement and do not alter the nature of defence. The said facts should have been placed by the plaintiff himself but he has concealed the same and even did not disclose the same in the replication. The defendant came to know about the said documents recently and therefore wants to amend the written statement in order to elaborate the facts. Hence, the defendant has prayed that he may be allowed to amend the written statement.
6. The plaintiff has contested the application by filing reply contending that application has been moved to delay the proceedings. It is denied that the defendant has become the owner of 766.36 sq. yards of land as alleged. It is stated that the defendant continued to be a tenant under the plaintiff till he set up an independent title in himself. It is further contended that the defendant has failed to disclose the relevancy of proposed amendments in paragraphs 43A to 45M and the said amendments are not necessary for proper CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 6 of 13 adjudication of the dispute between the parties. The other contents of the application are stated to be wrong and denied and the plaintiff has prayed for dismissal of the application.
7. I have heard the Ld. Counsel for the parties and perused the record carefully.
8. From the pleadings of the parties, it is evident that Maharaja of Jaipur leased out two plots, one measuring 1.632 acres and other measuring 0.857 acres, in favour of Sh. Seth Ram Nath, Gauri Shankar and Ghansham Dass vide lease deed dated 30.08.1947. Shortly after obtaining the lease, Sh. Seth Ram Nath, Gauri Shankar and Ghansham Dass transferred their leasehold rights in respect of above said two pieces of land in favour of the plaintiff vide conveyance deed dated 20.11.1947. The plot in question bearing plot No. 12, Jaipur Estate, New Delhi was initially subleased by the plaintiff to one Smt. Om Pyari Khanna who transferred her leasehold rights in favour of Smt. Savitri Devi who again vide two separate leases dated 28.06.1979 and 30.06.1979 transferred her rights in favour of the defendant in respect of plot in question. The plaintiff has claimed that the defendant paid the lease money to him upto 15.08.2005 and thereafter he failed to pay the lease money and committed breach by defaulting in payment of lease money. The plaintiff accordingly terminated the lease vide legal notice dated CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 7 of 13 30.06.2008 and called upon the defendant to hand over the vacant possession of the plot in question. The plaintiff has further claimed that the Govt. of Rajasthan on the request of the defendant has converted leasehold rights into freehold in favour of the defendant in respect of plot no. 12 whereas the Govt. of Rajasthan had no right to convert the leasehold rights of the plaintiff into freehold. The said conversion is stated to be illegal and contrary to law and hence the plaintiff has filed the present suit inter alia seeking decree of possession of the plot in question from the defendant.
9. The defendant on the other hand has contended that State of Rajashtan has reversionary rights under the lease deed dated 30.08.1947 to convert the leasehold rights into freehold and the Rajasthan Govt. approved a policy dated 22.02.2003 of conversion of Jaipur Estate plots from leasehold to freehold. The defendant under the said policy applied for conversion of leasehold rights into freehold in respect of the plot in question and the plot having been converted from leasehold into freehold, the defendant became the owner of the plot in question and plaintiff has no right, title and interest in the said plot. The defendant in the written statement has also claimed that the plaintiff is aware of the policy of Rajasthan Govt. dated 22.02.2003 and was also a beneficiary under the said policy and got the property/plot converted from leasehold into freehold in favour of his CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 8 of 13 family members.
10. The plaintiff in the replication has contended that the State of Rajasthan has no right, title and interest in respect of property and has no authority to deal with the same and therefore question of conveying reversionay rights by the state of Rajasthan to the plot holders does not arise. The plaintiff has not admitted the facts regarding benefit of policy dated 22.02.2003 and the payment of Rs. 55,100/ made on 19.03.2003 by the plaintiff for getting the property converted from leasehold to freehold in favour of his family members as averred by the defendant in para no. 23 of the written statement. As such, the plaintiff has disputed the policy of Rajasthan Govt. dated 22.02.2003 and contended that alleged freehold policy of Rajasthan Government is not admitted as no reversionary right vested in Rajasthan Government as alleged. The plaintiff has also contended that the alleged conveyances are illegal and do not confer any right, title and interest in respect of plots of land in favour of sublessee.
11. It is pertinent here to mention that defendant earlier moved an application u/o 8 rule 1 (A) CPC seeking permission to place on record certain documents which are certified copies of family settlement dated 22.04.2003 between the plaintiff and others, conveyance deeds dated 06.05.2003 executed by Govt. of Rajasthan in favour of family members of plaintiff in respect of Plot No. 3A, 11A, CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 9 of 13 11B, to show that plaintiff and his family members have obtained the benefit of conversion policy of Rajasthan Govt. The said application was allowed in view of no objection of the plaintiff and the said documents were taken on record.
12. The plaintiff in the replication though has denied that the Govt. of Rajasthan has reversionary rights of conversion and he is not aware of any conversion policy of Rajasthan Govt. dated 22.02.2003, but the aforesaid documents placed on record by the defendant, prima facie, show that there is some family settlement between the plaintiff and others on 22.04.2003 in respect of one plot wherein it was recorded that conversion from leasehold to freehold of said plot will be done by the concerned authority in the name of Sh. Pradeep Sharan, son of the plaintiff. Similarly, there are conveyance deeds dated 06.05.2003 by which the Rajasthan Government has conveyed the reversionary rights in respect of plot No. 3A, 11A and 11 B in favour of family members of the plaintiff, pursuant to the conversion policy introduced by the Monitoring Committee constituted by Cabinet Secretary of Govt. of Rajasthan in its meeting held on 22.02.2003. The said documents have not been disputed by the plaintiff which are certified copy of the registered documents and prima facie substantiates the case of the defendant that Govt. of Rajasthan under reversionary rights and vide policy dated 22.02.2003, CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 10 of 13 converted the leasehold rights into freehold on being applied by the plot holders including the defendant.
13. The defendant by way of proposed amendments by incorporating the para no. 43A to 43M wants to elaborate the aforesaid facts regarding the family settlement between the plaintiff and others, conveyance deeds dated 06.05.2003 executed by Govt. of Rajashan converting the leasehold right into freehold in respect of plot No. 3A, 3B, 11A and 11B in favour of the members of the plaintiff, freehold conversion policy of Rajasthan Govt. The main contention of the plaintiff is that the defendant has averred these facts in para 23 and 24 of the written statement and same were in the knowledge of the defendant at the time of filing the written statement and hence same are not required to be incorporated again.
14. Though the defendant has made some reference about the aforesaid facts in para no. 23 and 24 of the written statement but the complete detail of the same does not find mentioned and there is no elaboration of the registered documents which the defendant claims to have come in the knowledge recently. Since the proposed amendments sought by way of incorporating the para no. 43A to 43M are only clarificatory and elaborating the facts, no prejudice shall be caused to the plaintiff if same are allowed to be incorporated. Further, the amendments sought by the defendant are based on the facts which are CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 11 of 13 not in dispute, rather the proposed amendments are based on the documents executed between the Govt. of Rajasthan and family members of the plaintiff, which has not been disputed by the plaintiff to be fabricated or manufactured. Therefore, in order to put forth his case, the amendment sought by the defendant by way of incorporating the para no. 43A to 43M in the written statement is allowed.
15. Though, the Ld. Counsel for plaintiff argued that even if the Govt. of Rajasthan has converted the leasehold rights into freehold in respect of plot in question in favour of the defendant, still it will not affect the relationship between the plaintiff and defendant and the tenancy of the defendant with the plaintiff will not be wiped out and therefore proposed amendments are not necessary for adjudication of real controversy between the parties. However, it is a settled law that merits of proposed amendments are not to be looked into at the stage of deciding the amendment application and it will be considered at the relevant time as to the effect of the policy of Govt. of Rajasthan by which the defendant claimed to have become owner of the plot in question by converting the leasehold rights into freehold in his favour on the strength of reversionary rights of Govt. of Rajasthan.
16. The defendant also wants to add para No. 46A under the Preliminary Submission to the effect that he wants to make a payment of Rs. 2 lacs or more to the plaintiff to let him live and die in his own CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 12 of 13 house. However, this amendment is not germane and necessary for the purpose of deciding the real controversy between the parties. Hence, this amendment sought by the defendant is declined.
17. Similarly the amendment sought by the defendant by incorporating the facts that notice dated 30.06.2008 was defective in existing para 10 of Reply on merits, cannot be granted. In the written statement, the defendant has not taken any such objection that notice dated 30.06.2008 was defective. Rather the defendant has not disputed the service of notice dated 30.06.2008. Therefore, this proposed amendment sought by the defendant being an after thought is not permissible.
18. In view of aforesaid discussions, since the amendments sought by incorporating the para 43A to 43M are only clarificatory and to elaborate the facts, the defendant is allowed to amend the written statement to that extent only. Though, it also cannot be ignored that the case of the plaintiff has been delayed, but the plaintiff can be compensated by way of cost. Accordingly, application moved by the defendant u/o 6 rule 17 CPC is partly allowed, however, subject to cost of Rs. 15,000/, payable to the plaintiff.
Announced in the open Court (Balwant Rai Bansal)
on 16th April, 2015 Additional District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 335/12
Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 13 of 13
CS No. 335/12
Brij Bhushan Sharan Vs. Dr. Suresh Gupta
16.04.2015
Present: None.
Vide my separate order of even date, the application moved by the defendant u/o 6 rule 17 CPC is allowed subject to cost of Rs. 15,000/ payable to the plaintiff. Amended written statement to the extent of the amendment as allowed be filed. Copy be supplied to the counsel for plaintiff to which plaintiff may file the replication.
Now, case is fixed for payment of cost, amended WS, replication, and framing of additional issues consequent to the amendment in the written statement, if any for 27.05.2015.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 16.04.2015 CS No. 335/12 Brij Bhushan Sharan Vs. Dr. Suresh Gupta Page 14 of 13