Delhi District Court
Harminder Singh vs Mr. Debamitra Sinha on 14 December, 2017
IN THE COURT OF SH. M.P. SINGH, ADJ-03 (CENTRAL), TIS
HAZARI COURTS, DELHI
CS No. 712/16/07
New CS No. 620793/16
Harminder Singh
s/o Late Mr. Sarjit Singh
269/2 Soi 3, Sukhimvit Road,
Bangkok, Thailand .......Plaintiff
Versus
Mr. Debamitra Sinha
s/o Mr. A.N. Sinha
No.7A/73, Western Extension Area,
Karol Bagh, New Delhi - 110005
Also at:- K-2014, C.R. Park, Delhi ......Defendant
Suit filed on - 29.09.2007
Arguments heard on - 24.11.2017
Date of decision - 14.12.2017
SUIT FOR RECOVERY OF POSSESSION AND MESNE PROFITS
JUDGMENT
1. Plaintiff's mother Smt. Phoolawanti wife of Sarjit Singh was the owner and landlady of house bearing no. 7-A/73, W.E.A., Karol Bagh, Delhi. She acquired this property in terms of a Conveyance Deed dt. 20.08.1952. After her demise on 01.05.1997, plaintiff and his real sister Mrs. Rajender Paul Kaur became joint owners and landlords of this property. During the pendency of the instant lis, plaintiff states, he became exclusive owner and landlord of this property with consent of his sister Mrs. Rajendra Paul Kaur. He further states that his name stands mutated in the relevant municipal records as the owner and landlord vide Order dt. 31.05.2010 of Assistant Collector, Grade-I, Delhi Development Authority (for short 'DDA'), Delhi. Further, a fresh Conveyance Deed dt. 17.04.2012 stands executed in plaintiff's favour by Mr. J. R. Malhotra (L.A.O.) O.S.B., DDA, Delhi, which was registered at the office of Sub-
CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 1 of 43Registrar-VII on 17.04.2012.
2. Late Smt. Phoolawanti, during her lifetime, had inducted one Mr. A.N. Sinha, defendant's father, as a tenant in the ground floor, mezzanine floor and one garage of the aforesaid property. Vide a notice dt. 11.09.1987 she terminated his tenancy. She, however, it is stated, could not give effect to termination of the tenancy as Mr. A.N. Sinha passed away on 03.12.1987 i.e. soon after the termination of the tenancy. Under the prevailing circumstances, Smt. Rani Sinha, wife of late Mr. A.N. Sinha, who was residing with him, was allowed to occupy the tenanted portion, and she did so till her demise on 31.07.1992. However, late Smt. Rani Sinha, it is averred, did not make any payment for use and occupation of the demised premises to the landlady. Plaintiff asserts that after late Smt. Rani Sinha's demise, none of the legal heirs of late Mr. A.N. Sinha had any right to stake any claim in the tenancy of the demised premises and to continue in occupation of the same.
3. The defendant happens to the younger son of late Mr. A.N. Sinha and late Smt. Rani Sinha. Plaintiff avers that during Mr. A.N. Sinha's lifetime, the defendant was gainfully employed in service, financially independent and used to reside separately out of Delhi at the place of his employment. He further avers that during his parents' lifetime and even after their demise, the defendant never resided in the suit property, but with ulterior motives and with a view to extort premium from him, he kept the demised premises illegally locked. The defendant has thus been, it is stated, in unlawful and illegal occupation of the demised premises and he never paid any occupation charges thereof to late Smt. Phoolawanti or to the plaintiff. Plaintiff states that he has come to know that the defendant has changed the residential nature of the said property and converted the same into a commercial one to be used and exploited by some Advocate, who was close to late Mr. A.N. Sinha. The defendant, it is claimed, never ever disclosed the factum of his mother's demise on 31.07.1992 and concealed the same from the owner/landlady Mrs. Phoolawanti. It is alleged that the defendant with malafide intent served a CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 2 of 43 false and mischievous notice dt. 17.02.1995 falsely stating therein that landlady Mrs. Phoolawanti had passed away. And despite reply to the said notice (refuting therein that landlady Mrs. Phoolawanti had passed away), defendant failed to make any payment for illegal occupation to the owner/landlady and also failed to vacate the demised premises. Thereafter, on the actual demise of Mrs. Phoolawanti Singh on 01.05.1997 the defendant continued to deny the plaintiff and his sister the benefits of their inheritance as also title to the suit property and instead leveled false and malicious charges upon the plaintiff. The defendant through one Agnimitra Sinha, son of his elder brother Mr. Saumitra Sinha, lodged a false and fabricated police complaint dt. 31.12.2001 against the plaintiff in order to harass him and to extort exorbitant illegal premium from him when the latter applied for mutation of his name with the municipal authorities qua the property.
4. Plaintiff states that being the administrator of the estate of late Mrs. Phoolawanti Singh by virtue of a judgment dt. 04.09.2001 of a Court at Bangkok he issued notice of termination to the defendant on 22.03.2007, which the latter duly received on 02.04.2007. However, till date the defendant has not complied with the same.
5. Plaintiff avers that late Mrs. Phoolawanti in her lifetime had never allowed the defendant to continue as tenant in the demised premises and after her death the plaintiff and his sister Mrs. Rajendra Pal Kaur had never recognized defendant's illegal occupation of the demised premises. He goes on to aver that in view thereof there was never any landlady- tenant relationship between Mrs. Phoolawanti and the defendant; that defendant's occupation over the demised premises since 31.07.1992 has been illegal; and that provisions of Delhi Rent Control Act, 1958 do not apply to the demised premises. He further avers that the defendant permanently resides in his own house at K-2014, C. R. Park, Delhi.
6. Plaintiff states that since his father's lifetime, first floor of the suit property was under the tenancy of Indian Bank, Karol Bagh, Delhi for residential use of its Chief Manager. This tenant (Indian Bank), it is CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 3 of 43 stated, admitted the plaintiff as the owner and landlord of the premises and vacated the same and handed over its vacant possession to him on 21.11.2011. Plaintiff states that defendant's continued illegal occupation is causing severe loss to him as monthly market rental of similarly situated property in the area is Rs. 30,000/-. On these averments the plaintiff instituted the instant suit seeking the following reliefs:
(a) A decree for possession of ground floor, mezzanine floor and a garage of the demised premises bearing property No. 7-
A/73, W. E. A., Karol Bagh, New Delhi fully described in red colour in the site plan annexed with the plaint and actual physical possession of the premises be got delivered through the process of the Court after eviction of the defendant, his servants, agents, nominees or any person found to be in possession of the suit premises.
(b) Direct an inquiry in respect of damages/mesne profit on account of the continued illegal occupation of the said portion of the suit property with effect from 01.09.2004.
(c) Pass a decree for recovery of the amount ascertained as mesne profits/damages with effect from 01.09.2004 till the date of actual delivery of possession of the said portion to the plaintiff.
(d) Costs in favour of the plaintiff and against the defendant.
(e) Any other Order, which may be deemed fit and just.
7. The defendant in his written statement alleges that the plaintiff is a masquerader trying to impersonate as the son of the alleged owner in order to usurp the property by taking advantage of absence of owners and their being issueless. He states that his father late Mr. A.N. Sinha was inducted as a tenant in the said property by the owner namely late 'Smt. Phoolawanti w/o Surjit Singh Ghogar' and that after his father's demise on 03.12.1987, he (defendant) continued as a tenant with landlady's consent. And since the landlady used to reside out of India, the defendant used to pay the rentals to one Mr. R.P. Lakra (since deceased), a duly constituted attorney of the owner of the said property. Mr. A.N. Sinha, it is stated, was a renowned advocate in Delhi and after his demise, one Mr. P. Sinha, a junior associated with him, along with the defendant started to CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 4 of 43 look after the said property as he (defendant) had to frequently go out of Delhi. The last paid monthly rent is stated to be Rs. 600/-, the tenancy is stated to be under the protective umbrella of Delhi Rent Control Act and that he (defendant) is a protected tenant under the said Act. According to him, it came to his knowledge in year 1995 that his landlady late 'Smt. Phoolawanti w/o Surjit Singh Ghogar' had expired and accordingly he (defendant) got issued a notice dt. 17.02.1995 to Mr. R.P. Lakra thereby calling upon him to satisfy whether she was still alive. The defendant avers that apparently this was necessary since with the death of executant of Power of Attorney, the attorney so constituted ceases to be so and looses authority to act on behalf of the deceased executant. Thus, after Smt. Phoolawanti's demise, it is stated, her attorney Mr. R.P. Lakra was left with no right to continue as her attorney and to collect the rentals. This notice dt. 17.02.1995 was replied to by Advocate Kawal Nain vide his reply dt. 28.02.1995 and by virtue of which the factum of death of Smt. Phoolawanti and the factum of cessation of Mr. R.P. Lakra's authority was disputed. According to the defendant, Mr. R.P. Lakra was however not able to 'satisfy' him (defendant) that the landlady was alive and that he (Mr. R.P. Lakra) thereafter never returned to collect or demand the rentals, leading to unimpeachable conclusion that his own information that the landlady had expired earlier was correct.
8. The defendant states that 'Smt. Phoolawanti w/o Surjit Singh Ghogar' after creating the said tenancy shifted to Bangkok and after her demise there was no person in India to lay claim to the property and taking advantage of the same Mr. R.P. Lakra and his son Vijay Lakra started to hatch a conspiracy to usurp the same by way of impersonation by presenting someone else as her legal heir. In pursuance of this conspiracy in the year 2000, it is averred, Vijay Lakra approached the defendant with a Sikh gentleman at the said premises and also met the defendant and Mr. P. Sinha. The said Sikh gentleman claimed to be one Harminder Singh (i.e. the plaintiff's namesake) and alleged that he was the son of the owner of the property. As per the defendant, this was the CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 5 of 43 second time that these two persons had approached him with a claim that the said alleged Harminder Singh was the son of the owner and on both the occasions they failed to produce any reliable document like passport, birth certificate etc. to prove their claim. The Sikh gentleman is thereafter stated to have retreated on the pretext of bringing documents at a later stage to substantiate his claim of lineage, but never returned thereafter. The defendant then received a notice dt. 08.11.2011 from concerned officer of Municipal Corporation of Delhi (MCD) addressed to one Harminder Singh as a resident of the said property, vide which it was disclosed that the said person Harminder Singh was trying to get the property mutated in his name in the MCD records. The defendant then filed a complaint dt. 31.12.2001 against the said persons for attempting to impersonate as the son of 'Smt. Phoolawanti w/o Surjit Singh Ghogar'. It is averred that the said two persons thereafter stopped their illegal activities that made the defendant believe that there would be no further attempts of impersonation. However, to defendant's shock on 29.09.2007 the plaintiff filed the instant suit claiming to be son of one Smt. Phoolawanti Singh.
9. The defendant alleges that the plaintiff is not the owner's son and that he is not even aware of the basic facts and names of the owner and her husband and further that he is fraudulently laying a claim by impersonating himself to be son of one 'Phoolawanti Singh'. According to him, the original plaint did not contain the true and correct names of the owner of the property. And shockingly, according to the defendant, the plaintiff does not even know the correct spelling and nomenclature of his purported parents. Plaintiff thus, it is alleged, is taking a chance towards usurping the property by way of impersonation. According to him, this is borne out by the following circumstances:-
(a) In the original plaint instead of writing 'Phoolawanti', the plaintiff wrote 'Phoolawanti Singh'. There is nothing on record to suggest that he is the son of 'Phoolawanti Singh'.CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 6 of 43
(b) Most importantly, the plaintiff does not even know his father's name as in his original plaint he claimed to be son of one 'Mr. Seryit Singh'; whereas the name of husband of owner of the said property was 'Surjit Singh Ghogar'.
(c) In several correspondences placed on record by the plaintiff himself, the name of the owner is stated to be late 'Smt. Phoolawanti w/o late Surjit Singh Ghogar' only; whereas in the original plaint he gave his father's name as 'Seryit Singh'. Plaintiff filed certain documents on 06.08.2012 showing his father's name as 'Sarjit Singh' only and not 'Surjit Singh Ghogar'.
(d) The plaintiff has filed no document to substantiate his claim of being the son of 'Smt. Phoolawanti w/o Surjit Singh Ghogar', who was the owner/landlady of the property.
(e) Though the plaintiff claims to be the son of late 'Smt. Phoola Wanti', there is not even a single averment in the plaint as to whether he is the only son/legal heir of the said lady and if not so, the whereabouts or the impleadments of such legal heirs. Impersonation on plaintiff's part is also apparent from the fact that he has not disclosed whereabouts of other/all legal heirs of 'Phoolawanti Singh' despite the fact that in the introductory paragraph of his original plaint he had claimed himself to be 'joint owner' of the property.
(f) Plaintiff cannot be son of four mothers i.e. (i) late Phoolwanti, erstwhile owner of the property, (ii) Smt. Phoolwanti Singh, as alleged in the plaint, (iii) Phoola Wanti, or (iv) Moora Wanti, as per Order dt. 04.09.2001.
(g) Similarly, it appears from the pleadings that plaintiff has / had two fathers i.e. Surjit Singh Ghogar; and late Seryit Singh and now Sarjit Singh
(h) In his original plaint, plaintiff had incorrectly mentioned the suit CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 7 of 43 property number as 7A/73-A, whereas the said property is actually 7-A/73. The plaint does not disclose the boundaries of the said property.
(i) In the original plaint, the plaintiff had stated that he had been appointed as Administrator of the estate of one 'Smt. Phoola Wanti or Moora Wanti' in terms of an Order dt. 01.09.2009 of a Court at Thailand and that the said estate included the suit property. This Order is not in respect of 'Smt. Phoolawanti w/o late Surjit Singh Ghogar', the real owner of the property.
(j) The plaintiff is a masquerader is also clear from the fact that Smt. Phoolawanti w/o late Surjit Singh Ghogar had died issueless.
According to him, he (defendant) had met Phoolawanti and her husband (late Surjit Singh Ghogar) during their lifetime and they had specifically stated that they were issueless. Plaintiff is guilty of forgery and fabrication of documents by falsely relying on documents in his claim to be son of late Phoolawanti w/o late Surjit Singh Ghogar.
(k) Five years after institution of the original plaint, it was only in the amended plaint that the plaintiff could recall that he had a real sister by the name of Rajender Pal Kaur and that she too was a legal heir of his mother.
10. Alleging that the Order dt. 04.09.2001 of the Court at Thailand is seemingly forged and fabricated, the defendant states that it recognized Harminder Singh as a mere 'Administrator' of the estate of 'Smt. Phoola Wanti or Moora Wanti' and did not declare him as the legal heir or successor of the estate of late 'Smt. Phoolawanti w/o Sh. Surjit Singh Ghogar'. Defendant avers that this Order does not appoint him as the 'Administrator' of the estate of late 'Smt. Phoolawanti Singh'; that it confers no ownership right upon the plaintiff; that the said Order has been procured by way of misrepresentation and without following the due process of law; that the plaintiff made a false representation in the Court CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 8 of 43 at Thailand that he is the 'lawful son' of Phoolawanti; that even before the Civil Court at Bangkok he did not claim to 'lawful son' of late 'Smt. Phoolwanti Singh'. Defendant further avers that the plaintiff does not disclose as to what application he had filed before the Court at Thailand for obtaining the Order dt. 04.09.2001 and who were the other persons impleaded therein as the legal heirs of 'Phoola Wanti or Moora Wanti'. Defendant goes on to state that in the suit, the plaintiff, contrary to the Order dt. 04.09.2001, is falsely claiming himself to be 'lawful son' of late 'Smt. Phoolwanti Singh'; whereas it appoints him merely as the 'Administrator' of the estate of late Smt. Phoolawanti, who is not the same person as 'Phoolawanti w/o Surjit Singh Ghogar'. He further states that names 'Phoola Wanti' and 'Moora Wanti' do not match either with the description given in the plaint or with the actual name of the owner i.e. late 'Smt. Phoolawanti w/o Sh. Surjit Singh Ghogar'. He alleges that at the behest of some local builders and/or land mafia the plaintiff forged, fabricated and/or manufactured documents on the basis of which he procured the Order dt. 04.09.2001 with a view to usurp and/or grab in collusion and criminal conspiracy with Vijay Kumar Lakra s/o late R.P. Lakra. According to him, this Order has no legal sanction and basis in law in India and is unenforceable in India; that it is not conclusive in view of section 13, CPC; that it has not been pronounced by a Court of competent jurisdiction and has not been delivered on merits of the case; that it is opposed to natural justice and has been obtained by fraud; that the Bangkok Court had no jurisdiction and legal authority over any property in India, including the demised premises; that the said Order is only in respect of 'carrying on the administration' in respect of savings of the estate of Smt. Phoola Wanti or Moora Wanti lying in Bharat Overseas Ltd., Bangkok in the amount of 91,203.96 Baht and not qua any immovable property.
11. Defendant states that the plaintiff is falsely claiming himself to be 'joint owner' of the property in question, whereas the said joint owner was never mentioned in the original plaint. According to him, the instant suit CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 9 of 43 is bad for non-joinder of the other 'joint owner', who is a necessary party to the present proceedings. He adds that since the basis for filing the suit is the purported Order dt. 04.09.2001 of the Court at Bangkok, there exists no cause of action for its institution against the defendant for the reason that the property was owned by late 'Phoolawanti w/o Surjit Singh Ghogar' and not by 'Smt. Phoolawanti Singh' as alleged in the plaint. The suit is stated to be barred by limitation as late Phoolawanti died long before year 1995. According to him, the suit is barred by limitation also for having been filed after the statutory period of limitation from the date of demise of his mother Smt. Rani Sinha.
12. The defendant denies that plaintiff is the owner of the property. He states that mutation of plaintiff's name in the municipal records and execution of conveyance deed in his name by the DDA are outcomes of misrepresentations and thus nullity in the eyes of law. He further denies that plaintiff's mother 'Phoolawanti w/o Sarjit Singh' acquired the property by way of conveyance deed dt. 20.08.1952. He states that late 'Phoolawanti w/o Surjit Singh Ghogar' owned the property and she had inducted his father as a tenant. He avers that his father's tenancy could not have been terminated vide notice dt. 11.09.1987 in view of the protection available under Delhi Rent Control Act, 1958 irrespective of whether his father had passed away within two months of the said notice or not. According to him, the tenancy then devolved upon his mother, who rightfully and legally continued as tenant qua the demised premises and as such question of his mother being 'allowed' to continue and occupy the tenanted premises till her demise does not arise. He also states that in terms of the settled law tenancy devolves by succession and in the instant case it devolved upon him (defendant) with the consent of the owner of the said premises/property. He denies that he has been in illegal possession of the premises and that he is liable to pay any occupation charges thereof. He states that in view of his being away from Delhi due to his employment/job, after his father's demise, his father's junior advocate Mr. P. Sinha started to look after the premises. He denies that the CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 10 of 43 premises have been put to use for commercial purpose. He also denies that his landlady passed away on 01.05.1997. According to him, his landlady had passed away much earlier in year 1995. He states that plaintiff had no authority to issue the notice dt. 22.03.2007 as he had nothing to do with the property in question. He goes on to state that an employee of Mr. P. Sinha had apparently received the said notice, which was not a valid notice of termination. He states that plaintiff and his alleged sister are strangers to the property and as such there is no question of them recognizing him as their tenant. He also denies that the tenancy after 31.07.1992 became illegal. He avers that the alleged act of Indian Bank vacating a portion of the property does not prove his title. He refutes plaintiff's assertions that he is suffering loss to tune of Rs. 30,000/- per month. He seeks dismissal of the suit.
13. The plaintiff in his replication reiterated his averments as mentioned in the plaint and refuted those of the defendant as set out in his written statement. Plaintiff in his replication states that after the demise of Mr. A.N. Sinha no 'rent' was paid and rather 'occupation charges' were paid. He further states that the defendant was paying 'occupation charges' to R.P. Lakra, who was collecting the same on behalf of the owner of the property. Plaintiff asserts that defendant is merely trying to take advantage of typing error in the names of his parents and the name of any person is a proper noun and people do commit errors while typing proper nouns due to different accents. He adds that in the Order dt. 04.09.2001 of the Bangkok Court, 'Phoolawanti or Moorawanti' was mentioned as the same was due to different accent of pronunciation and he (plaintiff) while residing in Bangkok for the last several years developed quite a different accent. He adds that one year after the demise of Mr. A.N. Sinha, his widow became unauthorized occupant and she ceased to be a 'tenant'. He avers that it is a fiction of defendant's mind that Smt. Phoolawanti had no child. Refuting other assertions of the defendant, plaintiff seeks reliefs in his favour.
14. Vide Order dt. 23.09.2013 the following issues were framed:
CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 11 of 431. Whether the tenancy of defendant's father late Sh. A. N. Sinha was validly terminated during his life time, by late Smt. Phoolawanti? OPP
2. Whether the present suit is not maintainable, as the defendant is allegedly protected under the Delhi Rent Control Act? OPD
3. Whether the plaintiff is entitled to the decree of possession against the defendant? OPP
4. Whether the plaintiff is the son of late Smt. Phoolawanti, W/o late Sh. Surjit Singh Ghogar? OPP
5. Whether the suit has been properly valued for the purpose of Court fees and jurisdiction and the proper Court fees affixed? OPP
6. Whether the plaintiff is entitled to the damages/mesne profits from the defendant? If so, as what rate and for which period?
7. Relief.
15. In plaintiff's evidence, plaintiff examined himself as PW1. Defendant (DW-1) was his sole witness in defendant's evidence.
16. Arguments heard. Record perused.
17. Issue-wise findings are as follows:
18. Issue no. - 4 - The issue is whether plaintiff is the son of late 'Smt. Phoolawanti w/o late Sh. Surjit Singh Ghogar'. The onus to prove this was upon the plaintiff. The plaintiff in his original plaint stated his mother's name to be 'Smt. Phoolawanti Singh' and in amended plaint to be 'Smt. Phoolawanti' and 'Smt. Phoolawanti Singh'. In replication to the amended written statement, his mother's name is 'Phoolawanti,'. In his evidence by way of affidavit Ex. PW1/A, his mother's name is 'Smt. Phoolawanti' and 'Smt. Phoolawanti Singh'. In the Order dt. 04.09.2001 of the Bangkok Court his mother's name is stated to be 'Phoola Wanti or Moora Wanti'.
19. Insofar as plaintiff's father his concerned, in the original plaint it is mentioned as 'Seryit Singh'. In his amended plaint, he mentioned his CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 12 of 43 name to 'Sarjit Singh'. In replication to the amended written statement he stated his father's name to be 'Sarjit Singh Ghogar' (para 4.1) and 'Sarjit Singh' (paras 4.9, 4.11, 4.25 and 5.6). In his evidence by way of affidavit he stated his father's name to be 'Sarjit Singh' and 'Sarjit Singh Goghar'.
20. The defendant takes these 'inconsistencies' to aver that plaintiff is not the son of the real owner of the property in question and that he is a complete stranger and an interloper trying to usurp the same. In addition, defendant's Counsel drew Court's attention to plaintiff's (PW1) cross- examination and submitted that plaintiff was not in touch with his own real sister for the last ten years and that he did not even know her address. According to the defendant, this factum too reflected that plaintiff was an interloper and not the son of the owner of the property.
21. The fact that the owner of the property and her husband had shifted /migrated to Bangkok, Thailand is not at all in dispute. The defendant admits this in his written statement (paras 4.2 and 4.8) by making the averment that after creating the said tenancy the landlady shifted to Bangkok and she started to reside out of India. That apart, the defendant himself placed on record an original returned envelope posted by Advocate Mr. Parijat Sinha addressed to Smt. Phoolawanti w/o Mr. Surjit Singh Ghogar r/o 12 Soi Lookkhet, Lane No. 29, Bangkok, Thailand. Further, the defendant also placed on record a letter dt. 27.01.1996 addressed by Advocate Mr. Parijat Sinha to Smt. Phoolawanti w/o Mr. Surjit Singh Ghogar r/o 12 Soi Lookkhet, Lane No. 29, Bangkok, Thailand. Further, there is yet another document filed by the defendant, which is copy of a letter dt. 28.02.1995 addressed by Advocate Kawal Nain to Advocate Mr. Sunanda Roy thereby informing the latter, inter alia, that Mrs. Phoolawanti had not passed away. This document, filed by the defendant himself, at the third page thereof would show that landlady/owner had appended her signature as 'Phoola Wanti'. This document (para 1) reflects the address of 'Mrs. Phool Wanti' as 12 Soi Lookkhet, Lane No. 29, Bangkok, Thailand. That apart, on record there is a reply dt. 21.09.1987 written by Mr. A.N. Sinha addressed to 'Sardar CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 13 of 43 Surjit Singh Goghar', 160, Shampangh Street, Bangkok, Thailand and a bare perusal thereof would reflect that this reply was in response to the termination notice dt. 11.09.1987 (Ex. P-3). Defendant (DW1) in his cross-examination admits that his father had indeed replied to the termination notice Ex. P-3, but he was unaware of the contents thereof. The bottom line of this is that the pleadings, evidence, several correspondences and the other documents on record unimpeachably show beyond any shadow of doubt that the landlady/owner of the property as also her husband had migrated/shifted to Bangkok, Thailand and were residing there. On this aspect, there is no dispute whatsoever from either of the sides. Now, this is a very important circumstance in the background of the fact that the plaintiff himself is a resident of Bangkok having shifted there with his parents when he was hardly 05 years old, as stated by him in his cross-examination; and further that the plaintiff, a resident of Bangkok, consistently shows his parents' names (who too had shifted to Bangkok), which are phonetically similar to that being propounded by the defendant (and as per the defendant too the owner and her husband had shifted to Bangkok after making the tenancy in Mr. A.N. Sinha's favour).
22. Next, according to the defendant, owner's name was 'Smt. Phoolawanti and that any other spelling to this name would not be that of the owner of the property of which he is the occupant. The defendant, it must be stated, is resorting to hair-splitting technicalities on this count. Defendant's own documents filed on record would show that there indeed are variations in the spellings in name of owner and that of her husband. To begin with, the letter dt. 28.02.1995, filed on record by the defendant himself on 29.11.2012, would show therein that owner's name therein was stated to be 'Phool Wanti' and at the third page thereof owner's signature is 'Phoola Wanti'. Now the question to be asked is whether the defendant would now state that he had received this letter dt. 28.02.1995 from an imposter for the reason that owner therein is not described as 'Phoolawanti' and rather as 'Phool Wanti' at one place and 'Phoola CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 14 of 43 Wanti' at another. For that matter, the defendant made no such submission in his written statement. All that he has to say in his written statement is that this letter dt. 28.02.1995 did not 'satisfy' him that the landlady was alive and that Mr. R.P. Lakra thereafter never returned to collect or demand the rentals. Furthermore, defendant's father wrote a letter dt. 21.09.1987 to one 'Sardar Surjit Singh Goghar'. This letter was in response to the termination notice dt. 11.09.1987 (Ex.P-3). Defendant (DW1) in his cross-examination admits that his father had indeed replied to the termination notice Ex. P-3, but he was unaware of the contents thereof. Now the name 'Sardar Surjit Singh Goghar' does not match with the one being propounded by the defendant before the Court. The spelling of 'Goghar' does not match. Addition of 'Sardar' makes it out to be different than the one being propounded by the defendant.
23. Next, the names 'Phool Wanti', 'Phoola Wanti', 'Phoolwanti', 'Phoolawanti', and 'Phoolawanti Singh' are all phonetically similar. These names, to any reasonable mind, would not appear to be poles apart. The point is that name of a person is a proper noun and minor variations in spellings therein do not matter much so long as they are phonetically similar. For example, if a certain former USA President is referred to as Barack Obama, or Barac Obama, or Barak Obama in letters or correspondences, it would not matter much so long as that former President is being referred to with all the different variations being phonetically similar. That apart, one can also find several words of English language, as distinct from proper nouns, which are spelt differently. For example, words 'colour' and 'favour' are spelt as 'color' and 'favor' in American English. Furthermore, 'Singh' was the admittedly sirname of her husband. Thus, addition of husband's sirname at some places cannot be said to be out of the ordinary. Cases are not unknown in India where in a lady's name, sirname 'Devi' is added, at times sirname 'Rani', and at times the sirname of husband is also added and sometimes no sirname is added and she simply referred to by her first name. Further, these slight variations have to be viewed in the context of the Indian CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 15 of 43 society. In the Indian society these small variations in the name of a lady, and more so of a housewife, do not matter much. It is quite a common phenomena in Indian society to notice some variations in the spellings of name of a lady, but at the same time keeping all those variations phonetically similar.
24. The defendant placed very heavy reliance on the Order issued by Bangkok Court, which orders that plaintiff had become the administrator of the estate of 'Mrs. Phoola Wanti or Moora Wanti'. This argument has no basis. Firstly, it must be noted that the basic name of Phoola Wanti in that Order remains the same. Secondly, there is a difference in accents in India and Thailand. A person's name may not be necessarily pronounced in the same fashion by an Indian and by a person from Thailand on account of difference in accents. And further when a person with a different accent would pen down that name, it is but natural that he would spell it differently in tune with his own accent. For example, Kanpur city in India used to be at times written as Cawnpore by the British on account of difference in the accent. Capital city 'Delhi' in Hindi is written and pronounced as 'Dilli'. Similarly, to the British on account of their accent it was 'Bombay', 'Calcutta' and 'Trivandrum' and not 'Mumbai', 'Kolkata' 'Thiruvananthapuram'. And there can be several examples of like nature. Thirdly, even if this Order of Bangkok Court were not to be taken into consideration in plaintiff's scheme of things, yet it would not adversely affect his case. Fourthly, this Court is not bound by spellings given to a person by a Court at Bangkok. This Court cannot be pinned down to the spellings, more so of a proper noun, given by the Bangkok Court. This Court can very well apply its own independent mind to the given facts and the evidence to assess whether or not such person is indeed the son of the owner/landlady of the property.
25. The defendant also disputed that name of plaintiff's father does not match with that of landlady's husband. According to him, landlady's husband's name was 'Surjit Singh Ghogar'. Further, according to him, plaintiff at various places has given different names to his father. As CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 16 of 43 already noted hereinabove, plaintiff has mentioned his father's name to be 'Seryit Singh', 'Sarjit Singh' and 'Surjit Singh Ghogar'. The names 'Sarjit Singh' and 'Surjit Singh' are phonetically similar. Phonetically, there is nothing much to distinguish between them. The name 'Seryit Singh' as appearing in the original plaint appears to be a typographical error and this is apparent from the fact that the plaintiff relied upon several documents and none of which has the name of 'Seryit Singh'. To err is human. All people make mistakes. That apart, the name 'Seryit Singh' may not be exactly phonetically similar, yet this name is certainly not poles apart from its other variants as appearing in the pleadings and the documents of the plaintiff. The defendant takes the stand that spellings of the name must exactly match and it is only then that it can be accepted that he was the son of the owner/her husband. To accept this argument would tantamount to perpetuating injustice. Instances are not unknown where a person at different places is mentioned with a name, phonetically similar, but with a different spelling in the English language. For example, a person by the name of Narendra Singh Bisht may also state his first name or be referred to variously as Narender, Narinder. His sirname of Bisht may also be referred to as Bist. And then the various combinations and permutations of these variations would bring out several different names, but keeping all such names phonetically similar. Further, at times he may simply write his first name and the last name by missing out the middle name of Singh. Such a practice in India is not unknown and in this regard one may recount various instances of even one's own acquaintances and near and dear ones.
26. The defendant's stand is that husband of the owner of the property in question had only one name and which he states to be 'Surjit Singh Ghogar'. However, when he was asked in his cross-examination as to whether he could spell 'Gogar', he answered in the negative. Not only this, at various places in his cross-examination the defendant referred to the husband of the owner of the property as 'Surjeet Singh Gogar', 'Surjeet Singh'. In his cross-examination he referred to the owner of the CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 17 of 43 property as 'Phulawanti'. If this be so when the defendant himself in his cross-examination describes the owner and her husband with a different spelling, can he then expect the others to do what he himself cannot do.
27. If this argument of the defendant about the exact spellings be taken to its logical end then a query can be put to the defendant himself as to how in the voter electoral rolls (Mark D and Mark E), he is described variously as 'Deb Mitra Sinha', 'Debmitra Sinha' and 'D. Sinha'. Further, before the Court the defendant himself could not be consistent about the spelling of his own name. In the affidavit annexed to the amended written statement his name is 'Debmitra Sinha'; whereas at other places he mentions his name to be 'Debamitra Sinha'.
28. There is one more reason to discard this contention of the defendant. The defendant cannot put his foot down and state that the name of the owner of the property had only and only one spelling i.e. Phoolawanti and no other spelling. And in the same vein, he cannot insist that husband of the landlady could have had no other spelling to his name. He cannot on this count be speaking the gospel truth as if the owner of the property could not have described herself with a different spelling while keeping the names phonetically similar. This is more so when the defendant himself is inconsistent with the spelling of his own name as also the name of the owner and that of her husband.
29. The defendant vehemently raised a plea that the owner and her husband were issueless. In para no. 5.6 of the amended written statement and in his affidavit Ex. DW1/A he stated that he had met Phoolawanti and her husband (late Surjit Singh Ghogar) during their lifetime and they had specifically stated that they were issueless. This assertion is highly doubtful and appears to be a tissue of lie. I say so for multiple reasons. Firstly, the defendant does not state as to when and where they had told him so. Secondly, defendant states in his written statement and his affidavit Ex. DW1/A that after creation of tenancy in his father's favour, the owner had shifted to Bangkok and in his cross-examination he deposes that he had met 'Phulawanti' when he was young i.e. in 1960s and CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 18 of 43 thereafter he did not meet her. Given this, the question to be asked is when did he have the occasion to interact with the owner and her husband as to whether they had any children. In 1960s the defendant must have been a child less than 10 years old (in his affidavit appended to original written statement filed on 24.04.2010 he stated his age to be about 55 years; and as per his affidavit appended to his amended written statement 3 years later filed on 12.03.2013, he continued to be aged about 55 years). It is highly doubtful that owner and her husband would have confided in a child less than 10 years that they had no children. It is also highly doubtful that such a child would have then seriously considered such a statement from the point of succession to a property and remembered the same for the rest of his life. Thirdly, in his cross-examination, defendant toes a different line and deposes that 'Mr. Surjeet Singh Gogar' and Mr. R.P. Lakra had come to visit his father and that he was present in his father's chamber where during the course of discussion it was mentioned that Mr. Gogar had no issue. He went on to depose that his father being a reputed lawyer casually remarked as to what would happen to his properties. This statement coming in the cross-examination of defendant (DW1) is in stark contrast with and seriously contradicts his assertions in his written statement and affidavit Ex. DW1/A. Fourthly, if his version in the cross-examination on this count is to be accepted then the same would fall in the nature of hearsay evidence, hit by sections 59 and 60, Evidence Act. Fifthly, besides this extremely doubtful nature of the hearsay evidence, the defendant has no other evidence whatsoever to offer on this count. The bottomline is that this plea of the defendant is not only not proved, but appears to be a tissue of lie.
30. Plaintiff placed on record documents (Ex. PW1/2 and Mark A,) from his possession showing the name of his mother as Mrs. Phoolawanti and that of his father as Sarjit Singh with its different variations under different spellings, but phonetically similar. He also filed passports (Ex. PW1/4 and Ex. PW1/5) of his father and mother. He also filed his own 'cancelled' passport (Ex. PW1/1) and 'cancelled' Overseas Citizen of CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 19 of 43 India Card (Ex. PW1/2). He also filed the death certificate (Ex.PW1/7) of his father and which would show that the same was registered at the instance of Harminder Singh. Had the plaintiff been an interloper, he could not have possibly filed such documents from his possession. On the contrary, the defendant filed no document. Had he filed any document i.e. in the nature of passport, death certificate etc. of the owner and her husband, registered under a different registration number than the ones under plaintiff's possession, then of course a doubt could have arisen over plaintiff's very identity. But, merely shooting arrows in the dark over difference in the spellings would not suffice. Defendant will have to show something more. Relevant would it be to mention here an important circumstance. Plaintiff has in his evidence deposed that first floor of the suit property was under tenancy of Indian Bank and bank admitting him to be the true owner and landlord vacated the same and gave him possession on 21.11.2011 vide deed Ex. PW1/15. Defendant objection that document Ex. PW1/15 could not be considered as it was filed with the evidence by way of affidavit and not with the plaint merits rejection as it arose out of subsequent event that took place in November, 2011 and the plaintiff could possibly have not filed the same with his plaint on 29.09.2007.
31. Defendant's counsel drew Court's attention to plaintiff's (PW1) cross-examination and submitted that he was not in touch with his own real sister for the last ten years and that he did not know even her address. This, without anything more, would not suffice to establish that he is an interloper. Plaintiff is in the evening of his life, aged more than 70 years. It does happen that with the passage of time, one tends to loose contact with his acquaintances and also near and dear ones. And this is more so with a person in his old age. This is not something unusual. This Court is not inclined to attach any importance to this.
32. This Court is convinced that the plaintiff is none else but the son of the owner of the property as also her husband. Whether the owner of the property is described as Phoolawanti, Phool Wanti, Phoola Wanti, or CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 20 of 43 whether with the affixation of sirname Singh makes no difference. Similarly, whether the husband of the owner of the property is described as Surjeet Singh Ghogar, Surjeet Singh or with any other spelling phonetically similar makes no difference. There is hardly in a name and as Shakespeare said, in Romeo and Juliet, a rose by any other name would smell as sweet. This issue is thus accordingly answered in plaintiff's favour. Before parting with this issue, it must be stated that this defence of the defendant was entirely frivolous in nature. This issue is accordingly decided in plaintiff's favour and against the defendant.
33. Issue no. 1 - The issue is whether the tenancy of defendant's father late Sh. A.N. Sinha was validly terminated during his lifetime, by late Smt. Phoolawanti. The onus to prove this was upon plaintiff. Defendant in his written statement took the stand that monthly rental is Rs. 600/-. The plaintiff in the plaint did not disclose the rate of monthly rentals. Anyhow, plaintiff's own document (Ex. P-3), reflects that monthly rental in September, 1987 was Rs. 400/- besides water and electricity charges. This, from the own document of the plaintiff, only goes to show that tenancy of Mr. A.N. Sinha (defendant's father) was under the protective umbrella of Delhi Rent Control Act, 1958 by virtue of sections 3 (3) and 1 (2) thereof. The termination notice dt. 11.09.1987 (Ex. P-3) was issued by Advocate N.K. Shangle under the instructions from and on behalf of clientess Smt. Phoolawanti. It appears from the record that Mr. A.N. Sinha had himself replied to this notice vide his letter dt. 21.09.1987. Plaintiff placed on record this letter. Mr. A.N. Sinha addressed this letter to 'Sardar Surjit Singh Goghar'. Defendant (DW1) in his cross-examination very much admits that his father had replied to the termination notice Ex. P-3, but he added that he did not know the contents thereof. This only goes to show that Mr. A.N. Sinha was served with the termination notice dt. 11.09.1987 (Ex.P-3).
34. Notwithstanding the fact that Mr. A.N. Sinha's tenancy was 'terminated' vide notice dt. 11.09.1987 (Ex. P-3), yet this termination of notice was never given effect to and was never taken to its logical end of CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 21 of 43 filing an eviction petition under Delhi Rent Control Act, 1958. And, secondly, Mr. A.N. Sinha continued to remain a 'tenant' within the meaning of section 2 (l), Delhi Rent Control Act, 1958 notwithstanding the 'termination' notice dt. 11.09.1987 Ex. P-3 {see section 2 (l) (ii), Delhi Rent Control Act, 1958}.
35. This issue is answered by holding that tenancy of late Mr. A.N. Sinha had been 'terminated' during his lifetime in terms of notice dt. 11.09.1987 (Ex. P-3). However, this 'termination' was not given effect to and not taken to its logical end by the owner of the property. And secondly, notwithstanding this 'termination', Mr. A.N. Sinha continued to remain a 'tenant' within the meaning of section 2 (l), Delhi Rent Control Act, 1958.
36. Issue no. 2 - The issue is whether the present suit is not maintainable, as the defendant is allegedly protected under Delhi Rent Control Act. The onus to prove this issue was upon the defendant. Defendant's stand is that monthly rent of the premises is Rs. 600/- and as such he (defendant) is a protected tenant under Delhi Rent Control Act, 1958. It has been held hereinabove that tenant Mr. A.N. Sinha had the protection of Delhi Rent Control Act, 1958. It is an admitted position of the two sides that Mr. A.N. Sinha left for his heavenly abode on 03.12.1987. Consequently, by operation of law i.e. section 2 (l), Delhi Rent Control Act, 1958 Mrs. Rani Sinha 'succeeded' as the tenant. Section 2 (l), Delhi Rent Control Act, 1958, which defines 'tenant', is reproduced as under:
"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 sub-tenant;
(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 to this clause, such of the aforesaid person's-
(a) spouse, CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 22 of 43
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased 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-
opened under the proviso of section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);
(B) any person to whom a licence, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation 1.- 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 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, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such 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 in 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 extinguished shall not affect the right of any other succession 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, 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 CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 23 of 43 possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, develop on any of his heirs;
37. It is very clear that in terms of section 2 (l), Delhi Rent Control Act, 1958, the defendant after the demise of his mother could not have 'succeeded' to the tenancy. Explanation III of section 2 (l) of Delhi Rent Control Act, 1958, which was inserted to remove all doubts mandates that after the extinguishment of right of succession of an heir to the tenancy, such right shall not pass on to any other successor in the lower category. This explanation further states that right of a successor to continue in possession after termination of a tenancy shall be 'personal' to him and shall not after the successor's death devolve on any of his heirs. If any statutory tenant dies leaving behind his widow, son and parents, then the widow will inherit the rights of deceased tenant subject to the condition of her ordinarily living with the deceased tenant and further subject to the condition that she was financially dependent on him, but the son and the parents will not inherit any right of statutory tenant and on extinction of the right of the widow, the right will not survive and cannot be inherited either by the son or the parents of the deceased, who are in lower categories and the right will be extinguished. Therefore, in view of section 2 (l), Delhi Rent Control Act, 1958 the defendant could not have by way of succession continued in the tenancy after his mother's demise. By operation of law i.e. section 2 (l), Delhi Rent Control Act, 1958 the tenancy, which started with Mr. A.N. Sinha, came to an end upon the demise of his wife Mrs. Rani Sinha on 31.07.1992 and the defendant could not have, in the teeth of the law, 'succeeded' by way of 'succession' to this tenancy.
38. The defendant however took the stand that irrespective of section 2
(l), Delhi Rent Control Act, 1958 his possession of the premises is that of a tenant by way of creation of a fresh tenancy in his favour by the landlady. The defendant in this regard placed heavy reliance on the fact that after the demise of his parents he continued to pay the 'rent' against 'rent receipts' and this is reflected from several correspondences, rent CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 24 of 43 bills and rent receipts. The last such 'rent receipt' is Ex. DW1/9 dt. 21.01.1994 for the period from June, 1993 to August, 1993. Therefore, the evidence on record shows that after demise of Mrs. Rani Sinha on 31.07.1992 the defendant paid money described as 'rent' till August, 1993 i.e. for about a year only.
39. The law is well settled that mere payment of money described as 'rent' would not by itself suffice to create relationship of landlord-tenant. The parties must be ad idem on the point of creation of fresh tenancy and that the mere factum that 'rent' was paid like an 'ordinary tenant' will not suffice to hold that defendant was a tenant and further that it would essentially depend upon the original agreement between the parties (Manoharlal Vs. Ramratan, AIR 1924 Nag 67). There must be a transfer of interest in the immovable property by the landlord in favour of the tenant. For creation of a fresh transfer of interest, it is necessary that there must have been a fresh contract between the parties. Mere payment of money described as 'rent' may only prove permissive occupation not amounting to any right or title to possession. In Gulam Ghouse Sahib Vs. Chowdri D. Raja Rao, AIR 1947 Madras 436 Court came to the conclusion that the case did not come within the ambit of section 116, Transfer of Property Act despite the fact that 'rent' had been paid and 'receipt' had been issued. Further, in Delhi Jal Board Vs. Surendra P. Malik, (2003) 104 DLT 151 it was held that mere acceptance of 'rent', after expiry of the tenancy cannot renew or create fresh tenancy. Further, Apex Court in Sheodhari Rai and Ors. Vs. Suraj Prasad Singh and Ors., AIR 1954 SC 758 held that mere payment of 'rent' as evidenced by 'rent receipts' would not necessarily establish relationship of landlord and tenant and further that such payment of money may only prove permissive occupation not amounting to any right or title to possession. In Dr. H. S. Rikhy and Ors. Vs. The New Delhi Municipal Committee, AIR 1962 SC 554 certain 'receipts' for payment of 'rent' had been issued. It was held that the word 'rent' is not conclusive of the matter. The observations of the Apex Court are as under:
CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 25 of 436. It was also contended that it was admitted by the respondent that rent was received and receipts for rent were granted by its agents. The use of word 'rent' is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of the premises occupied by him. It may also be used in the generic sense; without importing the legal significance aforesaid, of compensation for use and occupation. 'Rent' in the legal sense can only be reserved on a demise of immovable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsbury's Laws of England (Third Edition, Vol. 23) at pages 536-
537. Hence, the use of term 'rent' cannot preclude the landlord from pleading, that there was no relationship of landlord and tenant. The question must, therefore, depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant.
7. In our opinion, the Act (Delhi and Ajmer Rent Control Act, 1952) applies only to that species of 'letting' by which the relationship of landlord and tenant that is to say, by which an interest in the property, however limited in duration is created.
10. ........ We have already pointed out that those definitions postulate the relationship of landlord and tenant, which can come into existence only by way a transfer of interest in immovable property, in pursuance of a contract. These definitions are entirely silent as to the mode of creating the relationship of landlord and tenant. Therefore, the question is whether the complete silence as to mode of creating the relationship between the landlord and tenant can be construed as making a provision, by implication, inconsistent with the terms of S. 47 of the Municipal Act. In our opinion, the mere absence of such provisions does not create any inconsistency as would attract the application of S. 38 of the Act.
40. In Trilok Singh Vs. Ram Prasad, 1971 RCJ 420 premises were let to an individual who entered into partnership and the rent was paid out of partnership fund. The firm was dissolved subsequently leaving the premises with a new partner. It was observed that it was futile to contend that the partnership firm was in reality the tenant of the landlord merely because 'rents' were paid out of the partnership business. In Firm Sardari Lal Vishwanath Nath and Others Vs. Pritam Singh, AIR 1978 SC 1518 it was held that something more than mere payment and acceptance of rent is required to show that lessor had assented to the lessee continuing in possession and that lessor intended the renewal of the lease. Reliance in this regard can also be had to the judgments of Shri CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 26 of 43 Ram Piston & Rings Ltd. Vs. Dr. Banwari Lal, 73 (1998) DLT 34 (DB); Smt. Moorti Vs. Smt. Parai Devi, ILR (1980) II Delhi 1624; Mohan Lal Goela Vs. Siri Kishan, ILR (1978) I Delhi 63; Nitin Jain Vs. Geeta Raheja, MANU/DE/3167/2015 and Bhawanji Lakhamshi and Ors. Vs. Himatlal Jamnadas Dani and Ors., AIR 1972 SC 819,
41. The law therefore is clear that the mere factum of payment and acceptance of money as 'rent', or issuance of any receipt thereof described as 'rent receipt', to a 'tenant' would not ipso facto suffice to establish relationship of landlord and tenant between the parties. The person claiming to be the tenant would have to plead and establish that there was a contract for transfer of interest in his favour by the landlord. Thus, the person claiming to be the tenant will have to establish something more than mere issuance of 'rent receipts' in lieu of money paid as 'rent'. In other words, payment of money as 'rent' against a receipt described as 'rent receipt' is a subsequent act and before that the contract for transfer of an interest in immovable property will have to be established.
42. In the case at hand, there was never any express contract, whether verbal or written, for creation of a fresh tenancy between the owner/ landlady and the defendant after Mrs. Rani Sinha's demise on 31.07.1992. There is neither any pleading on the part of the defendant to this effect nor is there any evidence on this count. The date and the place of any express contract for creation of a fresh tenancy is neither pleaded nor set out in the evidence. That apart, neither any terms of any such express contract for creation of a fresh tenancy have been set forth in the pleadings or in the evidence. The defendant admittedly as per his own cross-examination never met the owner/landlady after 1960s. There was never any correspondence between the owner/landlady and the defendant for creation of a fresh tenancy. Thus, there cannot arise any question of any express contract between the owner/landlady and the defendant. Further, it is neither pleaded nor shown in evidence that there was a certain express contract between Mr. R.P. Lakra (attorney of the owner) and the defendant for creation of a fresh tenancy after Smt. Rani Sinha's demise.
CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 27 of 43There is no document to this effect signed between Mr. R.P. Lakra and the defendant. There is neither any date and time pleaded or shown of any express contract in evidence, whether verbal or in writing, or any term thereof between Mr. R.P. Lakra and the defendant. Not only this, in this context, a question may also arise as to whether Mr. R.P. Lakra, being a mere attorney, was authorized by the owner/landlady to enter into a contract for 'transfer' of interest in her immovable property. What is therefore absolutely clear is that there was never any express contract between the parties, whether written or oral, for creation of a fresh tenancy in favour of a new tenant.
43. It was argued that by conduct and by implication a fresh tenancy came into existence in defendant's favour. It was argued that three rent receipts Ex. DW1/4, Ex. DW1/7 and Ex. DW1/9 coupled with three rent bills Ex. DW1/3, Ex. DW1/6 and Ex. DW1/10 and letter dt. 04.09.1993 Ex. DW1/1, all issued by Mr. R.P. Lakra, are consistently using the terms 'rent', 'rent receipt', 'rent bill' and 'tenant' and thus by necessary implication there was creation of fresh tenancy in defendant's favour by conduct and by implication. This Court is not inclined to accept this line of argument. Firstly, the moot question is whether Mr. R.P. Lakra, being a attorney, was authorized to transfer an interest in immovable property of the owner. I find no such evidence on record. There is no such pleading to this effect. The defendant has not led in evidence any material, much less pleaded, to show that Mr. R.P. Lakra, being the attorney, had the authority to transfer an interest in immovable property of the owner. Rather, averments in paras 4.5, 4.7 and 6.3 of the amended written statement would suggest that Mr. R.P. Lakra had the authority to 'collect' the monies described as 'rent', but not to travel to the extent of creating transfer of an interest in the immovable property. Further, para 4.8 of amended written statement would suggest that 'creation' of tenancy or transfer of interest in immovable property was within the domain of the owner and not the attorney. Assertions in defendant's evidence by way of affidavit would also show that Mr. R.P. Lakra's authority was to 'collect' monies paid as CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 28 of 43 'rent' and not to create transfer of an interest in immovable property of owner. It may be mentioned here that the defendant was given a suggestion in his cross-examination that Mr. R.P. Lakra had no authority from the owner to permit him to continue as tenant, and which suggestion he of course denied. There is another letter dt. 27.01.1996 filed on record by the defendant addressed to Ms. Phoolawanti at Thailand. In this letter, Advocate Mr. Parijat Sinha writes to Ms. Phoolawanti to clarify whether Mr. R.P. Lakra still continues as her attorney. Therein he further informs her that 'upon hearing from you in this matter, I shall be happy to further inform you about the details of the nature of representations made by said Mr. Lakra on and for your behalf'. It is apparent that by way of this letter it was being complained to the owner that her attorney was exceeding his authority, brief and limits. The inference that one gets from this is that he transgressing his authority, may be to illegally 'transfer' owner's interest in the immovable property to someone else. An attorney without a specific authority to transfer an interest in immovable property of an owner cannot do so. The point therefore is that it only goes to show that the authority of attorney Mr. R. P. Lakra was limited and not over- expansive and extensive. The onus is squarely upon the defendant to show and prove by way of positive evidence that to begin with the authority of attorney Mr. R.P. Lakra was extensive and over-expansive to the point of transferring an interest in immovable property. The defendant has miserably failed to prove this. There is another reason to doubt this assertion of the defendant. It is an admitted fact that vide letter dt. 11.09.1987 (Ex. P-3) the owner had served a notice of termination upon Mr. A.N. Sinha. Given this background, it is doubtful whether the owner would have entered into a fresh contract for a fresh tenancy in favour of a new tenant in August, 1992 and that too at a measly sum of Rs. 600/- per month. Furthermore, in the letter dt. 28.02.1995 (Ex. P-4) the owner does not refer to the defendant as a tenant. Therein, she had made it clear that the defendant had no right, interest and/or any claim in the property and that the owner reserved her right for his ejectment. If this was the express CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 29 of 43 intent of the owner in the notice dt. 11.09.1987 (Ex. P-3) and the letter dt. 28.02.1995 (Ex. P-4), then it is difficult to comprehend as to how the defendant claims that there had been creation of a fresh tenancy in his favour with the consent of the owner/landlady. Next, the statements of the defendant himself on this aspect are mutually destructive and contradictory. In para 4 of his original written statement the defendant had stated that after his father's demise, tenancy 'devolved upon his mother'. However, in para 4.2 of his amended written statement, he asserted that after his father's demise, it was he (defendant) who 'continued as a tenant' with consent of the landlady. Next, in para 6.2 of his amended written statement, he takes yet another turn and avers that the tenancy 'devolved' upon his mother and that she continued as tenant till her demise. Thereafter, in para no. 6.4A of his amended written statement he claims that he got the tenancy by way of 'succession' with the consent of the owner. In para no. 3 of his evidence by way of affidavit, he claims that after the demise of his parents he 'continued as tenant' in the property with the consent of the landlord. Therefore, it is to be noted that on the one hand the defendant claims 'continuance of tenancy' in his favour after his father's demise and in the same breathe he asserts that after his father's demise tenancy 'devolved' upon his mother. These contradictory pleas cannot go hand in hand. It only goes to show that the defendant himself is not clear as to when did he become the tenant. He is not clear as to whether the so-called fresh tenancy in his favour allegedly with owner's consent was done after his father's demise or after his mother's demise. There is one more aspect to be noted which is significant. The defendant in his averments claims 'continuance' of tenancy and also 'succession' of tenancy in his favour and not 'creation of a fresh tenancy' in his favour. Thus, in the face of his own averments in pleadings and evidence, how can the defendant possibly argue that there was creation of fresh tenancy in his favour. The crux of this is that own pleas of the defendant about creation of new tenancy in his favour are contradictory and mutually destructive. There is one more reason to turn down this plea of creation of CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 30 of 43 fresh tenancy. The defendant in his original written statement and in his amended written statement claimed that the suit was 'hopelessly barred by limitation' as late Phoolawanti died 'long before 1995'. In addition, as per him, the lis was also barred by limitation for having been filed after the statutory period of limitation from the alleged date of cause of action i.e. from the date of death of Smt. Rani Sinha. The suit came to be filed on 29.09.2007. If it is the stand of the defendant that the plaintiff cannot get back possession of the property for having come to the Court after more than 12 years of 'long before 1995', then the only inference that can be drawn is that he is indirectly and impliedly taking the plea of adverse possession. If it is further the stand of the defendant that the plaintiff cannot get back possession of the property for having come to the Court after more than 12 years of demise of Smt. Rani Sinha on 31.07.1992, then the inference that can be drawn is that he is indirectly and impliedly taking the plea of adverse possession. A person who claims himself to be a tenant may not take the plea of adverse possession qua the tenanted premises. These two pleas are mutually destructive. Once, a tenant starts taking plea of ownership by adverse possession, his tenancy must be taken to be no longer existing. For these multiple reasons, it is held that defendant has miserably failed to prove creation of a fresh tenancy with the consent of the owner either express or implied or by conduct. As already observed, under the law, mere description of money as 'rent' paid and accepted for occupation of property against 'rent receipts' will not ipso facto mean creation of a new tenancy. A person claiming tenancy in his favour will have to show something more than that. He would have to show in the first place that there was a contract with the owner for transfer of an interest in his favour in the immovable property. On the given facts and the evidence, this Court holds that after the demise of successor Smt. Rani Sinha on 31.07.1992, there was no creation of any fresh tenancy in favour of the defendant.
44. Ld. Counsel for the defendant argued that in the reply dt. 28.02.1995 issued on behalf of the landlady, tenancy of the defendant and CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 31 of 43 the factum of defendant paying rent was not disputed and neither vide the said reply the landlady asked the defendant to vacate. This argument has to be rejected for multiple reasons. The defendant cannot, to suit his own conveniences, take a plea and then at the same time junk the same. The defendant in his pleadings devoted several pages to plead that spelling of the name of a person must match. This reply dt. 28.02.1995 (first para thereof) would show that the same does not emanate from 'Smt. Phoolawanti w/o late Sh. Surjit Singh Ghogar', but from one 'Phool Wanti w/o Mr. Surjit Singh Ghogar'. If defendant's argument is to be accepted, then this reply must have been from an imposter and not from the real owner, who as per the defendant was only and only 'Smt. Phoolawanti w/o late Sh. Surjit Singh Ghogar'. Secondly, the defendant cannot be allowed to raise mutually destructive and contradictory pleas. In his pleadings the defendant states that reply dt. 28.02.1995 did not 'satisfy' him that landlady was alive and that Mr. R.P. Lakra thereafter never returned to collect or demand the rentals, leading to 'unimpeachable conclusion' that his own information that the landlady had expired earlier was correct. Therefore, how can the defendant now turn around and say that a dead person had made the alleged admissions. Or for that matter, can a reply be sent on behalf of a dead person. Relevant would it be note that this reply dt. 28.02.1995 was in response to the letter dt. 17.02.1995 where it was stated the defendant had 'reliably learnt' that the owner had passed away. Thirdly, in the reply dt. 28.02.1995 I find no admissions of 'tenancy' of the defendant. In this reply dt. 28.02.1995 (Ex. P-4), it is stated in para 1-4:
"1-4 The contents of paras 1 to 4 of your notice are wrong and are denied to the extent appearing hereinafter. It is incorrect to say that the said Mr. Ram Prakash Lakra has been representing to your client as alleged in paras under reply but as matter of fact, to the knowledge of your client, the said Sh. Ram Prakash Lakra was and is duly constituted and lawful attorney of my said clientess to whom you has had been sending money on her account. It is pre-posterous and wholly incorrect to say that my clientess has expired, but in fact, my clientess is very much live. Thus on the face of it, it is clear that your client has rendered himself to all appropriate civil and criminal CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 32 of 43 actions as stated in detail hereinabove. On a bare perusal of the notice, it is clear that your client has no right, interest and/or any claim in respect of the abovesaid premises and my client reserves her right to take all appropriate proceedings against your client for ejectment of your client from the said premises............. "
45. The aforesaid is extract of the reply dt. 28.02.1995 of the owner through her Advocate. I have also gone the entire reply dt. 28.02.1995. Where is the admission in this entire reply on the part of the owner that the defendant was a 'tenant'? I am unable to trace any. In this entire reply dt. 28.02.1995 the defendant has nowhere been referred to as a 'tenant'. This reply nowhere says that what was paid was 'rent'. This reply nowhere says that the owner stood in the position of 'landlady' vis-à-vis the defendant. In this entire reply, the owner is nowhere described as a 'landlady'. This reply nowhere states that the premises in question was 'tenanted' or 'demised', or for that matter 'tenanted' or 'demised' in defendant's favour. On the contrary, the aforesaid extract of the reply dt. 28.02.1995 would positively show that owner had stated in clear terms that defendant had no right, interest and/or any claim in respect of the abovesaid premises and she (owner) reserved her right to take all appropriate proceedings against him for his ejectment. In the reply it was, no doubt, stated that defendant was paying 'money', but as already stated, under the law, mere payment and acceptance of money would not suffice to establish landlord-tenant relationship. Fourthly, even assuming for the sake of mere arguments that in the reply dt. 28.02.1995, tenancy of the defendant and the factum of defendant paying rent was not disputed, then in that event was it not incumbent upon him to pay the rentals. Relationship of landlord-tenant necessarily entails 'rent'. The defendant takes the stand that he stopped paying the rentals thereafter for the reason that Mr. R.P. Lakra thereafter never returned to collect or demand the rentals. If Mr. R.P. Lakra did not return to collect or demand the rentals, should the defendant not have then deposited the same with the Rent Controller under section 27, Delhi Rent Control Act? The defendant CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 33 of 43 claims protection of Delhi Rent Control Act, but does not bother to fulfill the obligations upon him as enjoined by the same. He has paid not a single farthing for the last more than 23 years. Relevant would it be to mention here that defendant's Advocate Mr. Parijat Sinha in his letter dt. 16.10.1993 (Mark A), letter dt. 27.11.1993 (Mark B) and letter dt. 17.01.1993 (Mark C) wrote to Mr. R.P. Lakra that if he did not receive the rent receipt he would be 'constrained to deposit further amounts towards rent in the Court of the Rent Controller'. The defendant, after the owner's reply dt. 28.02.1995 (Ex. P-4), adopted an ostrich like approach by not paying any money for occupation of the premises in his own wisdom for the reason that that he had 'reliably learnt' that she had died long before 1995 and the reply dt. 28.02.1995 did not 'satisfy' that she was alive and further that he was of the 'unimpeachable conclusion' that she already died long before 1995.
46. Defendant's assertions in his pleadings that landlady/owner had died 'long before 1995' and the reply dt. 28.02.1995 (Ex. P-4) from her side that she was still alive did not 'satisfy' him and he was still of the 'unimpeachable conclusion' that she had already died long before 1995 is a false one and a tissue of lie. Firstly, this is false from the own document of the defendant. Defendant placed on record copy of letter dt. 27.01.1996 written by Advocate Parijat Sinha directly to Smt. Phoolawanti at Bangkok, Thailand to let him know as to whether Mr. R.P. Lakra continued to be his 'General Attorney' and further that he would happy to let her know the nature of representations which Mr. R.P. Lakra was making on and for her behalf. If indeed the owner had died long before 1995 and even the reply dt. 28.02.1995 (Ex. P-4) did not satisfy him, then why was such a letter dt. 27.01.1996 written to her, who was already a dead person in defendant's world-view. What is surprising is that a 'dead person' was being asked as to whether her General Attorney continues to be so. Secondly, letter dt. 17.02.1995 (Ex. P-1) issued to Mr. R.P. Lakra wherein such an assertion was made about her demise was based on some 'reliable information'. From where did the defendant get this 'reliable CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 34 of 43 information', is not stated. Thirdly, it is a piece of hearsay evidence being barred by sections 59 and 60, Evidence Act. Fourthly, the defendant discloses no date and place of her demise. In the letter dt. 17.02.1995 (Ex. P-1) the defendant makes no mention of her date of demise. He neither states therein that he had died 'long before 1995'. Fifthly, the plaintiff comes with a positive assertion of fact that his mother passed away on 01.05.1997. And lastly, way back in 1995 how other than writing that she was still alive could she have let the defendant know. She could not have video-called the defendant in 1995 to furnish proof to him that she was still in this world. Defendant' self-serving ipse dixit which are entirely vague, false and based on some unknown 'reliable information' cannot be accepted.
47. Now to certain judgments relied upon by Ld. Counsel for the defendant. Defendant's Counsel relied upon M/s. New Howrah Transport Company Vs. M/s D. M. H. P. Sales Ltd., MANU/DE/3162/2013 and invited Court's attention to para 29 thereof wherein it was observed, "The rate of rent is the determining factor to confer jurisdiction on Civil Court in a suit for possession." This judgment does not assist the defendant for the simple reason that it has already been held hereinabove that what was paid for about a year after the demise of Smt. Rani Sinha was not rent and it was rather recompense paid for exclusive possession of the premises. Relying upon Anthony Vs. K. C. Ittoop and Sons and Ors., AIR 2000 SC 3523 defendant's counsel submitted that if the landlord accepts rent from the tenant then there cannot be dispute to the landlord-tenant relationship. In the case at hand, there was never payment of any rent after Smt. Rani Sinha's demise and what was paid for about a year after her demise was not rent, but recompense for exclusive possession of the premises. Secondly, the fact situation of Anthony's case (supra) is altogether different from the present one. In that case it was none else but the owner himself who inducted the tenant into possession and tenant started paying monthly rentals thereafter. In this case the owner never, after Smt. Rani Sinha's CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 35 of 43 demise, created a new tenancy or put the defendant in possession and there was never any express or implied consent on her part for a new tenancy in defendant's favour. The next judgment is that of Sudhir Saran Vs. Gopi Krishan Verma and Ors. 2005 (79) DRJ 300. On the basis of this judgment, defendant's counsel argued that acceptance of rent by the landlord with the absence of any intention to evict him is sufficient to hold that tenancy continued in favour of tenant/successor. This judgment can be no avail to the defendant. Firstly, monies paid for about a year after demise of Smt. Rani Sinha was not rent, but recompense for exclusive possession of the premises. And secondly, in the case at hand, by virtue of operation of law i.e. section 2 (l), Delhi Rent Control Act, 1958 the tenancy that started with Mr. A.N. Sinha came to an end on the demise of Smt. Rani Sinha on 31.07.1992. The defendant could not have 'succeeded' to this tenancy in the face of the express mandate of the law. The next judgment relied upon is J. S. Panesar Vs. Santokh Singh and Ors., MANU/DE/0945/2010. On this basis, it was argued that a notice of termination can be waived by conduct and that acceptance of rent after expiry of notice can, if the conduct of the parties so indicate, create a new tenancy and such waiver can be inferred from the circumstances. In the case at hand, after the demise of Smt. Rani Sinha, the defendant could not have 'succeeded' to the tenancy that came into inception with Mr. A.N. Sinha in the face of the express mandate of law. And further, the circumstances and the evidence in the instant case do not indicate creation of a fresh tenancy in favour of the defendant.
48. For the aforesaid multiple reasons, I hold that defendant was/is not a tenant under Delhi Rent Control Act, 1958. I also hold that consequently the defendant cannot claim protection of Delhi Rent Control Act, 1958. It is rather strange that defendant claims to be a tenant sans a landlord and without paying any farthing for the last more than 23 years. This issue is thus answered against the defendant and in plaintiff's favour.
49. Issue no. - 3 - The issue is whether plaintiff is entitled for a decree of possession against the defendant. The onus to prove this was upon the CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 36 of 43 plaintiff. Defendant's Counsel relying upon Kedar Nath Vs. Sunil Kumar and Ors. MANU/HP/0458/2009, urged that without joining his sister Mrs. Rajender Paul Kaur in the present lis, the plaintiff cannot get possession of the property for the reason that in the plaint she was described as a 'joint owner'. Reliance upon this judgment is misplaced. In para 12 of this judgment it was observed, "When one of the co-owners files a suit claiming to be the sole owner and it is proved that he is not the sole owner of the property then in my view the suit would not be maintainable". Such is not the case here. Plaintiff in the instant case, stated himself to be 'joint owner' in the original plaint as well as in the amended plaint. He certainly did not file the instant lis 'claiming to be the sole owner'. In Mohinder Prasad Jain vs. Manohar Lal Jain, AIR 2006 SC 1471 Apex Court held that a co-owner can very well maintain an action for recovery of possession of a property and it is not necessary for him to show before initiating the proceedings that he has taken the consent or option of other coowners and further that however, where a co- owner objects, the same may be a relevant factor. In India Umbrella Manufacturing Co & Ors. Vs. Bhagabandei Agarwalla & Ors., AIR 2004 SC 1321, the suit house was jointly owned by two co-owners and leased out to two tenants. The co-owners jointly filed suit for eviction but midway, one of the co- owners transferred her interest to the partner of one of the tenant firm and then the transferee expressed his intention to withdraw the suit but this plea was not accepted. Apex Court observed that consent of other co-owner is assumed to be taken unless it is shown that the other co-owners were not agreeable and the suit was filed in spite of their disagreement. Apex Court further observed that one of the co- owners cannot withdraw his consent so as to prejudice the other co- owners and the suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjusted by reference to the date of institution of the suit, the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 37 of 43 by act of parties or by operation of law.
50. Defendant's counsel further argued that plaintiff is not entitled to the reliefs as sought for as he concealed several facts from the Court. Firstly, plaintiff allegedly concealed the factum of filing an earlier civil suit before the Court of Ld. ADJ in year 2006. It is relevant to mention here that the record would show that it was in fact a probate petition titled as 'Harminder Singh vs. State' for giving effect to the judgment of the Bangkok Court and the same was dismissed as withdrawn vide Order dt. 20.03.2007 without prejudice to the rights of the petitioner to resort to appropriate remedy as per law and the plaintiff herein was given liberty to file appropriate case as advised and as per law. Secondly, as per the defendant, plaintiff also allegedly concealed the fact that DDA had refused his application for mutation for want of his credentials. Thirdly, plaintiff also allegedly concealed the factum of filing a writ petition before Hon'ble Delhi High Court for seeking directions to DDA to mutate his name, wherein it was ordered that DDA would issue notice to his sister at the address given by him and which address, plaintiff's cross- examination would show, was not a correct one and the notice for mutation was not served upon her. To my mind, these are not concealment of 'material' facts. There can certainly be no denial from the settled principle of law that suppression of 'material' fact by a litigant disqualifies him from obtaining any relief. The rule has been evolved out of need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a 'material' fact. It must be material fact in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Mayar (H. K.) Ltd. & Ors. Vs. Owners and Parties, Vessel M. V. Fortune Express & Ors., AIR 2006 SC 1828; M/s S. J. S. Business Enterprises (P) Ltd. vs. State of Bihar & Ors., AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal Singh & Ors., AIR 2007 SC 581 can be referred to in this context. Filing of a probate petition earlier, which was withdrawn without prejudice to his rights to CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 38 of 43 resort to appropriate remedy as per law is not a material fact for the present lis. Non-disclosure of the same in the plaint can have no impact on merits of this case. In any case Court had given him permission to resort to appropriate remedy as per law. I find that on this score there has been no concealment of material facts by plaintiff. Non-disclosure of facts that DDA had earlier refused plaintiff's application for mutation for want of his credentials and that he then filed a writ petition before Hon'ble Delhi High Court for seeking directions to DDA to mutate his name are again not concealment and suppression of 'material' facts. The same have no bearing on this case. The same can have no impact on merits of this case. Even if it be that DDA had earlier refused to mutate his name, the fact remains that his name was successfully mutated in DDA records subsequently pursuant to the writ petition. Non-disclosure of fact about filing of a writ petition for mutation of name again has no bearings on the merits of the case.
51. It would be relevant here to list two circumstances of the instant matter. Firstly, the plaintiff has in his evidence deposed that first floor of the suit property was under tenancy of Indian Bank and bank admitting him to be the true owner and landlord vacated the same and gave him possession on 21.11.2011 vide deed Ex. PW1/15. Secondly, it is not the domain of this Court to travel beyond this case and go into the question whether the act of DDA in executing the conveyance deed in plaintiff's favor was right or wrong. Order dt. 02.03.2010 of Hon'ble Delhi High Court in W.P. (C) 4865/2007 titled as 'Harminder Singh vs. DDA & Ors.' would show that DDA on this score had passed an order after issuing notice to the plaintiff's sister at her Bangkok address as given by the plaintiff and it was then that the property came to be mutated in his name. Therefore, when Hon'ble Delhi High in its Order dt. 02.03.2010 found no fault in this course of action of DDA, how can this Court go behind the act of DDA in mutating the property in plaintiff's favour. That apart, what is the locus standi of the defendant to question execution of conveyance deed in plaintiff's favour. Defendant is certainly not a co-owner. He is not CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 39 of 43 a subsequent purchaser. The defendant, as per his own claims is a tenant only, and which claim has already been turned down hereinabove. Therefore, the argument that DDA's order in mutating the property in plaintiff's favour was incorrect is absolutely meritless.
52. Before parting with this issue, there is one argument of defendant's counsel that is required to be addressed. Ld. Counsel for the defendant argued that the plaintiff filed his amended plaint containing averments that were not even sought to be amended / added. He argued that the amended plaint is beyond the scope of the amendment permitted by the Court. Even if this argument were to be accepted, yet the fact remains that the suit as a whole remains the same; that the nature of reliefs remain same and that there is no substantial change in the amended plaint. Addition of averment that the suit was not hit by Delhi Rent Control Act or the name of sister and such minor additions of like nature in the amended plaint do not go to the root of the matter. To begin with, it was the case of the plaintiff that the defendant was not a tenant and in this event his adding that the suit is not hit by Delhi Rent Control Act is only a cosmetic addition. Other additions of such like nature are too cosmetic in nature. This argument would not ipso facto suffice to deny reliefs to the plaintiff and the same cannot be fatal to his case.
53. It is thus held that plaintiff is entitled to possession of ground floor, mezzanine floor and one garage of house no. 7-A/73, WEA, Karol Bagh, New Delhi. This issue is thus answered in plaintiff's favour and against the defendant.
54. Issue no. - 6 - The issue is whether the plaintiff is entitled to damages / mesne profits from the defendant and if so at what rate and for which period. The onus to prove this upon the plaintiff. Plaintiff in his evidence relied upon a copy of a lease agreement dt. 17.12.2012 (Mark F) between one Mr. Daljeet Singh and Lakshmi Narain Kesaria and another lease agreement lease deed dt. 27.05.2013 (Mark G) between one Ms. Ritu Chadha and others and Harsh Kaushal. Lease agreement Mark F is in respect of second floor of a property 6A/51, WEA, Karol Bagh, Delhi CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 40 of 43 showing monthly rental of Rs. 32,000/-. Lease deed Mark G is qua second floor of a property bearing Pvt. No.14 measuring 250 sq. ft., on ground floor, plot no. 55, block no. 4, Basti Rehgar, Western Extension Area, Karol Bagh, Delhi showing monthly rental of Rs. 30,000/-. However, these documents are 'not proved'. Nonetheless, there are catena of decisions that have held that while determining mesne profits the Courts are well entitled to take judicial notice of the increase in rentals of the area where the property is situated. Decisions reported as State Bank of Bikaner and Jaipur Vs. I. S. Ratta & Ors., 120 (2005) DLT 407; National Radio & Electrical Co. Ltd. vs. Motion Pictures Association, 122 (2005) DLT 629 and Motor & General Finance Ltd. vs. Nirulas & Ors., 92 (2001) DLT 97 can be referred in this regard.
55. Document Ex. P-3 reflects that monthly rental way back in September, 1987 of tenant Mr. A.N. Sinha was Rs. 400/- besides water and electricity charges. However, ever since then property prices have shot up astronomically. Similarly, the use and occupation charges of properties have shot up. It bears repetition to state that the defendant neither paid nor deposited under section 27, DRC Act with the Rent Controller even a single penny for occupation of the premises for the last 23 years. Taking judicial notice of astronomical increase in the property prices since year 1987 the following order is being passed qua mesne profits/damages. Plaintiff is awarded pre-suit mesne profits/damages with effect from 29.09.2004 at the rate of Rs. 18,000/- per month against the defendant. Plaintiff is also awarded pendent lite mesne profits/damages at the rate of Rs. 18,000/- per month against the defendant. Insofar as future mesne profits/damages are concerned, now that a decree for possession has been passed in plaintiff's favour and against the defendant, the defendant shall pay the same at the rate of Rs. 30,000/- per month. However, the plaintiff is required to furnish court fees on the total pre-suit and pendent lite mesne profits/damages, else the decree shall not be executable {Assistant Custodian-General of Evacuee Property and Anr. Vs. Lila Devi & Anr., (1980) 4 SCC 224}. This issue is accordingly CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 41 of 43 answered in plaintiff's favour and against the defendant.
56. Issue no. - 5 - The issue is whether the plaintiff has properly valued the suit for the purpose of Court fees and jurisdiction and whether he has affixed proper Court fees. Onus to prove this was upon the plaintiff. There is no evidence led one way or the other on this score. Plaintiff in his examination-in-chief (para 17) merely stated that the suit had been properly valued for court fees and jurisdiction with the requisite court fees thereon. Plaintiff filed this lis on the assertion that defendant has been in illegal and unlawful occupation of the premises. Plaintiff valued the relief of possession at Rs. 50 lacs. This valuation given in year 2007 to the relief of possession qua ground floor, mezzanine floor and a garage of the property appears to be reasonable. There is nothing in cross- examination of the plaintiff (PW1) to detract from this. In view thereof, it is held that the plaintiff has properly valued this suit for purposes of court fees for relief of possession in terms of section 7 (v), Court-fees Act, 1870. And in terms of section 8, Suits Valuation Act, 1887 valuation for the purposes of jurisdiction would remain the same i.e. Rs. 50 lacs. Now to valuation of the relief of mesne profits. Insofar as the relief of pre-suit and pendent lite mesne profits are concerned, the plaintiff put a tentative figure of Rs. 500/-. This tentative figure cannot be faulted with for the simple reason that plaintiff's assessment about the quantum of pre-suit and pendent lite mesne profits/damages that would be awarded to him upon an enquiry in terms of Order XX Rule 12, CPC can only be a guesswork. In this context, Apex Court decision vis-à-vis a suit for rendition of accounts reported as Commercial Aviation and Travel Company and Others Vs. Vimla Pannalal, (1988) 3 SCC 423 can be referred to. Plaintiff has however been given directions to pay the requisite court fees on the total pre-suit and pendent lite mesne profits / damages awarded. This issue is accordingly answered in plaintiff's favour and against the defendant.
57. Relief - The suit of the plaintiff is decreed in the following terms:
(a) Plaintiff is entitled to relief of possession against the defendant qua CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 42 of 43 ground floor, mezzanine floor and one garage of house no. 7-A/73, WEA, Karol Bagh, New Delhi. The defendant shall forthwith remove himself from the said premises. (b) Plaintiff is awarded pre-suit mesne profits/damages with effect from 29.09.2004 at the rate of Rs. 18,000/-
per month against the defendant. (c) Plaintiff is awarded pendent lite mesne profits/damages at the rate of Rs. 18,000/- per month against the defendant. (d) Plaintiff is awarded future mesne profits/damages till the date of delivery of possession of the premises in question to him at the rate of Rs. 30,000/- per month against the defendant. (e) However, the plaintiff is required to furnish court fees on the total pre-suit and pendent lite mesne profits/damages, else the decree shall not be executable. (f) Exemplary cost of Rs. 50,000/- is being imposed upon the defendant for taking few defences that were false and frivolous. (g) Cost of the suit is also awarded to the plaintiff. Decree sheet shall be drawn up accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 14.12.2017 (M. P. SINGH) ADJ-3 (CENTRAL) TIS HAZARI COURTS DELHI/14.12.2017 CS No. 712/16/07, New CS No. 620793/16 Harminder Singh V. Debamitra Sinha Page 43 of 43