Sh. Swatanter Pal vs . on 26 May, 2012

[Cites 15, Cited by 0]

Delhi District Court

Sh. Swatanter Pal vs . on 26 May, 2012

                                                                  1



IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
                           (WEST)02, TIS HAZARI COURTS:DELHI
                                                                   



RCA No. 42/11/10
Unique ID Case No.02401C0588042011
          In
Suit No.  1059/02



RCA No. 42/11/10
Sh. Swatanter Pal & Anr. 
                    Vs.
Sh. Gauri Shanker Gupta (Since Deceased)
Through LRs & Ors.
          *******


1.        Sh. Swatanter Pal
          S/o late Sh. Attar Singh
          R/o 534, Nai Basti,
          Kishan Ganj, Delhi110007

2.        Smt. Kamla Devi
          W/o  Sh. Kanta Prasad
          R/o 534, Nai Basti,
          Kishan Ganj, Delhi110007                                                                           ... Appellants


                               Vs.


 RCA No. 42/11/10                                                                                                              1/30
                                                                   2

Sh. Gauri Shankar Gupta (Since deceased)
Through LRs


1.        Sh. Deepak Gupta
          S/o  late Sh. Gauri Shankar Gupta

2.        Mrs. Madhu Aggarwal
          D/o Late Sh. Gaurishankar Gupta

3.        Mrs. Shobha Gupta
          D/o Late Sh. Gaurishankar Gupta

4.        Kumari Mridula Gupta
          D/o Late Sh. Gaurishankar Gupta

          All r/o B30, Nizamuddi East 
                     New Delhi110013

5.        Sh. Panna Lal (since deceased)
          Through LRs

(a)       Smt. Panna Lal (Widow)

(b)       Sh. Ram Singh (son)
          (Since deceased)


          Both r/o 8564, Model Basti,
          New Delhi.

(c)       Smt. Shakuntala
          W/o Sh. Banwari Lal


 RCA No. 42/11/10                                                                                                              2/30
                                                                   3

          C/o Sh. Ishwar Lal
          R/o Munshi Mohalla,
          Opposite Jain Dharamshala,
          Meerut, UP

(d)       Smt. Santosh (daughter)
          W/o Sh. Hari Bhagwan
          C/o Sh. Ishwar Lal
          R/o Munshi Mohalla,
          Opposite Jain Dharamshala,
          Meerut, UP                                                                                    ... Respondents

Date of  institution of the appeal08.3.2010
Date  on which, judgment have been reserved11.5.2012
Date of pronouncement of judgment26.5.2012


JUDGMENT:

The present appeal has been filed on behalf of the appellants against the impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court in Suit No. 1059/02 titled as 'Sh. Gauri Shankar ( since deceased) Through LRs Vs.Sh. Panna Lal ( since deceased) Through LRs & Ors.

It is pertinent to mention here that present appeal is connected with the appeals bearing RCA No. 32/11/10, RCA No. 33/11/10, RCA No. 34/11/10& RCA No. 35/11/10 and all these appeals are being disposed of simultaneously.

2. Brief facts necessary for the disposal of the present appeals are that RCA No. 42/11/10 3/30 4 a suit for recovery of possession was filed on behalf of the plaintiff Sh. Gauri Shankar Gupta ( since deceased ) in the year 1970 against the defendant Sh.Panna Lal (since deceased) before the Ld. Trial Court. It is pertinent to mention here that the said plaintiff Sh. Gauri Shankar has expired and he is being represented by his LRsSh. Deepak Gupta, Ms. Madhu Aggarwal, Ms.Shobhana Gupta and Ms. Mridula Gupta (respondent nos. 1 to 4 herein). Further, defendant no.1 Sh. Panna Lal has also expired and his LRs are respondent nos. 5(a) to 5(d) herein. The appellants herein i.e Sh. Swatanter Pal & Smt. Kamla Devi were the defendant no. 2&3 before the Ld. Trial Court.

In the aforesaid plaint, it has been stated that the plaintiff was the sole owner of the land Khasra No. 466 and 805/467 vide jamabandi for the year 196061 in the revenue state of Patti Jahanpura, Delhi and this land measuring 7.5 bighas is a part of the property earlier known as 'Bagh Barafkhana' in the locality Nai Basti, Kishan Ganj, Delhi. It is further stated that property in Bagh Barafkhana was one of the properties owned by the plaintiff's father namely Lala Manohar Lal, who died in the year 1946 and plaintiff's Chacha namely Lala Krishan Lal, who expired in the year 1968. It is stated that in July, 1947 the said Lala Krishan Lal filed a partition suit bearing no. 74/47 in the court of Civil Judge, Agra against two sons of late Lala Manohar Lal i.e. plaintiff Sh. Gauri Shankar and his younger brother Sh. Hari Shankar and the widow of Lala Monohar Lal, who also died in the year 1955. It is also stated that Bagh Barafkhana was one of the properties forming subject matter of the said suit for RCA No. 42/11/10 4/30 5 partition and the main dispute in the said partition was the extent of share of Lala Krishan Lal in Bagh Barafkhana. It is further stated that by virtue of compromise dated 28.03.1958 entered into by the parties to the said partition suit, each one of them was allotted a distinct portion out of the property Bagh Barafkhana and the said partition suit was decided in terms of this compromise vide judgment dated 26.05.1958. It is stated that formal partition decree regarding the above partition was prepared on 23rd September, 1961 in the Suit No. 74/47 and on 9th March, 1967 in RFA No. 93D/1960 in the Hon'ble High Court of Delhi. It is stated that during the pendency of the Suit No. 74/47, Lala Krishan Lal without any authority or consent of the plaintiff or his younger brother started granting improvident lease of the vacant land in Bagh Barafkhana to his employees etc and the plaintiff Gauri Shankar sought appointment of a Receiver to stop this and Hon'ble High Court of Allahabad vide order dated 05.05.1955, appointed Lala Krishan Lal as Receiver who had to deposit all the income derived from Bagh Barafkhana and was also to submit half yearly accounts in the court. It is stated that the said suit was compromised vide compromise deed dated 28.03.1958 and accordingly, the Hon'ble High Court of Allahabad terminated the said receivership vide order dated 02.05.1958. It is further stated that while assuming exclusive possession of his portion in Bagh Barafkhana after the aforesaid decision of 26.05.1958, the plaintiff found that sometime earlier Lala Krishan Lal allowed the defendant to occupy a part of the suit land and on this portion the defendant has RCA No. 42/11/10 5/30 6 surreptitiously built up a super structure which now bears the municipal no. 534/1, Nai Basti, Delhi. It is stated that since improvident lease had neither been sanctioned by the court administrating the receiver nor consented to by the plaintiff or his younger brother, the plaintiff served notice that he did not recognize the tenancy and demanded the possession. In reply, the defendant impliedly claimed tenancy under Kishan Lal & sons but declined to give any particulars or recognize the rights of plaintiff and his brother. It is stated that even if the defendant had any right to possession under Lala Kishan Lal , this right determined when the land let out by him fell to the share of the plaintiff and his brother on partition between the coowner in 1958. The defendant bound by the partition decree as a privy of Lala Kishan Lal than became liable to surrender vacant possession of land allegedly let to him by Lala Kishan Lal.

It has been stated that a formal warrant of possession was also granted by the Civil Judge of Agra on 30.11.1968 in favour of the original plaintiff and his brother Sh. Hari Shankar, LRs of Lala Krishan Lal and during the execution thereof, the delivery of the possession of the land in suit was resisted by and on behalf of the defendant and even after these proceedings, defendant did not attorn to the plaintiff and his brother thus again renouncing tenancy, if any. Thereafter, a notice dated 20.04.1970 was got served upon the defendant by the plaintiff, however no reply to the said notice was received which resulted in filing of the present suit before the Ld. Trial court, wherein it RCA No. 42/11/10 6/30 7 has been prayed that a decree of possession of the above said suit property may be passed in favour of the plaintiff and against the defendants. It was further prayed that decree for recovery of Rs.500/ with future rate @ 6% per annum till realization may be passed in favour of the plaintiff and against the defendant and it has also been prayed that a decree of mesne profit @ Rs.20/ per month may be passed against the defendant from the date of suit till the delivery of the possession of land in suit.

3. The defendant contested the above said suit and filed the written statement, wherein it was stated that since defendant happens to be tenant in respect of the disputed property, hence no suit for ejectment /possession was maintainable without seeking the permission from the Slum Authority appointed under Slum Areas (Clearance and Improvement) Act. It was further stated that the plaintiff has no locus standi to sue since the tenancy has not been terminated much less in accordance with law and hence suit for recovery of possession was not maintainable. It was further stated that the suit was barred by the principles of resjudicata and under order 2 rule 2 CPC and it was also stated that the suit was bad for non joinder of the necessary parties i.e LRs of deceased Lala Kishan Lal & other heirs of Sh. Manohar Lal.

In his WS, defendant no.1 claimed that he was in exclusive possession of the suit property earlier than the year 1958 and he also stated that he was inducted as tenant in the suit property by Lala Krishan Lal for self RCA No. 42/11/10 7/30 8 and on behalf of the plaintiff and his brother. It is further stated that the said tenancy was created well within the knowledge, permission and consent of the plaintiff, who never raised any objection or resisted in this regard although he was having knowledge that the defendant was in possession of the suit property and on this count also, if the plaintiff had any right, he had acquiesced the same and otherwise also the plaintiff was estopped to raise plea as was raised in the present suit. It has been stated that as per the permission of the landlords (inclusive of plaintiff), the construction was raised by the defendant and he has spent about Rs.25,000/ by raising building over the same and it was done within the consent, knowledge and permission and rather in the presence of and within the view of the plaintiff, who never raised any objection or finger or ever resisted to this effect, hence the plaintiff has acquiesced the same and otherwise also, plaintiff was estopped to raise the plea as has been raised in the present suit. It is stated that the plaintiff was one of the landlord/owners of the suit property and he has been attorn so, hence no question arose for abandoning the claim of tenancy. In the additional pleas in the W.S, it has been stated that the suit was barred by section47 of the CPC. It was further stated that if it is held that defendant was not a tenant, then the defendant has become owner of the property by virtue of adverse possession since he has been in possession of the property without any interruption for the last more than 12 years. All other averments made in the plaint were also denied on behalf of the defendants and it was prayed that the aforesaid suit filed on behalf of the plaintiff may be RCA No. 42/11/10 8/30 9 dismissed with cost.

Thereafter, the replication was filed on behalf of the plaintiff, wherein the averments made in the WS were denied as incorrect and those made in the plaint were reiterated as correct.

4. On the basis of the pleadings, issues were framed and the trial in the suit was conducted by the Ld. Trial Court and vide impugned judgment/ decree dated 9.11.2009 the aforesaid suit was decreed for possession in favour of the plaintiff and against the defendant on payment of Rs.2.5 lacs as compensation within four months from the date of decree, in respect of construction raised, to the LRs of defendant. The said suit was also decreed for mesne profit and damages in favour of the plaintiff and against the defendant @ Rs. 240/ per annum (Rs. 20/p.m.) w.e.f 1.5.1970 to 31.12.1979, mesne profit and damages @ Rs. 600/ per annum w.e.f 01.1.1980 till 31.12.1989, further @ Rs.1,600/per annum w.e.f 1.1.1990 to 31.12.1999 and Rs.4,000/per annum w.e.f 1.1.2000 till the date of passing of the decree and handing over the possession or two years from the date of decree whichever is earlier. In case of non handing over of the possession within two years of passing of the decree, the plaintiff shall be entitled to file fresh the suit for claiming the mesne profit and damages at the higher rate, if deemed proper by the plaintiff. The cost of the suit has also been awarded to the plaintiff and it has been held that the defendants shall not be liable to pay any mesne profit & damages in case they RCA No. 42/11/10 9/30 10 hand over the possession within four months from the date of decree.

5. Aggrieved by the aforesaid impugned judgment/decree dated 09.11.2009, the appellants have filed the present appeal, wherein it has been prayed that the aforesaid impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court may be set aside.

6. Upon filing of the present appeal, notices were issued to the respondent and they entered their appearances and contested the present appeal. Trial Court Record ( TCR) was also summoned and the same has also been received.

7. I have heard the arguments at length put forward on behalf of both te parties and have carefully gone through the record of the case. 8 . It has been submitted on behalf of the appellants that the impugned judgment/decree passed by the Ld. Trial Court is against the facts and material on record. It is further submitted that the Ld. Trial Court had failed to consider the fact that suit property is HUF in nature and only Karta of HUF can sue and be sued and the suit before the Ld. Trial Court by Sh. Gauri Shankar was without any right or authority and as such the said suit was not maintainable. It is further submitted that the Ld. Trial Court had failed to appreciate the fact that RCA No. 42/11/10 10/30 11 the suit of the plaintiff was hit by Article 66 of the Limitation Act as the said suit was filed by the plaintiff after the expiry of twelve years and according to records, the defendant was in possession prior to 1.1.1958 in his capacity as tenant and the arrears of rent upto 1.1.1958 was to be collected by late Sh.Kishan Lal only from him. It is also submitted that the Ld. Trial Court has failed to appreciate that the status of the appellants was of a tenant and not of unauthorized occupant and appellants have been in possession of the property prior to the year 1958 and the plaintiff admitted the same in the notice of 1970. It is submitted that the Ld. Trial Court failed to consider the fact that the suit of the plaintiff/respondent was barred by Section 50 of the Delhi Rent Control Act as the relationship between the plaintiff and the defendant was of landlord and tenant and the monthly rent is below Rs.3,500/. It is further submitted that the Ld. Trial Court failed to appreciate the fact that no notice u/s 106 of the Transfer of Property Act was given to the defendant therein by the plaintiff therein before filing of the present suit before the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to consider the fact that no notice was given to the defendant therein u/s 27 of General Clauses Act before filing the suit. It is further submitted that the Ld. Trial Court failed to consider the fact that the plaintiff therein used the word agricultural land in his plaint, however no notice under Delhi Land Reforms Act was given to the defendant therein before filing the suit. It is also submitted that the suit filed by the plaintiff before the Ld. Trial Court was barred by the provisions of Delhi Land Reforms RCA No. 42/11/10 11/30 12 Act . It is submitted that the Ld. Trial Court failed to consider the fact that no title document was filed by the plaintiff in the present case to show his right, title or interest over the suit property and as such the ownership of the suit property qua plaintiff therein has not been proved in accordance with law before the Ld. Trial Court. It is further submitted that the Ld. Trial Court failed to consider the fact that the suit property falls in the jurisdiction of the Slum Area and no permission was taken from the Competent Authority before initiating eviction proceedings against the defendant before the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to appreciate the fact that the exclusive right of the plaintiff therein over the suit property was not proved and that Rashid Kiraya Jameen Milkiyat Krishan Lal & Sons Ex. PW1/DC9 the word used was rent and as such the relationship between plaintiff & defendant therein was that of landlord & tenant and accordingly the jurisdiction was vested in the Rent Controller to try the dispute between the plaintiff and defendant therein. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the other LRs of Lala Krishan Lal were not impleaded in the array of parties and as such the suit was also bad for non joinder of the parties. It is submitted that the Ld. Trial Court failed to consider the fact that the market value of the suit property exceeded more than Rs.25,000/ at the time of filing the suit and hence subject matter was beyond the pecuniary jurisdiction of the Ld. Trial Court.

It has been further submitted on behalf of the appellant that the Ld. Trial Court failed to consider the fact that the partition suit was not proved as no RCA No. 42/11/10 12/30 13 certified copy of relevant documents was filed and even the concerned file was not summoned from the court at Agra and in the absence of the same, the shares of the parties to that suit were not defined. It is submitted that even the alleged partition suit was not decided on merits and the alleged compromise between the parties therein was collusive. It is further submitted that the suit filed on behalf of the plaintiff before the Ld. Trial Court was premature as the partition with the other LRs of Sh. Gauri Shankar Gupta and the present plaintiff before the Ld. Trial Court was decided in 1986 and the suit was filed in the year 1970 without any right, title or interest over the property in question. It is submitted that the Ld. Trial Court failed to consider the fact that the defendant was having exclusive right of superstructure, which was built/existed prior to 01.01.1958 and the plaintiff therein had no locus standi to file the present suit against the defendant before the Ld. Trial Court specially in view of the fact that there was no cause of action in favour of the plaintiff at any point of time and against the defendant therein. It is further submitted that the Ld. Trial Court failed to consider the fact that the site plan was not proved in accordance with the site and the same does not describe the suit property completely. It is submitted that the Ld. Trial Court failed to appreciate the fact that the possession of the appellant was not unauthorized in the suit property and the tenancy of the defendant therein has been upheld by the Hon'ble High Court of Allahabad. It is further submitted that the Ld. Trial Court failed to consider the fact that the damages were neither claimed nor proved by the plaintiff therein and whatever RCA No. 42/11/10 13/30 14 damages were allowed by the Ld. Trial Court were without jurisdiction, imaginary and fanciful. It is submitted that the Ld. Trial Court failed to appreciate the fact that the compensation granted to the defendant therein was inadequate and was not according to the present market value. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the judgment/order passed in the formal partition decree in the partition suit bearing No.74/1947 and RFA No. 93D/1960 were not passed on merits and as such the plaintiff before the Ld. Trial Court could never claim the ownership of the suit property on the basis of the suit decree as the same was not passed on merits. It is submitted that the Ld. Trial Court failed to consider the fact that the valuation of the suit property was done on the basis of letting value which implies that the appellants were tenants in the suit property and as such the suit for possession was not maintainable as the respondent were not the unauthorized occupants and as such the jurisdiction of the Trial Court was also barred by Section 50 of the DRC Act. It is submitted that the Ld. Trial Court has erred in holding that since the appellant/defendants have failed to pay or deposit the arrears of rent during the pendency of the litigation, they are presumed to have forfeited their right of tenancy and conversely it could also have been interpreted that the landlords have forfeited their ownership/ landlordship rights as they failed to claim or collect arrears of rent prior to 1.1.1958 and also thereafter and onwards till 30.4.1970 i.e the date of filing of the suit and Ld. Trial Court failed to consider and hold that the appellants i.e. RCA No. 42/11/10 14/30 15 LRs of Sh. Dalip Chand, in view of the aforesaid circumstances, had become owners being in adverse possession more than 12 years. It is submitted that the Ld. Trial Court failed to consider the fact that Lala Kishan Lal admitted throughout that the defendants therein were tenants settled by him in the suit property and were not unauthorized occupants and the same was also upheld by the Hon'ble Allahabad High Court on 28.8.1975. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the plaintiff therein had failed to discharge his onus to prove the issues framed by the Ld. Trial Court. It is submitted that the Ld. Trial Court failed to consider the fact that the suit filed on behalf of the plaintiff therein was not maintainable and same was hit by Section 11 CPC, Section 47 CPC and order II rule 2 CPC. It is further submitted that the Ld. Trial Court failed to appreciate the fact that the appellant/defendant therein were not bound by the consent decree as they never got opportunity to assail the same. It has been submitted that the impugned judgment/ decree passed by the Ld. Trial Court was based on conjuncture & surmises and was not sustainable in law and it has been prayed that the said impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court may be set aside.

In support of his contentions , Ld. Counsel for the appellants have relied upon the caselaw cited as AIR 1981 Madras 220, 1925 Privy Council 146 and 186 (2012) DLT 697.

RCA No. 42/11/10 15/30 16

9. On the other hand, it has been submitted on behalf of the respondents that there was no illegality or irregularity in the findings of the Ld. Trial Court in respect of the various issues except Issue no. 10. It is further submitted that in their WS, the defendant/appellant have taken the defence that they were tenant qua suit land however in the later part of their WS they abandoned their claims as tenants and propounded that they were owners by adverse possession and the said pleas of adverse possession and tenancy were admittedly mutually destructive. It is submitted that it is the case of the appellant that the plaintiff before the Ld. Trial Court was one of the coowner of the suit property and as such they were themselves estopped from disputing the title of the plaintiff and also locus standi of the plaintiff/respondent to maintain this action for possession.

It has been further submitted that when the suit property was purportedly let out to the LRs of defendant, it was only an open land and according to the defendants/appellants themselves the super structure existing at the site was raised by them later on and as such since there was no built up property at the site, the Delhi Rent Control Act was not applicable to the alleged tenancy in question. It is further submitted that in view of the non applicability of the Delhi Rent Control Act, the suit by the plaintiff before the Ld.Trial Court was not barred u/s 50 of the said Act. It is submitted that even otherwise the defendants/ appellant have not been able to prove their tenancy in respect of the immovable property which was subject matter of the suit and there is nothing on RCA No. 42/11/10 16/30 17 record to show that the appellants were inducted into the suit property prior to the institution of the civil suit for partition before the Civil Court at Agra in which the final decree for partition was passed by the said court. It is further submitted that as per their own version, the tenancy of the defendant/appellants commenced in the year 1955 and consequently the said defendants before the Ld. Trial Court being transferees pendente lite that too inducted by only one of the coowners namely Lala Kishan Lal, the purported transfers were not only hit by Section 52 of the Transfer of Property Act but also by the well settled principle that a lease for building purposes or a permanent lease can only be granted by all the coowners and not by one of them. It is submitted that the defendant/appellants having denied the title of the plaintiff in respect of the premises subject matter of this lis and having asserted title in themselves to the property subject matter of this action by adverse possession, their purported tenancy in respect of the said property stands determined by forfeiture. It is further submitted that there is nothing on record to show that there was any previous suit between the parties to this action which would bar the present suit. It is submitted that unless the title of the plaintiff in respect of the suit property is extinguished by law, the suit for possession on the basis of the title would be maintainable and would not be barred by section 47 CPC. It is further submitted that there is no material whatsoever to establish that there was any previous suit instituted against the defendant/appellant by the plaintiff Sh. Gauri Shankar through his LRs in which the plaintiffs did not seek the relief of possession and RCA No. 42/11/10 17/30 18 as such the suit of the plaintiff before the Ld. Trial court was not barred u/o 2 rule 2 CPC.

It has also been submitted that suit of the plaintiff before the Ld. Trial Court was not barred by the provisions of Delhi Land Reforms Act in view of Section1 of the said Act which provides that Delhi Land Reforms Act would not be applicable to the areas falling within the jurisdiction of a municipality . It is submitted that the caselaw relied upon by the Ld. Counsel for the appellant was not applicable as the facts & circumstances of the present case were different from the facts and circumstances discussed therein. It has also been submitted that there was no illegality or irregularity in the impugned judgment/decree dated 09.11.2009 passed b;y the Ld. Trial Court except for the findings in respect of Issue No. 10 and it has prayed that the present appeal filed on behalf of the appellants may be dismissed.

In support of their contentions, respondents i.e LRs of Sh. Gauri Shankar have relied upon the caselaw cited as (1998) 6 SCC 200, 2004 (3) SCC 178, AIR 1977 SC 1599, 1999 (1) AD 785 ( Delhi, DB), 154 (2008) DLT 211 & JT 2001 (Suppl.2) SC 297.

10. I have carefully considered the submissions made on behalf of the appellants & respondents and have carefully gone through the record of the case. I have also carefully perused the TCR and the caselaw relied upon by both the parties in support of their respective contentions. RCA No. 42/11/10 18/30 19

11. It has been submitted on behalf of LRs the appellants that Ld. Trial Court has failed to consider the fact that plaintiff Sh. Gauri Shankar had no locus standi to file the suit as suit property was HUF in nature and only Karta of HUF can sue and be sued and the suit before the Ld. Trial Court by Sh. Gauri Shankar was without any right or authority and as such the said suit was not maintainable, however the said contentions put forward on behalf of LRs of the appellant/defendants are devoid of any merits and are contrary to record as perusal of the record reveals that Sh. Gauri Shankar , original plaintiff before the Ld. Trial Court was one of the coowners of the suit property and this fact has also been admitted by the defendants therein in their W.S filed before the Ld. Trial Court. Infact the locus standi of Sh. Gauri Shankar, plaintiff therein was manifest from the averments made in the W.S, wherein the defendants themselves stated that Sh.Gauri Shankar was one of the coowner of the suit property and as such the defendants were estopped from disputing the title of the plaintiff and also locus standi of the plaintiff to maintain the suit for recovery of possession before the Ld. Trial Court. Even otherwise, Sh. Gauri Shankar , original plaintiff before the Ld. Trial Court was one of the coowners of the suit property and this fact was also evident from the partition decree in suit bearing no.74/47 filed by Lala Krishan Lal under whom the defendant therein have claimed the tenancy of the suit property since the year 1955. In addition to this, the order dated 26.5.1958 decreeing the suit bearing no.74/47 in terms of compromise deed dated 28.03.1958 (Ex. PW1/GL14), final decree RCA No. 42/11/10 19/30 20 in the said suit (Ex. PW1/GL19) and the final decree of the partition dated 09.3.1967 ( Ex. PW1/GL20) have been proved during the trial before the Ld. Trial Court and the aforesaid decree and the site plan clearly depict that suit property in the suit before the Ld.Trial Court had fallen in the share of Sh. Gauri Shankar original plaintiff before the Ld. Trial Court. It is pertinent to note that even the judgment dated 28.08.1975 (Ex. DW1/1) of the Hon'ble High Court of Allahabad relied upon by the defendant before the Ld. Trial Court refer to the aforesaid compromise deed and partition decree by which plaintiff Sh.Gauri Shankar has become the owner of the suit property in the suit before the Ld. Trial Court. Further, it is well settled that one of the co owners can file a suit for eviction against the tenant and such coowner does so on his own behalf in his own right as well as an agent of other coowners and the consent of other coowners is assumed taken unless it is shown that other coowners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement as has been laid down in the case cited as 2004 (3) SCC 178. In these circumstances and in view of the material on record, Ld. Trial Court has rightly held that original plaintiff Sh.Gauri Shankar had the locus standi to file the present suit before the said court .

12. It has been further submitted on behalf of the appellant/defendants that Ld. Trial Court had failed to appreciate the fact that the suit of the plaintiff was hit by Article 66 of the Limitation Act as the suit has been filed after the RCA No. 42/11/10 20/30 21 expiry of twelve years and according to records, the defendant was in possession prior to 1.1.1958 in his capacity as tenant, however the said submissions made on behalf of the appellants are devoid of any merits and are contrary to the record as the perusal of the record reveals that the defendants have been paying rent in respect of the suit property to Lala Krishan Lal till 1968 and as such the suit before the Ld.Trial Court have been filed within the period of limitation prescribed by law . It is pertinent to note that on the one hand, the appellant/defendants have submitted that the present suit is time barred, being beyond the period of limitation and on the other hand, they have also argued that the suit filed on behalf of the plaintiff before the Ld. Trial Court was premature as the issue of partition between other LRs of Sh.Gauri Shankar and the present plaintiff before the Ld.Trial Court was decided in 1986 and the present suit was filed in the year 1970. In these circumstances both these contentions raised on behalf of the appellant/defendants are contradictory to each other and are also mutually destructive as on one hand the appellant/defendants are submitting that the suit filed by the original plaintiff Sh. Gauri Shankar was time barred and on the other hand they are also raking up the issue of said suit, being premature and as such both these inconsistent averments made on behalf of the appellants are not tenable. Even otherwise from the material on record, it is evident that suit filed by the original plaintiff Sh. Gauri Shankar before the Ld. Trial Court was filed within the statutory period prescribed by law. It has also been submitted on behalf of RCA No. 42/11/10 21/30 22 the appellant /defendants that Ld. Trial Court failed to consider the fact that partition suit was not proved as no certified copy of relevant document was filed and even the concerned file was not summoned from the court atAgra and in the absence of the same, the shares of the parties to that suit were not defined, however the said contention raised on behalf of the appellants does not hold water as the perusal of the impugned judgment reveals that Ld. Trial Court has properly dealt with all these contentions/averments and have come to reasonable conclusions on the basis of the material on record. In this regard, it has been rightly held by the Ld. Trial Court that contention that judgment dated 26.5.58 ( Ex. PW1/GL14) and final decree dated 23.9.61 ( Ex. PW1/GL19) in Suit No. 74/47 being not certified copy is also without any basis as these are bearing proper endorsement and seal of Court at Agra and the endorsement in respect of the fee deposited and all these documents were filed in this case as early as 22.12.70 itself aloangwith final decree dated 09.3.67 ( Ex. PW1/GL20) as is clear from the endorsement of filing on these documents of the then SubJudge, First Class, Delhi and these documents were also having stamp of Head Copyist Judge's Court, Agra.

13. It has been submitted on behalf of the appellant/defendants that Ld. Trial Court has failed to appreciate that the status of the appellant/ defendant was of a tenant and not of an unauthorized occupant and defendants have been in possession of the property prior to the year 1958 and as such the RCA No. 42/11/10 22/30 23 suit of the plaintiff was barred by Section 50 of the Delhi Rent Control Act as the relationship between the plaintiff and the defendant was that of landlord and tenant and the monthly rent was below of Rs.3,500/. It is also submitted that Ld.Trial Court failed to appreciate the fact that in the document Rashid Kiraya Jameen Milkiyat Krishan Lal & Sons, Ex. PW1/DC9, the word used was 'rent' and as such the relationship between plaintiff & defendant therein was that of landlord & tenant and accordingly the jurisdiction was vested in the Rent Controller to try the dispute between the plaintiff and defendant, however the said contentions put forward on behalf of the appellants are devoid of any merits as admittedly, what was let out by Lala Krishan Lal to the defendant was only an open land and as per their own submissions, the super structure existing at the site was raised by the defendants later on although they have not been able to establish having obtain any municipal section therefor. In these circumstances, it is evident that initially what was let out to the defendants was only an open land and there was no built up structure thereon and as such , the Delhi Rent Control Act was not applicable in the instant case as it is applicable only in case of built up properties. In this regard, it is pertinent to note that Section 2(i) of the Delhi Rent Control Act provides that "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use and for any other purpose. In the instant case, admittedly what was let out initially by the Lala Krishan Lal to the defendant was only an open land and as such the action of RCA No. 42/11/10 23/30 24 the plaintiff before the Ld. Trial Court was not barred by the provisions of Section50 of the Delhi Rent Control Act.

It is pertinent to note here that on the one hand the appellants are claiming themselves to be tenant in the suit property, whereas on the other hand, they also claim that they have become owners being in adverse possession of suit property for more than 12 years. It is well settled that pleas tenancy and that of having acquired ownership by adverse possession are mutually destructive of each other as has been laid down in the case cited as 1999 (1) 785 (Delhi, DB). In these circumstances, the defendant having denied the title of plaintiff i.e Sh. Gauri Shankar in respect of the suit property of this lis and having asserted title in themselves in respect of the suit property by adverse possession, their purported 'tenancy' in respect of the suit property stand determined by forfeiture . Even otherwise, the defendants have been claiming tenancy since the year 1955 and as such the said defendants being transferees pendente lite inducted by only one of the coowners namely Lala Kishan Lal , the purported transfers are not only hit by the Section 52 of the Transfer of Property Act but also by the well settled principle that a lease for building purposes or a permanent lease can only be granted by all the coowners and not by any one of them. In this regard, it has been rightly observed by the Ld.Trial Court that defendants abandoned their claim of being tenant subsequently as they did not pay the rent after the death of Lala Krishan Lal to any one, although it was in their knowledge that portion in their occupancy was part of RCA No. 42/11/10 24/30 25 portion which had fallen in the share of plaintiff Sh. Gauri Shankar as they appeared and contested the application u/o 21 rule 97 CPC filed before Civil Court at Agra . Apart from that, the defendant did not attorn the plaintiff and continued to harp upon the plea that they had become owner by adverse possession and raising of the plea of adverse possession by a tenant result in termination of tenancy by forfeiture. From the material on record, it is evident that the defendant have never paid any amount at any point of time to the plaintiff as 'rent' nor they ever tendered the rent and even if the same would have not been accepted by the plaintiff, they would have done their duty and would have kept their contention of being tenant in respect of the suit property alive but they failed to do anything in furtherance of their contention of being tenant and as such they voluntarily abandoned their claim of tenancy and rather got it terminated by forfeiture by raising the contention of adverse possession and as such it has been rightly held by the Ld.Trial Court that the defendant were in possession of the suit property as 'unauthorized occupants' since the timing of filing of the present suit.

14. It has been further submitted on behalf of the appellant/defendants that Ld. Trial Court failed to consider the fact that plaintiff therein used the word 'agricultural land' in his plaint, however no notice under Delhi Land Reforms Act was given to the defendant therein before filing the suit. It is also submitted that Ld. Trial Court failed to appreciate that the suit filed by the RCA No. 42/11/10 25/30 26 plaintiff Sh.Gauri Shankar was barred by the provisions of Delhi Land Reforms Act, however the said submissions made on behalf of the appellants are devoid of any merits and are contrary to record as the suit of plaintiff before the Ld. Trial Court was not barred by the provisions of Delhi Land Reforms Act in view of the provisions of section1(2) (a) of the said Act, which provides that the said Act i.e Delhi Land Reforms Act shall not apply to the areas which are or may before first day of November, 1956 included in a municipality or a Notified Area under the provisions of Punjab Municipal Act 1911 or a Cantonment under the provisions of Cantonment Act, 1924. In the instant case, the suit property admittedly falls within the municipal limits and in fact, the municipal number have also been given to it and as such the present suit filed on behalf of the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was not barred by the Delhi Land Reforms Act. It has also been submitted on behalf of the appellants that Ld. Trial Court failed to consider the fact that suit property falls in Slum Area and no permission was taken by the plaintiff from the competent authority before initiating the eviction proceedings against the defendant before the Ld. Trial Court, however the said contentions put forward on behalf of the appellants do not hold water as the relevant provisions of the Slum Area ( Improvements and Clearance) Act are applicable only in case of a 'tenancy' and in the instant case, the defendants having propounded 'title' in themselves by prescription , cannot revert back to the plea that they were tenants. In fact, by asserting title in respect of the suit property by adverse RCA No. 42/11/10 26/30 27 possession, the above said defendants have let their tenancy regarding the suit property determined by forfeiture. Even otherwise, the Ld. Trial Court has held the defendants to be in possession as unauthorized occupant as is evident from its findings on issues no. 2&3 therein and as such the Slum Areas Act has no applicability in this case.

15. It has been submitted on behalf of the appellant/defendants that Ld. Trial Court failed to consider the fact that the suit filed on behalf of the plaintiff therein was not maintainable and that same was hit by Section11 and order 2 rule 2 CPC as well as by section47 CPC, however the said submissions made on behalf of the appellants are devoid of any merits and are contrary on record as from the material on record, there is nothing to show that there was any previous suit between the parties in which the plaintiff did not seek the relief of possession as has been prayed for in the present suit before the Ld. Trial Court. The present suit could not have been barred by earlier Civil Suit No. 74/47 as the said suit was the suit for partition of immovable property between coowners and the appellant/defendants were not even the parties to the said suit. Even otherwise, the said suit was instituted in the year 1947 and according to their own W.S, the defendant came in possession of suit property only in the year 1955 or there about. Further, it is well settled that unless the 'title' of the plaintiff in respect of the immovable property which was subject matter of the suit is extinguished by law, a suit for possession on the basis of RCA No. 42/11/10 27/30 28 the title would be maintainable and would not be barred by Section47 of the CPC as has been laid down in the case cited as 2000 (1) SCC 144 CPC. It is pertinent to note that suit filed by the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was suit in terms of OrderXXI, Rule 103 of the Old CPC and there can be no estopple against right of the plaintiff to sue for the recovery of actual physical possession of the suit property. In these circumstances and in view of the material on record, the present suit filed on behalf of the plaintiff Sh. Gauri Shankar before the Ld. Trial Court was not barred u/s 11 CPC or u/o 2 rule 2 CPC or u/s 47 CPC and as such the issue in this regard have been rightly decided by the Ld. Trial Court in favour of the plaintiff/ respondents and against the defendant/appellants

16. It has been submitted on behalf of the appellant/defendants that Ld. Trial Court failed to appreciate the fact that other LRs of Lala Krishan Lal were not impleaded in the array of the parties and as such the suit of the plaintiff before the Ld. Trial Court was also bad for nonjoinder of the parties, however the said contentions raised on behalf of the appellant are devoid of any merits as there is nothing on record to show that any necessary party has not been impleaded as a party in the suit before the Ld. Trial Court . Further, as far as the LRs of Lala Kishan Lal are concerned, it has been rightly held by the Ld. Trial court that from the material on record, it was evident that the suit property had fallen to the share of the plaintiff and impleadment of the RCA No. 42/11/10 28/30 29 erstwhile coowners was not necessary and as such there was no necessity of impleadment of Lala Krishan Lal or his LRs as parties to the present suit. It has also been submitted that Ld. Trial Court failed to consider the fact that no title documents were filed by the plaintiff in the present case to show the right, title or interest in the suit property and as such ownership of the suit property qua plaintiff therein had not been proved in accordance with law before the Ld.Trial Court. It is submitted that Ld. Trial Court failed to consider the fact that the damages were neither claimed nor proved by the plaintiff therein and whatever damages were allowed by the Ld. Trial Court the same were without jurisdiction imaginary and fanciful . It is also submitted that Ld. Trial Court failed to appreciate the fact that plaintiff therein had failed to discharge the onus to prove the issues famed in the suit , however , the said submissions made on behalf of the appellant/defendants are devoid of any merits and are contrary to the record as the perusal of the impugned judgment reveals that Ld. Trial Court has properly dealt with all the averments and contentions raised on behalf of the appellant/defendants and have come to the just and reasonable conclusions on the basis of the material available on record.

17. It has been further submitted on behalf of the appellant/defendants that the impugned judgment/decree dated 09.11.209 passed by the Ld. Trial Court was against the facts & material on record. It is also submitted that the said impugned judgment/decree was based on conjectures & surmises and was RCA No. 42/11/10 29/30 30 not sustainable in law, however the said contentions put forward on behalf of the appellant/defendants does not hold water and are contrary to the record as perusal of the impugned judgment/decree reveals that it is based upon the sound, cogent and just reasoning and the same has been passed on the basis of the proper appreciation of the material on record.

18. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the present appeal ( bearing RCA No. 42/11/10) filed on behalf of the appellants against the impugned judgment/decree dated 09.11.2009 passed by the Ld. Trial Court in Suit No. 1059/02 is devoid of any merits and the same is accordingly dismissed.

Decree sheet be prepared accordingly.

TCR alongwith copy of this judgment be sent back to the Ld.Trial Court.

Appeal file be consigned to the record room.

(Announced in the open )                                                         (Paramjit Singh)
( court on 26.5.2012)                                                              ADJ02 (West)
                                                                            Tis Hazari Courts Delhi
                                                                                       26.5.2012

 




 RCA No. 42/11/10                                                                                                              30/30
                                                                 31

                               RCA No.32/11/10



26.5.2012

Present :           Sh. Pradeep Kumar LR of Sh. Giri Lal in person. 

                    None for the LRs of Sh. Gauri Shankar.

Vide separate common judgment , announced in the open court, the appeal (bearing RCA No. 33/11/10) filed on behalf of LRs of Late Sh. Giri Lal is dismissed and the appeal (bearing RCA No. 32/11/10) filed on behalf of LRs of Sh. Gauri Shankar is allowed and accordingly, impugned judgment /decree dated 09.11.2009 passed by the Ld.Trial Court in Suit No. 1060/02 is modified to the extent that the finding of the Ld. Trial Court regarding the payment of Rs. 2.5 lacs as compensation to the LRs of the defendant therein has been set aside. Decree sheet be prepared accordingly.

The main judgment be placed in the file of RCA No. 32/11/10 and a copy thereof be placed in the file of RCA No. 33/11/10.