Delhi District Court
S/O Late Sh. Shiv Narayan Mehra vs Sh. Ganesh Singh (Chowkidar) on 7 June, 2012
1
IN THE COURT OF SH. ROHIT GULIA, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.435/08
Unique Case ID No 02401C1063112008
Sh. Dinesh Mehra
S/o Late Sh. Shiv Narayan Mehra,
R/o 7/34, Sector2, Rajinder Nagar,
Shahibabad, Ghaziabad, Uttan Pradesh.
..........................PLAINTIFF
VERSUS
1. Sh. Ganesh Singh (Chowkidar)
R/o 615, Terrace/Roof, Katra Neel,
Chandni Chowk, Delhi - 110006
2. Sh. S.K. Kullar
O/o 615/101102, Katra Neel,
Chandni Chowk, Delhi - 110006
3. Sh. Dinesh Singal
O/o 615/107, Katra Neel, Chandni Chowk, Delhi - 110006
.....................DEFENDANTS
Suit filed on - 06/08/2008
Judgment Reserved on - 30/04/2012
Date of decision - 07/06/2012
SUIT FOR RECOVERY OF POSSESSION AND MESNE PROFITS
Suit No.453/08 Page1/12
2
JUDGMENT: By this judgment I shall dispose off a suit for recovery of possession and mesne profits filed by the plaintiff.
1. The brief facts of the case as per the plaint are that the defendant no.1 is a watchman (Chowkidar) in the said property bearing no.615, Katra Neel, Chandni Chowk, Delhi110006 appointed by the shopkeepers of the said property.
That two years before on the behalf of the shopkeepers of the said premises the defendant no.2 Sh. S.K. Kullar owner of the shop bearing no. 615/101102 and defendant no.3 Sh. Dinesh Singal owner of the shop bearing no. 615/107 in the said property requested to the plaintiff to give some space on the terrace/roof to the defendant no.1 as temporary space for keeping his belonging and rest room.
It has been further mentioned that on the request of the defendant no.2 and 3, the plaintiff had given permissive possession of a tin shed room measuring 10" X 12" Sqr. ft. on the terrace/roof to the defendant no.1 without any charges of rent but only on the humanity ground.
It has been further mentioned that now plaintiff needs this space for his personal requirements and he requested to the defendant no.1 to vacate the said portion immediately and arrange some other place for living but the defendant no.1 is still in possession of the said premises illegally and refused to vacate the said premises, despite repeated requests and assurance given by him.
It has been mentioned by the plaintiff that he also requested to the defendant no.2 and 3 regarding this but they also ignored the request of the Suit No.453/08 Page2/12 3 plaintiff who have given assurance at the time of giving aforesaid space to the defendant no.1 that as and when the plaintiff will demand the possession of the suit property then they will immediately get the terrace vacated from the defendant no.1 and give peaceful possession of the suit property to the plaintiff.
That the plaintiff sent legal notice dated 11072008 through his advocate Shri. Mohinder Pal Singh which was sent through Regd. AD post and UPC on 11072008 to surrender the vacant and peaceful possession of the suit property in which defendant no.1 is living illegally within seven days from the date of receiving the said notice, to the plaintiff.
Accordingly, plaintiff has filed the present suit praying that the decree of vacant possession of the suit property as per the site plan be passed in favour of plaintiff and further the defendants be restrained from handing over the same to any third person alongwith costs of the suit.
2. The defendants have filed the WS wherein it is submitted that a tin shed room was constructed on the terrace/roof of property No. 615 Katra Neel, Chandni Chowk, Delhi110006 by the funds of Shiv Market Association with the consent and permission of the plaintiff. Shiv Market Association is giving Rs. 100/ per month as rent to the plaintiff and the plaintiff is regularly receiving Rs. 100/ per month as rent of tin shed room from Shiv Market Association.
It has been further mentioned that the suit of the plaintiff is not maintainable and liable to be rejected as per the provisions of Section 50 of Delhi Rent Control Act. The plaintiff can not evict his tenant from the rented premises (i.e. a tin shed room measuring 10 x 12 ft. on the terrace/roof of property bearing No.615, Katra Neel, Chandni Chowk, Delhi110006) through the medium of Suit No.453/08 Page3/12 4 present suit. All other averments made in the plaint were denied.
3. Replication was filed on behalf of plaintiff wherein averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
4. On the basis of the pleadings of the parties the issues were framed on 01/06/2009 which are as under :
1. Whether the plaintiff is entitled for the decree of possession as prayed for? (OPP)
2. Whether the plaintiff is entitled to the cost of the suit as per Order 20A CPC as prayed for? OPP
3. Whether the plaintiff is entitled to the mesne profit, if yes, then at what rate and for which period? OPP
4. Whether the suit is barred by Section50 of the DRC Act? OPD
5. Relief.
5. In order to prove his case the plaintiff got examined himself as PW1 who reiterated and reaffirmed the facts mentioned in the plaint. On the other hand in his defence the defendant got examined three DWs i.e. himself as DW1, Sh. Dinesh Singhal as DW2 and Sh. S.L. Khullar as DW3.
6. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under : Issue no.4 is a preliminary issue and it should be decided before all the issues. Therefore issue no.4 is taken up first.
Suit No.453/08 Page4/12
5
7. ISSUE NO.4 Whether the suit is barred by Section50 of the DRC Act? OPD The onus to prove this issue was upon the defendants. As per the defendants the suit is barred by the Section50 of the DRC Act as the rent of the premises is Rs.100/ per month and therefore the only remedies available to the plaintiff is to file eviction petition in the DRC Court.
In the plaint and Para 2 of the replication filed by the plaintiff it has been stated by the plaintiff that the defendant no.1 is only in the permissive possession of the suit property and the plaintiff has provided the suit property to the defendant no.1 only on humanitarians ground.
Now the question before the court is that whether the defendant no.1 is licensee or tenant in the property of the plaintiff.
Section52 of the Indian Easement Act defines license which is produced as under: "Section52 "License" Defined. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
As per this definition if one person grants to another a right to do something on an immovable property of the granter then such a right is called license. The permission or consent is the essence of the license and further such right should not amount to an easement or an interest in the property.
In this case it cannot be denied that the defendant no.1 was allowed to reside on the terrace of the suit property with the permission of the plaintiff and Suit No.453/08 Page5/12 6 same has been accepted by all the defendants.
Defendant no.1 in his crossexamination, as DW1, has categorically stated that the plaintiff has agreed to the construction of the room which was constructed by the Shiv Market Association and he was inducted in that room. Further the rent/license fee of Rs.100/ was being paid to the market association and not to the plaintiff and the salary of the defendant no.1 was also paid out of the funds of the market association.
Further in the crossexamination of defendant no.2, who was examined as DW2, it has been stated by him that the defendant no.1 was allowed to stay on the terrace of the building upon the curtsy extended by the plaintiff i.e. Dinesh Mehra for which he was thanked by the association. It has been further stated that the room was given to the defendant no. 1 as permissive user.
Further in the crossexamination of defendant no.3 who was examined as DW3 the same facts have been reiterated by him that the defendant no.1 was allowed to reside on the terrace of the suit property on the permission of the plaintiff and defendant no. 1 was residing only as a permissive user.
Therefore there is not doubt that the defendant no. 1 was occupying the terrace of the suit property on the permission of the plaintiff and the condition of the "permission" as given in the Section52 of the Easement Act is satisfied.
It is also clear that the said permissive use of the terrace by the defendant no.1 does not create any easement or interest in the favour of the defendant no.1 and the legal possession is still with the plaintiff and the said occupation was only permissive in nature and the defendant no.1 was only allowed to stay on the terrace so as to provide him an accommodation as he was Suit No.453/08 Page6/12 7 serving as the watchmen of the market.
Further the rent/license fee was paid by the defendant no.1 to the market association and he has never paid any rent/license fee to the plaintiff therefore it cannot be said that the defendant no.1 is the tenant of the plaintiff and he has got the rights available to the tenant as provided in the DRC Act.
In this case of 'Associated Hotels of India Limited V/S R.N. Kapoor' the Hon'ble Supreme Court lay down following test to determine whether the document is that of lease or a license:
1. to ascertain whether a document creates a license or a lease, the substance of the document must be preferred to the from;
2. the real test is the intention of the parties whether they intended to create a lease or a license;
3. if the document creates an interest in the property, it is lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a license; and
4. if under the document a party gets exclusive possession of the property primafacie, he is considered to be a tenant, but circumstances may be established which may negative the intention to create a lease.
Though there is no written agreement but we can still decide whether the occupation of the defendant no.1 was in the nature of a tenant or licensee on the basis of the principle led down in the above mention case.
Perusal of the record shows that the defendant no.1 used to pay the rent to the market association and not to the plaintiff and further it has not been denied by any of the defendants that the defendant no.1 was staying on the terrace of the suit property with the permission of the plaintiff therefore the only Suit No.453/08 Page7/12 8 intention which appears to be there between the parties was to create a relationship of licensor and licensee and not a relationship of lessor and lessee.
Further the defendant no.1 was not in the exclusive possession of the terrace and it has been accepted by the defendants in their crossexamination that all the shop owners in the building including the plaintiff and the defendants have common possession of the terrace and use the terrace commonly. It can also not be denied that the legal possession of the terrace was still with the plaintiff as he was the owner of the building and the shop owners of the building were only using the terrace as common and they were not in the legal possession of the terrace of the suit property.
In the light of the above mention discussion this court comes to the conclusion that the defendant no. 1 is the licensee of the plaintiff and is in the possession of the terrace of the suit property on basis of the license given by the plaintiff therefore Section50 of the DRC Act is not applicable in this case.
This issue is decided in favour of the plaintiff and against the defendants.
8. ISSUE NO.1 Whether the plaintiff is entitled for the decree of possession as prayed for? OPP The onus to prove this issue was upon the plaintiff. Now, the question comes that whether the plaintiff can revoke the license granted by him and get the possession of the terrace which is in the possession of the defendant no.1.
Section 60 of the Easement Act 1882 provides : License when revocable. A license may be revoked by the grantor, unless Suit No.453/08 Page8/12 9
(a) it is coupled with a transfer of property and such transfer is in force ;
(b) the licensee, acting upon the license has executed a work of a permanent character and in incurred expenses in the execution.
In the present case there was neither the transfer of property and nor the defendants has executed any work of a permanent character as the defendant no.1 is only staying in tin shed and it cannot be said that tin shed is a permanent structure.
Therefore it is clear that the plaintiff in this case could have revoked the license as neither of the conditions mentioned in Section 60 of the Easement Act is applicable to the plaintiff.
The only right available to the licensee upon revocation of the license is provided in Section 63 of the Easement Act which states that reasonable time should be given to the licensee to leave the property and to remove the goods.
In the crossexamination of defendant no.1, who was examined as DW1, it has been stated by him that he has received a legal notice through plaintiff for possession of the property is dispute. Therefore it is clear that the requirement of the reasonable notice was also complied by the plaintiff and the said legal notice is Exhibited as PW1/C dated 11/07/2008 which was replied by the defendant no.1 vide notice dated 30/07/2008 Exhibited as PW1/D. As the plaintiff has been able to prove that the defendant no.1 was licensee, therefore the defendant no.1 was bound to vacate the terrace of the suit property, as and when the plaintiff requires him to do so, upon service of a legal notice.
Suit No.453/08 Page9/12
10
As the license has been validly revoked by the plaintiff therefore now the defendant no.1 is only staying in the capacity of the trespasser on the terrace of the suit property therefore the defendant is liable to vacate the terrace and the plaintiff is entitled to get the possession of the terrace of the suit property.
Therefore this issue is decided in favour of the plaintiff and against the defendants.
9. ISSUE NO.2 - Whether the plaintiff is entitled to the cost of the suit as per Order 20A CPC as prayed for? OPP The onus to prove this issue was upon the plaintiff. The cost of the suit is given as per the discretion of the court and same will be granted to the plaintiff if this court comes to the conclusion that the plaintiff is entitled for the cost of the suit.
There is not need to decided this issue at this stage.
10. ISSUE NO.3 Whether the plaintiff is entitled to the mesne profit, if yes, then at what rate and for which period? OPP The onus to prove this issue was upon the plaintiff. Now it is clear that the defendant no.1 was a licensee in the suit property and after the service of the notice to vacate the terrace, he was living there in the capacity of a trespasser, therefore, the plaintiff is entitled for the mesne profits from the date of the service of the notice till he gets the peaceful and vacant possession.
Now the question is that what will be the rate of the mesne profits and who will be liable to pay the same.
Suit No.453/08 Page10/12
11
To decide this first of all rate of mesne profits and who is liable to pay the same should be decided. It is clear from the record that the defendant no.1 was paying Rs.100/ as monthly charges to the market association for occupation of the terrace and as the market association was accepting the rent therefore the market association will be liable to pay the mesne profits to the plaintiff but as the plaintiff has not made the Shiv Market Association as party to the suit therefore no such a relief can be granted to the plaintiff.
As the defendant no.1 was regularly paying the monthly charges to the Shiv Market Association therefore defendant no.1 is not liable to pay any mesne profits to the plaintiff and the Shiv Market Association was liable to pay the mesne profits. As discussed above the plaintiff has failed to make the Shiv Market Association as the party therefore no such mesne profits can be granted to the plaintiff.
Therefore this issue is decided against the plaintiff and in favour of defendants.
11. ISSUE NO.5 RELIEF In view of the findings given on issues no.1 to 4, pleadings of the parties, evidence led by the parties and the material available on record, the plaintiff has proved his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby decreed in his favour and against the defendant and following reliefs are awarded to the plaintiff :
1. A decree of possession in respect of terrace/roof of the property i.e. bearing No.615, Katra Neel, Chandni Chowk, Delhi 110006 in possession of the defendant no.1 as shown in site plan, Ext. PW1/A. The defendant is directed to Suit No.453/08 Page11/12 12 handover the vacant and peaceful possession of the said terrace/roof to the plaintiff.
2. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
(ROHIT GULIA) Civil Judge (West)2, Delhi Announced in the open court on 07/06/2012.
Suit No.453/08 Page12/12