Delhi District Court
Bal Kishan Dass Goel vs Mr. Tej Singh on 3 December, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 17040/16
In re:
Bal Kishan Dass Goel,
S/o Sh. Harbans Lal Goel,
R/o A-87, Sector-35,
Noida, Gautam Budh Nagar,
U.P.
.... Plaintiff
versus
1. Mr. Tej Singh,
S/o Sh. Richpal Singh
R/o C-150, Mahendru Enclave,
Near Model Town-III, Delhi-33
2. Mr. Ved Prakash Pal,
S/o Mr. Tej Singh,
R/o C-150, Mahendru Enclave,
Near Model Town-III, Delhi-33
.... Defendants
Date of Institution of the suit : 27.04.2015
Date of arguments : 05.11.2016
Date of order : 03.12.2016
ORDER
This order will dispose of the application under Order 7 Rule 11 CPC filed by the defendants.
1. Brief fact as set out in the plaint is that Plaintiff filed the present suit claiming himself to be the owner of the property bearing no. 168, I and II Floor, Katra Kawab, Chandni Chowk, Delhi-110006 shown in red colour in the site plan. Defendant no. 2 is the son and the alleged General Power of CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 1 of 8 Attorney of the Defendant no. 1 who is stated to be in Dasna Jail in connection with certain offenses.
2. It is stated in the plaint that Mr. Trilok Chand Jain, proprietor of M/s Jain Enterprises, was the tenant under plaintiff in the portion of above said property shown in green colour in the site plan herein after referred to as suit property. It is further stated in the plaint that earlier one Sh. Shyam Behari Santholia falsely claiming himself to be the owner of the suit property had filed a suit for possession and recovery of damages bearing no. CS No. 98 of 2002 against the plaintiff and the said tenant Mr. Trilok Chand. It is further averred that Mr. Trilok Chand Jain had admitted the relationship of landlord and tenant between him and the Plaintiff herein.
3. It is averred in the plaint that Sh. Shyam Behari Santholia expired on 08.12.2007 and the said suit stood abated and the legal heirs of Sh. Shyam Bihari filed an application under Order 22 Rule 3 and under Order 22 Rule 9 (2) for setting aside the order of abatement dated 15.08.2008 but the said application was dismissed by the court vide order dated 12.03.2013.
4. It is stated in the plaint that due to the threats of Mr. Trilok Chand Jain to hand over the possession of the tenanted premises to a third party and to do unauthorized renovation and structural changes in the tenanted premises, plaintiff issued legal notice dt 12.12.2014 to Mr. Trilok Chand and was constrained to file a suit bearing CS (OS) No. 3830 of 2014 against him before the Hon'ble High Court.
5. It is further averred that in the said suit No. 3830 of 2014 vide order dated 06.01.2015, Hon'ble High Court was pleased to direct Mr. Trilok Chand Jain to maintain status quo in respect of the possession of the suit property.
6. Mr. Trilok Chand Jain sent reply dt 9.01.2015 to the legal notice dt CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 2 of 8 12.12.2014 wherein he admitted that he was tenant under plaintiff @ Rs 5000/- per month. In the said suit Mr Trilok Chand filed written statement copy of which was received by the plaintiff on 06.04.2015, wherein he alleged that he had handed over the actual and physical possession of the suit property to the Defendants herein on 16.10.2014 by way of Surrender Agreement dt 16.10.2014. It is stated in the plaint that the said fact that Mr. Trilok Chand Jain had handed over the actual and physical possession of the suit property to the Defendant no. 1 through the Defendant no. 2 came to the knowledge of the Plaintiff only on 06.04.2015. It is further averred that by way of execution of the said surrender agreement dt 16.10.2014 Mr. Trilok Chand Jain had himself relinquished and determined his tenancy which relinquishment and determination of the tenancy, the Plaintiff accepts.
7. It is averred that the Plaintiff approached the Defendants through Defendant no. 2 on several dates between 07.04.2015 to 11.04.2015 and requested them to handover the actual, vacant, peaceful and physical possession of the suit property to the Plaintiff, but they through the Defendant no. 2, flatly refused to return the same to the Plaintiff, hence the present suit for recovery of possession under Section 6 of the Specific Relief Act (SRA in short) as he was dispossessed of the suit property without his consent otherwise than in the due course of law. Along with plaint plaintiff annexed site plan, copy of plaint of suit No. 98/2002, copy of written statement filed by plaintiff in the suit No. 98/2002, copy of written statement filed by Mr. Trilok Chand Jain in the suit No. 98/2002, Copy of Order dt 13.03.2013 passed in suit No. 98/2002, Copy of plaint of suit CS(OS) No. 3830/2014, copy of legal notice dt 12.12.2014, copy of order dt 06.01.2015 passed in CS (OS) No. 3830/2014, copy of reply dt 09.01.2015, copy of written statement filed by Trilok Chand Jain in suit CS(OS) No. 3830/2014 and copy of surrender agreement dt 16.10.2014.
8. Against the above stated factual pleading in the plaint, defendants have CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 3 of 8 moved the application under consideration. Shorn of fact which necessarily constitute defense of the defendant, it is mentioned in the application that suit of the plaintiff is barred by limitation as plaintiff on 12.03.2013 itself became aware of the defendant's No.1 ownership of the property (of which suit property form part), in the suit No. 98/2002 filed by erstwhile owner Shri Shyam Bihari Santhoila whose son after his death clothed with relinquishment by wife and daughter, sold the property (of which suit property form part) to the defendant No. 1 by registered sale deed 21.11.2011. It has been further mentioned in the application that no cause of action arose in favour of the plaintiff as defendants got possession of the suit property in suit No.108 of 2015 which defendant No.1 had filed against said Mr Trilok Chand Jain for possession wherein Mr Trilok Chand Jain surrendered the occupancy to defendant No.1 leading to withdrawal of the said suit by defendant No.1 with permission of the Court. It has been furhter stated that in the said suit plaintiff herein had filed an application for his impleadment alleging that Mr Trilok Chand Jain had intention to handover the possession but the said fact was concealed by plaintiff when he filed suit for injunction vide CS (OS) No. 3830/2014.
9. It has been further mentioned in the application that plaintiff has admitted in his pleading in the annexed documents that Mr Trilok Chand stated that "entire previous litigation in respect of the suit premises had been contested by the plaintiff (Bal Kishan Goel) himself as well as on behalf of the defendants who were only required to sign at the dotted lines being a tenant therein though had been contesting the entire proceedings indirectly on behalf of the answering defendant (Mr Trilok Chand) but have now sought his own impleadment as well as the party thereto and yet has failed to disclose the said fact before the Hon'ble High Court of Delhi in the aforementioned suit." In reply dt 09.01.2015 annexed with plaint Mr Trilok Chand stated that plaintiff was neither in possession nor the landlord of the suit property.
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10. It is further mentioned in the application that plaintiff has not proved forcible dispossession. It has been mentioned that Mr Trilok Chand was not dispossessed forcibly as possession was surrendered by him after executing surrender agreement dt 16.10.2014 in the suit filed by the defendant No.1 and therefore no illegal dispossession otherwise than in due course of law was pleaded which is a necessary ingredient for maintaining suit for possession under Section 6 of the SRA. It has been further mentioned in the application that plaintiff has not impleaded Mr Trilok Chand in the present suit. It has been further mentioned in the application the plaintiff in his written statement filed by him in suit No. 98/2002 claimed ownership by way of adverse possession but no documents have been filed to show that he was in adverse possession. It is contended that declaration/possession cannot be sought on the basis of unlawful possession of the premise by way of adverse possession.
11. Plaintiff has chosen not to file reply to the said application of the defendant and his Counsel has straightway argued the said application. Ld Counsel for defendants have argued on the lines of the application.
12. It is settled law that while considering application under Order 7 Rule 11 CPC, only plaint and plaintiffs documents is to be looked into. Defense or contents of written statement of defendant or his document is not to be taken into consideration.
13. Counsel for defendants has argued the application firstly on the ground of limitation. It has been argued that since 12.03.2013 plaintiff was aware of the fact that defendants were owner of the property but plaintiff filed the present suit only on 13.04.2015, hence the suit is hopelessly barred by time.
14. The contention for Counsel for defendants is misconceived as present suit is under Section 6 of the SRA and under the said Section a person dispossessed of property without his consent otherwise than in due course of CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 5 of 8 law, can file suit to recover possession within 6 months from the date of dispossession. Plaintiff has pleaded his dispossession on 16.10.2015 when defendants got possession of the suit property from Mr Trilok Chand Jain, plaintiff's tenant. Present suit was filed on 13.04.2015 which is within 6 months from the date of dispossession pleaded by the plaintiff. Hence suit cannot be said to be barred by limitation for the purpose of Section 6 of the Specific Relief Act. If defendant pleads some other day of receiving possession, same cannot be looked into for the purpose of disposal of application under Order 7 Rule 11 CPC.
15. As far as plaintiff on 12.03.2013 itself being aware of the ownership of defendants is concerned, same is not relevant for suit to recover possession under Section 6 of SRA as limitation for such suit is computed from the day of dispossession and not from the day one is claiming ownership in himself.
16. Next contention of the defendant is that plaintiff has no proof of ownership or title documents and plaintiff was never in settled possession of the suit property. This contention of the Counsel for defendant is not sustainable as in a suit to recover possession under Section 6 of the SRA question of title is immaterial. A person may not be owner of the property but still he can recover the same if he successfully proves his previous settled possession and his dispossession without his consent otherwise than in due course of law. Hence there is no force in the argument that plaintiff has no documentary proof of ownership. As far as question of plaintiff not being in possession ever is concerned, same is matter of evidence as it cannot be decided without affording opportunity to lead evidence to prove plaintiff's possession. Thus, on this ground plaint cannot be rejected as such.
17. Next contention of the defendant is that there is no illegal or forcible dispossession, hence therefore there is no cause of action. Ld Counsel for plaintiff has argued that while issuing notice of the suit, Hon'ble High Court CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 6 of 8 (when the matter was pending before it) was pleased to put question about the maintainability of the present by landlord and notice to defendants was issued only after noting the ruling of the Apex Court in the case titled as "Sadashiv Shyama Sawant( dead) through LRs and others v. Anita Anant Sawant (2010) 3 SCC 385 wherein it was held that if tenant is dispossessed, landlord can maintain suit to recover possession under Section 6 of the SRA.
18. Counsel for defendants argued that plaint itself disclose that no force was applied or law was taken in hand or no illegality was committed. It has been mentioned in the plaint that defendant No.1 herein had filed suit against said Mr. Trilok Chand Jain and in the said suit Mr Trilok Chand Jain had surrendered the possession to defendant No.1 through defendant No.2, so the ingredients required for maintaining suit under Section 6 of the SRA is conspicuously absent. Contention of the Ld Counsel for plaintiff is that plaintiff was in possession of the suit property through his tenant and the possession of the suit property from tenant has been obtained illegally without the consent of plaintiff otherwise than in due course of law and therefore all the ingredient of Section 6 of the SRA has been pleaded Ld. Counsel for plaintiff has relied upon the ratio of aforesaid Sadashiv (supra).
19. It is the contention of the defendants that as per plaintiff himself there is no forcible dispossession and therefore plaint is liable to rejected as plaint does not disclose cause of action. But the contention of the defendant is not sustainable for the reason that what is required to be seen is the dispossession without his consent otherwise than in due course of law. Section 6 of the Specific Relief Act does not use the expression "forcible dispossession" rather it uses the expression "dispossession without his consent otherwise than in due course of law" which in its meaning is larger than what the expression "forcible dispossession" means. Thus any dispossession which is without consent and without following due process of law is covered under section 6 of the said Act. In the present case plaintiff pleaded to be in legal possession CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 7 of 8 of the suit property through the tenant who violating his obligation under Section 108 (q) of the Transfer of Property Act delivered the actual possession to the defendant without the consent of the plaintiff and without following due process of law against the plaintiff. Due process of law means an opportunity of placing his case. Admittedly in the suit where tenant delivered the possession to the defendant plaintiff herein was not party, he was not heard and had no opportunity to place his side of the case. Hence it cannot be said that plaint does plead the ingredient of Section 6 of the Specific Relief Act and therefore cannot be said that plaint does not disclose the cause of action.
In view of the above application of the defendant is hereby is dismissed. However, it is made clear that nothing observed hereinbefore shall amount to expression on the merits of the case.
(Harish Kumar)
Announce in open court ADJ-13 (Central)/THC
(Order contains 8 pages) Delhi/03.12.2016
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