Delhi District Court
) Dr. Hargyan Singh vs Sh. Naresh Kumar on 29 August, 2011
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 26.05.2003
Judgment reserved on : 20.08.2011
Judgment delivered on : 29.08.2011
Suit No. 85/11/03 Unique Case ID No. 02401C03602004
1.) Dr. Hargyan Singh
S/o Late Sh. Pratap Singh,
2.) Smt. Jeet Kaur
W/o Late Sh. Pratap Singh
Both R/o : B162 C, First Floor,
East of Kailash, New Delhi110065. ... Plaintiffs
Versus
Sh. Naresh Kumar
S/o Late Sh. M. Keshav,
Shop No.15, BlockC,
Shopping Complex, East of Kailash,
New Delhi110065. ... Defendant
J U D G M E N T
1. This is a suit filed by the plaintiffs against the defendant for recovery of the possession of Shop No.15, D.D.A. Shopping Complex, East of Kailash, New Delhi (herein after called as 'suit property') and also Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 1 claiming mesne profits/damages to the tune of Rs.3,60,000/ along with an interest @10% for the period 20002003, for three years, legally recoverable up to the date of filing of the suit, @ Rs.10,000/ per month from filing of the suit up to the date of actual handing over the shop to the plaintiffs.
2. In nutshell, As per the plaint, the plaintiff No.1 is the son, whereas plaintiff No.2 is the wife of late Sh. Pratap Singh, the original allottee of the suit property. Both the plaintiffs being the legal heirs of the original allottee, became the owners thereof, after his death.
3. It is averred that the defendant was a licensee under the father of plaintiff No.1, and as such being known to him, was stated to have worked with him, and was in possession of the suit property as licensee, under his supervision and control, on the terms of sharing of the total income, earned from the suit property, i.e., the shop in question, at the ratio of 70:30 by the owner and the licensee respectively or an amount of Rs. 4,000/ to Rs.5,000/ as license fee, whichever was of the higher side, and thus since then, the father of plaintiff No.1 was receiving an average amount of Rs.4000/ to Rs.5000/ per month, as a license fee, for use and occupation of the suit property.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 2
4. That, after the death of the original allottee, the plaintiffs became the owners, being his legal heirs, who asked the defendant for rendition of the account for the actual earnings from the business, which he failed to render, and thereafter was asked to pay a lumpsum amount of Rs.10,000/ per month as a license fee, for use and occupation of the suit property.
5. That, the defendant did not pay the license fee as demanded by the plaintiffs, rather claimed that he was inducted as a tenant by father of the plaintiff No.1 @ Rs. 500/ per month, and preferred to file a civil suit No.278/95, and also obtained an exparte decree on 04.03.1997, besides also filed an application under Section 27 of DRC Act, for tendering the rent, and also filed another suit No. 19/2000, u/s 31 of Punjab Relief and Indebtedness Act, that was also disposed of exparte.
6. That the plaintiffs have served a legal notice dated 17.02.2003, revoking the license and directing the defendant to handover the possession of the suit property and to pay the arrears to the tune of Rs. 3,60,000/ for the year 20002003 @ Rs.10,000/ per month as license fee, to which the defendant replied on 24.02.2003, claiming that he being Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 3 the tenant in the suit property @ Rs.1,000/ per month, is protected by law, against the dispossession. Hence the suit.
7. The defendant in his contra pleadings, by way of Written Statement has taken preliminary objections that the suit of the plaintiff is barred by principles of Resjudicata, and also barred by the provisions of DRC Act, besides the suit being not properly valued.
8. On merits, the defendant has pleaded that he was inducted a tenant in 1984, by Late Sh. Pratap Singh, the father of plaintiff No.1 and the husband of plaintiff No.2, @ Rs.500/ per month, which was further increased to Rs.1,000/ per month in November, 1990, and was thus continuing as a lawful tenant, and was thus protected against the forcible dispossession, and thus prayed for dismissal of the suit.
9. The replication to the Written Statement was filed by the plaintiff, reiterating the facts as stated in the plaint, and also denied the averments of the defendant.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 4
10. Thus, on the basis of the pleadings, the plaintiffs submit that the defendant was a licensee in the suit property and after revocation of the license, was an illegal and wrongful occupation of the suit property, who was also liable to pay the mesne profits/damages @ Rs.10,000/ per month from the year 2000 onwards, for the use and occupation of the suit property, whereas the defendant claimed to be a lawful tenant, inducted in the suit premises in 1984 @ Rs.500/ per month, which was increased to Rs.1,000/ per month in 1990, and accordingly, vide order dated 21.10.2003, the following issues were framed: Issues (1)Whether suit is barred by the principles of constructive res judicata? OPD.
(2)Whether the defendant is a tenant in the suit property? OPD. (3) Whether the defendant is a licensee in the suit property? OPP. (4)Whether this court has no jurisdiction to try and entertain the present suit? OPD.
(5)Whether the suit has been properly valued for the purposes of Court Fee & Jurisdiction? OPP.
(6)Whether the plaintiff is entitled to decree of possession in respect of the suit property? OPP.
(7)Whether the plaintiff is entitled to damages if so, at what rate and for which period? OPP.
(8)Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
(9)Relief.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 5
11. The plaintiffs produced two witnesses namely Dr. Hargyan Singh, the plaintiff No.1 and Sh. S.P. Singh, the Handwriting and Fingerprints Expert, their affidavits were Ex. PW1/1 & Ex.PW2/A respectively, and they were crossexamined at length by the defendant.
These two witnesses exhibited the following documents:
1. Ex.PW1/1 is the letter dated 24.09.1982.
2. Ex.PW1/2 is the letter dated 02.05.1985.
3. Ex.PW1/3 is the copy of legal notice date 17.02.2003.
4. Ex.PW1/4 is the reply dated 24.02.2003 of legal notice.
5. Ex.PW2/1 is the report dt. 01.06.05 of handwriting expert.
6. Ex.PW2/2 to Ex.PW2/12 are the 11 negative films.
7. Ex.PW2/13 to Ex.PW2/23 are the 11 photoenlargements.
12. Thereafter, the defendant to establish its case and to prove the issues for which the burden of proof was laid on him, produced three witnesses namely Sh. Naresh Kumar, the defendant himself, Sh. Dayal Chand, Clerk of Punjab National Bank, Sh. Deepak Jain, Handwriting and Fingerprints Expert. The DW1 and 3 have tendered their affidavitsin evidence as DW1/A & DW3/A, respectively whereas DW2 was examined directly in the Court. These witnesses were crossexamined at length by the plaintiffs.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 6
These three witnesses exhibited the following documents:
1. Ex.DW1/1 is the certified copy of judgment and decree dated 04.03.1997 of Sh. Alok Agarwal, the then ld. Civil Judge, Delhi in case No. 278/95.
2. Ex.DW2/1 is the certified copy of account opening form
3. Ex.DW2/2 is the certified copy of request letter for opening a current account.
4. Ex.DW3/B is the report dated 11.02.2008 of handwriting expert DW3.
5. Ex.DW3/C (colly) are the enlarged photographs.
6. Ex.DW3/D (colly) are the negatives of photographs Ex.DW3/C.
7. Ex. DW2/P1 & P2 were the documents put to DW2 at the time of crossexamination by the plaintiff.
13. On conclusion of the evidence of the parties, the counsels tendered their written synopsis of their arguments and also addressed the oral arguments .
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 7
14. Ld. Counsel Sh. Tanmay Nagar for the plaintiffs has submitted that the defendant was inducted as a licensee with license fee @Rs.4,000/ to Rs.5,000/ per month, that was further increased @ Rs.10,000/ per month and his license was revoked by a duly served notice and thus he was in illegal occupation of the suit property thereafter, thus, the plaintiff was entitled to the relief of possession, as also for the relief of mesne profit/damages @ Rs.10,000/ from the year 2000, till the date of handing over the vacant and peaceful possession back to the plaintiff, and that the stand of the defendant that he was inducted as a tenant was not proved on record, nor he could prove that he was making the payment for use and occupation of the suit property.
It was further submitted that even the preliminary objections regarding the jurisdiction of the Civil Court cannot be sustained as the provisions of DRC Act are not applicable to the case. Also that the principles of constructive resjudicata do not bar the suit in any manner, as the earlier exparte decree was passed in both the suits filed by him, were of distinct cause of action than the one raised in the present suit.
Ld. counsel for the plaintiff has relied on the observations of the following cases: i. Ramchandra Dagdu Sonavane (Dead) by LRs. & Ors. Vs. Vithu Hira Mahar (dead) by Lrs & Ors., AIR 2010 SC 818 Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 8 ii. Gram Panchayat of Village Naulakha Vs. Ujagar Singh & Ors., AIR 2000 SC 3272.
iii. State of Haryana & Others Vs. M.P. Mohla, (2007) 1 SCC 457. iv. The workmen of Cochin Port Trust Vs. The Board of Trustees of the Cochin Port Trust and another AIR 1978 SC 1283.
v. Sultan Singh and Ors. Vs. Nand Lal (dead) & Ors. 29 (1986) DLT 349. vi. Jawahar Singh Vs. Jai Gopal, ILR (1972) 1 Delhi 63. vii. Khushi Ram Vs. Lal Mau, AIR 1983 Delhi 78.
viii. Sarla Ahuja Vs. Kundan Lal, 103 (2003) DLT 635. ix. Syed Mohd. Salie Labbai ( Dead) by LRs Vs. Mohd. Hanifa (dead) by Lrs and ors., (1976) 4 SCC 780.
x. Emmanuel Prem Masih & Anr. Vs. Delhi Diocesan Trust Association & Anr., 87 (2000) DLT 466 (DB) xi. Arya Orphange Vs. Alfred G. Wuerfel FC, 2009 (107) DRJ 318
15. Ld. Counsel Sh. T.C. Sharma for the defendant has vehemently countered the arguments addressed on behalf of the plaintiffs, submitting that the defendant has duly proved on record that he was a lawful tenant in the suit property, who has got the legal protection against dispossession in view of the exparte decree dated 04.03.1997, and as the said decree was never challenged, it reached the finality, which acts as constructive resjudicata against the present suit, thus warrants dismissal of the suit.
It was further submitted that the defendant being continued in perpetual tenancy, and was a regular pay master of the rent agreed, cannot Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 9 be asked for any damages or mesne profits, for use and occupation of the suit property, and no such dues as claimed in the suit were pending against him, therefore the claims in the suit are false and nonrecoverable, and the suit should be dismissed with exemplary cost.
16. On careful perusal of the records consisting of the pleadings and the evidence in the light of contentions of both the parties, the issue wise findings are as below:
17. Issue No.1 Whether suit is barred by the principles of constructive resjudicata? OPD.
The onus of proving this issue was laid on the defendant on the plea that the earlier suit No. 278/95, filed by the defendant was decreed on 04.03.1997, which was between the same parties, in respect of the same suit property, protects the defendant against any kind of ejectment/dispossession from the suit property, and as the decree has not been challenged, it has reached finality, which acts as constructive res judicata against filing of the present suit.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 10
18. In proving this plea, the defendant in his affidavitinevidence Ex.DW1/A has deposed that the injunction suit filed by him was decreed, vide Judgment/Decree dated 04.03.1997 Ex.DW1/1, wherein it was held that the defendant was the lawful tenant in the premises, and could not be evicted from the premises without due process of law.
On going through Ex.DW1/1, it is observed that it was an exparte judgment/decree, in which on the claim of the plaintiff that he was a lawful tenant in the suit property, and the defendants have attempted to forcibly evict him, the court has observed that he had no reason to disbelieve the case of the plaintiff, had accordingly passed the decree of permanent injunction, in favour of the plaintiff (the defendant in this case), restraining the defendants (the plaintiffs in this case) from dispossession from the suit property without due process of law.
19. It is clear from Ex.DW1/1 that the court had observed that there was no reason to disbelieve the case of the plaintiff (defendant) on his exparte evidence, and had thus protected against forcible dispossession from the suit property, but the legal proposition is explicitly clear that there was no bar or embargo put from adopting due process of law in obtaining the decree of possession, in view of the provisions of Section 5 & 6 of the Specific Relief Act, 1963, which provide that 'a Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 11 person entitled to possession of specific immovable property, may recover it in the manner provided by the Code of Civil Procedure, 1908', and any person who was dispossessed otherwise, then in due course of law, is protected within the decree of an injunction, passed in his favour.
20. In East India Hotels Ltd. Vs. Syndicate Bank, 1992 Suppl. 2 SCC 29 page 36, the Apex Court has explained the phrase, 'due process of law', wherein it is observed that 'Due course of law implies that right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the controversy by proof every material fact which bears on the question of fact or liability by conclusively proved or presumed against him'.
21. So far as the principles of resjudicata and constructive res judicata is concerned, the provisions under Section 11 of CPC, and the explanations attached thereto, particularly explanation VIII, makes it clear that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as resjudicata in a subsequent suit.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 12
22. It is explicitly held in State of Karnataka and Anr. Vs. All India Manufaturers Organization and Ors, AIR 2006 SC 1846, that the matter directly and substantially in issue in the previous litigation shall constitute resjudicata in subsequent proceedings, and in that case, the issues should have been raised by one party and expressly denied by the other. In the instant case, this is not the position qua the earlier exparte injunction decree, passed in favour of the defendant.
23. Further, there is a clear distinction between issue estoppel and resjudicata as held in Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.
24. It is invariably held in plethora of judgments by the High Courts and also by the Apex Courts that principles of resjudicata bars bringing of fresh suit for the same cause of action, but if the cause of action in two suits are distinct and distinguishable from each other, then filing of fresh suit shall not be barred, on the adjudication of an earlier suit. The observations in AIR 2009 MP 66 are relied upon. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 13
25. In the earlier suit in which the exparte injunction decree was passed in favour of defendant against the plaintiffs, were entirely on the distinct and distinguishable cause of action, than to the cause of actions raised in the present suit, as that was a protection sought against forcible dispossession, but in this suit the plaintiffs claim the possession of the suit property as the owners and title holders and in accordance with due process of law. The exparte decree Ex.,DW1/1 protects the defendants against forcible dispossession or dispossession without due process of law, but does not gain an absolute right of possession for life time, against the true owners or the title holders of the suit property. And this is not the case of the defendant that the plaintiffs were not the owners or were not entitled for the possession of the suit property.
Thus, the principles of constructive resjudicata does not operate against the present suit, on the face of the exparte judgment/decree Ex.DW1/1.
26. Therefore, on the basis of above discussions on law and facts, the defendant could not establish issue no.1 and therefore, it goes in favour of the plaintiff.
The issue no.1 is decided accordingly.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 14 27. Issues No.2, 3 & 4 (2) Whether the defendant is a tenant in the suit property? OPD.
(3) Whether the defendant is a licensee in the suit property? OPP.
(4) Whether this court has no jurisdiction to try and entertain the present suit? OPD.
Issues No.2, 3 & 4 are taken up together as all are interconnected and based on the same set of evidence of the parties.
28. The onus of proving the issues No. 2 and 4 is laid on the defendant and for issue No. 3 on the plaintiffs. The claim of the plaintiffs in the suit for the possession of the suit property was based on the plea that the defendant was a licensee in the suit property, and vide notice dated 17.02.2003, the same was revoked, and thus the defendant was under a legal obligation to handover the peaceful vacant possession of the suit shop.
29. Countering the same, the defendant has taken a plea that he is a lawful contractual tenant at a monthly rent of Rs. 1,000/ and as such is protected against eviction under the mandates DRCA by a suit of the present nature.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 15
30. For proving the said tenancy, the defendant examined himself as DW1 along with one Sh. Dayal Chand as DW2 and Sh. Deepak Jain as DW3.
31. On appreciation of evidence of DW1, it is observed in para 2 of his affidavitinevidence Ex.DW1/A that he has reproduced the same words and sentences inverbatim as para 5 of Written Statement that he was inducted as a tenant in 1984 by late Sh. Pratap Singh through an oral tenancy at the monthly rent of Rs.500/, which was subsequently increased to Rs.1,000/ per month, without electricity in November 1990. At the insistence of both the plaintiffs after the death of Sh. Pratap Singh, he continued as a lawful tenant in respect of the suit shop.
In support, DW1 has exhibited the certified copy of judgment/decree dated 04.03.1997, Ex.DW1/1 to show wherein that it was held that he was a lawful tenant, and was not to be evicted from the premises without due process of law.
However, Ex.DW1/1, only provides a recognition of the facts asserted by the plaintiff in an exparte adjudication, where the judgment was not passed on any issue framed or on adjudication by the court, holding that the defendant was a tenant in the premises. Thus, the defendant cannot escape or shift his burden of proving this issue, on the Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 16 basis of solitary document Ex.DW1/1. Also the defendant cannot assert a permanent protection against eviction on the basis of the said decree/judgment, as the protection was given only against forcible dispossession, and not against the right of possession of the rightful owner, if he adopts due process of law to assert such right.
Thus, it was on the defendant to prove that he was a lawful tenant in the premises in question. It is also a well settled principle of law that the averments that have been pleaded have to be proved by the pleader with very very specific detailed material, as the onus stands laid on him to establish the facts so pleaded. (reliance is placed on Sarla Ahuja Vs. Kundan Lal, 103 (2003) DLT 635.)
32. It is observed that on the test of crossexamination, DW1 has volunteered that 'rent receipt was given by the father of plaintiff No.1'. This witness has specifically denied the suggestion that no rent receipt was given by the father of plaintiff No.1. The consolidated effect of these two premises (statements) is that there was a proof of tenancy and the defendant could prove the tenancy through the said receipts. Surprisingly, no such rent receipts were either produced by the defendant in the earlier suit resulting in exparte judgment/decree Ex. DW1/1 nor in the present suit.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 17
33. It is a well settled principle of law that a document which is material to prove any fact on record, which is in his possession, if not produced, an adverse inference can be drawn showing that in case such document was produced, it could not support his case.
Reliance placed on Gopal Krishnaji Ketkar V/s Mohamed Haji Latif & Ors. cited as AIR 1968 SC 1413 wherein it was held that:
"Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue."
34. Further, there is an admission that the defendant was carrying on business of property dealing and also of toy business from the shop in question and also that the shop was registered with the SubRegistrar, Delhi, but he has not disclosed in the records of SubRegistrar that he was occupying the suit property as a tenant. He has also admitted that the electricity connection in the premises in question was in the name of late Sh. Pratap Singh and even the bills were received in his name. There is also a negation to the effect of any communication/letters with the plaintiffs to the effect that the defendant had ever tendered the rent at any stage or that the plaintiffs had refused to accept the same. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 18
35. Thus, it is clear that the defendant though claiming an oral tenancy with the father of the plaintiff No.1 since 1984, and has admitted that the rent receipts used to be given to him during his life time, but the defendant has miserably failed to produce any of the admitted documents, i.e. the rent receipts, which was the best evidence to prove the tenancy. As per record, except the bald statement of oral tenancy, defendant has not produced any proof for payment of rent, or any agreement governing the relationship between the parties, to establish the facts, that there existed any landlordtenant relations.
Further, in this case, the peculiarity of the facts are that the defendant admits that rent receipt used to be issued by Sh. Pratap Singh, then also the he has miserably failed to produce any proof of tenancy. The only document exhibited was judgment/decree Ex. DW1/1, which could not shift the burden of establishing the facts regarding the tenancy.
Further, it is also observed that the defendant has not disclosed either in the pleadings or in the affidavitinevidence or through any documents which could specify the date, month and the time of creation of the tenancy, or the facts showing on which terms it was created or whether it has some time or tenure of the tenancy. Mere saying that he was inducted in the year 1984 as tenant by one Sh. Pratap Singh @ Rs. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 19 500/ per month, and that rent was increased to Rs. 1,000/ in November, 1990 by the plaintiffs, can only be treated as a vague plea, thus it is difficult to believe such a vague plea, when the owner of the suit property takes a contrary plea that the defendant was only in the permissive possession as a licensee.
36. For such observations, the reliance is placed on Pandhu Dhondi Yerudker & Anr. Vs. Ananda Krishna Patil, AIR 1975 Bombay 52, wherein it was observed by the court that on a vague plea made by the defendant, contending that he is a tenant, the court should not even frame an issue, if the defendant is unable to furnish the detailed particulars about the tenancy, regarding the time and terms of tenancy.
Only on the admitted fact that the defendant was in possession of the suit premises, does not make him a tenant, if the defendant is not able to establish as to 'in what capacity' he was in possession of the suit premises, particularly, when there exists a contrary plea.
Thus, it is observed that the defendant could not establish the facts on record through his independent unrebutted evidence to show that he was a tenant in the premises and was paying a monthly rent @Rs.500/ or @ Rs. 1,000/ at any point of time.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 20
37. So far as issue No. 4 which concerns the jurisdiction of this Court, it is absolutely dependent on the findings of issue No. 2, which was framed on the plea that the Civil Court has no jurisdiction as there is a relationship of landlordtenant between the parties, and the Civil Courts' jurisdiction was barred u/s 50 of DRCA.
38. For establishing this issue, the onus was laid on the defendant, and as the defendant has failed to discharge the burden of establishing that he was a tenant, or that there was a relationship of landlord and tenant between the parties, the question of falling the case within the provisions of DRCA does not arise, and hence even this issue is decided against him.
39. Now coming to issue No. 3, which was framed on the plea of the plaintiffs that the defendant was a licensee in the suit property, the onus of establishing the plea was laid on the plaintiffs.
40. As per the pleadings in the suit, the defendant was personally known to late Sh. Pratap Singh as he was rendering personal services to him in carrying on the business in the shop and thus was permitted to remain in possession as a licensee, on the terms of either sharing the Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 21 earnings of the business, between Sh. Pratap Singh and the defendant in the ratio of 70:30, or to pay a license fee of Rs. 4,000/ to Rs. 5,000/ per month, whichever was on the higher side.
It was also pleaded that after the death of Sh. Pratap Singh, the defendant was allowed to continue with the same arrangement, but was asked to render the accounts of actual earnings in 199293, he refused doing so, the plaintiffs demanded an amount of Rs. 10,000/ as a license fee for the use and occupation of the suit premises.
For establishing these facts, the plaintiff No. 1 examined himself as PW1 and also produced one Sh. S. P. Singh, a Handwriting & Finger Print Expert as PW2.
In the affidavit Ex. PW1/A, in para 3 to 7, PW1 in his depositions with support of the exhibited documents Ex. PW1/1 to PW1/4, has testified that due to the factum of the defendant rendering services to his father, the defendant was allowed the permissive possession of the suit property as licensee.
On the test of his crossexamination PW1 has denied the suggestions that the relationship between his father and the defendant was not of licensee or that the defendant was not rendering the personal services either to his father or to his grand father or to him. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 22
41. It is observed that for proving the plaintiffs' plea about the relationship between late Sh. Pratap Singh and his father with the defendant and of rendering personal services by the defendant to both of them, the plaintiff has exhibited two documents Ex.PW1/1 & Ex.PW1/2. The suggestions regarding the forging and fabrication of the documents were denied at the time of crossexamination of this witness.
42. On appreciation of the nature of the documents, it is observed that the documents Ex.PW1/1 & 2 were each written by Makhan Singh and Late Sh. Pratap Singh (the father and grand father of plaintiff No.1) respectively, addressed to DD (CE)/DDA and Complaint Authority Urban Land (C & R) Act, 1976 through which one Naresh Mishra, the bearer of the letters was authorized to act on behalf of both of them.
43. Further, the plaintiff has deposed in the affidavit that these two letters are the proof that 'Naresh Mishra', who is defendant in the suit, was personally known to his father and his grand father, who was rendering personal services, qua business in the shop in question, and due to trust and faith, he was allowed to remain in possession of the shop to carry the business, on their behalf, on certain arrangements of sharing the earnings which was basically the 'license fee' for the permissive use and occupation of the suit property.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 23
44. Thus, on appreciation of the depositions of PW1 in its entirety, it is observed that though these documents have been denied by the defendant, but he has admitted that 'he knew the father and the grand father of plaintiff No.1' (i.e. Makhan Singh and Pratap Singh, the authors of these two letters Ex.PW1/1 & 2). He has also admitted signatures at point Y (of Pratap Singh) on Ex.PW1/2. He denied his signatures on the letters, but no where either in the pleadings or in his evidence questioned the contents of the letters or that the person named Naresh was not referring to him.
45. Moreover for proving the signatures of defendant on these documents, the plaintiff has examined Sh. S.P. Singh as PW2, who has examined the questioned signatures on documents Ex.PW1/1 & 2 with the admitted signatures of defendant on vakalatnama dated 12.07.2003 and with the sample signatures on bank specimen card/account opening form of the account of the defendant with PNB at East of Kailash Branch. PW2 has deposed vide affidavit Ex.PW2/A at para 4 that as per his opinion, the questioned & admitted signatures were of the same person.
46. Further, it is observed that this witness was crossexamined at length but did not revert back on the material facts, regarding the opinion Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 24 on the signatures of the defendant on the questioned documents, even the suggestions to the contrary were denied.
More so, the defendant has also produced one Sh. Dayal Chand as DW2, from Punjab National Bank with the records, ie., account opening form of the defendant and the certified copy of the document was exhibited as Ex.DW2/2. At the time of crossexamination of DW2, the plaintiff had put two documents Ex.DW2/P1 and P2, the certified copies of account opening form and specimen signatures of the defendant , the witness admitted that the documents had the signatures of the defendant.
47. To counter these facts, the defendant has examined DW3, another handwriting expert.
On appreciation of evidence of DW3, it is observed that this witness has admitted that he has not examined the signatures of defendant Naresh Kumar appearing on the written statement or on the vakalatnama filed by him in the suit and he has deposed that he has taken into account only the signatures of the defendant on the bank records but unfortunately, during trial, the defendant has failed to produce the original bank records. And the nonproduction of the documents leads to an adverse inference even with regard to the handwriting report/record Ex.PW3/B to D, that in case the originals of the bank record were Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 25 produced, it could not have supported the case of the defendant. (Reliance is placed on the case cited as Gopal Krishnaji Ketkar V/s Mohamed Haji Latif & Ors. cited as AIR 1968 SC 1413, Supra).
However, the plaintiff has put two documents Ex.DW2/P1 and P2, the certified copy of the bank records, at the time of cross examination of DW2, who has admitted that such documents were the true certified copies of the original documents of the bank record, and that their originals are not traceable in the bank, and thus are not produced. It is strange that after issuing the certified copies, the record was not traceable.
Whereas DW3 has also admitted that there were some similarities in all letters between the disputed and admitted signatures and differences occur because of any forgery involved in the free hand signatures. It is also admitted that the witness was called as a witness only in those cases, in which he had given the report in favour of the client engaging him.
48. Thus, if all these documents along with the depositions of PW2, DW2 and DW3 are read together, the plaintiff is able to prove that the signatures of the defendant were there on documents Ex.PW1/1 Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 26 & 2, thus proving not only the existence of the documents, but its contents are self revealing showing not only the relationship of the defendant with the father and grandfather of the plaintiff No.1, but also that the defendant was working with both of them, in the shop in question.
Also, on the basis of the defendant's admission that he was carrying on business in the shop in question, and that the shop was registered with the SubRegistrar, Delhi, where he had not disclosed anything regarding his tenancy, and also that there was a MTNL telephone connection in his name installed in the shop, and that the electricity connection and the Bills were in the name of late Sh. Pratap Singh, it can safely be concluded that the father and grandfather of the plaintiff No.1 were the owners of the shop, wherein some business was carried on by them, but the defendant was only acting on their behalf, though was in physical possession.
49. From the records, it is also clear that neither the plaintiff nor the defendant has pleaded anywhere that the possession of the defendant was forced one, or that the defendant was not in permissive use of the shop, for carrying the business.
Thus, it can safely be concluded that not only the relations of the defendant with father and grandfather of plaintiff No.1, in respect to Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 27 the shop, but also that the possession of the defendant was only for the purpose of carrying on the business on their behalf, stand established.
50. As the defendant has failed to prove that he was in possession as tenant or that he was paying the rent @ Rs.500/ per month, in the eventuality of permissive possession being proved, on the aforementioned facts, the plaintiff has duly proved that the defendant was in possession of the shop as licensee, on certain terms/arrangements agreed with the father and the grandfather of the plaintiff No.1, who had been adjusting the license fee with the earnings of the business. Though, it is not clearly established on record, as to what exactly was the license fee, but finding no rebuttal on the facts, that on not rendering of any account of the earnings of the business, the plaintiffs demanded a license fee @ Rs.10,000/ per month, the same was never paid by the defendant, the license was terminated by the plaintiffs, through the notice dated 17.02.2003. On serving upon such notice of termination, the plaintiffs have claimed the possession.
51. Now, if we appreciate the totality of facts, brought and established on record by both the parties, it is observed that it is not in dispute that the plaintiffs being the legal heirs of late Sh. Pratap Singh are Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 28 the owners of the suit property. It is also a proved fact as not disputed that the defendant was in possession of the suit property and that the possession was permissive and not forcible, and that the defendant was carrying on business in the suit property. It has been established that the defendant was known to late Sh. Pratap Singh and his father and was working with them in the suit property. It has also proved on record that the defendant was deputed, on trust and faith by late Sh. Pratap Singh and his father, and was authorized to act on their behalf qua the suit property.
52. It is also observed that the defendant could not establish the factum of landlordtenant relationship with late Sh. Pratap Singh, though during his life time he was inducted by him in the suit property, and that the possession of the defendant of the suit property was not forcible but permissive.
53. It is a well settled principle of law as settled in Uday Pratap Singh vs. Collector Varanasi, AIR 1991 Allahabad 104 , that in case the owner has all the supervisory powers to regulate the running of the shop (the refreshment stall in that case), no exclusive right was intended to be created in favour of the party in the manner he choose to do so, then there Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 29 was no transfer of interest in the suit property and in that circumstances as per such terms of agreement, the agreement can be termed as license and not a lease.
54. In the instant case, the suit property in question in short was meant for the purpose of running a business. It is established on record in the evidence of DW1 that it was registered with SubRegistrar, Delhi and the defendant had not disclosed that he was occupying the same as a tenant.
It was also established on record that the telephone connection was in the name of the defendant, but the electricity connections and the bills were in the name of late Sh. Pratap Singh and that the defendant was not maintaining any books of accounts, even the kaccha account, and he had never written any letter or communication to the effect of tendering any rent, at any stage, in any mode, either by money order or post.
Thus, on the basis of letters documents Ex.PW1/1 & 2, all these facts indicate that the defendant was not in exclusive possession of the suit property or was not carrying the business in the suit property exclusively, excluding the owner of the suit property, which shows an intention of the owners, having supervisory control over the business, and that the agreement/ arrangement between late Sh. Pratap Singh and the Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 30 defendant were of "licensee and licensor", and not otherwise to create an interest of the defendant in the suit property.
55. It is also a well settled principle of law that where the transactions/arrangements constitute a personal privilege of possession of the suit property, the relationships are generally in the nature of license, and not lease.
For such observations the reliance is placed on the judgment of the Division Bench of this Court in Ramapuri Vs. Golden Plastic Industries, 1988 Vol. 47 DRJ 742, wherein it was held:
'that where the transactions in question constitute only a personal privilege the relationship in the nature of license, and not lease'.
56. Ld. Counsel for the plaintiffs has relied on the authorities cited as Emmanuel Prem Masih & Anr. Vs. Delhi Diocesan Trust Association & Anr., 87 (2000) DLT 466 (DB) and Arya Orphange Vs. Alfred G. Wuerfel FC, 2009 (107) DRJ 318, to support his contentions, but it is observed on perusal of these authorities, that the principles laid in these cases are not relevant to the present case, being the agreements in these cases were on entirely different footing and documents, distinguishably different from the facts in hand. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 31
57. Thus on the basis of above discussion on law and facts, it is established on record that the defendant could not prove issues No.2 & 4, whereas the plaintiffs have established their claim raised in issue No.2.
Thus all the three issues are decided in favour of the plaintiffs and against the defendant.
58. Issue No.5 Whether the suit has been properly valued for the purposes of Court Fee & Jurisdiction? OPP.
The onus of proving this issue negatively is casted on the defendant and affirmatively is on the plaintiffs, but the defendant apart from a bald statement in the pleadings in para 4 of preliminary objections, that the property be valued on the market rate, which could not be less than Rs.10.00 lacs, for which proper court fees has not been paid, and it is beyond the pecuniary jurisdiction of the court, no evidence has been preferred on such pleadings, not even an iota of depositions in this regard find mention in the affidavit of the defendant Ex.DW1/A. Thus, the defendant did not lead any evidence in support of the pleadings in this regard to show that the property in suit was not properly valued for the purpose of court fee and jurisdiction, the court is of the view that the Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 32 defendant has miserably failed to prove that the suit was not properly valued.
To the contrary, the plaintiffs, in affirmative have submitted that they have paid the court fees on the basis of the annual license fees claimed @ Rs.10,000/ per month for 3 years legally recoverable up to the date of filing of the suit.
He has relied on the authorities titled as Sarla Ahuja Vs. Kundan Lal, 103 (2003) DLT 635, submitting that the valuation of property in accordance with the annual damages claimed is proper and accordingly, the court fees has been paid for the relief of the possession.
59. As the plaintiffs claim that the defendant was a licensee, who was liable to pay the license fee/damages @ Rs.10,000/ per month, he has valued the suit property accordingly, and in the absence of any counter evidence to prove contrary, the court is of the view that the suit is properly valued, for the purpose of court fees and jurisdiction.
Thus, this issue is also decided in favour of plaintiffs and against the defendant.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 33 60. Issue No. 6
Whether the plaintiff is entitled to decree of possession in respect of the suit property? OPP.
The onus of proving this issue was on the plaintiffs as the plaintiffs are claiming the possession of the suit property in the suit.
61. It is not disputed that the plaintiffs are the legal heirs of late Sh. Pratap Singh and also that Late Sh. Pratap Singh was the original allottee of the suit property in question, and thus are the owners, after the death of Sh. Pratap Singh.
From the records, it is also not in dispute that the defendant is in possession of the suit property. The only dispute was regarding his capacity to possess such suit property. On the basis of findings on issue No.2, it has been adjudicated that the defendant was not a tenant in the suit property and as the issue No.3 has been decided in favour of the plaintiffs, concluding that the defendant taken to be a licensee in the suit property.
It is an admitted fact that the notice dated 17.02.2003, Ex.PW1/3, revoking the license of the defendant was duly received by the defendant, who replied the said notice on 24.02.2003, vide document Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 34 Ex.PW1/4. Thus, the plaintiffs have established on record that the license was revoked qua suit property against the defendant. As the license, in any suit property is only of permissive in nature, and does not create any right to the possessor, thus on withdrawal of such permission by revoking the license vide document Ex.PW1/3, the defendant is not entitled to continue therein. Thus, the plaintiffs being the owners of the suit property are entitled to receive the possession of the suit property from the defendant.
Thus, this issue is also proved in favour of the plaintiffs. 62. Issues No. 7 & 8
7. Whether the plaintiff is entitled to damages if so, at what rate and for which period? OPP.
8. Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
Both these issues are taken up together as they are relating to decide the quantum of cost to be paid by the possessor of the suit property for its use and occupation.
63. The plaintiffs have pleaded that the defendant was in the permissive use and occupation of the suit property and was in possession Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 35 since the life time of Late Sh. Pratap Singh, the father of plaintiff No.1 with some arrangement of sharing of the earnings or an average amount of Rs.4,000 to Rs.5,000/ whichever was on the higher side, as license fee. Also that on failure of rendition of account of actual earning of the business, after the death of his father, the plaintiffs asked the defendant to pay a lumpsum amount of Rs.10,000/ per month as a license fee, which the defendant refused to pay taking a contrary plea that he was a tenant @ Rs.500/ per month, which was being paid regularly, and that later on the amount was paid under Section 27 of the DRC Act.
64. In view of the findings on issues No.2 & 3, holding that the defendant was in possession of the suit property not in the capacity of a tenant, but as a licensee, thus the defendant was entitled to pay the license fee or in any case an amount either in the form of damages or mesne profits or otherwise for use and occupation of the suit property. The plaintiffs have claimed a relief of recovery of Rs.3,60,000/ as damages w.e.f. 2000 to 2003 only for three years, legally recoverable up to the filing of the suit, @ Rs.10,000/ per month, along with pendentelite and future damages.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 36
65. To prove the claim of the damages @ Rs.10,000/ per month as a license fee, PW1 in his affidavit Ex.PW1/A has deposed in para 13, that the plaintiffs were entitled for Rs.3,60,000/ for use and occupation of the suit property by the defendant for the period, legally recoverable up to the date of filing of the suit, and afterwards due to increase in the value of property, the defendant is liable to pay Rs.20,000/ per month.
66. On appreciation of evidence, on this aspect the testimony of PW1 remains unrebutted and the witness was crossexamined only on the aspect by way of suggestions that the defendant was to pay Rs.500/ per month as rent up to 1990 and afterwards the same was increased to Rs.1,000/ per month, that he was paying regularly and also through his petition under Section 27 of the DRC Act and all these suggestions were denied.
It is observed that the claim of payment of rent of Rs.500/ per month by the defendant in the capacity of a tenant, could not be sustained in view of the findings of issue No.2, holding that he was not in possession of the suit property in the capacity of a tenant. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 37
67. Thus, on the unrebutted testimony on this aspect of the plaintiffs, the claim for the amount of Rs.3,60,000/ @Rs.10,000/ per month for three years during 2000 to 2003, legally recoverable up to the date of filing of the suit, is duly proved. So far as, the depositions regarding liability of the defendant to pay @ Rs.20,000/ per month are concerned, the same cannot be considered being these facts were beyond the pleadings, in view of the law settled in plethora of authorities on this point, including the one titled as Gajanan Krishanaji Bapat & Anr. Vs. Dattaji Raghobaji Meghe & Ors. AIR 1995 SC 2284, wherein it was observed that:
"the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence..."
Now it is a well settled principle of law that such part of the evidence cannot be considered that was not a part of the pleadings of the party.
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 38
The reliance is also placed on the observations made in Ram Swaroop Gupta (dead) by L.Rs Vs. Bishan Narain Inter Colelge 7 Ors., AIR 1987 SC 1242, wherein it was observed that :
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. the object and purpose of pleading is to enable the adversary party to know the case it has to meet...... In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."
Thus, the claim @ Rs. 20,000/ per month as License fee could not be established by the plaintiffs.
To support his plea of claiming damages, the plaintiffs have relied that Sarla Ahuja Vs. Kundan Lal, 103 (2003) DLT 635, Emmanuel Prem Masih & Anr. Vs. Delhi Diocesan Trust Association & Anr., 87 (2000) DLT 466 (DB) and Arya Orphange Vs. Alfred G. Wuerfel FC, 2009 (107) DRJ 318, on this aspect but these authorities are Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 39 not applicable in relation to the facts on issue Nos. 7 & 8 of the present case, as these facts were distinguishably different than to the facts of these cases, on such aspects.
Thus, the plaintiff has established his entitlement only for the amount of Rs. 10,000/ per month as license fee from the defendant, for use and occupation of the suit property from the date of the filing of the suit till the date of handing over the peaceful vacant possession of the property to him.
68. So far as the interest is concerned, the plaintiffs have not claimed for any interest in the suit in the prayer clause, and in view of the observations, he cannot travel beyond the stretch of the pleadings in the suit, as discussed above on the basis of the law settled in Kalyan Singh Chouhan Vs. C.P. Joshi, 2011 (1) RCR (Civil) 865.
The other authorities relied by the plaintiffs are not considered being not relevant to the facts and circumstances of the case. Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 40
69. Issue No. 9 Relief.
On the basis of above mentioned findings/observations made on law and facts with respect to the issues, the suit of the plaintiffs is decreed for possession as well as for damages/mesne profits, accordingly.
Accordingly, it is directed that the plaintiff is entitled to:
i) a decree of possession in respect of shop No.15, D.D.A. Shopping Complex, East of Kailash, New Delhi; also,
ii) a money decree for an amount of Rs. 3,60,000/ in lieu of the license fee @Rs. 10,000/ per month for 3 years, the period for which it could be legally recoverable, i.e. August 2000 to August 2003.
iii) an amount of Rs. 10,000/ per month, from the defendant for use and occupation of the suit property from the date of the filing of the suit, till the date of handing over its peaceful vacant possession to the plaintiff.
No orders as to costs.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
29th August, 2011. Addl. District Judge,
Cent04,Tis Hazari Courts,
Delhi. 29.08.2011
Suit No.85/11 Dr.Hargyan Singh Vs. Naresh Kumar Page No. 41