Delhi District Court
Smt. Amarjeet Bali vs . S. Makhan Singh on 7 January, 2019
1
Smt. Amarjeet Bali vs. S. Makhan Singh
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 98527/2016
CNR No. : DLCT030004172007
Date of Institution: 28.07.2007
Date of Decision: 07.01.2019
Smt. Amarjeet Bali, W/o Shri Chand Bali,
R/o 879B, Baba Faridpuri Colony,
Near Block No.26,
West Patel Nagar,
New Delhi110008.
...................Plaintiff
Versus
Shri S. Makhan Singh
R/o 3131B, Gali No.2, Ranjeet Nagar,
Near South Patel Nagar, New Delhi110008.
............Defendant
SUIT FOR POSSESSION, ARREARS OF RENT AND FOR
DAMAGES
Present: None.
JUDGMENT:
1) Present suit has been filed by the plaintiff seeking Possession, Arrears of Rent and for Damages with respect to the Property bearing No.3131B, which is portion of the property bearing no. 3131, Gali No.2, Ranjeet Nagar, Near South Patel Nagar, New Delhi (hereinafter called as suit property).
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 2 Smt. Amarjeet Bali vs. S. Makhan Singh Plaintiff's version :
2) It is stated that Sh. S. Laxman Singh, S/o Sh. S. Ishwar Singh after getting the land on lease basis from the owner of the land had raised the above said property. It is averred that after construction over the said land, the father of the Plaintiff had inducted a tenant in a portion comprising two rooms, kitchen and bathroom on a monthly rent of Rs.500/ excluding electricity and water charges and that the father of the Plaintiff died on 05.06.1979 leaving behind the Plaintiff and one son, namely, S. Puran Singh, thereafter, Plaintiff and her brother S.Puran Singh had become the owner in respect of half share each of the said property. The tenancy of the Defendant was monthly w.e.f 1 st day of each English Calendar month ending with last day of the month.
3) It is further averred that after the death of S.Laxman Singh, the Defendant paid the rent to the brother of the Plaintiff, namely, S.Puran Singh upto December, 1988 and that after December, 1988, the Plaintiff developed some differences with her brother S.Puran Singh and therefore, Defendant stopped making payment of rent w.e.f. 01.01.1989. It is stated that on intervention of the common relations, oral partition had taken place between the Plaintiff and her brother, namely, S.Puran Singh and the property was divided into two parts and both were given two numbers i.e. 3131A and 3131B and thus the first portion bearing No.3131A fallen to the share of S.Puran Singh and the second portion bearing No.3131B fallen to the share of Plaintiff.
4) It is further averred that S.Puran Singh sold his portion i.e. 3131A to Smt.Surjeet Kaur and thus Plaintiff left owner only of the portion bearing No.3131B under the tenancy of the Defendant and that for getting the marketable title to his portion, the Plaintiff approached the previous landowner from whom the said property was taken on lease Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 3 Smt. Amarjeet Bali vs. S. Makhan Singh by father of Plaintiff and the said previous owner executed fresh documents like Agreement to Sale, General Power of Attorney (Regd), Will by all coowners and affidavits to this effect. Thereafter, Plaintiff approached the Defendant to get the legally recoverable rent but wife of Defendant put off the Plaintiff on the pretext that Defendant is outside India till September, 2006. Thereafter, Plaintiff sent a Legal Notice dated 17.10.2006 to the Defendant claiming arrears of rent and termination of contractual tenancy under Section 106 of Transfer of Property Act served upon the wife of the Defendant and the same was replied by the Defendant through the Advocate Sh.L.K. Singh.
5) It is further stated by the Plaintiff that the relationship of landlord and tenant denied by the Defendant in his Reply to the Notice dated 09.11.2006 and that Defendant asserted that he had purchased the said portion from S.Puran Singh and paid Rs.5,000/ and again wife of Defendant i.e. Harminder Kaur had paid Rs.15,000/ against the receiptcumsale agreement. Plaintiff also sent a Legal Notice dated 23.11.2006 for want of copy of said receiptcumsale agreement. It is further stated by the Plaintiff that the Defendant replied to the said Notice vide Reply dated 18.12.2006 and sent copy of the said receipt cumsale agreement which does not create any right, title or interest in the said property. It is stated by the Plaintiff that the tenancy of the Defendant is forfeited and status of Defendant is of tresspasser.
6) It is the case of the Plaintiff for possession in respect of portion bearing No.3131B, arrears of rent for 36 months i.e. w.e.f 10.11.2003 to 09.11.2006 @ Rs.500/, damages @ Rs.1,000/ per month w.e.f 01.11.2006 to 31.01.2007.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 4 Smt. Amarjeet Bali vs. S. Makhan Singh
7) The Cause of Action arose to the Plaintiff for filing the present suit on 09.11.2006 when Defendant had challenged the right of the Plaintiff to claim rent and asserted his right having purchased the same. Version of defendant :
8) Upon notice being issued, the defendant appeared and filed his WS. In the WS, preliminary objections were raised interalia of non maintainability and nonjoinder of necessary party. It is stated that the present suit is barred under the provisions of Section 50 of Delhi Rent Control Act as the Defendant was initially inducted as a tenant in the suit property by the father of the Plaintiff on a monthly rent of Rs.500/ and Defendant stood governed under the provisions of DRC Act. It is further stated that the contention of the Plaintiff which alleged forfeiture of tenancy of the Defendant resulted in her being ousted from the protection under the Rent Act is illegal, misconceived and erroneous in as much as forfeiture of tenancy besides being illegal and as a result of misconstruction and misinterpretation of the law is ever otherwise of no consequence since at best it can be a ground for termination of tenancy and therefore even in that event the status of the Defendant shall not stand excluded from the definition of tenant as envisaged under Section 2(1) of DRC Act and that the present suit is legally barred as per Section 14(1) of the DRC Act which embargo under Section 50 of DRC Act. It is stated that no Cause of Action further accrued in favour of the Plaintiff as per Reply dated 09.11.2006 to the Legal Notice dated 17.10.2006 of Plaintiff amounted to disclaimer by the Defendant resulting in forfeiture of his tenancy and he being ousted from the protection under the Rent Act and that the disclaimer as alleged is false and misconstrued. It is averred further that the notice dt. 17.10.06 did not disclose how the plaintiff became Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 5 Smt. Amarjeet Bali vs. S. Makhan Singh owner / landlord of the premises in occupation of defendant and how she stepped into the shoes of Puran Singh and accordingly, defendant had raised objections in his reply dt. 09.11.06 and had questioned the plaintiff how she had become landlord of the premises in question. It is submitted that in view of the contents of reply, it could not be said that defendant was outrightly renouncing his character as third person. In reply on merits, it is stated that defendant was inducted as a tenant by Sardar Puran Singh in respect of one room court yard, kitchen and latrine bath room situated on ground floor of property no. 3131 and at that time other room was under tenancy of one Harvinder Singh. The month rent was being duly paid to Sardar Puran Singh and at the time of inception of tenancy the plaintiff was nowhere in picture and she introduced herself for the first time vide her legal notice dt. 17.10.06. It is denied that defendant was inducted as tenant by father of plaintiff. It is further stated that since inception of tenancy, it was represented by Sardar Puran Singh that he was the owner of tenanted premises as well as other room under tenancy of Harvinder Singh and that at no point of time rent was ever paid to Sardar Laxman Singh. That the defendant even did not know even Sardar Laxamn Singh and never met him.
9) It is further stated that in the month of August 1989, Puran Singh approached the defendant and his wife, Smt. Harvinder Kaur and gave them an offer to sell the entire property bearing no. 3131 including the portion in tenancy of defendant and under tenancy of Harvinder Singh. That as per the deed his wife was accepted as the intending purchaser and it was agreed that amount of Rs. 20,000/ shall be paid to Harvinder Singh, who will hand over the possession of single room to Harvinder Kaur and same shall be construed as part payment of total sale consideration. Said amount was paid in two installments of Rs.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 6 Smt. Amarjeet Bali vs. S. Makhan Singh 5000/ on 24.09.1989 and another sum of Rs. 15,000/ on 01.10.1989 to Harvinder Singh on behalf of Puran Singh and possession of the room was handed over the wife of the defendant and than Puran Singh executed a receipt cum undertaking acknowledging payment of Rs. 20,000/. Thereafter, the status of wife of defendant became that of an intending purchaser in part performance of the contract and the remaining part of the contract was to be finalized by Sardar Puran Singh. That wife of the defendant had acquired interest in the property by virtue of payment of part of sale consideration and she with the consent and permission of Puran Singh carried out the repairs to strengthen the portion and also raised one room set on the first floor out of her own funds. It has been denied that defendant stopped paying rent to Puran Singh w.e.f. 01.01.1989 and rather Puran Singh stopped taking rent from defendant we.f. 01.10.1989. It is stated that the plaintiff has not disclosed the details of alleged oral partition and how the separate numbers as 3131A and 3131B were assigned, though they were not mentioned in the legal notice dt. 17.10.06. It is stated that they are imaginary numbers given by the plaintiff. It is further stated that the details of sale by Sardar Puran Singh in favour of Surjeet Kaur have not been disclosed by the plaintiff. All the other avements of the plaint are denied with the request to dismiss the suit.
10) In pursuance of WS, replication was filed on behalf of plaintiff, in which, allegations of WS have been denied and averments of plaint have been reiterated
11) It is pertinent to mention herein that an application u/o VII Rule 11 CPC was filed on behalf of defendant, which was dismissed by the present court vide order dt. 22.11.07 and the petition filed against the Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 7 Smt. Amarjeet Bali vs. S. Makhan Singh same before Hon'ble High court was also dismissed vide order dt. 03.11.08. Copy of the order is there on record.
12) From the pleadings of the parties following issues are framed vide order dt. 16.04.2009 :
1. Whether the suit of the plaintiff is barred under Section 50 of DRC Act? OPD.
2. Whether the suit has not been properly valued for the purpose of jurisdiction and court fees? OPD
3. Whether there is no cause of action to file present suit? OPD.
4. Whether the plaintiff is entitled for possession as prayed for?
OPP.
5. Whether the plaintiff is entitled for arrears of rent as prayed for? OPP
6. Whether the plaintiff is entitled to damages, if so, then at what rate and for what period? OPP.
7. Relief.
13) Thereafter, matter was fixed for evidence on behalf of plaintiff and plaintiff herself stepped into the witness box as PW1 by tendering her affidavit Ex. PW1/A. Again, plaintiff has also examined some other witnesses namely Smt.Kuldeep Kaur as PW2, Sh.S.L. Satija, Head Clerk, House Tax Department, Karol Bagh Zone, MCD as PW3, Sh.Gulwant Singh as PW4, The plaintiff has also tendered certain documents i.e. Ex.PW1/1 to Ex.PW1/11 including the site plan, the documents including GPA, agreement to sell, affidavit, receipt, possession letter and Wills in favour of plaintiff, copy of legal notice and reply to the said notice. Again, some documents were proved in the testimony of PW3 as Ex. PW3/1 to Ex. PW3/5 including the application, indemnity bond, house tax receipts and affidavit. Again Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 8 Smt. Amarjeet Bali vs. S. Makhan Singh certainly documents were confronted in the crossexamination of PW3 as Ex. PW3/D1 to Ex. PW3/D11 including the agreement to sell, affidavit, receipt and Will etc. Thereafter, evidence was closed on behalf of plaintiff vide separate statement of Ld. Counsel for the Plaintiff dt. 24.04.2012.
14) On the other hand, Smt.Harvinder Kaur, Wife of defendant S.Makhan Singh herself stepped into the witness box as DW1 by tendering her affidavit Ex.DW1/A and also tendered some documents as Ex.DW1/1 to Ex.DW1/5 including GPA executed by defendant in favour of his wife, the receipt in question, receipts of water bill and electricity bill and house tax. She was duly crossexamined. Again, another witness Ms.Gulshan Kaur Walia was examined and crossexamined as DW2 by the Defendant by tendering affidavit in evidence Ex.DW2/A. Again, another witness Sh.Rattan Singh was examined and cross examined as DW3 by the Defendant by tendering affidavit in evidence Ex.DW3/A. She was duly cross examined by counsel for plaintiff. Again, defendant himself stepped into the witness box as DW4 and was duly cross examined and thereafter, evidence of defendant was closed on 21.12.13.
15) Arguments advanced by counsel for plaintiff as well as defendant have been heard. Again written submission filed on behalf of plaintiff as well as defendant have been perused. File has been carefully and minutely perused and my issuewise findings with reasons thereof are as under : ISSUE No. 1 :
16) The burden to prove this issue was upon the defendant, the counsel for defendant has relied upon the oral as well as documentary evidence and has referred to some authorities with respect to the application of Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 9 Smt. Amarjeet Bali vs. S. Makhan Singh the provision of Section 50 of DRC Act in the present case. Before going into the contentions of Ld. Counsel for defendant as well as of the Ld. Counsel for the Plaintiff, I find it appropriate to discuss the scope of Section 50 of DRC Act.
17) The provision of Section 50 of DRC Act bars the jurisdiction of civil courts in respect of certain matters and as relevant herein, Clause(1) provides that no civil court shall entertain any suit or proceeding in so far as it relates to eviction of any tenant therefrom. Clause(4) of said provision is in nature of exception to the said provision and makes it clear that the issue of title including the issue of tenancy title will be decided only by the civil court. It is further observe that the legal position in this regard is well settled that bar of the said provision only comes into picture, where the relationship of landlord and tenant is not disputed.
18) Now let met advert to the contentions of both the Ld. Counsel. It has been argued by Ld. counsel for defendant that the whole case of the Plaintiff is based upon the premise that the tenancy of the defendant was terminated by application of section111(g) of Transfer of Property Act as the defendant had allegedly denied the landlordship of the Plaintiff in the suit property and had allegedly pleaded his ownership in the suit property in the reply of Legal Notice, dated 09.11.2006 that is Ex.PW1/10. It is contended that the said provision is not applicable to the facts of the present case in any manner as admittedly defendant was never the tenant of the Plaintiff but of her brother, namely, Puran Singh, who used to receive the rent from the defendant and same was also stopped after the execution of the document Ex.DW1/2. It is submitted that the said document was executed when the wife of the defendant had paid the amount of Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 10 Smt. Amarjeet Bali vs. S. Makhan Singh Rs.20,000/ in two installments of Rs.5,000/ and Rs.15,000/ to one Harvinder Singh and he was delivered the possession of one room in the suit property to her and it was agreed that said amount of Rs.20,000/ will be considered as advance payment for the sale of the house. Accordingly, after execution of the said document, status of the wife of the defendant became of the intending purchaser. It is argued that at no point of time either in the reply to the legal notice or before the present court, the defendant or his wife has set up his title in the suit property and therefore, his status has remained of a tenant only. It is further contended that the provision of Section 111(g) TPA requires two conditions to be satisfied including the denial of relationship of the landlord and tenant and setting up the plea of the ownership in the property by the tenant and both conditions are to be satisfied as they are conjunctive in nature, however, in the present case, there was no question of denial of relationship of landlord and tenant with the Plaintiff as she was never the landlord of the defendant and again the defendant never pleaded his title in the suit property. Accordingly, there was no question of forfeiture of tenancy of the defendant in the suit property and Section111(g) TPA has no application to the facts of the present case and the status of the defendant remained of the tenant only and accordingly the suit for recovery of the premises, whose rent was admittedly Rs.500/ per month is not maintainable before the present civil court but only before the Rent Controller under the provisions of Delhi Rent Control Act. In this regard, reliance is also placed upon the authority of Sheela Vs. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375, in which the scope of Section111(g) of TPA was discussed at length.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 11 Smt. Amarjeet Bali vs. S. Makhan Singh
19) It is further contended that the Plaintiff has pleaded her ownership in the suit property on the basis of some oral partition, however, said partition has not been proved and again it is not proved, which portion was given to the Plaintiff and when the said partition had allegedly taken place. It is also contended that the Plaintiff also did not specify anything to this effect in the legal notice sent to the defendant i.e. Ex.PW1/9 and has pleaded the fact of partition for the first time in the Plaint of the present suit and accordingly there are contradiction in the version of the Plaintiff herself.
20) It is further argued that the Judgment of Hon'ble High Court of Delhi in the Petition, filed against the order dated 22.11.2007 passed by Ld. Predecessor of this court, has no application at this stage as said order was passed on the application under Order 7 Rule 11 CPC, which has to be decided only on the basis of the averments of the Plaint and not on the basis of the evidence. It is submitted that at the final stage the evidence of both the parties has to be appreciated and accordingly, the authority on the point of the application under Order 7 Rule 11 CPC cannot be applicable for decision of the suit on merits.
21) Accordingly, it is contended that defendant has successfully discharged his burden that present suit is barred under Section 50 of DRC Act.
22) On the other hand, it is argued by Ld. Counsel for Plaintiff that the suit property was owned by father of Plaintiff and of her brother, namely, Puran Singh and the defendant was inducted as a tenant in the suit property by her father, namely, Laxman Singh only and not by Puran Singh. That after death of her father, her brother, namely, Puran Singh was collecting the rent from the defendant till December, 1988 @ Rs.500/ per month and thereafter due to the differences between the Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 12 Smt. Amarjeet Bali vs. S. Makhan Singh Plaintiff and her brother, the defendant stopped paying the rent. Later, an oral partition had taken place between the Plaintiff and her brother and the share in possession of defendant fell to the Plaintiff. Subsequently, a Legal Notice dated 17.10.2006 i.e. Ex.PW1/9 was sent to the defendant and defendant seeking payment of rent and possession of the premises in possession of defendant, however, in the reply to the said legal notice i.e. Ex.PW1/10, the defendant denied the relationship of landlord and tenant with the Plaintiff and pleaded his title stating about alleged agreement to sell with brother of Plaintiff. It is argued that the said agreement, placed on record as Ex.DW1/2 is a forged document, which is very apparent as there are manipulations in the alleged signatures of Puran Singh and again this document is not in nature of any agreementtosell but a receipt of money for delivery of possession of one room by one Harvinder Singh to the wife of the defendant. It is contended that allegedly the said agreement was signed and executed in the year 1989, however, till date no suit to enforce the said agreement was filed on behalf of the defendant and same has been duly admitted by the defendant / DW4 and his wife / DW1 in their crossexamination. It is further submitted that the testimony of other witnesses examined as DW2 and DW3 is not reliable as DW3 is an interested witness being the Uncle of the wife of the defendant and again DW2 also has not deposed anything substantial to corroborate the version of the defendant. It is further argued that the wife of Puran Singh, namely, Kuldeep Kaur and again son of Puran Singh, namely, Gulwant Singh were examined as PW2 and PW4 on behalf of the Plaintiff and they deposed before the court that no such agreement was ever executed by Puran Singh in favour of defendant and have denied the signatures on the Document Ex.DW1/2 being of Puran Singh.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 13 Smt. Amarjeet Bali vs. S. Makhan Singh Again, they have duly admitted the oral partition of the suit property between the Plaintiff and her brother Puran Singh. Accordingly, it is contended that the defendant has failed to prove the document Ex.DW1/2 and rather said document is forged. Again, as the Plaintiff became the owner of the property in possession of defendant after the partition, she became the landlord to the defendant and as defendant denied her relationship of tenant with the Plaintiff, provision of Section111(g) of TPA is certainly applicable in the given facts.
23) It is further contended that the said plea was taken on behalf of the defendant by way of the application under Order 7 Rule 11 CPC, which was dismissed by the Ld. Predecessor of the present court and the Petition filed against the said order by the defendant was also dismissed by Hon'ble High Court of Delhi by Judgment dated 03.11.2008, in which it was settled that where a tenant repudiates the title of the landlord and does not recognize him as landlord or as a owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him. It is submitted that said Judgment is a reported Judgment and same was reaffirmed by Hon'ble High Court of Delhi in case of Naeem Ahmed Vs. Yashpal Malhotra (deceased) on 27.02.2012.
24) It is further contended that as the said issue was decided finally by the Judgment of Hon'ble High Court of Delhi, same operates as res judicata and the defendant cannot be allowed to raise this plea at this stage. It is submitted that the resjudicata can operate even upon the two stages of the suit and accordingly, this plea of defendant is not sustainable.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 14 Smt. Amarjeet Bali vs. S. Makhan Singh
25) After having heard the submissions of both the Ld. Counsel at length on this point, I am of the view that three questions are involved for adjudication of the present issue :
(i) Who was the owner of the suit property initially and on the date of issuance of legal notice to the defendant i.e. Ex. PW1/9 and therafter?
(ii) Whether there was any relationship of landlord and tenant between the Plaintiff and the defendant and if yes, whether the same was denied by the defendant ?
(iii) What is the value and effect of the document Ex.DW1/2 ?
26) Now let me advert to adjudication of all these questions one by one.
(i) Who was the owner of the suit property initially and on the date of issuance of legal notice to the defendant i.e. Ex. PW1/9 and thereafter?
The version of the plaintiff in this regard is that the suit property was owned by her father namely Sh. Laxman Singh, who died leaving behind the plaintiff and her brother namely Sardar Puran Singh as only legal heirs and that after his death, she and her brother had become the owner in respect of half share each of the said property. That after death of the father, defendant was paying rent to Puran Singh upto December 1988 and thereafter, due to the differences between the plaintiff and her brother, the defendant stopped paying the rent. That with the intervention of common relatives, an oral partition had taken place between the plaintiff and her bother and said property was divided in to two parts and was given two numbers namely 3131A and 3131B, which had fallen to the share of Puran Singh and the plaintiff respectively. That after the partition, the plaintiff had sold his portion Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 15 Smt. Amarjeet Bali vs. S. Makhan Singh bearing no. 3131A to Smt. Surjeet Kaur and the plaintiff became the owner in respect of portion no. 3131B under the tenancy of the defendant. That thereafter, the plaintiff approached the person from whom the land underneath was taken on lease by the father of the plaintiff and the owners executed some documents including agreement to sell, GPA, Will and affidavits to this effect and consequently the plaintiff became the owner of the land and of the superstructure of the said land and thereafter, she approached the defendant for payment of legally recoverable rent and on denial by his wife, plaintiff sent a legal notice dt. 17.10.06 i.e. Ex. PW1/9, which was replied on behalf of defendant by the letter dt. 09.11.06 i.e. Ex. PW1/10, in which he denied the relation of landlord and tenant and asserted that she has purchased the said portion from Puran Singh.
27) On the other hand the said version of the plaintiff has been vehemently denied by the defendant in the WS and it is pleaded that defendant was inducted as a tenant by Puran Singh and not by the father of plaintiff namely Sardar Laxman Singh and that in the month of August 1989, Puran Singh had approached the defendant and his wife and gave them an offer to sell the entire property bearing no. 3131, which comprised the portion under the tenancy of the defendant as well as the single room under the tenancy of Harvinder Singh and thereafter, wife of defendant was accepted as an intending purchaser and she paid a total sum of Rs. 20,000/ to Harvinder Singh on behalf of Puran Singh and handed over the possession of single room to her and it was further agreed that the amount of Rs. 20,000/would be construed as part payment of total sale consideration in respect of entire property bearing no. 3131 and balance sale consideration was to be determined at the time of sale by Puran Singh to wife of the defendant Smt. Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 16 Smt. Amarjeet Bali vs. S. Makhan Singh Harvinder Kaur. It is further stated that the plaintiff has not disclosed, how she assigned separate numbers 3131A and 3131B and they are imaginary number given by the plaintiff and that the said contents of plaint are false in view of the contents of the legal notice dt. 17.10.06 of the plaintiff.
28) Heard. It is to observe that this is not in dispute in any manner that Sardar Laxman Singh had died leaving behind the plaintiff and her bother namely Sardar Puran Singh as his only LRs. Now on perusal of the documents, it comes to fore that previously, it was Sardar Laxman Singh, in whose name the house tax of the said property no. 3131 was being assessed as reflected from the document Ex. PW3/3. The genuineness of the said document is not in dispute in any manner as same has been proved by the concerned official from the House Tax Department of MCD examined as PW3, who produced the original record from the concerned office. Now, it is not the case that Laxman Singh was residing in the said property in any other capacity except as owner and accordingly, it can be safely concluded that previously, the suit property was owned by father of plaintiff namely Sardar Laxman Singh only and by no stretch of imagination, it can be concluded that it was owned by Sardar Puran Singh only. Undoubtedly, after death of Sardar Laxman Singh, said property bearing no. 3131 devolved jointly upon his LRs including the plaintiff and Sardar Puran Singh, as being the first class LRs as provided under Hindu Succession Act. Now, the next question is whether the same was partitioned between the plaintiff and her brother namely Sardar Puran Singh or not.
29) The version of the plaintiff is that there was an oral partition and thereafter, the property was given two separate numbers to two separate portions, which has been vehemently denied on behalf of Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 17 Smt. Amarjeet Bali vs. S. Makhan Singh defendant. However, it is to observe that the version of the defendant that, the separate numbers as 3131A and 3131B are imaginary and false, is self contradictory in view of the contents of the GPA given by the defendant to his wife to contest the present suit i.e. Ex. DW1/1, in which the address of the defendant has been mentioned as 3131B, Gali No. 2, Ranjeet Nagar, New Delhi08. This is the document prepared by the defendant only and placed on record by the defendant only and accordingly, the burden was upon the defendant only to explain how he had mentioned his address at house no. 3131B and not only house no. 3131. This is the GPA prepared on 22.03.07 and nowhere the defendant has made a single averment that at what point of time the separate number as 3131B was assigned to the portion in which he was residing. Accordingly, it can be safely concluded that there was a partition of the property no. 3131, which resulted in assignment to two separate numbers as 3131A and 3131B. This conclusion is further corroborated by the very fact that this partition has been duly accepted by the wife and son of Sardar Puran Singh examined as PW2 and PW4 respectively during their testimony. After death of Puran Singh, these are the best persons to depose, if any oral partition had taken place between the plaintiff and her bother namely Puran Singh or not and when they have deposed in this regard in favour of the plaintiff only, the defendant has no right to challenge the same. The defendant except making the bald averments, has not led any other evidence to disprove the same and moreover, as discussed above, there is admission on part of the defendant only that there was a separate number as 3131B in which he was residing. It is to further observe that the oral partition between the family members is a Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 18 Smt. Amarjeet Bali vs. S. Makhan Singh common phenomenon, which has been duly recognized by law. Accordingly, it is to be concluded that the version of plaintiff regarding oral partition is successfully established.
30) Accordingly, the question no. (i) is decided to the effect that it was Sardar Laxman Singh, who was the owner of the suit property initially and after the partition and consequently also on the date of issuance of legal notice i.e. Ex. PW1/9 and thereafter, it is the plaintiff who is the owner of the portion of the suit property in possession of the defendant.
Question no. (ii) Whether there was any relationship of landlord and tenant between the Plaintiff and the defendant and if yes, whether the same was denied by the defendant ?
31) It is the case of the defendant that as admittedly, the rent of the suit premises was being paid to Sardar Puran Singh, he was the landlord of the defendant and defendant had not relation with the plaintiff in any manner. Again, as there was no relationship of landlord and tenant between the plaintiff and the defendant, no question arises for denial of said relationship by the reply to legal notice i.e. Ex. PW1/10.
32) As observed in the findings of preceding paragraphs, it is very clear that after death of Laxman Singh and before partition of the suit property bearing no. 3131, it was jointly owned by the plaintiff and her brother namely Sardar Puran Singh. Accordingly, even if the rent was collected by Sardar Puran Singh, it can not lead to the conclusion that he was the landlord of the portion of the suit property in possession of defendant. There is no presumption in law that a person who is collecting the rent either on his behalf or on behalf of some other person becomes a landlord. The defendant has failed to lead any evidence to establish that he was inducted as a tenant in the portion of Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 19 Smt. Amarjeet Bali vs. S. Makhan Singh the suit property by Sardar Puran Singh except making his bald averments and leading oral evidence. DW1, who is the wife of the defendant herself has admitted in her crossexamination that there was no written rent agreement regarding suit property with Sardar Puran Singh and that she was never given any rent receipt nor was same asked for by her. Again, the defendant examined as DW4 has categorically admitted in his crossexamination that he had no personal knowledge regarding whom the premises was taken on rent and what was the conditions of rent and that he was informed about all these things by his wife, who took the suit property on rent. Surprisingly, the same was not mentioned in his WS and he was duly confronted to this effect and even thereafter, the defendant has pleaded in his WS that the suit property was taken on rent by the defendant from Sardar Puran Singh only. It is important to observe herein that a power of attorney can not depose the facts, which are particularly alleged to be in the personal knowledge of the Principal only. In the WS, nothing has been specified that the said fact of alleged tenancy under Sardar Puran Singh was not in knowledge of defendant but only in the knowledge of the wife of the defendant, who was appointed as power of attorney. This is more important considering the fact that as per the cross examination of defendant / DW4, he was working in a foreign country since 1978 to 1990. Such contradiction on part of defendant is certainly fetal to his case. Regarding the testimony of DW2, it is to observe that her testimony does not inspire the confidence as in her crossexamination she has deposed something, which is a material contradiction from the version of the defendant or his wife. DW2 has deposed in her crossexamination that at the time of inception of tenancy, there was a written agreement executed between Sardar Puran Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 20 Smt. Amarjeet Bali vs. S. Makhan Singh Singh and Makhan Singh in the year 1981, which has never been the version of the defendant or his wife. The said witness has further deposed that an advance of Rs. 1500/ was paid initially at the commencement of tenancy in her presence, however, same has never been pleaded on part of defendant. Again, regarding the credibility of DW3, it is to observe that admittedly, he is the uncle of wife of the defendant and therefore, apparently is an interested witness. Again, he has deposed that the suit property was agreed to be sold for Rs. 2.5 lacs, which was never the version of defendant as reflected from the WS or his testimony. Accordingly, in view of the aforesaid discussion, I come to the conclusion that the defendant has failed to prove in any manner that he was inducted a tenant by Puran Singh as landlord.
33) On the other hand, when it has been established that after death of Sardar Laxman Singh in the year 1979 (as reflected from the death certificate Ex. PW1/2), the suit property was jointly owned by the plaintiff and her brother Sardar Puran Singh, the corollary of the same is that the plaintiff and his brother namely Sardar Puran Singh, both were the landlord of the portion of the suit property in possession of defendant till the date of partition and after partition, it was owned by the plaintiff only.
34) It is to further observe that even if for sake of arguments, it is taken that the defendant had considered the landlord of her portion to Sardar Puran Singh only and that he or his wife were not aware about the right of the plaintiff in the said portion of the suit property, the same does not help the defendant in any manner after the partition took place between the plaintiff and her brother namely Sardar Puran Singh.
35) In this regard, reference is made to the provision of Sec. 109 of TP Act. The principle underlying Sec. 109 of the Act is that the rights Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 21 Smt. Amarjeet Bali vs. S. Makhan Singh attached to property which arises out of possession and control of property will pass with the property. "Qui in jus deminiumve alterius succedit jure ejus uti debet". When A ceased to have any right, title or interest in the suit property he ceased to have any right, title or interest in the suit property he ceased to be the tenant's landlord and it is B who became the landlord, and the right to recover rent vested in B with effect from the date of relinquishment. There is nothing in Sec. 109 of the Transfer of Property Act which makes it dependant on the election of the lessee to continue to be the lessee of the transferor and not become the lessee of the transferee. This view was also taken in Pyarelalsa v. Garanchandsa 1964 M.P.L.J. 334 and is supported by the decision in Jagannath v. Ramzan.1963 M.P.L.J. 129. If this was not the law the position would be anamolous .On the one hand the transferor would continue to exercise the rights of the landlord against the tenant so as to entitle him to sue for ejectment and arrears of rent even after the transfer; and on the other hand the transferee will also have the same rights as held in Shankar Sahai v. Kanmal, 1971 M.P.L.J.
436. Whenever there is an assignment of the interest of a lessor or the interest of a lessee in a lease a new relationship comes into existence between the two sets of persons, one of whom was not party to the original agreement. The assignee of the lessor has against the lessee all the rights that the lessor had, and can enforce not only covenants, but also conditions. He can recover rent due Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 22 Smt. Amarjeet Bali vs. S. Makhan Singh subsequent to the assignment, and he can give notice to quit under s 106 as held in Manickam Pillai v Ratnasmi Nadar (1917) 33 Mad LJ 684. In views of 109, the assignee of the lessor has , as against the lessee , all the rights that the lessor had , including the right to receive the rent in terms of lease and the lessee cannot say that he is not bound to pay the same to the assignee merely because there is no privity of contract.
36) In view of this legal position, it is very clear that once the property in possession of the defendant devolved exclusively upon the plaintiff, she became the landlord to the defendant and same can not be disputed by the defendant.
37) Now the next question for determination is that whether the defendant denied relationship of landlord and tenant with the plaintiff. At this stage, the reference to the authority of Sheela (supra) relied upon by the defendant is worth and it is to observe that in para no. 17 of the said authority, it was observed that a tenant bonafide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself but without disowning his character of possession over the tenancy premises can not amount to denial of the title of the landlord. Again, in para no. 14, it was observed by the Hon'ble Apex Court that it was a question of fact that what intention underlined the words or the actions of a tenant and whether in fact he was definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Accordingly, in the given facts, the inquiry has to be made Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 23 Smt. Amarjeet Bali vs. S. Makhan Singh regarding the intention of the defendant from the words of the reply to legal notice i.e. Ex. PW 1/10 and again from his pleadings as well as evidence before the court and at the same time from his actions and conduct. Now, perusal of said reply clearly provides that the defendant had denied himself to be the tenant in the portion in his possession and has further denied the ownership or landlordship of the plaintiff. It is to further observe that even if the defendant was not clear regarding the status or interest of the plaintiff in the portion of suit property in his possession, he could have sought the clarification in this regard. On the other hand, as clearly reflected from the last lines of page no. 2 of the reply to legal notice i.e. Ex. PW1/10, the defendant clearly stated that plaintiff was neither the owner nor the landlord and had no right, title or interest of whatsoever nature in the property in question. Accordingly, the intention of the defendant can be duly gathered from the language of the said reply that he was not considering himself to be the tenant in any manner. Same is the language of the WS filed on behalf of the defendant. Accordingly, the first requisite of Sec. 111 (g) of TP Act is well satisfied. Regarding the second requisite of setting up the title by the defendant, the discussion is made in the succeeding paragraphs.
38) In view of aforesaid discussion, question no. (ii) is decided to the effect that it was the plaintiff who was the landlord to the property in possession of defendant and said relationship was denied by the defendant.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 24 Smt. Amarjeet Bali vs. S. Makhan Singh Question no. 3 : (iii) What is the value and effect of the document Ex.DW1/2 ?
39) The burden to prove said document was upon the defendant only. The defendant has relied upon the testimony of the witnesses examined as DW1 to DW4. The credibility of DW2 and DW3 has been already discussed in the preceding paragraphs. It is to further observe that DW1 has deposed in her crossexamination that there was sale consideration of Rs. 2,50,000/ agreed between her and late Sardar Puran Singh, however, surprisingly, this was an alien fact as never been mentioned in the reply to legal notice i.e. Ex. PW1/10 as well as in the WS of the defendant. Rather on the other hand, it was stated in the said reply that the sale consideration was to be finally determined at the time of sale by Puran Singh and same is the version in the WS. Accordingly, only on the basis of own testimony of DW1, who is the wife of defendant, the said document can not be stated to be proved. Again the credibility of the defendant examined as DW4 is also impeachable as discussed above.
40) It is to further observe that apparently the said document Ex. DW1/2 seems to be manipulated as there is overwriting in the signatures, allegedly to be of Sardar Puran Singh and again there is difference of ink on the back side of the said document, though they are of the same date i.e. 01.10.1989. Again, the last lines in the said document "in case the houses sold, the above amount will be considered as advance payment for the sale against room", seem to be incorporated afterwards as the size of the font of the said handwriting is different from the other handwriting. Again, the said signatures allegedly of Sardar Puran Singh are quite different from his signatures on the document Ex. PW3/D1. Same was also denied by the wife and son of Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 25 Smt. Amarjeet Bali vs. S. Makhan Singh Puran Singh examined as PW2 and PW4 to be the signatures of Puran Singh and no effort was made on part of the defendant to prove that these were the signatures of Sardar Puran Singh only. The defendant could have summoned any record or document also from the possession of the plaintiff or from the possession of wife or son of Puran Singh to prove the admitted signatures of Puran Singh, which could have been compared with the signatures on the said document Ex. DW1/2. Accordingly, said failure on part of defendant is certainly fatal to his case and I am of the view that considering the testimony of PW2 and PW4 and the fact that in civil cases, evidence has to be appreciated on the basis of preponderance of probabilities, I am of the view that this can be readily inferred that the said document Ex. DW1/2 is a forged document.
41) Even if for sake of arguments, the execution of the said document in favour of the wife of defendant is taken to be true, it is to observe that perusal of the said document itself provides that it is not in nature of an agreement to sell in any manner and rather the same is the receipt of the money paid by wife of defendant namely Smt. Harvinder Kaur to one Harvinder Singh. There is no single word that Puran Singh had agreed to sell the suit property to the defendant or his wife and the meaning of the last line of the said document can only be to the effect that it was considered as an advance payment for sale of room, delivered by Harvinder Singh to wife of defendant, if the house was sold in future. Said statement itself is conditional in nature and it was not the case that an agreement consisting of proposal and acceptance had taken place as provided under Indian Contract Act. At best, it can be considered as a proposal for future and that too was conditional. There was neither any express offer nor there was any acceptance.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 26 Smt. Amarjeet Bali vs. S. Makhan Singh Accordingly, it can not amount to any agreement and consequently is of no help to the defendant or to his wife.
42) Going one step further, it is to observe that if even for sake of further arguments, said document is taken to be as an agreement to sell between the wife of defendant and Sardar Puran Singh, same has lost its effect as admittedly it was never got enforced by the defendant or his wife. As admitted by DW1 as well as by DW4, no notice for execution of any sale deed on the basis of said alleged agreement was ever served by the defendant upon Sardar Puran Singh and again no suit for specific performance on the basis of same was ever filed till date. Accordingly, the alleged agreement to sell dt. 01.10.1989 can not be enforced today as being specifically barred by limitation. It is to further observe that even otherwise the said document has no effect on the right of the plaintiff in the suit property as there was no privity of contract between the plaintiff and the defendant or his wife.
43) It is to further observe that the defendant rather than pleading himself as 'owner', has mentioned himself as 'intending purchaser' in the reply to legal notice as well as in the WS. It appears that the said terms has been cleverly used on behalf of defendant to avoid the effect of Sec. 111(g) of TP Act. It is not the averments of the defendant but his intention, to be gathered from the surrounding circumstances, which is material to decide whether the defendant was setting up of his plea of title or not, as discussed in the authority of Sheela (supra). From the language of the reply to legal notice as well as from the WS and from the conduct of the defendant from the date of the alleged agreement to sell dt. 01.10.1989 till date, it can be inferred that the intention of the defendant has been to treat himself as the owner of the portion of suit property in his possession only and said conclusion is fortified by the Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 27 Smt. Amarjeet Bali vs. S. Makhan Singh very simple fact that the defendant had not made any effort to get executed the sale deed on the basis of alleged agreement to sell i.e. Ex. DW1/2 and admittedly, he was not paying any rent since the year 1989. No effort was ever made on behalf of defendant to pay the alleged balance sale consideration out of the agreed amount of Rs. 2,50,000/, as mentioned in the crossexamination of DW1. No suit for specific performance was ever filed on behalf of defendant or his wife against Sardar Puran Singh or his LRs for execution of the sale deed on the basis of said alleged agreement to sell and defendant is well aware that the limitation to file the said suit has already expired. Again, he has vehemently denied the title as well as landlordship of the plaintiff in the suit property, barring the plaintiff to seek remedy under provisions of DRC Act. Accordingly, the only intention of the defendant, which can be gathered from the given circumstances, is that he wants to enjoy the suit property in his possession as absolute owner after having allegedly paid the amount of Rs. 20,000/ to one third person namely Harvinder Singh.
44) In view of aforesaid discussion, question no. (iii) is decided to the effect that the document Ex. DW1/2 is apparently a forged document and even otherwise it has no effect as on date on the right of the plaintiff in the portion of the suit property in possession of defendant.
45) In view of determination of question no. (i), (ii) and (iii) in the preceding paragraphs, it is to be concluded that the plaintiff was the owner as well as landlord of the suit property in possession of the defendant and the defendant denied relationship of landlord and tenant between them and again, the defendant set up his plea of title in the portion of the suit property in his possession. Accordingly, both the requisites of Sec. 111(g) of TP Act are duly satisfied.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 28 Smt. Amarjeet Bali vs. S. Makhan Singh
46) It is important to observe herein that the judgment of Hon'ble High Court dt. 03.11.08 in the petition filed by the defendant against the order, vide which the application u/o VII Rule 11 CPC was dismissed, is certainly applicable in the given facts. The plea of ld. counsel for defendant that same was the decision in the application u/o VII Rule 11 CPC, which is to be decided only on the basis of averments of the plaint, does not appeal to reason as nothing new has surfaced even after appreciation of evidence except the averments of the plaint. The plaintiff has successfully established her version as stated in the plaint, as discussed above. The ratio of a precedent passed by Hon'ble High Court has its binding effect on the present court. In the said judgment dt. 03.11.18, it was nowhere observed that the observations shall not be construed to have any effect on the merits of the suit and accordingly, the legal position settled by the said judgment is certainly the same even for decision of suit on the merits. The relevant paragraph of the said judgment being paragraph 5 reads as under:-
"A tenant has been given protection under Delhi Rent Control Act from eviction only where the jurial relationship of tenant and landlord was not disputed and the tenant claims himself to be the tenant and not the owner. A perusal of Section 14, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. Section 111(g) of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 29 Smt. Amarjeet Bali vs. S. Makhan Singh himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111(g) is based on public policy and the principle of estoppels. A person who takes permission on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises. A lease may come to an end by termination of lease by or by efflux of time. Where the rent is below Rs.3,500/-, a landlord cannot recover possession from tenant whose term of lease comes to an end or whose tenancy is terminated by a notice because such a tenant is a protected tenant. The landlord can recover possession only if the case falls within the ambit of Section 14 of DRC Act. Where a tenant repudiates the title of the landlord and does not recognize him as landlord or as a owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him. Where the tenant does not recognize anyone as landlord or owner and claims ownership in himself he cannot seek protection of Delhi Rent Control Act against the true landlord or owner. The Trial Court therefore rightly held that the petitioner was not entitled to protection under Section 50 Delhi Rent Control Act."
47) The said judgment came into question in the case of Naeem Ahmed vs Sh. Yashpal Malhotra (Deceased) on 19 August, 2011 before Hon'ble Delhi High Court and matter was referred to a larger bench as Court was of the view that S. Makhan Singh case (supra) ignored the decision given by the Constitution Bench of seven Judges of the Supreme Court in the case of V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214. Division bench gave due Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 30 Smt. Amarjeet Bali vs. S. Makhan Singh consideration and regarding the the ratio of V. Dhanpal (supra) held as follows:
" Now turning our attention to the ratio of the decision in V. Dhanapal Chettiar case (supra) it is observed that in the said decision it was held that determination of lease in accordance with theTransfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act. It is trite to state that a decision is an authority for what it holds and not what flows from it."
48) Again reference was made to the decision of the Supreme Court in Kurella Naga Druva Vudya Bhaskara Rao v. Galla Jani Kamma alias Nacharamma, 2008 (11) SCALE 160 and the decision in Abdulla Bin Ali v. Galappa, 1985 (2) SCC 54 and it was held as follows:
"As aforesaid, in Kurella's case (supra) and Abdulla Bin Ali's case (supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent no.1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 31 Smt. Amarjeet Bali vs. S. Makhan Singh no.1. Consequently, the respondent no.1 had repudiated and renounced the relationship of landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent no.1 had become unauthorized and that of a trespasser....In view of the above we hold that the ratio of the decision in S. Makhan Singh case (supra) does not warrant reconsideration."
49) In view of this settled legal position, it is very clear that when the tenancy of the defendant has been terminated by the effect of Sec. 111(g) of TP Act, the suit of the plaintiff would not have been covered within the ambit of Sec. 14 of DRC Act and the suit for possession before the civil court was the only remedy. If as per the defendant, the present suit was not maintainable, the plaintiff would have been left without any remedy, because as per the version of the defendant there was no relationship of landlord and tenant between the plaintiff and defendant. That can never the intention of the legislature that a person who is rightful owner of a property is deprived of his legal remedy on the ground of the technical objection raised on behalf of the person, who is in possession of the said property without any title. Moreover, as discussed above, the question regarding the title as well as regarding the question of landlordship can be decided only by the civil court as provided under Sec. 50 of DRC Act itself.
50) Accordingly, I come to the conclusion that the suit of the plaintiff is not barred u/s 50 of DRC Act. Issue no. 1 is decided in positive in favour of the plaintiff and against the defendant.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 32 Smt. Amarjeet Bali vs. S. Makhan Singh ISSUE No. 2 :
51) The onus to prove this issue was upon the defendant and it is argued that as there was not relationship of landlord and tenant between the plaintiff and defendant, the valuation of the suit at the amount of annual rent was not correct and plaintiff was required to pay the court fee on the market value of the suit property in possession of defendant.
52) As discussed above in the findings of issue no. 1, it has been settled that there was relationship of landlord and tenant between the plaintiff and tenant, which was denied by the defendant and accordingly, I am duly satisfied that the valuation of the suit is correct as per the provisions of Court Fee Act as well as Suit Valuation Act. The position in this regard was also settled by Hon'ble High Court in the judgment dt. 03.11.08, wherein it was observed that where the lease comes to an end by operation of law because of repudiation of the title, the landlord / owner could file a suit for possession in civil court and the valuation of such a suit has to be on the basis of annual rent in view of Sec. 7 (xi)(cc) of Court Fee Act. Accordingly, issue no. 2 is decided in favour of plaintiff and against the defendant. ISSUE No. 3 :
53) The onus to prove this issue was upon the defendant. As discussed in the finding of issue no. 1, it is established that the plaintiff is the owner as well as landlord or the suit property in possession of the defendant. Accordingly, plaintiff has certainly cause of action against the defendant to file the present suit and issue no. 3 is decided in favour of the plaintiff and against the defendant.
ISSUE No. 4 :
54) The onus to prove this issue was upon the plaintiff. As discussed in the findings of issue no. 1, it has been clearly established that plaintiff is Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 33 Smt. Amarjeet Bali vs. S. Makhan Singh the owner as well as landlord of the portion in possession of the suit property in possession of defendant and as the tenancy of the defendant was terminated by operation of Sec. 111(g) of TP Act, defendant has no right in the suit property. Rather on the other hand, the plaintiff being the owner of the said property is certainly entitled for possession of the same. Accordingly, issue no. 3 is decided in favour of the plaintiff and against the defendant. ISSUE No. 5:
55) The onus to prove this issue was upon the plaintiff. It has been argued that admittedly the defendant has not paid the rent since the year 1989, however, the plaintiff has only claimed the rent for the last 36 months as legally recoverable before the date of the reply to legal notice dt. 09.11.06 and for the period of 10.11.03 to 09.11.06. Again, it is submitted that the rate of rent has been admittedly at Rs. 500/ per month as last agreed and accordingly, the amount of Rs. 18,000/ has been claimed as arrears of rent.
56) Heard. As observed in the findings of issue no. 1, it is established that the defendant was the tenant under the plaintiff. Again, as reflected from the WS as well as from the testimony of defendant / DW4 and again of his wife, examined as DW1, it is clearly admitted case that the rent was not paid since the year 1989 and that last agreed rate of rent was Rs. 500/ per month. However, as rightly mentioned by the plaintiff, she could only claim the rent of last three years from the date of denial of tenancy by reply to legal notice dt. 09.11.06 as the claim of previous rent was barred by limitation. Accordingly, the plaintiff is entitled for recovery of Rs. 18,000/ as arrears of rent from the defendant and issue no. 5 is decided in favour of the plaintiff and against the defendant.
Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 34 Smt. Amarjeet Bali vs. S. Makhan Singh ISSUE No. 6 :
57) The onus to prove this issue was upon the plaintiff. It is the case of plaintiff that as tenancy was terminated by reply to legal notice dt. 09.11.06, the status of the defendant in the suit property became of an illegal occupant and therefore, he is liable to pay the damages for use and occupation of the suit property till the delivery of possession and has claimed the same @Rs. 1,000/ per month .w.e.f. 01.11.06 to 31.01.07 and further damages till delivery of possession.
58) In view of the findings of issue no. 1, it has been well established that plaintiff is the owner of the suit property and that tenancy of the defendant was terminated by reply to legal notice dt. 09.11.06. Accordingly, the plaintiff is certainly entitled for recovery of damages. Regarding the rate of damages claimed by the plaintiff, it is to observe that admittedly the last rate of rent in the year 1989 was Rs. 500/ per month. Accordingly, the damages claimed @ Rs. 1,000/ in the year 2007 are reasonable. Again, the judicial notice can be taken of the fact that rate of property as well as the rental value has got multiplied by several fold in last 10 years in Delhi and therefore, I am of the view that the interest of justice will be served, if plaintiff is awarded the damages @ Rs. 1,000/ per month from 09.11.06 to 31.12.10 and again the damages @ Rs. 2,000/ per month from 01.01.11 till date of delivery of possession by the defendant and his wife. Accordingly, issue no. 6 is decided in positive in favour of the plaintiff and against the defendant.
ISSUE No. 7 Relief :
59) In view of the findings of all the above said issues, suit of the plaintiff is hereby decreed with costs to the effect that defendant as well as his wife and any other person on their behalf are directed to vacate the Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 35 Smt. Amarjeet Bali vs. S. Makhan Singh premises of the suit property in their possession within 2 montsh from date of decree and to hand over the vacant and peaceful possession of the same to the plaintiff. Again, the defendant is also directed to pay the amount of Rs. 18,000/ as arrears of rent and the damages @ Rs. 1,000/ per month from 09.11.06 to 31.12.10 and again the damages @ Rs. 2,000/ per month from 01.01.11 till date of delivery of possession to the plaintiff within two months from date of decree. In case of failure on part of defendant or his wife, the plaintiff is at liberty to approach the court for satisfaction of decree.
60) Decree sheet be prepared accordingly and file be consigned to Record Digitally Room after due compliance.
signed by
VIVEK VIVEK KUMAR
AGARWAL
KUMAR Date:
AGARWAL 2019.01.09
15:28:25
+0530
Pronounced in open court: (Vivek Kumar Agarwal)
Dated: 07.01.19 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note : This Judgment contains thirty five pages and all the pages have been checked and signed by me.
(Vivek Kumar Agarwal) Civil Judge07, Central, Tis Hazari Courts, Delhi Civil Suit No: 98527/2016 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi