Delhi District Court
Sneh Mehta vs Bandu Khan on 15 October, 2016
Sneh Mehta Vs Bandu Khan
IN THE COURT OF CIVIL JUDGE-02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No.82664/16
Smt. Sneh Mehta
W/o Col. V. S. Mehta (Retd.)
R/o 38-B, Ring Road,
Lajpat Nagar-IV,
New Delhi.
Through her G. P. A.
Sh. Col. V. S. Mehta (Retd.) ....Plaintif
Versus
Bundu Khan (D) thr. LRs.
1. Fiaz Ahmad
S/o Late Bundu Khan
2. Smt. Hasina
W/o Late Bundu Khan
3. Smt. Aamna
S/o Late Bundu Khan
4. Smt. Khatoon,
D/o Late Bundu Khan
5. Smt. Parveen
D/o Late Bundu Khan
6. Aizaz Ahmed
S/o Late Bundu Khan
7. Smt. Sabeena
D/o Late Bundu Khan
All R/o 319-A, Hari Nagar,
Ashram, New Delhi ....Defendants
CS No. 82664/16 Page 1 of 15
Sneh Mehta Vs Bandu Khan
Date of Institution : 14.02.2012
Date of Reserving Judgment : 15.10.2016
Date of Decision : 15.10.2016
Final Decision : Decreed
JUDGMENT
( Suit for recovery of possession mesne profits & permanent injunction against unauthorized occupant)
1. This is a suit for recovery of possession, mesne profits & permanent injunction against the defendants.
2. Briefly stated, case of the plaintiff is that defendants are LRs.
of deceased Bundu Khan who was a tenant (for residential purpose only) of plaintiff in respect of a room 12 X 12 ft. at ground floor in property bearing no.319-A, Hari Nagar Ashram, New Delhi as shown in red color. That plaintiff purchased the entire property measuring 209 square meters in the year 1993 through registered GPA and in 2003 a sale deed was registered qua the same ini the name of the plaintiff. That defendants are LRs of deceased Bandu Khan and are in possession of tenanted premises after the death of Bundu Khan. That deceased Bundu Khan was a habitual defaulter in payment of rent and therefore plaintiff issued a notice dated 02.06.2003 terminating the tenancy of Bundu Khan. That except the present defendant no.1 no legal heirs of deceased Bundu khan has anything to do with the suit premises. That the tenancy of deceased Bundu Khan was statutory and as per the provision of Section 2 Explanation 2 of Delhi Rent Control Act the defendant being not financially dependent on his deceased father has no right to remain in possession after expiry of period of one year of the death of the deceased tenant. That plaintiff has issued legal notice CS No. 82664/16 Page 2 of 15 Sneh Mehta Vs Bandu Khan dated 21.12.2011 to the defendant no.1 who gave a baseless reply. That defendant no.1 threatened to sell the suit property to some one else. The defendant no.1 is an unauthorized occupant of the suit property and remaining defendants are only made a proforma party in the present suit. That despite service of the notice defendant has failed to vacate the suit premises. Hence, the present suit is filed by the plaintiff seeking following reliefs:
(a) Decree of recovery of possession in favour of plaintif and against the defendant thereby directing the defendant to handover the physical vacant peaceful possession of the suit property room measuring 12 X 12 fts. Old Constructed 319-A, Hari Nagar Ashram, New Delhi as shown in red colour in site plan.
(b) Decree of recovery of Rs.18,000/- for the period of 10.12.2008 to 10.12.2011 and for further period so long defendant remains in unauthorized occupation in favour of plaintif and against the defendant thereby directing the defendant to pay/clear the amount for illegal use and occupation of suit property.
(c) Decree of permanent injunction in favour of plaintif and against the defendant thereby restraining the defendant his family members their agents, servants representatives assignee associate etc. form handing over physical possession of the suit property, room 12 X 12 fts. Old Constructed 319-A, Hari Nagar Ashram, New Delhi as shown in red colour in site plan to someone else, or create third party interest in the suit property.
3. Upon service of the summons, defendants 1, 2 and 6 have appeared and filed their written statement denying the allegations as contained in the plaint.
CS No. 82664/16 Page 3 of 15Sneh Mehta Vs Bandu Khan Defendants in their respective WS have taken the defence that jurisdiction of this Court is barred u/s 50 of Delhi Rent Control Act, 1958. That the suit of the plaintiff is barred u/o II Rule 2 CPC. That the present suit is barred under the provision of Limitation Act, 1963. That the defendant is a lawful owner in the suit property by way of adverse possession. That the plaintiff has no cause of action and the documents relied upon by the plaintiff claiming her ownership are forged documents. That the suit has not been properly valued. That the plaintiff has not come before the court with clean hands. That deceased Bundu Khan has purchased the suit property about 25 years ago from Sh. Padam Singh. That the suit of the plaintiff is bad for non-joinder for necessary parties. Thus, on the above said grounds the defendants prayed that the suit of the plaintiff be dismissed.
Defendant no.3, 4, 5 and 7 neither appeared before the court nor filed their WS, hence, their defence was struck off and they were proceeded ex-parte vide order dated 09.01.2014.
4. Plaintiff filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 12.02.2014:-
1. Whether the plaintiff is entitled to a decree for recovery of possession regarding property bearing no.319A, Hari Nagar, Ashram, New Delhi? OPP
2. Whether the plaintiff is entitled to a decree for recovery of Rs.18,000/- as unauthorized usage charges for the CS No. 82664/16 Page 4 of 15 Sneh Mehta Vs Bandu Khan period 10.12.2008 to 10.12.2011? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from handing over physical possession of the suit property to a third party? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from creating any third party interest in the suit property? OPP
5. Whether the present suit has been filed without any cause of action? OPD
6. Whether this court has no jurisdiction to entertain the present suit? OPD
7. Whether the present suit is barred by Limitation Act? OPD
8. Whether defendant no. 1, 2 and 6 have become the owners of the suit property by way of adverse possession? OPD
9. Whether the present suit is barred under Order II Rule 2 CPC? OPD
10.Whether the present suit is bad for mis-joinder and non-
joinder of parties? OPD
11.Whether plaintiff has not paid sufficient court fee in the present matter? OPD
12. Relief, if any
6. In order to prove her case, the plaintiff examined Col. Virender Singh Mehta as PW-1 who tendered his evidence by way of an affidavit Ex.PW-1/A. He relied upon documents Ex.PW-1/1 to Ex.PW-1/2, Mark A and Ex.PW-1/4 to Ex.PW-1/12 & Ex.PW-1/15. Plaintiff also examined herself as PW-4 by tendering her evidence by way of an affidavit Ex.PW-4/A. She relied upon document already exhibited on CS No. 82664/16 Page 5 of 15 Sneh Mehta Vs Bandu Khan record as PW-1/1 and Ex.PW-4/1. Plaintiff also examined three official witnesses namely S. K. Sharma, Sh. Tejinder and Shekhar Suman as PW-2, PW-3 and PW-5 respectively and thereafter, plaintiff closed her evidence.
Defendants on the other hand, examined defendant no.6 as DW-1 who tendered his evidence by way of an affidavit Ex.DW-1/A. He relied upon documents Mark A to Mark C, Ex.DW-1/4. Defendants also examined defendant no.1 as DW-2 who relied upon documents Ex.DW-2/1 to Ex.DW-2/4. Defendants also examined two official witnesses namely Ms. Suman Kalra and Ms. Laxmi as DW-3 and DW-4 and thereafter, defendants closed their evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issue-wise findings are as under:
ISSUES NO.1, 5, 6, 7 & 8Whether the plaintiff is entitled to a decree for recovery of possession regarding property bearing no.319A, Hari Nagar, Asharam, New Delhi? OPP & Whether the present suit has been filed without any cause of action? OPD & Whether this court has no jurisdiction to entertain the present suit? OPD & Whether the present suit is barred by Limitation Act? OPD & Whether defendant no. 1, 2 and 6 have become the owners of the suit property by way of adverse possession? OPD
8. All the above five issues are taken up together being interconnected for the purposes of discussion and finding. The onus to CS No. 82664/16 Page 6 of 15 Sneh Mehta Vs Bandu Khan prove issue no.1 was upon the plaintiff and the remaining issues was upon the defendants.
Ld. Counsel for plaintiff has argued that plaintiff is the sole and absolute owner of the suit property by virtue of registered sale deed Ex.PW-1/12. It is further argued that defendants are in unauthorized and illegal possession of the suit property after demise of their father late Sh. Bundu Khan who was the tenant of the suit property. It is further argued that defendants have never paid any rent to the plaintiff and the have been served with a statutory notice dated 21.12.2011 for vacating the suit premises but they have not vacated the same. Hence, plaintiff is entitled to recover the possession.
On the other hand, Ld. Counsel for defendants argued that defendants are the owner of suit property by way of adverse possession as they have been residing in the suit property for the last more than 50 years and nobody has claimed any right over the same. It is further argued that the father of the defendant no.1 late Sh. Bundu Khan had purchased the suit property from the erstwhile owner namely Padam Singh 25 years ago so after the death of Bundu Khan the defendants have become the owner of the suit property. It is further argued that the rate of rent claimed by the plaintiff is below Rs.3500/- per month so the present suit is barred by provisions of Delhi Rent Control Act, 1958. It is further argued that plaintiff has failed to prove her ownership over the suit property and also failed to prove the tenancy so she has no cause of action for filing the present suit.
9. Now coming to the contentions raised by defendants one by one. It is argued that the rent claimed by the plaintiff is Rs.500/- per month which is below Rs.3500/- so the present suit is barred under Delhi Rent Control Act. It is important to note here that the present suit CS No. 82664/16 Page 7 of 15 Sneh Mehta Vs Bandu Khan has not been filed on the basis of tenancy and no relation of Landlord and Tenant has been claimed by the plaintiff between her and the defendants herein. It is claimed by the plaintiff that father of the defendant no.1 Late sh. Bundu Khan was the tenant and after expiry of one year of his demise the defendant has no right to stay in the premises being independent. Section 2 explanation II of DRC Act says "if the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished". Hence, the defendants are staying in the suit premises in the capacity of unauthorized occupants. It has been held by Hon'ble High Court of Delhi in case titled as Krishna Prakash & Anr. Vs. Dilip Harel Mitra Chenoy on 10.08.2001 AIR 2002 Delhi 82 that suit for recovery of possession from legal heirs of the deceased statutory tenant who continued beyond the period of one year from the date of death of deceased tenant becomes unauthorized occupants and the jurisdiction of civil court is not barred.
10. It will not be out of place to mention here that defendants themselves have denied the tenancy between them and the plaintiff in their evidence and everywhere else. It is further pertinent to mention here that defendants in their WS have stated that late Sh. Bundu Khan purchased the suit property from erstwhile owner Padam Singh 25 years ago but not even a single document pertaining to the ownership of late Sh. Bundu Khan has been filed on record. Nothing on record CS No. 82664/16 Page 8 of 15 Sneh Mehta Vs Bandu Khan suggest that defendants are owner of the suit property by virtue of any title documents. Neither the defendants have established themselves to be the owner of suit property nor the relationship between plaintiff and defendants is that of landlord and tenants.
11. The only contention of the defendants qua their right over the suit property is left to be discussed is ownership by way of adverse possession. Ld. Counsel for defendants stated that defendants have been residing in the suit property for the last more than 50 years. It is further contended that plaintiff had the knowledge of the claim of deceased Bundu Khan as owner when the suit was filed in the year 2007 by Bundu Khan against the plaintiff so defendants had the hostile and uninterrupted continuous possession of the suit property since then but plaintiff has not filed the suit within statutory period thereby barring the suit under law of limitation.
The only requirement for establishing the claim of adverse possession is that the person claiming adverse possession should know that property belongs to someone else and not to him. In the instant case, defendants have been claiming themselves to be owner of the suit property and they never claimed that plaintiff was the owner of the suit property so question of adverse possession does not arise. It has come on record in the form of admission by deceased Bundu Khan in document Ex.DW-1/P1 that he was inducted as a tenant in the suit property by Sh. Padam Singh so the permissive possession of the suit property is established. It is also settled principle of law that the permissive possession may be of any longer period does not convey the title to the occupier. Moreover, the claim of the defendants that of ownership by virtue of purchase is contradictory to the claim of ownership by virtue of adverse possession. None of the claim of the CS No. 82664/16 Page 9 of 15 Sneh Mehta Vs Bandu Khan defendants have been established, hence, defendants's capacity in the suit property is only left to be that of unauthorized and illegal occupants. The notice dated 21.12.2011 Ex.PW-1/10 has been admittedly received by the defendant as the same has also been replied on 03.01.2012. The plaintiff has proved on record the ownership by way of registered sale deed Ex.PW-1/12, so plaintiff is definitely entitled to the relief of possession.
12. Now coming to the other contention raised by defendants with respect to question of limitation, it is only in the year 2007 admittedly plaintiff came to know about the claim of Bundu Khan as owner of the suit property and the present suit has been filed in the year 2012 so the suit filed within period of 12 years is very much within the period of limitation as per provision 64 of the Limitation Act.
13. In view of the observations given above, all these issues stands decided in favour of plaintiff and against the defendants.
ISSUE NO.2 Whether the plaintiff is entitled to a decree for recovery of Rs.18,000/- as unauthorized usage charges for the period 10.12.2008 to 10.12.2011? OPP
14. The onus to prove this issue was upon the plaintiff. It is proved on record that the occupation of the defendants in the suit property is unauthorized and illegal. It has also been proved on record that no rent has been paid by the defendants to the plaintiff admittedly. Plaintiff has claimed specifically that deceased Bundu Khan was liable to pay rent @500/- per month qua the suit property but the defendants have not led any contrary evidence to show that such property cannot fetch such CS No. 82664/16 Page 10 of 15 Sneh Mehta Vs Bandu Khan amount of rent. In fact considering the general scenario and taking judicial notice of the rising rates of rent in Delhi, it can be presumed that for such portion in colony like Hari Nagar Ashram, the rent would not be less than Rs.500/- per month as on date. Hence, claim of the plaintiff cannot be disbelieved and she is entitled to the same. This issue stands decided accordingly in favour of plaintiff and against the defendants.
ISSUES NO.3 & 4Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from handing over physical possession of the suit property to a third party? OPP & Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from creating any third party interest in the suit property? OPP
15. Both these issues are taken up together being interconnected for the purposes of discussion and findings. The onus to prove these issues was upon the plaintiff. In view of the finding given in the issue no.1 plaintiff has been found to be entitled to the relief of possession of the suit property and the apprehension of creating third party interest by the defendants due to their adverse claim is also established. Accordingly, plaintiff is entitled to relief of injunction as prayed herein. Accordingly, both these issues also stands decided in favour of plaintiff and against the defendants.
ISSUE NO.9 Whether the present suit is barred under Order II Rule 2 CPC? OPD CS No. 82664/16 Page 11 of 15 Sneh Mehta Vs Bandu Khan
16. The onus to prove this issue was upon the defendants. Ld. Counsel for defendants argued that the present suit is barred under Order II Rule 2 CPC for the reason that plaintiff could have sought the present reliefs in the earlier suit filed by plaintiff against the defendants in the year 2007 whereby plaintiff has sought the relief of injunction. It is further argued that deceased Bundu Khan has claimed himself to be the owner of the suit property in the said suit in his defence so the plaintiff could have sought all the reliefs in the same suit arising from the same cause of action. Hence, the present suit is barred u/o II Rule 2 CPC.
On the other hand, Ld. Counsel for plaintiff argued that defendant has not filed the copy of the plaint of the said suit which was filed by the plaintiff against the defendant. It is further argued that plaintiff has not sought the relief of possession in the said suit as the cause of action of both the reliefs are different and it is the prerogative of the plaintiff to seek the relief of possession at any time later on which does not debar the plaintiff to seek simplicitor relief of injunction which was urgent in nature at that point of time. Hence, the bar of Order II Rule 2 does not come in picture.
Order II Rule 2 CPC says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of cause of action. The cause of action for seeking relief of permanent injunction and for seeking relief of possession is different. Admittedly, the entire judicial record pertaining to the said suit filed by the plaintiff has not been filed by the defendants in the present suit to show as to what actual relief was sought by the plaintiff against the deceased Bundu Khan or whether Bundu Khan filed the suit against the plaintiff prior or subsequent on the filing of the suit by the plaintiff as there were two suits filed by each of the party against each other in the year 2007. The CS No. 82664/16 Page 12 of 15 Sneh Mehta Vs Bandu Khan bar of Order II Rule 2 only comes when there are several reliefs arising from the same cause of action that can be sought in one suit but in the instant case, the cause of action is different. Hence, this court is of the view that the present suit cannot be said to be barred u/o II Rule 2 CPC. Accordingly, this issue stands decided against the defendants and in favour of plaintiff.
ISSUE NO.10 Whether the present suit is bad for mis-joinder and non-joinder of parties? OPD
17. The onus to prove this issue was upon the defendants. Ld. Counsel for defendants argued that plaintiff in the notices sent to the defendants have mentioned her son Anuj Mehta to be one of the owner of suit property. It is further submitted that PW-5 in his examination in chief mentioned the name of Anuj Mehta as one of the assessed owner in their record. Hence, the non-impleading of Anuj Mehta as a necessary party to the present suit renders the suit bad in law.
On the other hand, Ld. Counsel for plaintiff argued that plaintiff is sole and absolute registered owner of the suit property. It is further submitted that the sale deed registered qua the suit property is only in the name of plaintiff and therefore Anuj Mehta cannot be said to be joint owner of the suit property. It is further argued that the contention raised by the defendants is misconceived, hence, stands rebutted.
18. I completely agree with the argument put forth by Ld. Counsel for plaintiff that the sole registered owner as per the sale deed Ex.PW- 1/12 is Ms. Sneh Mehta. Mere mentioning the name of Anuj Mehta in the notice dated 02.02.2002 sent to the deceased Bundu does not make Anuj Mehta as a owner of the suit property. PW-5 has only CS No. 82664/16 Page 13 of 15 Sneh Mehta Vs Bandu Khan deposed on the basis of record stating that Anuj Mehta has also been depositing the property tax which again does not mean that Anuj Mehta is a registered owner of the property. In view of the observations given above, this court finds the contention of the defendants without any substance. Accordingly, this issue stands decided against the defendants and in favour of plaintiff.
ISSUE NO.11 Whether plaintiff has not paid sufficient court fee in the present matter? OPD
19. The onus to prove this issue was upon the defendants. Ld. Counsel for defendants argued that plaintiff has valued the suit for the relief of possession on the basis of rental value for one year whereas the suit should have been valued on the basis of market value of the suit property. It is further argued that plaintiff has claimed the defendants to be the unauthorized occupant in the suit property so he was supposed to value the relief of possession on the basis of market value of the suit property, hence, the suit is liable to be dismissed.
On the other hand, Ld. Counsel for plaintiff argued that the suit property was rented out to the deceased Bundu Khan, late father of defendant no.1 so accordingly, the relief of possession was valued on the basis of rental value for one year. Hence, the suit has been properly valued and the contention of the defendants are without any merits.
20. It has been proved on record that Bundu Khan was admitted as tenant in the suit premises by erstwhile owner of the suit property Sh. Padam Singh and after the purchase of same the plaintiff has stepped into the shoes and become landlord/owner of suit property. Merely that the defendants have become unauthorized occupant in the suit CS No. 82664/16 Page 14 of 15 Sneh Mehta Vs Bandu Khan property after the demise of Bundu Khan does not require the suit to be valued at the rate of market value of suit property. The plaintiff has rightly valued the relief of possession as per Section 7(xi) of Court Fees Act. This aspect has been categorically dealt and held accordingly by Hon'ble High Court of Delhi in case titled as Krishna Prakash & Anr. Vs. Dilip Harel Mitra Chenoy on 10.08.2001 AIR 2002 Delhi 82.
Relief:
21. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby decreed. Defendants are directed to hand over the vacant and physical possession of the suit property i.e. room measuring 12 X 12 fts. Old Constructed 319-A, Hari Nagar Ashram, New Delhi as shown in red colour in site plan within one month from today. Plaintiff is also entitled to recover the damages/mense profit of Rs.18000/- alongwith interest @12% per annum from the date of filing of the suit till realization of the same against the defendants jointly and severally. Plaintiff is also entitled to recover damages/mense profits @ Rs.500/- per month from January 2012 till vacation of the suit premises. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared subject to furnishing of deficient court fees, if any within 15 days from today.
22. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 15.10.2016 CJ-02 (South)/Saket Courts
New Delhi/15.10.2016
CS No. 82664/16 Page 15 of 15