Delhi District Court
Sh. Devender Singh vs Sh. Shuben Ji Tickoo on 26 August, 2013
IN THE COURT OF SH. SUMIT DASS, ADMINISTRATIVE CIVIL
JUDGE (NORTH WEST), ROHINI COURTS, DELHI
Suit No. : 627/10.
Sh. Devender Singh
S/o Sh. Charan Singh
R/o VPO Karala, Delhi110081 ...Plaintiff.
Versus
1. Sh. Shuben Ji Tickoo
S/o Sh. Onkar Nath Tickoo
2. Sh. Sanjay Tickoo
S/o Sh. Poothkar Nath Tickoo
Both R/o 2446, Tirthankar Nagar
Jain Colony, Karala, Delhi110081 ...Defendants.
Date of Institution : 02.12.2010.
Date of Arguments : 23.07.2013.
Date of Judgment : 26.08.2013.
SUIT FOR RECOVERY OF ARREARS TOWARDS RENT, EVICTION OF
PREMISES AND PERMANENT INJUNCTION
Suit No. 627/10. 1 of 12
Devender Singh v. Suben Ji Tickoo & anr.
JUDGMENT:
1. In short facts are as under: Defendants are cousin brothers and their respective fathers had jointly purchased the suit property i.e. a residential property fully built up bearing no. 2446, Khasra No. 81/12 admeasuring 150 sq yards known as Trithankar Nagar, Jain Nagar, Karala, Delhi on 07.03.1994 from Sh. Krishan Kumar S/o Sh. Banarsi Dass for a consideration of Rs 15,000/ in lieu of which said Sh. Krishan Kumar executed all the requisite documents i.e. GPA, Agreement to Sell, Will, Affidavit, Receipt dated 07.03.1994 in favour of fathers of both the defendants. In January, 2009 both the defendants along with their father approached the plaintiff with a proposal involving sale of suit property as they needed money and thus, it was agreed that the plaintiff would buy the suit property for a consideration of Rs 16 lacs. In this regard, defendants got the rights/ entitlements transferred in their name from their respective fathers on 31.01.09 and on the same day, the plaintiff got executed the documents in his favour and Rs 16 lacs was paid by the plaintiff vide cheque no. 709369 and 709370 dt 01.02.09 for Rs 8 lacs each drawn on State Bank of Patiala, Karala Branch, Delhi. Possession of the suit property was taken by the plaintiff on the spot and upon the request of defendants and their fathers, the plaintiff let out the property to them on rent at the rate of Rs 2,000/ per month for a period of 11 months ending on 31.12.09 as it was stated that defendants were Suit No. 627/10. 2 of 12 Devender Singh v. Suben Ji Tickoo & anr.
to purchase a new plot and construct the same for their residential purposes and a rent agreement dated 31.01.09 was executed in this regard. After expiry of tenancy period the plaintiff in January, 2010 requested the defendants to pay arrears of rent as the same were unpaid since July, 2009 along with electricity charges and to vacate the suit property. However, upon the request of defendants and their family members, plaintiff further extended the period of tenancy upto June, 2010 and thereafter till October, 2010 as their new house was under
construction and the defendants were facing financial crisis. Defendants failed to vacate the suit property and to clear the dues towards rent and electricity charges. Legal notice dated 21.10.2010 was also sent in this regard. Hence, the present suit for possession, recovery of arrears of rent w.e.f. August, 09 to November, 10 at the rate of Rs 2,000/ p.m. along with pendent lite and future interest @ 15% p.a. till realization was sought for besides the electricity dues and the decree of permanent injunction.
2. Summons for settlement of issues were served upon the defendants, however, when the defendants failed to appear they were proceeded exparte vide order dated 19.05.2011.
3. Plaintiff was directed to lead evidence.
Suit No. 627/10. 3 of 12 Devender Singh v. Suben Ji Tickoo & anr.
Plaintiff himself has stepped into the witness box and tendered his evidence by way of affidavit Ex. PW1/1 and relied upon documents i.e. site plan Ex. PW1/A, documents i.e. GPA, Agreement to Sell, Will, Affidavit, Receipt all dated 07.03.1994 in favour of fathers of defendants Ex. PW1/B to Ex. PW1/F, documents including both the transactions dt 31.01.2009 Ex. PW1/G to Ex. PW1/T, rent agreement Ex. PW1/U, legal notice dated 21.10.2010 Ex PW1/V and postal receipt and AD card Ex. PW1/X. Sh. Jawahar Lal S/o Sh. Girdhari Lal was examined as PW2 who was a witness to the documents tendered his evidence by way of affidavit Ex. PW2/A and relied upon documents already exhibited as Ex. PW1/G to Ex. PW1/U as witness no. 1.
Thereafter, exparte evidence was closed.
4. Heard and record perused.
5. Plaintiff has examined himself as PW1 and Sh. Jawahar Lal as PW2 who was the witness to the documents executed by the defendants. Both have testified in one voice and had deposed in reference to the execution of documents in favour of plaintiff and in regard to execution of rent agreement inter se.
During the course of arguments, a question arose as to whether the Suit No. 627/10. 4 of 12 Devender Singh v. Suben Ji Tickoo & anr.
documents that have been executed in favour of the plaintiff by the defendants vests the plaintiff with the title/ locus standi to file the present suit for possession for the reason that the said documents are unregistered and not a proper Sale Deed.
Now, in this regard, I may note that if a holistic reading of the plaint is done it is apparent that it is not a suit for declaration of title rather it is for ejectment on basis of existence of relationship of landlord and tenant inter se the parties which arose pursuant to execution of sale documents executed by the defendants and simultaneous execution of a rent agreement dated 31.01.2009 whereby the possession of the defendants in the suit property became as that of a tenant. Now, in this regard, plaintiff has relied upon judgment of Hon'ble Supreme Court of India titled as State of A.P. & amp v. D Raghukul Pershad (D) by LR's & Amp in Civil appeal no. 5822 of 2012 wherein it was observed as under:
"The law is settled by this Court in D. Satyanarayana v. P Jagdish 1987(4) SCC 424 that the tenant who has been let into possession by the landlord can not deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord.....
Suit No. 627/10. 5 of 12 Devender Singh v. Suben Ji Tickoo & anr.
We find that although an averment has been made in the plaint that the respondents were the owners of the suit land, no relief for declaration of title as such has been claimed by the respondents. Only the relief of eviction was sought in the plaint on the ground that the lease had not been renewed after 1986 and the rent had not been paid since 1986. In our considered opinion, therefore, this being not a suit of declaration of title and recovery of possession but only a suit for eviction, the trial court, the first Appellate court and the High Court were not called upon to decide the question of title."
The said judgment squarely applies to the facts herein. Coming to the other aspect as to whether the lease deed was inadequately stamped and its consequences. This is with regard to the fact as to whether the lease deed should be sent to the Registrar of Stamps by impounding the same and for imposition of penalty if the same is inadequately stamped. In this regard, ld. counsel for the plaintiff has relied upon a judgment of Suresh Kumar v. Satish Mehra & Anr a judgment delivered by Hon'ble Delhi High court in O. M.P. 245/03 disposed off on 06.08.2012.
In the said case, the Hon'ble High Court had relied upon the Suit No. 627/10. 6 of 12 Devender Singh v. Suben Ji Tickoo & anr.
judgment of Javer Chand v. Pukhraj Surana cited in AIR 1961 SC 1655 and had observed the effect of section 36 of the Indian Stamp Act precludes any inquiry with regard to the document which has been admitted in evidence. It was observed as under:
"Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses Suit No. 627/10. 7 of 12 Devender Singh v. Suben Ji Tickoo & anr.
the fact that the hundis were marked as Exs. P.1 and P.2 and bore the endorsement 'admitted in evidence' under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed by the same court or a court of superior jurisdiction."
Needless to state that in the case in hand documents have already been tendered in evidence and no objection was raised at that point of time. That Suit No. 627/10. 8 of 12 Devender Singh v. Suben Ji Tickoo & anr.
being the situation, there is no infirmity with regard to the aspect of insufficiency of stamp duty in the documents and any scrutiny at this stage is prohibited. It is also to be noted that in view of the authoritative judgment of Jeevan Diesel VS Jasbir Singh Chadha 185 (2011) DLT 402 it is now a settled law that the service of summons of the suit for possession is itself a notice to quit and thus, the need for sending the legal notice does not arises. However, herein the tenancy had expired by efflux of time and legal notice dt 21.10.2010 was served which also satisfied the mandate of section 106 of Transfer of Property Act.
Another point was with regard to applicability of Delhi Rent Control Act in respect of the suit premises and also mentioned in the order sheet dated 03.12.2012 by my ld. predecessor.
In this regard, plaintiff has placed reliance upon the DRC Act and stated that the area of Village Karala wherein the suit premises is situated is not a notified one for the purposes of applicability of DRC Act. I have also perused section 1 of DRC Act along with the schedule. There has to be a specific notification whereby this Act is made applicable. The Village Karala is not an area in respect of which the provisions of the Act have been made applicable. Consequently, the suit for possession lies and it is not that the suit is barred by the provisions of the Delhi Rent Control Act. Thus, the plaintiff is entitled for the relief of possession.
Suit No. 627/10. 9 of 12 Devender Singh v. Suben Ji Tickoo & anr.
Coming to the aspect of arrears of rent and mesne profits. Plaintiff has claimed arrears of Rs 32,000/ and mesne profits at the rate of Rs 2,000/ per month along with interest 15 % per annum. I have no reason to disbelieve the version of the plaintiff. The mesne profits at the rate of Rs 2,000/ per month are fair and in consonance with the rent. In my opinion, same is justifiable. The only additional amount sought by the plaintiff is the interest at the rate of 15 per annum which is also reasonable and has to be acceded as such. However, the interest is granted on the lump sum sum including the arrears of rent from today till its realization. A relief was also sought for payment of electricity dues. There is no evidence as to whether there existed any electricity dues and accordingly, same are declined.
Accordingly, plaintiff is held entitled to recovery of possession in respect of suit property i.e. a residential property fully built up bearing no. 2446, Khasra No. 81/12 admeasuring 150 sq yards known as Trithankar Nagar, Jain Nagar, Karala, Delhi as shown in site plan Ex. PW1/A. Plaintiff is further held entitled for recovery of arrears of rent of Rs 32,000/. Mesne profits are awarded at the rate of Rs 2,000/ per month till realization. On the lumpsum amount computed i.e. till date of this order the amount computed shall carry interest at the rate of 15% per annum till realization.
Plaintiff has established his rights for recovery of possession of the Suit No. 627/10. 10 of 12 Devender Singh v. Suben Ji Tickoo & anr.
suit property and the defendants are left with no right in the same. Consequently, defendants are restrained from creating any third party interest in the suit property.
With these observations, suit of the plaintiff is decreed. Decree sheet be prepared accordingly. Costs of the suit are also awarded.
File be consigned to Record Room.
Announced in the open court (Sumit Dass)
on 26.08.2013. ACJCUMARC NORTHWEST
(This judgment contains eleven pages and ROHINI COURTS, DELHI.
each page bears my signature.)
Suit No. 627/10. 11 of 12
Devender Singh v. Suben Ji Tickoo & anr.
Suit No. 627/10.
26.08.2013.
Present: None.
Matter was posted for Orders.
Vide separate judgment of even date, suit of the plaintiff is decreed. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
(SUMIT DASS) ACJcumARC (North West) Rohini Courts, Delhi/26.08.2013.
Suit No. 627/10. 12 of 12 Devender Singh v. Suben Ji Tickoo & anr.