Delhi District Court
Sh. Ram Kishore S/O Late Sh. Raghubar ... vs Sh. Radha Kishan S/O Late Sh. Raghubar ... on 10 June, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 144/09
ID No:02402C0196802007
Sh. Ram Kishore S/o Late Sh. Raghubar Dayal
R/o 510, Chhatta Hinga Mal,
Chhota Bazar, Shahdara, Delhi.
.... Plaintiff
Versus
1. Sh. Radha Kishan S/o Late Sh. Raghubar Dayal
R/o 510, Chhatta Hinga Mal,
Chhota Bazar, Shahdara, Delhi.
2. Sh. Bal Kishan S/o Late Sh. Raghubar Dayal
R/o 285, Rajdhani Enclave,
Rani Bagh, Pitampura, Delhi-34.
3. Sh. Devki Nandan S/o Late Pt. Shyam Lal
4. Sh. Davinder Kumar S/o Late Pt. Shyam Lal
5. Sh. Depender Kumar S/o Late Pt. Shyam Lal
All are R/o H.No. 210, Mohalla Guriyai, Chhotta Bazar
Shahdara, Delhi-32.
.... Defendants
SUIT FOR DECLARATION, POSSESSION, ARREARS OF
RENT, MESNE PROFIT AND INJUNCTION
Date of institution of the Suit : 08.03.2007
Date on which judgment was reserved : 02.06.2011
Date of decision : 10.06.2011
Decision : Suit Dismissed
CS no:144/09 Page No: 1/22
JUDGMENT:-
1. This is a suit for Declaration, Recovery of Possession, arrears of rent and damages and Permanent Injunction.
2. The version of the plaintiff is that the plaintiff is a co owner of property bearing no. 516 to 520, Chatta Hinga Mal, Chhotta Bazar, Shahdara, Delhi. The father of the plaintiff and defendant no.1 & 2 was the owner and landlord of the above said property and he died in the year 1965. After his death the plaintiff and the defendants no.1 & 2 became the joint owners of the aforesaid property and the property was mutated in the joint names of the plaintiff and the defendants no.1 & 2.
3. It is further the case of the plaintiff that a portion of the aforesaid premises comprising of one room, kitchen, bathroom and toilet situated on the ground floor and shown in red colour in the site plan (hereinafter referred to as the suit premises) was let out by the father of the plaintiff and the defendants no.1 and 2 to the father of the defendants no. 3, 4 & 5 namely Sh. Shyam Lal. Sh. Shyam Lal was therefore a tenant under the father of the plaintiff in respect of the suit premises. After the demise of his father the plaintiff alongwith his brothers i.e. the CS no:144/09 Page No: 2/22 defendants no.1 & 2 became the co-owner and co-landlord in respect of the suit premises.
4. It is further the case of the plaintiff that the defendant no.1 filed a suit for recovery of possession against the defendants no. 3,4 & 5 without impleading the other co owners. An application under Order I Rule 10 CPC was moved by the plaintiff in the said suit, however the same was dismissed. Therefore the plaintiff has filed the present suit.
5. It is further the case of the plaintiff that the tenancy of Sh. Shyam Lal was duly terminated vide legal notice dated 24.03.1991 issued by one of the co-owners and co-landlords of the property namely Sh. Radha Krishan (defendant no. 1). On termination of his contractual tenancy after expiry of the prescribed period i.e. after 30.04.1991 Late Sh. Shyam Lal became a statutory tenant as he enjoyed the protection of the Delhi Rent Control Act.
6. It is further the case of the plaintiff that Late Sh. Shyam Lal expired on 01.05.1992 and his widow Kailash Wati who was living with him and was also dependent upon him acquired a personal right to CS no:144/09 Page No: 3/22 remain in possession of the suit property during her lifetime under the provisions of section 2(l) of the DRC Act and no other legal heir of Late Sh. Shyam Lal acquired any right to remain in possession of the suit property. Smt. Kailash Wati also expired on 04.05.2005 and other legal heirs of Late Sh. Shyam Lal including the defendants no. 3, 4 and 5 now have no right to remain in possession of the suit property and are not protected under the Delhi Rent Control Act.
7. It is further the case of the plaintiff that the defendants no. 3, 4 or 5 or Sh. Shyam Lal or Smt. Kailash Wati never paid rent after 31.03.1991. The plaintiff has claimed that the defendant nos. 3, 4 and 5 are liable to pay arrears of rent @ Rs. 6.05 per month for a period of three years prior to the filing of the suit and they are also liable to pay damages @ Rs.2000/- w.e.f. 04.05.2005 and the plaintiff claims 1/3rd share in the arrears of rent and damages.
8. The plaintiff has stated that he is one of the co-owners of the above said property and has 1/3rd share therein but the defendants no. 1 & 2 are denying the title of the plaintiff and therefore the plaintiff has claimed a declaration to the effect that the father of the plaintiff had let CS no:144/09 Page No: 4/22 out the suit premises to the father of the defendants no. 3, 4 and 5 and that the plaintiff is a co owner/ co landlord of the suit premises. The plaintiff has further prayed for a decree of possession in respect of the tenanted premises. The plaintiff has further claimed 1/3rd share in the arrears of rent amounting to Rs. 70 and 1/3rd share in the pre suit damages (calculated @ Rs. 2000 per month) amounting to Rs. 1925/-. The plaintiff has further claimed 1/3rd share in the pendente lite damages/ mesne profits payable @ Rs. 2000/- per month. The plaintiff has further prayed for a permanent Injunction restraining the defendant nos. 3, 4 and 5 from delivering the possession of the suit premises to any third person except the plaintiff, defendant no. 1 and the defendant no. 2 jointly.
9. The defendants appeared and filed their written statements. The defendant no.1 pleaded that the suit is barred by section 41(h) of the Specific Relief Act. He further stated that he was the sole landlord of Late Sh. Shyam Lal and he alone had terminated the contractual tenancy of Late Sh. Shyam Lal and he has filed a separate suit for recovery of possession against the defendant nos. 3 to 5 and there is no privity of contract between the present plaintiff and the the defendant nos. 3 to 5.
CS no:144/09 Page No: 5/22
10. The defendant no. 1 further pleaded that the plaintiff and the defendants no.1 & 2 are owners of the suit property and other joint properties and the plaintiff has deliberately not filed a suit for partition, which is the appropriate remedy and he has been enjoying other properties which are in his exclusive possession. He further stated that the suit has not been properly valued for the purpose of court fees and jurisdiction. He prayed for dismissal of the suit.
11. The defendant no.2 contended that plaintiff has 1/3rd share in the suit property and he had never denied the the title of the plaintiff as a co owner. He stated that the father of the plaintiff had let out the property to the father of the defendant nos. 3 to 5 and after his death the plaintiff and the defendants no.1 & 2 are the co owners and landlords in respect of the suit premises. He stated that there is no cause of action against him and he prayed that he be deleted from the array of the parties.
12. The defendants no. 3 to 5 pleaded that the premises in question was let out to Late Sh. Shyam Lal by the owners namely Ram Kishore and brothers at a rent of Rs. 6.05/- per month. The defendants CS no:144/09 Page No: 6/22 no. 3 to 5 further pleaded that Late Sh. Shyam Lal was a contractual tenant in the suit premises and after his demise all his legal heirs became the tenants in respect of the suit premises. It is further pleaded that the contractual tenancy of Late Sh. Shyam Lal was never terminated and the alleged legal notice dated 24.03.1991 has no legal sanctity in the eyes of law and the same was also not duly served. They further stated that the tenancy rights of Late Sh. Shyam Lal devolved on all his legal heirs and therefore the defendants are the tenants in respect of the suit premises and the plaintiff is not entitled for recovery of possession. The defendants have pleaded that the suit is barred by Section 50 of the Delhi Rent Control Act. They further pleaded that all the legal heirs of Late Sh. Shyam Lal have not been impleaded. They further pleaded that the rent was always paid/tendered by the father of the defendants. They further denied that they are liable to pay any arrears of rent. They further denied that they are liable to pay any damages @ Rs.2000/- per month. They prayed for dismissal of the suit.
13. Plaintiff filed replication and denied the averments of the written statements of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint.
CS no:144/09 Page No: 7/22
14. Vide order dated 14.11.2007 the following issues were framed in the present case:
1. Whether the plaintiff is entitled to a decree of declaration against defendant no.1 & 2, as prayed? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction against defendant nos.3 to 5, as prayed? OPP
3. Whether the plaintiff is entitled to recovery of possession against defendant no.3 to 5, if so at what rate and for which period, as prayed? OPP
4. Whether the plaintiff is entitled to arrears of rent against defendant nos.3 to5, if so at what rate and for which period, as prayed? OPP
5. Whether the plaintiff is entitled to damages against defendant nos. 3 to 5 if so at what rate and for which period, as prayed? OPP
6. Whether the suit is not maintainable in its present form, as alleged? OPD1
7. Whether the present suit has not been valued properly for the purpose of court fees and jurisdiction, as alleged? OPD1
8. Whether the present suit is barred in view of Section 50 of Delhi Control Act? OPD3 to 5
9. Relief.
15. In order to establish his case, the plaintiff examined CS no:144/09 Page No: 8/22 himself as PW-1 and deposed on the lines of the plaint. The Defendant no.1 examined himself as DW-1 and deposed on the lines of his written statement. The Defendant no. 2 examined himself as DW-2 and deposed on the lines of his written statement. The Defendant no. 3 examined himself as DW-3 and deposed on the lines of the written statement of the defendants no. 3, 4 and 5.
16. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue Nos. 1, 2 and 6
17. The first question to be answered is whether plaintiff is entitled for the declaration as claimed. The plaintiff claims a declaration that he is one of the co owners/ co landlords in suit property. It has not been disputed that plaintiff and defendant nos.1 & 2 have inherited the suit property from their father.
18. The plaintiff claims that the defendants no.1 & 2 are denying his title to the suit property. Accordingly he has claimed a CS no:144/09 Page No: 9/22 declaration that he is a co owner in respect of the suit property. However the appropriate relief for the plaintiff to seek was the relief of partition.
19. In a suit for partition first of all a preliminary decree is passed which declares that who are the co owners and the respective shares of the co owners in the property. Therefore the appropriate remedy for the plaintiff was to seek the relief of partition of the suit property.
20. Furthermore the plaintiff is claiming that he is entitled to joint possession of the suit premises along with the defendant nos.1 & 2 and has claimed a permanent injunction restraining the defendant nos. 3, 4 and 5 from delivering the possession of the suit premises to any third person except the plaintiff, the defendant no. 1 and the defendant no. 2 jointly. Since the plaintiff and defendants no.1 & 2 are pitted against each other, they cannot be put into physical possession of the suit property jointly and separate possession cannot be granted in the absence of a prayer for partition of the suit premises. The claim for 1/3rd share in the arrears of rent and damages is also not maintainable without a prayer CS no:144/09 Page No: 10/22 for partition of the properties left by the father of the plaintiff.
21. It is also clear that there are other properties also which have been left by the father of the plaintiff and the defendants no. 1 and
2. DW 1 has categorically deposed in respect of the other joint properties and nothing contrary has come on record. All these properties are required to be partitioned by way of a single suit and even a suit for partition of only one property would be a suit for partial partition which is not maintainable.
22. It is well settled that a suit for partial partition is not maintainable. Where all the joint family properties are not included within the partition suit the suit would not be maintainable. Reference may be made to the judgments titled as Kenchegowda v. Sri Siddegowda @ Motegowda reported as 1994(4) S.C.C. 294, Bhajahari v. Abdul Karim Shaikh reported as AIR 1988 CALCUTTA 421(DB) and Sunil Baran Chowdhury v. Anath Bandhu Chowdhury reported as 2006(4) R.C.R.(Civil) 168 in this respect.
CS no:144/09 Page No: 11/22
23. Further Section 34 of the Specific Relief Act reads as under:
"34. Discretion of court as to declaration of status or right :- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such a suit ask for any further relief :
Provided that no court shall make any such declaration where the plaintiff being able to claim any further relief than a mere declaration of title omits to do so."
24. It is clear from the proviso to the Section that in all cases where the plaintiff in addition to a declaration is able to seek further relief but omits to do so, the courts should refrain from passing a declaratory decree. Reference may be made to the judgments titled as "John Guruprakasam v. Yovel Nesan" reported as AIR 1979 KERALA 96 and "Dulana Dei v. Balaram Sahu" reported as AIR 1993 ORISSA 59.
CS no:144/09 Page No: 12/22
25. The plaintiff has sought a declaration that he is the co- owner of the suit property. From a perusal of the material on record, it is clear that the plaintiff ought to have claimed the substantial and further relief of partition of the suit property. The plaintiff has claimed a bare declaration and such a suit for bare declaration, when the plaintiff can claim further relief of partition is not maintainable. Hence the present suit is not maintainable in view of the bar of the proviso to section 34 of the Specific Relief Act.
26. A suit for injunction is also not maintainable since the plaintiff has a alternative and more efficacious remedy of partition available to him and hence no injunction can be granted to him in view of the provisions of section 41(h) of the Specific relief Act.
27. Hence the present suit is not maintainable in its present form and the plaintiff is not entitled for the relief of Declaration or Permanent Injunction.
These issues are therefore decided in favour of the defendants and against the plaintiffs.
CS no:144/09 Page No: 13/22 Issue nos. 3, 4, 5 and 8:
28. PW 1 has that the property was let out to Sh. Shyam Lal by his father and thereafter on the demise of his father, the plaintiff and the defendants no.1 & 2 have becomes the co owners/ co landlords in respect of the suit premises and the property has been mutated jointly in the name of the plaintiff and the defendants no. 1 and 2. He further deposed that earlier the rent receipts were issued by the father of the plaintiff and after his death the rent receipts are being issued jointly by the brothers. The counterfoils of the rent receipts are Ex. PW 1/ 6 to Ex. PW 1/13. He further deposed that the defendants no. 1 and 2 have denied the fact that the plaintiff is a co landlord of the suit premises. He further deposed that the defendant no. 1 has filed a separate suit claiming himself to be the sole landlord. The plaint in the said suit is Ex. PW 1/4. He further deposed that the contractual tenancy of Late Sh. Shyam Lal was terminated by one of the co owners i.e. the defendant no. 1 vide legal notice dated 24.03.1991. He further deposed that Shyam Lal expired and his wife who was also dependent upon him also expired afterwards. He further deposed that hence the defendant nos. 3 to 5 have no right to remain in possession of the suit premises.
CS no:144/09 Page No: 14/22
29. It is true that the evidence on record shows that the plaintiff and the defendants nos. 1 & 2 are the co owners in respect of the suit premises. However the question to be answered is as to whether the plaintiff is the landlord of Late Sh. Shyam Lal or not.
30. It is not in dispute that Late Sh. Shyam Lal was a tenant in respect of the suit property. The plaintiff claims that Late Sh. Shyam Lal was inducted as a tenant in respect of the suit property by his father Late Sh. Raghubar Dayal and after the demise of Late Sh. Raghubar Dayal the plaintiff and the defendants no.1 & 2 have become the co landlords in respect of the suit property. As against this the defendant no. 1 has deposed that Late Sh. Shyam Lal had attorned the tenancy in favour of the defendant no. 1 only and had treated the defendant no. 1 as his sole landlord.
31. In this respect the defendant no. 1/ DW 1 has deposed that a notice dated 22.06.90 was also served upon Sh. Shyam Lal by the plaintiff, the defendant no. 1 and the defendant no. 2. He further deposed that a reply dated 03.07.1990 to the said legal notice, issued on behalf of Sh. Shyam Lal was also received by the plaintiff. In the said CS no:144/09 Page No: 15/22 reply he inter alia asserted that he is a tenant in respect of the suit premises under the defendant no. 1 alone and not under the defendant no. 1 and his brothers jointly. Ld. Counsel for the opposite parties could not elicit anything substantial in the cross examination of Defendant no. 1 so as to discredit his testimony on this point.
32. DW 1 further deposed that Late Sh. Shyam Lal had also deposited rent in the court of Sh. S.M. Chopra, the then Ld. ARC. The notice received by the defendant no. 1 in this respect and the carbon copy of the application for deposit of rent are DW 1/9 and Ex. DW 1/10. The same also show that Late Shyam Lal had admitted the defendant no. 1 as his sole landlord. No suggestion has been given to the contrary to DW 1 during his cross examination.
33. Thus Sh. Shyam Lal clearly accepted in unequivocal terms that the defendant no. 1 alone is the landlord in respect of the suit premises and therefore now Shyam Lal and his legal heirs are estopped from contending that the plaintiff is not the landlord in respect of the suit premises. DW-1 also further deposed that the wife of Sh. Shyam Lal namely Smt. Kailash Wati had also treated herself to be a tenant of the CS no:144/09 Page No: 16/22 defendant no. 1 only and had also entered into an agreement dated 12.06.1995 Ex. DW 1/11 with the defendant no. 1 which shows that the defendant no. 1 was the sole landlord in respect of the suit premises. No suggestion was given to DW 1 that the said agreement was forged. Nothing was brought on record by the opposite parties to show that the said document was forged.
34. Further more the defendant no. 1 issued a legal notice dated 07.11.1991 to Late Sh. Shyam Lal and in the reply dated 06.01.1992 to the said legal notice also late Sh. Shyam Lal had admitted the defendant no. 1 as his landlord. The legal notice and postal receipts and the reply are Ex. DW 1/5 to Ex. DW 1/8.
35. Most importantly the legal notice dated 24.03.1991 terminating the tenancy of Late Sh. Shyam Lal was issued by the defendant no. 1 alone and this fact is not disputed by the plaintiff. Plaintiff/ PW 1 has admitted in his cross examination that the said legal notice was given to Shyam lal on behalf of Radha Krishan only. PW 1 further stated that he had not terminated the tenancy of Sh. Shyam Lal during his lifetime.
CS no:144/09 Page No: 17/22
36. Thus the evidence on record clearly shows that Late Sh. Shyam Lal had been treating the defendant no. 1 as his sole landlord.
37. As against this there is nothing on record which shows that the plaintiff had been dealing with Late Sh. Shyam Lal and the defendant nos.3 to 5 as a co landlord. PW 1 further stated in his cross examination that the rent had been paid by Shyam Lal to him but he could not place any rent receipt on record to establish the same. He could not produce any eveidence to show that he had been dealing with Shyam Lal as a tenant or that Shyam Lal had accepted him as his landlord. No notice of termination of tenancy was issued by the plaintiff and no such notice terminating the tenancy of the tenant issued by the plaintiff was either filed or proved by the plaintiff. It is seen that plaintiff has relied on the legal notice dated 24.03.91 issued by the defendant no.1 terminating the tenancy of Sh. Shyam Lal. However in the said legal notice the defendant no.1 has claimed himself to be the sole landlord in respect of the suit premises. The said notice has not been issued on behalf of the other co owners but only on behalf of the defendant no.1. It cannot be said that the said legal notice was issued by CS no:144/09 Page No: 18/22 or on behalf of the plaintiff. Moreover the said legal notice has not been proved by the plaintiff. It has not been proved by the plaintiff that the said notice was served upon the Sh. Shyam Lal. The plaintiff himself has not issued any notice to Sh. Shyam Lal terminating his tenancy. The plaintiff cannot rely upon the said legal notice which has been issued by the defendant no.1 as the said legal notice does not acknowledge the plaintiff as the landlord/ co landlord in respect of the suit premises. The plaintiff has therefore failed to establish that the tenancy of Shyam Lal was terminated by him.
38. DW 2 could not throw much light on the facts in issue. Even in his WS he has averred that he may be deleted from the array of parties. He claimed that he is a co owner/ co landlord of the suit premises and is entitled to his share. DW3/defendant no. 3 also stated in his cross examination that he does not have any idea whether his father had deposited the rent in the court for the period upto 31.03.1991. He further stated that he does not know whether this rent was deposited in the name of Radha Krishan. He further stated that he does not know whether his after had sent reply dated 03.07.1990 to the notice dated 22.06.1990 through his present counsel Sh. V.K. Shukla. However he CS no:144/09 Page No: 19/22 did not specifically deny this fact. He further stated that he has no idea as to whether his mother paid rent to Radha Krishan. He further stated that he does not know whether his mother had entered into an agreement with Radha Krishan for the purpose of repair of the tenanted premises. Thus DW 3 has not specifically disputed the version of the defendant no. 1 that Sh. Shyam Lal treated the defendant no. 1 as his sole landlord.
39. Since it has not been established that the contractual tenancy of Sh. Shyam Lal was terminated by the plaintiff during his life time the plaintiff Late Sh. Shyam Lal and the plaintiff has failed to establish that the provisions of section 2(l) (i) and (ii) of the Delhi Rent Control Act are attracted as far as the present suit is concerned. Accordingly the plaintiff has failed to establish his case that after the demise of Shyam Lal and Kailash Wati, the defendants no.3 to 5 are liable to deliver the possession of the suit premises to the plaintiff. The plaintiff is not entitled to recover possession of the suit premises. Once they are not liable to deliver possession of the suit premises to the plaintiff the plaintiff is not entitled to any damages. The plaintiff cannot also claim his share of arrears of rent as the material on record shows that the defendant no. 1 is the landlord. The only remedy of the plaintiff CS no:144/09 Page No: 20/22 is to file a suit for partition claiming his share in the rent. As far as the present suit is concerned the plaintiff has failed to establish that he is entitled to 1/3rd share in the arrears of rent.
40. These issues are therefore decided in favour of the defendants and against the plaintiffs.
Issue no. 7
41. The question to be answered is as to whether the suit has been properly valued for the purpose of court fees and jurisdiction. The onus to prove this issue was upon the defendant no. 1. The defendant no. 1 however has not specifically established as to how the suit has not been properly valued for the purpose of court fees and jurisdiction. A suit to recover possession by a landlord from a tenant holding over would include a suit against the heirs of the tenant holding over. Hence the suit would have to be valued on the annual rent only in terms of section 7(xi) of the Court Fees Act. Nothing contrary was established by the defendant no. 1. Thus the defendant has failed to establish that the suit has not been properly valued for the purpose of court fees and jurisdiction. This issue is therefore decided in favour of the plaintiff.
CS no:144/09 Page No: 21/22 RELIEF
42. In view of the foregoing discussion the plaintiff has failed to establish his case. All main issues have been decided against the plaintiff. The plaintiff is not entitled to the relief claimed and the suit is not maintainable in the present form and is liable to be dismissed. Accordingly the present suit is dismissed. Parties are left to bear their own costs. File be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 10.06.2011 CCJ/ARC(East)
(Judgment contains 22 pages.) KARKARDOOMA COURTS,
DELHI
CS no:144/09 Page No: 22/22