Delhi District Court
S. Bhagwant Singh vs Bhartiya Janta Party on 16 April, 2007
1
IN THE COURT OF MS. SHALINDER KAUR, ADJ, DELHI.
RCA No. 19/2004
IN THE MATTER OF :-
1. S. Bhagwant Singh
2. S. Khushwant Singh
3. Brig. Gurbux Singh
(All sons of Sir Shobha Singh)
4. Mrs. Mohinder Jaspal Singh
D/o. Sir Shobha Singh
5. Mr. Rahul Singh
S/o. S. Khushwant Singh
6. S. Preminder Singh
S/o. S. Bhagwant Singh
All R/o.1A, Janpath,
New Delhi. .....APPELLANTS.
VERSUS
1. Bhartiya Janta Party
2. Shri Madan Lal Khurana
President Delhi Pradesh
2
Bhartiya Janta Party
3. Shri. Yogender Kumar Jain
General Secretary
Bhartiya Janta Party.
R/o. Flat No.1,
Sir Shobha Singh Building,
5285/VII, Outside Ajmeri Gate,
Delhi. .....RESPONDENTS.
JUDGEMENT
1. Aggrieved by the judgment and decree dated 30.11.2000 passed by the Ld. trial court, the appellants have preferred this appeal against the respondents.
2. It was contended on behalf of the appellants that they had filed a suit for recovery of possession of the first floor of the building of Sir Shobha Singh Charitable Trust bearing No. 5285, Ajmeri Gate, Delhi. The appellants claimed themselves to be trustees of Sir Shobha Singh Charitable Trust who is the owner of the said building. That prior to 1967, Indian National Congress was in occupation of the suit premises as a tenant @ 3 Rs. 225.10 paise per month. The tenancy was in the name of General Secretary, Provincial Congress Committee. That some time in 1968, there was a split in the Indian National Congress. One group of the said party became Congress (O) while the other group became Congress (I). The group calling themselves Congress (O) occupied the premises till 1977. The appellants, however, continued to make bills in the name of General Secretary, Provincial Congress Committee. That group or the political party known as Congress (O) retained possession of the suit premises. That in 1977, the said Congress (O) merged with a number of other political parties including Jansangh and constituted the political party known as "Janta Party". After the elections in the beginning of 1977, the said Janta Party came to power at the centre. That in 1980, the said Janta Party broke up and one of its original constituents, Jan Sangh assumed the name of "Bhartiya Janta Party" and occupied the suit premises wrongfully and illegally.
3. The appellants had preferred an application under Order 1 Rule 8 CPC along with the plaint averring that the respondent No. 1 is an unincorporated political party having all those members who have interest in the suit. Thus, they be allowed to sue respondent No.1 through respondent No.2 & 3 in its representative capacity. The Ld. trial court allowed the said 4 application and permission was granted to the appellants to sue respondent No.1 in its representative capacity through its office bearers. A notice of institution of the suit was given to all the members of the public by publication in a daily newspaper.
4. It was contended that Sir Shobha Singh Charitable Trust is a Public Trust and vide settlement deed Ex.PW1/2, the property bearing No. 5285, Ajmeri Gate, Delhi was transferred to the said trust. That PW1 Sh. Himmat Singh who is one of the attestating witness of the said deed has proved rent receipts Ex.PW1/21 and Ex.PW1/22. He has proved that respondent No.1 trespassed into the disputed property without the consent of the appellants and its possession is that of a trespasser. The witness has further proved that the appellants had never given consent to the tenancy of respondent No.1. The witness finally proved the notice Ex.PW1/4 sent through Regd. A/D cards Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 to show that the notice was given to respondent No.1 to vacate the suit premises.
5. It was further contended that the appellants have also proved the tenancy existed in favour of General Secretary, Delhi Provincial Congress Committee and the rent receipts have always been issued in the said name only.
56. It was contended that for creation of a tenancy, a contract between the landlord and tenant is essential without which a tenancy cannot come into existence. In support of the said contention, following judgments were cited on behalf of the appellants.
(i) Bakshi Ram Vs. Buta Singh Kahan Singh, AIR 1957, Punjab 57 (V 44 C 23 March).
(ii) Udhoo Dass Vs. Prem Prakash & another, AIR 1964 Allahabad 1 (V 51 C 1).
(iii) Ram Prakash Vs. Shambhu Dayal Agarwal and another, AIR 1960, Allahabad 395 (V 47 C 95).
7. It was further contended that for the purpose of creation of tenancy, it is essential that a contract should be between the two legal persons. That Bhartiya Janta Party is an unregistered and unincorporated political party having thousands of members. It is not a legal entity thus, would not be capable of entering into the contract. In support of the said contention, the Ld. counsel for the appellants relied upon the judgment Tejoomal Lakhmichand Vs. M.J. Talegaonkar & others, AIR 1980 Bombay 369.
8. It was vehemently argued on behalf of the appellants that the landlord of the suit premises is a trust and under the trust 6 law, it is essential that for and on behalf of the trust all the trustees must be a party to the transaction. If only one of the trustees and not all the trustees are party to a contract, no contract could come into existence.
9. It was contended that thus Sh. Daljit Singh who was one of the plaintiff in the suit alone could not have created a tenancy in favour of respondent No.1 by accepting rent from DW1 and issuing the alleged rent receipt Ex.DW1/1. That at the relevant time, there were eight trustees of the trust and plaintiff No.6 was one of them who alone could not have created tenancy in favour of respondent No.1. It was contended that DW1 has admitted that he had never met with or talked to any other trustee thus, Sh. Daljit Singh, one of the trustee, on his own could not have created any tenancy in favour of respondent No.1. Under law, all the trustees must jointly create a tenancy by passing a resolution duly recorded in the minute book. As that was not done, therefore, the document relied upon by the respondents which is Ex.DW1/1 and the plea taken by the respondents that a fresh tenancy was created vide this document is not acceptable. In support of the said contention, the appellants relied upon the following judgments :
(i) Lala Man Mohan Das Vs. Janki Prasad and others, AIR (32) 1945 Privy Council 23.7
(ii) L. Janakirama Iyer and others Vs. P.M. Nilakanta Iyer and others, AIR 1962 Supreme Court 633 (V 49 C 95).
10. It was further contended that the testimony of Sh. Himmat Singh cannot be thrown away on the account that he was a Manager of Sir Shobha Singh & Sons Private Limited as well as Sir Shobha Singh Public Charitable Trust. That he could be a Manager of both the bodies at the same time. That PW1 had been working as a Manager with the trust and had the knowledge about the tenants of the said trust. Accordingly, his testimony is trustworthy and he did not require a Power of Attorney or written authorization to appear and depose as a witness in the case. Moreover, the said witness has denied the signature of Sh. Daljit Singh on the receipt Ex.DW1/1. The respondents have not summoned Sh. Daljit Singh as their witness to prove the genuineness of the rent receipt Ex.DW1/1. Furthermore, the respondents did not produce their account books and relevant documents showing the payment of rent by respondent No.1 despite directions from the court. Thus, an adverse inference has to be drawn against respondent No.1. In support of the above contention, the judgment in the case titled as "Central Bank of India Vs. Tarseema Compress Wood Manufacturing Company and others, AIR 1997 Bombay 225" was cited.
811. It was argued that a mere possession of the premises for a long time by respondent No.1 did not create a tenancy in his favour. The judgment titled as "Rattan Devi Vs. Shri Bal Kishan and anr. 1978 (1) RCR 593" was cited on behalf of the appellants in support of the said contention. It was contended that the entire cross examination has to be read in toto and a failure to cross examine on a certain point will not amount to acceptance of the testimony of a witness when the said witness in itself is not credible.
12. It was contended that DW1 has testified that he never made payment of rent with his own hands and never got a receipt. The respondents have not produced any records to show that they had deposited the rent with the appellants. The witness has also admitted that he did not know if any deed was executed in the name of Bhartiya Janta Party. Thus, the witness is unabled to prove the execution of the fresh tenancy in favour of the respondent No.1. In support of the said contention, the judgment titled as "Mt. Sukhraj Bhuj Vs. Calcutta State Transport Corporation, AIR 1966, Calcutta 620 (V 58 C 108)" has been cited on behalf of the respondents.
13. It was contended that the appellants have produced 9 overwhelmingly evidence to show that no fresh tenancy as alleged by the respondents was created in favor of respondent No.1. That respondent No.1 is merely a trespasser in the suit premises whose possession and right to stay in the premises as a tenant was never recognized by the appellants. Moreover, Sh. Daljit Singh being one of the trustees had no authority to execute the alleged document DW1/1. Thus, in the absence of relationship of landlord and tenants between the parties, the suit cannot be barred under Section 50 of the Delhi Rent Control Act.
14. It was argued that issue No.3 does not arise in the present suit as the respondents have not been able to show as to who is the necessary party who has not been joined in the suit. That the suit has been accordingly instituted for recovery of possession by the necessary parties who are the owners and landlords of the premises and the respondents who are the trespassers.
15. It was contended that the appellants have valued their suit at Rs.20,000/- and had paid the court fees on the said amount. The respondents had not lead any evidence to prove that the value of the said flat is more than Rs.20,000/-. Accordingly, it has not been proved that the suit had not been valued properly for the purposes of court fees and jurisdiction. It was contended 10 that the appellants have also claimed damages w.e.f. 03.08.1989 for use and occupation @ Rs.10,000/- per month which is the prevalent rent rate in the market. Thus, the appeal be accepted and the judgment and decree passed by the Ld. trial court be set aside.
16. On behalf of the respondents, it was contended that relationship of landlord and tenant existed between the parties to the suit. That the respondents had come into possession of the suit premises on account of numerous political changes, splits and mergers in the political parties. That they had attained the possession by way of implied surrender of the premises. Thus, they were in lawful possession of the suit premises. In support of the said contention, the following judgments are cited :
(i) Sushil Kumar Vs. Bhagwanti Devi & another, 1989 (2) AIRCJ 8.
(ii) Pushpa Rani Vs. Bhagwanti Devi, AIR 1994 SC 774.
(iii) Prakashwati Bali Vs. Manish Dewan, 62 (1996) DLT
475.
17. Thereafter, in the year 1981 a fresh tenancy was created in their favour. The duly executed rent receipt has been proved as Ex.DW1/1. That the testimony of DW1 regarding creation of 11 tenancy of the trustee Sh. Daljit Singh after consulting the other trustees and the acceptance of the rent has not been challenged. Thus, his testimony could not be shaken and is taken to be correct. In support of the said argument, the judgment "AIR 1961 Calcutta 359" was cited on behalf of the respondents.
18. It was further contended that the two counter foils Ex.PW1/21 and Ex.PW1/22 relied upon by the appellants corroborate the receipts mark A & B. Accordingly, the payment of rent for three years has been proved. Moreover, it is an admitted fact that Sh. Vijay Kumar Malhotra was never in Indian National Congress and he was the President of Bhartiya Janta Party at the relevant time. Thus, the rent tendered and accepted on behalf of the Bhartiya Janta Party has not been challenged. Furthermore, the said paid rent has been appropriated by the appellants in their books of accounts. That they did not produce their books of accounts for the said four years to show that they did not account the rent for the said period tendered on behalf of the respondent No.1 although, they had produced their rent registers for various years.
19. It was vehemently argued that in the entire pleadings the appellants have not taken a stand that Sh. Daljit Singh had no authority to create a tenancy. Rather, they had taken the 12 objection that the rent receipts relied upon by the respondents are forged. However, none of the trustees or more specifically, the trustee Sh. Daljit Singh did not enter the witness box to prove that the rent receipts were forged.
20. It was further contended that the evidence of PW1 cannot be relied upon as he is merely a Power of Attorney on behalf of the appellants and the appellants did not stand in the witness box in order to afford an opportunity to the respondents to cross examine them on material facts. In support of the said contention, the following judgments have been relied upon on behalf of the appellants.
(i) Vidhyadhar Vs. Mankikrao and another, AIR 1999 Supreme Court 1441.
(ii) Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd and others, AIR 2005 Supreme Court 439.
21. It was contended that as the relationship of landlord and tenant existed between the parties, thus, the suit is not maintainable as being barred under Section 50 of the Delhi Rent Control Act. It was further contended that the appellants have not valued the suit properly. PW1 has deposed that he had consulted a valuer Lt. Col. R.K. Kohli before filing the suit, 13 however, report of the said valuer has not been placed on record. Thus, the defendants have failed to prove that they have valued the suit correctly for the purposes of court fee and jurisdiction. That they have concealed the best evidence which is the report of the valuer, thus, it was argued that relying upon the judgment "AIR 1968 SC 1413" the suit is not maintainable.
22. It was further contended that the ratio of the judgments cited on behalf of the appellants "AIR 1945 Privy Council page 23 (Supra)" and "AIR 1962 Supreme Court page 633" does not apply to this case, as both these judgments relate to the provisions of Indian Trust Act which applies only to private trusts and not to public charitable trusts whereas appellants are trustees of Public Charitable Trust.
23. Per contra, on behalf of the appellants it was contended that the provisions of Indian Trust Act are applicable both to Private as well as Public Charitable Trusts.
24. It was contended on behalf of the respondents that Bhartiya Janta Party is an association of persons who can acquire and hold the property. The appellants have admitted that the Indian National Congress which is also an association of persons had created a tenancy in its favour. On the same analogy, the 14 Bhartiya Janta Party can also create a tenancy in its favour.
25. It was contended that the respondents have explained for non production of their account books by way of the affidavits filed by respondent No.2 & 3. That the Bhartiya Janta Party retains the account books for a statutory period of six years and thereafter the same are destroyed. As their account books are destroyed, they could not produce the same. It was contended that the respondent No.1 was in lawful possession of the suit premises by implied surrender and thereafter a fresh tenancy was created in its favour. Accordingly, the suit filed by the appellants is barred under the provisions of Section 50 of the Delhi Rent Control Act.
26. On the pleadings of the parties, the following issues were framed vide orders dated 21.10.1992:
(i) Whether the suit is without any cause of action? OPD.
(ii) Whether there is relationship of landlord and tenant between the parties and the suit is not maintainable U/s.50 of D.R.C. Act? OPD.
(iii) Whether the suit is bad for non-joinder of necessary parties? OPD.
(iv) Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP.15
(v) Whether the plaintiff is entitled for decree of possession in respect of the suit premises as prayed in the suit? OPP.
(vi) Relief.
27. The Ld. trial court returned the findings on issue No.1, 2, 4 and 5 in favour of the respondents and against the appellants and thereby dismissed the suit of the appellants vide judgment dated 30.11.2000. However, issue No.3 has been decided against the respondents.
28. It is the admitted case of the parties that the property bearing No. 5285, Ajmeri Gate, Delhi is a trust property belonging to Sir Shobha Singh Charitable Trust. It has not been disputed that prior to 1967, the Indian National Congress was a tenant in the suit property in this building @ Rs. 225.10 paise per month. In the year 1968, there was a split of Indian National Congress and a group of said party became Congress (O) while the other group became Congress (I). The group of the said Congress (O) occupied the premises till 1997. In 1980, Bhartiya Janta Party occupied the suit premises. According to the appellants, the respondents were in possession of the premises wrongfully and illegally. Whereas the respondents have pleaded that their possession was lawful due to the implied surrender of 16 possession in their favour.
29. It is the case of the appellants that as respondent No.1 was in unlawful possession of the suit premises as a trespasser, a notice dated 31.05.1989 was served upon the respondents to vacate the premises. Whereas it has been contended on behalf of the respondents that in the year 1981, a fresh tenancy was created in their favour by the appellants and the rent receipt was issued in the name of Sh. Vijay Kumar Malhotra, the President of Delhi State Union of Bhartiya Janta Party. Accordingly, the relationship of landlord and tenant was created.
30. The respondents have relied upon the three rent receipts mark A, B and Ex.DW1/1 which are alleged to have been signed by the trustee Sh. Daljit Singh on behalf of Sir Shobha Singh Trust on 01.03.1983, 01.08.1984 and 08.12.1981 respectfully accepting the rent of Rs.4,200/- from Sh. Vijay Kumar Malhotra of the suit premises. The appellants have raised the plea that the receipt Ex.DW1/1 is a forged and fabricated document.
31. PW1 has deposed that it does not bear the signature of Sh. Daljit Singh at point A on the said receipt. He has deposed that he has been working with Sir Shobha Singh & Sons Private Limited as a Manager since 1958. That he was also a Manager 17 of Sir Shobha Singh Trust (Public Charitable Trust). That he could identify the signatures of all the appellants including Sh.
Daljit Singh as he had seen them working and writing. During cross examination, he deposed that he could not identify the signature on the documents mark A, B and C. Thereafter, he specifically denied the signatures on the said documents as signed by Sh. Daljit Singh.
32. DW1 Sh. Vijay Kumar Malhotra has deposed that in the year 1981 after the formation of Bhartiya Janta Party, he had telephonically contacted Sh. Daljit Singh and informed him that almost the entire Janta Party in Delhi came to the fold of Bhartiya Janta Party. It was the Bhartiya Janta Party who was in possession of both the offices at Ajmeri Gate. Accordingly, he requested that Bhartiya Janta Party should be treated as a tenant in respect of the suit premises. Mr. Daljit Singh informed him that he had to consult other persons also. That he went to see Sh. Daljit Singh and requested him to issue a receipt and he issued an unstamped document mark C which bears the signature of Sh. Daljit Singh at point A which the witness has identified as put in his presence.
33. The witness has further deposed that he went to Sh. Daljit Singh on 08.12.1991 and he had informed him that he has 18 consulted and had the consent of the trustees of treating the Bhartiya Janta Party as their tenant in the suit property. He also deposed that the receipt of rent Ex.DW1/1 was executed in his presence which bears the signature of Sh. Daljit Singh at point A.
34. Admittedly, at the time when the appellants was examining their witnesses, Sh. Daljit Singh, one of the trustee who had filed the suit as plaintiff No.6 was alive. The best evidence was of Sh. Daljit Singh who did not enter in the witness box to admit or deny his signatures on Ex.DW1/1 at point A. Moreover, DW1 had specifically stated that Sh. Daljit Singh had signed in his presence on Ex.DW1/1. However, the appellants have led no evidence in rebuttal to prove that Sh. Daljit Singh did not sign on the document Ex.DW1/1. No handwriting expert has been examined to discharge the onus placed on the appellants to prove that the document Ex.DW1/1 is a forged document. Accordingly, it cannot be said that Ex.DW1/1 was not signed by Sh. Daljit Singh.
35. The appellants have raised a contention that Sh. Daljit Singh was one of the trustees thus, the consent of all the other trustees was required for creation of a fresh tenancy. Thus, even if it is assumed that Sh. Daljit Singh had signed Ex.DW1/1, it is 19 of no relevance as he did not have authority to do so according to the Trust Laws.
36. Per contra, on behalf of the respondents it was contended that the appellants have never averred in their pleadings that Sh. Daljit Singh did not have any authority to execute the rent receipt on his own without the other trustees executing the said receipt. It was further argued that Sh. Daljit Singh had told DW1 that he had obtained the consent of the other trustees for creating a tenancy in favour of the respondents. Accordingly, the fresh tenancy was created with consent of all the trustees.
37. In "Lala Man Mohan Das Vs. Janki Prasad and others, AIR (32) 1945 Privy Council 23" it has been held that :
"In England as well as in India in the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuse or 20 be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. The act of one trustee done, with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved."
38. In the judgment titled as "L. Janakirama Iyer and others Vs. P.M. Nilakanta Iyer and others, AIR 1962 Supreme Court 633 (V 49 C 95)" it has been held that "In the eyes of co- trustees, the office is a joint one and under S. 48 all acts which the trustees intend to take for executing the trust must be taken by all of them acting together. If one of the trustees refuses to join in the execution of the trust, S.34 provides for the remedy. The other trustees can apply to the court as contemplated by S. 34 and the trust may accordingly be executed. But S. 48 also contemplates that if a trust deed under which more trustees than one are appointed expressly provides that the execution of the trust may be carried out not by all but by one or more then of course the matter would be governed by the special provision of the trust deed."
2139. In the judgment titled "M/s. Shanti Vijay & Co., etc Vs. Princess Fatima Fouzia and others, AIR 1980 Supreme Court 17", the Hon'ble Supreme Court observed that "The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction affecting the trust property, and a majority cannot bind the trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one body in the eye of law, and all must act together. It follows as a necessary corollary, that where there are several trustees they must act unanimously in making a sale or a contract of sale in respect of trust property, unless it is provided otherwise by the terms of the trust deed".
40. Thus, now it is required to be seen that whether Sh. Daljit Singh had the authority to execute Ex.DW1/1. The law has been well settled that in case of more trustees, all of them should join in the execution of the trust unless the trust deed provides otherwise or where the execution is not carried out by all the trustees but by one or more, than it has to be strictly proved that the act of one trustee was done with the sanction and approval of a co-trustee. The said sanction or approval has to be strictly 22 proved. In the written statement, it has been stated that a fresh tenancy was created by the plaintiffs in the year 1981 and the rent receipt was issued in the name of Sh. Vijay Kumar Malhotra.
41. In the replication, the appellants have pleaded that after inspection of the court file, they learnt that the respondents have fabricated the documents purported to be rent receipts. So, the rent receipts have not been issued by them. Accordingly, the appellants have not stated that Sh. Daljit Singh had no authority to execute the document Ex.DW1/. DW1 has categorically testified that he telephonically contacted Sh. Daljit Singh and requested him to treat Bhartiya Janta Party as a tenant in the premises. Sh. Daljit Singh informed him that he had to consult other persons. That he went to see Sh. Daljit Singh on 08.12.1991. He informed him that he has consented and had the consent of the other trustees for treating Bhartiya Janta Party as their tenant in the suit property. That the receipt Ex.DW1/1 was executed in his presence. The appellants have failed to show that the receipt Ex.DW1/1 executed on 08.12.1981 is a forged and fabricated document whereas it has been proved that it was executed by Sh. Daljit Singh as one of the trustee on behalf of the Trust. Moreover, none of the trustees have stepped into the witness box to prove that anyone of them did not consent for 23 treating Bhartiya Janta Party as a tenant in the suit property. No evidence in rebuttal has been lead. Thus, the testimony of DW1 cannot be disbelieved that Sh. Daljit Singh did not have the consent of the other trustees for treating Bhartiya Janta Party as their tenant.
42. Even if it is further assumed that Sh. Daljit Singh did not have the authority to sign Ex.DW1/1, as the same has not been executed by the other trustees, Ex.PW1/1 is the trust deed wherein it has been mentioned that all the transfer of immovable property shall be executed by the Chairman of the trust or under the authority delegated by him to one or more trustees in writing. The appellants have not put the said clause of the trust deed to DW1 that the document Ex.DW1/1 could only have been executed by the Chairman or that the Chairman did not delegate his authority to Sh. Daljit Singh. It has also not been stated that who was the Chairman at the relevant time.
43. On the other hand, PW1 has admitted that at the time of execution of mark A, B & C Sh. Daljit Singh was a trustee. Thus, the trust deed Ex.PW1/1 provides for transfer of immovable property which is otherwise then as mentioned in Section 48 of the Indian Trust Act. Accordingly, the respondents have proved that Ex.DW1/1 was properly executed by the 24 trustee Sh. Daljit Singh. PW1 has proved the rent registers as Ex.PW1/9 to Ex.PW1/20. The said registers are for the years 1988 to 1991.
44. It was contended on behalf of the respondents that the rent received by the appellants for the year 1981, 1982 and 1983 has been accounted in the account books of the appellants but they have not produced the same. PW1 has testified that he could say after verification of the books if the trust had made entry of the amounts shown in mark A, B and Ex.DW1/1. He has also deposed that the books for the said period are in the custody of the trust with him. However, the said books have not been produced to show that the rent paid under the said documents has not been accounted in the books of the appellants.
45. On the other hand, the appellants have taken a plea that the respondents did not produce their account books and the rent receipts to prove that they had paid the rent. The respondents have relied upon the affidavits filed on behalf of respondents No.2 & 3 to show that though they maintained the account books but the same were destroyed after six years and thus were not available. Accordingly, though the appellants have produced their account books for the years 1998 - 1991 and for the years 1958, 1961, 1972 and 1980 but have not produced the rent 25 registers for the relevant years to show that the rent was not accounted in their registers for the relevant period.
46. A plea was raised on behalf of the respondents that PW1 is an attorney on behalf of the appellants and his testimony is to be discarded as the appellants did not appear in the witness box. In "AIR 2005 SC 439 (Supra), the Hon'ble Supreme Court has held that, "a Power of Attorney holder cannot depose in place and instead of principal". However, PW1 has deposed that he was a witness to the settlement deed executed by the Chairman, Sir Shobha Singh which is Ex.PW1/2. He has also deposed that he was a Manager of the trust since 1968. The rent receipts were issued by the cashier which were counter signed by him. Thus, it was in knowledge of the said witness that who were the tenants in the premises of the trust and how much rent was to be collected from them. Moreover, relying upon the documents and certain facts regarding the trust property and creation of Bhartiya Janta Party as a political party has not been denied by the parties. Thus, it cannot be said that the testimony of PW1 is irrelevant being a Power of Attorney holder.
47. On behalf of the appellants, it was vehemently argued that the rent receipts Ex.PW1/21 and PW1/22 have been issued in the name of General Secretary Provincial Congress 26 Committee. That the said rent receipts had not been issued in the name of Bhartiya Janta Party which clearly show that Sir Shobha Singh Public Charitable Trust did not recognize respondent No.1 as its tenant.
48. It was contended on behalf of the respondent that in these receipts it is mentioned that the rent was received from Sh. Vijay Kumar Malhotra and it was in the knowledge of the appellants that Sh. Vijay Kumar Malhotra was not a member of the Congress party. Moreover, the said receipts have not been counter signed on behalf of respondent No.1. Thus, the appellants have manufactured the said counter foils of their own by writing the name of General Secretary, Provincial Congress Committee.
49. However, the document Ex.DW1/1 clearly shows that Sh. Daljit Singh had accepted the rent for the premises from Sh. Vijay Kumar Malhotra, President Delhi Pradesh Bhartiya Janta Party on behalf of Sir Shobha Singh Trust on 08.12.1981. It has been mentioned that proper receipt will follow. Ex.PW1/21 and Ex.PW1/22 are the counter foils which admittedly does not bear the signatures of the respondent. The respondents have averred that they do not keep their account books beyond six years. The appellants have also failed to produce their rent registers 27 pertaining to the year w.e.f. 1981 to 1984. Thus, by merely proving the counter foils of the receipts which are in the name of General Secretary, Provincial Congress Committee, it cannot be said that on the day of signing of these counter foils, still the General Secretary, Provincial Congress Committee was a tenant in the premises. On the other hand, the appellants have failed to prove that either Ex.DW1/1 is a forged document or Sh. Daljit Singh did not have the authority or consent of the other trustees to execute the same. Accordingly, a relationship of tenant and landlord was created between the parties and the suit is not maintainable being barred U/s.50 D.R.C. Act. The suit is also without cause of action. Thus, issues No.1 & 2 have been correctly decided by the Ld. trial court.
50. It was contended on behalf of the appellants that the suit property has been valued correctly for the purpose of court fees and jurisdiction. PW1 has categorically deposed that the appellants had consulted a valuer before filing the suit. He had inspected the property and gave a verbal report. However, the valuer Lt. Col. R.K. Kohli has not been produced to prove that the suit property was correctly valued at Rs.20,000/-. According to the defendants, the value of the suit property at the time of institution of the suit was Rs.10,00,000/-. Thus, it was for the appellants to prove that the value of the property at the time of 28 institution was at Rs.20,000/- which they have failed to prove. Issues No. 4 & 5 have also been correctly decided by the Ld. trial court.
51. Accordingly, there is no infirmity or illegality in the judgment passed by the Ld. trial court. The appeal is dismissed. No order as to costs are made. Appeal file be consigned to record room. Trial court record be returned back with a copy of this judgment.
ANNOUNCED IN THE OPEN COURT TODAY ON 16.04.2007.
(SHALINDER KAUR) ADDL. DISTT. & SESSIONS JUDGE, DELHI.
29 RCA No. 19/04 16.04.2007 Present : None.
Vide judgment announced of even date on separate sheet the appeal is dismissed. No orders as to cost are made. File be consigned to record room.
ADJ/Delhi/16.04.2007.