Delhi District Court
Ajay Kumar vs Ashwani Sharma on 13 December, 2023
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Ajay Kumar Vs. Ashwani Sharma
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 03,
SHAHDARA DISTT., KKD COURTS, DELHI
Civil Suit No: 7/20159482/16
Date of Institution: 03.01.2015
Date of Decision: 13.12.2023
Ajay Kumar
S/o Late Sh. Suraj Bali
R/o 3/128, Gali Ganga Ram,
Shahdara, Delhi32.
...................Plaintiff.
Versus
1. Sh. Ashwani Sharma
2. Sh. Rajiv Sharma @ Rahul
3. Sh. Sanjeev Sharma
All S/o Late Sh. Kishan Dev Sharma
All R/o 3/79, Gali Ganga Ram,
Shahdara, Delhi110032.
............Defendant.
Suit For Possession And Mesne Profit/Damages for Use and Occupation
Charges of the Suit Property.
Present : None for plaintiff.
None for defendant.
Civil Suit No: 9482/16 (Vivek Kumar Agarwal)
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Ajay Kumar Vs. Ashwani Sharma
JUDGMENT :
1. The present suit has been filed by the plaintiff seeking decree of possession of the property consisting of two rooms, kitchen, latrine and bathroom situated on the ground floor and one room situated on the first floor, forming the part of property bearing no. 3/79, Gali Ganga Ram, Shahdara32, for recovery of Rs.22,625/ on account of damages for use and occupation of the suit property and for future mesne profits at the rate of Rs.5000/ from date of filing of the suit till delivery of possession and interest @ 15% p.a. from the date of the suit till payment of the amount of damages as well as cost of the suit in favor of plaintiff and against the defendants.
VERSION OF THE PLAINTIFF:
2. In brief, as per plaint, the case of the plaintiff is that the plaintiff is absolute owner/landlord of the property consisting of two rooms, kitchen, latrine and bathroom situated on the ground floor and one room situated on the first floor, forming the part of property bearing no. 3/79, Gali Ganga Ram, Shahdara32 (hereinafter called as the 'suit property'), which is bounded as under (described in para no.9 of the plaint): North : Gali, South : H.no. 3/127 of Sh. Mukesh, East: H.no. 3/80 of Sh. Manoj Yadav, West: H.no. 3/128 of plaintiff.
That Late Sh. Kishan Dev Sharma S/o Late Sh. Ram Prakash Sharma, who was the father of the defendants, was inducted as tenant in the suit property, under the landlordship of the father of plaintiff at the rent of Rs.19/ Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 3 Ajay Kumar Vs. Ashwani Sharma per month excluding other charges. That the tenancy of Kishan Dev Sharma was a month to month tenancy which used to commence on the first day of the month and expire on the last date of the month of the English calendar. That the said property was taken on rent by Late Sh. Kishan Dev Sharma for residential purpose and same was used by him as such till his death That after the death of the father of plaintiff, father of the defendants became the tenant of the plaintiff. That thereafter, plaintiff terminated the tenancy of the of Late Sh. Kishan Dev Sharma by a notice dated 03.10.2005, sent through his counsel namely Satya Prakash Gupta by registered AD post as well as through UPC thereby calling him to vacate the suit property by 31.10.2005 and to pay the arrears of rent for amount of Rs.114/ from 01.04.2005 to 30.09.2005 @ Rs.19/ per month. That no reply to the said notice was given, however, after the service of notice, the entire arrears of rent was paid to the plaintiff. That after 31.10.2005, Late Sh. Kishan Dev Sharma, became the statutory tenant under the plaintiff and that plaintiff could not evict Late Sh. Kishan Dev due to protection given to him under Delhi Rent Control Act. That Late Sh. Kishan Dev Sharma died on 02.06.2008 leaving behind his wife Smt. Sneh Lata Sharma, and the defendants and one daughter namely Rajni @ Baby. That Smt. Sneh Lata Sharma, who was living with her late husband and was financially dependent upon him, alone acquired a personal right to retain the possession of the suit premises till her death and no other legal heir had acquired any right in this regard. That his daughter was already married and was living in her matrimonial house. That Smt. Sneh Lata Sharma died on 31.07.2014 and that after her death, her heirs/defendants did not hold any right of possession in the suit property and since thereafter, defendants are in illegal occupation of the suit property. That defendants are also liable to pay Rs.22,000/ on account of Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 4 Ajay Kumar Vs. Ashwani Sharma damages/use and occupation of the suit property from 01.08.2014 at the rate of Rs.5000/ per month and interest @ 15 % p.a., which amounts to Rs.625/. That being left with no other option, the plaintiff filed the present suit.
WS OF THE DEFENDANT NO.1:
3. Upon notice being issued, defendants appeared and filed their joint WS. As per WS filed on behalf of defendants, preliminary objections have been raised stating that suit of the plaintiff is not maintainable as same has been filed without any documentary proof in support of ownership. That the suit property is on the land of State and comes under slum area and nobody has right over the suit property and plaintiff is not entitled to transfer, sell or mortgage the suit property. That there cannot be any landlordtenant relationship with respect to present suit property. It is further submitted that plaintiff is not entitled to get any relief from civil court as same being barred under Section 50(1) of DRC Act. That after the death of Shri Kishan Dev, the tenancy was transferred in the name of Smt. Sneh Lata Sharma (mother of the defendants) and that plaintiff had been receiving the rent continuously and the tenancy has been devolved inheritably, as having succeeded together to the property of an intestate and the defendants are tenants in common and not tresspassers. That defendant no.2 had also paid the house tax from his own. That Sh. Kishan Dev Sharma (deceased), father of the defendants was the lawful tenant under the landlordship of Suraj Bali, father of plaintiff and after the death of father of plaintiff, he became the tenant of the plaintiff only. That he used to pay regular rent to the father of plaintiff and even after his death, rent was regularly paid to the plaintiff and hence the question of arrears of rent does not arise. It is further submitted that Late Sh. Kishan Dev had never received any notice of Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 5 Ajay Kumar Vs. Ashwani Sharma termination of tenancy and plaintiff had forged the said signatures of Sh. Kishan Dev on the receipt of the said notice. That the defendants are the lawful tenant of the plaintiff after death of their father and are regularly paying rent to the plaintiff without any default.
In reply on merits, contents of para 1 are denied stating that the fact that plaintiff is the owner/landlord of the suit property is incorrect as same comes under slum area. Contents of para 2 are accepted to the fact that defendant's father was the tenant in the suit property in respect of two room, kitchen, latrine and bathroom at ground floor and one room at the first floor, forming part of property no. 3/79, Gali Ganga Ram, Shahdara, however it is stated that father of the plaintiff had sanctioned a perpetual lease in favor of defendant's father. Contents of para 3 are admitted to the extent that suit property was used for residential purpose, however it is denied that suit property was used only till death of Sh. Kishan Dev, rather on the other hand, defendant no. 2 and 3 (being sons) still reside in the suit property. Contents of para 4 and 5 are further denied. All the other averments of the plaint are denied by the defendant and averments of preliminary objections are reiterated with the request to dismiss the suit.
WS OF THE DEFENDANT NO.2 and 3:
4. The defendant no.2 and 3 filed their joint WS in which they have taken preliminary objections that suit is not maintainable and that suit property is the land of state in the slum area and that no landlordtenant relationship exist as property could not be transferred. That defendant no.1 is not the necessary party in the present suit as he was not residing therein. That after death of their Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 6 Ajay Kumar Vs. Ashwani Sharma father, tenancy was transferred in the name of late mother and plaintiff has been receiving the rent continuously and the tenancy had inherited on both the defendants. That defendant no.2 had also paid the house tax. The other averments are the reiteration of version of defendant no.1.
REPLICATION
5. In pursuance of WS, separate replications were filed by the plaintiff in which allegations of WS have been denied. It is specifically denied that defendants had become the tenants of the plaintiff and that they had made any attempt to tender the rent of the suit property to plaintiff or that plaintiff was bound to accept the same. Denying all the other averments of WS, it is prayed that the suit of the plaintiff may be decreed.
ISSUES:
6. In view of pleadings of both the parties, following issues were settled vide order dated 31.10.2015:
1. Whether the plaintiff is entitled for decree of possession ? OPP
2. Whether the defendant is entitled for decree of Rs.22,625/ on account of damages for use and occupation of the suit property? OPP
3. Whether the plaintiff is entitled to decree of future mesne profits @ Rs.500 per month from the date of filing of the suit till delivery of possession? OPP
4. Whether the plaintiff is entitled for decree of interest @ Rs.15% p.a. as prayed for? OPP
5. Relief.
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7. Again, from the pleadings, one additional issue was framed vod 26.11.2016 and issue no.3 framed vod 31.10.2015 was modified, which are as follows: 4A. Whether the suit is barred in view of Section 50 of DRC Act? (OPD1)
3. Whether the plaintiff is entitled for decree of future mesne profits @ Rs.5000 per month from the date of filing of the suit till delivery of possession? OPP PLAINTIFF EVIDENCE:
8. To prove is case, plaintiff examined himself into witness box as PW1, tendering his affidavit as Ex.PW1/A and has also tendered some documents in his testimony as Ex. PW1/1 to Ex. PW1/24 including site plan, counter foils of rent receipts issued to Kishan Dev Sharma, Carbon copy of original legal notice, original postal receipts, UPC receipt and AD card, counter foils of rent receipt issued to Smt. Sneh Lata Sharma and thereafter, he was crossexamined by counsel for defendants and PE was closed vide statement of the plaintiff dated 27.05.2017.
DEFENDANT EVIDENCE:
9. On the other hand, the defendants failed to lead evidence despite several opportunities including the last opportunity. Hence, right of the defendant to lead DE was closed vide court order dated 07.09.2019 and matter was fixed for final arguments, however, meanwhile the proceedings in the present matter were ordered to be subject to the outcome of the petition by Hon'ble High Court of Delhi, the final arguments could not be heard and matter was again taken up for final arguments in terms of order dated 29.11.2023 passed by Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 8 Ajay Kumar Vs. Ashwani Sharma Hon'ble High Court.
FINDINGS:
10. Arguments advanced by both the Ld. Counsel for plaintiff as well as Ld. Counsel for defendant have been heard. File has been carefully and minutely issued and my issue wise finding with reasons thereof are as under: ISSUE No. 4A :
11. The issue pertaining to maintainability of the suit is taken for consideration before other issues. The onus to prove this issue was upon the defendant only. It has been argued by Ld. Counsel for defendant that as mentioned in the last line of para 5 of the plaint, it is the case of the plaintiff that his father had received the entire arrears of rent from Late Sh. Kishan Dev Sharma after service of the legal notice and therefore,in view of Section 14(1)
(a) of DRC Act, the tenancy of the late father of the defendants had not terminated and since thereafter, till date, plaintiff has not given any notice for termination of tenancy as provided under Section 106 of TPA and consequently, the tenancy had continued and the defendants being the class I legal heirs of the original tenant have inherited the said tenancy. The counsel for defendants had also placed reliance upon the judgment of Hon'ble High Court of Delhi titled as 'Chiraguddin Vs. Urmila Rani dated 11.09.2014'.
12. On the other hand, it has been argued by Ld. Counsel for plaintiff that as per Explanation III (b) of Section 2 of DRC Act, the tenancy could not be devolved on the present defendants as same had already devolved once on the late mother of the defendants namely Smt. Sneh Lata Sharma, who used to reside with the original tenant namely Late Kishan Dev Sharma, after his death Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 9 Ajay Kumar Vs. Ashwani Sharma on 02.06.2008. That now, as admittedly, the wife of original tenant and the mother of the defendants also expired on 31.07.2014, the defendants are not entitled to inherit the said tenancy and no further protection is available to them under DRC Act and rather their status is of unauthorized occupant in the suit property. In this regard, reliance is placed on the judgments of Hon'ble High Court of Delhi titled as 'Kishori Lal (D) through Lrs Vs. Siri Krishan 1996 (1) RCR 572' , 'Krishna Prakash Vs. Dilip Harel Mitra 2001 (2) RCR 364', and 'Mukesh Kumar (D) through Lrs Vs. Saini Cooperative Thrift & Credit Ltd 156 (2009), DLT 550'. Accordingly, it is contended that defendants have not inherited the tenancy in the suit property in any manner and plaintiff is not required to approach the Rent Controller for eviction of defendants and suit is duly maintainable before the present court.
13. Heard. File perused. It is observed that a plaint reading of Section 50 (1) of DRC Act provides that the existence of landlord tenant relationship is a must to attract the jurisdiction of the rent controller in respect of particular premises and jurisdiction of civil court to entertain any suit or proceeding is barred if it relates to the eviction of a tenant from a particular premises to which the DRC Act applies. Now, the word 'tenant' has been defined under Section 2(1) of the said Act and the relevant provision in the present case is Section 2(1) (iii), which is reproduced as follows: "2(1) 'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable and includes:-
(3) in the event of death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in explanation 1 and explanation 2 to this clause, such of the aforesaid persons.
(a) Spouse;
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(b) Son or daughter or both of them;
(c) Parents;
(d) daughter-in-law, being the widow of the deceased son, as had been ordinarily living in the premises with such person as a member or members of his family upto the date of his death, but does not include...."
In view of this legal position, there are two questions involved for determination of the present issue. Firstly, whether the defendants have inherited the tenancy in the suit property after the death of their father who was the original tenant and secondly, whether the tenancy in the suit property has been duly terminated.
14. Regarding the first question, it is observed that it is an admitted fact that late Sh. Kishan Dev Sharma was the tenant of the plaintiff and that his wife namely Smt Sneh Lata Sharma, mother of the defendants was ordinarily residing with him only during his lifetime. It is also an admitted fact that late Sh. Kishan Dev Sharma expired on 02.06.2008. These facts have been averred in the para 7 of the plaint and in the reply on merits of the WS, there is no denial of the same and rather, it is stated that defendant no.2 and 3 being the sons and Smt. Sneh Lata Sharma, being the wife and Smt. Rajni being the daughter of Late Kishan Dev Sharma were lawful tenant of the suit property. Now, it is also an admitted fact that Smt. Sneh Lata Sharma also expired on 31.07.2014, as there is no denial of the same in para 8 of the WS and no question has been asked in the crossexamination of plaintiff/PW1 to rebut the same and rather during the final arguments, Ld counsel for defendant has duly conceded the same. Accordingly, it is very clear that after death of the original tenant, late Sh. Kishan Dev Sharma, tenancy was inherited by his wife namely Late Smt. Sneh Lata Sharma and accordingly, same was not further heritable and defendants have no right to claim themselves as 'tenants' in the suit property. In this regard, the legal Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 11 Ajay Kumar Vs. Ashwani Sharma position is very clear as propounded in the Explanation III (b) of Section 2 (1) of DRC Act and for ready reference, same is reproduced as follows: Explanation III :- For the removal of doubts, it is hereby declared that:-
(b) The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs.
15. The legal position in this regard has been further enunciated by Hon'ble High Court of Delhi in clear terms in the judgment of 'Kishori Lal (supra)', wherein the reference was also made to the judgment of Hon'ble Apex Court titled as 'JC Chhatterji & Ors Vs. Shri Shri Kishan Tondon & Anr 1972 RCR 675 As well as another judgment of Hon'ble High Court of Delhi titled as ' Bipin Bihari Vs. Kishori Lal 1981 (1) RLR 241' and it was held as follows: " That if a tenant leaves behind a widow who was ordinarily resides with him at the time of is death, she alone will get the right to inherit the statutory tenancy to the exclusion of all other heirs and that too for her own lifetime only. That this right does not pass on to any other heir or legal representative of the deceased tenant......the sons or daughters or any other category of heirs of deceased tenant do not get any right of inheritance so far as the statutory tenancy of the deceased tenant is concerned."
16. In view of the aforesaid discussion, there is no scope of any confusion in regard of answer to question no.1, as mentioned above, and it is concluded that protection of statutory tenancy in question came to an end after the death of the mother of defendants Late Smt. Sneh Lata Sharma on 31.07.2014 and therefore the defendants have no right to claim the inheritance of said tenancy.
17. Regarding the question no.2, it is observed that plaintiff has relied upon Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 12 Ajay Kumar Vs. Ashwani Sharma the legal notice dated 03.10.2005 Ex.PW1/9, which was sent to the father of the defendants who was the original tenant and it has been argued that said legal notice for termination of tenancy was duly served upon the father of the defendants on 05.10.2005, as reflected from the UPC Ex.PW1/11 and the acknowledgment Ex.PW1/12, which duly mention the address of the suit property itself and which bear the signature of the father of the defendant. It has been further argued by Ld. Counsel for plaintiff that signatures of the father of defendant on said UPC can be compared by the court from the rent receipt Ex.PW1/2 placed on record, in original before the court, by exercising the power under Section 73 of IEA. It is further submitted that by way of said legal notice the father of the defendant was granted time to vacate the suit premises by 31.10.2005 and therefore, the tenancy in the suit property had duly terminated w.e.f. 31.10.2005. With respect to the service of the legal notice through registered AD at correct address, it is submitted that presumption can be drawn by the court under Section 114 of IEA and in this regard reliance is also placed upon the judgment of Hon'ble High Court of Delhi titled as 'Chanderkanta Singhal etc. Vs. M/s Kapadia Exports 1997 (1) RCR 188'. It is further submitted that by the mere fact that the plaintiff had received the rent from the late father of the defendants, does not amount to waiver of said notice. That the acceptance of rent could bar the ground of eviction of the defendants only under Section 14(1) (a) of DRC Act and the plaintiff was always at liberty to seek the eviction of defendants from the suit property on the other grounds as provided under DRC Act, after termination of tenancy by way of said legal notice.
18. It is observed that except making the vague denial, the defendants have failed to put forth any evidence to establish that father of defendants had not received the legal notice Ex.PW1/9. On perusal of the said notice, it is very clear that by way of said legal notice, the tenancy of the father of defendant was Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 13 Ajay Kumar Vs. Ashwani Sharma terminated on behalf of plaintiff and tenant was granted time to vacate the suit premises by 31.10.2005. Said notice is certainly in the nature of the notice as provided under Section 106 of TPA. Now, perusal of Ex.PW1/11 provides that it bears the address of the father of defendants, which is of the suit property itself. Similarly, the AD receipt Ex.PW1/12 also bears the same address as of the suit property itself. Now, on comparison of the signatures on the said AD with the signatures on the rent receipt Ex.PW1/2, it can be seen from the naked eye that they are of the same person, as having the same formation of letters and having the same flow. The genuineness of the rent receipt Ex.PW1/2 has not been disputed on behalf of defendants in any manner. Moreover, even if it is taken that said AD receipt did not bear the signatures of the father of the defendants, the presumption of service of said legal notice can be duly drawn under Section 114 of IEA and as laid down in the judgment of Chander Kanta (supra). Accordingly, I am duly satisfied that plaintiff has proved to the standard of preponderance of probability that the legal notice Ex.PW1/9 was duly served on the father of the defendants on 05.10.2005 and by way of the said legal notice the tenancy of the father of the defendants in the suit property had duly terminated w.e.f. 31.10.2005.
19. It is further important to observe that Ld. Counsel for defendants has also taken a plea that tenancy was continued after the acceptance of rent by the plaintiff, as mentioned in para 5 of the plaint. In this regard, it is observed that Section 116 of TP Act is the relevant provision in this regard, which is reproduced as follows for ready reference:-
'116 Effect of holding over- If a lesses or under-lessee of property remains in possession thereof after the determination of the lease, granted to the lessee and the lessor or his legal representative excepts the rent from the lessee or under lessee or otherwise, assents to his continuing in possession, the lease is, in the absence of an agreement Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 14 Ajay Kumar Vs. Ashwani Sharma to the contrary, renewed from year to year or from month to month. According to the purpose for which the property is leased, as specified in Section 106.'
20. In view of this legal position, let me appreciate the contention raised by Ld. Counsel for defendants. The relevant statement of para no.5 of the plaint, as referred by ld. Counsel for defendants reads as "However after receipt of the said notice, entire arrears of rent were paid by Late Sh. Kishan Dev Sharma to the plaintiff." On plain reading of the said statement, it is very apparent that the payment was made with respect to 'arrears of rent' and not of the rent of the subsequent period after determination of lease w.e.f. 31.10.2005. Now, as mentioned in para no. 4 of the preliminary objections of the joint WS of defendant no.2 and 3, after death of Sh. Kishan Dev Sharma, rent was being paid by Late Smt. Sneh Lata Sharma, mother of the defendants, to the plaintiff, however, except making the vague averments the defendants have failed to prove the said fact in any manner and even no question has been asked in this regard in the entire cross examination of plaintiff/PW1. Accordingly, even if the arrears of rent were paid by the father of defendants after receiving the above mentioned legal notice, it did not make any difference as the due rent of every month was still not being paid. Going one step further, even if it is taken that the rent was paid by the late father of defendants, it is to observe that the tenancy at best would have continued for 'month to month basis' and consequently, in any eventuality, the tenancy had expired after one month from the effective date of the legal notice, which would be w.e.f. 30.11.2005. Accordingly, this contention raised on behalf of defendants again does not hold any water.
21. It is further pertinent to mention that even otherwise, law is very well settled that mere filing of the suit amounts to termination of tenancy and in this regard, reliance can be placed upon the judgment of ' Nopani Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728.
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22. Accordingly, question no.2 is decided to the effect that tenancy in the suit property had already terminated in any eventuality and in view of the answers of both the above mentioned questions, issue no.4A is decided against the defendants and in favor of the plaintiff.
ISSUE NO.1:-
23. The onus to prove this issue was upon the plaintiff. It has been argued by counsel for plaintiff that as defendants became the unauthorized occupant in the suit property and no protection was available to them under DRC Act, they are liable to vacate the suit premises. On the other hand, Ld. Counsel for defendants has put forth several contentions raising questions on the maintainability of the suit. Firstly it is argued that as reflected from the document of RTI, filed by the defendants, the suit property is situated in slum area and therefore, in the absence of any permision from competent authority under Section 19 of Slums Area Act, present suit is barred before the civil court. Secondly it is argued that plaintiff has failed to produce any NOC of the other legal heirs of the original owner/landlord of the suit property, who was the father of the plaintiff.
24. Heard. Regarding the first contention of Ld. Counsel for defendants, it is to observe that Section 19 of Slum Areas Act comes into picture only against the tenant, however, as discussed in the findings of issue no.4A, the defendants never became the tenant in the suit property and therefore, there was no requirement on behalf of the plaintiff to seek any such permission. Regarding the second contention, it is to observe that firstly, law is very well settled that either of the co-owners can seek the eviction of the tenant and secondly, once the defendants have duly admitted that plaintiff was the landlord of the suit property, they have no right to challenge the ownership of the plaintiff in the suit property in view of Section 116 of IEA. Accordingly, both the contentions raised by Ld. Defence counsel are not sustainable.
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25. It is further observed that as held in the findings of issue no.4A the defendants never inherited the tenancy in the suit property and again as the tenancy has bee already terminated, defendants have no other right to retain the possession of the suit property and are certainly liable to handover the vacant possession of the same to the plaintiff. Issue no.1 is decided accordingly, in favor of plaintiff and against the defendants.
ISSUE NO.2, 3 and 4:-
26. All these issues being connected are taken together for consideration. It is observed that as mentioned in the findings of issue no.4A, the tenancy in question was inherited by the mother of the defendants namely Smt Sneh Lata Sharma, after the death of the original tenant namely late Sh. Kishan Dev Sharma and she expired on 31.07.2014 and therefore, the status of the defendants in the suit property became of 'unauthorized occupants' and therefore, they are certainly liable to pay the damages/occupation charges/mesne profits to the plaintiff w.e.f. 01.08.2014 till the date of vacation of the suit premises. It is further observed that as defined under Section 2 (12) of CPC 'mesne profits' means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom.
27. Regarding the amount of mesne profits, it is to observe that judicial notice can be taken of the fact that the amount of rent for various properties and specifically for properties in commercial use, in and around Delhi have been rising staggeringly. In this regard, I also seek reliance from the authority of Hon'ble High Court of Delhi titled as "Vinod Khanna & Ors. vs. Bakshi Sachdev (deceased) through LRs & Ors." AIR 1996 (Delhi) 32, wherein it Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 17 Ajay Kumar Vs. Ashwani Sharma was observed that the judicial notice can be taken of the fact about increase of rents in the premises in and around Delhi, which is a city of growing importance being the capital of the country, which is a matter of public history. Again, in case of "Sh. M.R. Sahni vs. Mrs. Doris Randhawa" 2008 (104) DRJ 246, Hon'ble High Court of Delhi while reiterating the steep increase in the rentals in Delhi, again emphasized that in relation to determination of mesne profits, there is always some element of guess work.
28. Accordingly, in view of this legal settled position, let me advert to the present case. It is observed that the plaintiff has claimed the mesne profits @ Rs.5000/ per month, in the year 2015, however, at the same time, it is also pertinent to observe that rental value of the properties in Delhi has seen multifold hike in last 510 years and therefore, I am of the view that, interest of justice will be served, if the plaintiff should be granted the relief of mesne profits on average basis @ Rs. 7000/ per month since 01.08.2014 till date of delivery of possession by the defendants. However, I do not find any ground to grant interest on the said amount. Issue no. 2 to 4 are decided accordingly.
ISSUE NO. 5 RELIEF
29. In view of aforesaid discussion, suit of the plaintiff is hereby decreed with costs to the effect that defendants are hereby directed to vacate the suit property consisting of two rooms, kitchen, latrine and bathroom situated on the ground floor and one room situated on the first floor, forming the part of property bearing no. 3/79, Gali Ganga Ram, Shahdara32 and to handover the vacant possession of the same to the plaintiff within one month from date of decree. Again, the defendants are also directed to pay the mesne profits @ Rs. 7,000/ per month to be calculated from 01.08.2014 till date of delivery of possession to Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi 18 Ajay Kumar Vs. Ashwani Sharma the plaintiff.
30. Suit is hereby decreed, however, the plaintiff is directed to file the court fees payable for aggregate amount of mesne profits, calculated till date as per Sec. 11 of Court Fees Act. Decree sheet be prepared accordingly. File be Digitally signed by VIVEK consigned to Record Room after due compliance. VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2023.12.14 16:15:19 +0530 Pronounced in open court: (Vivek Kumar Agarwal) Dated: 13.12.2023 Civil Judge03, Shahdara KKD Courts, Delhi Note :This Judgment contains eighteen pages and all the pages have been checked and signed by me. VIVEK Digitally signed by VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2023.12.14 16:15:24 +0530 (Vivek Kumar Agarwal) Dated: 13.12.2023 Civil Judge03, Shahdara KKD Courts, Delhi Civil Suit No: 9482/16 (Vivek Kumar Agarwal) CJ03/SHD,KKDDelhi