Delhi District Court
Mohd. Naseem vs Mohd. Rafiq on 30 July, 2011
IN THE COURT OF SH. RAKESH KUMAR :ADJ03 (C): DELHI
Suit No. 74/08/91
Unique ID No.02404C0132322006
Mohd. Naseem
Son of late Abdul Karim,
Resident of House No.B473,
New Friends Colony, New Delhi110065. .....Plaintiff.
Versus
Mohd. Rafiq
Son of Mohd. Shafiq,
R/o House No.B473,
New Friends Colony, New Delhi. .....Defendant.
J U D G M E N T
1. The instant suit for possession and mesne profit etc. has been filed by the aforesaid plaintiff against the above named defendant wherein the plaintiff is seeking the following reliefs:
(i).a decree for possession in favour of the plaintiff and against the defendant in respect of the suit property i.e. the second floor of House No.B473, New Friends Colony, New Delhi as shown in the plan filed alongwith the suit and marked "Red" Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.1 of pages 49 therein.
(ii).A decree for mesne profit in favour of the plaintiff and against the defendant @ Rs.3,000/ p.m together with interest @ 24 % p.a. till the recovery of the possession of suit property.
(iii).Cost of the suit is also demanded.
2. As per plaint, plaintiff is the owner of House No.B473, New Friends Colony, New Delhi. The defendant is the brother of Mohd. Sadiq, the husband of Smt. Chaman Ara Begum (since deceased), the sister of the plaintiff. The defendant was living with his parents in House No.11171118 Gali Jamanwali, Ballimaran, Delhi on account of some disputes with his parents, he, in end 1979 shifted to House No. 4030A, Ward No. XI, Gali Khankrama and therefrom in end 1979 came to live with Mohd. Sadiq who was occupying ground floor(back portion) of House No.B473, New Friends Colony, New Delhi. The portion in occupation of Mohd. Sadiq consisted of only 2 living rooms. The defendant was married in 1981 and he began to live in the same accommodation Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.2 of pages 49 alongwith his wife. Disputes developed between the brothers and in order to avoid further unpleasantness, on entreaties of the defendant, he alongwith his wife shifted to the first floor which accommodation was in occupation of the plaintiff and his family. In July, 1982 the plaintiff allowed the defendant to occupy the accommodation, got made ready on the second floor, on temporary licence basis; he promised to shift to after about 6 months by which time he was to make his own arrangements elsewhere. The accommodation in possession of the defendant "hereinafter called "the suit property" is shown in the plan filed with the plaint. It is further submitted that the defendant continued to live in the second floor even after the expiry of the license period. The plaintiff restrained himself from taking action against the defendant for his dispossession because of near relationship; In 1988, the plaintiff asked him to vacate the restore possession. The defendant refused to vacate and became hostile and later started creating nuisance for the plaintiff and his family by making abuses and throwing rubbish in the staircase and the Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.3 of pages 49 courtyard and also by temper with the overhead water tanks to obstruct water coming to the plaintiff's portion or otherwise to run waste. He set up Kacha temporary as well as some pucca structures on the second floor without the permission of the plaintiff. He did not allow the labour to go to the roof for repairs. He removed all the goods from the almirah which were kept in a niche in the staircase. He created all types of nuisance. The plaintiff, however, tolerated all this misbehaviour because he did not want to precipitate any action on account of the sever illness of his sister and the fact that he was a business partner in M/s Rafiq Trading Corporation which was constituted of Smt. Chaman Ara Begum and the defendant as the among two partners. Smt Chaman Ara Begum died of cancer on 03.06.1991. The plaintiff served a notice dated 03.07.1991 on the defendant to vacate the second floor of the house in question but the defendant refused to do so. The possession of the defendant has become unlawful. Hence this suit. This Court has territorial jurisdiction to try and entertain the present suit. Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.4 of pages 49 The suit has been properly valued for the purpose of court fee and jurisdiction and the suit has been filed well within the period of limitation.
3. Written Statement has been filed by the defendant wherein the defendant took various preliminary objections like that the suit is patently vague and malafide; it is not maintainable in law; plaintiff is not the owner of the suit property and therefore, does not have any locusstandi; suit is bad for nonjoinder of necessary party namely Badri Nath Kakkar, who is the original allottee/sub lessee in question. The plaintiff, if claims to be a representative of Sh. Badri Nath Kakkar, then he is estopped from claiming possession or mesne profits by virtue of the agreement between Sh. Kakkar and the defendant. The defendant is in occupation of the 2nd floor of the property in question in his own right on the basis of a permanent tenancy created in his favour or in the alternative he is in occupation of the said premises under an irrevocable license and therefore the suit is barred. Further an another suit bearing no.2013/91 is also pending Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.5 of pages 49 between parties and the plaintiff has filed the present suit out of vengeance and to blackmail and put illegal pressure upon the defendant, as the defendant has been a partner of 75% share in M/s Rafiq Trading Corporation alongwith Mst. Chaman Ara Begum, sister of the plaintiff, for the remaining 25% share.
On merits, it is claimed that the plaintiff has not disclosed the derivation of his title and particulars of such documents. Although it is not denied that the defendant is the brother of Mohd. Sadiq, the husband of Mst. Chaman Ara Begum and shifted from his parental house to Gali Khane Khana and then to the suit property but it is disputed that there were disputes amongst the brothers. However, as according to some arrangements, the rear portion became exclusively owned by Mohd. Sadiq, the defendant shifted to first floor portion. It is denied that the defendant shifted to the accommodation which was in occupation of the plaintiff and his family and in July, 1982, the accommodation of the 2nd floor was ready and the plaintiff allowed the defendant to Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.6 of pages 49 occupy the same on temporary basis or that the defendant promised to shift after six months after making his own arrangement. The allegations are patently false, as in fact, in November, 1982 after thorough negotiations, the property which by them was having only ground and first floors, there were an agreement between the owner/allottee Sh. Badri Nath Kakkar through his duly constituted attorney, Mohd. Sadiq whereunder the defendant raised permanent construction on the 2nd floor of the property with his own funds, which was not to be repaid or adjusted towards rent or otherwise, as also the defendant surrendered possession of the first floor portion after shifting to his 2nd floor portion completed in December, 1982. Since this December, 1982 the defendant continued to be in actual physical possession of entire 2nd floor portion and terrace in front of the same, in his own right as aforesaid, the defendant as such is the owner of said superstructure. In the alternative he holds permanent tenancy qua the second floor portion and still in the alternative he holds the irrevocable license. The allegations Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.7 of pages 49 levelled against the defendant are totally baseless. The defendant being well within his rights, has been raising and renovating his portion and to protect his rights to which he acquired for consideration having invested over Rs.45,000/ at that time under the said agreement, acted in all reasonabilities. It is denied that the plaintiff had asked for possession from the defendant or that the possession of the defendant is unlawful. It is specifically denied that the suit property can fetch Rs.3,000/ p.m. The plaintiff has no cause of action.
4. Replication to the written statement has been filed by the plaintiff wherein the claim and allegations raised in the Written Statement have been denied and the averments those were raised in the plaint of the suit were reaffirmed and reasserted. It is claimed that the defendant as licensee, has no right to question the title of the plaintiff. Sh. Badri Nath Kakkar is not a necessary party to the suit. The plea of irrevocable license is contradictory, mutually exclusive or destructive to the plea of permanent tenancy and both can Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.8 of pages 49 not exist together. It is admitted that the plaintiff has filed suit no.2013/1991 for the winding up of the partnership firm M/s Rafiq Trading Corporation of which the defendant and the deceased sister of the plaintiff were the only two partners and the same is pending before the Court. The suit is based on the lawful right of the plaintiff. It is added that the plaintiff has taken the plot no.B473 from Sh. Badri Nath Kakkar under an Agreement to Sell dated 19.05.1982. He has constructed the building thereon and is the owner of the same. The title of the plaintiff as owner is also evidenced by irrevocable General and Special Power of Attorney, Will and other usual documents in vogue in such cases. The defendant took the property on license from the plaintiff. As the licensee is debarred from questioning the title of the plaintiff at the inception of the license so long as he does not restore the possession of the licensed property to the plaintiff, the defendant is also debarred from setting up the title of any one else. It is not admitted that the house in gali Khane Khana is the parental house of the defendant. It is admitted that in Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.9 of pages 49 1979 the defendant shifted from the house in Gali Khane Khan to live with his brother Mohd. Sadiq on the ground floor of property no.B473, New Friends Colony. It is not admitted that the real ground floor of house no. B473 ever became the exclusive property of Mohd. Sadiq. The defendant has not given any material particulars of the alleged arrangement by which the said portion came to be owned by Mohd. Sadiq. It is admitted that in July, 1982 the defendant shifted from the ground floor to the first floor in occupation of the plaintiff. The defendant was shifted to the second floor on temporary basis under a license or a promise to shift after six months by which time he was to make his own arrangement. It is denied that the defendant raised a permanent structure on the second floor after thorough negotiations. It is denied that there was any agreement between the owner/allottee, Sh. Badri Nath Kakkar (through Sh. Mohd. Sadiq, his alleged attorney) and the defendant whereunder the defendant was allowed to raise permanent structure on the property. The entire plea of thorough negotiations, General Power of Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.10 of pages 49 Attorney in favour of Mohd. Sadiq or any Agreement with the owner/allottee or construction raised by defendant is false. Mohd. Sadiq had no authority to enter into any negotiations, arrangement, agreement with the defendant. Moreover no particulars of the alleged arrangement/ agreement have been stated. The plan of the property in dispute has been got prepared and submitted by the Local Commissioner and is correct. It is admitted that the defendant is in occupation of the entire second floor since July 1982, but he was given the possession under the license. It is denied that the defendant invested Rs.45,000/ or any amount on the property towards construction or renovation or the protection of his alleged rights. The Kachha structure set up by the defendant are wholly unauthorized and give no benefit to the defendant.
5. After completion of the pleadings, following issues were settled vide order dated 25.04.94:
(i)Whether the defendant is in possession of the suit property on the basis of a permanent tenancy in his favour ?
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.11 of pages 49
(ii)Whether the plaintiff is in possession of the suit property under an irrevocable license ?
(iii)Whether the defendant is the owner of the superstructure of the property in question as alleged in paragraph2 of the written statement ?
(iv)Whether the suit is not properly valued for purposes of court fees ?
(v)Whether the plaintiff is entitled to mesne profits, if so, at what rate and for what period ?
(vi)Relief.
6. It is to be added that Issue No.2 has been corrected vide order dated 26.10.1998 as under: "Whether the defendant is in possession of the suit property under an irrevocable license ?"
7. It is pertinent to mention that in this case the defendant was asked to lead his evidence first and accordingly he examined three witnesses namely DW1 Sh. Mohd. Rafiq, DW2 Mohd. Sohaib and DW3 Mohd. Qayyum. It is also to be added that the statements of DW2 and DW3 Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.12 of pages 49 were got recorded through the Local Commissioner. After conclusion of the evidence of defendant, the plaintiff in his support himself appeared in the witness box as PW1. After conclusion of the evidence of the plaintiff, the defendant Mohd. Rafiq again appeared in the witness box and his evidence in rebuttal.
8. In his examinationinchief, tendered by way of affidavit DW1 Mohd. Rafiq (the defendant) deposed that Sh. B.N. Kakkar is the owner of land of the suit property, whereas the construction thereon was raised by Mohd. Sadiq at his cost and so Mohd. Sadiq is the owner of built portion. He is owner of second floor as he had raised the construction thereon at his own cost. Initially, he was inducted as a tenant of one room on ground floor in 1981 by Sh. Kakkar but he did not issue any rent receipt despite of his request rather he was asked to collect the receipt from Mohd. Sadiq but Mohd. Sadiq put a condition that first he should shift to first floor. He shifted to first floor and thereafter, he was shifted to IInd Floor at the instance of Mohd. Sadiq, who wanted to induct Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.13 of pages 49 the plaintiff as a tenant in the first floor. Before shifting to second floor he entered into an agreement marked defendant no.1 with Mr. Sadiq whereby he had allowed him to raise construction on IInd floor at his own cost. However, the said document was neither properly stamped not it was got registered. After said agreement, he entered into an agreement with building contractor for construction at IInd Floor and amount agreed to be paid was Rs.45,000/. The said agreement is Ex.D2. He paid the amount of Rs.45,000/ in installments and last installment of Rs.2,000/ was paid by him after issuance of notice by builder Ex.DW1/1. The receipts given by builder are Ex.DW1/3 to Ex.DW1/6. He conceded that Mr. B.N. Kakkar had entered into an Agreement of raising construction as the plot of land in question, however, the construction was to be supervised by Mr. Sadiq, who was appointed as General Special Power of Attorney of Mr. Kakkar. Cost of construction was born by Mr. Sadiq and he obtained a certificate of completion from MCD but it was in the name of Mr. B.N. Kakkar. He claimed that Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.14 of pages 49 after construction of ground floor, Mr. Sadiq was living in rear portion whereas he was occupying a room in middle and the front portion was in the occupation of plaintiff, who was living there as tenant and Mohd. Sadiq was issuing him rent receipts on behalf of Mr. B.N. Kakkar. Deceased Chaman Ara was a partner with him in the business under the Trade Name of M/s Rafiq Trading Corporation wherein she had 25% share.
During cross examination he stated that before coming to suit property, he was living in Ballimaran, where Mohd. Sadiq was also living. He confirmed that he had no document or receipt to show that premises was let out to him by Mr. B.N. Kakkar. Even Mr. Sadiq did not issue him any receipt. He had shifted to back portion of house at first floor in 1981 82, whereas plaintiff was in possession of front portion of Ist Floor. He conceded that he was paying rent to Sh. B.N. Kakkar whenever he used to visit Delhi from Lucknow. He is an income tax assessee but he did not show the expenditure incurred by him on construction of second floor in his income Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.15 of pages 49 tax returns. Besides income from partnership firm, he was getting rental income around Rs.600/ p.m from his house bearing no.4065 situated in Gali Khankhana, Jama Masjid. He conceded that he did not maintain any account. He could not confirm if any building plan of IInd floor portion had been got approved from MCD. He claimed that he had not seen any approved plan nor he had obtained any permission from Sh. B.N. Kakkar for raising construction of second floor, though Mr. Sadiq gave him oral instructions to that effect. There was no dispute between him and Mohd. Sadiq when he started living on the ground floor. He had no concern with Mr. Naseem in shifting from first floor to second floor. He could not tell if Mohd. Sadiq had transferred the property to Mr. Nadeem with permission of Mr. B.N. Kakkar. Ms. Razia Sultan an another sister of Mr. Naseem was married to Mohd. Rafi, who was authorized by Mr. B.N. Kakkar to do general work for him. He conceded that Mr. B.N. Kakkar himself or his brother Mr. Sadiq have not objected to the transfer of the property in the name of Mohd. Naseem but Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.16 of pages 49 Mr. Sadiq filed a suit for declaration against Mohd. Naseem. On asking as to out of three different pleas raised by him in his written statement by him i.e. (a) he is a permanent tenant of IInd floor (b) he is irrevocable licensee of that floor (c) he is the owner of the second floor, which is his stand in the case, he replied that the second floor portion was given to him for shifting first from ground floor to first floor than from first to second floor and he had incurred expenditure on the construction of second floor, so he claimed himself to be either of them. He conceded that he has no documentary proof about his right, title and interest on the second floor except the agreement to build that portion. He conceded that he is not paying house tax in respect of property in dispute. He conceded that plaintiff had filed a suit against Chaman Ara Begum for eviction and he came to know about the same during the execution proceedings thereof. He conceded that Mr. Sadiq filed the objection in the said proceeding which was dismissed. Appeal and second appeal filed by him against the said dismissal was also dismissed. Even the objection filed by Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.17 of pages 49 the wife of Mohd. Sadiq against the execution was also dismissed. He conceded that Mohd. Naseem had taken the possession in pursuance of decree against Chaman Ara Begum. He has no title or interest in the land of this property. He is not paying any rent to anybody in respect of second floor portion.
DW2 Mohd. Shoaib, in his examinationinchief tendered by way of affidavit Ex.DW2/A has confirmed that wife of defendant is his cousin sister and the agreement Ex.D1 was executed in his presence, wherein it was agreed upon between defendant and his brother Mohd. Sadiq that defendant will vacate the first floor and construct the second floor over the Ist Floor with his own funds. No rent will be paid by defendant nor defendant will claim the refund of the amount incurred towards constructions of second floor. Nor the possession will be claimed from the defendant.
During cross examination, he claimed that on 11.11.1982 in the evening time, he went to premises no.B 473, New Friends Colony, on account of relationship and he Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.18 of pages 49 was offered to join their talks by defendant and Mohd. Sadiq. The discussion was reduced in the writing to which he had signed the document in the capacity of a witness, however, the defendant and Mohd. Sadiq had not signed the same in his presence. He identified his signature on mark D1 at point "D" under the head "witnesses" at Sl. No.2 but he claimed that Mohd. Suleman was neither present at the time of discussion nor at the time of signing of document Mark D1. There was no signatures at Sl. No.1 when he put his signature at Sl. No.2. He conceded that the reverse of the document mark D1 bears the date of purchase as 04.11.1987. He could not tell if the date of purchase of stamp papers is 11.11.1982 or document mark D1 was manufactured in the year 1994 and given a back date of 11.11.1984. He could not tell the names of the persons whose houses are surrounded to the property in question. He confirmed that the document Mark D2 also bears his signature as well as signature of Abdul Quyyum, the contractor. The terms and conditions as contained in document Mark D2 was not settled in his Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.19 of pages 49 presence. The document mark D1 was not read out to him before it was signed by him. He could not tell the time when the partition between Mohd. Rafiq and his father took place.
In his examinationinchief DW3 Mohd. Qayyum tendered by way of affidavit Ex.DW3/1 testified that in the year 198283 he was doing building contraction work and the defendant approached him to raise constructing of second floor in the suit property. An agreement dated 20.01.1983 Ex.D2 to that effect was executed which bear his signature alongwith the signature of defendant and two witnesses. The defendant paid him total amount of Rs.45,000/ in installments vide the aforesaid receipts.
During cross examination he confirmed that he signed the affidavit Ex.DW3/1 at his home. He conceded that he can not read and right English language. He never entered in any written agreement for construction of any building. He could not tell the rate of construction in 1983 when he started the business. Nobody had introduced him to the defendant. Infact, he met the defendant at Noida where he was Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.20 of pages 49 constructing a building. He asked him to construct his house. He conceded that he had not paid income tax during the relevant period. Only the plaintiff was present when the agreement was signed. He could not tell the place where the agreement Ex.D2 was drafted, typed and signed. The amount of Rs.45,000/ was arrived on a rough calculation basis. It was with the material contract and electricity and water was provided by the defendant. He could not tell the floor area in sq. feet constructed by him. The work was completed in 20 to 25 days. The revenue stamp affixed was purchased by him at Jaffrabad. He claimed that he retained all the three receipts with him for handed them over to the defendant after completion of work. Besides the said work he had not executed any other work for the defendant.
9. In his examinationinchief tendered by way of affidavit Ex.P1, PW1 Mohd. Nadeem has reiterated the contents of plaint as well as of the replication. He also proved the following documents:
(i).The Perpetual Lease Deed dated 22.11.1973 of Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.21 of pages 49 plot of B473, New Friends Colony, New Delhi vide which the plot was allotted to Sh. Badri Nath Kakkar Ex.PW1/1.
(ii).the original agreement of construction dated 24.01.1978 Ex.PW1/2. This was an agreement between the plaintiff and said Sh. Kakkar for construction of residential building on the said plot, Sh. Badri Nath Kakkar received Rs.45,000/ by way of security and handed over the possession of the plot to the plaintiff.
(iii).The original receipt of Rs.45,000/ is Ex.PW1/3. Sh. Mohd. Sadiq the brother of defendant had signed the said receipt as an attesting witness.
(iv).Ex.PW1/4 is the original registered Power of Attorney dated 24.01.1978 executed by Sh. Badri Nath Kakkar in fvaour of Mohd. Rafi S/o Mohd. Safi authorizing him to execute the conveyance deed in favour of the plaintiff for Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.22 of pages 49 plot no.B473, New Friends Colony, New Delhi besides other powers.
(v).Ex.PW1/5 is the Special Power of Attorney executed by Sh. B.N. Kakkar in favour of Mohd. Sadiq authorizing him to execute the transfer deed only of plot no.B473, New Friends Colony, New Delhi in favour of the plaintiff.
(vi).Ex.PW1/6 is the original registered Will dated 24.01.1978 executed by Sh. B.N. Kakkar bequeathing that after his death the plaintiff shall be the sole and rightful owner of the aforesaid plot and he will have the power to sell, transfer the property alongwith the lease hold rights and that the heirs of Sh. B.N. Kakkar shall have not any claim, title and interest over the said plot. Sh. Mohd. Sadiq brother of the defendant is one of the attesting witness of the Will.
(vii).Ex.PW1/7 is the original conveyance Deed Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.23 of pages 49 dated 28.05.1993 executed by DDA in favour of the plaintiff. The plaintiff after raising the super structure on the plot at his own cost started residing therein.
(viii).Ex.PW1/8 is the certified copy of the application bearing IA no.6481/1991 filed U/o 23 R 3 CPC vide which Smt. Chaman Ara Begum made a prayer that the compromise effected between her and the plaintiff be attested and the suit be decreed in favour of the plaintiff in terms of the compromise.
(ix).Ex.PW1/9 is the certified copy of judgment and decree dated 15.05.1991 passed by Hon'ble High Court of Delhi in terms of the compromise.
(x).Ex.PW1/10 is the certified copy of the objections (EA no.127/92 dated 23.03.1992) filed by Mohd. Sadiq U/s 47 and Sec.151 CPC questioning the legality of the decree dated 15.05.1991.
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.24 of pages 49
(xi). Ex.PW1/11 is the certified copy of the order dated 15.09.1997 passed by Hon'ble High Court of Delhi vide which the objections of Mohd. Sadiq were dismissed.
(xii). Ex.PW1/12 is the certified copy the order dated 25.09.1997 passed by the Hon'ble Division Bench of Hon'ble High Court of Delhi vide which an appeal [EFA (OS) 6 of 1998] filed by Mohd. Sadiq U/s 10 of Delhi High Court Act before the Hon'ble Division Bench was dismissed.
(xiii).Ex.PW1/13 is the certified copy of the order dated 01.10.1997 passed by the Hon'ble Supreme Court vide which the SLP (Civil) No.18951 of 1997 filed by Mohd. Sadiq against the order of Division Bench dated 25.09.1997 was dismissed.
(xiv).Ex.PW1/14 is the certified copy of the objections filed by Mrs. Khatija Rafiq wife of Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.25 of pages 49 defendant (EA No.337/97) U/s 47 CPC claiming that the decree was not executable against her as she claimed to be in occupation of the suit premises in her own right as a tenant under Sh. Mohd. Sadiq and Ex.PW1/15 is the certified copy of order dated 08.01.1998 whereby the objection of Smt. Khatija Rafiq was dismissed and four months time was granted to her to vacate the premises.
(xv).Ex.PW1/16 is the certified copy of the order dated 11.02.2000 passed by the Hon'ble High Court vide which a writ petition preferred at the instance of the defendant and Sh. Mohd. Sadiq interalia praying that Union of India and DDA to take appropriate action against the plaintiff herein for breach of the terms of the Sub Lease was disposed off.
(xvi).Ex.P1 is the Notice dated 03.07.1991 served upon the defendant to vacate the second floor of Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.26 of pages 49 the suit property but the defendant refused to vacate the suit property.
(xvii).Ex.PW1/17 is the report of the Local Commissioner called by the Court on the application of the plaintiff (IA 8171/91) U/s 26 R 9 r.w. Sec.121 CPC.
(xviii). Ex.PW1/18 & Ex.PW1/19 are the reports dated 23.05.1996 of Sh. J.D. Kulkarni, the Work Manager and Sh. M.R. Bhandari, Asst. Works Manager both of India Security Press, Nasik.
During cross examination, he deposed that he does not remember orally the contents of the court proceedings filed in his affidavit alongwith the extracts reproduced. ExPW1/1 (lease deed) was not executed and settled by the concerned parties in his presence. He could not tell as to when Mr. Badri Nath Kakkar died. He stated that in January, 1978 the property was a plot and he got the construction of the plot from his own funds in 1978. At that time the construction Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.27 of pages 49 was only of ground floor and the first and second floor were raised thereupon in 1982. The defendant is the Dewar of his sister and the defendant started living in the back portion of the premises at the ground floor with Chaman Arar and Mohd, Sadiq being the brother of Mohd. Sadiq. The defendant lived in the said portion for around 1½ years. The defendant was married in 1981 while living at the ground floor back portion and then he shifted on the first floor for one month in one room only. Thereafter, he allowed the defendant to live on the second floor with a condition that he will vacate the premises within six months. Sh. B.N. Kakkar was the owner of the property prior to January, 1978 with whom he had entered into a construction agreement on 24.01.1978. He identified the signatures of Mohd. Sadiq at point X in Ex.PW1/X1. He admitted that he is not aware about the family members of Sh. B.N. Kakkar. He dealt with GPA holder Mohd. Rafiq for and on behalf of Sh. Badri Nath Kakkar. All the documents pertaining to sale of property were executed in his presence and most of them were Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.28 of pages 49 executed on 24.01.1978. He testified that though he had not read the contents of plaint at the time of preparation of the affidavit but he had full knowledge of the contents of the plaint. He further stated that he is an income tax assessee. He could not confirm as to whether he had filed any Site Plan of the disputed premises or he had mentioned about any Site Plan of the disputed premises in his affidavit. He confirmed of having filed the suit for possession and also some subsequent proceedings in the Court but he could not disclose the details of subsequent proceedings. He stated that the demise premises is about 310 sq. yds. and he could not tell as to what was its market value at the time of filing of suit. He claimed that he had spent about Rs.45,000/ on the construction of 2nd floor in 1982 at the time of its construction which was completed in 23 months. He confirmed that he was forced to file the litigation to get the premises vacated from defendant as the defendant did not conceed his oral prayer to vacate the premises in question. He confirmed that Smt. Chaman Ara was his sister, who died on 03.06.1991. Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.29 of pages 49 The litigation was started in the life time of Chaman Ara about the ground floor, about 34 months prior to her death. It was the first litigation filed by him. He denied the suggestions like the defendant has been in the possession of suit property as a permanent tenant or he was granted license to erect the suit premises or the construction was raised by defendant at his own cost with his consent and within his knowledge or defendant is owner of super structure at IInd Floor or the defendant is not liable to pay any damages.
10. In his rebuttal evidence tendered by way of affidavit Ex.DW1/A, DW1 Mohd. Rafiq has claimed that the plaintiff has filed the present suit alongwith fabricated documents after committing a fraud upon DDA. In his cross examination, the plaintiff stated on oath that he met with Sh. Badri Nath Kakkar lastly in 197879 but he filed a suit for declaration title as Mohd. Naseem Vs. Rani Kakkar etc. and the said suit was got withdrawn by the plaintiff on 27.09.1994. In the said suit it was prayed by the plaintiff that Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.30 of pages 49 after the death of late Sh. Badri Nath Kakkar on 24.09.1990 the plaintiff be declared to have become owner of the suit property and its lease hold rights on the basis of last registered Will of late Sh. Badri Nath Kakkar dated 24.01.1978. The defendant had filed the original sanctioned site plan/ building plan of the suit property issued on 07.07.1976 to which the Mohd. Sadiq was having and he was an attorney of Sh. Badri Nath Kakkar and he dealt with the defendant in respect of license of second floor of the property where he carried construction from his own funds. The suit property/building plan is Ex.DW1/A1 and the receipt regarding deposit of property tax to MCD is Ex.DW1/A2. He pointed out that in the suit the plaintiff has stated the area of suit property as 310 sq. yds. but as per conveyance deed Ex.PW1/7 it is stated to be 300.4 sq. yds.
During cross examination he confirmed that he had never paid house tax pertaining to the property prior to house tax receipt dated 09.03.2007. Mohd. Sadiq died on 22.01.2002 and he handed him over the plan before his death. He could Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.31 of pages 49 not tell if the signature at point A in document Ex.PW1/6 is of Mohd. Sadiq. He claimed that Mohd. Sadiq was residing at house no.1117, Ballimaran, Haveli Hisamuddin, Delhi on 24.01.1978. He claimed that signatures and writing as an attesting witness to the Will dated 24.01.1978 is not of Mohd. Sadiq. Mohd. Sadiq was his elder brother but he never strayed with him in the ground floor of property no.B473, New Friends Colony, New Delhi. The property in which he was living is situated in Jama Masjid and Mohd. Sadiq was living in Ballimaran. He claimed that the plaintiff had fraudulently obtained the conveyance deed by producing the GPA which was invalid after the death of Sh. Badri Nath Kakkar. The certified copy of the plaint and the Written Statement of suit no.124/08 titled as Mohd. Sadiq Vs. Mohd. Naseem are Ex.DW1/A1 and A2. He conceded that he has been impleaded as LRs of Mohd. Sadiq in different cases.
11. I have carefully heard the rival submissions of Ld. counsels for the parties. I have also perused the entire material placed before me.
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.32 of pages 49
12. My issue wise findings is as under:
13. ISSUE No.1: Whether the defendant is in possession of the suit property on the basis of a permanent tenancy in his favour ?
Amongst the three pleas raised by the defendant in his Written Statement, the instant issue is one of them.
As per defendant, he is in occupation of the second floor being a permanent tenant. However, the defendant has placed no material on record in support of his said plea.
It is well settled that there can be no contract of permanent tenancy without a registered instrument and in this case there is no registered instrument in favour of the defendant.
Section 107 of the Transfer of Property Act prescribes that a Lease of immovable property from year to year or for any term exceeding one year can be made only by a registered instrument. Lease other than Lease from year to year or for any term exceeding one year can be made either by a registered instrument or by oral Agreement Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.33 of pages 49 accompanied by delivery of possession.
In Prem Pal Singh Vs. Jugal Kishore Gupta, 50 (1993) DLT 49, it was held by the Division Bench of the Hon'ble High Court that the plea of tenancy cannot be accepted in the absence of documentary evidence of tenancy, para 3 of the judgment is extracted below: "As noted above, on the second issue the defendant has not led any documentary evidence except his own statement that he was a tenant. He admits that he has no document to show that he was a tenant in the premises. Tenancy rights are created by contract under the statute being the Transfer of Property Act and the Court has to be satisfied that there in fact a tenancy existed and when landlord denies the same a more statement of tenancy may not be enough............." The above judgment was relied on by the Hon'ble High Court in Praveen Narang Vs. Dinesh Gulati reported as 161 (2009) DLT 585 in a similar case where the defendant took the plea of tenancy and in the alternative "ownership by adverse possession".
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.34 of pages 49 The similar views were taken in the judgments reported as Jagat Taran Berry Vs. Sardar Sant Singh AIR 1980 Delhi 7 and further followed in Masye Projects Pvt. Ltd. Vs. Rajiv Rai Sachdev & Anr. reported in 152 (2008) DLT 762.
The defendant has miserably failed to prove his plea of permanent tenancy. The defendant has not produced any document in support of his plea of permanent tenancy. In fact, in his cross examination dated 23.08.1999, the defendant admitted that "I am not paying any rent to anybody in respect of second floor portion."
In view of above, the issue is liable to be decided against the defendant and in favour of the plaintiff and same stands decided accordingly.
14. Now for the convenience sake, I shall take issue no.2 and 3 together.
15. ISSUE No.2: Whether the defendant is in possession of the suit property under an irrevocable license ?
AND Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.35 of pages 49 ISSUE No.3: Whether the defendant is the owner of the superstructure of the property in question as alleged in paragraph2 of the written statement ?
These are the other two pleas raised by the defendant in his written statement.
It is contended by Ld. counsel for defendant that the defendant is in occupation of the suit floor under an irrevocable license. It was a license with making of permanent construction thereon. The case of the defendant is clearly covered U/s 60 (d) of the Easement Act. The defendant is living on the second floor with the permission of Mohd. Sadiq who was the attorney of Sh. B. N. Kakkar. He has given license to the defendant to live on the second floor. The defendant was also permitted to raise construction on the second floor on his own cost and as per the irrevocable agreement, Mohd. Sadiq shall not claim any rent or possession thereof. The defendant accordingly raised the construction on the second floor at his own cost and incurred expenses of Rs.45,000/ towards the cost of construction to Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.36 of pages 49 which he paid to the builder namely Mohd. Qayyum in the installments.
Per contra, according to Ld. counsel for plaintiff, the defendant is raising his claim on the basis of an Agreement of Understanding dated 11.11.1982 filed, which is purported to be executed by Sh. Mohd. Sadiq his brother as constituted Attorney of Sh. Badri Nath Kakkar but the said agreement is false and fabricated having no value at all, which is established by the report dated 23.05.1996 received from the India Security Press. At the time of selling the property (Plot No.B473, New Friends Colony, New Delhi) to the plaintiff, Sh. Badri Nath Kakkar, executed one Special Power of Attorney Ex.PW1/5 in favour of Sh. Mohd. Sadiq to transfer the property in favour of Mohd. Naseem. Similar powers were also given to Mohd. Sadiq under the General Power of Attorney Ex.PW1/4. No other power was given to Mohd. Sadiq by virtue of these two documents and the construction on the second floor was raised by the plaintiff at his own cost. The defendant has not produced any other document or Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.37 of pages 49 Attorney by virtue of which Modh. Sadiq could grant permission to Mohd. Rafiq to carry out any construction in the property or to execute the Agreement Mark D1. In the plaint and in his examinationinchief the plaintiff has asserted that the construction on the second floor was carried out by him.
Having heard the rival submissions, I find that the said Agreement of Understanding dated 11.11.1982 Mark D1 does not inspire confidence firstly the same was filed only on 04.05.1994 after framing of the issues. Further the report received from Master, Security Printing Press, Nasik indicates that the said document is not a genuine document. The report dated 23.05.1996 of Dy. Works Manager, India Security Press which reads as under: "The stamp paper was first printed on 10.01.1978 at India Security Press, Nasik Road, Nasik and under available to the public only after 25.01.1978."
The document engrossed on a stamp paper more than 4 years 10 months old raises suspicion about its authenticity. Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.38 of pages 49 Further the two Receipts Ex.DW1/3 and DW1/5 which are having stamps affixed thereupon reportedly have not even printed and sent to Treasury for sale to public, raises further doubt about the story of the defendant. Thus it cannot be believed that the defendant had actually raised the structure on the second floor as claimed by him.
Furthermore, the testimony of DW2 Sh. Mohd. Shoaib also can not be relief upon due to its infirmities and various contradictions. The witness in his examinationinchief stated that "from 1981 after date I visited Mohd. Rafiq five or six times only". He further stated that "....... I can not tell as to whose house are located on East, West, North and South of the property in question. I can not tell as to whether the main door of the property in question opened to either towards east or west. It is correct that there existed a Park on one side of the property in question. I can not tell as to on which side substation of DESU existed. .......... There were no signatures at Sl. No.1 when I put my signatures at Sl. No.2. I was asked Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.39 of pages 49 to sign at no.2 leaving space at Sl. No.1 blank. Again said I was not asked to sign specifically either at Sl. No.1 or at Sl. No.2.............".
Similarly, the Agreement dated 20.01.1983 Mark D2 allegedly executed between Mohd. Rafiq defendant and the alleged contractor Mohd. Qayyum is unstamped and was impounded by the Hon'ble High Court and no stamp duty has been paid till date and it cannot be read in evidence. Moreover, the said agreement Mark D2 and also the four receipts can not be relied upon in the light of the observations and report of the India Security Press, Nasik.
The cross examination of Sh. Mohd. Qayyum (the defendant no.3) further falsify the case of the defendant. He stated that "I was doing construction business as a hobby. I never entered in any written agreement for construction of any building. Sh. Mohd. Rafiq did not provide me with a plan. I did not ask for any sanctioned plan from MCD. ........ I got the Receipt typed myself. I do not remember the place where I purchased Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.40 of pages 49 the revenue stamp......... All these three Receipts were got typed by me at Jafrabad. The revenue stamp affixed on the receipts were purchased by me at Jafrabad from a shop provision store used to keep it. I forgot to put the date on all the three receipts."
In answer to query that if the receipt were issued on the same date why were they typed on different typewriters he stated that "I was getting typed then keeping them with me. Vol. one by one."
He further stated that "I retained all the three receipts with me for handing over after completion of work."
The witness is not sure of the location of the house. The four receipts, allegedly executed by DW3 Mohd. Qayyum two dated 20.01.1983 Ex.DW1/3 and 28.03.1983 Ex.DW1/5 and two undated Ex.DW1/4 and Ex.DW1/6 were sent to Master, Security Printing Press, Nasik for report as to when the Revenue Stamps were printed and sent to treasury for circulation vide order dated 11.12.1995. The Report dated Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.41 of pages 49 23.05.1996 of India Security Press, Nasik proves that the Receipts were false and fabricated documents. The Report is quoted as under:
(i).Stamp on undated receipt marked 'A' Ex.DW1/6 was printed on 11.06.82 and was issued from Central Stamp Store, Nasik on 17.06.82 to the Treasury for sale to Public.
(ii).Stamp on receipt dated 28.03.1983 marked 'B' Ex.DW1/5 was printed on 09.04.83, and was issued from Central Stamp Store, Nasik on 22.04.83.
(iii).Stamp on Receipt dated 20.01.1983 marked 'C' Ex.DW1/3 was printed on 06.04.83 and was issued for on Central Stamp Store, Nasik on 22.04.1984.
(iv).Stamp on undated receipt marked 'D' Ex.DW1/4 was printed on 06.04.84 and was issued from Central Stamp Store."
No objections to the Report has been filed by the defendant.
Further DDA issued a Conveyance Deed Ex.DW1/7 dated 28.05.1983 in favour of the plaintiff on the basis of the documents executed by the erstwhile owner (Badri Nath Kakkar) in his favour.
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.42 of pages 49 Further at the instance of Sh. Mohd. Rafiq, defendant herein and Sh. Mohd. Sadiq, New Friends Cooperative House Building Society Ltd. filed a Civil Writ Petition No.2142 of 1988 praying that Union of India and DDA to take appropriate action against Sh. Mohd. Naseem for breach of the terms of the sublease and for the reliefs. All the documents filed in the suits between the plaintiff against defendant and his brother were supplied by the defendant to the society.
The Hon'ble High Court upheld the execution of Conveyance Deed Ex.PW1/7 in favour of the plaintiff. The certified copy of the order dated 11.02.2000 disposing the writ petition is Ex.PW1/6. Even otherwise, the Hon'ble High Court in various judgments have recognized the sale of property in Delhi on the basis of Power of Attorney which are as under:
(i).Harbans Singh Vs. Shanti Devi reported as 1977 Raj. L.R. 487.
(ii).Usha Malhotra Vs. G.S. Uppal 1991 RLR 323.
(iii).Prem Raj Vs. Babu Ram 1991 RLR 458.
(iv).Shikha Properties (P) Ltd. Vs. Sardar Bhagwant Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.43 of pages 49 Singh 1998 (46) DRJ 286.
(v).Ishwar Dass Jain Vs. Sohan Lall 1999 (X) AD (S.C.) 188.
(vi).Asha M. Jain Vs. Canara Bank 2001 (1994) DLT 841 (DB).
(vii).Veer Bala Gulati Vs. MCD 2003 (69) DRJ 482.
(viii).Ram Devi Vs. Pooran Chand Aggarwal 2008 (151) DLT 230.
The statement of Sh. Mohd. Rafiq in his cross examination is relevant and is sufficient to reject his false defence, which is as under: "........... Except the Power of Attorney Mohd. Sadiq was not having any other authorization from B.N. Kakkar for living on ground floor back portion for the house......... It is correct that I have no documentary proof about my right, title and interest on the second floor except the Agreement to build that portion...... I have never paid the house tax of second floor portion......
I have no title or interest in the land of this property. I am not paying any rent to any body in respect of second floor portion....."
Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.44 of pages 49 Thus it is clear that defendant has been failed to establish that he is in the possession of the suit property under an irrevocable license or he is the owner of the superstructure of the property in terms of the Agreements Mark D1 & D2. Thus the possession of the defendant of the suit property i.e. the second floor of House No.B473, New Friends Colony, New Delhi can not be held legal and as such he is liable to handover the possession of the suit property to the plaintiff. Both the issues stand decided accordingly.
16. ISSUE No.4: Whether the suit is not properly valued for purposes of court fees ?
In his Written Statement, the defendant has taken a preliminary objection that the suit of the plaintiff is not properly valued for the purpose of Court fee but except raising the said bald claim, the defendant has led no evidence to substantiate his said claim/objection.
In para 6 of the plaint, the plaintiff has fixed the value of the suit for the purpose of Court fee and jurisdiction as Rs.6,00,000/ (the then market value thereof) and he has paid Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.45 of pages 49 the court fee of Rs.8,200/ on the said valuation. The defendant has brought no material in contrary. As such, the issue is liable to be decided against the defendant and in favour of the plaintiff.
17. ISSUE No.5: Whether the plaintiff is entitled to mesne profits, if so, at what rate and for what period ?
Since while deciding the issues no.1, 2 & 3, I have already come to the conclusion that the possession of the defendant is not legal and further the plaintiff has also proved the notice dated 03.07.1991 Ex.P1 vide which the defendant was asked to vacate the suit premises to which he failed, so his possession has become unlawful after 03.07.1991. Therefore, the defendant is liable to pay the mesne profits till the possession of the property is restored to the plaintiff by the defendant. In the plaint the plaintiff has prayed for a decree of mesne profit @ Rs.3,000/ per month together with interest @ 24% per annum till the delivery of possession.
Keeping in view the nature, locality and the area in Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.46 of pages 49 which the suit property is situated and taking the judicial notice of the rising trend in the valuation of the immovable properties in Delhi, the mense profits as claimed by the plaintiff cannot be said to be unreasonable and exaggerated. Therefore, the plaintiff is entitled for the mesne profits @ Rs.3,000/ per month from 03.07.1991 till the date of handing over of the possession of the suit property i.e. the second floor of House No.B473, New Friends Colony, New Delhi by the defendant to the plaintiff. Further since the plaintiff was deprived by the defendant from enjoying his property without any rhyme and reason, so the plaintiff is also entitled for interest and in my considered the interest of justice shall be fully met if the plaintiff is awarded interest @ 8% per annum on the aforesaid amount from 03.07.1991 till the date of handing over of the possession of the suit property. Issue stands decided accordingly.
18. RELIEF: In view of my findings on the foregoing issues, a decree for possession is passed in favour of the plaintiff and Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.47 of pages 49 against the defendant in respect of the suit property i.e. the second floor of House No.B473, New Friends Colony, New Delhi as shown in red in the site plan. Further the plaintiff is awarded the decree for mesne profits @ Rs.3,000/ per month alongwith interest @ 8% per annum from 03.07.1991 till the date of handing over of the possession of the suit property i.e. the second floor of House No.B473, New Friends Colony, New Delhi by the defendant to the plaintiff. Plaintiff is directed to pay the deficient court fee within the period of 30 days from the date of judgment. Cost of the suit is also awarded to the plaintiff. Decree stands passed accordingly.
19. Decree Sheet be prepared after filing of deficient court fee by the plaintiff.
20. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR) today on 30.07.2011) ADDL. DISTRICT JUDGE03(C) DELHI Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.48 of pages 49 Suit No.74/08 Mohd. Naseem Vs. Mohd. Rafiq 18.07.2011 Present: Ld. counsels for parties.
No time left.
Put up on 30.07.2011 for orders.
(RAKESH KUMAR) ADJ03(C)/DELHI/18.07.2011 30.07.2011 Present: As before.
Vide a separate judgment, suit of the plaintiff is decreed. Decree Sheet be prepared after filing of deficient court fee by the plaintiff.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03(C)/DELHI/30.07.2011 Mohd. Naseem Vs. Mohd. Rafiq (Suit No.74/08) Page No.49 of pages 49