Delhi District Court
Mr. Arun Kumar Gupta vs Stanlay Parkar John 2006 on 8 June, 2012
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)17,DELHI
Suit No. : 32/2011/06
Unique Case ID : 02401C095196006
Shri Sarvesh Chand Gupta
S/o late Sh. T.C. Gupta
R/o G-143, Preet Vihar,
Delhi ....... P l a i n t i f f
versus
1. Mr. Arun Kumar Gupta
2. Mr. Naveen Kumar Gupta
3. Mr. Kamal Kumar Gupta
S/o late Sh. Ramesh Kumar Gupta
...... D e f e n d a n t s
Date of Institution of Suit : 12.10.2006
Date when reserved for orders : 26.05.2012
Date of Decision : 08.06.2012
JUDGMENT
1 Vide this judgment I shall decide a suit for recovery of possession, mesne profit/damages & permanent injunction filed by the plaintiff against the defendants. Brief facts necessitated in filing the suit are given as under:-
2 That plaintiff is the sole owner of quarter No. 61 and two shops no. 18 and 19, Bengali Market, New Delhi (Hereinafter called the suit property). Shri Paras Ram Gupta was the tenant in the suit property who expired leaving behind two sons namely Sh: Krishan Kumar Gupta and Radhey Shyam Gupta. Shri Krishan Kumar Gupta died on 27.09.2004 leaving behind his widow Smt. Usha Suit No. 32/2011/2006 Page no. 1 of 52 Rani Gupta and four daughters. After the demise of Sh. Krishan Kumar Gupta a settlement was arrived between his legal heirs and Sh. Radhey Shyam Gupta whereby Sh. Radhey Shyam Gupta surrendered his tenancy rights in respect of two shops in favour of Smt. Usha Rani Gupta. The legal heirs of Sh. Krishan Kumar Gupta were not interested to continue their tenancy with respect to the suit property as such surrendered their tenancy and handed over actual physical and vacant possession of the suit premises to the plaintiff on 31.10.2004/ 1.11.2004.
3 The defendants approached plaintiff in the end of May 2005 and requested him to give suit premises to them for coming festivals seasons as they required some space to keep their belongings. Plaintiff agreed to permit them to use the suit premises and keep their belongings for a short period. The defendant assured that they would remove their belongings after the festivals seasons and would hand over the actual physical and factual possession. The plaintiff from time to time requested defendants to remove their belongings and vacate the said premises, however, they had been prolonging the matter on one pretext or the other.
4 Having left no alternative, plaintiff served a legal notice dated 02.08.2006 upon the defendants whereby plaintiff has withdrawn his permission and called upon the defendants to remove their belongings and vacate the suit premises. It was also made clear that if they failed to remove their belongings then they would be liable to pay damages @ Rs. 5,000/- per day towards their illegal use and occupation. Despite the service of the said legal notice, Suit No. 32/2011/2006 Page no. 2 of 52 defendants neither vacated the suit premises nor gave any reply of the notice. As per the plaintiff, defendants were in permissible possession of the suit premises and the said permission has been withdrawn vide legal notice, therefore the occupation of the defendants in the suit property after revocation of their license is illegal and un-authorised for which they are liable to pay damages. On the basis of the aforesaid averment, present suit has been filed for adjudication.
5 Pursuant to the summons, defendants appeared and filed their written statement taking preliminary objection that plaintiff is not the owner of the suit property which fact came to their knowledge vide letter dated 19.02.2007, that suit has not been properly valued for the purpose of court fees and jurisdiction and that suit is barred under Section 50 of the D.R.C. Act.
6 On merit it is stated that plaintiff brought Smt. Usha Rani Gupta W/o late Sh. Krishan Kumar Gupta to defendant no. 1 on or about 20.10.2004. The defendant No. 1 showed his interest in taking the suit property on rent therefore, plaintiff requested defendant no:1 to work out the modalities with Smt. Usha Rani Gupta and he agreed to induct M/s Nathu Sweets of the defendants No. 1 ,as a tenant qua the suit property on the same rate of rent on payment of lump sum amount.
7 The defendant no. 1 not only negotiated with Smt. Usha Rani Gupta, he also helped her liquidating the stocks lying in the shop. The defendant no. 1 took plaintiff, Smt. Usha Rani Gupa and her daughters alongwith one Sh.
Suit No. 32/2011/2006 Page no. 3 of 52 Sat Narain Gupta to Shri Surya kant Singla, Advocate who drafted the papers such as Surrender Deed, letter to SHO etc. The plaintiff settled the rent account with Smt. Usha Rani Gupta upto 31.10.2004 and accepted a sum of Rs. 10,00,000/- in cash from defendant No.1. Smt. Usha Rani Gupta delivered possession of the suit property to Shri Arun Gupta with the consent of the plaintiff. It is further averred that plaintiff told to defendants that he had given new receipts for printing due to change of his residence and assured that he would subsequently issue rent receipt for the suit property w.e.f 01.11.2004 in the name of M/s Nathu Sweets, however he refused to send the receipt and made attempt to extort more money from the defendants.
8 It is further averred that the defendants tendered rent to NDMC for the period commencing from 1.11.2004 to 31.03.2008 on 28.02.2007 by cheques. The rent has been accepted by the NDMC and an ID number has been allotted to the defendant for depositing future rent. The defendants are in lawful possession of the suit property since 1.11.2004 and have been paying electricity bill etc to NDMC ever since. It is denied that plaintiff was in possession of the suit premises w.e.f 31.10.2004/ 01.04.2004. It is denied that in May 2005 defendants approached the plaintiff and requested him to give suit property for coming festival season. It is also denied that on 01.06.2005 plaintiff agreed and permitted defendants to keep their belongings for a short period. It is also denied that in November, 2005 plaintiff requested the defendants to remove their belongings but they requested to allow them some more time. It is denied that defendants were in permissive possession of the suit premises. It is denied that notice dated 2.8.2006 was served upon the defendants. It is also denied that suit Suit No. 32/2011/2006 Page no. 4 of 52 property can fetch monthly rent of Rs. 1,50,000/- per month or defendants are liable to pay the said amount per month for the month of September, 2006. All other averments have also been denied. It is prayed that suit be dismissed with cost.
9 Plaintiff filed replication to the written statement thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
10 On the basis of the pleadings of the parties the Ld. Predecessor of this court vide order dated 02.11.2007 framed the following issues for adjudication:-
1. Whether the plaint is not maintainable in terms of notification issued by L & D O or NDMC as stated by the defendant in Para-I of the preliminary objections? OPD
2. Whether the plaintiff has played fraud on defendants No. 1 & 3 as stated in the written statement? If so, to what effect? OPD
3. Whether the defendants took the suit property as tenants from the plaintiff w.e.f 1.1.2004 i.e two shops and one residential quarter at the rate of Rs. 42.60 p and Rs. 12/- respectively? If this issue is decided in favour of the plaintiff, in that eventuality, whether the plaintiff is entitled to protection under Section 50 of the DRC Act? OPD
4. Whether suit property is not valued for the purpose of court fees and jurisdiction as pleaded in the written statement filed by the defendants? OPD
5. Whether the plaintiff is entitled to relief of possession in respect of the suit property as prayed in the plaint? OPP
6. Whether the plaintiff is entitled to decree of damages at the rate of Rs. 1,50,000/- per month as prayed in the suit? OPP
7. Whether the plaintiff is entitled to the relief of injunction as prayed in the suit? OPP
8. Relief Suit No. 32/2011/2006 Page no. 5 of 52
11 After framing of the issues, defendants sought permission to amend their written statement, which was allowed, consequent to the amendment, ld. Predecessor of this court vide order dated 26.03.2009 framed one additional issue which is as under:
Additional Issue 5 A:
Whether the plaintiff's suit is not maintainable in view of the letter dated 17.09.2007 issued by the NDMC? OPD
12 In order to prove his case, plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the Site plan Ex. PW-1/1, Original rent receipt book as Ex. PW-1/2, Photocopy of rent receipt Ex. PW-1/2, photocopy of rent receipt Ex. PW-1/3, five affidavits as Ex. PW-1/4 to 8, Legal notice Ex. PW-1/9, Postal receipts Ex. PW-1/11 & 12, UPC Ex. PW-1/3, A.D Ex. PW-1/14 to 16. PW-1 has been thoroughly cross-examined by the defendants.
13 The defendant no. 1 examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. He exhibited letters of surrender of tenancy by Smt. Usha Rani Gupta as Ex. DW-1/1 to 3, copies of letter dated 19.02.2007, 17.09.2004 Ex. DW-1/3 & 4, receipt issued by NDMC and certificate of bank as Ex. DW-1/6 & 7, receipt issued by NDMC as Ex. DW-1/8, copy of affidavit of Smt. Usha Rani Gupta as Ex. DW-1/10. DW-1 has been extensively cross-examined by the plaintiff.
14 The Defendants have also examined Sh. K.N. Mishra, Clerk from Suit No. 32/2011/2006 Page no. 6 of 52
Central Bank of India, Begali Market as DW-2 who brought the original record of cheque no. 400752 dated 11.03.2008, 400761 dated 14.03.2008. 96782 dated 13.05.2009 and 06783 dated 13.05.2009 as Ex. RW2/A to Ex. RW2/D respectively. During cross-examination DW-2 deposed that he has not brought the original cheque Ex. RW2/A to Ex. RW2/D. 15 Defendants have also examined Sh. Durga Singh as DW-3 who could not brought the record of document Ex. DW-1/2.
16 Defendants have also examined Sh. Rajesh Babu, Senior Assistant Rates Branch Commercial Department NDMC as DW-4. The said witness has seen the bills Ex. PW-1/D1, Ex. PW/DK, Ex. PW-1/DE to Ex. PW-1/DG, Ex. PW-1/DA TO Ex. PW-1/DC, Ex.PW-1/DQ to Ex. PW-1/DS, Ex. PW-1/DM to Ex. PW-1/DO and deposed that as per the record the amount of these bills were deposited vide receipt Ex. PW-1/DL, Ex. PW-1/DP, Ex. PW-1/DT, Ex. PW-1/DD and Ex. PW-1/DH respectively. During cross-examination he admitted that record is being maintained by the NDMC about the bills issued. NDMC maintains record of deposition of amount of bills. They maintain record in their office but on computer. He cannot say whether Mr. Krishan Kumar found mentioned in Ex. PW-1/DH is alive or expired.
17 Defendants have also examined Sh. G.S. Rathi, Seniot Assistant, Estate-II, NDMC, New Delhi as DW-5 in his examination in chief. DW-5 briefly deposed that shop no. 18-19 and quarter No. 61, Bengali Market, New Delhi are owned by Vidyawati. He volunteered that as per record lease in favour of said Suit No. 32/2011/2006 Page no. 7 of 52 Vidhawati was cancelled. He stated the document Ex. DW-5/A and Ex. DW-1/3 dated 19.02.2007 were issued by NDMC. In view of these letters possession of the entire Bengali Market was taken over by NDMC from L & DO. As per the record the possession of the Bengali Market was handed over to NDMC by L& DO vide notification dated 24.03.2006. The NDMC has taken possession of entire Bengali Market as and where basis in April 2007. NDMC is still in possession of entire Bengali Market. He further deposed that as per record some shops of Bengali Market are in possession of the owners and some are in the possession of tenants. He cannot say whether Arun Gupta, partner of Nathu Sweets is in possession of shop no. 18,19 and quarter no. 61.
18 Defendants have also examined Sh. Hardeep Kumar, Junior Assistant, from NDMC as DW-6. He brought the challan of payment of Misc./Rent of the suit property Ex. DW-6/A & B. He volunteered that in Ex. DW-6/A , the period 1.11.2004 to 31.03.2008 is not mentioned in the document brought by me. During cross-examination DW-6 deposed that they have no record in their branch showing shop no. 18 and 19 or quarter no. 61 Bengali Market except two receipts mentioned by him. He has no record except these two challans with him showing that rent was being paid about shop no. 18,19 and quarter no. 61. No separate account was opened for deposit of this amount in the name of defendant of Nathu Sweets. He admitted that amount is deposited in the ID alloted to Smt. Vidyawati. He also admitted that it was not specifically printed that this was challan meant for deposition of rent. There is no record in their branch as to who is in possession of plot no. 3 or in which capacity.
Suit No. 32/2011/2006 Page no. 8 of 52 19 Defendants have also examined Sh. Sat Narain Gupta as DW-7. In his examination in chief DW-7 briefly deposed that he knows Smt. Usha Rani Gupta W/o lat Sh. Krishan Kumar Gupta and Sh. Sarvesh Chand Gupta. In October 2004 Smt. Usha Rani Gupta expressed her inability to run the business of chemist and desired that she would like to close her business and surrender the shop. She approached him for assistance. He alongwith Usha Rani Gupta on or about 20.10.2004 approached Sh. Sarvesh Chand Gupta the land lord of the suit premises and conveyed her desire. Sh. Sarvesh Chand Gupta took them to Sh. Arun Kumar Gupta saying that Sh. Arun Kumar Gupta would be interested in the shop. Sh. Arun Kumar Gupta expressed his keenness to take the suit property on rent. He, therefore on behalf of Smt. Usha Rani Gupta brokered an agreement whereby Sh. Arun Kumar Gupta to pay the money. Smt. Usha Rani Gupta agreed to vacate the tenanted premises and Sh. Arun Kumar Gupta agreed to take the premises being vacated by Smt. Ushar Rani Gupta. Sh. Arun Kumar Gupta took Smt. Usha Rani Gupta to the office of Sh. Surya Kant Singla, Advocate at Delhi High Court, New Delhi who drafted the papers such as surrender deed, letter to SHO, P.S. Tilak Marg, New Delhi and letter to electricity department of NDMC, few other documents as desired by Sh. Sarvesh Chand Gupta . On 31.10.2004 in his presence Smt. Usha Rani Gupta signed the papers in the chamber of Sh. Surya Kant Singla in the presence of Sh. Sarvesh Chand Gupta and Arun Kumar Gupta. After completion of paper work Smt. Usha Rani Gupta, took the papers and returned to suit property. On 31.10.2004 Sh. Sarvesh Chand Gupta prepared up to date rent receipt in respect of the suit property and received up to date rent amount to Rs. 2854.20. He also prepared separate receipt for quarter no. 61 for Rs. 804/-. Both these receipts were signed Suit No. 32/2011/2006 Page no. 9 of 52 by Sh. Sarvesh Chand Gupta as well as Usha Rani Gupta. On the reverse of the receipts Smt. Usha Rani Gupta acknowledged having delivered vacant possession. In his presence Sh. Sarvesh Chand Gupta received a cash sum of Rs. 10 lacs from Sh. Arun Kumar Gupta with the consent of Sh. Sarvesh Chand Gupta, Smt. Usha Rani Gupta delivered possession of shop no. 18,19 and quarter no. 61 to Arun Kumar Gupta of Nathu Sweets who put his lock on the said tenanted premises in his presence and in the presence of Sh. Sarvesh Chand Gupta and Usha Rani Gupta. He further stated that Sarvesh Chand Gupta had given new receipts for printing in view of the change of his residence address he told defendant no. 1 that he would subsequently send the rent receipts for the suit property w.e.f 1.11.2004 in the name of Nathu Sweets. He further stated that Arun Kumar Gupta told him that Sh. Sarvesh Chand Gupta has failed to fulfill his commitment of sending the rent receipt and has chosen to file the suit against him.
20 Defendants have also examined Smt. Usha Rani as DW-8. She also deposed verbatim in her examination in chief as deposed by DW-7, Sat Narain Gupta.
21 I have heard ld. counsel for the parties and perused the pleadings, evidence and other material placed on record. My issue wise findings is as under:-
Issue no. 1: Whether the plaint is not maintainable in terms of notification issued by L & DO or NDMC as stated by the defendant in Para-1 of the preliminary objections: OPD Suit No. 32/2011/2006 Page no. 10 of 52 Issue no. 2: Whether the plaintiff has played fraud on defendants No. 1 & 3 as stated in the written statement? If so, to what effect? OPD Issue no. 5 A: Whether the plaintiff's suit is not maintainable in view of the letter dated 17.09.2007 issued by the NDMC ? OPD Issue no. 1, 2 & 5A are taken together as they are interconnected. The defendants have taken a plea that plaintiff is not the owner of the suit property and said fact came into their knowledge from the letter of NDMC dated 19.02.2007 whereby they were informed by the NDMC that suit property was re-
entered by L & DO w.e.f 27.11.74 vide letter No. L.1/9205/SP.3/75 dated 25.01.75 and the possession of the suit property has been taken over by the government on as is where is basis, which is confirmed by letter No. D/S0(CSC)/629/2007 dated 17.09.2007. Thus the property stood has vested in the President . They further taken a plea that plaintiff has played fraud upon them by not revealing the fact that suit property was re-entered by L & DO w.e.f 27.11.74. As per the defendants present suit is not maintainable and isliable to be dismissed.
22 The plaintiff has controverted these pleas and pleaded that an order was passed on 27.11.74 with regard to violation in terms of perpetual lease deed but no action has been taken against the said construction till date. He further pleaded that department has not taken any action under Public Premises Act against the plaintiff since 1974 till date and NDMC has also admitted that physical possession has never been taken over by them. As per the plaintiff he is the owner of the suit property and present suit is maintainable.
Suit No. 32/2011/2006 Page no. 11 of 52 23 In order to prove their pleas defendant no. 1 has examined himself
as DW-1 and reiterated the said fact in his examination in chief. During cross- examination DW-1 briefly deposed that he has no knowledge that property in question was re-entered by L & DO. He again said that about two years back he came to know about a circular issued by NDMC that all the aforesaid properties were re-entered by L & DO some time in 1974. He admitted that he filed an appeal before MCD Tribunal but he does not remember that it was filed in the year 2002. He admitted that he had filed some documents regarding shop no. 23, 24 & 25 issued by L & DO in that appeal. He denied that he had knowledge about re-entry by L & DO at the time when he filed the said appeal. He stated that he received a notice of re-entry from L & DO through NDMC three-four year ago but he does not remember the date and month. He cannot say that said appeal was filed by Nathu Sweets in the year 2000 and the number of the same was 57. He does not know whether copy of the letter issued by L & D.O was filed in the court alongwith the said appeal. He does not remember whether copy of the said letter was in his possession since 2000. He admitted that he had knowledge before the year 2000 about the re-entry of suit property by L & DO. He admitted that he filed appeal Ex. DW-1/D5 in MCD Tribunal. He has seen document Ex. DW-1/D6 i.e certified copy of the letter dated 25.01.75 issued by L & DO. He admitted that those documents were filed by him alongwith said appeal. He stated that he came to know about the possession of Bengali Market having been taken by NDMC only after receiving the reply from NDMC under RTI. He stated that it was not a physical possession but notional one. He admitted that no such circular has ever been issued by NDMC in which it was mentioned that physical possession of the Bengali Market has been taken over Suit No. 32/2011/2006 Page no. 12 of 52 by the NDMC. He cannot say since 1941 till today it is plaintiff and his predecessor who are legal owner and having right of possession upon the suit property.
24 The defendants have also examined Sh. G.S. Rathi, Senior Assistant Estate II NDMC as DW-5 in support of their plea. During cross- examination DW-5 briefly deposed that plot no. 3 was re-entered by L & DO w.e.f 27.11.1974 due to violation. A letter in this regard was issued on 25.01.75. As per the record brought by him today there is nothing in it showing that any proceedings under P.P. Act were initiated to take possession of the plot in dispute. He again said that he cannot say that no such action was ever initiated by the L & DO. He admitted that no such proceedings have been initiated till now. Only a demand notice dated 15.10.2009 has been issued, copy of the same is Ex. DW-1/P7. He admitted that physical possession of plot no. 3 has not been taken over till today. He stated that in terms of the letter Ex. DW-1/P7 ground rent was demanded. He has no knowledge as to whether any written order was passed by L & DO asking occupier to pay the rent or other charges. He stated that nothing is in record brought by him to show as to in whose favour the lease of plot no. 3 was executed. He again said that it stands in the name of Smt. Vidyawati. No further action was taken about recovery of possession after letter dated 25.01.1975 issued by L & DO. He has not personally inspected plot no. 3, Bengali Market. He denied that NDMC / L & DO are neither in physical possession of the entire Bengali Market, plot no. 3.
Suit No. 32/2011/2006 Page no. 13 of 52 25 To answer the plea of the defendants, plaintiff examined himself as
PW-1. During cross-examination PW-1 admitted that letter of re-entry dated 25.01.75 was received from L & DO. He volunteered that L & DO has not acted upon the said letter and possession always remained with them till today. He admitted that L & DO transferred the administration control of all the property of Bengali Mal Market to NDMC . He volunteered that it was by way of Gazette notification in the year 2006. He denied that the possession has been taken over by the NDMC in April 2007 as and where is basis. He stated that possession was never taken by NDMC from him.
26 An examination of the pleadings and evidence led on record shows that defendants have sought to raise a plea that plaintiff is not the owner of the suit property because the suit property was re-entered by L & DO w.e.f 27.11.74 which fact came into their knowledge on 19.02.2007 when they sought information under Right to Information Act. The plaintiff has controverted the said plea and pleaded that the order of the re-entry was never acted upon and actual physical possession has always remain with him.
27 It is an admitted fact that defendants obtained the possession of the suit property from the plaintiff. As per the plaintiff the possession was handed over to the defendant as a licensee for a short duration. Whereas as per the defendants they were inducted as tenant w.e.f 01.11.2004 in the suit premises by the plaintiff. Be that as it may, the fact remains that defendants were put into possession over the suit property by the plaintiff. Once defendants have admitted the fact that they received the possession of the suit property from the Suit No. 32/2011/2006 Page no. 14 of 52 plaintiff in that eventuality they cannot be allowed to dispute the title of the plaintiff. It would be relevant at this point of time to take note of what is stated in Section 116 of the Indian Evidence Act and same reads as follows: -
Estoppel of tenant, and of licensee of person in possession- No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title of such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given.
28 Under Section 116 of the Indian Evidence Act, the tenant/Licensee is estopped from denying the title of the Landlord/licensor. Section 116 of the Act provides that no tenant/licensee of immovable property shall, during the continuance of that relation be permitted to deny the title of the Landlord/Licensor, meaning thereby that so long as such person has not surrendered the possession, he can not dispute the title of the Landlord/licensor. Howsoever defective the title of the Landlord/Licensor may be, a tenant/Licensee is not permitted to dispute the same unless he has surrendered the possession to the landlord/licensor.
29 The Hon'ble Supreme Court of India in Bans Lalta Prasad Vs. Stanlay Parkar John 2006, RLR, 200 (SC) has held that, " a tenant or licensee cannot deny title of the land lord or the licensor who gave them possession. They are estopped from doing so in any proceedings against them. They cannot contend that person who gave them possession had no title in the property"
Suit No. 32/2011/2006 Page no. 15 of 52 30 In the instant case, admittedly defendants were put into possession
of the suit property by the plaintiff. As per the plaintiff the status of the defendant is of a licensee whereas as per the defendants they are the tenant. However, fact remains that defendants got possession of the suit property from the plaintiff. Therefore, in view of Section 116 of Indian Evidence Act, they are Estopped from denying the title of the plaintiff with respect to the suit premises.
31 It is also relevant that DW-5 during his cross-examination has admitted that the lease of the suit property still stands in the name of Smt. Vidhya Wati, the predecessor in interest of the plaintiff. He has also admitted that letter Ex. DW-1/P7 dated 15.10.2009 was issued to the plaintiff with respect to the suit property whereby plaintiff has been called upon to remit the payment of Rs. 8,83,69,775/-. Vide that letter plaintiff has also been called upon to deliver the possession of the suit property within 15 days, otherwise necessary action shall be taken against him under P.P. Act. The letter Ex. DW-1/P7 thus clearly shows that actual physical possession of the suit property has not been taken by the L & DO or NDMC from the plaintiff till date.
32 The defendants have taken a plea that they came to know about the re-entry the suit property by L & DO on 19.02.2007, when they sought information under Right to information Act. However, DW-1 during his cross- examination has categorically admitted that he was aware about the letter dated 25.1.75 Ex. DW-1/D6 at the time when he filed an appeal in the MCD Tribunal Ex. DW-1/D5. The said appeal was filed sometime in the year 2000. DW-1 has also admitted during his cross-examination that he was aware about the factum Suit No. 32/2011/2006 Page no. 16 of 52 of re-entry by the L & DO prior to 2000. The aforesaid admission made by DW-1 during his cross-examination falsify the plea taken by the defendants in their written statement that they acquired knowledge qua the re-entry by L & DO in the suit property on 19.2.2007. The aforesaid fact clearly shows that defendants were well aware about the order dated 27.11.74 passed by the L & DO as well as about the notification dated 25.01.1975 issued by L & DO at the time when they took possession of the suit property from the plaintiff and now they are trying to take a false plea that they acquired knowledge of this fact subsequently.
33 When defendants were already having the knowledge that L & DO had issued a notification for re-entry in the suit property even before acquiring possession of the suit property from the plaintiff then they cannot be allowed to plead that any fraud being played upon them. It is also relevant to mention that although the order of re-entry was passed by L & DO on 25.01.1975, however, no further proceedings have been initiated either by the L & DO or NDMC for taking the physical possession of the suit property till date. Thus a letter dated 25.1.75 has not been acted upon either by the L & DO and NDMC and the actual physical possession of the property always remained with the owner or the occupier of the suit premises as admitted by DW-5.
In view of the above discussion my issuewise findings is as under: - 34 Issue no. 1: Whether the plaint is not maintainable in terms of notification issued by L & DO or NDMC as stated by the defendant in Para-1 of the preliminary objections: OPD The Defendants have failed to prove on record that suit is not Suit No. 32/2011/2006 Page no. 17 of 52 maintainable in terms of the notification issued by L & DO or NDMC whereas plaintiff has proved on record that notification issued by the NDMC dated 25.01.75 has not been acted upon till date and the physical possession of the suit property has always remained with the plaintiff or his agents. The present suit filed by the plaintiff against the defendants is thus maintainable. The defendants have failed to discharge the onus of issue no. 1, same is accordingly decided against the defendants.
35 Issue no. 2: Whether the plaintiff has played fraud on defendants No. 1 & 3 as stated in the written statement? If so, to what effect? OPD In view of my above discussion, I am of the considered view that defendants have failed to prove on record that plaintiff has played any fraud upon defendants as pleaded by them in their written statement. The defendants were well aware about the order of re-entry passed by L & DO, before entering into the possession of the suit property and the said fact has been concealed by the defendants deliberately. The defendants have thus failed to discharge the onus of issue no. 2, same is accordingly decided against the defendants.
36 Issue no. 5 A: Whether the plaintiff's suit is not maintainable in view of the letter dated 17.09.2007 issued by the NDMC ?
OPD In view of above facts and circumstances, I am of the considered view that despite issuing the notification by the L & DO, the actual physical possession of the suit property has always remained with the plaintiff or his agent and same has not been taken over either by the L& DO or by NDMC. The defendant has thus failed to prove on record that physical possession of the suit Suit No. 32/2011/2006 Page no. 18 of 52 property has been taken over by NDMC as mentioned in the letter dated 17.09.2007. DW-5 has admitted that no proceedings under PP Act have been initiated against the plaintiff or that the physical possession was never taken over either by the L & DO or by the NDMC. The defendants have thus failed to prove on record that the suit is not maintainable in view of the letter dated 17.09.2007. The defendants have failed to discharge the onus of additional issue no. 5-A, same is accordingly decided against the defendants.
37 Issue no. 3 : Whether the defendants took the suit property as tenants from the plaintiff w.e.f 1.1.2004 i.e two shops and one residential quarter at the rate of Rs. 42.60 p and Rs. 12/- respectively? If this issue is decided in favour of the plaintiff, in that eventuality, whether the plaintiff is entitled to protection under Section 50 of the DRC Act? OPD The Defendants have taken a plea that M/s Nathu Sweets of defendant no. 1 was inducted as a tenant in suit property by the plaintiff w.e.f 1.11.2004 on a monthly rent of Rs. 42.60 for two shops and Rs. 12 for quarter on payment of lumpsum amount of Rs. 10,000,00/. As per the defendants, plaintiff brought Smt. Usha Rani Gupta, the legal heir of erstwhile tenant to defendant no. 1 on or about 20.10.2001. Defendant no. 1 showed his intention of taking the suit property on rent, therefore, plaintiff requested defendant no. 1 to work out modalities with Smt. Usha Rani Gupta. Defendant no. 1 thereafter negotiated with Smt. Usha Rani and helped her in liquidating the stock lying in the suit premises. He had taken Smt. Usha Rani Gupta, her daughters and plaintiff alongwith Sat Narain Gupta to Sh. S.K. Singla advocate who drafted the papers such as surrender deed, letter to SHO etc. The plaintiff accepted a cash amount Suit No. 32/2011/2006 Page no. 19 of 52 of Rs. 10 lacs from defendant no. 1 and with the consent of the plaintiff Smt. Usha Rani Gupta delivered the possession of the suit property to defendant no.
1. The plaintiff assured defendant no. 1 that he has given new receipt for printing due to change of his address and he would subsequently send the rent receipt for w.e.f 1.11.2004 in the name of Nathu Sweets but he refused to send the receipt and made attempts to extort more money from the defendant.
38 The plaintiff controverted the said plea of the defendants and pleaded that plaintiff permitted defendants to use the suit property from 1.6.2005 for short term as licensee, however, defendant after the expiry of festival season failed to vacate the suit premises despite various requests.
39 An examination of the material placed on record shows that defendants have taken a plea that plaintiff brought Smt. Usha Rani Gupta to defendant no. 1 on or about 20 th October, 2004. The defendant no. 1 showed his interest in taking the suit property on that plaintiff requested him to work out the modalities with Smt. Usha Rani. He also agreed to let out the suit property to M/s Nathu Sweets on rent on the same rate of rent on payment of lumpsum amount. The plaintiff has controverted the said plea of the defendants.
40 In order to substantiate their plea defendants have examined defendant no. 1 as DW-1 who reiterated the said fact in para 3 of his examination in chief. During cross-examination he denied that plaintiff never informed him that Smt. Usha Rani Gupta wanted to sell the suit property. He also denied that plaintiff never agreed to let out the suit property to the defendants on payment of Suit No. 32/2011/2006 Page no. 20 of 52 lumpsum amount on previous rate of rent. He also denied that he never negotiated with Smt. Ushar Rani to get the suit property vacated.
41 Defendants have also examined Sh. Sat Narain Gupta as DW-7 who also reiterated the said fact in para 2 of his examination in chief. During cross-examination DW-7 deposed that he met plaintiff in the year 2007. He had gone to his house one or two times. He met plaintiff in the year 2007 at the time of death of his cousin Sh. Krishan Kumar Gupta for last. He had gone to his house one or two days after his death, again said the year was 2004 and not 2007. Three-four persons went to the plaintiff in his house in that connection. Date and month etc he does not remember. The plaintiff asked them to contact defendant no. 1 in this regard. This issue was discussed in 4-5 meetings.
42 Defendants have also examined Smt. Usha Rani Gupta as DW-8. she also reiterated the said plea in para 4 of her examination in chief. During cross-examination DW-8 briefly deposed that she cannot identify the signature at point A on Ex. DW-8/1. She does not know who brought document Ex. DW-1/10 to her. She also does not remember who prepared it and at whose instance it was prepared and where it was attested and by whom. She does not remember whether she has signed in any register. She denied that document Ex. DW-1/10 was only signed by her without knowing the contents and at the instance of defendant no. 1. She does not know where is the original of Ex. DW-1/10. She does not remember the exact date when she felt that she was unable to run the business in property in question. Firstly she spoke to all her daughters about it thereafter she discussed the said fact with her brother-in-law Sat Narain Gupta Suit No. 32/2011/2006 Page no. 21 of 52 thereafter he told that let them go to Sh. Sarvesh Chand Gupta. The aforesaid discussion started after 13 th day of the death of her husband.
43 To answer the plea of the defendants plaintiff examined himself as PW-1. During his cross-examination he denied that he alongiwth smt. Usha Rani Gupta met Arun Kumar Gupta on 20.10.2004. He also denied that he told defendant no. 1 that Smt.Usha Rani Gupta is desirous of vacating the suit property as she was unable to run the shop. He denied that defendant no. 1 showed his interest in taking the suit property. He also denied that he requested defendant no. 1 to work out modalities with Smt. Usha Rani and he agreed to give suit property to M/s Nathu Sweets as tenant on the same rate of rent on payment of lumpsum amount. He stated that in the last week of October 2004 Smt. Usha Rani told him that she was unable to run the business of chemist and was desirous of vacating the suit property. She told him so at his residence. He asked her if she wishes to continue in the tenanted premises she can continue, he has no objection and if she wishes to vacate the property on account of her inability as told by her she may tell the date by which she wants to vacate. He further stated that she did not give the date for vacating the suit property on the same day. On the following day, Smt. Usha Rani Gupta made a telephonic call to him and communicated that they have decided to vacate the suit property. He further stated that after 3-4 days he met her at the suit property where she was packing the goods.
44 An examination of the pleadings and evidence placed on record reveals that defendants have taken a plea that plaintiff brought Smt. Usha Rani Suit No. 32/2011/2006 Page no. 22 of 52 Gupta to defendant no. 1 on or about 20th October, 2004 and agreed to give suit property to M/s Nathu Sweets on rent on payment of lumpsum amount. The plaintiff has controverted the said plea and pleaded that he had never taken Smt. Usha Rani Gupta to defendant no. 1 and never showed his interest of accepting Nathu Sweets as his tenant. The question is as to whether plaintiff has taken Smt. Usha Rani Gupta to defendant no. 1 on or about 20.10.2004 or not where he agreed to admit M/s Nathu Sweets as his tenant. The defendants have not placed any material on record which can show or suggest that any such meeting had taken place on or about 20th October, 2004 except the oral testimony of DW-7 & DW-8 as well as an affidavit of Smt. Usha Rani Gupta Ex. DW-1/10. The plaintiff has also placed on record affidavits of by Smt. Usha Rani Gupta as well as her daughters Ex. PW-1/4 to Ex. PW-1/8 which were given by Smt. Usha Rani Gupta and her daughters at the time of vacating the suit property on 1.11.2004. A perusal of affidavit Ex. PW-1/4 to Ex. PW-1/8 clearly shows that Smt. Usha Rani Gupta and her family members themselves took a decision regarding dis- continuation of their business in a family meeting which was held on 24.10.2004. The said fact has been mentioned in all the affidavits Ex. PW-1/4 to Ex. PW-1/8. A perusal of these affidavits shows that Smt. Usha Rani Gupta and her family members have not taken any decision regarding continuation or dis-continuation of their business in the suit property up till 20.10.2004 but they had taken this decision in a family meeting which was held on 24.10.2004. Once Smt. Usha Rani Gupta & her family member had taken a decision to discontinue their business in a meeting held on 24.10.2004 then plaintiff could not have taken Smt. Usha Rani Gupta to defendant no. 1 on 20.10.2004 as pleaded by defendants. It is also relevant that defendants themselves have placed on Suit No. 32/2011/2006 Page no. 23 of 52 record a letter written by Smt. Usha Rani Gupta and her family member to the SHO, Tilak Marg which defendant no. 1 exhibited as Ex. DW-1/2 and was marked as Mark Z. A perusal of the said letter also shows that all the heirs of the original tenant late Sh. Krishan Kumar Gupta decided to close down their business in a family meeting held on 24.10.2004.
45 No doubt, that defendants have placed on record an affidavit of Smt. Usha Rani Gupta dated 6.10.2007 Ex. DW-1/10 in which Smt. Usha Rani Gupta deposed in para 4 that she approached plaintiff on 20.10.2004 and expressed her difficulty in continuation with the business and showed her desire to vacate the suit premises who took her to defendant no:1. A perusal of affidavit Ex. DW-1/10 shows that same is in complete variance of her earlier affidavit Ex. PW-1/4 as well as letter Mark Z. It is relevant to mention that Smt. Usha Rani DW-8 in her cross-examination showed her inability about the affidavit Ex. DW-1/10. She stated that he does not remember who prepared it and at whose instance same was got prepared. The original of the said affidavit has also not been produced on record. Smt. Usha Rani Gupta has admitted that she and her daughters deposed affidavit Ex. PW-1/4 to Ex. PW-1/8 at the time of vacating the suit premises. Once Smt. Usha Rani Gupta and her daughters had given their affidavits Ex. PW-1/4 to Ex. PW-1/8 at the time of vacating the suit property in which they have categorically deposed that they took decision to dis continue their business in a family meeting held on 24.10.2004 then what was the occasion for Smt. Usha Rani Gupta to give affidavit Ex. DW-1/10 to defendants during the pendency of the suit making contrary averment. The aforesaid fact clearly shows that affidavit Ex. DW-1/10 has been given by Smt. Usha Rani Suit No. 32/2011/2006 Page no. 24 of 52 Gupta at the instance of defendants and same cannot be taken into consideration. Beside Ex. DW-1/10 defendants have not placed any material on record to show that plaintiff took Smt. Usha Rani Gupta to defendant no. 1 on 20.10.2004 where plaintiff agreed to let out the suit premises to defendant no. 1.
46 In view of above facts and circumstances, I am of the considered view that defendants have failed to substantiate their plea that plaintiff brought Smt. Usha Rani Gupta to defendant no. 1 on or about 20.10.2004 where he agreed to accept M/s Nathu Sweets as his tenant on payment of lumpsum amount.
47 Defendants have further taken a plea that defendant no. 1 negotiated with Smt. Usha Rani and helped her in disposing off the stock lying in the suit premises. He had taken plaintiff, Smt. Usha Rani her daughters alongwith Sh. Sat Narain Gupta to Sh. Surya Kant Singla advocate at Delhi High Court who drafted the papers such as surrender deed, letter to SHO etc. The plaintiff has controverted the said plea.
48 In order to substantiate their plea defendant no. 1 examined himself as defendant no. 1 who reiterated the said fact in para 4 of his examination in chief. During cross-examination DW-1 briefly deposed that settlement of plaintiff and Usha Rani Gupta was initiated through him. It happened in October 2004. Date or week he does not remember. He has seen affidavits Ex. PW-1/4 to Ex. PW-1/8. He cannot identify the signatures of deponent as same has not been signed before him. He volunteered that same were typed in the chamber of Sh.
Suit No. 32/2011/2006 Page no. 25 of 52 Surya Kant Singla advocate at High Court of Delhi. He denied that none of these affidavits were typed in the chamber of Sh. Surya Kant Singla advocate. He stated that he had not gone through the affidavit of Smt. Usha Rani Gupta Ex. PW-1/4. He has gone through the affidavit of Usha Rani Gupta Ex. PW-1/10. The affidavit was handed over to him by deponent on her own after about one week of its execution. The date month or year he does not remember. He cannot say without seeing his record that original of Ex. DW-1/10 is with him or not.
49 Defendants have also examined Sh. Sat Narain Gupta as DW-7 who also reiterated the said fact in para 4 of his examination in chief. During cross-examination DW-7 briefly deposed that he does not know any advocate by the name of Surya Kant Singla. Again said he knows him as he had got some documents prepared from him. He does not know whether Sh. Surya Kant Singla advocate represented plaintiff or defendant in any case. He had met him for the first time in his chamber at High Court of Delhi after the death of Sh. Krishan Kumar Gupta in the year 2007 or 2008 in context of preparing some documents. He further stated that Smt. Usha Rani Gupta has desired that some one may purchase the stock lying in suit premises. The stock was not sold to plaintiff and it was not sold to defendant no. 1. He volunteered that later has assisted her in disposing it of. He further stated that he had gone to Surya Kant Singla advocate alongwith defendant no. 1 for preparing document.
50 Defendants have also examined Smt. Usha Rani Gupta as DW-8 she reiterated the said plea in para 5 of her examination in chief. During cross-
Suit No. 32/2011/2006 Page no. 26 of 52 examination she stated that she met Sh. Surya Kant Singla advocate for the first time when she signed the documents got prepared by Sh. Sat Narain Gupta. She does not know the number and nature of the documents signed by her or got prepared. All documents were signed on 31.10.2004. She denied that she did not sign any documents on a stamp paper on 31.10.2004. She volunteered that her children also signed on the same date i.e 31.10.2004. She does not remember if stamp paper for all the affidavit Mark S to W were not purchased up to 31.10.2004. She denied that affidavit Ex. PW-1/4 to Ex. PW-1/8 were signed and were got attested on 01.11.2004 at Patiala House court in the presence of her daughters, plaintiff, her son-in-law , Sh. Radhay Shyam Gupta and one advocate. She denied that Arun Kumar was neither present on 31.10.2004 nor did she deliver the suit property to Arun Kumar Gupta.
51 To answer the plea of the defendants, plaintiff has examined himself as PW-1. In his cross-examination PW-1 denied that defendant no. 1 negotiated with Smt. Usha Rani Gupta. He asked Smt. Usha Rani that she should prepare the affidavit of all the persons. He also asked her that she should pay the outstanding bill till 31.10.2004. He asked her to get prepare five affidavit i.e herself and her four daughters. He asked her to got surrender deed from Radhay Shyam Gupta. He further stated that he met all the four daughters of Usha Rani Gupta on 1.11.2004. He had seen the affidavit and surrender deed on 1.11.2004. They were not signed but was typed on non-judicial stamp papers. He has seen those stamp papers in Patiala House Court as he was called there by Smt. Usha Rani Gupta telephonically. The meeting was fixed at the main gate of the court complex abutting India gate. He does not know if Arun Kumar had Suit No. 32/2011/2006 Page no. 27 of 52 taken Usha Rani Gupta, her daughters and one Sh. Sat Narain Gupta to Sh. Surya Kant Singla advocate for drafting the papers. He denied that he had accompanied them to Sh. Surya Kant Singla advocate.
52 An examination of the material placed on record shows that defendants although have taken a plea that defendant no. 1 negotiated with Smt. Usha Rani Gupta and helped her in liquidating the stock lying in the suit premises, however, they have not placed any material on record which can show or suggest that any such negotiation was taken place between defendant no. 1 or Smt. Usha Rani Gupta. They has also failed to place any material which can show or suggest that stock lying in the suit premises was being liquidated by defendant no. 1 or Smt. Usha Rani Gupta was paid any amount for said stock which was lying in the suit premises.
53 The defendants have taken a plea that defendant no. 1 took plaintiff and Smt. Usha Rani Gupta to Sh. Surya Kant Singla advocate for preparation of necessary documents. The said plea of the defendants has been controverted by the plaintiff in the corresponding para of the replication. To substantiate their plea defendant no. 1 has examined himself as DW-1, however he failed to identify the signature of Smt. Usha Rani Gupta on affidavit Ex. PW-1/4 to Ex. PW-1/8 on the ground that same were not signed by Smt. Usha Rani Gupta in his presence. The defendants have also examined Sh. Sat Narain Gupta in support of their case. The said witness in his cross-examination has not supported the plea put forth by the defendants. He had firstly showed his inability to identify any advocate by the name of Surya Kant Singla, thereafter he Suit No. 32/2011/2006 Page no. 28 of 52 corrected himself and said that he had met him first time in the year 2007-08 whereas affidavit Ex. PW-1/4 to Ex. PW-1/8 were got prepared in the year 2004. The testimony of DW-7 thus does not support the plea of the defendants. Similarly DW-8 Smt. Usha Rani Gupta has also deposed that she met Surya Kant Singla advocate and signed affidavit on 31.10.2004 whereas the stamp papers for the affidavit Ex. PW-1/4 to 8 were purchased on 1.11.2004, which is mentioned at the reverse side of those stamp papers. Once the stamp papers for these affidavits were purchased on 1.11.2004 then how come sh: Surya Kant Singla adovcate prepared these affidavits and Smt Usha Rani Gupta DW-8 and her daughters put their signature on 31.10.2004 remained unexplained.
54 It is also relevant to mention here that affidavit Ex. PW-1/4 to Ex. PW-1/8 no where stipulates that these documents were drafted by Sh. Surya Kant Singla advocate. In these circumstances Sh. Surya Kant Singla advocate who stated to have drafted these affidavit as per the defendants was the most vital witness who could have proved the fact that defendant No. 1 had brought Smt. Usha Rani Gupta and plaintiff alongwith Sat Narain Gupta to him to get prepare these documents. However, defendants have failed to examine Sh. Surya Kant Singla advocate in support of their plea for the reason best known to them. They have thus withheld the said witness for the reason best known to them.
55 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that defendant no. 1 had taken plaintiff, Smt. Usha Rani Gupta and her daughters to Sh. Surya Kant Singla, advocate, who drafted affidavits Ex PW1/4 to PW1/8.
Suit No. 32/2011/2006 Page no. 29 of 52 56 The defendants have further taken a plea that they came in
possession of the suit premises w.e.f 1.11.2004 as a tenant. The plaintiff has controverted the said plea and pleaded that defendants were allowed to use the suit premises w.e.f 1.6.2005 for coming festival season but thereafter they failed to vacate the suit premises.
57 In order to prove their plea defendant no. 1 examined himself as DW-1. During cross-examination DW-1 stated that he has no written evidence with him to show that possession of the suit property was taken by him. He further stated that it was taken from Usha Rani Gupta in the presence of plaintiff. He further stated that he has electricity and water bill to establish his possession in the suit property for the period onwards November 2005 to May 2006. He admitted that he was not in position in August 2004. He does not remember whether he paid water and electricity bill for August 2004 to October 2004.
58 Plaintiff has examined himself as PW-1. During cross-examination PW-1 stated that he did not pay bills of consumption of electricity or water in respect of suit property for the period from 1.11.2004 to May 2005 since he did not receive any bill. He denied that electricity and water bills for the suit property were received and paid by defendant. He admitted that Ex. PW-1/DA to Ex. PW-1/DT are the electricity bills and receipt of the suit property. He denied that bills have been paid by the defendants. He stated that defendants deposited the money after taking the same from the plaintiff.
Suit No. 32/2011/2006 Page no. 30 of 52 59 An examination of the material placed on record shows that
defendants were in possession of the electricity bill and receipt Ex. PW-1/DA to DT qua the suit property on basis of these bills defendants have sought to raise a plea that they were in possession of the suit property since 1.11.2004 as a tenant. However, bills Ex. PW-1/DI, DJ & DK are for the period from August to October 2004 when admittedly the erstwhile tenant of the plaintiff was in possession of the suit premises. How these bills came into the possession of the defendants remained unexplained. But, fact remains that defendants have produced the electricity bill from November 2004 to May 2005. These bills itself do not show that defendants were put into possession over the suit property w.e.f 1.11.2004. However, these bills surely suggest that defendants have paid these bills and therefore it can be assumed that defendants were dealing with the suit property during that period. However, merely on the basis of these bills it cannot be assumed that defendants were inducted as tenant in the suit premises w.e.f 1.11. 2004 onwards.
60 The defendants have further taken a plea that plaintiff inducted M/s Nathu Sweet of defendant no. 1 as a tenant in the suit property on the same rate of rent, after accepting Rs. 10,000,00/- in cash from defendant no. 1. They further pleaded that plaintiff settled the rent with Smt. Usha Rani Gupta up to 31.10.2004 and with the consent of the plaintiff, Smt. Usha Rani delivered the vacant possession of the suit premises to defendant no. 1. The plaintiff has controverted the said plea.
Suit No. 32/2011/2006 Page no. 31 of 52 61 In order to substantiate their plea, defendants have examined
defendant no. 1 as DW-1 who reiterated the said fact in para 5 of his examination in chief. During cross-examination DW-1 admitted that he as well as their firm are income tax assessee and filing income tax return. He stated that it is not necessary that all the payments made to the landlord are shown in those income tax returns. He further stated that Nathu Sweets maintain its account. All the payments made to the plaintiff are not shown in the books of accounts. They used to make payment to the plaintiff through cheques as well as in cash. All the payments made by cheques got encahshed. He denied that they never made payment in cash. He had never taken receipt from the plaintiff against payment made in cash. They have not maintained any account of payments made to the plaintiff in cash from time to time. He has no written evidence to show that any such payment made to the plaintiff in cash from time to time. There is no written agreement about terms and condition of the tenancy. He further stated that in income tax return filed by Nathu Sweet, the rent paid about suit property is shown. He cannot say that he had mentioned about the suit property having taken on rent by Nathu Sweets in his income tax return for the year 2005-06. He further stated that in all such returns suit property has been shown having taken on rent. He can produce the copy of income tax return if asked. He denied that he was not present at spot when suit property was being vacated on 31.10.2004 at about 7 p.m. He also denied that he did not pay Rs. 10 lacs in cash to the plaintiff. He denied that he was not having Rs. 10 lacs with him in October/November, 2004. He cannot say without checking account whether such amount was in the credit of Nathu Sweets. He further stated that said Rs. 10 lacs was not withdrawn from any account but was in cash with him.
Suit No. 32/2011/2006 Page no. 32 of 52 He admitted that he has not filed copy of account on record. Same is also not brought by him today. He denied that suit property was never rented out in his favour or in faovur of Nathu Sweets or any other defendants. He also denied that Smt. Usha Rani Gupta never handed over possession of the suit property to him or Nathu Sweets with the consent of plaintiff.
62 Defendants have also examined Sh. Sat Narain Gupta as DW-7 who reiterated the said fact in para 5 of his examination in chief. During cross- examination DW-7 deposed that in view of the handing over the possession, Smt. Usha Rani did not receive any money. He knows that Smt. Usha Rani had written a document giving actual possession of the suit property to the defendant. He had seen receipt Ex. DW-1/D2 and Ex. DW-1/D4 these documents do not bears signatures of Usha Rani at point X reverse side of the document. He has no knowledge that Smt. Usha Rani ever paid rent of suit property to the land lord. He further stated that physical possession of the suit property was handed over to plaintiff at spot by handing over the keys. He volunteered that then keys of the same were handed over by the plaintiff to defendant no. 1. A document was also executed in this regard at the spot. He further stated that in the said transaction of handing over suit property defendant no. 1 paid Rs. 10 lacs to plaintiff at spot. He denied that no such amount was paid to the plaintiff or that he is deposing falsely at the instance of the defendants. He denied that he was not present on 31.10.2004 when the suit property was vacated. Plaintiff never gave any rent receipt to Usha Rani before him again said he does not remember whether plaintiff ever gave any receipt to Usha Rani before him.
Suit No. 32/2011/2006 Page no. 33 of 52 63 Defendants have also examined Smt. Usha Rani Gupta as DW-8
who reiterated the said fact in para 6 of her examination in chief. During her cross-examination she briefly deposed that except rent receipt Ex. DW-1/D2 and Ex. DW-1/D4 no other receipt was given to her. She had not given any money to the plaintiff on the date when Ex. DW-1/D2 and Ex. DW-1/D4 were given. Again said only rent was paid. She does not remember whether she had any receipt with regard to the payment of electricity. She does not remember if electricity charges for the month of August to October 2004 were paid on the date of delivery of possession. She further stated that neither she nor Sat Narain Gupta demanded any money of any nature from plaintiff for vacating the suit property. She and her children have not taken single penny from any one including plaintiff for vacating the suit premises. She denied that possession of the suit property was handed over to the plaintiff by her. She also denied that Arun Kumar Gupta was neither present on 31.10.2004 nor did she delivered the possession of the suit property to Arun Kumar Gupta with the consent of the plaintiff. She denied that she has falsely deposed that Arun Kumar Gupta paid a sum of Rs. 10 lacs in cash to the plaintiff.
64 The plaintiff has examined himself as PW-1 who briefly deposed in his cross-examination that he received rent in respect of suit premises after the demise of Sh. Krishan Kumar Gupta from his widow Smt. Usha Rani Gupta on 31.10.2004. He issued the rent receipt for the rent so received in the name of Sh. Krishan Kumar Gupta. He further stated that he met all the four daughters of Usha Rani Gupta on 1.11.2004. He admitted that he did not give any monetary consideration to Usha Rani Gupta, her family and Radhey Shyam Gupta for Suit No. 32/2011/2006 Page no. 34 of 52 getting the suit property vacated. He denied that defendant no. 1 gave cash sum of Rs. 10 lacs to Usha Rani Gupta on 31.10.2004 in his presence. He also denied that actual physical possession of the suit property on 31.10.2004 came into the hand of Arun Kumar Gupta of Nathu Sweets. He stated that about 80 to 85 % of the goods had been moved out the suit property on 31.10.2004 and the remaining was removed on 1.1.2004. He denied that having regard to the payment made on behalf of Nathu Sweets by Arun Kumar Gupta for getting the suit premises vacated, he accepted Nathu Sweets as his tenant orally w.e.f 1.11.2004 at the old rate of rent i.e Rs. 42.60 for two shops and Rs. 12/- for quarter no. 61.
65 An examination of the pleadings, evidence and other material placed on record reveals that defendants have taken a plea that plaintiff accepted Nathu Sweets as his tenant in the suit property after accepting a cash amount of Rs. 10 lacs as Pagri on a previous rate of rent. The onus to prove the fact that defendants paid a sum of Rs. 10 lacs in cash to the plaintiff and in lieu of that plaintiff accepted them as their tenant is upon the defendants. However, defendants have not placed any documentary evidence whatsoever which can show or suggest that defendants ever paid Rs. 10 lacs in cash to the plaintiff pursuant to which M/s Nathu Sweets was inducted as a tenant in the suit property w.e.f 1.11.2004. It is pertinent to mention that defendants have taken a plea that plaintiff had agreed to accept defendant no. 1 as his tenant on payment of lumpsum amount. They further pleaded that defendant no. 1 had taken plaintiff and Smt. Usha Rani Gupta to Sh. Surya Kant Singla advocate who drafted the necessary document. If that was the case, then why defendant no. 1 Suit No. 32/2011/2006 Page no. 35 of 52 did not get prepare a rent note/lease deed in his favour or at least a receipt of Rs. 10,000,00/- stated to have been paid by him to the plaintiff. The said fact itself raises a doubt about their plea. The defendant no. 1 has examined himself as DW-1. In his cross-examination DW-1 has stated that he and his firm are income tax assessee and has been maintaining accounts books. He further deposed that in the income tax return of Nathu Sweet the rent paid qua suit property has been shown. He further stated that in the income tax return the suit property has been shown having taken on rent. However defendants have neither placed on record their income tax returns, nor they placed the income tax return of Nathu Sweet. As per DW1 suit premises has been shown having taken on rent in the income tax returns of M/s Nathu sweets,thus the income tax returns of said firm is a vital piece of evidence which could have substantiated the plea put forth by the defendants. But defendants have withheld the said returns for the reason best known to them.
The defendants have also not placed on record their statement of account in order to show that an amount of RS 1,00,000/ was ever available with defendant no. 1 in cash or was ever paid by him to the plaintiff. It was incumbent for the defendants to prove on record by leading sufficient evidence that they were having Rs. 10,000,00/- in cash available with them and that said amount was paid to the plaintiff in lieu of which plaintiff accepted defendant no. 1 as his tenant. However, defendants have not produced an iota of evidence to show that they were having Rs.10,000,00/- in cash and same was paid to the plaintiff. In the absence of any proof in this regard, their plea that defendant no. 1 paid Rs. 10,000,00/- in cash to plaintiff remained un-substantiated.
Suit No. 32/2011/2006 Page no. 36 of 52 66 The defendants sought to prove their above plea on the basis of the
oral testimony of DW-1, DW-7 & DW-8. DW-7, Sh. Sat Narain Gupta has deposed that Smt. Usha Rani Gupta had written a document giving actual possession of the suit property to the defendants. The document stated to have been executed by Smt. Usha Rani Gupta as per DW-7 has not been produced on record. DW-7 further stated that actual possession of the suit property was handed over by the plaintiff to defendant no. 1 and a document was executed in this regard at the spot. However, the said document has also not been placed on record. DW-1 has also not averred a word with respect to these documents in his testimony. It is also relevant to point out that DW-7 in his cross-examination deposed that receipts Ex. DW-1/D2 and Ex. DW-1/D4 do not bear the signature of Smt. Usha Rani at point X reverse side of the document. Whereas Smt. Uaha Rani Gupta, during her cross-examination has admitted her signatures at point A on Ex. DW-1/D2 & Ex. DW-1/D4. Thus there are contradiction in the testimony of DW-7 and DW-8 regarding the execution of rent receipt Ex. DW-1/D2 & Ex.DW-1/D4. Except the oral testimony of DW-1, DW-7 and DW-8, the defendants have not placed any material whatsoever which can show or suggest that defendant no.1 was having Rs.10 lacs available with him or that he paid Rs. 10 lacs in cash to the plaintiff in lieu of which plaintiff inducted Nathu Sweets as tenant with respect to the suit property.
67 In order to answer the said plea put forth by the defendants, plaintiff examined himself as PW-1. He has been thoroughly cross-examined by the defendants, however, defendants have neither carried out any cross-examination of PW-1 on this aspect nor given any suggestion to PW-1 that defendant no. 1 Suit No. 32/2011/2006 Page no. 37 of 52 paid him Rs. 10 lacs in cash in lieu of which he accepted M/s Nathu Sweets as his tenant. In the absence of any suggestion or confrontation of PW-1 qua the said plea, the averment of the defendants that they paid Rs. 10 lacs in cash to the plaintiff in lieu of which plaintiff accepted M/s Nathu Sweets as his tenant remained un-substantiated and un-proved.
68 The defendants have not given any suggestion to PW-1 regarding the said fact .On the contrary PW-1 was given a suggestion that defendant no. 1 gave cash sum of Rs. 10 lacs to Smt. Usha Rani Gupta on 31.10.2004 in his presence. The said suggestion has been denied by the plaintiff.
69 Ld. counsel for the defendants contended that said suggestion has not been correctly recorded and some typographical error has erupted. He further contended that a suggestion was given that Rs. 10 lacs was given to the plaintiff. But it was typed that same was given to Smt. Usha Rani Gupta. Per contra Ld. counsel for the plaintiff contended that no typographical error has erupted in recording the cross-examination of PW-1. He further contended that said suggestion has been rightly recorded which is clear from the reading of the said suggestion itself.
70 I have heard both the ld. Counsel of the parties and perused the cross-examination of PW-1. Perusal of the entire cross-examination of PW-1 shows that the said suggestion has been correctly recorded and no typographical error has erupted in recording the said suggestion. It is relevant to point out that even on earlier occasion defendants have given following suggestion to PW-1 Suit No. 32/2011/2006 Page no. 38 of 52 that "it was in the knowledge of plaintiff that defendant no. 1 negotiated with Usha Rani Gupta and Radhey Shyam Gupta for getting the suit property vacating and he also paid monetary consideration for the same". The said suggestion has also been denied by PW-1. Thereafter defendants gave the questioned suggestion that defendant no. 1 gave cash sum of Rs. 10 lacs to Smt. Usha Rani Gupta on 31.10.2004 in his presence" which has been also denied by PW-1. The cross-examination of PW-1 further shows that defendants gave another suggestion to PW-1 that "having regard to the payment made on behalf of Nathu Sweet by Arun Kumar Gupta for getting the suit property vacated he accepted Nathu Sweet as his tenant w.e.f 1.11.2004". The said suggestion has also been denied by PW-1.
71 A perusal of the entire testimony of PW-1 clearly reveals that suggestion given by the defendants to PW-1 have been correctly recorded and no typographical error has erupted in recording such suggestion as contended by ld. counsel for the defendants, therefore, the contention of ld. counsel for defendants that some typographical error has erupted in recording the suggestion given to PW-1 is rejected.
72 All these suggestion clearly shows that defendants were trying to put forth a plea that defendant no. 1 got the suit property vacated by paying substantial amount to Smt. Usha Rani and Radhey Shyam Gupta. But defendants have not averred a word in the entire written statement that they paid any such amount to Smt. Usha Rani Gupta & Radhey Shyam Gupta for getting the suit property vacated from them. Therefore same is beyond the pleadings.
Suit No. 32/2011/2006 Page no. 39 of 52 Moreover defendants themselves have examined DW-7 & DW-8 who categorically deposed that neither Smt. Usha Rani nor her legal heirs received any amount either from the plaintiff or from any other person. In the absence of any pleading and proof, the plea sought to be put forth by defendants remained unproved.
73 The aforesaid fact clearly shows that defendants have not placed any material on record on the basis of which it can be assumed that defendant no. 1 was ever inducted as tenant in the suit property. The defendants have thus failed to prove on record that they ever paid a sum of Rs.10,000,00/- in cash to the plaintiff in lieu of which plaintiff accepted M/s Nathu Sweet of defendant no. 1 as his tenant in the suit premises on the previous rate of rent. They have also failed to prove that Smt. Usha Rani delivered the possession of the suit premises to defendant no. 1 with the consent of the plaintiff on 31.10.2004.
74 The defendants have further taken a plea that plaintiff told defendant no. 1 that he had given new receipt for printing due to change of his residence and that he would subsequently issue receipt for the suit property w.e.f 1.11.2004 in the name of Nathu Sweets but he refused to send the receipt and made attempt to extort more money from the defendants. The plaintiff has controverted the said plea of the defendants.
75 An examination of the material placed on record shows that defendants sought to raise a plea that plaintiff did not issue rent receipt in favour of Nathu Sweet on the ground that he had given the rent receipt for printing and Suit No. 32/2011/2006 Page no. 40 of 52 assured that he would subsequently deliver the the same to the defendants. The said plea put forth by the defendants is not acceptable for the simple reason that plaintiff had issued rent receipt Ex. DW1/D2 and Ex. DW-1/D4 to Smt. Usha Rani Gupta when she handed over the possession of the suit premises. The plaintiff has placed on record the entire rent receipt book Ex. DW-1/D1 out of which receipt Ex. DW1/D2 & Ex. DW-1/D4 were given to Smt. Usha Rani Gupta. A Perusal of the receipt book Ex. DW-1/D1 clearly shows that the said book was filled only up to serial no. 24 and half of the leaf of the said rent receipt book were available on that day. Even the receipt at serial no. 25 Ex. DW-1/D5 was issued on 27.03.2005, thus the rent receipt was very much available with the plaintiff at the time when Smt. Usha Rani Gupta had delivered the possession of the suit premises. If defendant no. 1 was present at the spot when Smt. Usha Rani Gupta delivered vacant possession of the suit premises to the plaintiff, he must have known that the rent receipt were readily available with the plaintiff in the rent receipt book Ex. DW-1/D1 and same could have been issued to defendant no. 1. However, no such rent receipt was issued in favour defendant no. 1. The said fact clearly shows that defendant No. 1 was never inducted as a tenant in the suit property.
76 The plea taken by the defendants does not inspire confidence because from 31.10.2004 till the filing of the suit, defendants have not taken any action whatsoever against the plaintiff when he has not supplied the rent receipt. Moreover, defendants have not placed any material on record which can show or suggest that any rate of rent was agreed between the plaintiff and the defendants or that defendants ever paid any rent to the plaintiff at any point of time.
Suit No. 32/2011/2006 Page no. 41 of 52 77 In the written statement defendants have stated that Rs. 10 lacs
was given in cash to the plaintiff for inducting M/s Nathu Sweets as a tenant whereas in his examination in chief DW-1 sought to raise a plea that the said amount of Rs. 10 lacs also includes two months rent of the suit premises. The said plea that Rs. 10 lacs includes two months rent of the suit premises has not been taken in the written statement, therefore, same is beyond the pleadings. Moreover defendants have failed to prove on record that they ever paid any such amount as pleaded by them to the plaintiff at any point of time. The defendants have also not placed any material on record which can show or suggest that they ever paid any rent to the plaintiff with respect to the suit property at any point of time.
78 It is also relevant to mention that DW-1 in para 14 & 15 of his examination in chief has deposed that he on behalf of Nathu Sweets tendered rent to NDMC for the period commencing from 1.11.2004 to 31.03.2008 on 6.3.2007 vide cheque no. 009861 dated 6.3.2008 for Rs. 2238/-. He has further pleaded that he has been regularly deposing rent with the NDMC qua the suit property and the rent for the period on 1.4.2009 to 31.03.2010 has been deposited by him with NDMC. During cross-examination DW-1 deposed that he never sought any permission from the court to deposit rent with NDMC. The said testimony of DW-1 made in para 14 & 15 in examination in chief thus clearly reveals that defendant no. 1 has never tendered any rent whatsoever to the plaintiff with respect to the suit property at any point of time. The defendants in their written statement pleaded that defendants tendered rent to NDMC from 1.11.2004 to 31.03.2008. The rent has been accepted and an I.D number has Suit No. 32/2011/2006 Page no. 42 of 52 also been allotted to the defendants for depositing future rent. However, DW-6 Hardeep Singh in his cross-examination has deposed that no separate account was opened for depositing amount. He admitted that amount was deposited in the I.D allotted to Smt. Vidhyawati. The said testimony of DW-6 clearly shows that no separate I.D was allotted to defendants by the NDMC as pleaded by them in their written statement. The defendants have unilaterally deposited the rent with the NDMC that too in the I.D allotted to the predecessor in interest of the plaintiff during the pendency of the suit without any permission from the court. The above unilateral act of the defendants of depositing amount with NDMS without the consent of the plaintiff is of no consequences .
79 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that plaintiff inducted M/s Nathu Sweet of defendant no. 1 as tenant in the suit property. The defendants have further failed to prove on record that they paid an amount of Rs. 10,000,00/- in case to plaintiff for accepting defendant no. 1 as his tenant. The defendants have also failed to prove on record that any rent was ever agreed or paid by the defendants to the plaintiff. The defendants have thus failed to discharge the onus of issue no. 3, same is accordingly decided against the defendants.
80 Issue no. 4: Whether suit property is not valued for the purpose of court fees and jurisdiction as pleaded in the written statement filed by the defendants ? OPD The Plaintiff has valued the suit property for the purpose of court Suit No. 32/2011/2006 Page no. 43 of 52 fees and jurisdiction qua the relief of possession at Rs. 12 lacs and requisite court fees has been paid in the plaint. The defendants have disputed the said valuation in para 3 of the preliminary objection and taken a plea that value of the suit property is more than Rs. 50 lacs and therefore this court has no pecuniary jurisdiction to entertain the suit.
81 The onus to prove the fact that the value of the suit property is more than 50 lacs is upon the defendants. Besides the oral averment made in the written statement that the value of the suit property is more than Rs. 50 lacs, they have not led any evidence to show that suit was not properly valued for the purpose of court fees and jurisdiction for the relief of possession. Defendants have not placed any material whatsoever on record which can show or suggest that the value of the suit property is not Rs. 12 lacs but more than Rs. 50 lacs as pleaded by them in their written statement. In the absence of any evidence led by the defendants, it cannot be said that suit has not been valued properly by the plaintiffs for the relief of possession.
82 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction qua the relief of possession. Defendants have thus failed to discharge the onus of issue no. 4 same is accordingly decided against them.
83 Issue no. 5: Whether the plaintiff is entitled to relief of possession in respect of the suit property as prayed in the plaint? OPP Suit No. 32/2011/2006 Page no. 44 of 52 The Plaintiff has taken a plea that in May, 2005 defendants requested him to give suit property for coming festival season. On their request, plaintiff permitted them to occupy the suit premises for a short period from 1.6.2005. The defendants were required to remove their belongings after the expiry of festival season but they failed to do so despite various requests made by the plaintiff, consequently plaintiff withdrew permission vide legal notice dated 2.8.2006 and defendants were called upon to vacate the suit premises. The said notice was duly served upon the defendants. However, despite the service of the legal notice, defendant have failed to vacate the suit premises thus made themselves liable for the decree.
84 The defendants have taken a plea that M/s Nathu Sweets of defendant no. 1 was inducted as a tenant in suit property by the plaintiff w.e.f 1.11.2004 on a monthly rent of Rs. 42.60 p.m for the shops and Rs. 12 p.m for quarter. As per the defendants Smt. Usha Rani Gupta, one of the legal heir of the previous tenant was desirous of vacating the suit premises. The Defendant no. 1 showed his intention of taking the suit property therefore plaintiff requested him to work out the modalities with Smt. Usha Rani Gupta. He also agreed to let out the suit property to Nathu Sweets of defendant no. 1 on the same rate of rent which was being paid by the previous tenant on payment of lumpsum amount of Rs. 10 lacs. As per the defendants they are occupying the suit property as tenant.
85 While deciding issue no. 3, I have already held that defendants have failed to prove on record that defendant no. 1 was inducted as a tenant in Suit No. 32/2011/2006 Page no. 45 of 52 the suit premises by the plaintiff at any point of time or that they ever paid any amount towards the rent or lump sum amount as pleaded by them. Thus there exist no relationship of land lord and tenant between the parties.
86 The status of the defendants in the suit property is thus of a licencee. The permission so granted by plaintiff to defendants to occupy the suit property has been withdrawn vide legal notice Ex. PW-1/9 which was sent through registered post and UPC at the correct address of the defendant. The A.D card Ex. PW-1/14 to 16 have also been received. Defendants in their written statement denied that they received legal notice dated 2.8.2006 Ex. PW-1/9. However, DW-1, during his cross-examination admitted that they received a notice Ex. PW-1/9. Moreover the notice Ex. PW-1/9 was sent at the correct address of the defendants through registered post thus as per Section 27 of General Clause Act 1897 the service of said notice can be presumed. Thus the legal notice Ex PW1/9 was duly served upon the defendant . But despite the service of the legal notice Ex. PW-1/9, defendants have neither gave any reply to the said notice nor vacated the suit premises.
The Hon'ble High Court in "Kalu Ram Vs. Sita Ram" reported as 1980 RLR 34 (Note) 44 has held that, "If plaintiff before filing suit makes serious assertions in a notice to defendant, then, defendant must not remain silent by ignoring to reply. If he does show then adverse inference may be raised against him."
87 In the instant case plaintiff has served a legal notice Ex. PW-1/9 upon the defendants making assertion that possession of the suit property was Suit No. 32/2011/2006 Page no. 46 of 52 given to them as licensee for coming festival season but they failed to vacate the suit premises despite various requests. By way of said legal notice defendants were called upon to deliver the possession of suit premises failing which they shall be liable to pay damages. The said notice has been duly served upon the defendants. However, defendants have not given any reply of the same. Thus the averment made in the said legal notice deemed to have been admitted by the defendants.
88 In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that he permitted the defendants to occupy the suit property for short period, however, defendants failed to vacate the suit premises despite various requests. The licence so granted by the plaintiff to the defendants has been revoked vide legal notice Ex. PW-1/9 which was duly served upon the defendants, however, despite the service of the legal notice, defendants have failed to vacate the suit premises. Thus, made themselves liable for the decree. The plaintiff has successfully discharge the onus of issue no. 5, same is accordingly decided in favour of the plaintiff .
89 Issue no. 6:Whether the plaintiff is entitled to decree of damages at the rate of Rs. 1,50,000/- per month as prayed in the suit ? OPP The plaintiff has claimed damages/msene profit @ Rs. 1,50,000/- per month. As per the plaintiff the suit property can very well fetch rent of Rs. 1,50,000/- per month, if same is let out. The defendants, however, denied the above fact in para 11 of the written statement.
Suit No. 32/2011/2006 Page no. 47 of 52 90 In order to prove his case plaintiff has examined himself as PW-1
and reiterated the said fact in para 10 of his examination in chief. During cross- examination PW-1 denied that defendants are not liable to pay occupation charges @ Rs. 1.5 lacs per month as claimed by him.
91 The defendant no. 1 has examined himself as DW-1. In his cross- examination DW-1 stated that the area of the suit property is about 1000 sq ft. He stated that rate of rent in the market was about 12-14 per sq ft in the year 2004. He again said 12-14 per shop at old rate. He further stated that he has no written evidence to show that market rate of the similar shops in Bengali Market was not more than Rs. 150/- in the year 2004. He denied that defendants are liable to pay use and occupation charges @ 1.5 per month after the termination of the license.
92 An examination of the pleadings and evidence placed on record shows that plaintiff is the owner of the suit property. The plaintiff has also proved on record that he allowed the defendants to occupy the suit property as a licencee, the said license has been terminated by the plaintiff vide legal notice Ex. PW-1/9 which has been duly served upon the defendants, however, defendants have neither reply the said legal notice nor delivered the possession of the suit premises even after revocation of their license and continue to occupy the suit property. Thus, the occupation of the defendants in the suit premises after revocation of the license is un-authorised for which they are liable to pay damages.
Suit No. 32/2011/2006 Page no. 48 of 52 93 Mesne profit being in the nature of damages, no invariable rule
governing their award and assessment in every case can be laid down and the court may mould it according to the justice of the case. Even so, one broad principle governing the liability for mene profit is discernible from Section 2(12) of code of civil procedure which defines mesne profit to mean, " those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not includes profits due to improvements made by the person in the wrongful possession". From a plain reading of this definition it is clear that wrongful possession of the defendants is the very essence of a claim for mesne profit and foundation of the defendants liability. The Hon'ble Delhi High Court in Vinod Khanna & Others Vs Bakshai Sachdeve (deceased) through L.Rs & others reported as AIR 1996, Delhi-32 has held that " it is well known fact that the amount of rent for various properties in an around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact abuot such increase of rent in the premises in Delhi which is the city of growing importance being the capital of country which the matter of pubic history.
94 The plaintiff has claimed that the suit property could have fetched Rs. 1.5 lacs per month at the time of filing of the suit. However he has not placed any material on record which can show or suggest that suit premises could have fetched that much rent in the year 2004. Similarly defendants have also not produced any material which can show or suggest as to how much rent the suit property could have fetched at the time of filing of the suit. It is relevant to point out that DW-1 during his cross-examination has although denied that suit Suit No. 32/2011/2006 Page no. 49 of 52 property could have fetched Rs. 1.5 lacs at the time of filing of the suit, however, when the question was put to him as to what was the rate of rent in their market in the year 2004, the said witness replied that it was about 12-14 per sq ft, however he rectified his answer and stated that Rs. 12-14 per shop as per old rent. The deposition of DW-1 that prevalent rate of area in the vicinity in 2004 was Rs. 12-14 per shop is not acceptable for the simple reason that even the rent of the suit property consisting of two shops was Rs.42.50 paise per month which was old tenancy therefore the rent of the shop could not have been Rs. 12-14 per month in the said area.
The DW-1 has also stated that the rate of rent in their market was around Rs. 12-14 per sq ft in the year 2004. The said rate of rent appears to be a reasonable one. It is well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and a judicial notice can be taken about such increase of rent. The suit premises is situated in Bengali Market area consisting of two shows and a quarter though in no circumstances the prevailing rate in the vicinity would be less then Rs. 12-14 per sq feet as deposed by DW-1 in his cross-examination.
95 Taking into consideration the aforesaid facts and circumstances, I am of the considered view that in no circumstances, the suit property can fetch less than Rs. 12 per sq ft per month as rent at the time of filing of the present suit thus I hold the plaintiff entitled to recover mesene profit/damages @ Rs. 12,000/- per month from the date of filing of the suit till the actual delivery of the possession of the suit premises. Issue no. 6 is accordingly decided in favour of the plaintiff.
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96 Issue no. 7: Whether the plaintiff is entitled to the relief of injunction
as prayed in the suit ? OPP
The plaintiff has taken a plea that defendants intend to deliver the possession of the suit premises to some anti social elements thereby creating further problem for plaintiff. Defendants have controverted the said plea in the corresponding para of their written statement.
97 The plaintiff has examined himself as PW-1 and reiterated the said fact in para 11 & 12 of his examination in chief. During cross-examination PW-1 deposed that in July 2006 the defendants threatened to give possession but he cannot say to whom. He further stated that he cannot tell the date etc of the said incident. The defendant no. 1 examined himself as DW-1, during cross- examination he denied that defendant threatened to transfer the possession of suit property to land grabbers.
98 An examination of the pleadings and evidence led by both the parties shows that plaintiff has not placed any material on record on the basis of which it can be ascertain that defendants ever extended any threat to the plaintiff for creating third party interest in the suit property. The plaintiff has not made a specific averment in plaint as to when defendants tried to create third party interest in the suit property. The plaintiff has also not led any evidence to prove that defendants ever extended any such threat. The defendants on the other hand averred that they never tried to create third party interest in the suit property at any point of time.
Suit No. 32/2011/2006 Page no. 51 of 52 99 In view of the above facts and circumstances, I am of the
considered view that plaintiff has failed to prove on record that he has cause of action of filing the suit for permanent injunction against the defendants, the plaintiff has thus failed to discharge the onus of issue no. 7, same is accordingly decided against the plaintiff.
100 Relief In view of the above facts and circumstances, the suit filed by the plaintiff for possession and mesne profits is decreed with cost. However suit for permanent injunction is dismissed.
A decree for possession is passed in favour of the plaintiff and against the defendants with respect to quarter no. 61 and shop no. 18 & 19, Begali Mal Market, New Delhi shown red in the site plan Ex.PW-1/1.
A decree for mesne profit/damages @ RS. 12,000/- per month is also passed in favour of the plaintiff and against the defendants from the date of filing of the suit till the delivery of the possession of the suit premises.
The plaintiff is directed to pay the deficient court fees, on such payment, decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
8th June, 2012 Additional District Judge
Delhi
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