Delhi District Court
Shri Mohd. Safi vs Shri Shareef on 30 April, 2011
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST): KKD COURTS: DELHI
SUIT NO197/08
Unique Case Identification No: 02402C0199312008
Shri Mohd. Safi
S/o Shri Ramjan Khan
R/o E59/610, Kalender Colony,
Delhi - 1100095
.........Plaintiff
Versus
1.Shri Shareef
S/o Shri Nanwa
2 Smt. Janno
Wife of Shri Shareef
Both R/o Kalander Colony,
Shahdara, Delhi - 110095
.........Defendant
Date of Institution : 14/03/2008
Reserved for Order : 26/04/2011
Date of Decision : 30/04/2011
Final Order : Suit partly decreed.
SUIT FOR PERMANENT INJUNCTOIN
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 1/16
JUDGMENT
1. Plaintiff has filed this suit with a prayer for a decree of permanent injunction in his favour and against the defendants, their agents, associates, servants, friends, relatives and attorneys restraining them from causing any interference into the installation of the electricity meter by the officials of BSES, Yamuna Power Ltd. at the premises bearing no. E 59/610, Kalander Colony, Shahdara, Delhi 110095 and also restraining them from forcibly and unlawful taking the possession of the shop situated on the Ground Floor of the property no. E59/610, Kalander Colony, Shahdara, Delhi110095. Further plaintiff has prayed for decree of permanent injunction in his favour and against the defendants, their agents, associates, servants, friends, relatives and attorneys restraining them from forcibly and illegally dispossessing the plaintiff from the premises situated of First Floor of property bearing no. E59/610, Kalander Colony, Shahdara, Delhi 110095.
2. In brief case of plaintiff is that one Mr. Rajeev Joshi is owner of the property bearing no. E59/610, Kalander Colony, Shahdara, Delhi 110095 (hereinafter referred to as suit property). As alleged, plaintiff was inducted as a tenant by Shri Rajeev Joshi about 7 years before in the First Floor of property bearing no. E59/610, Kalander Colony, Shahdara, Delhi Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/16 110095 (suit property) on a monthly rent of Rs.300/ and said Sh. Rajeev Joshi was running his shop on the Ground Floor of suit property. As alleged, plaintiff had paid Rs.10,000/ as Pagri to Mr. Rajeev Joshi. Further, plaintiff has alleged that about 2 years back, Sh. Rajeev Joshi had gone somewhere in his village and he had handed over the responsibility to plaintiff to take care of and look after the suit property and shop on Ground Floor. As alleged on 27.02.2008, both the defendants came and started breaking the lock of shop on the Ground Floor of suit property and when the plaintiff raised objections against such acts, then defendants no. 1 & 2 had given beating to plaintiff mercilessly. Plaintiff has further alleged on 27.12.2007 plaintiff had applied for obtaining electricity connection in the rented premises and concerned staff members had come from the office of BSES for installation of electricity connection on 05.01.2008, 12.02.2008 and also on 10.03.2008 but both the defendants had come there and started raising disputes and started quarreling with the plaintiff by saying, "Pehlay Rajeev Joshi say hamaaray paise vaapas dilwaa jab ham tumko bijli lagwaanay dengay nahin to ham tumko iss makaan main say bhagaa dengay aur dukan kaa taala tor kar us main kabzaa kar lengay." . It is with these averments of plaintiff has filed present suit for above said reliefs.
3. Defendants have contested the suit by filing of contested WS.
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 3/16
In their WS defendants have taken preliminary objections to the effect that suit for permanent injunction filed by the plaintiff is not maintainable because defendant no.2 had given shelter to plaintiff being a close relative in First Floor of property / house no. E59/610, Old no. 59/236, Kalander Colony, Dilshad Garden, Delhi which is a shed room constructed by mat and plastic while said property was owned by Rajeev Joshi who mortgaged the same to defendant no.1 for a sum of Rs.40,000/ on the condition that if Mr. Rajeev Joshi failed to pay said amount, defendant no.1 would become owner of suit property. As alleged, defendants were already in possession of said property and thereafter, plaintiff started to reside in the shed room as a tenant on monthly rent of Rs.1100/ but lateron plaintiff dishonestly misbehaved with defendants by making conspiracy with local police to grab the said property. In their WS defendants have denied the averments made by plaintiff in the plaint. Defendants have clarified that plaintiff is real uncle of defendant no.2 and he was residing at First Floor of the suit property bearing no. E59/610, Old no. 59/236, Kalander Colony, Dilshad Garden, Delhi. Further defendants have alleged that Mr. Rajeev Joshi had already handed over possession of suit property to defendants by executing mortgage deed dated 25.08.2005 and defendants have become exclusive legal owner of the suit property in as much as Mr. Rajeev Joshi did not pay Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/16 mortgage amount as per the terms of mortgage deed. Defendants have further alleged that plaintiff is residing under the tenancy of defendants at monthly rate of rent of Rs.1100/ pm. As alleged, the tenancy agreement is oral between the parties being in close relation. As per defendants, plaintiff is not entitled to install electricity connection in the First Floor of the tenanted shed room. Lastly defendant has prayed for dismissal of the suit with heavy compensatory cost.
5. Plaintiff has filed replication to the WS of defendants wherein stand taken by defendants in their WS has been denied and the averments made in the plaint have been reaffirmed.
6. Vide order dated 06.04.2009 ld. predecessor of this court was pleased to partly allow the application under order 39 Rule 1 & 2 red with section 151 CPC moved by plaintiff and defendants were directed not to dispossess with the plaintiff from the First Floor of the suit property till further orders without due process of law.
7. Also on 06.04.2009 ld. Predecessor of this court framed the following issues:
1. Whether the plaintiff is a tenant of the defendants in respect of the suit property on a monthly rent of Rs.1100/ as alleged by the defendants?OPD 2 Whether the defendants are in possession of the complete suit property w.e.f 25/08/2005? OPD Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/16 3 Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from interfering with the installation of electricity connection in the suit property? OPP 4 Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from taking possession of the shop on the ground floor of the suit property? OPP 5 Whether the defendants have threatened to dispossess the defendant from the first floor of the suit property without due process of law and whether the plaintiff is entitled for relief of permanent injunction restraining the defendants from dispossessing him without due process of law? OPP 6 Relief.
8. To substantiate his case on judicial file plaintiff himself appeared in witness box as PW1. Also plaintiff has examined PW2 Mr. Pramod Kr. Gupta, Asstt. Accountant BSES and PW3 Mr. Suresh Kr. Tripathi from Voter Registration Electoral Centre. PE was closed on 13/12/10 on the submission of ld. counsel for plaintiff to the effect that no other witness is to be examined by the plaintiff. Defendant has himself appeared in the witness box as DW1 Mr. Mohd. Sharif and has also examined DW2 Smt. Rizwana Begum @ Janno, DW3 Mr. Liyakat Ali and DW4 Mr. Mohd. Shiraj. DE was closed on 10/02/11 by Mr. Kalicharan, ld. counsel for defendants by making separate statement to that effect.
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 6/16
9. I have heard Sh. A.K. Sharma, Advocate for plaintiff and Sh. Kalicharan, Advocate for defendants and have gone through the case file very carefully. Written submissions have also been filed by both the ld counsels. Both the ld. counsels had argued their case in terms of written submissions filed by them.
10. I have given a thoughtful consideration to the submissions made by ld counsel for the parties keeping in view the facts and circumstances of the present as they arises on the basis of material available on judicial file.
11. My issuewise findings are as under: ISSUE NO.1 Whether the plaintiff is a tenant of the defendants in respect of the suit property on a monthly rent of Rs.1100/ as alleged by the defendants?OPD Onus to prove this issue was on defendant. Case of plaintiff regarding this issue is that plaintiff is tenant of one Mr. Rajeev Joshi from whom defendant no.1 claiming to have become owner by virtue of Bayana and Girvinama dated 25/08/05. On the other hand case of defendants is that plaintiff who had come from native village started residing to live in the suit property being real uncle of defendant no.2 and thereafter plaintiff started to live on the first floor by making shed room covered by met and plastic on Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 7/16 the first floor at rent of Rs. 1100/ per month as a tenants alongwith his family members. DW1 Mr. Shareef in his affidavit has deposed that plaintiff has not taken rent regularly. As per defendants, tenancy is oral and no written agreement was executed between the parties being in close relation with each other as plaintiff is real uncle of defendant no.2.
DW1 Mr. Mohd. Shareef has deposed that he has been residing in the suit property since last about six years and prior thereto he was residing at Jhuggi no. 252, Kalander Colony, Delhi but he has no documentary proof showing his possession over/residence at Jhuggi no. E 59/610 such as Survey card, ration card etc. Further he has deposed that he do not give any receipt to the plaintiff regarding rent paid by plaintiff to him. At the same time he has deposed as under: "It is correct that plaintiff has not given the rent at any point of time. Vol. plaintiff did not pay agreed rent to me".
The above two depositions are not consistent with each other in as much as the depositions that plaintiff has not paid the rent regularly suggest that plaintiff has paid rent to defendants but it has not been paid timely/regularly. But in his cross examination DW1 Mohd. Shareef has deposed that plaintiff has not given rent to him at any point of time. DW2 Smt. Rizwana Begum @ Janno also in her cross examination has deposed Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 8/16 that plaintiff has not paid rent to her or her husband at any point of time. Even DW3 Mr. Liyakat Ali has deposed that plaintiff has not paid rent to the defendants in his presence. Also DW4 Mohd. Shiraj has deposed that "
Shafi has not paid rent in my presence to the defendant no.1 at any point of time." From above discussion it can be concluded that admittedly plaintiff has not paid rent @ Rs. 1100/ per month to either of defendants at any point of time. Also, as the material on Judicial file suggest, defendants have not taken any action against the plaintiff on account of his not making payment of agreed rent @ Rs. 1100/ per month for last 5/6 years. This inaction on the part of defendants coupled with the following depositions made by DW3 Mr. Liyakat Ali suggest that the stand of defendants regarding plaintiff being tenant at the Ist floor of suit property @ Rs. 1100/ per month as rent is not correct: "It is correct to suggest that plaintiff used to reside at the first floor portion of Jhuggi no. 59/610. On court query, witness has clarified that plaintiff used to reside at the first floor portion of Jhuggi no. 59/610 even at the time when Mr. Rajiv Joshi used to reside/run the shop at the ground floor portion of the abovesaid Jhuggi."
If it is so, question of there being a tenancy agreement, in terms as alleged by defendants, does not at all arises. Defendants themselves are Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 9/16 claiming their right, title, interest in the suit property through none else but Mr. Rajiv Joshi. If Mr. Rajiv Joshi, prior to execution of alleged "Bayana and Girvinama" had kept the plaintiff as tenant or otherwise in the first floor of suit property, then the entire stand of defendants that they firstly allowed the plaintiff to occupy the first floor of suit property sympathetically & thereafter there was oral tenancy agreement regarding first floor portion of suit property between plaintiff and defendants stands falsified. The depositions made by PW1 Mr. Mohd. Shafi in his cross examination to the effect that "It is correct that I used to live in the house of Rizwana, defendant no.1 being close relative, real uncle of defendant no.2" are of no help to defendants in as much as defendants are also residing at E59/252, Kalender Colony, injunction Camp, Dilshad Garden, Delhi and plaintiff has not been made to depose specifically about the address at which he was residing in the house of Rizwana, defendant no.1. Suit property is having the address as E59/610 Kalender Colony JJ Camp. Dilshad Garden, Delhi. Also, as already observed, plaintiff at no point of time paid rent to defendants. In view of above discussion, to my mind, it can be concluded that defendants have failed to establish on judicial file that they had inducted plaintiff as a tenant on the first floor of suit property @ Rs.1100/ monthly rent. Issue is decided against the defendants.
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 10/16
ISSUE NO. 2
Whether the defendants are in possession of the complete suit property w.e.f 25/08/2005? OPD Defendants in this case are claiming right, title and interest in suit property on the basis of "Bayana and Girvinama Ex. DW1/A. (This document stands deexhibited). This Bayana and Girvinama but, being document of defendants, can be read against the defendants despite the fact that it has been deexhibited. A bare reading of this document suggest that defendants were not put into possession of suit property on 25/08/2005. The question of defendants being put into possession of suit property would have arisen, as per said Bayana and Girvinama, on the failure of Mr. Rajiv Joshi failing to repay the amount of Rs.40,000/ to defendants No.1 on 28/10/2005. Mr. Rajiv Joshi is not a party to this suit & thus it cannot be said whether Mr. Rajiv Joshi repaid Rs.40,000/ to defendant no.1 on 25/08/2005 or not. However defendant's witnesses have deposed that Mr. Rajiv Joshi had handed over the keys of the suit property to defendant no.1. But none of the defendants witnesses has deposed about the specific date on which Mr. Rajiv Joshi, as alleged, handed over the keys of suit property to defendant no.1. Also it is pertinent to note that DW1 Mr. Mohd. Shareef in his cross examination has deposed that "I have no documentary proof showing my possession over/residence at Jhuggi No.E59/610 such as Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/16 Survey Card, Ration Card etc." and DW2 Smt. Rizwana has deposed that "I have no documentary proof showing that I am residing at Jhuggi no. E 59/236 Kalender Colony, Dilshad Garden Delhi95". Thus in the absence of documentary proof in the name of defendants it cannot be said that defendants are in occupation of suit property since 25/08/2005.
However on the basis of material on judicial file, it can be said that defendants are in possession of ground floor of suit property but since what date they are in such possession no specific finding can be given. In any case even as per Bayana & Girvinama, defendants cannot be said to be in possession of suit property since 25/08/2005. Also while deciding issue No.1 it has been observed that it was Mr. Rajiv Joshi who had put plaintiff in possession of 1st floor of suit property, so, in any case, the question of defendants being in possession of the complete suit property w.e.f. 25/08/2005 does not at all arises. This issue is accordingly decided against the defendants.
ISSUE NO. 3
Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from interfering with the installation of electricity connection in the suit property? OPP Factual situation of this case is that plaintiff is in possession of 1st floor of suit property and defendants are in possession of ground floor of Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/16 suit property. As per depositions made by PW2 Mr. Pramod Kumar Gupta, plaintiff being resident of E59/610 Kalander Colony Shahdara Delhi had applied for new connection of electricity in the promises no. E59/610, Kalender Colony, Shahdara Delhi. Plaintiff completed all the formalities regarding the electricity connection. But, as per Ex. PW2/A, meter could not be installed in as much as "consumer want meter installation at the first floor". In this regard case of plaintiff is that defendants did not allow the officials of the BSES to install the meter. Further DW2 Smt. Rizwana Begum @ Janno in her crossexamination has deposed as under : "Q. It is put to you that you did not allow the fixing of electricity meter of the plaintiff on the ground floor? A. When we are residing at the ground floor how we could have permitted the installation of electricity meter at the ground floor.
It is incorrect to suggest that the electricity officials had visited 3/4 times to install the electricity meter. Vol. They had come only once and we had not allowed them to install the meter at the ground floor."
Thus admittedly defendants are interfering in the installation of the electricity meter of plaintiff despite its sanction by BSES. It does not lie in the mouth of defendants to say that electricity connection could not have Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 13/16 been sanctioned in the name of plaintiff without furnishing of NOC from them in as much as plaintiff is not a tenant under them. Once, electricity connection has been sanctioned by BSES as per its rules/policy, defendants have no right to object to the installation of electricity meter at the suit premises as per the rules of BSES on the application of plaintiff who is occupying first floor of suit property. Interference by defendants in this regard is not at all justified. This issue is accordingly decided in favour of plaintiff.
ISSUE NO. 4
Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from taking possession of the shop on the ground floor of the suit property? OPPD As per material available on judicial file, admittedly defendants are already in possession of ground floor of suit property. As per defendants Mr. Rajiv Joshi himself had given the keys of suit property to them. Once, defendants are already in possession of ground floor of suit property, question of issuing decree for permanent injunction restraining the defendants from taking possession of the shop at ground floor does not at all arises. This issue is accordingly decided against the plaintiff. ISSUE NO.5 Whether the defendants have threatened to dispossess the defendant from the first floor of the suit property without due process of law Suit No. 197/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 14/16 and whether the plaintiff is entitled for relief of permanent injunction restraining the defendants from dispossessing him without due process of law? OPP In entire plaint there is no averment regarding defendants threatening the plaintiff to dispossess him from the first floor portion of suit property without due process of law. There is no evidence regarding any such attempt having been made by defendants. Affidavit of plaintiff Ex.PW1/A1 is silent about any such threat or attempt of defendants to dispossess the plaintiff from the first floor of suit property without due process of law. No suggestions have been given in this regard in the cross examination of DWs. In this factual position no decree for permanent injunction can be passed in favour of plaintiff and against the defendants restraining them from dispossessing the plaintiff from first floor of suit property without due process of law. Issue is decided against plaintiff. ISSUE NO. 6 RELIEF .
In view of my findings on various issues, decree for permanent injunction in hereby passed in favour of plaintiff and against the defendants, their agents, associates, servants, friends, relatives and attorneys restraining them from causing any interference into the installation of the electricity meter by officials of BSES, Yamuna Power Ltd. at the premises bearing no.
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 15/16
E59/610, Kalender Colony, Shahdara Delhi95 as per the rules/policies of BSES, Yammuna Power Ltd. & other reliefs as prayed for are specifically declined. Nothing in this judgment shall be deemed to create any right/title/ interest in either of the parties to suit qua the suit property in as much as suit property admittedly is situated on Govt. land belonging to DDA and neither of parties has produced any title documents pertaining to the suit property. Parties to bear their own Cost. Decree sheet be prepared. File be consigned to Record Room.
Pronounced in the open court
on 30/04/2011 (Anand Swaroop Aggarwal)
SCJCumRC(East): Delhi
Suit No. 197/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 16/16