Delhi District Court
Salil Seth & Anr. vs . Arun Kumar & Anr. on 15 May, 2015
CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
IN THE COURT OF MS. KADAMBARI AWASTHI :CIVIL JUDGE 02
(CENTRAL),TIS HAZARI COURTS, DELHI.
Suit No : 371/14
In the matter of :
1. Shri Salil Seth,
S/o Shri Ganesh Seth,
2. Shri Ganesh Seth
S/o Late Sh. R.L. Seth,
Both residents of
M68, Greater KailashI,
New Delhi110048. ......Plaintiffs.
VERSUS
1. Shri Arun Kumar
S/o Late Shri Slate Singh
R/o 9729, Gaushala Road,
Double Fatak, Kishan Ganj
Delhi110007.
2. Shri Ram Kishan Dass
S/o Late Sh. Deep Chand
R/o 117, Second Floor
Block5, Eros Garden
Charm Wood Village,
Suraj Kund Road
Faridabad121009. ......Defendants
Page 1 of 70
CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
Date of Institution: 04.06.2010
Date of reserving the judgment: 16.04.2015
Date of Judgment: 15.05.2015
JUDGMENT
SUIT FOR MANDATORY INJUNCTION By this composite judgment I shall decide two connected suits filed by both the parties respectively. By the orders of Hon'ble High Court of Delhi dated 25.04.201 the Suit bearing No. 345/2011 and Suit bearing No. 169/2010 were consolidated for the purpose of adjudication and trial. The facts pertaining to the Suit No. 169/10 and titled as Salil Seth & Ors. Vs. Arun Kumar & Anr. seeking mandatory injunction are as under : I. The facts of first case filed against Salil Seth by Sh. Arun Kumar for the relief of permanent injunction are as under :
1. It is stated that the plaintiff is residing and is in physical, peaceful possession in respect of two rooms, varandah, kitchen, toiled and Bathroom in premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 as shown in red colour in the attached site plan since November, 1979 till date.
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Salil Seth & Anr. Vs. Arun Kumar & Anr.
2. It is further stated that in the year 1979, the plaintiff was working with M/s Virmani Refrigeration and Cold Storage Pvt. Ltd. and the plaintiff was terminated by M/s Virmani Refrigeration on 27.08.1981 from the job vide termination letter dated 27.07.1981.
3. It is further submitted that the plaintiff is in peaceful and uninterrupted possession of the abovesaid premises since November, 1979 till date as the said premises was given to the plaintiff by late Pandit Har Swaroop by oral gift. It is further submitted that Late Sh. Kishori Lal was the owner of the abovesaid premises and he donated the most of the property for the religious use i.e. one portion donated for Mandir and other portion for "Satsang Darbar" and two portions were gifted to Pandit Har Swaroop for his residence and a portion was kept by him for himself. It is further submitted that from two portions, one portion which is the suit premises was orally gifted to the plaintiff by Pandit Har Swaroop due to love and affection as the plaintiff always helpful to Pandit Har Swaroop. The suit property was gifted in the year 1980 to the plaintiff.
4. It is further submitted that after termination of the of the service by M/s Virmani Refrigeration & Cold Storage Pvt. Ltd., the plaintiff joined with the defendants in August, 1981 and since then the plaintiff was Page 3 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
working with the defendants till 24.05.2007 and the defendants issued a termination notice dated 24.04.2007 and the plaintiff also replied the said notice vide reply dated 19.06.2007.
5. It is further stated that now the defendants are bent upon to dispossess the plaintiff from the suit premises forcibly, illegally and without due process of law. However, the defendants have no right, title, interest or claim in the suit premises and the plaintiff has already become the owner and in possession of the suit premises by way of oral gift as well as by adverse possession as the plaintiff is in physical, peaceful and uninterrupted possession since November, 1979.
6. It is further stated that on 22.06.2007, the defendants along with their 3 or 4 associates came to the plaintiff and they tried to forcible dispossess the plaintiff from the suit premises by throwing his household goods but due to the intervention of the common friends and relatives and neighbours the defendants could not succeed in dispossessing the plaintiff from the suit premises but they left the spot with threatening to come again and to dispossess the plaintiff from the suit premises within a week time. Page 4 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
7. It is further submitted that the cause of action arose in favour of the plaintiff and against the defendants, firstly in the year 1980 when Late Pandit Har Swaroop gifted the suit property orally to the plaintiff. The cause of action again arose when the defendants issued a termination notice as well as eviction notice dated 24.04.2007 to the plaintiff directing the plaintiff to vacate the suit premises and handing over the keys to them and the plaintiff duly replied the said notice vide reply dated 19.06.2007, the cause of action again arose on 22.06.2007 when the defendants along with their 3 or 4 associates came to the plaintiff and they tried to forcibly dispossess the plaintiff from the suit property by throwing the household goods, but due to the intervention of the neighbours, common friends and relatives, the defendants and their associates could not succeed in dispossessing the plaintiff from the suit premises but they left the spot with threatening to come again and to dispossess the plaintiff from the suit premises forcibly and illegally within a week time. The cause of action is still continuing in favour of the plaintiff and against the defendants.
8. It is further stated that the parties to the suit reside and work for gain at Delhi, the suit premises is situated at Delhi, the cause of action arose at Delhi, hence this court has the jurisdiction to try and entertain the present suit.
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9. Prayer is made accordingly submitting for passing a decree of permanent injunction in favour of the plaintiff and against defendants.
10. Written statement on behalf of the defendants was filed by taking preliminary objection that the petition does not disclose any cause of action and merits rejection U/o 7 Rule 11 of CPC.
11. It is further contended that the plaintiff has not come to the court with clean hands and has made suppression of material facts. The suit suffers from suppressio varie and suggestio falsi. In view of the false representation made by the plaintiff, he is not entitled to any relief.
12. It is further submitted that the suit is not maintainable under the provisions of Sec. 38 & 41 of the Specific Relief Act.
13. In reply on merits it is submitted that para No. 1 of the plaint is wrong and denied. It is further submitted that the plaintiff is certainly not a law abiding and peaceloving citizen. However, he is unlawfully residing in a portion of premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 and having in his occupation two rooms, varandah, kitchen and common bath room. The latrine and bath room are Page 6 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
common and not in exclusive use of the plaintiff. The said accommodation was given to him in the year 1981 when M/s Rama Ice Factory, the partnership firm of which the defendants are now the partners, kept him as Operator in the firm and allowed him the use of the aforesaid accommodation on license basis by virtue of his employment with M/s Rama Ice Factory. It wrong and denied that the plaintiff is residing and is in physical possession of two rooms, varandah, kitchen, toilet and bathroom in premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 since November, 1979.
14. It is further submitted that the contents of para No. 2 of the plaint are wrong and baseless. The defendants have nothing to do with M/s Virmani Refrigeration and Cold Storage Pvt. Ltd. and termination of the services of the plaintiff by the said firm. As far as the defendants are concerned, their firm M/s Rama Ice Factory had employed the plaintiff as an Operator in the year 1981.
15. It is further submitted that contents of para No. 3 of the plaint are wrong and denied. It is also denied that the plaintiff is in peaceful and uninterrupted possession of the abovesaid premises since November, 1979. It is further wrong and baseless that the said premises was given to Page 7 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the plaintiff by late Pandit Har Swaroop by oral gift. Pandit Har Swaroop had nothing to do with the premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007, of which the suit premises is part and parcel. The plaintiff has unnecessarily and malafidely introduced Pandit Har Swaroop while making baseless and concocted allegations in the plaint. It is further wrong and baseless that the owner of the premises Sh. Kishori Lal had donated most of the property for religious use i.e. for Mandir, Satsang Darbar and two portions were gifted to Pandit Har Swaroop for his residence. It is further wrong and denied that Pandit Har Swaroop gifted the suit premises to the plaintiff out of love and affection for any reason whatsoever. It is further wrong and denied that the alleged gift was made in the year 1980.
16. It is further submitted that premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 was owned by Sarv Shri Kishori Lal, S/o Late Sh. Hira Lal; Sh. Ram Kishan S/o Sh. Deep Chand and Shri Kedarnath S/o Sh. Kishori Lal and they let out the aforesaid th premises measuring 600 sq. yards on 20 October, 1955 to Sh. Radhey Lal Seth and Shri Jeewan Lal for a period of ten years for the purpose of running a Ice Factory.
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Salil Seth & Anr. Vs. Arun Kumar & Anr.
17. It is further submitted that M/s Rama Ice Factory started operating in the aforesaid premises in the year 1955 after taking the premises on lease as aforesaid. Another lease deed dated 21.09.1981 was executed between Shri Ram Kishan Dass S/o Sh. Deep Chand and Shri Kedarnath Gupta S/o Sh. Deep Chand with Sh. Jeewan Lal Khanna and Shri Mohan Lal Khanna for the said very premises for continuing the business of M/s Rama Ice Factory and Cold Storage. It is also stated that there was change of partners of M/s Rama Ice Factory from time to time.
18. It is further submitted that after expiry of the lease deed dated 21.09.1981, yet another lease deed dated 26.04.1991 was executed between Shri Ram Kishan Dass and Shri Kedar Nath Gupta as Lessors and Shri Jeewan Lal Khanna and Mohan Lal Khanna and Shri Ganesh Seth who were at that time running the business of M/s Rama Ice Factory and Cold Storage in the aforesaid premises.
19. It is further submitted that in this way, it would be seen that the partnership firm M/s Ram Ice Factory is in continuous use and occupation of the entire premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007, of which the suit premises is an integral part. In fact, the suit premises which consists of two rooms, Varandah, kitchen and Page 9 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
common bathroom was given to the plaintiff to facilitate its functioning as an Operator in the factory and to ensure that his services were readily available for smooth functioning of Ice Factory. The plaintiff was a license for all legal and practical purposes in the suit premises.
20. It is further submitted that the plaintiff has not placed on record any document to show that Late Pandit Har Swaroop has got anything to do with the premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. There is no of any oral gift , therefore, having been made by Late Pandit Har Swaroop in favour of the plaintiff. In as much as Pandit Har Swaroop has nothing to do with the property in question, of which the suit premises is an integral part. Similarly, there was no question of Shri Kishor Lal who was once upon a time was one of the coowners of the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007, gifting away any portion of the same to Pandit Har Swaroop. Moreover in law, there is no concept of oral gift. Further more, there is a Mandir and a Satsang Bhavan in property bearing no. bearing No. 9730, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007, which is a distinct and a separate property with which the plaintiff or the defendants are not concerned. The plaintiff is occupying two rooms, varandah, kitchen and common bathroom in property bearing No. Page 10 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007.
21. It is further submitted that para No. 4 of the plaint is admitted to the extent that the plaintiff joined a partnership firm M/s Rama Ice Factory in the year 1981 and the Ice Factory was closed down by the partners in November, 2006. In fact, the factory had to be closed down because of the government policy, which did not allow running of any factory in or around residential area. In the above circumstances, the partnership firm M/s Rama Ice Factory issued a notice dated 24.04.2007 to the plaintiff thereon terminating his services and he was requested to stop using and vacate the two rooms, varandah, kitchen and common bathroom which he was occupying by virtue of his employment on licence basis. It is further stated that the electricity connection in the said partnership firm and similarly the plaintiff was enjoying water facility at the cost of the said partnership firm. The plaintiff gave a baseless and concocted reply to the notice issued by M/s Rama Ice Factory and in furtherance of his malafide and dishonest motives filed the present suit to continue illegal and unauthorized occupation in the suit premises.
22. It is further submitted that the contents of para No. 5 of the plaint are wrong and denied. It is wrong and denied that the defendants Page 11 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
are bent upon to dispossess the plaintiff illegally or forcibly. In fact, the plaintiff has no legal right, title or interest in the suit premises and cannot maintain the present suit and his possession is only that of trespasser after termination of his services and since he has no right, title or interest or lawful claim in the suit premises, the plaintiff cannot be entertained and given any relief whatsoever. It is absolutely a bogus and pernicious on the part of the plaintiff to allege that he has become owner of the suit property by way of oral gift or by way of adverse possession, as claimed by him. It is wrong and denied that he is in possession of the premises since November, 1979. The plaintiff being a licensee under permissive use, there is no question of his having any possession.
23. It is further submitted that contents of para No. 6 of the plaint are wrong and denied. It is denied that on 22.06.2007, the defendants along with 3 or 4 associates came to the plaintiff and they tried to forcibly dispossess the plaintiff from the suit premises. The allegations are absolutely baseless, false and concocted. It is also wrong and denied that the defendants gave any threat of any kind whatsoever.
24. It is further submitted that contents of para No. 7 of the plaint are wrong, baseless and hence denied. It is also denied that any cause of Page 12 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
action arose in favour of the plaintiff and against the defendants at any point of time as alleged in the para under reply. The suit is without any cause of action and the plaint also does not disclose any cause of action.
25. It is further submitted that contents of para No. 8 of the plaint are wrong, false and denied, in so far as it alleges about the cause of action. However, the territorial jurisdiction of this court is not disputed.
26. It is further submitted that contents of para No. 9 of the plaint are also wrong, false and hence denied. The plaintiff is taking declaratory relief in the garb of the present suit and the suit has not been properly valued. The prayer made in the plaint is wrong and misconceived. It is submitted that the plaintiff is not entitled to any relief. It is prayed that the suit being false, frivolous and vexatious be dismissed with heavy cost in the interest of justice.
27. In replication the plaintiff has denied all the allegations made in the written statement and reiterated those made in the plaint.
28. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor on 07.05.2008 : Page 13 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
1. Whether suit is not maintainable in view of P.O. No. 3 of W.S.?OPD
2. Whether plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP
3. Relief.
II The facts of the another connected case filed by Sh. Salil Seth against Sh. Arun Kumar for the relief of mandatory injunction are as under :
29. It is submitted that plaintiff Nos. 1 & 2 are the partners of plaintiff No. 3, which is a registered Partnership Firm. It is stated that the suit premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 was taken on rent by plaintiff No. 3/Firm in the year 1959 for the purpose of running Ice Factory. Written Lease Deed was executed between the landlord and the partners of plaintiff No. 3 on behalf of plaintiff No. 3. It is submitted that the last deed was executed between plaintiff No. 3/Firm through its partners and the landlord on 26.04.1999. It is stated that defendant was employed as Operator by plaintiff No. 3/Firm in the year 1981.
30. It is stated that plaintiff No. 3/Firm has been in continuous use and occupation of the entire premises bearing No. 9729, Gaushala Road, Page 14 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Double Fatak, Kishan Ganj, Delhi110007 (hereinafter called the suit property) consisting of two room, varandah and common bathroom which was given by plaintiff No. 3/Firm to the defendant to facilitate his duties as Operator in the factory and to ensure that his services were readily available for the smooth functioning of the Ice Factory. It is stated that the defendant was a licensee for all legal and practical purposes.
31. It is further stated that in or around the year 2006, the plaintiffs had to close the Ice Factory on account of order of the Hon'ble Supreme Court of India, which required all Industrial Establishment to close down. The Ice Factory having been closed down on account of the above directions of the Apex Court, the services of defendant were no more required by the plaintiffs and on 24.04.2007 the services of defendant were terminated by serving him one month notice and he was requested to vacate and hand over the suit premises on or before 15.05.2007 and directed to hand over the keys to the plaintiffs. It is stated that unfortunately the defendant failed to do the needful and on the contrary filed a false and frivolous suit for injunction claiming that he was the owner of the suit premises on account of an oral gift. He also set up a baseless plea of adverse possession.
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Salil Seth & Anr. Vs. Arun Kumar & Anr.
32. It is also stated that defendant was allowed to occupy and live in the suit premises merely as a licensee and after termination of services he was left with no concern, much less any right, title or interest in the suit premises. The defendant is liable to be directed to hand over the possession of the suit premises to the plaintiff after termination of license to use the same by virtue of notice dated 24.04.2007. The defendant in stead of complying with the notice gave a bogus reply dated 19.06.2007.
33. It is submitted that cause of action to institute the present suit arose when the services of defendant were terminated and he was asked to hand over keys and possession of the suit premises by notice dated 19.07.2007 and also after receipt of reply dated 19.07.2007 on behalf of the defendant. The cause of action is stated to be continuing till the defendant hand over the keys and possession of the suit premises to the plaintiff.
34. The prayer is made to pass a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby directing them to hand over the possession of the suit premises as shown in the site plan attached.
35. Written statement on behalf of the defendant was filed by Page 16 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
taking preliminary objection that the plaintiff has filed a false and frivolous, bogus suit and has not approached the court with clean hands. It is also submitted that they have concealed the material facts and hence suit is liable to be dismissed. It is submitted that the defendant is residing and is in the physical peaceful possession in respect of two rooms, varandah, kitchen, toilet and bathroom in premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007.
36. It is also stated that in the year 1979 the defendant was working with M/s Virmani Refrigeration and Cold Storage Pvt. Ltd. and defendant was terminated by M/s Virmani Refrigeration & Cold Storage Pvt. Ltd. on 27.08.1981.
37. It is further stated that the defendant is in peaceful and uninterrupted possession of the above said premises since 1979 to till date as the premises was given to the defendant by late Pt. Harswaroop by oral gift. It is further submitted that late Sh. Kishori Lal was the owner of the above said premises and he donated the most of the property for the religious use i.e. one portion donated for Mandir and other portion for Satsang Darbar and two portions were gifted to Pandit Har Swaroop for his residence and a portion was kept him for himself. It is further submitted Page 17 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
that from two portions, one portion which is the suit premises was orally gifted to the defendant by Pandit Har Swaroop due to love and affection since the defendant used to help him.
38. It is further stated that hence, the defendant became the absolute and legal owner of the suit property by adverse possession and he reserves his right to appropriate suit for the same. It is also stated that the plaintiff has no locusstandi to file the present suit as he is not owner of the suit property and and has no title, interest and right in the suit property. Hence the present suit must be dismissed with heavy cost.
39. It is further submitted that the defendant is in continuous uninterrupted and peaceful possession of the part of the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 which originally belonged to Sh. Kishori Lal and subsequently thereafter donated to said Pandit Har Swaroop and Pandit Har Swaroop donated his share of property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 to the defendant. It is stated that the defendant is in possession of the suit property since 1979 and therefore through the proposition of law of adverse possession the defendant has become the lawful and actual owner of property in question. Whereas the plaintiff has Page 18 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
no right, title or interest in the suit property. Interalia other preliminary objections, it is submitted that there was no cause of action to file the present suit in favour of the plaintiff and against the defendant and the suit has not been properly valued for the purposes of relief and possession as claimed by the plaintiff by way of mandatory injunction.
40. In reply on merits the contents of para No. 1 is not disputed though it is submitted that para No. 2 of the plaint are wrong, false, fictitious and hence was denied. It is specifically denied that written lease deeds were executed between the partner of the plaintiff No. 3 through its partners and the landlord on 26.04.1999. It is stated that the plaintiff has no legal documents in respect of the ownership of the property in question.
41. It is submitted that the contents of para No. 3 of the plaint is also false, wrong and fictitious, hence are denied. It is denied that plaint No. 3 has been in continuous use and occupation of the entire suit premises. It is also denied that the suit premises consists of two rooms, Varandah and common bathroom which was given by the plaintiff No. 3/firm to the defendant to facilitate his duties as operator in the factory and to ensure that his services were readily available for smooth functioning of the Ice Factory. It is denied that the defendant is a licensee for all legal and Page 19 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
practical purposes in the suit premises. It is stated that the defendant has become the owner of the suit property due to uninterrupted physical possession of the property in question because he has been residing in the property since 1979.
42. It is stated that the plaintiff has illegally removed defendant from the services of M/s Rama Ice Factory (Plaintiff No. 3 herein) and a labour dispute is also pending between the parties. It is stated that only to deprive the defendant from his legal right, he has been illegally removed from his services. It is stated that the defendant is in possession of the suit property since 1979, prior to coming into the service of the plaintiff No. 3. It is stated that with reference to the notice sent by the plaintiff on 15.05.2007, it is stated that the said notice was illegal having no legal sanctity and hence the same was duly replied by the defendant. It is also stated that the plaintiff No. 1 & 2 started using illegal and unwarranted means to dispossess the defendant from the suit property and therefore, having no other option defendant filed a civil suit against them.
43. The contents of para Nos. 5 & 6 are denied being wrong, false and fictitious. It is denied that the defendant was allowed to occupy and live in the suit premises merely as a licensee and after termination of Page 20 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
services, he was left with no concern, much less any right, title or interest in the suit premises. It is also denied that the defendant is liable to hand over the possession of the suit property to the plaintiffs after termination of the license to use the same by virtue of the notice dated 24.04.2007.
44. It is also denied that the cause of action to file the present suit arose when the services of the defendant was terminated and when he was asked to hand over the keys and possession of of the suit property on 24.04.2007 and also thereafter on receipt of reply dated 19.07.2007 on behalf of the defendant. It is denied that the cause of action is still continuing till the defendant hand over the keys and possession of the suit premises to the plaintiffs.
45. Vide orders dated 25.09.2013 defendant No. 2 was made party in the suit and accordingly he filed his written statement therein. In the written statement defendant No. 2 stated that plaintiff No. 1 and 2 are the partners of plaintiff No. 3 which is a partnership firm. It is stated that defendant No. 2 is owner of a plot of land measuring about 600 sq. yards bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. It is stated that the said property was taken on rent by the plaintiff No. 3/firm in 1955 for the purposes of running Ice Factory and Page 21 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Written Lease Deed was executed between the landlord and plaintiff No. 3 on behalf of plaintiff No. 3 at the relevant time as tenants. It is stated that last Deed was executed between the plaintiff No.3/firm through its partners and defendant No. 2 for himself and as attorney of Sh. Kedar Nath on 26.04.1991. It is stated that defendant No. 1 was employed as the Operator by plaintiff No. 3/firm in the year 1981.
46. It is further stated that the plaintiff No. 3/firm has been in continuous use and occupation of the entire property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. It is further stated that a part of the said property, which consists of two rooms, varandah and common bathroom in property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 which was given by plaintiff No. 3/firm to the defendant no. 1 to facilitate his duties as Operator in the factory and to ensure that his services were readily available for smooth functioning of the Ice Factory. It is further stated that defendant No. 1 was a licensee for all legal and practical purposes.
47. It is further submitted that in or around the year 2006, the plaintiffs had to close down the Ice Factory on account of order of the Hon'ble Supreme Court of India, which required all industrial Establishment Page 22 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
in Residential Area to close down. The Ice factory having been closed down on account of the above direction of the Hon'ble Supreme Court, the services of the defendant No. 1 were no more required by the plaintiffs and on 24.04.2007, the services of defendant No. 1 were terminated by serving him one month notice and he was requested to vacate and hand over the suit premises on or before 15.05.2007 and directed to hand over the keys to the plaintiffs. Unfortunately, the defendant No. 1 failed to do the needful and filed a false and frivolous suit for injunction claiming that he was the owner of the suit premises on account of an oral gift and on the baseless plea of adverse possession.
48. It is further submitted that defendant No. 1 was allowed to occupy and live in the suit premises merely as a licensee and after termination of services, he was left with no concern, much less any right, title or interest in the suit premises. Defendant No. 1 is liable to be directed to hand over the possession of the suit premises to the plaintiffs after termination of the license to use the same by virtue of the notice dated 24.04.2007. Instead of doing the needful defendant No. 1 gave a bogus reply dated 19.06.2007 to the aforesaid notice served by the plaintiffs.
49. It is further submitted that the occupation of defendant No. 1 in Page 23 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the suit property is that of unauthorized occupant after termination of his license. Pandit Harswaroop was not the owner of a plot of land measuring about 600 sq. yards bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 or any part of the said property and hand no concern with the said property.
50. It is further stated that defendant No. 1 was allowed to use a part of the said property as a licensee by the plaintiffs/their predecessors as an employee. Defendant No. 1 cannot be an owner of the suit property by adverse possession. Defendant No. 1 never had any right, title or interest in the suit property which he was allowed to use only as a licensee when he joined the services of the firm Rama Ice Factory.
51. It is stated that the suit filed by the defendant No. 1 does not disclose any cause of action and merit rejection. The defendant No. 1has not come to this court with clean hands and has made suppression of material facts.
52. It is submitted that defendant No. 1 is not a law abiding and a peace loving citizen. Defendant No. 1 is unlawfully residing in a part of the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Page 24 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Delhi110007 and is having in his occupation two rooms, varandah, kitchen and common bathroom. The latrine and bathroom are common and not in exclusive use of defendant No. 1. the said accommodation was given to defendant No. 1 in the year 1981 when M/s Rama Ice Factory, the plaintiff No. 3 of which the plaintiff No. 1 & plaintiff No. 2 are now the partners kept him as Operator in the firm and allowed him to use the aforesaid accommodation on license basis by virtue of his employment with M/s Rama Ice Factory.
53. It is stated that defendant No. 1 has unnecessarily and malafidely introduce Pandit Harswaroop while making baseless and concocted allegations in the plaint. It is denied that the suit property was given to defendant no. 1 by Late Pandit Harswaroop by oral gift and the owners of the suit property Shri Kishori Lal had donated most of the property for religious use i.e. for Mandir, Satsang, Darbar and two portions were gifted to Pandit Harswaroop for his residence.
54. It is further submitted that the premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 was owned by defendant No. 2 and Shri Kedar Nath S/o Sh. Deep Chand and they let out th the aforesaid premises measuring 600 sq. yards on 20 October, 1955 to Page 25 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Shri Radhey Lal Seth and Shri Jeevan Lal for a period of ten years for the purpose of running a Ice Factory M/s Rama Ice Factory started operating in the aforesaid premises in the year 1955 after taking the premises on lease st as aforesaid. Another Lease deed dated 21 September, 1981 was executed between defendant No. 2 and Shri Kedar Nath S/o Shri Deep Chand on one part with Shri Jevan Lal kHann and Shri Mohan Lal Khann on the other for continuing the business of Rama Ice Factory and Cold Storage from the said property. There was changed of partners of M/s Rama Ice Factory from time to time. After expiry of lease deed dated 21.09.1981, yet another lease deed dated 26.04.1991 was executed between defendant No. 2 and Shri Kedar Nath Gupta on one part as Lessors and Shri Jeewan Lal Khann and Mohan Lal Khanna and Ganesh Seth, plaintiff No. 2, on the other part as Lessee, who were at that time running the business of M/s Rama Ice Factory and Cold Storage in the said property.
55. It is further stated that defendant No. 1 has not placed on record any document to show that Late Pandit Harswaroop has got anything to do with the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. It is also stated that there is no question of any oral gift, therefore, having been made by Late Pandit Har Page 26 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Swaroop in favour of defendant No. 1 in as much as Pandit Har Swaroop has nothing to do with the property in question of which the suit property is an integral part. Similarly, there was no question of Shri Kishori Lal who was once upon a time one of the coowner of the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 gifting away any portion of the same to Pandit Harswaroop. Further more, there is a Mandir and a Satsang Bhawan in property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 which is a distinct and a separate property with which the plaintiffs or the defendants have no concern.
56. It is submitted that the electricity connection in the portion of the said property used by defendant No. 1 was provided by plaintiff No. 3 and similarly, defendant No. 1 was enjoying the water facility at the cost of plaintiff No. 3.
57. It is further submitted that defendant No. 1 has no legal right, title or interest in the suit property and has no right to file a suit against plaintiffs or defendant no. 2. It is further submitted that the possession of defendant No. 1 is only that of a trespasser after termination of his services and since he has no right, title or interest or lawful claim in the suit property, Page 27 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
defendant No. 1 is not entitled to any relief.
58. It is further submitted that it is absolutely bogus and pernicious on the part of the defendant No. 1 to allege that he has become the owner of the suit property by way of oral gift or by way of adverse possession as claimed by him. It is denied that defendant No. 1 is in possession of the suit property since November, 1979. It is stated that defendant No. 1 being a licensee under permissive use there is no question of is having any possession.
59. It is further submitted that the suit filed by the plaintiffs as "Salil Seth & Ors. Vs. Arun Kumar" is true and correct and the plaintiffs are entitled to the reliefs as prayed for in the plaint. It is stated that the written statement filed by defendant No. 1 in the said suit is false and frivolous and is liable to be rejected. It is stated that defendant No. 2 has no objection in case the reliefs claimed for by the plaintiffs are granted by this Court.
60. It is further stated that suite titled as "Arun Kumar Vs. Salil Seth & Anr." filed by defendant No. 1 is false and frivolous and is liable to be dismissed. Defendant No. 1 is not entitled to any of the relief as prayed for by defendant No. 1 in the said suit. It is stated that the written statement Page 28 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
filed by the plaintiffs as defendants in the said suit is true and correct.
61. It is further stated that defendant No. 2 and Smt. Santosh Gupta W/o Sh. Kedar Nath filed a suit for possession of the said property against the Mohn Lal Khanna and Sh. Ganesh Seth, plaintiff No. 2. It is stated that the said suit bearing No. 377/2001, titled as "RAM KISHAN DASS & ANR. VS. MOHAN LAL KHANNA & ANR." has been dismissed by the court of Sh. S.S. Malhotra, Civil Judge, Delhi vide order dated 11.07.2002. It is stated that defendant No. 2 and Smt. Santosh Gupta have not filed any appeal against the said order and is receiving the rent from the plaintiffs as tenants.
62. Prayer is made accordingly submitting for passing a decree of mandatory injunction in favour of the plaintiffs and against defendant No. 1.
63. In replication the plaintiffs have denied all the allegations made in the written statements and reiterated those made in the plaint.
64. Vide orders dated 27.10.2010 my Ld. Predecessor framed the following issues for disposing of the instant case :
1. Whether the defendant is residing in the suit property since Page 29 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
November 1979 to till date continuously in uninterrupted possession ? OPD
2. Whether the suit property was given to defendant by Late Pandit Har Swaroop under oral gift ? OPD
3. Whether the suit premises was owned by Sh. Krishan Lal who donated the property to Late Pandit Har Swaroop ? OPD
4. Whether the plaintiff has no locusstandi to file the present suit ? OPD
5. Whether the suit has not been properly valued ? OPD
6. Whether the plaintiff is a tenant of the suit property ? OPP
7. Whether the defendant was employed as operator in the factory, by the plaintiff and whether the defendant was allowed to use the suit property as licensee by the plaintiff ? OPP
8. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed ? OPP
9. Relief.
65. In support of his case plaintiff Arun Kumar examined himself as PW1 by tendering his evidence by way of affidavit Ex.PW1/A. He relied upon the documents Ex.PW1/1 to Ex.PW1/8. The documents Ex.PW1/5 Page 30 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
and Ex.PW1/6 were deexhibited being photocopy and the same are marked as Mark A to B respectively. In the crossexamination, he stated that his date of birth is 05.07.1951 and was born in District Mainpuri (UP). He came to Delhi in the year 1976. Firstly, he came to Delhi in DLF at Connaught Place and again said Raisin Cold Storage at Jhandewalan. He stated that he was working as Operator in Raisin Cold Storage. He worked there for a period of one year but he does not remember the specific year and thereafter he was transferred to Jind, Haryana. He came to Delhi after 7 or 8 months and joined Virmani Cold Storage in the last of 197879 but he does not remember the correct year. He is High School passed from Mainpuri, (UP). He further stated that he was not having any diploma or degree for working in Cold Storage but he had practical experience. He stated that he can read English language. He admitted that his address is not mentioned on Ex.PW1/5. However, his name and his father's name was mentioned there. He further stated that he got married in the year 1972 at Mainpuri (UP). He admitted that he started residing in the premises in question since November 1979 along with his wife and son. His son Pankaj born in the on 25.08.1974 and his daughter was born on 06.07.1977. His both children born at his parental house in Mainpuri (UP). He stated that the Birth Certificates of both the children have been filed in their respective school. He stated that he does not remember the name of Page 31 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
school of his son in which he filed the Birth Certificate. His son Pankaj th studied up to 10 Class in DCM school. He got his son admitted in DCM th School in 6 Standard. He does not remember in which year his son th passed 10 standard. However, DCM school is still there at Gaushala Road. He does not remember in which year he got admitted his son in th DCM school in 6 class. He stated that his son has not collected his th certificate of 10 class from the school so far. His daughter Madhur studied in DCM Girls High Secondary School at Gaushala Road. He does not remember the date of admission of his daughter in DCM school. He volunteered that 30 to 35 years have been passed. His daughter Madhur is M.Com. He does not remember when Madhur passed out the school. The property in question was given to him by Pandit Har Swaroop in the year 1979 and the same was given to Pandit Har Swaroop as a gift by Sh. Kishori Lal. He admitted that he had not seen any document regarding the title of Pandit Har Swaroop pertaining to property in question nor he ever inquired regarding the ownership of Pandit Har Swaroop in respect of the said property. He was put a question whether you have any document to show your possession in the property in dispute in November, 1979, to which he answered that he had filed a letter Ex.PW1/12 dated 04.12.1980 and Ex.PW1/7 dated 17.01.1980 and Ex.PW1/8 repairing certificate dated 196.09.1990 on record. He admitted that no document of year 1979 Page 32 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
showing his possession is on record. Reference to his address is coming on Ex.PW1/12 and Ex.PW1/7. He admitted that Pandit Har Swaroop expired in the year 1996 and there was no permanent address of Pandit Har Swaroop as he used to come after a period of 4 o 5 years. Pandit Har Swaroop live in the property in question from 1947 till 1952. The attention of the witness was also drawn towards the site plan Ex.PW1/1 and after seeing the same, he stated that Pandit Har Swaroop was residing in the portion red encircled. He admitted that the word Shyama Ice Factory as mentioned on Site Plan Ex.PW1/1 is wrongly mentioned as it is Rama Ice Factory. In property No. 9730 there is one Mandir Satsang Bhawan and his residence falls. He again said that he was residing in 9729. The property No. 9729 is consisting of two parts, in one part he was residing and in another part Rama Ice Factory is situated. Pandit Har Swaroop told him that owner of the property in dispute expired in the year 1960. He stated that firstly, he started living in the suit property as a permissive user by Pandit Harswaroop. The lock of the suit property at that time was opened by Pandit Har Swaroop. Prior to November 1979, he was living at Ghanta Ghar Subzi Mandi as a tenant but he could not tell the exact address on that day. He admitted that he was serving Pandit Har Swaroop 5 or 6 months prior to November, 1979. At that time the age of Pandit Har Swaroop might be 50 or 60 years. Pandit Har Swaroop was not residing in Page 33 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the suit property when the same was given to him as a permissive user in th year 1979. Pandit Har Swaroop used to visit the suit property after a period of six months or so and he opened the lock and gave the suit property to him. He stated that he used to serve Pandit Har Swaroop in his daily work from 5.00 to 9.00 PM. Pandit Har Swaroop used to stay at Gangeshwar Dham opposite Karol Bagh Park, New Delhi and he used to serve him in respect of daily works such cleaning and washing etc. He stated that after he was allowed to live in the suit property, Pandit Har Swaroop also used to come to him in the suit property for performing Pooja, Havan etc. Pandit Har Swaroop expired in the year 1996. He does not know where Pandit Har Swaroop expired but he came to know about his death from Gangeshwar Dham. There was no family member of Pandit Harswaroop as per his knowledge. He joined the services of plaintiff No. 3 w.e.f. September 1981 and worked there till July 20062007. He worked with plaintiff No. 3 till the factory was running. He does not remember the name of the day when defendants came to suit property but it was between 22.06.2007 between 1.00 to 2.00 PM. On that day no police complaint was made by him. He volunteered that later on they broke the lock of latrine and then he made complaint in writing to police. On his complaint he as well as Jay Singh, an employee of defendants was taken to police station where the matter was settled with the directions not to break/open Page 34 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the lock. I do not remember the date and month of the incident but it was of last year. He was told by Pandit Har Swaroop that Sh. Kishori Lal was the owner of the suit property. He stated that he does not know who was making the payment of House Tax of the suit property. However, he was not paying any House Tax of the suit property. He is having electricity connection in the suit property in his name. The electricity connection was obtained in his name after the factory i.e. Ram Ice Factory was closed. Prior to that Electricity and water was supplied by the defendants. He volunteered that as he provided Khoka to the labour of defendant, on the roof of his house, the said Khokha was provided to the labour of defendant after a period of three months when he came in the suit property. Those Khokas are in his possession. He admitted that he has not mentioned about the Khokas in his plaint and site plan as same are made of wooden planks. After closing the factory, the water supply was disconnected and then he got installed the water connection in his name. He stated that he can produce the electricity and water bills in his name in respect of the suit property. He does not know if any other person used to serve Pandit Har Swaroop except him. He admitted that in the LIC receipt Mark A as filed by him on record, his address is shown as of Ram Ice Factory. He volunteered that he was told that Rama Ice Factory is a famous place and as such the receipt can be delivered at the address. Again said he himself Page 35 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
gave the address of Ram Ice Factory as it is a famous place in the area. He admitted that except him one Chowkidar namely Jai Singh of the defendant is residing in the other part of the suit property where Rama Ice Factory is situated. He admitted that the municipal number of the suit property is 9729 and except that there is no other municipal number. He does not remember when he got the ration card issued in the suit property. He got ration card transferred at the address of the suit property from Subzi Mandi, Ghanta Ghar. He got renewed his Driving Licence Ex.PW1/6 in the year 1974 or 1978. He denied that driving license Ex.PW1/6 is a forged and fabricated document. The date of issuing of license on Ex.PW1/6 at point A is 21.04.1971 which was renewed/valid up to 21.04.1980 as mentioned at point B. In the year 1980 he got repaired a wall and tin shade which was fallen. He does not remember that the exact date but he got repaired the same after 26.01.1980. He does not know the value of the suit property. He admitted that he has no document in respect of ownership of the suit property. He volunteered that Pandit Har Swaroop gifted the suit property orally. He admitted that he is not living in the premises in dispute since 1979 and was given by Rama Ice Factory to facilitate his duties as Operator in the factory and to ensure that his services are readily available for smooth functioning of Ice Factory. He admitted that he is having licence for all legal and practical purposes in respect of the suit property. He Page 36 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
denied that Pandit Har Swaroop was not competent and was not having a valid title to gift the suit property. He also denied that suit property which is a part of property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 was taken on rent by Rama Ice Factory in 1951 for the purposes of running Ice Factory and written lease deed was executed between landlord and Rama Ice Factory. He admitted that the defendants are in continuous use and occupation of the entire premises bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 He further denied the suggestion that Late Sh. Kishori Lal has not donated one portion for Mandir and other portion for Satsang Darbar and two portions to Pandit Har Swaroop. He further denied that the site plan filed by him is incorrect.
66. PW2 Sh. Natre Pal Singh also tendered his evidence by way th of affidavit Ex.PW2/A. He deposed that he is 8 class failed. He deposed that he cannot read and understand English. He does not know what is written in the affidavit Ex.PW2/A. He does not know the name of the advocate who had read over the averments made in the affidavit. He does not know where and from whom the affidavit Ex.PW2/A was got attested. He deposed that he came to the court along with the plaintiff Arun Kumar. He knew Arun Kumar as he worked with him in Virmani Refrigeration. He Page 37 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
denied the suggestion that he had not worked with Arun Kumar at any point of time. He does not have any documentary evidence to show that he had ever worked in Virmani Refrigeration. From the document Ex.PW1/1 he could not identify the exact place in possession of Arun Kumar. He had visited Arun Kumar at his residence during his employment with Virmani Refrigeration. He denied that he never visited residence of Arun Kumar. He further denied that he is deposing falsely at the behest of Arun Kumar. He only met Arun Kumar at his residence and does not know any other person residing in the other part of the suit property. He had not seen Rama Ice Factory in the suit property. He deposed that Arun Kumar has two children one Son Ramu and one daughter namely, Gudiya.
67. Defendants also led their evidence by filing the affidavit of DW1 Sh. Salil Seth. He also relied upon the documents Ex.DW1/1 to Ex.DW1/29. In the crossexamination, he deposed that his affidavit Ex.DW1/A was prepared by him in his office in the present of his counsel in the month of February, 2013 and the same was got attested at Tis Hazari Courts but he does not remember in how many places he had signed. He does not remember as to from what period he is managing the business affairs of M/s Rama Ice Factory and Cold Storage. He does not remember whether M/s Rama Ice Factory and Cold Storage issued any joining letter Page 38 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
to the employee at the time of inducted him in the employment. He deposed that Ram Kishan Dass and Kedar Nath are the owners of the suit property.
The witness was confronted with para No. 3 of preliminary objection of Written Statement from point A to A of the connected suit which is now Ex.DW1/P1 where it is stated that the suit property was jointly owned by Sh. Kishore Lal S/o Late Sh. Hira Lal, Sh. Ram Kishan S/o Sh. Deep Chand and Sh. Kedar Nath S/o Sh. Kishori Lal. He admitted that Ex.DW1/8 does not bearing the signatures of Kishori Lal as the lessor of the sit property. He admitted that lease deed dated 21.09.1981 Ex.DW1/14 does not bear the signatures of Kishori Lal. Ex.DW1/16 & Ex.DW1/17 i.e. Site Plans were not prepared in his presence. He volunteered that these site plans are very old and were the part of the lease deed. He denied that Kishori Lal, Ram Kishan Dass and Kedar Nath were the joint owners of the suit property at the time of execution of lease deed. He further deposed that he does not remember the exact date and month of appointment of Arun Kumar but the year 1981. As a part of the employment we have given the place to stay to our employee Arun Kumar. No written document for giving accommodation to the employee was given. A court question was put the witness, What was the basis giving the accommodation to the employees, whether it was license basis ? To which he answered that he Page 39 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
was a licensee. He volunteered that since it was Ice Factory running 24 hours and it was required to be present there and that is why accommodation was provided to the employees. He does not remember the exact number of the employees employed in the year 1981. He could not tell how many employees were provided accommodation. Salary slip was given to Arun Kumar. Payment of salary was made by getting an acknowledgment on voucher by the employees. He does not remember whether any such record is placed on record for the year 1981. Attendance register was maintain in our concern. He could not say whether presently we have in our possession the old Attendance Register. He volunteered the partnership firm was paying the electricity and water bills in respect of the disputed premises regularly. He does not know whether the electricity connection is in the name of plaintiff Arun Kumar. He could not say so whether the plaintiff Arun Kumar is having an electricity connection in his name. He volunteered that since the Ice Factory was closed down in the year 2007, the firm has no electricity connection therein. The firm was taken the premises on rent in the year 1955 from Sh. Ram Kishan Dass and Sh. Kedar Nath by executing proper lease deed. He denied the suggestion that Kishori Lal alone being the owner of the suit property has gifted the same to Pandit Har Swaroop. He also denied that Pandit Har Swaroop has gifted the suit property to the plaintiff Arun Kumar out of love and affection. Page 40 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
He volunteered that Pandit Har Swaroop had no right, title or interest in the suit property. He does not know who was Pandit Har Swaroop and he had never seen him.
He does not know that the total property belongs to Kishori Lal, Ram Kishan Dass and Kedar Nath. He volunteered that the suit property is of approximately 600 sq. yards. He deposed that Kishori Lal have one son namely, Kedar Nath who also dies. Last deed was made in the year 1991 was executed by Sh. Ram Kishan Dass and Late Sh. Kedar Nath in favour of Jeevan Lal, Mohan Lal and Ganesh Seth. He does not remember if any lease deed executed by Ram Kishan Dass and Late Kedar Nath in favour of any person. In the year 2007 till date the partner were Sh. Ganesh Seth and Salil Seth is the partner by virtue of the registered Will by Late Jeevan Lal and Late Mohan Lal from the said Will I got the share in the partnership firm i.e. Rama Ice Factory and Cold Storage. He admitted that Sh. Ram Kishan Dass and Santosh Gupta (who is widow of late Sh. Kedar Nath) have filed a suit for possession against Mohan Lal Khanna and Sh. Ganesh Seth (already Ex. DW1/9). He does not know whether the suit is dismissed or decided. He denied that the said suit No. 377/2001 was dismissed. He does not know the suit property comes under the Slum area. In respect of Ex.DW1/12 the witness responded that he does not understand the legal Page 41 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
terminology and sections reflected in the order and he can not say anything about the same as the same adjudicated as beyond the jurisdiction of slum and JJ Board. He deposed that at present the actual owner of the suit property are Sh. Ram Kishan Dass and Kedar Nath. He deposed that he is not an owner of the suit property. He volunteered that the firm i.e. Rama Ice Factory and Cold Storage is a tenant since 1955. He admitted that I could not institute the present suit for eviction of defendant from the suit property who is the licensee in the suit property. He does not remember whether any document executed by the firm while the defendant was appointed. He could not remember anything about the service condition of the defendant since it is 34 years. He admitted that the defendant joined in 1981. However, he could not remember whether it month of November. It is wrong to suggest that the defendant residing since 1979. He denied that the firm has not clear the dues of the employee Arun Kumar. He admitted that one Sh. Arun Kumar present defendant has instituted the suit against the present plaintiff and Sh. Ganesh Seth on the ground that the firm is trying to dispossess him from the suit property forcefully. He volunteered that both the above said persons are the partner in the plaintiff firm. He admitted that the suit No. 1658/08 filed by Sh. Arun Kumar against Salil Seth and Ganesh Seth had been clubbed the present suit as per the orders of the Hon'ble High Court of Delhi. He denied that he is not entitled to file Page 42 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the present suit. He is a tenant in the suit premises and he could not keep a licensee in the same though he could not sublet the same to a tenant. He deposed that he was tenant of Sh. Ram Kishan Dass and Kedar Nath as per the rent lease. Rent agreement was executed between Sh. Ram Kishan Das, Kedar Nath and the firm of the plaintiff in the year 1991 lastly. He was put a question whether firm is a lessee or a tenant in the suit premises ? To which he replied that the firm is a tenant in the suit premises since 1955. He was also put a question regarding lease agreement dated 26.04.1991, whether the same was executed for a period of 10 years and at the place of lessee the signatures of the partners of the firms were appended, to which he replied that it is a rent agreement. He deposed that he does not remember in which year Sh. Kishori Lal died. He denied that Sh. Kishori Lal was expired in the year 1960. He further denied that entire property is in 1500 sq. yards. He further denied the suggestion that the suit property was inherited by Sh. Kishori Lal by way of partition. He does not know whether Kishori Lal have no son. He again said that Kishori Lal had son namely Sh. Kedar Nath. He also volunteered that he had no concern with the family details of Sh. Kishori Lal. He denied that prior to his death Sh. Kishori Lal gifted the suit property to Pandit Har Swaroop. Page 43 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
He further stated that they have two partners at present. The company namely, Ram Ice Factory & Cold Storage at present is running in documentary but it is not running for production of the company. He volunteered that as per the Supreme Court order no Industrial unit was supposed to run in residential/commercial area. He stated that Arun Kumar was not staying /residing before appointment. He was put a question whether he had filed the ownership documents of the actual owner of the suit property on record ? To which he answered that he had not filed on record the ownership document but had filed copies of registered lease deed executed by the owners of the property in favour of the plaintiffs. He stated that as he remember the last lease deed executed by the owner of the suit property in favour of the plaintiff in the year 1991. He volunteered that as on date they were paying the rent to the owners of the property and the house tax to MCD. He denied that he had no right to file the present suit against the defendant. He denied that Sh. Arun Kumar is residing in the suit property prior to 1979. He denied that the present has been filed by the plaintiff to grab the suit property. As per his knowledge Sh. Deep Chand had no issue. He volunteered that the owners of the suit property are the necessary party who have already been impleaded as party and have filed their written statement on record. He denied that he had filed the present suit on fake averments.
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Salil Seth & Anr. Vs. Arun Kumar & Anr.
68. I have heard arguments advanced by Ld. counsel for the parties and carefully perused the record.
69. For the sake of convenience the issues framed in the latter suit would be decided first.
My issuewise findings are as under : Issue No. 1 Whether the defendant is residing in the suit property since November 1979 to till date continuously in uninterrupted possession ? OPD It is the claim of the defendant that he has been living in the suit property since November, 1979 till date in uninterrupted possession. Arun Kumar, who is the defendant in the present case admitted that he has no document of the year 1979 to show that he is in possession of the suit property since 1979. Though he claimed that a letter Ex.PW1/2 dated 04.12.1980 & Ex.PW1/7 dated 17.01.1980 and also Ex.PW1/8, a Repairing Certificate dated 06.09.1990 is on record. He also claimed the reference to his address is coming in Ex.PW1/12 & Ex.PW1/7. He further claimed in his crossexamination that he was a permissive user of Pt. Har Swaroop since 1979 before he gave the property to Arun Kumar by way of an oral Page 45 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
gift.
It is also interesting to note that despite the claim of defendant that his children has studied in D.C.M. School nearby Gaushala Road but he has not produced even a single education certificate of his children on record to establish that he has been living in the premises in dispute prior to 1979, when admittedly he joined the employment of the plaintiff as Operator of Ice Factory run by plaintiff's firm. A close scrutiny of the letters relied upon by the defendant to show that he has been in possession of the property in dispute reflects that no postal stamps or envelope are accompanied with the said letters to establish that they were written at the address of 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 prior to 1980. The plaintiff is unable to prove that Ex.PW1/7 & Ex.PW1/8 were posted or delivered to him at the disputed property in the year 1980 & 1981 respectively. The author of the letter was not produced as a witness to establish this fact. Further no explanation has been given by the plaintiff for not producing the educational certificate of his children who were stated to have studied in a nearby school situated at Gaushala Road. Whereas Ex.PW1/6 which is a Driving License, claimed to have been issued on 21.04.1971 to Arun Kumar is concerned, the address mentioned on it reflects the address of disputed property. As per the defendant's admission he came into possession of the same in 1979, then how a Driving License Page 46 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
issued in 1971 bore the address of the disputed property. Clearly, either plaintiff is telling a lie or a manipulation has been done in the license. Plaintiff also alleged this Driving License to be fake and fabricated document procured by the plaintiff. No witness has been summoned by the defendant to prove its authenticity or to clear the ambiguity. Whereas the plaintiff has issued a notice to the defendant Ex.PW1/10 whereby it is clearly stipulated that accommodation had been provided to the defendant by the employer with water and electricity facilities. Since the factory premises fell into nonconfirming zone declared by the Master Plan and also due to the directions of the Hon'ble Apex Court the factory is forced to close down in October, 2006. His services were terminated, he was called upon to surrender the peaceful possession of the property in dispute.
The plaintiff attempted to establish his claim by reply to the notice vide Ex.PW1/2 and claimed his right over the accommodation as obtained by a oral gift by Pt. Har Swaroop. Defendant claimed his independent right over the premises in question and reflected that same was allotted to him along with accommodation and other facilities to run the plant smoothly and part his service conditions. Though how the plaintiff got an oral gift in the close vicinity with Ice Factory of the plaintiff has not been explained by the plaintiff.
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PW2 Sh. Natre Pal Singh also could not prove the claim of Arun Kumar that he was in uninterrupted possession of the suit property since 1979. He could not stand on his examination in chief and even failed to identify the exact place in possession of Arun Kumar when confronted with Ex.PW1/1. The witness was also unable to show that he worked in Virmani Refrigeration along with Arun Kumar. The testimony of the witness is scattered and does not repose faith of the court. For the reasons enumerated above, I have no hesitation in holding that Arun Kumar has failed to prove that he has been in uninterrupted possession of the property in dispute since 1979. Hence, the issue is decided accordingly. 70. Issue No. 2
Whether the suit property was given to defendant by Late Pandit Har Swaroop under oral gift ? OPD The very basis of the claim of defendant is that he has obtained the property in dispute by Late Pandit Har Swaroop under oral gift. However, it is established law of the land that no gift of an immovable property be made without executing a registered gift deed by the donor who has right and title of the gift property, in favour of a person.
Section 123 of the Transfer of Property Act stipulates that : Page 48 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Section 123 : Transfer how effected : For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Similarly Sec. 17(1)(a) of the Indian Registration Act clearly mandates instrument of gift of immovable property shall be registered.
It is admitted by Sh. Arun Kumar in his crossexamination that he has no documents in respect of ownership of the suit property and Pandit Har Swaroop gifted the suit property orally. Further how the property in dispute came to Pandit Har Swaroop is also not clear. It is claimed to have been gifted to him by Sh. Kishori Lal. The title of the property to Pandit Har Swaroop is shrouded in clouds which raises a question on his capacity to make any such gift. However, as per law an oral gift of an immovable property has no effect in the eyes of law.
It has been observed by the Hon'ble High Court of Bombay Page 49 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
(then) in case titled as, "Atmaram Sakharam Kalkye Vs. Yaman Janardan Kasheliker, (1925) 27 BOM LR 290 that Sec. 123 provides that for the purposes of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor & attested by at least two witnesses.
In the instant case we are concerned with a gift of immovable property and it seems to me to be the clear effects of these two sections that until the document is registered the gift is incomplete in law even though the other two conditions as to the instrument being duly signed and attested and as to acceptance are satisfied. The Hon'ble High Court further observed that unregistered document has no effect in the eyes of law and it does not confer any title upon the donee. It is a matter of record that claim of defendant rest upon an oral gift of immovable property which cannot be an accepted preposition as per the law of land. Hence, I have no hesitation in holding that no Gift was made in favour of defendant by Late Pandit Har Swaroop. Hence, this issue is decided in favour of the plaintiff and against the defendant.
71. Issue No. 3 Page 50 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
Whether the suit premises was owned by *Sh. Krishan Lal"
who donated the property to Late Pandit Har Swaroop ? OPD ( Typographical error while framing issue and to be read as Kishori Lal) In the deliberation made in the previous issue, it is settled that there was no gift made in favour Sh. Arun Kumar by Pandit Har Swaroop as an oral gift of immovable property is voidabinitio and has no effect in the eyes of law. Further, the title of the disputed property in favour of Pandit Har Swaroop is also not clear as it is the admission of the defendant. The property in dispute was given to him by Pandit Har Swaroop in the year 1979 and same was given to Pandit Har Swaroop as a gift by Sh. Kishori Lal. Sh. Arun Kumar also admitted that he had not seen any document regarding the title of Pandit Har Swaroop pertaining to the property in question nor he ever inquired regarding the ownership of Pandit Har Swaroop in respect of the said property. Admittedly, there is nothing on record to show that any oral gift of the property in dispute has been made by late Pandit Har Swaroop in favour of defendant. Further, there is nothing on record to show that Pandit Har Swaroop has anything to do with the property in question of which the suit property is an integral part. Similarly, there is no question of Sh. Kishori Lal who happened to be the coowner of the property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 gifting away any portion of the same to Pandit Har Page 51 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Swaroop. Defendant No. 2 who is the decendents of the coowner of the suit property has admitted the case of plaintiff in toto and revealed these above mentioned facts with respect to the ownership and the alleged gift made to Pandit Har Swaroop by their ancestors Sh. Kishori Lal. Defendant No. 2 refuted the claim of defendant No. 1 in clear terms. However, despite that no efforts were made by the plaintiff to produce defendant No. 2 in the witness box to confront his stand. [It is pertinent to mention that by this judgment the court is not expressing its view about the ownership of the property in dispute since it is not the subject matter of the present suit. However, due to necessary implications an observation on the material available on record is to be made for the purpose of adjudicating the present controversy].
There is nothing on record to show that Sh. Kishori Lal had made any gift of the suit property in favour of Pandit Har Swaroop and the court is of the view that the preposition presented before the court is difficult to accept as far as the factum of gift through Late Pandit Har Swaroop is concerned. For the reasons stated above, the issue is decided accordingly. 72. Issue No. 4 & 5 Page 52 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
Whether the plaintiff has no locusstandi to file the present suit ? OPD And Whether the suit has not been properly valued ? OPD Since both these issues pertains to the legal objection raised by the defendant, hence they are taken together.
From the deliberations made in the earlier issues, it is reflected that Sh. Arun Kumar has no right, title or interest with regard to the property in question. Further, he failed to prove that the same has been given to him by way of a gift by late Pandit Har Swaroop as claimed. The capacity of late Pandit Har Swaroop to make any such gift is also not proved as per the law. In these circumstances, it is clear that the oral gift as claimed by the plaintiff is voidabinitio and does not confer any right, title or interest upon the donee/Arun Kumar. It seriously affects the locus of Arun Kumar to bring a suit on the basis of oral gift and adverse position. He failed to establish that he has been in possession of the property in question in his own independent right and this right is not offshoot of the terms of the employment.
During his crossexamination defendant admitted that neither Page 53 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
he is aware of the value of the suit property nor he pays any municipal tax with respect to the same. However, no further suggestions or questions were put to the defendant by the opposite party. A perusal of the plaint reveals that connected suit of the plaintiff (defendant herein) has been filed with respect to the injunction of the suit premises two rooms, Varandah, kitchen, toilet and bathroom situated in property bearing No. 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. Whereas defendant No. 2 in their written statement has revealed that the entire suit property consists of a plot of land measuring about 600 sq. yards.
It is clear that the suit filed by the plaintiff (defendant herein) has been filed with respect to the property in question which is the residential accommodation of Sh. Arun Kumar and to evaluating the suit on the basis of entire 600 sq. yards would not be correct proposition. Hence, the issue in absence of any rebutting evidence is decided accordingly. 73. Issue No. 6 & 7
Whether the plaintiff is a tenant of the suit property ? OPP And Whether the defendant was employed as operator in the factory, by the plaintiff and whether the defendant was allowed to use the suit property as licensee by the plaintiff ? OPP Page 54 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Both these issues are interrelated, hence both these issues are taken together.
During the course of crossexamination Sh. Salil Seth deposed that the plaintiff's firm appointed Sh. Arun Kumar in the year 1991 as a part of the employment he was given a place to stay adjoining to the Ice Factory. The witness also deposed that Sh. Arun Kumar was given the above said accommodation on the basis of a licensee. He also stated that it was a Ice Factory running 24 hours, he was required to be present for the smooth running of the factory, hence he was provided accommodation. The witness also claimed that the plaintiff's firm was paying electricity and water bills in respect of the dispute premises regularly and he does not know whether the electricity connection exists in the name of Arun Kumar. The crossexamination of the witness further revealed that since the Ice Factory was closed down in year 2007 and thereafter, the firm has no electricity connection therein. The material available on record also correspond the testimony of Sh. Salil Seth where it is manifested that the electricity bills with respect to the suit property is in the name of one Sh. Pankaj Kumar pertaining to the year 2005. Mark A is the photocopy of the Ration Card issued in September, 2005 manifesting the names of the Page 55 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
family members of Sh. Arun Kumar. Similarly, the telephone connection is also in the name of Sh. Pankaj Kumar, son of Sh. Arun Kumar, registered in the year 2001 which is Mark P1 (Colly.) and Mark P2 is the photocopy of Gas Connection in the name of Arun Kumar reflecting the address of the disputed premises issued in the year 1984.
Above mentioned all these documents goes to show that Sh. Arun Kumar was living in the property in question since 1981 but failed to establish his independent right over the suit property as claimed by him. The electricity bills and telephone connections etc. establish their possession on the property in dispute which is also admitted by the plaintiff's firm. These documents are unable to show that he was not a licensee in respect of the property in dispute and enjoying the same as a donee /owner of the same. It is admitted by Sh. Arun Kumar that he does not pay any municipal taxes in respect to the property in question which is claimed by the opposite party that they have been paying the municipal dues in respect of the entire suit property as and when the demand is raised by the municipal authorities.
The defendant Sh. Arun Kumar also admitted when he was Page 56 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
crossexamined that he has been working in the Ice Factory of the plaintiff's firm since 1981 but there is nothing on record to establish that how he came into possession of the property in dispute in such a close vicinity of the Ice Factory without being an accommodation allotted to him by the employer by virtue of his employment. Further more, the nature of his job as an Operator in the Ice Factory requires his presence 24 hours in the factory for smooth running of the same. This fact has not been disputed by the defendant Sh. Arun Kumar. From the material available on record, an inference may be drawn that defendant Sh. Arun Kumar was given the accommodation in the suit property on the basis of a license and he was neither a tenant nor was an owner by way of adverse possession or by a gift.
Though it is also an admitted position that the plaintiff's firm is the lessee of the suit property and they are paying rent to the owner/LR's of the suit property. There is no dispute interse between the plaintiff's firm and the LR's of the owner of the suit property. There are various copies of the Lease Deeds placed on record executed between the parties from time to time.
Ld. counsel for the plaintiff has relied upon the judgment titled Page 57 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
as, "Chandu Lal Ltd. Vs. MCD" reported in 15 DLT (1979) 168. The Hon'ble High Court has illuminated the difference between the License & Lease in the said judgment. It has been observed that, "It is truesaying that the intention to the parties is the real test for ascertaining the character of a document. It is beyond challenged that if a document gives only a right to use property in a particular way but its possession and control remains with the owner thereof. It will be a license. From the definition of license in Sec. 5 of the Easement Act, it is evident that a license only makes an action lawful which without it would be unlawful but does not transfer any interest in favour of the licensee in respect of the property. It further held that there are catena of authorities in support of the proposition that in the case of a license therein something less than a right to enjoy the property in the license. It cannot be exercised by servant, agents and his termination while on the other hand, the case of lease, there is a transfer of a right to enjoy the property or in other words the lease is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for the possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. No doubt, a person in exclusive possession of the property is primafacie to be considered to be a tenant. Never the less he would not be held to be so if Page 58 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the circumstances negative any intention to create tenancy. In the present case it has to be seen that the property in question has been in possession of the defendant as by virtue of his employment, or otherwise, as a tenant. However, no rent receipts are on record to show the factum of any tenancy. The claim with reference to the right of defendant as the donee and owner of the property in dispute has also been established in negative. Leaving the only possibility of defendant being in possession of the property in dispute as a licensee by virtue of his employment. The payment of electricity and water bills by the plaintiff's firm also indicates the fact that defendant was in permissive possession of the property in dispute by virtue of his employment. Both these issues are decided accordingly. 74. Issue No. 8
Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed ? OPP From the discussions made on above mentioned issues, it is clear that the defendant is a licensee by virtue of his employment with respect to the suit property and his license has been duly revoked by issuing a notice dated 24.07.2007 by plaintiff No. 3, who was one of his employers.
The defence by the defendant has proved to be sham and Page 59 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
hollow and there exists no grounds for his possession on the suit property after the revocation of his license by his employer.
The Hon'ble High Court of Delhi has observed in case titled as, "Parmanand Jha Vs. Shri Sanatan Dharam Sabha" that the case of the petitioner is that he has been functioning as the Head Priest of the temple and had also been employed as clerkcumcaretaker by the respondent Sabha at the temple.
A sum of Rs. 800/ per month was paid to the petitioner while the respondent got a receipt signed only for Rs.100/. It is claimed that his salary in the year 1975 was Rs. 300/ per month and rent of Rs.200/ was deducted from January 1988. Prior to 1988, Rs. 50/ were deducted for the old room. Petitioner claims that he had asked for an increase in the salary as a result of which the respondent asked him to vacate the premises. Respondent denied that the petitioner was a tenant. It is claimed that he was, by virtue of his employment, given a room, free of rent for residence. Electricity and water charges were paid by the respondent. The petitioner was paid salary @ Rs.100/. However, he was entitled to perform Poojas and conduct other religious ceremonies, the income from those was retained by him.
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Petitioner claims that he has been in settled possession. He has a ration card and his name appears in the voters list. It is contended that even a trespasser could not be dispossessed without the due process of law. It is contended that the petitioner being in settled possession, the question whether it was in the capacity as a tenant or by virtue of his being an employee, required evidence and consideration during trial. Pending the same, his possession ought to be protected. The Ld. Civil Judge held that the petitioner did not have a primafacie case. He held that the appointment letter dated 31.10.1983, which is not disputed by the petitioner, negated the petitioner's plea of tenancy. In para No. 2 of the said letter it is specifically mentioned that the petitioner had been given one room within the premises of the temple and that no rent was to be charged. The petitioner, at best, could be said to be a licensee, which stood terminated. Petitioner himself claims to be under threat of dispossession.
It has been further observed by Hon'ble Punjab & Haryana High Court in, "Durga Devi Vs. Ganeshi" (P&H) 1997 (I) RCH 266, that under the garb of permissive use of the demised premises, the plaintiff cannot claim an injunction against a person in whose favour the license/lease has been validly conferred by the Municipal Page 61 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
Committee.
It has also been observed in the landmark judgment of Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack De Sequeria (Dead) Through LR's, reported as II (2012) SLT 753 that para 100 of the judgement the Hon'ble Apex Court has elucidated the principle of permissive possession and the implication attached to it in following words :
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease Page 62 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
From the material available on record the profound deliberations referred in above cited judicial precedents, it is clear that the defendant was licensee by the virtue of his employment in the property in question and was permitted to use it as a permissive user, facilitating the operation of the Ice Factory and when the Ice Factory was closed down, the services of the employee/defendant was terminated by the plaintiff's firm by giving him one month's notice. There is no dispute on the aspect of receiving the notice by the defendant since he has also replied the same by a legal notice to the plaintiff's firm.
Defendant being a licensee has no authority to dispute the lease rights of the plaintiff's firm. It is also evident that he failed to establish a case of adverse possession and gift as claimed. Possession of the defendant at the property in dispute is no more than permissive use of the same.
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In the light of above cited judicial precedent and material available on record, I am of the view that the plaintiff is entitled for the relief of mandatory injunction as prayed. Issue is decided accordingly.
75. My findings in suit titled as, "Arun Kumar V. Salil Seth" on the following issues are also as under :
Issue No. 1.
Whether suit is not maintainable in view of P.O. No. 3 of W.S.? OPD The defendants have taken an objection that the suit of the plaintiff is not maintainable in view of Sec. 38 of the Specific Relief Act, 1963.
Section 38 of the Act stipulates the conditions where perpetual injunction may be granted to a party.
Perpetual injunction when granted : (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court Page 64 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely :
(a) where the defendant is trustee of the property for the plaintiff;
(b)where there exists no standard for ascertaining the actual damage cause, or likely to be cause, by the invasion;
(c)where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
It is established law of the land as held in 2008 AIR SCW 2692 that :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is remedy. Where plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
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(b) As a suit for injunction simpliciter is concerned only with possession, normally issue of title will not be directly and substantially in issue. Prayer for injunction will be decided with reference to finding on possession. But in cases where de jure possession has to be established on basis of title to property, as in case of vacant sites, issue of title may directly and substantially arise for consideration, as without a finding there on, it will not be possible to decide issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where averments regarding title are absent in a plaint and where there is no issue relating to title. Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if matter involves complicated questions of fact and law relating to title. Court will relegate parties to remedy by way of comprehensive suit for declaration of title, instead of deciding issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if matter involved is simple and straight forward, court may decide upon issue regarding title, even in a suit for injunction. But such cases, are exception to normal rule that question of title will not be decided in suits for injunction. Page 66 of 70 CS No. 371/14
Salil Seth & Anr. Vs. Arun Kumar & Anr.
But persons having clear title and possession suing for injunction, should not be driven to costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. Court should sue its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon facts of case.
It is evident from the findings in the earlier issue that the plaintiff failed to prove his exclusive possession over the property in question. The permissive user or licensee has no right to sue for injunction in these facts and circumstances against his employer/defendant, who by virtue of nature of employment of the plaintiff (herein) provided with an accommodation adjacent to the plant of Ice Factory. It is also matter of record that the owner of the suit property has admitted the case of defendant (herein) in toto in the connected matter and this fact cannot be ignored and has a definite bearing upon this case as well. The owner of the suit property has validated the claim of Sh. Salil Seth and admitted that there are business relations with Salil Seth since long and the suit property was given on lease to his firm by them.
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As per the requirement of Sec. 41 of Specific Relief Act, the plaintiff has failed to show that he has come with clean hands before the court and the conduct of the plaintiff disentitle him for the relief sought as he has acted in unfair or inequitable manner not disclosing the true facts of the case. In this event the facts and circumstances of the case and the material available on record disentitle the plaintiff (Arun Kumar) to get the relief of injunction as claimed. For the reasons stated above the issue is decided in favour of defendant (Salil Seth) and against the plaintiff (Arun Kumar).
76. Issue No. 2
Whether plaintiff (Arun Kumar)is entitled to decree of permanent injunction, as prayed for ? OPP Needless to say that onus to prove the issue was on the plaintiff (Arun Kumar). The documentary evidence brought on record by him i.e. Ex.pw1/1 to Ex.PW1/8 and Mark A & B (Deexhibited documents Ex.PW1/5 and Ex.PW1/6 respectively) failed to establish his independent exclusive possession right over the property in question. The plea of oral gift of the property in question is against the settled law of the land leads to one inescapable conclusion that plaintiff Arun Kumar was given the property in question by virtue of his employment by his employer who was Page 68 of 70 CS No. 371/14 Salil Seth & Anr. Vs. Arun Kumar & Anr.
the lease holder of the entire suit property to him to facilitate the smooth running of the Ice Factory. When the Ice Factory was closed down in compliance of the directions of the Hon'ble Apex Court as the area where the same was situated fell into nonconfirming zone declared by Master Plan of Delhi in October, 2006. His services were terminated due to compelling circumstances with a notice of one month and he was called upon to vacate the accommodation provided to him by the Rama Ice Factory & Cold Storage situated at 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007. There is no ocular or documentary evidence to rebut the case of the defendant and the plaintiff herein has miserably failed to prove his case. Issue is decided accordingly.
77. Relief.
The suit of the plaintiff (Salil Seth) is decreed for the relief of mandatory injunction against the defendant (Arun Kumar). The defendant is directed to hand over the peaceful possession of the suit premises bearing 9729, Gaushala Road, Double Fatak, Kishan Ganj, Delhi110007 as shown in the site plan attached Ex.PW1/1 as the area shown in red colour comprising of two rooms, open varandah, store, bathroom and toilet etc. appurtenant to the erstwhile Rama Ice Factory located in the suit property.
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Accordingly, the suit filed by Arun Kumar for the relief of permanent injunction against Sh. Salil Seth stands dismissed. Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (Kadambari Awasthi)
today on 15.05.2015 Civil Judge 02 (Central),
Tis Hazari Courts, Delhi.
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