Delhi District Court
Sandeep Saini vs Anita on 9 June, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE CENTRAL9: DELHI
Suit No. 22/07
1. Sandeep Saini
s/o late Sh. Babu Lal
2. Mrs. Sumitra Devi
widow of Sh. Babu Lal
Both r/o 255657
Tiraha Behram Khan
Darya Ganj
New Delhi110002
.....Plaintiff
Vs.
1. Anita
Widow of late Sh. Devraj
2.Smt. Arati
married daughter of late Sh. Devraj
3. Sh. Sumit
son of late Sh. Devraj
4. Sh. Amit
Suit No. 22/07 Page 1 of 18
son of late Sh. Devraj
5. Smt. Poonam
married daughter of late Sh. Devraj
All permanent residents of :
D6/11, Ganga Apartments
Dilshad Garden
Trans Yamuna
Delhi110031.
Also available at:
255657(1/2), Tiraha Behram Khan
Darya Ganj, New Delhi110002.
.......Defendants
Suit filed on 27.01.2007
Date of judgment 09.06.2011
JUDGMENT
1. Plaintiffs have filed the present suit for possession and mesne profits praying for a decree for possession in respect of tin shed admeasuring 23 ft.10 inches X 25 ft. as shown in red colour in the site plan annexed as annexture B i.e portion of the property bearing Suit No. 22/07 Page 2 of 18 No. 25562557, Tiraha Behram Khan, Daryaganj, New Delhi (hereinafter referred as suit property) and for a money decree for recovery of Rs. 1,80,000/ on account of mesne profits/damages for unauthorised use and occupation of the suit property for the period of three years immediately preceding the date of institution of the suit. The plaintiff has also prayed for a decree of mesne profits/damages for the use and occupation of the suit property from the date of institution of the suit till the date on which the defendants hand over to the plaintiffs the physical possession of the suit property or in an alternative hold an enquiry U/o 20 Rule 12 CPC for determining the mesne profits/damages for the said period alongwith pendente lite and future interest @ 10% per annum compounded every six months. The suit of the plaintiffs is that Shri Bhagwan Sahai and Shanti Saroop were the joint owners of one plot and parcel of land with tin shed and other super structure etc built thereupon bearing municipal number 25562557, Tiraha Behram Khan, Darya Ganj, New Delhi. There was partition between the two coowners as a result of which one half specified portion of this property fell to the exclusive share of Shri Brahm Sahai, S/o Shri Girdhari Lal. On 27.5.86, shri Bhagwan Sahai executed his last will and testimony and he expired on Suit No. 22/07 Page 3 of 18 05.12.91. His son Shri Babu Lal had predeceased him. Consequently in terms of his Will dated 27.5.86 his rights/title in the said property devolved jointly upon the plaintiffs and Smt. Urmila Devi. On 15.07.05 Smt. Urmila Devi relinquished all her rights, title and interest in the said property in favour of the plaintiffs vide registered relinquishment deed. Hence now the plaintiffs are the absolute owners of the half portion of the property bearing no. 255657, Tiraha BehramKhan,Darya Ganj, New Delhi. The portion which is a subject matter of this suit is a tinshed admeasruing 23'10'' X 25' as shown in red colour in site plan i.e the suit property. For the last many years, suit property was in occupation of Shri Dev Raj. In fact Late Shri B.B. Chaudhary was inducted in the suit property by the then owner and landlord Shri Bhagwan Sahai and was paying to Shri Bhagwan Sahai a comprehensive rent of Rs. 100/ which was later on enhanced to Rs. 1500/ per month and also increased thereafter. After the death of Shri B.D. Chaudhary, the rent was lastly paid by his son Shri Dev Raj (now deceased) @ Rs. 1996.50/ per month. On 16.10.2002 Shri Rakesh Kumar, advocate acting for and on behalf of the plaintiffs had sent Smt. Dev Raj, a legal notice being a notice interalia of demand for outstanding arrears of rent at the statutory rate due on the said Suit No. 22/07 Page 4 of 18 arrears. The notice was despatched by post and duly served upon Shri Dev Raj in a normal course of business of post office. Soon thereafter, Shri Dev Raj opted to send a reply dated 03.12.2002 through his counsel Shri Suresh Kumar Arora refuting the contents of the notice dated 16.10.2002 wherein Shri Dev Raj for the first time alleged that he had become the owner of premises in suit by adverse possession, his possession having been uninterrupted, hostile for the rd last 14 years. In fact at no point of time prior to 3 December 2002, Shri Dev Raj had ever alleged that he was in adverse possession of the suit premises or any part thereof. The fact remains that even today MCD continues to assess the premises for the purpose of payment of property tax under the Delhi Municipal Act 1957 in the name of Shri Bhagwan Sahai ( the grandfather of plaintiff No.1 and father in law of plaintiff no.2). The property tax of the said premises had been paid by the plaintiff for the period ending 200304. In accordance with the legal advice received, the plaintiffs on 19.11.2003 had instituted an eviction petition against the defendants invoking clauseA of the proviso of sub section 1of Section 14 of DRC Act interalia propounding that they were the tenants in the suit premises and were liable to be evicted therefrom as their predecessor Suit No. 22/07 Page 5 of 18 had failed to tender or pay the arrears of rent notwithstanding due service of notice of demand upon him. The eviction petition was pending in the court of Ld. ARC at Delhi and present defendants were respondents in the eviction petition. The respondents were duly served with summons/notices of institution of the eviction petition. Even though respondents/defendants appeared before ARC, they inspite of several opportunities did not file any WS and the matter remained in abeyance after Ld. ARC proceeded exparte against them. Ultimately it was discovered that suit property was situated in a notified slum area and therefore the eviction proceedings were misconceived/barred by virtue of embargoes contained in the slum areas. Consequently those proceedings were abondened and eviction petition was accordingly dismissed as withdrawn. The plaintiffs particularly the plaintiff no.1 called upon the defendants and particularly the defendant no.1 sometime during the course of the day on 26.11.2006 and requested him to handover the actual physical possession of the suit property to plaintiffsowners. The defendants jointly and severally declined to pay any heed. The fact remains that defendant is in actual physical possession, use and occupation of the premises in the suit without the consent and authority of the Suit No. 22/07 Page 6 of 18 plaintiffs/owners. Even according to their own showings and avernments they are in illegal and unlawful use and occupation thereof and claimed themselves to be in adverse possession of the suit property. The plaintiffs being the owners of suit property are entitled immediately not only to the actual physical possession of the suit property on the basis of their title but also to recover from defendants damages for use and occupation of the suit property. Consequently the defendants have no right, title in suit property as they have already reputiated the tenancy rights and asserted the hostile title in themselves for the premises in the suit. Hence the present suit.
2. The claim of the plaintiffs has been contested by defendant no.1. Defendants No.2 to 5 could not be served by ordinary process. They were served by way of publication in the newspaper "Statesman" and were proceeded exparte vide orders dated 22.02.2008. The suit has been contested by defendant No.1 who in her WS has taken the preliminary objection interalia that the suit is not maintainable in law. Objection has also been taken that the plaintiffs have no locus standi to file and maintain the present suit and it is asserted that Late husband of defendant no.1 had taken the premises on rent since last Suit No. 22/07 Page 7 of 18 about 20 years and since then she was in physical possession, use and occupation and her possession is open continuous and uninterrupted. Since no one made any claim, right or title in any manner, the defendant has become the owner of property by way of adverse possession. It is also submitted that at the time when her husband took the premises the rate of rent was agreed @ Rs. 100/ per month which was not increased in any manner whatsoever. Objection has also been taken that the property in suit is situated in a slum area and the suit can not be maintained without permission from the slum authority. In any case if the defendant is not the owner by way of adverse possession, even then at least she is the tenant in the suit premises and protected under the law of tenancy. On merits, ownership of plaintiffs is denied for want of knowledge. It is denied that the rent had enhanced during the course of time and reasserted that the rate of rent was agreed @ Rs. 100/ per month. It is the stated that the market value of the area has not increased much and prevailing rate of rent in the locality is not more than Rs. 300/ per month. The rent was never increased and the for the last about 12 years, nobody claimed or received any rent. It is denied that defendants are in unlawful occupation of the suit premises or they are Suit No. 22/07 Page 8 of 18 liable to pay any mesne profits. It is reasserted that defendants are in lawful possession as owners or alternatively at least the tenants in the suit property. In the replication, the plaintiff has controverted the avernment made in the WS and reaffirmed his plaint. It is not disputed that husband of defendant no.1 was tenant in the suit property.
3. On the pleadings of parties following issues are framed for consideration on 18.09.2008:
i) Whether the plaintiff is entitled to the relief of possession in respect of property No. 25562557, Tiraha Behram Khan, Darya Ganj, New Delhi?
ii) Whether the plaintiff is entitled to recover an amount of Rs. 1,87,000/ towards mesne profits/damages for unauthorised use and occupation of the suit property?OPP
iii) Whether the plaintiff is entitled to claim the interest on the said amount?
iv) Whether the suit of plaintiff is without any cause of action?
v) whether the plaintiff has no locus standi to file the present suit?
vi) Relief.
4. Subesequently on an application moved U/o 14 Rule 5 R/w 151 Suit No. 22/07 Page 9 of 18 CPC, additional issue was framed on 18.12.2008 i.e "Whether the defendants are owners by way of adverse possession"? OPD
5. It is pertinent to mention here that at the final stage, Ld counsel for defendant also moved an application U/o 6 Rule 17 CPC praying for seeking amendment of the WS to the extent of making addition in the preliminary issues. He has added for adding preliminary issues No. 7, 8 and 9 as mentioned in the application. Preliminary issue No.7 which is proposed to add that the "tenancy of defendant is protected by provision of DRC Act". It is stated that as per the own admission of petitioners, father in law of respondent no.1 and grand father of defendant no.2 to 5, Shri B.D. Chaudhary was inducted as a tenant in the premises in the suit by the earlier landlord/owner Shri Bhagwan Sahai @ Rs. 100/ per month and after the death of Shri B.D. Chaudhary, his son Shri DevRaj became the tenant and after him the respondents are in occupation of the premises. It is evident that on these admitted facts, the tenancy of respondents in respect of suit premises is protected by law. Vide para8 the defendant proposes to add the preliminary objection that the suit of plaintiff is barred by the provision of Section 50 of the DRC Act and vide preliminary objection No.9, the defendant wants to add that without prejudice to the other Suit No. 22/07 Page 10 of 18 submissions, the provisions of transfer of property Act and are not applicable in the facts and circumstances of the case and present suit for possession, damages/means profits etc is liable to be dismissed as not maintainable. Ld counsel for plaintiff has filed the reply to the application and taken the preliminary objection that the application is an abuse of process of court since the defendant throughout maintained on the present record that she was the owner of the suit property by an adverse possession. Now she can not turn around and propound that she is the successor of the tenant in the suit premises, whereof she is tenant in the premises in suit in her own right as alleged. It is alleged that the application is not only frivolous but also vaxacious. The plea of title by adverse possession as also the alternative of tenancy, being mutually destructive to each other can not be raised simultaneously in a defence to a suit for ejectment based on title. Therefore what is sought to be introduced by way of proposed amendment is not permissible in view of the findings in judgment of Division Bench of our own High Court in Case "S. Pritam Singh Vs Ram Narayan" reported as 1991 (1) Apex Decisions 785". It is stated that the reasons which according to defendant no.1 necessitated in the proposed amendment has also not been spellt out Suit No. 22/07 Page 11 of 18 in the application. I have given my thoughtful consideration to arguments addressed by counsel for both the parties on application. During the course of arguments , Ld counsel for defendants submitted that he did not want to adduce any additional evidence on the preliminary objections proposed to be added in his WS.
6. In pritam Singh Vs Ram Narayan's Case, Hon'ble High Court held that "objection U/s 5o of the DRC Act 1958 as to lack of jurisdiction is based on assumption that the appellants are the tenants in the premises in suit and therefore the provision U/s 50 of DRC Act would apply to exclude the jurisdiction of civil courts. The appellants however failed to prove the relation ship of landlord and tenant hence the plea is of no consequence". In the cited case, it was claimed that the appellants had inadvertently omitted to take the objection of limitation and lack of jurisdiction in the trial court. Objection and pleas being legal in nature it could be raised at the appellate stage. In the cited case, in the WS, plea taken on behalf of appellant was that they were in occupation of suit property and were not unlawful occupants. They also denied that respondents were the owners or had acquired the ownership rights. It was further observed "even if the legal pleas which were sought to be raised were considered, it would not make Suit No. 22/07 Page 12 of 18 any difference since they were devoid of merits. The objection as to lack of jurisdiction is based on assumption that appellants are the tenants in the premises in suit and therefore provisions U/s 50 of DRC Act would apply to exclude the jurisdiction of civil court. The appellants however failed to prove the relationship of land lord and tenant and hence the plea is of no consequence". It was further observed that the plea of tenancy and having acquired ownership by adverse possession are mutually destructive on each other. Unlike the cited judgment, in the present case, the defendant no.1 in her WS has already taken the stand that husband of defendant no.1 took the premises on rent since last about 20 years. She also submitted that at the time when the premises was taken on rent, the rate of rent was agreed as Rs. 100/ and was not increased in any manner whatsoever. She has also pleaded in para3 of preliminary objections that in case the defendant is not the owner by way of adverse possession even then at least she is tenant in the premises and is protected under the law of tenancy. It is also pertinent to mention here that plaintiffs themselves in their plaint have admitted that the suit property was let out to Shri B.D. Chaudhary by Shri Bhagwan Sahai @ rental of Rs. 100/. Thus there is no dispute so far as present case Suit No. 22/07 Page 13 of 18 is concerned that there existed the relationship of landlord and tenant between the predecessors of the parties. Since the defendant has already taken the alternative plea in her WS that she was tenant under the property and protected under the tenancy laws, the judgment cited by counsel for plaintiff is not applicable to the facts of the present case. However, considering that there is inordinate delay in moving the application U/o 6 Rule 17 CPC and the pleas sought to be taken by way of amendment in WS, have already been taken in the WS, there does not seem to be any reason to allow the application. However in view of the plea already taken in the WS, following additional issue is framed for consideration:
i) Whether the defendant is protected under the DRC Act?
7. In order to establish his claim, affidavit of plaintiff no.1 has been adduced in evidence which has been tendered as Ex. PW1/A. On the other hand, affidavit of defendant no.1 has been filed in defense which is Ex. DW1/A. I have gone through the testimony of witnesses and perused the record. My findings on various issues are as under.
8. Before deciding other issues since the additional issue is on the point of law, the same shall be decided before the other issue.
9. Finding on additional issue 2 : Suit No. 22/07 Page 14 of 18 "Whether the defendant is protected under DRC Act"?
Ld counsel for the plaintiff has mainly argued that before filing the eviction petition in the court of Ld. ARC, notice Ex. PW1/5 was issued to Shri Devraj, S/o Late Shri B.D. Chaudhary whereby he was called upon to pay the rent for the period 1988 to January 1999. Shri Dev Raj in response to notice sent reply Ex. PW1/6 wherein he for the first time claimed to have acquired title in the suit property by way of adverse possession. Under the guidance of counsel, eviction petition was filed in the court of Ld. ARC which however was dismissed as withdrawn and the present suit was filed in civil court in view of the claim of adverse possession made by Shri Dev Raj. It is argued that once the plea of adverse possession has been taken, the defendant can not be allowed to revert back and take the plea that he was a tenant in the suit property. He has relied on the judgment in "Abdul Rehan Thangal Sahib & Another Vs Said Sahib (d) by Lrs J.D 2001 (supplementary 2) SC 297. In the cited case the appellants claimed themselves as landlords and the respondents as tenants and sought their eviction on the ground of default in payment of rent before Rent Controller. There the respondent in his written statement denied the relationship of landlord and tenant between the parties and claimed title over the property by way of Suit No. 22/07 Page 15 of 18 adverse possession. It was held that the respondent having taken a definite stand before the Rent Controller that he had acquired the title over the suit property by adverse possession, it was not open for him to shift from said stand and take plea before the Civil Court that he is a tenant in the of premises in dispute. The judgment cited by Ld counsel for plaintiff is not applicable to the facts and circumstances of the present case since admittedly, no WS had been filed in the eviction petition by the defendant and the eviction petition was dismissed as withdrawn not because Ld Rent Controller had given any finding that a declaration of title was necessary but because the suit premises was situated in a notified slum area where the eviction proceedings were barred by virtue of embargoes contained in the slum areas (Improvement and Clearance) Act 1956. Thus, the defendant had never taken the stand before Ld ARC that he was in adverse possession of the suit property. There is also no dispute that the last payable rent by the husband of defendant was Rs. 1996.50/ per month which is less than Rs. 3500/. In view of the own admission of the plaintiffs that their predecessor Shri Bhagwan Sahai had let out the suit property to Shri D.D. Chaudhary, fatherinLaw of the defendant no. 1 and the defendant also in her WS has not disputed the said fact, though she has Suit No. 22/07 Page 16 of 18 taken the alternate defence that she had attained the title by adverse possession after the death of Shri Bhagwan Sahai as nobody claimed any rent from her. The suit of the plaintiff is barred by section 50 of the DRC Act 1938 which bars the jurisdiction of the Civil Courts in certain matters including eviction of any tenant in relation to the premises to which the Act applies, which the controller is empowered by or under the Act to decide. The plaintiff also by his own conduct in filing an eviction petition before Ld. ARC, before filing the present suit, which was dismissed on a technical ground, admitted that the suit for eviction was maintainable in the court of Ld. ARC and not in the Civil Court. It is the settled law that once a tenant is always a tenant and tenant can never acquire title by adverse possession. In view of the above discussion, additional issue No.2 is decided in favour of the defendant and against the plaintiff.
10 .Relief.
In view of my findings in additional issue No.2 that civil court has no jurisdiction to try the present suit, I do not deem it expedient in the interest of justice to give any finding on the other issues which may have the bearing on the merits of the case. In view of my finding on additional issue No.2, the plaint is rejected U/o 7 Rule 11 CPC. File be consigned Suit No. 22/07 Page 17 of 18 to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 09.06.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
Suit No. 22/07 Page 18 of 18
Suit No.
Suit No. 22/07 Page 19 of 18