Delhi District Court
Sh. Nazir Ahmad S/O Sh. Sharif Ahmad vs Sh. Noor Ahmad S/O Sh. Anwar Ahmad on 28 May, 2012
In the Court of Shri Prashant Kumar, Commercial Civil Judge cum
Additional Rent Controller (North) at Tis Hazari Courts, Delhi.
Suit No. 68/06
In the matter of :
Sh. Nazir Ahmad S/o Sh. Sharif Ahmad
R/o 2103, 1st Floor, Mohalla Rodgaran,
Lalkuan, Delhi .................Plaintiff
VERSUS
Sh. Noor Ahmad S/o Sh. Anwar Ahmad
R/o 2103, 1st Floor, Mohalla Rodgaran,
Lal Kuan, Delhi .................Defendant
Date of Institution :17.11.1981
Date of Reserved for Order :07.05.2012
Date of Pronouncement :28.05.2012
SUIT FOR POSSESSION AND MESNE PROFIT AND
PERMANENT INJUNCTION
JUDGMENT
Suit No. 68/06 1/17
1. Vide this order, I shall pronounce final judgment.
2. Facts of the case in brief are as under that:
The plaintiff is the tenant of the entire first floor bearing Municipal no. 2103, Rodgaran, Lal Kuan, Delhi at a monthly rent of Rs. 31/ since 1954. The suit property is an evacuee property and originally under the Ministry of Rehabilitation. Plaintiff was admitted as tenant by the Ministry of Rehabilitation from the office of Custodian of Evacuee Property and since then, he is in possession and occupation of entire first floor, shown in the site plan. Defendant is residing in the portion shown as red in the site plan as licensee under the plaintiff for the last more than 10 years. Defendant is in relation of the plaintiff and he is physically incapacitated. Property in question is residential property and was given to defendant for residential purpose only. A notice has been served upon the defendant revoking his license. Defendant has started misusing the property by allowing his sons Mohd. Asraf and Mohd. Aslam to run a workshop for polishing and manufacturing, by converting the bathroom in the workshop which is continuously creating a nuisance for the family members of the plaintiff. Plaintiff's soninlaw has also shifted in the said premises, hence, there is a paucity of the accommodation with the plaintiff. Defendant is also liable to pay mesne profit at a monthly rate of Suit No. 68/06 2/17 Rs. 10./ for unauthorized and illegal use of the said portion. After service of summons, the defendant and his sons are threatening the plaintiff to make alterations and addition in the property, hence this suit.
3. In the written statement, the defendant has stated that the plaintiff has not filed the appropriate court fees and has no locus standi to file the present suit. Defendant is having the possession of the premises in his own independent rights being a tenant of DDA for the last more than 12 years at a monthly rent of Rs. 23.25. Defendant has nothing to do with the plaintiff. It is further stated that there is no privity of contract in between the parties. Plaintiff is not the tenant with regard to entire first floor. The property in question is an evacuee property. Defendant or his son has never threatened the plaintiff. They are not licensee under plaintiff.
4. After completion of pleadings, following issues are framed on 31.03.1982:
1. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
2. Whether the suit is bad for nonjoinder and misjoinder of necessary parties?OPD Suit No. 68/06 3/17
3. Whether plaintiff has locus standi to file the present suit? OPP
4. Whether the defendant was the licensee under the plaintiff or defendant is a tenant in his own independent right under D.D.A.? Onus on parties
5. If defendant is proved to be licensee, whether his license was duly terminated by the plaintiff? OPD
6. Whether plaintiff is entitled to mesne profits if so at what rate and to on what amount? OPP
7. Whether plaintiff is entitled to the relief of possession as prayed for? OPP
8. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP
9. Relief
5. Arguments heard. Record perused thoroughly. My issuewise findings are as under: Issue No. 2.
Whether the suit is bad for nonjoinder and misjoinder of necessary parties?OPD Suit No. 68/06 4/17
6. Onus of this issue is upon the defendant. Defendant has not brought any witness on this point. It is further reflected that one application u/O 1 Rule 10 CPC was filed for impleading DDA as a party which has been dismissed by my Ld. Predecessor vide order dated 02.06.1988 declaring that DDA is not necessary party. This order has not been challenged by any of the parties, hence, it has become final. Defendant has not been able to show anything on record that the presence of any other party is necessarily require for deciding this case on merits. Hence, in the absence of any evidence to the contrary and considering the order dated 02.06.1988, I am of the opinion that the defendant has not been able to discharge the burden of prove of this issue, hence, this issue is decided accordingly.
Issue No. 3.
Whether plaintiff has locus standi to file the present suit? OPP
7. Onus of this issue is upon the plaintiff. Plaintiff has alleged himself as tenant under Ministry of Rehabilitation. In this regard, he has examined PW3, PW4, PW5 and PW6. All these witnesses have alleged that the plaintiff is tenant in the premises in question. Plaintiff has further alleged in the plaint that the defendant was known to him and he Suit No. 68/06 5/17 was allowed to reside in the premises for some time on license basis. As per Section 53 of Indian Easement Act, 1882, a tenant can create a license. Section 53 of the Act is pertinent to mention here which reads as under: "Who may grant licence A licence may be granted by any one in the circumstances and to the extent in and to which he may transfer his interest in the property affected by the licence."
8. It is, therefore, reflected from the above mentioned reasoning that the plaintiff has been able to show prima facie that he has locus standi to file the present suit. Another question which flows from this issue is that to what extent he has been successful in raising this plea. Such an issue has to be considered alongwith issue no. 7. So far as this issue no. 3 is concerned, it has to be considered that whether plaintiff has any right to file the present suit or not. In the light of the averments so made in the plaint and Section 53 of the Act of 1882, I am of the opinion that the plaintiff has locus standi to file the present suit. Issue no. 4.
Whether the defendant was the licensee under the plaintiff or Suit No. 68/06 6/17 defendant is a tenant in his own independent right under D.D.A.? Onus on parties
9. Onus of this issue is upon both the parties. Plaintiff in this regard has examined as much as six witnesses.
10. PW1 is Abar Ahmed S/o Anwar Ahmed who has stated that the defendant is his cousin and plaintiff, since deceased was the brotherin law of his father. This witness has stated that his father was residing in the property before Noor Ahmad, the defendant. This witness has not stated any thing material apart from this.
11. PW2 S. Azaz Ahmed has stated that this property belongs to DDA. Defendant came in the property in the year 1971 approximately. During his crossexamination PW2 has stated that the possession of the premises was not handed over in his presence. It is further stated by PW2 that this fact was told to him by Nazir Ahmad, the plaintiff that defendant was allowed to stay in the premises for a temporary period.
12. PW4 I. A. Usmani has stated that plaintiff is his fatherinlaw. Plaintiff, since deceased, is related with defendant. It is stated by PW4 further that the defendant was given the said premises on license basis without any charges. During his crossexamination, PW4 has corroborated his fact that the defendant is residing in the property since Suit No. 68/06 7/17 1968 as a licensee of plaintiff. The negative suggestion in this regard has been denied. PW4, however, has stated that no permission was taken from DDA for creating the license and the reason so furnished in this regard is that the defendant was in relation to the plaintiff, therefore, it was given on temporary basis. Other suggestions that defendant is residing in the property of his own independent right without any license has been denied. It is further stated during cross examination that license so created was oral.
13. PW5 Mussarrat Jahan has also stated that defendant is a licensee in the premises in question. PW5 is the youngest daughter of the plaintiff, since deceased. It is further stated by PW5 that plaintiff, since deceased is the tenant of the entire first floor bearing municipal no. 2103, Rodgran, Lal Kuan, Delhi since 1954 under Ministry of Rehabilitation at a monthly rent of Rs. 31/. During his crossexamination, PW5 has corroborated what she has stated in her examination in chief.
14. PW6 Farhat Iqbal has also stated that the plaintiff is the tenant in the suit property in question and defendant was a licensee in the property and is illegally residing in the portion shown in red colour in the site plan. PW6 has also duly corroborated what she has stated in her examination in chief. She has also stated that Slum and JJ Department Suit No. 68/06 8/17 are also taking some charges as rent from her father.
15. Defendant, on the other hand, has examined himself as DW1 and has stated that the suit property in question is owned by Government of India which is under the management and control of Slum and JJ Department of DDA. It is stated by DW1 that he is having the possession/occupation of a portion of the first floor of the suit property in his own independent capacity since 1970 with the permission of DDA at a monthly license fee of Rs. 23.35. DW1 has stated that original receipt of payment of license fee are exhibited DW1/1 to DW1/4. DW1 has further stated that Slum and JJ Department of DDA had also issued demand letter demanding a license fee with respect to the said property which are exhibited DW1/5 to DW1/8. It is further stated by DW1 that plaintiff has no concern with the portion of the property under his possession and has not put him in possession in the said portion as licensee or otherwise. During his crossexamination, DW1 has expressed his ignorance about receiving of notice Ex. PW4/2. Defendant has further stated that he do not know whether he has given any reply to the said notice or not.
16. DW2 Saleem Khan has stated that he know Nazir Ahmad and Noor Ahmad. DW2 is residing in house no. 2105 since his childhood and Suit No. 68/06 9/17 property in question is owned by DDA. Noor Ahmad was made to reside in the property by Manzoor Ahmad in 1965/1968. Noor Ahmad is living separately. The suit property was evacuee property and is at present with DDA. Noor Ahmad has no concern with Nazir Ahmad. Both Nazir Ahmad and Noor Ahmad has separate possession. In his cross examination, DW2 has stated that Noor Ahmad is related to him and is his Samdhi. With regard to other facts, DW2 has corroborated what he has stated in his examination in chief.
17. DW3 Vinod Kumar, LDC, Slum and JJ Department has stated that the property in question is managed and control by Slum and JJ Department. Nazir Ahmad is a license in the portion of the property at the rate of Rs. 29.10 w.e.f. 01.09.1961 and Noor Ahmad is a license in portion of the property at the rate of Rs. 23.25 w.e.f. 01.01.1966. Noor Ahmad is a license of Slum and JJ Department. It is further stated by DW3 that a Demand Letter Ex. DW1/5 to Ex. DW1/8 and Ex. DW3/1 have been issued from his office and receipt Ex. DW1/1 to Ex. DW1/4 have been issued from his office. It is further stated by DW3 that only Slum and JJ Department has a right to recover license fee from Noor Ahmad. During his crossexamination, DW3 stated that Noor Ahmad was earlier known as unauthorized occupant, however, MCD converted Suit No. 68/06 10/17 his status into license vide order dated 01.1.1968. It is further stated that no application on behalf of Noor Ahmad has been made for converting his status from unauthorized occupant to license. This application is Mark 'X'.
18. From the examination of the witnesses, and more particularly, DW3 who is a witness from Slum and JJ Department, it is reflected that defendant has been shown as a license as per their record. PW3 examined by the plaintiff has not stated anything with regard to defendant whereas DW3 has specifically stated to that effect. It is pertinent to mention here that after defence evidence was closed by the defendant plaintiff did not sought any permission to lead any evidence in rebuttal to controvert the facts alleged by DW3. It is also reflected that all the witnesses examined by the plaintiff are his relatives and none of the witnesses except PW3 is an independent witness from the concerned department. In these circumstances, therefore, I am of the considered opinion that the plaintiff has examined only certain witnesses who can also be considered as interesting witnesses. It is to be made clear that the evidence of an interested witnesses is also relevant as per the law and it cannot be rejected merely on the basis of witness being interested. It is, however, pertinent to mention here that if there is any evidence independent of any Suit No. 68/06 11/17 of the parties and from the particular relevant department as in the present case DW3 from Slum and JJ Department from MCD and there is no evidence from the other side, then, the facts stated by such witnesses has to be considered prima facie correct unless until controverted by the plaintiff, however, as per the law. No such efforts have been made by the plaintiff, however, despite the fact that he was having ample opportunities in this regard to brought any witness in support of his contentions at the time of his evidence or seeking a permission to lead an evidence in rebuttal.
19. In these circumstances, therefore, I am of the opinion that the defendant is able to show prima facie that he was a license under Slum and JJ Deparment, MCD with regard to suit property which is now vesting with DDA. In terms of these observations, issue no. 4 is decided in favour of the defendant.
Issue No. 5 , 6 & 7 .
If defendant is proved to be licensee, whether his license was duly terminated by the plaintiff? OPD Whether plaintiff is entitled to mesne profits if so at what rate and to on what amount? OPP Whether plaintiff is entitled to the relief of possession as prayed Suit No. 68/06 12/17 for? OPP
20. Onus of this issue no. 5 is upon defendant and issue no. 7 is upon the plaintiff. It has already been observed that issue no. 4 has been decided in favour of the defendant and it has been considered that defendant is not a license under plaintiff. In these circumstances, the plaintiff has no locus standi or any legal right to get the license of the defendant terminated. Defendant has been able to show that he is a license under Slum and JJ Department/MCD which is now vested with DDA. DW3 examined by defendant has categorically stated so.
21. In these circumstances, therefore, plaintiff does not have any legal right to serve upon the defendant any notice terminating his license. It is further pertinent to mention here that as plaintiff has no legal right to get the license of defendant terminated and as defendant is not a license under plaintiff and as there is no license created with regard to suit property in between the plaintiff and the defendant, hence, plaintiff cannot seek possession from the defendant. In terms of these observations, these issues are decided in favour of the defendant and plaintiff cannot seek recovery of mesne profit from the defendant. Issue No. 8.
Suit No. 68/06 13/17
Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP
22. Onus of this issue is upon the plaintiff. It has already been observed that defendant is not a licensee under plaintiff as alleged by him in the plaint. The nature of the relief sought by the plaintiff in prayer clause (c) is that defendant be restrained not to make any alteration and additions. It is pertinent to mention here that law of injunction is based upon the common law of principle of just, equity and good conscience. In order to seek the relief of prohibitory injunction against other party, the party seeking such relief should have a legal right with regard to the relief so prayed. Such a requirement is prerequisite to seek any such relief.
23. It is reflected from perusal of the record that the plaintiff has alleged that defendant was allowed to reside in premises on license basis and his license has been terminated. This fact has not been established by the plaintiff after perusal of the evidence as already stated above as issue no. 2 to 7 have been decided against the plaintiff. It has been observed that plaintiff is not having any legal right as alleged by him against the defendant except the right of a neighbourer. Plaintiff has not led any evidence in this regard. The only evidence led by the plaintiff is that he Suit No. 68/06 14/17 is landlord qua defendant which has not been established by him and he has been miserably failed in this regard. Therefore, in the absence of any legal right to the contrary, the plaintiff cannot invoke any such remedy against the defendant, hence, in terms of these observations, issue no. 8 is decided against the plaintiff.
Issue No. 1.
Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
24. Onus of this issue is upon the plaintiff. Record is perused. Plaintiff has filed the civil suit against the defendant seeking possession from him alleging that defendant is a license inducted by him. In this regard, the valuation for the purpose of suit valuation Act has to be the value of the suit property in question which has neither been mentioned nor accessed as per the law by the plaintiff. Valuation of the property made by the plaintiff is also not explained in para no. 14 of the plaint nor it has been explained in the evidence led by him despite the fact that a specific issue has been framed in this regard. It has already been observed that outcome of issue no. 2 to 8 is that they have been decided against the plaintiff.
25. In these circumstances, therefore, I am of the opinion that the Suit No. 68/06 15/17 plaintiff has not been able to show any rational justification for assessing the value as per the Suit Valuation Act and has not been able to show that he has filed appropriate advalorem court fee nor has led any evidence in this regard. Therefore, it is considered that the plaintiff has not been able to assess the valuation of the property according to the Suit Valuation Act and has not filed appropriate court fee advalorem as per the court fees Act. In terms of these observations, issue no. 1 is decided against the plaintiff.
26. From the above discussion, it is reflected that all the issues have been decided against the plaintiff. In these circumstances, I am of the opinion that the plaintiff has been miserably failed to prove his case against the defendant. Hence, the suit filed by him is dismissed. No order as to cost.
Announced in open Court (PRASHANT KUMAR)
on 28.05.2012 CCJ cum ARC (North District)
THC/Delhi/28.05.2012
Suit No. 68/06 16/17
Suit No.68/06
28.05.2012
Present: None.
Vide my separate judgment, the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
(PRASHANT KUMAR) CCJ cum ARC (North District) THC/Delhi/28.05.2012 Suit No. 68/06 17/17