Delhi District Court
Shiv Kumar vs S. Avtar Singh on 3 February, 2015
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, CENTRAL, TIS HAZARI COURT, DELHI
Suit no. 208/14
Unique ID No. 02401C5666922004
1. Shiv Kumar,
S/o late Sh. Ram Kishan,
R/o H. No. 2257/A-2,
Khampur Raya,
Near West Patel Nagar,
New Delhi- 110008
2. Sh. Naveen Kumar,
S/o Late Sh. Ram Kishan,
R/o H. No. 2192,
Khampur Raya,
Near West Patel Nagar,
New Delhi- 110008.
.....Plaintiffs
Versus
1. S. Avtar Singh,
S/o Late Sh. Faquir Singh,
R/o 2374/1-B, Shadipur,
Gali Mandirwali,
New Delhi- 110008.
2. S. Vashaka Singh,
CS No. 208/14 Page No. 1 of 20
Shiv Kumar V. Avtar Singh On 03rd February, 2015
dead & represented by LRs namely:-
2.(a). Smt. Pritpal Kaur,
W/o Late Sh. Vashakha,
R/o 2374/1-B, Shadipur,
Gali Mandirwali,
New Delhi- 110008
(b) Sh. Harpreet Singh
S/o Late S. Vashakha Singh
R/o 2374/1-B, Shadipur,
Gali Mandirwali,
New Delhi- 110008
(c) Smt. Parminder Kaur,
W/o Sh. Iqbal,
R/o B- 33, Asha Park,
Jail Road, New Delhi- 110018
3. S. Gurbachan Singh,
S/o Late Sh. Faquir Singh,
R/o 2251/6-B-1, Guru Nanak Nagar,
New Ranjeet Nagar,
New Delhi- 110008
4. Mrs. Sushil Kaur,
W/o S. Kanwal Nain Singh,
R/o C- 217/218, West Patel Nagar,
New Delhi- 110008
CS No. 208/14 Page No. 2 of 20
Shiv Kumar V. Avtar Singh On 03rd February, 2015
5. Mrs. Prakash Kaur,
W/o S. Hari Singh Sachdeva,
R/o 2974, Gali No. 12,
Ranjeet Nagar, New Delhi- 110008
6. Mrs. Jasbir Kaur,
W/o Sh. Amar Singh,
deceased through LRs namely
(a) S. Gurmeet Singh,
S/o Late Sh. Amar Singh
(b) Ms. Jatinder Kaur,
D/o late Sh. Amar Singh
Both residents of H. No. 8/52, Ramesh Nagar, New Delhi.
(c) Smt. Daljeet Kaur,
W/o Sh. Davinder Kalra,
D/o Late Sh. Amar Singh,
R/o H. No. 7/170, Ramesh Nagar,
New Delhi- 110015.
(d) Smt. Ravinder Ahuja,
W/o Sh. Jatin Ahuja,
D/o Late Sh. Amar Singh,
R/o RZ- 153-A, Syed Village,
Meera Bagh, New Delhi- 110057.
7. Sh. Joginder Singh,
S/o Sh. Hari Singh,
CS No. 208/14 Page No. 3 of 20
Shiv Kumar V. Avtar Singh On 03rd February, 2015
R/o DG-II, 235-D,
Vikas Puri, Budela Market,
New Delhi
8. Sh. Ravinder Singh,
S/o Sh. Joginder Singh,
R/o Flat No. 44, IVth Floor,
Marine Drive, Singapore.
9. Sh. Chanchal Singh,
S/o Sh. Joginder Singh,
R/o DG-2/235-D, Vikas Puri,
Budela Market, New Delhi
10. Smt. Manjit Kaur,
D/o Sh. Joginder Singh,
W/o Sh. Darshan Singh,
R/o Z- 10, III Floor,
West Patel Nagar,
New Delhi
11. Smt. Narender Kaur,
W/o Sh. Gurvinder Singh,
R/o Qrt. No. 365, Ground Floor,
Four storied quarters,
Tagore Garden Ext.
New Delhi.
.....Defendants
CS No. 208/14 Page No. 4 of 20
Shiv Kumar V. Avtar Singh On 03rd February, 2015
SUIT FOR POSSESSION, PERMANENT INJUNCTION, RECOVERY
OF ARREARS OF LEASE/ RENT AND MESNE PROFIT/ DAMAGES
FOR UNAUTHORIZED USE AND OCCUPATION
DATE OF FILING OF THE SUIT : 03.09.2004
DATE ON WHICH RESERVED
FOR JUDGMENT : 31.01.2015
DATE OF ORDER/JUDGMENT : 03.02.2015
JUDGMENT
1. The present suit has been filed on behalf of the plaintiff against the defendants for possession, permanent injunction, recovery of arrears of lease/ rent amounting to Rs. 432/- (Rupees Four Hundred Thirty Two Only), mesne profit/ damages for unauthorized use and occupation amounting to Rs. 12,000/- (Rupees Twelve Thousand Only).
2. The brief facts of the case as per the plaint are that plaintiffs state themselves to be the owner of land measuring 450 sq. yards comprised in Khasra no. 311, Village Khampur Raya, New Delhi-08 underneath house property bearing no. 2374/1-B, now known as Shadipur, Gali Mandirwali, New Delhi-08. That the plaintiffs have inherited the land alongwith other lands after the death of their father on 24.11.2000. It is alleged that vacant land measuring 800 sq. yards out of land measuring 2 bighas and 7 biswas comprised in Khasra no. 311 had CS No. 208/14 Page No. 5 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 been given on lease, by the father of the plaintiffs late Sh. Ram Kishan to three persons namely Sh. Rishal Singh, Sh. Deep Chand and Sh. Narain Singh for 20 years w.e.f. 05.09.1950 to 04.09.1970 vide lease deed dated 18.11.1950 and these three persons further transferred their lease hold rights in the land measuring 450 sq. yards out of the above 800 sq. yards to Sh. Faquir Singh, father of the defendants. The said Sh. Faquir Singh had attorned the father of the plaintiffs Sh. Ram Kishan as lesser/owner/landlord of the said land by starting paying lease money to him and he lastly paid lease money in 1978 vide receipt dated 15.03.1978 for the period 01.01.70 to 31.12.70. The said lease was yearly from January to December. The said Faquir Singh was habitual defaulter in payment of lease money and he died on 16.03.1988 leaving behind defendants as legal heirs and they have become the lessees. No lease rent has been paid after 15.03.1978.
3. It is further alleged that Sh. Faquir Singh had also raised structures on the said vacant land and the structures are now in occupation of defendants no.1 to 3 being his sons.
4. Further stated that plaintiffs vide legal notice dated 09.05.2002 terminated lease deed of the defendants but there was some accidental slip in mentioning lease year hence, the said notice was withdrawn and fresh notice dated 09.12.2003 was sent and lease was terminated on 30.06.2004 as per provisions of Transfer of Property Act. Plaintiffs have also demanded lease money @ Rs. 144/- per year along with interest together with vacant possession, but defendants did not comply and therefore, they have become unauthorized occupants and are liable to be evicted and the plaintiffs are entitled to the possession of suit land CS No. 208/14 Page No. 6 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 underneath the super structure after removing the malwa/super structure.
5. In written statement filed by the defendant no.1, it is stated that plaintiffs have no locus standi to file the present suit and the suit is not properly valued. It is denied that plaintiffs are owners of land measuring 450 sq yards comprising in Khasra no. 311 underneath the house no. 2374/1-B.
6. It is contended by defendant no.1 that the property was built up by his father late Sh. Faquir Singh and he had been dealing with the property since 1951-52 by letting out the shops to various tenants. That Sh. Faquir Singh had been telling the defendants that he was owner of the property including land in his own rights and he had even written a letter to Commissioner, MCD on 03.04.1959 stating that he had constructed the said property on his own purchased land. Further stated that it is not within the knowledge of the replying defendants whether Sh. Ram Krishan was co-owner and had given the land on lease to Sh. Rishal Singh, Deep Chand and Narain Singh and that these three persons transferred the lease hold rights of 450 sq. yards land to Sh. Faquir Singh. It is denied that late Sh. Faquir Singh had attorned Sh. Ram Kishan as lessor/owner/landlord. That it is surprising to note and denied that Sh. Faquir Singh had issued receipts for the year 1970 in 1978 i.e. after the period of eight years. That the plaintiffs have not filed any receipt after the said rent receipt and as Faquir Singh expired on 16.03.1988 i.e. 18 years after the period of so called lease, he had become owner either by purchase or by law of adverse possession. That the plaintiffs have not explained as to why their father had not collected the lease money after the expiry of the so called lease nor he ever approached the defendants for recovery of lease money. That the legal heirs of Sh. Faquir Singh CS No. 208/14 Page No. 7 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 have also become owner by adverse possession. That late Sh. Faquir Singh had been paying house tax, and water and electricity charges in his name and he had been running the business of coal depot since 1961 in the suit premises. That the translation of documents in Urdu as filed by the plaintiffs is not correct. The notice dated 09.05.2002 is not denied. The second notice dated 09.12.2003 is also not denied. That the same was replied vide reply dated 29.12.2003. Rest of the contentions of the plaint are denied.
7. Vide statement dt. 16.10.04, defendants no. 2 to 6 adopted the WS of defendant no. 1.
8. WS also filed by the defendant no.11 wherein also the averments of the plaint are denied and it is contended that defendants are owner of the property in their own right.
9. In the replication to the WS of defendant no.1 to defendant no.10, the averments of the plaint have been reiterated and those of WS have been denied and it is further stated that Sh. Faqiur Singh, the father of the defendants, might be the owner of the super-structures raised on the suit land but the ownership of the land underneath remains with the father of the plaintiffs and after his death inherited by the plaintiff. That the lessee cannot claim adverse possession.
10. In the replication to the WS of defendant no.11, the averments of the plaint have been reiterated and those of WS have been denied.
11. Vide order sheet dated 14.02.2005, following issues were framed:-
CS No. 208/14 Page No. 8 of 20Shiv Kumar V. Avtar Singh On 03rd February, 2015
1. Whether the suit of the plaintiffs is barred by limitation? OPD.
2. Whether there is no cause of action against the defendants? OPD.
3. Whether the present suit has not been valued properly for the purpose of Court fees and jurisdiction? OPP.
4. Whether the plaintiffs have no locus standi to file the present suit against the defendants? OPD.
5. Whether the plaintiffs are entitled for decree of possession, as prayed for? OPP.
6. Whether the plaintiffs are entitled for recovery of arrears of lease, as prayed for? OPP.
7. Whether the plaintiffs are entitled for any mesne profit, if so, at what rate and for what period? OPP.
8. Whether the plaintiffs are entitled for permanent injunction, as prayed for? OPP.
9. Relief.
12. To substantiate their case, plaintiff himself appeared in the witness box as PW-1 and his affidavit in evidence is Ex PW1/X, plaintiff also got examined Sh. Om Prakash as PW-2 and his affidavit in evidence is Ex PW2/X, Record Clerk from Archive Department as PW 1-A, Sh. Satya Pal as PW-3, PW-4 Patwari from the office of SDM. In documentary evidence, the documents filed and relied on behalf of the plaintiff are Copy of register of mutation EX PW 1/1, Memorandum of Understanding EX PW 1/1A, death certificate EX PW 1/2, site plan EX PW 1/2A, lease deed dt. 18.11.50 EX PW 1/3, lease deed dt. 15.11.50 EX PW 1/4, rent receipts EX PW 1/5 to EX PW EX PW 1/7, rent receipts EX CS No. 208/14 Page No. 9 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 PW 1/8 to EX PW 1/11, registered AD/ UPC EX PW 1/12, Regd. AD/ UPC EX PW 1/13, postal receipts EX PW 1/14 to EX PW 1/24, UPC receipt EX PW 1/25 to EX PW 1/28, acknowledgment EX PW 1/29, legal notice EX PW 1/36, documents in Urdu language EX PW 4/1 to EX PW 4/3. On the other hand, defendant himself appeared in the witness box as DW-1 and his affidavit in evidence as EX D1, defendant also got examined Sh. S. K. Lakra as DW-2, Sh. Ravi Shankar Kumar as DW-3. The documents filed and relied on behalf of defendants are letter dt. 03.04.1952 EX DW 1/1, original rent agreement EX DW 1/2 to EX DW 1/5, pass book EX DW 1/6, letter regarding allotment of coal EX DW 1/7, progress card EX DW 1/8, admission card EX DW 1/9, school certificate EX DW 1/10, assessment order EX DW 1/11, income tax document EX DW 1/12, EX DW 1/13, receipt of house tax payment EX DW 1/14, MCD receipt EX DW 1/15, receipt of house tax payment EX DW 1/16, marriage card EX DW 1/17, receipt for advance from RCL EX DW 1/18, electoral card EX DW 1/19, license EX DW 1/21, special power of attorney EX DW 1/22, bills EX DW 1/23 to EX DW 1/27, certified copy of order EX DW 1/28, MCD license receipt EX DW 1/30, report regarding revision of assessment EX DW 2/1, self assessment property tax form EX DW 2/2, Form C EX DW 2/3, goshwara record EX DW 3/1, Memo of parties Mark A.
13. I have heard the arguments and perused the record. My issue wise disposal of the present suit is as under:-
14. Issue No. 1:- Whether the suit of the plaintiffs is barred by limitation? OPD.
CS No. 208/14 Page No. 10 of 20Shiv Kumar V. Avtar Singh On 03rd February, 2015 The onus of proving this issue was upon the defendants but the Ld. Counsel for defendants submitted that he does not press upon this issue. Even otherwise the defendants have not been able to prove this issue. Hence, the same is decided against them.
15. Issue No. 2:- Whether there is no cause of action against the defendants? OPD.
Cause of action is a bundle of facts which is averred by the plaintiff in order to claim his relief. Plaintiffs, in the present suit, seek possession alleging the defendants to be the lessees in respect of vacant land. Plaintiffs also allege that they terminated the lease of the defendants vide legal notice. Thus, it cannot be said that plaintiffs do not have any cause of action. This issue is accordingly decided in favour of the plaintiffs and against the defendants.
16. Issue No. 3:- Whether the present suit has not been valued properly for the purpose of Court fees and jurisdiction? OPP.
The contention of the defendants is that the value of the suit property is more than Rs. 15 lacs and therefore, the suit is not properly valued. It is seen that plaintiffs filed the present suit for possession against the defendants on the premise that the defendants are lessees @ Rs. 144/- annual rent. The plaintiffs have valued the suit for relief of possession at the said annual rate of rent. For the relief of arrears of rent and mesne profits, the suit has been valued at Rs.
CS No. 208/14 Page No. 11 of 20Shiv Kumar V. Avtar Singh On 03rd February, 2015 12,432/-. For the relief of permanent injunction suit has been valued at Rs. 130/-. Thus, the total valuation is Rs. 12,706/- upon which Court fees of Rs. 1,344/- has been paid. The present suit cannot be said to be improperly valued since the plaintiffs seek possession on the basis of tenancy. Issue no. 3 is accordingly decided in favour of the plaintiffs.
17. Issue No. 4:- Whether the plaintiffs have no locus standi to file the present suit against the defendants?
OPD.
Plaintiffs have alleged that their father late Sh. Ram Kishan had given on lease vacant land measuring 800 sq. yards to three persons namely Rishal Singh, Deep Chand and Narain Singh and these persons transferred lease hold rights in land measuring 450 sq. yards out of the 800 sq. yards to Sh. Faquir Singh, father of the defendants and the said Faquir Singh attorned father of the plaintiffs as the owner/ landlord and started paying lease money. Thus, the plaintiffs have claimed that they have become the lessors and the defendants being legal heirs of late Faquir Singh have become the lessees. Locus standi is the right available to a person to lay any claim against the other. In the present suit, it cannot be thus said that the plaintiffs have no locus standi to file the present suit against the defendants. This issue is accordingly decided in favour of the plaintiffs and against the defendants.
18. Issue No. 5:- Whether the plaintiffs are entitled for decree of possession, as prayed for? OPP.
CS No. 208/14 Page No. 12 of 20Shiv Kumar V. Avtar Singh On 03rd February, 2015 It is the case of the plaintiffs that their father late Sh. Ram Kishan had given on lease vacant land measuring 800 sq. yards out of land measuring two bighas and seven biswas comprised in khasra no. 311 in the Revenue Estate of Khampur Raya, New Delhi to three persons namely Sh. Rishal Singh, Deep Chand and Narain Singh for twenty years w.e.f. 05.09.50 to 04.09.70 vide lease deed dt. 18.11.50 the certified copy of which is EX PW 1/3. It is also alleged that these three persons further transferred their lease hold rights in land measuring 450 sq. yards out of the said 800 sq. yards to Sh. Faquir Singh, father of the defendants and the said Faquir Singh attorned the father of the plaintiffs as the owner/ landlord and started paying lease money and lastly paid in 1978 vide receipt dt. 15.3.78 for the period 01.01.70 to 31.12.70. It is further alleged by the plaintiffs that Sh. Faquir Singh was habitual defaulter in payment of rent. Also alleged that after payment of lease money on 15.03.78, neither said Sh. Faquir Singh nor after his death (on 16.03.88) any of his heirs i.e. defendants paid any lease money either to Sh. Ram Kishan in his lifetime or to the plaintiffs after the death of Ram Kishan despite requests and demands.
19. On the other hand, it is contended that the property was built up by late Sh. Faquir Singh who had been dealing with the property since 1951-52 by letting out the shop to its tenants. It is stated by the defendants that it is not within their knowledge whether Sh. Ram Kishan had given on lease some land to the said three persons and these three persons had transferred land measuring 450 sq. yards to late Faquir Singh. It is denied that late Faquir had attorned Sh. Ram Kishan as owner/ landlord. It is contended that late Faquir Singh had become owner either by purchase of land or by adverse possession and the plaintiffs have not explained as to why their father Sh. Ram Kishan had not collected the lease CS No. 208/14 Page No. 13 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 money, if so, after the expiry of the alleged lease.
20. The plaintiffs are seeking possession of vacant land measuring 450 sq. yards from the defendants alleging them to be lessees. Therefore, the plaintiffs have to prove those two deeds i.e. lease deed EX PW 1/3 and the transfer deed EX PW 1/4. In this respect, it is firstly noted that the certified copies of these deeds EX PW 1/3 and 1/4 are in Urdu language. The plaintiffs have filed translation of these two deeds as Mark A and Mark B. Although the plaintiffs summoned the original record of these deeds by calling the official witness in order to prove them but it is important to note that with regard to their translations the name of translator has not been disclosed who allegedly translated these two deeds. The necessary portion of the cross examination of PW-1 dt. 31.05.11 in this regard is reproduced as under:-
"I do not know Urdu. I have placed on record the translations of the certified copies of Ex. PW-1/3 and EX PW 1/4. I have given my statement regarding the execution of sale lease deeds on the basis of information given by my father as well as on the basis of translations annex with the above exhibits of lease deeds. It is correct that the name of the translator is not mentioned in the translated copies marked A and B. I was about 15 or 16 years age when I used to go with my father to collect the lease and there only I came to know about the lease deeds Ex PW-1/3 and Ex PW-1/4. "
21. Thus, from the above testimony of the plaintiff/ PW-1 what comes out is that he has even drawn his knowledge and given his statements regarding the execution of these deeds on the basis of information given by his father as well as on the basis of translations of these lease deeds annexed which are Mark A and Mark B. The father of the plaintiffs expired in the year 2000 i.e. before the filing of the present suit and hence, the only source from which the plaintiff has CS No. 208/14 Page No. 14 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 to now prove his case are the English translations of these two deeds. It is here noted that these English translations do not mention the name of the translator nor any signatures or any stamp. The plaintiffs even did not attempt to produce any witness as translator to state that he truly translated the said lease deeds from Urdu to English and these translations duly carry the true meaning and import of the original lease deeds.
22. The defendants have relied upon Sh. Sukhey (deceased) Through LRs V. Sh. Gauri Shanker & Anr. RSA No. 15/11 of Hon'ble High Court of Delhi wherein some document in Urdu language was filed and its English translation was not filed and the Hon'ble Court held that mere exhibition of documents does not prove the same and the plaintiff has failed to summon any witness. Plaintiff also relied upon Piar Kaur & Ors. V. Surjit Kaur & Ors. RSA No. 3743 of 2008 wherein it was observed by the Hon'ble Punjab and Haryana High Court that the document which is in Urdu script can only be read into evidence if the party produces/ proves its true translation under the law and the onus was upon the plaintiffs, firstly, to get its true translation with the attestation of the competent person or the person who is authorized under law and get it attested from the person who is authorized under law. Defendants also placed reliance upon Harjinder Singh & Ors. V. Harbans Lal & Ors. RSA No. 2216 of 2012 in which also the Hon'ble Court observed that the contents of the said sale deed have not been proved because they have not been proved in accordance with the High Court rules because no expert witness well conversant with the Urdu language was examined by the plaintiffs to prove the said document and admittedly, the plaintiffs are not conversant with Urdu language and do not know what has been mentioned in the said document and the translated version have been tendered CS No. 208/14 Page No. 15 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 into evidence by the plaintiffs themselves and thus undisputedly, the contents of the sale deed remained unproved on record.
23. In the present case also admittedly the plaintiff does not know Urdu language and has merely tendered these English translations in evidence and deposed that he has made statement on the basis of these translations and on the basis of information given by his father. The father of the plaintiffs is not alive and had expired prior to the filing of the present suit. Since the plaintiff/ PW-1 is not conversant with Urdu language, he cannot know what is contained in it. The second plaintiff has not been examined in the present suit. Thus, plaintiff relies only upon the translations in order to prove his case. It is pertinent to note that the plaintiff was not even born when these two lease deeds EX PW 1/3 & EX PW 1/4 were executed. As noted above, in his cross examination dt. 31.5.11, plaintiff no. 1/ PW-1 admitted that the name of translator is not mentioned in the translated copies Mark A and B. PW-1 after this admission even did not attempt to voluntarily name the person who translated the lease deeds and neither summoned any witness to prove the said translations Mark A and B. There can be no presumption regarding the competency of the person who has translated these deeds. Thus, these translations Mark A and B cannot be said to be the true translation of the two deeds. Thus, the plaintiffs have failed to prove the translations Mark A and B. Even otherwise reading of the two translations show some mutual inconsistency between them. While in the translation Mark A in respect to the lease deed EX PW 1/3 it is stated that the three persons namely Rishal Singh, Deep Chand and Narain Singh have been given on lease land measuring 800 sq. yards at a monthly rent of Rs. 24 for the period of 20 years commencing from 05.09.1950 but in the translation Mark B with respect to the CS No. 208/14 Page No. 16 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 sale deed EX PW 1/4 it is stated that the executants (above named three persons) are the lease holders of land measuring 450 sq. yards out of land measuring 2 bighas 7 biswas on an annual rent of Rs. 36/- per hundred sq. yards. It is noted that in the translation Mark A, the lease rent is stated to be Rs. 24 per month with respect to the entire 800 sq. yards and no bifurcation of lease rent of 450 sq. yards separately has been provided. As per translation Mark B, the annual lease rent calculated @ Rs. 36/- per hundred sq. yards for 450 sq. yards comes to Rs. 162/- but plaintiff/ PW-1 in his cross examination dt. 31.5.11 has deposed that the lease was taken @ Rs. 144/- per annum for 400 sq. yards of land. Here, the plaintiff differs from his plaint in mentioning the area as in the plaint, the area is stated to be 450 sq. yards. The plaintiff/ PW-1 further admits that the rate of rent was 162/- per annum for 450 sq. yards. Further, in the translation Mark B, it is stated that the first lease deed was registered on 06.09.50 but as per translation mark A, the registration date is 18.11.50. Thus, in all, no reliability can be placed on these translations Mark A and Mark B and as already observed, the plaintiffs have failed to prove these translations. Consequently, the two deeds EX PW 1/3 & 1/4 are of no help to the plaintiffs.
24. Now coming to the rent receipts as filed by the plaintiffs, the plaintiffs have laid much stress upon the receipt dt. 15.3.78 EX PW 1/5. Plaintiff alleges that this was the last paid rent for the period 01.01.70 to 31.12.70. It is pertinent to observe that nowhere in the plaint it is alleged that the father of the plaintiffs demanded the rent from Sh. Faquir Singh and if yes then when. It is only averred in the plaint para 5 that after the payment of lease money vide receipt dt. 15.3.78 neither Sh. Faquir Singh nor after his death, any of his heirs i.e. defendants paid lease rent to Sh. Ram Kishan in his lifetime or to the plaintiffs CS No. 208/14 Page No. 17 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 despite repeated requests and demands. No details of these alleged requests and demands whatsoever has been given. The plaint is also silent upon the aspect as to why after a long period of about eight years, the rent for the year 1970 was paid. It is also to be considered why not payment for the remaining years from 1971 till 1977 was demanded by the father of the plaintiffs or even by the plaintiff as he states that the receipts EX PW 1/5 and EX PW 1/6 are in his handwriting. Further, it is noted in the receipt EX PW 1/5 that the area mentioned is 400 sq. yards whereas the case of the plaintiff is that 450 sq. yards was leased out to Sh. Faquir Singh. It has not been explained why the said area 400 sq. yards is mentioned in the said receipt when 450 sq. yards was leased out. This receipt is for Rs. 144/- annual rent and the other receipt also mentions the same amount. Therefore, no reliability can be placed on these receipts especially in light of the fact that the plaintiffs have not been able to prove the lease deeds.
25. Now coming to another aspect of the matter upon which even an application u/o 7 rule 11 (d) r/w section 50 Delhi Rent Control Act was filed on behalf of defendant no. 1 at the stage of final arguments. It is contended on behalf of defendant that the suit is barred as per section 50 Delhi Rent Control Act since the rate of rent is Rs. 144/- per annum as pleaded and well below Rs. 3,500/-. It has been alleged by the plaintiffs that vacant land was given on lease. The plaintiffs have also alleged in the plaint that Sh. Faquir Singh had raised structures on the vacant land and the structures are now in occupation of defendants no. 1 to 3. It is pertinent to note that the pleadings of the plaintiffs do not state when Sh Faquir Singh raised the structures. It is also not contended that the father of the plaintiffs Sh. Ram Kishan objected or opposed such raising of structures. This implies that the plaintiffs or their father Sh. Ram Kishan CS No. 208/14 Page No. 18 of 20 Shiv Kumar V. Avtar Singh On 03rd February, 2015 considered the structures to be part of the lease. Taking clue from the translation Mark A, it mentions that the land is leased out for the purpose of construction of house. There are other stipulations also in the translation with regard to the structures. As per the plaintiffs, the lessees in the lease deed EX PW 1/3 executed sale deed of the lease hold rights with respect to 450 sq. yards out of the 800 sq. yards in favour of Sh. Faquir Singh. Thus, Sh. Faquir Singh stepped into the shoes of those lessees. Even though the plaintiffs have not been able to prove these translations but the documents filed can be read against them. The stipulations regarding the raising of structures as read in the translation Mark A also clearly depicts that the purpose of lease was construction of house and the structures form part of the lease. The plaintiffs have relied upon Palaniappa Chettiar V. Babu Sahib @ Sheik Mytheen (1964) 1 MLJ 110 wherein it was observed that when a vacant site is leased out for putting up building thereon and buildings are actually put up on the land they become part of the land so that the land is also a part of the buildings with the result that the lease should be regarded as one of buildings, notwithstanding the fact that the buildings do not belong to the lessor and this principle does not depend on renewal of a lease, the essence of it being when the buildings are put up they become the integral part of the land and the land for the purpose of lease can no longer be regarded as a vacant site. Defendant also relied upon M. P. S. Palauiappa Chettiar & Ors. V. Vairavan Chettiar to rely upon the above observed principle. Going by these authorities, as has been observed factually in the present case, the lease of land, if any, included the raised structures as well and consequently, the suit is hit by u/s 50 Delhi Rent Control Act since the rent alleged at Rs. 144/- per annum is less than Rs. 3,500/- stipulated under DRC Act, and liable to be dismissed.
CS No. 208/14 Page No. 19 of 20Shiv Kumar V. Avtar Singh On 03rd February, 2015
26. In view of the above discussion, the plaintiffs are not entitled to the relief of decree of possession as prayed. Issue no. 5 is decided against the plaintiffs.
27. Issue no. 6, 7 and 8:-
6. Whether the plaintiffs are entitled for recovery of arrears of lease, as prayed for? OPP.
7. Whether the plaintiffs are entitled for any mesne profit, if so, at what rate and for what period? OPP.
8. Whether the plaintiffs are entitled for permanent injunction, as prayed for? OPP.
Since issue no. 5 has been decided against the plaintiffs, these issues no. 6, 7 and 8 also stand decided against them.
In view of the findings on all issues, the present suit is dismissed. In the circumstances of the case, no order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 03.02.2015 CIVIL JUDGE-06, CENTRAL
THC/DELHI/03.02.2015
CS No. 208/14 Page No. 20 of 20
Shiv Kumar V. Avtar Singh On 03rd February, 2015