Delhi District Court
In Re vs Mr. Tej Singh on 26 July, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 17040/16
In re:
Bal Kishan Dass Goel,
S/o Sh. Harbans Lal Goel,
R/o A-87, Sector-35,
Noida, Gautam Budh Nagar,
U.P.
.... Plaintiff
Versus
1. Mr. Tej Singh,
S/o Sh. Richpal Singh
R/o C-150, Mahendru Enclave,
Near Model Town-III, Delhi-33
2. Mr. Ved Prakash Pal,
S/o Mr. Tej Singh,
R/o C-150, Mahendru Enclave,
Near Model Town-III, Delhi-33
.... Defendants
Date of Institution of the suit : 27.04.2015
Date of receiving in this Court : 15.02.2016
Date of arguments : 10.07.2017
Date of Judgment : 26.07.2017
Suit for Possession U/s 6 of the Specific Relief Act
JUDGMENT
This judgment shall dispose of the suit filed by the plaintiff against defendants for possession U/s 6 of the Specific Relief Act.
1. Brief fact as set out in the plaint is that plaintiff filed the present suit claiming himself to be the owner of the property bearing no. 168, I and II Floor, Katra Kawab, Chandni Chowk, Delhi-110006 shown in red colour in the site plan. Defendant no. 2 is the son and the alleged General Power of Attorney of the Defendant no. 1 who is stated to be in Dasna Jail in connection with certain offenses.
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2. It is stated in the plaint that Mr. Trilok Chand Jain, proprietor of M/s Jain Enterprises was resident of 571-572, Pocket A-1, sector 6, Rohini, Delhi-85, was the tenant in the portion of said property shown in green colour in the site plan herein after referred to as suit property. The said tenancy was on month to month basis as per English Calendar month.
3. It is further stated in the plaint that earlier one Sh. Shyam Behari Santholia (now deceased) falsely claiming himself to be the owner of the suit property had filed a suit for possession and recovery of damages bearing CS No. 98 of 2002 against the plaintiff and the said tenant Mr. Trilok Chand Jain. It is further averred that Mr. Trilok Chand Jain had filed written statement in the said suit and had categorically admitted the relationship of landlord and tenant between him and the Plaintiff herein.
4. It is further averred in the plaint that Sh. Shyam Behari Santholia expired on 08.12.2007 and the said suit stood abated and the legal heirs of Sh. Shyam Bihari Santholia filed an application under Order 22 Rule 3 and under Order 22 Rule 9 (2) for setting aside the order of abatement dated 15.09.2008 but the said application was dismissed by the court vide order dated 12.03.2013. To the knowledge of the plaintiff no appeal has been filed till date against the order dated 12.03.2013 and said order has attained finality.
5. It is stated in the plaint that due to the threats of Mr. Trilok Chand Jain to hand over the possession of the tenanted premises to a third party and to do unauthorized renovation and structural changes in the tenanted premises, plaintiff was constrained to file a civil suit bearing CS (OS) No 3830 of 2014 before the Hon'ble High Court. It has been further mentioned that plaintiff got issued a legal notice dt 12.12.2014 to Mr. Trilok Chand to which Trilok Chand Jain through his counsel sent a reply dated 09.01.2015.
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6. It has been further averred that in the said suit No. 3830 of 2014 vide order dated 06.01.2015, Hon'ble High Court was pleased to direct Mr. Trilok Chand Jain to maintain status quo in respect of the possession of the suit property.
7. Mr. Trilok Chand Jain sent reply dt 9.01.2015 to the legal notice dt 12.12.2014 wherein he admitted that he was tenant under plaintiff @ Rs 5000/- per month. In the said suit i.e. suit No. 3830 of 2014, Mr Trilok Chand filed written statement copy of which was received by the plaintiff on 06.04.2015, wherein he alleged that he had handed over the actual and physical possession of the suit property to the Defendant no. 1 through defendant no. 2 on 16.10.2014 by way of Surrender Agreement dt 16.10.2014. It is stated in the plaint that the said fact that Mr. Trilok Chand Jain had handed over the actual and physical possession of the suit property to the Defendant no. 1 through the Defendant no. 2 came to the knowledge of the Plaintiff only on 06.04.2015. It is further averred that by way of execution of the said surrender agreement dt 16.10.2014 Mr. Trilok Chand Jain had himself relinquished and determined his tenancy which relinquishment and determination of the tenancy, the Plaintiff accepts.
8. It is further averred that the Plaintiff approached the Defendants through Defendant no. 2 on several dates between 07.04.2015 to 11.04.2015 and requested them to handover the actual, vacant, peaceful and physical possession of the suit property to the Plaintiff, but they through the Defendant no. 2, flatly refused to return the same to the Plaintiff, hence the present suit for recovery of possession under Section 6 of the Specific Relief Act (SRA in short) as he was dispossessed of the suit property without his consent otherwise than in the due course of law. It has been averred that plaintiff was in the juridical, constructive, legal and symbolic possession of the suit property and was in actual and physical possession of the suit property through his tenant Mr. Trilok Chand Jain. It has been further pleaded that dispossession CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 3 of 17 of Mr. Trilok Chand Jain is in fact the wrongful and illegal dispossession of the plaintiff from the suit property without his consent and without following due course of law by the defendants. Hence the suit U/s 6 of Specific Relief Act. Along with plaint, plaintiff annexed site plan, copy of plaint of suit No. 98/2002, copy of written statement filed by plaintiff in the suit No. 98/2002, copy of written statement filed by Mr. Trilok Chand Jain in the suit No. 98/2002, Copy of Order dt 13.03.2013 passed in suit No. 98/2002, Copy of plaint of suit CS(OS) No. 3830/2014, copy of legal notice dt 12.12.2014, copy of order dt 06.01.2015 passed in CS (OS) No. 3830/2014, copy of reply dt 09.01.2015, copy of written statement filed by Trilok Chand Jain in suit CS(OS) No. 3830/2014 and copy of surrender agreement dt 16.10.2014.
9. Upon service of defendants, defendants filed written statement thereby raising preliminary objection that defendant no. 1 is an absolute and exclusive owner of the property bearing no. 168, 1st and 2nd Floor, Katra Nawab, Chandni Chowk, Delhi-06 duly shown in the site plan filed along with the written statement. It has been stated that written statement has been signed by defendant no .2 for himself as well as for defendant no. 1 being attorney of defendant no. 1. It has been stated that defendant no. 1 purchased the property from his erstwhile owner namely Rajdeep Santholia S/o Sh. Shyam Bihari Santholia vide registered sale deed dated 15.12.2011. It has been stated that suit property was exclusively owned by Sh. Shyam Bihari Santholia till the time of his death on 08.12.2007 and he left behind three legal heirs namely his wife Prem Lata Santholia, the daughter Smt. Deepali Diwan and the son Sh. Rajdeep Santholia. It has been further stated that suit property was purchased by Sh. Shyam Bihari Santholia from its previous owner vide registered sale deed dated 26.11.1967 registered no. 2223 in Additional Book No. 1, Vol No. 1930 on pages 177 to 192 dated 30.11.1967.
10. It has been stated that on 21.11.2011 a relinquishment/release deed was executed by Smt. Prem Lata Santholia and Smt. Deepali Diwan in CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 4 of 17 favour of Sh. Rajdeep Santholia, who became the exclusive owner and sold the same to plaintiff herein. It has been further mentioned that in the recital of the document of the sale deed between the plaintiff and erstwhile owner Sh. Rajdeep Santholia it was mentioned that subject suit property was in unauthorised occupation of one Sh. Trilok Chand Jain and a suit for possession was pending before the court of Civil Judge. It has been mentioned that said suit was composite suit for possession for several properties owned by Sh. Shyam Bihari Santholia. Said suit was dismissed for non prosecution on 12.03.2013 and legal heirs of Shyam Bihari Santholia had filed an application for restoration of the said suit. Defendant no. 1 herein filed an application for impleadment in the above mentioned civil suit no. 98/2002 under Order 22 Rule 10 CPC and the said application was dismissed vide order dated 12.03.2012.
11. It has been submitted that after dismissal of the said suit defendant no. 1 herein filed a separate suit qua the subject suit property for possession and recovery of damages, mesne profit against Sh. Trilok Chand Jain who had been illegally occupying the property as said Trilok Chand Jain had no right title or interest in the property whatsoever. It has been mentioned that said Trilok Chand Jain was occupying one portion of the first floor and the corresponding portion of the second floor of the subject suit property more specifically shown in the site plan attached in red boundary colour. It has been further mentioned that Trilok Chand Jain has kept the said property locked for past many years and defendant no. 1 who was the owner of the same was not being allowed to have access to his own property. Suit filed by defendant no. 1 was registered as CS No. 596/2013 and notice was issued to said Sh. Trilok Chand Jain who appeared in the court and filed his written statement. It has been further mentioned that during the course of the proceedings in the said suit, Trilok Chand Jain perused the original sale deed in favour of defendant no. 1 agreed to settle the case amicably with the defendants and pursuant whereof a surrender agreement dated 16.10.2014 was executed between Sh.
CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 5 of 17 Trilok Chand Jain and the defendants herein. Defendant no. 2 who is the GPA holder of defendant no. 1 executed the said agreement on behalf of defendant with Trilok Chand Jain and possession was delivered. After settlement the said suit was withdrawn by defendant no. 1 herein on 01.09.2015.
12. It has been further submitted that suit of the plaintiff is misconceived and not maintainable as plaintiff was not in settled possession and he has no right, title or interest in the subject property. It has been further pleaded that plaintiff had no relationship with Sh. Trilok Chand Jain and plaintiff is trying to grab the property of the defendants. It has been further submitted that suit of the plaintiff is barred by limitation and not maintainable as per the Section 6 of Specific Relief Act. It has been further submitted that Trilok Chand Jain has handed over the possession to the defendant out of his own consent, Will and volition and therefore, there is no ground to invoke Section 6 of the Specific Relief Act. It has been further pleaded that plaintiff has over valued the suit whereas actual value of property is Rs. 20,00,000/-.
13. On merits, contents of the plaint has been denied except which forms part of the record. It has been specifically denied that plaintiff has right title and interest in the suit property or that Trilok Chand was tenant under the property. It has been submitted that Sh. Trilok Chand Jain was unauthorized occupant and a rank trespasser in the subject suit premises. It has been further submitted that in previous litigation Trilok Chand filed collusive written statement content of which are wrong and has been denied. It has been submitted that written statement on behalf of Mr. Trilok Chand Jain was filed at the behest of the plaintiff. It has been stated that Trilok Chand Jain had disputed the ownership of the plaintiff with respect to the subject suit premises in his reply dated 09.01.2015 to the legal notice of the plaintiff. Contents of written statement filed by Trilok Chand Jain in another matters have been denied by the defendants for want of knowledge. On the basis of submission made by the defendants in the preliminary submission which has again been CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 6 of 17 reiterated in reply on merits, defendants have sought dismissal of the sought being not maintainable under Section 6 of the Specific Relief Act and for having no merit in the submission of the plaintiff as plaintiff is neither owner nor having any right title or interest of any kind in the suit property.
14. Plaintiff filed replication thereby denying the contents of the written statement except which forms part of the record and reiterated the contents of the plaint. It has been specifically submitted that present suit is U/s 6 of Specific Relief Act and therefore, question of title/ownership of the suit property is not the subject matter of such suit.
15. On the pleadings of the parties following issues were framed on 23.03.2017:-
1. Whether the suit is not maintainable U/s 6 of Specific Relief Act? OPD.
2. Whether plaintiff was in legal possession of the suit property? OPP.
3. Whether the plaintiff has been forcibly dispossessed without his consent and without following due process of law? OPP.
4. Whether the plaintiff is entitled for relief of possession in terms of Section 6 of Specific Relief Act? OPP.
5. Relief.
16. In order to prove his case, plaintiff examined himself as PW-3 and filed his affidavit Ex. PW-3/A and relied upon the documents i.e. site plan Ex. PW-1/1, true copy of the suit no. 98/2002 Ex. PW-1/2, true copy of written statement of the plaintiff Ex. PW-1/3, true copy of written statement of Mr. Trilok Chand Jain Ex. PW-1/4, true copy of the order dated 12.03.2013 Ex.
PW-1/5, true copy of legal notice dated 12.12.2014 Ex. PW-1/6, certified copy of order dated 06.01.2005 Ex. PW-1/7, true copy of reply dated 09.01.2015 Ex. PW-1/8, true copy of written statement Ex. PW-1/9, true copy of surrender agreement Ex. PW-1/10. He was cross examined by Ld. Counsel for defendant.
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17. PW-1 is official witness namely Sh Kuldeep Kumar, JJA, Record Room Civil, Tis Hazari Courts, who brought the judicial file of Misc. No. 95/08 in suit no. 98/2002 and copy of the certified copy of the order dated 12.03.2013 in Misc No. 95/2008 is Ex. PW-1/1(OSR) and he was cross examined by Ld. Counsel for defendant.
18. PW-4 is also an official witness Sh. Devender Kumar, Judicial Assistant, from Hon'ble High Court who brought the judicial file of suit no. CS (OS) 3830/2014 and the copy of order dated 06.01.2015 is Ex. PW-4/1 (OSR). He was also cross examined by Ld. Counsel for defendant.
19. PW-5 is Sh. Vikram, Junior Judicial Assistant, Record Room Civil, Tis Hazari Courts, Delhi who brought the summoned record i.e. original file of suit no. 98/2002 titled as Shyam Bihari Santholia v. Satya Prakash Gupta & ors. and the photocopy of the certified copy of the plaint is Ex. PW- 5/1 (OSR), written statement filed by defendant no. 2 is Ex. PW-5/2 (OSR) and written statement filed by the defendant No. 4 to 6 in the said suit Ex. PW 5/3 (OSR). He was cross examined by the Ld. Counsel for defendants.
20. In defense, defendant examined Sh. Raj Kumar Gulati as DW-1 who brought the summoned judicial file of suit No. 596/2013 wherein original surrender agreement dated 16.10.2014 Ex DW1/1 and possession letter dated 16.10.2014 Ex DW1/2 were filed from the judicial file. He was cross examined by Ld. Counsel for plaintiff.
21. DW-2 is Jai Shri Priya, was the Notary Public who had attested the original SPA dated 13.07.2017 Ex. DW-2/1 executed by defendant No.1 in favour of defendant No.2. He also brought the notary register showing attestation of SPA dated 13.07.2005 vide entry no. 339 which his Ex. DW- 2/2(OSR). He was also cross examined by Ld. Counsel for plaintiff.
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22. DW-3 is Ved Prakash who tendered his evidence by way of affidavit Ex. DW-3/1to Ex. DW-3/4 and Mark A and Mark B. He was cross examined by Ld. Counsel for plaintiff. Thereafter defendant closed defendant's evidence.
23. Testimonies of witnesses and contention of the Counsel for parties have been discussed at relevant places as per requirement. However, before proceedings to record issues wise findings it would be relevant to record here that there is no dispute between the parties about the proposition of a law that in a suit for possession under Section 6 of Specific Relief Act (in short SRA) title of the disputing parties to the suit property is immaterial though in the case of open land/plot title may be helpful in determining the previous possession as possession follows title. Admittedly in the present case suit property is not a open land/plot and therefore title to the suit property has not got to be decided and accordingly both parties though pleaded title and led evidence in examination in chief qua the title to the property but agreed not to cross examine or in other words restrained from cross examining each other on the aspect of title to the property.
24. With aforesaid limitation as is otherwise also observed in suit for possession under Section 6 of the SRA, after appreciating pleadings, evidence, material on record and respective contention of the counsels for parties, issues wise findings of this Court are as under:-
ISSUE No.2:- Whether plaintiff was in legal possession of the suit property? OPP.
25. Issue No.2 is taken up first ahead of all other issues as in a suit for possession under Section 6 of the Specific Relief Act (in short SRA) plaintiff has got to prove his settled possession first, then his dispossession by CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 9 of 17 defendant without his consent otherwise than in due course of law and then his approaching the court within 6 months of such dispossession. Onus to prove this issue is upon the plaintiff. Plaintiff has claimed that suit property was under the occupation of his tenant Mr Trilok Chand Jain and as such he was in legal possession of the suit property.
26. In order to prove tenancy of Mr Trilok Chand Jain under him in respect of the suit property plaintiff has relied upon admission of said Mr Trilok Chand Jain in the pleadings of previous litigation wherein in the written statements filed by him (Mr Trilok Chand Jain) he had claimed himself to be tenant in respect of the suit property under the plaintiff herein. Plaintiff summoned the record of suit No. 98/2002 got proved the said written statements Ex PW5/3 filed by Mr Trilok Chand Jain in the suit filed by Shyam Bihari Santholia bearing suit No. 98/2002. Plaintiff also exhibited the reply dt 09.01.2015 as Ex PW1/7 sent by Mr Trilok Chand Jain in response to plaintiff's notice dt 12.12.2014 Ex PW1/6.
27. There is no dispute that Shyam Bihari Santholia had filed suit against plaintiff herein, said Mr Trilok Chand Jain and others. Plaintiff herein had filed his separate written statement whereas said Mr Trilok Chand Jain along with other namely Rajesh Sharma and one Raj Kumar Aggarwal had filed common written statement Ex PW5/3. In the said written statements no doubt said Mr Trilok Chand Jain and other have claimed themselves to be the tenant of their respective portion under the plaintiff herein. But question arises whether this admission of said Mr Trilok Chand Jain can be said to be binding against the defendants herein.
28. Admittedly said suit No. 98/2002 got abated due to sad demise of Shyam Bihari Santholia and failure of his LRs to get themselves substituted in time, hence said suit did not reach its logical end. Admission made in the written statement at best remain pleading on behalf of said tenant and his CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 10 of 17 admission cannot be proved against a third party. If Mr Trilok Chand Jain had been party to the present litigation and had taken different stand than what he had taken earlier in the said pleading then the said contents of the said written statements could have been proved against said Mr Trilok Chand Jain and he could have been estopped from setting up any other stand. But reason best known to the plaintiff said Mr Trilok Chand Jain has not been impleaded in the present suit on the shoulder of whom plaintiff is willing to prove his possession.
29. Moreover, it is settled proposition of evidence that admission is proved against the person who makes them and not against the third person. Shyam Bihari Santholia and defendants have claimed the Mr Trilok Chand Jain as rank trespasser in respect of the suit property, hence admission of said Mr Trilok Chand Jain cannot be proved against the defendants. Had Mr Trilok Chand Jain been party to the present litigation things would have been different. Even if admission of Mr Trilok Chand Jain is taken into consideration in view of Section 19 of the Evidence Act still such admission would only be relevant and not conclusive.
30. Plaintiff in his pleadings and evidence has stated that Mr Trilok Chand Jain was the tenant in the suit property since 1988 but did not specifically pleaded or deposed as to whether it was he who let out the same to Trilok Chand Jain or when he allegedly became owner of the property said tenant was already tenant. In cross examination he has deposed that rent receipts were being executed by him on receiving rent from tenant but no rent receipts has been placed and proved on record. No independent witness has been examined to prove that Mr Trilok Chand Jain was tenant under him. In alleged 26 years of tenancy, some official documents must have come into existence such as electricity connection which must have been installed in the name of tenant and installed upon the no objection of plaintiff if at all he was owner/landlord of the suit property. Plaintiff has also not brought on records CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 11 of 17 his income tax record to show that he has been receiving rent from tenants in the said property.
31. Plaintiff has sought to prove his legal possession only from admission of Mr Trilok Chand Jain but admission is not admissible against a person other than the person making it. Meaning thereby that such admission is not admissible against the defendants. There is no other evidence apart from those admission, hence it can safely be concluded that plaintiff has miserably failed to prove that Mr Trilok Chand Jain was tenant under him in respect of the suit property and thus failed to prove that he was in legal possession of the suit property through his tenant.
In view of the above discussion and reasoning, issue No.2 is decided against the plaintiff and in favour of defendants.
ISSUE No. 3.:- Whether the plaintiff has been forcibly dispossessed without his consent and without following due process of law? OPP.
32. Next important ingredient for maintaining suit under Section 6 of SRA is the dispossession of the plaintiff of immovable property without his consent otherwise than in due course of law. Onus to prove this issue is upon plaintiff. Although it has already been found that plaintiff failed to prove that Mr Trilok Chand Jain was his tenant under him in respect of suit property and as such he failed to prove his legal possession. Notwithstanding that finding, this court is going into the question of dispossession assuming that plaintiff was in constructive and legal possession.
33. Ld Counsel for defendants has contented that there is no illegal or forcible dispossession, hence therefore there is no cause of action. It has been contended by him that said Mr Trilok Chand Jain after being satisfied with the title of defendants handed over the possession of the suit property to defendants before the court of law in the suit bearing No. 596/2013 for CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 12 of 17 possession filed against him by defendants and therefore no illegal means or force was applied and therefore suit is not maintainable under Section 6 of the SRA. He has further argued that Section 6 was enacted to ensure peace and tranquility in the society so that no one takes law into hand. He had contented that even if it is assumed that possession delivered by said Mr Trilok Chand Jain was against the norms, still since no force or illegality or breach of peace has taken place suit under Section 6 of SRA does not lie.
34. Ld Counsel for plaintiff has argued that while issuing notice of the suit, Hon'ble High Court (when the matter was pending before it) was pleased to put question about the maintainability of the present by landlord and notice to defendants was issued only after noting the ruling of the Apex Court in the case titled as "Sadashiv Shyama Sawant( dead) through LRs and others v. Anita Anant Sawant (2010) 3 SCC 385 wherein it was held that if tenant is dispossessed, landlord can maintain suit to recover possession under Section 6 of the Specific Relief Act. It has been further contented by Ld Counsel for plaintiff that plaintiff was in legal possession of the suit property through tenant and the possession of the suit property from tenant has been obtained illegally without consent of plaintiff otherwise than in due course of law and therefore all the ingredient of Section 6 of the SRA has been pleaded and has relied upon the aforesaid Sadashiv (supra).
35. While dealing with application under Order 7 Rule 11 CPC this court in its order 03.12.2016 had observed that Section 6 of the SRA does not use the expression "forcible dispossession" rather it uses the expression "dispossession without his consent otherwise than in due course of law" which in its meaning is larger than what the expression "forcible dispossession"
means. Thus, any dispossession which is without consent otherwise than in due course of law is covered under Section 6 of the said Act. Hence, contention of the counsel for defendants is not sustainable so far as dispossession without force is concerned.
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36. But in the background of pleadings of parties particularly of plaintiff the real question is - Who has dispossessed the plaintiff of the suit property (assuming that he was in legal and constructive possession)? There cannot be two views about the proposition as laid down in Sadashiv (supra) that landlord can file suit to recover possession under Section 6 of SRA if his tenant has been dispossessed in the circumstances contemplated under Section 6 of the said Act.
37. But the fact of the present case is clearly distinguishable from the facts of the Sadashiv (supra). In the said case tenant was forcibly dispossessed but in the present case tenant has surrendered tenancy and possession to the defendant No.1 through defendant No.2. In the said case illegality of forcible dispossession was committed with the tenant which under the law was extended to the legal possession of the landlord and was considered landlord's dispossession without his consent of immovable property otherwise than in due course of law. In the present case admittedly no sort of illegality as contemplated under Section 6 of the SRA was committed with the tenant by the defendants. Assuming that on being dispossessed in the aforesaid manner the tenant himself were to file suit to recover possession under Section 6 of the SRA, can under the facts of the present case the tenant Mr Trilok Chand Jain file suit against defendants under Section 6 of the SRA to recover possession? Can he plead before the Court of law that he has been dispossessed without his consent of immovable otherwise than in due course of law? Answer is definitely No.
38. Mr Trilok Chand Jain the tenant certainly cannot maintain such suit in the facts of the present case as he was not dispossessed of the suit property without his consent otherwise than in the due course of law. If tenant cannot maintain such suit against defendants, applying the principle of reverse engineering to the ratio of Sadashiv (supra), landlord too cannot maintain such CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 14 of 17 suit against the defendants.
39. In the facts of the present case as pleaded by the plaintiff in the plaint, it is not the defendants but Mr Trilok Chand Jain who dispossessed the plaintiff of his possession, if at all Mr Trilok Chand Jain was under obligation to hand over the possession to the plaintiff. It was Mr Trilok Chand Jain who committed the dispossession of the kind contemplated in the Section 6 of the SRA. Defendants at best can be said to be in connivance with Mr Trilok Chand Jain and beneficiary. Plaintiff in his cross examination specifically admitted that he (plaintiff) was dispossessed by Mr Trilok Chand Jain and defendants. Plaintiff for reason best known to him has exonerated the conduct of Mr Trilok Chand Jain and has let him go scott free. Plaintiff did not file any suit against Mr Trilok Chand Jain nor impleaded him in the present suit.
40. In fact in the plaint itself plaintiff has specifically pleaded that "by execution of surrendered agreement Mr Trilok Chand Jain has himself relinquished and determined his tenancy which relinquishment and determination of tenancy plaintiff accepts." Plaintiff cannot blow hot and cold in the same breath. On the one hand plaintiff accepts the relinquishment and determination of tenancy by the surrendered agreement but rejecting his action of surrendering of possession to the defendants by very said agreement that too without taking any action against said tenant. If plaintiff has accepted the relinquishment and determination of tenancy of the alleged tenant by the surrender agreement then he should have filed suit for possession on the basis of title against the defendants to recover possession.
41. As has been noted above that it was Mr Trilok Chand Jain who dispossessed the plaintiff assuming that he was the tenant of the plaintiff and therefore, Mr Trilok Chnad Jain was the necessary party. Ld. Counsel for plaintiff has contended that the case laws in Sadashiv (supra) as well as in Rattan Lal Ghelabhai v. Amar Singh Roop Singh & Anr. AIR 1929 Bombay CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 15 of 17 467 rules that even if tenant has voluntarily delivered the possession to person other than his landlord, he is not a necessary party and plaintiff can sue on his own. Perusal of the aforesaid two judgments nowhere suggest that even if tenant has delivered the possession voluntarily to person other than the landlord the presence of said tenant is not necessary in a suit for possession under Section 6 of SRA. No doubt, plaintiff can institute suit on his own but then not on the basis of previous possession but on the basis of title.
42. In view of the above discussion and reasoning plaintiff cannot be said to have been dispossessed by defendants of immovable suit property without his consent otherwise than in due course of law. The real culprit is the Mr Trilok Chnad Sharma, if at all it is accepted that he was tenant under the plaintiff in respect of the suit property but his conduct has been exonerated by plaintiff himself.
In view of the above discussion and reasoning, issue No. 3 is decided against the plaintiff and in favour of defendant.
ISSUE No. 1:- Whether the suit is not maintainable U/s 6 of Specific Relief Act? OPD.
43. Onus to prove this issue is upon the defendant. It has been contended by the Ld. Counsel for defendant that plaintiff was aware of ownership of the defendant since 12.03.2013 but plaintiff has not filed the present suit within six months. It has been further contended that since plaintiff is not the owner of the property and was not in possession of the property therefore, suit U/s 6 of Specific Relief Act is not maintainable. It has been further contended that since no force, illegality or breach of peace has been alleged while taking possession from the said Mr Trilok Chand Jain, therefore, the suit filed by the plaintiff is not maintainable.
44. Per contra, it has been contended by the Ld. Counsel for the plaintiff that since plaintiff was in legal and constructive possession of the suit CS No. 17040/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 16 of 17 property through his tenant Mr Trilok Chand Jain and therefore, tenants illegal delivery of possession to the defendant no. 1 through defendant no. 2 is plaintiff's illegal dispossession without consent otherwise than in due course of law. Relying upon the judgment in Sadashiv (Supra), he contends that suit under section 6 of SRA is maintainable.
45. The case law laid down in Sadashiv (Supra) has no application to the present case as plaintiff failed to prove that Mr Trilok Chand Jain was his tenant in respect of the suit property and was dispossessed unlawfully as has been recorded in the finding on issue no. 2 & 3. Hence, plaintiff was not at all in legal and constructive possession of the suit property and therefore, once plaintiff was not in possession legal or actual he cannot maintain suit U/s 6 of the Specific Relief Act.
In view thereof, issue no. 1 is accordingly decided in favour of the defendant and against the plaintiff.
ISSUE No.4:- Whether the plaintiff is entitled for relief of possession in terms of Section 6 of Specific Relief Act? OPP.
46. In view of the findings recorded in all the above issues, plaintiff is not entitled for relief of possession in terms of Section 6 of Specific Relief Act and therefore, issue no. 6 is decided in favour of defendant and against the plaintiff.
Relief In view of the finding recorded on above issues, suit of the plaintiff is dismissed.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announce in open court ADJ-13 (Central)/THC
(Judgment contains 17 pages) Delhi/26.07.2017
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