Delhi District Court
Ramjas Foundation vs Unknown on 8 November, 2013
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IN THE COURT OF SH. KAPIL KUMAR, CIVIL JUDGE01
( WEST) TIS HAZARI COURTS, DELHI..
Suit No. 803/06
Case ID No. 02401C0527092006
Date of Institution : 31.03.2006
Date of reserving Judgment : 31.10.2013
Date of pronouncement : 08.11.2013
Ramjas Foundation,
A society registered under
the Societies Act having
its registered office at 4609, Ansari Road
Darya Ganj, New Delhi
through its Hony. Secretary ( legal)
Sh. Vinod Kumar Gupta
................Plaintiff
v.
Sh. Radhey Shyam Gupta
@ Sh. R.S. Gupta
S/o Sh. Devi Ram Gupta
Plot No. P5, Gali No. 10
Anand Parbat Industrial Area
New Rohtak Road
New Delhi110005
...............Defendant
SUIT FOR RECOVERY OF RS.36,000/
C.S 803/06
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JUDGMENT
Case of plaintiff
1. The plaintiff is a society registered under the Societies Registration Act having its registered office at 4609, Ansari Road, Darya Ganj, New Delhi. At the request of defendant the plaintiff society permitted the defendant to use, on leave and license basis a portion of the land measuring 250 Sq. yards bearing plot no. RA2, Gali No. 12, New Rohtak Road, Anand Parbat Industrial Area, New Delhi forming part of Khasra no. 706/606/364, Village Chowkri Mubarikabad, Delhi (hereinafter referred to as 'suit property') at a monthly licence fee of Rs. 1,000/ vide Licence Deed/Undertaking dated 16.4.1987.
2. Plaintiff further states that the defendant is very irregular and habitual defaulter in making payment of licence fee to the plaintiff society. Defendant has violated the terms and conditions of the licence deed and thus the plaintiff society sent a legal notice dated 12.4.2005 to the defendant thereby demanding the entire arrears of license fees and damages for the use and occupation @ Rs. 2,000/ p.m to which the defendant did not reply.
3. Plaintiff further states that defendant is now in arrears of C.S 803/06 ` 3 license fees/damages amounting to Rs.44,000/ till 28.2.2006 as per the accounts maintained by the plaintiff society in the ordinary course. However by virtue of present suit plaintiff society is claiming Rs. 36,000/ only being the legally recoverable amount for the three years alongwith pendente lite and future interest @ 24 % p.a . Case of defendant
4. The suit is resisted by the defendant by filing written statement wherein it is stated that the plaintiff has suppressed the relevant facts and has not come to the court with clean hands. Further states that plaintiff has no locus standi to file the present suit as the suit property has been acquired by the Government and the possession has been taken over by the Government on 13.9.2001.
5. Further states that the suit of the plaintiff is not maintainable as the same has not been drafted according to High Court Rules and the plaint has not been verified and signed by a competent person. Defendant denied that the suit property was given to him by the plaintiff society on license basis and states that plaintiff is not the owner of the suit property. Further states that it is pertinent to mention that Delhi Lands ( Restrictions on Transfer) Act, 1972 came into force in 1972 and the plaintiff has not sought any permission from the competent C.S 803/06 ` 4 authority under this Act before transferring the suit property to defendant in any manner. Further states that as the suit property has already been acquired under Sections 4 and 6 of Land Acquisition Act and accordingly all the transactions took place between the parties is void ab initio as per Indian Contract Act.
6. Defendant further states that after the acquisition of suit property by the Govt. w.e.f 13.9.2001 the rights of the plaintiff qua suit property has been ceased and as such the plaintiff society has to refund the amount taken by it from the defendant as license fees. Further states that the suit of the plaintiff is frivolous and is liable to be dismissed.
7. Replication filed wherein it is stated that the defendant cannot challenge the title of the plaintiff as per Section 116 of Indian Evidence Act. In rest of the replications plaintiff denied all the averements of the defendant and reiterated its stand as taken by it in the plaint.
8. Vide Order dated 30.07.2009 following issues were framed by the Ld. Predecessor of this court :
1. Whether the present suit is not maintainable under Sec. 3 & 4 of the Delhi Land ( Registration and Transfer Act) 1972 as C.S 803/06 ` 5 prayed for? OPD
2. Whether the suit of the plaintiff is not maintainable as the suit property has already been acquired under Sec. 4 & 6 of the Land Acquisition Act? OPD
3. Whether the plaintiff is entitled to a decree for sum of Rs. 36,000/ as prayed for? OPP
4. Whether the plaintiff is entitled to pendente lite and Future Interest @ 24% per annum on the principal amount? OPP
5. Relief.
9. In plaintiff evidence plaintiff examined Sh. Ashok Kumar Gupta as PW1 and Sh. Raj Bahadur, Inspector, commissioner of Industry Society as PW2. In their testimonies following documents were exhibited :
" General Power of Attorney as Ex PW 1/1 (OSR), Resolution Ex. PW 1/2 (OSR), Memorandum of association Ex. PW 1/3 and Ex.PW 1/ 4 ( OSR) copy of resolution Ex.PW C.S 803/06 ` 6 1/5 ( OSR) , Photo copy of original licence deed Ex. PW 1/6, copy of notice Ex. PW 1/7, postal receipts are Ex. PW 1/8 and Ex. PW 1/8 A, UPC receipt as Ex. PW 1/9 , AD cards are Ex. PW 1/10, Statement of Account Ex. PW 1/11 ( OSR). "
10. Defendant examined himself as DW1. He relied upon following documents :
"Kabja Karwahi dated 13.9.2001 already exhibited PW 1/D 3 as Ex. DW 1/1; notification as Ex. DW 1/ 2; letter dated 27.9.2011 as Mark Y; copy of judgment dated 09.11.2010 as Ex.
DW 1/ 4; copy of Order dated 11.1.2012 as Mark X; copy of Order passed by Hon'ble High Court of Delhi as Mark X 1. "
11. I have heard arguments advanced by Ld. Counsels for parties and carefully perused the record.
12. My issuewise findings are as under :
ISSUE No. 1 C.S 803/06 ` 7
Whether the present suit is not maintainable under Sec. 3 & 4 of the Delhi Land (Registration and Transfer Act) 1972 as prayed for? OPP The onus to prove this issue was upon the defendant.
13. Ld. counsel for defendant submits that plaintiff transferred the suit property to the defendant in contravention to Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972 and thus the present suit is not maintainable. Further submits that the license deed as relied upon by the plaintiff is a camouflage as in effect the deed is a lease deed and thus there is a transfer of interest in the suit property in favour of defendant.
14. Per contra, Ld. counsel for plaintiff submits that it is well settled law that giving a license to a person does not amount to transfer of immovable property in favour of another and as such the present suit is not hit by Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972.
15. Before dealing Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972 it is necessary to see whether Ex. PW 1/6 which is relied upon both the parties is in effect a license deed only or a lease C.S 803/06 ` 8 deed. Lease implies transfer of interest in the immovable property as per Section 105 of Transfer of Property Act. On the other hand license does not imply transfer of any interest in the immovable property but is only a permission to use it. ( Ref. :definition propounded by Hon'ble Mr. Justice Vaughan C.J in Thomas Sorrell , 1673 Vaughan 330, page
351).
Before interpreting Ex PW 1/6 following principle has to be kept in mind:
(i) The construction of document would depend upon its pith and substance and not upon the labels that the parties may put upon it. This principle was laid down by Hon'ble Apex Court in the decisions of Inderjeet Singh Sial v. Karam Chand Thapar ( 1995) 6 SCC 166 and Vayallakath Muhammedkutty v. Illikkal Moosakutty (1996) 9 SCC
382.
(ii) The paramount test is " the intention of the parties " as stated in the case of Capt. B.V. D'Souza v. Antonio Fausto Fernandes ( 1989) 3 SCC 574.
(iii) Exclusive possession of the premises being granted, although an important factor, does not preclude the court from holding that the document is in fact a licence as decided in the case of Sohan Lal C.S 803/06 ` 9 Naraindas v. Laxmidas Raghunath Gadit (1971) 1 SCC 276 and Rajbir Kaur v. S. Chokesiri & Co. ( 1989) 1 SCC 19.
(iv) Even where exclusive possession is granted, only a licence will be created if the grantor did not have the power to grant a lease. This principle was laid down in the case of Rajbir Kaur ( supra) and Delta International Ltd. v Shyam Sundar Ganeriwala & Another ( 1999) 4 SCC 545.
16. For construction of contract between the parties, the reference of following two important paragraphs from The Interpretation of Contracts by Kim Lewison, Q.C are necessary :
. For the purpose of the construction of contracts, the intention of the parties is the meaning of the words they have used. There is no intention independent of that meaning.
. Where the words of a contract are capable of two meanings, one of which is lawful and the other is unlawful, the former construction should be preferred.
17. Ex. PW 1/6 is the document vide which the defendant claims interest in the suit property. The heading of Ex. PW 1/6 is ' license deed'. Following clauses of Ex. PW 1/6 are relevant to comment upon the nature of Ex. PW 1/6 :
C.S 803/06 ` 10
Clause 1: The licensor grants and the licencee hereby accept the status of a licecee in respect of suit property.
Clause 5 : The overall control and legal possession of the land shall be deemed to remain with the Foundation (plaintiff) and it is clearly agreed that the licencee shall not claim or acquire any interest in the land hereby demised.
Clause 6 : Upon failure or licencee to observe any terms or conditions of this deed or failure to pay the licence fee or for any other default, the Foundation shall be entitled to terminate his licence without notice and in such event the licencee shall not be enitled to claim the security deposit made by him.
Clause 7 : The Foundation has intimated the licencee that the land hereby demised is under acquisition and that such proceedings have been challenged by the Foundation and the licencee has taken the land on licence basis with full knowledge of the acquisition proceedings in respect thereof.
17.1 Thus vide Clause 1 defendant accepted his status as of licencee. By virtue of Clause 5 defendant consented that overall control, legal possession shall be deemed to remain with the plaintiff only and the defendant will not acquire any interest in the suit property. It was C.S 803/06 ` 11 further agreed that upon failure of defendant to observe any terms of Ex.
PW 1/6 plaintiff would be entitled to terminate the license of defendant without notice.
17.2 It is not the case of defendant that he signed Ex. PW 1/6 under any undue influence or coercion. It is specifically mentioned in Ex. PW 1/6 that only a license is created. Clause 1 of Ex. PW 1/6 is positive in language vide which parties accepted their status as of ' licensor and licensee'. When the parties which are capable of understanding their rights fully, expressly agreed and declared that document be treated as license deed then it would be impermissible to conjecture or infer that their relations should be construed that of landlord and tenant. As stated above the intention of the parties is the meaning of the words they have used and there could be no intention independent of that meaning.
18. Parties to the document were aware about Section 3 and 4 Delhi Land ( Restrictions on Transfer) Act, 1972 vide which permission of competent authority was required for transfer of interest in immovable property. As above mentioned, it is one of the principle of interpretation that such interpretation be given to the document which make that document legal and not unlawful. It would be unreasonable to C.S 803/06 ` 12 draw an inference that parties intended to create a relationship of landlord and tenant despite contrary terms in Ex PW 1/6, which are binding upon the parties and when transfer of interest in immovable property was barred by virtue of Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972
19. Ld. counsel for defendant argued that exclusive possession of the suit property was granted to the defendant as admitted by PW1 in his crossexamination which is suggestive of the fact that the intention of parties was to execute lease deed. In my considered view, this submission of ld. counsel for defendant cannot be accepted. Exclusive possession, as discussed above, is not the sole indicia to establish relationship of landlord and tenant between the parties. Vide clause 5 defendant agreed that overall control and legal possession of the suit property shall be deemed to remain with the plaintiff. Here the golden rule of literal interpretation is squarely applicable as per which the possession of the suit property is with the plaintiff only. The oral testimony of PW1 as to the possession of suit property with the defendant is hit by Section 91 and 92 of Indian Evidence Act, 1872. If the privilege of occupying the suit property exclusively is granted on certain terms and conditions specifically as licensee or what is agreed to C.S 803/06 ` 13 be granted is exclusive possession of the suit property on certain terms and conditions as licensee then there is no question of holding to the contrary.
Accordingly, in view of above discussion it is clear that the relation between the plaintiff and defendant was of licensor and licensee only and Ex. PW 1/6 is a license deed.
Now coming to Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972. Section 3 and 4 reads as under :
Section 3 : " No person shall purport to tranfer by sale , mortgage, gift, lease or otherwise any land or part thereof situated in the Union Territory of Delhi, which has been acquired by the Central Government under the Land Acquisition Act, 1984 or under any other law providing for acquisition of land for a public purpose. "
Section 4 : " No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or C.S 803/06 ` 14 part thereof situated in the Union Territory of Delhi, which is proposed to be acquired in connection with the Scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under Section 6 of the Land Acquisition Act, 1894, ( 1 of 1894) the Central Government has not withdrawn from the acquisition under Section 48 of the Act. "
20. The present suit would be barred by virtue of Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972 if by virtue of Ex. PW 1/6 any interest in the suit property is transferred in favour of defendant. As above discussed Ex. PW 1/6 is a license deed and the capacity of parties are of licensor and licensee. It is important to point out that license is not a transfer of interest in the property but is only the permission to use it. As per Section 5 of Transfer of Property Act , 1882 transfer of property means an Act by which a person conveys property, in present or in future to another person. Transfer of Property connotes the transferring of rights in some property by one in favour of C.S 803/06 ` 15 another. License does not create any interest in the property. Hence granting of license to defendant vide Ex PW 1/6 cannot be called to be a transfer which would be barred U/s 4 of Delhi Land ( Restrictions on Transfer) Act, 1972 .
Hence, there is no transfer of property vide Ex.PW 1/6, hence the restriction of Section 3 and 4 of Delhi Land ( Restrictions on Transfer) Act, 1972 is not applicable and as such the present suit is not barred under these provisions.
Issue is decided in favour of plaintiff and against the defendant.
21. ISSUE No.2 Whether the suit of the plaintiff is not maintainable as the suit property has already been acquired under Sec. 4 & 6 of the Land Acquisition Act? OPD The onus to prove this issue was upon the defendant.
22. In view of findings on Issue No.1, it is clear that vide Ex. PW 1/6 no transfer of interest took place in the suit property. The acquisition of property in question does not bar the plaintiff from recovering the arrears of license fees since the acquisition proceedings were brought out to the notice of defendant and this is categorically C.S 803/06 ` 16 recorded in Clause 7 of Ex. PW 1/6. DW1 deposed in the cross examination that he cannot say whether only symbolic possession has been taken by the DDA and not the physical possession. It is also not in dispute that till today the defendant is enjoying the possession of the suit property and is drawing benefits from it. Physical possession not taken by the Government. Acquisition proceedings must have been the bar to the suit for possession but surely not for the present suit for recovery of arrears of license fees.
23. In Sh. Shiv Prasad Pandey v Smt Meera Devi RSA No. 133/10 decided on 19.9.2011 it was held by Hon'ble Delhi High Court that by virtue of Section 16 of Land Acquisition Act , 1894 the property did not pass on to the Government for a land acquired under the said Act untill the physical possession of the same is not taken by the Government. It was observed by His Lordship that there have been repeated policies issued by the Government whereby the unauthorized colony situated on land acquired by the Government but the possession was not taken by the Government. This court is bound by the aforesaid Judgment of Hon'ble High Court and no material on record is there from which it can be deduced that the aforesaid decision of Hon'ble High Court is not applicable in the facts of the present case. C.S 803/06 ` 17
Issue is decided in favour of plaintiff and against the defendant.
24. ISSUE NO. 3
Whether the plaintiff is entitled to a decree for sum of Rs. 36,000/ as prayed for? OPD The onus to prove this issue was upon the defendant.
25. ld. counsel for defendant argued that plaintiff does not have any title to the suit property and as the suit property has been acquired by the DDA and as such the plaintiff cannot claim himself to be the licensor. Per contra, Ld. counsel for plaintiff submits that defendant being the licensee has no right to challenge the title of the plaintiff.
26. In view of finding on Issue No.1 capacity of defendant in the suit property is of licensee. As per Section 116 of Indian Evidence Act, 1872 no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given. This provision has been extended in the case of Deshraj Singh v. Triveni Engineering and Industries Ltd. 2006 (130) DLT 120 in which it was held that neither the tenant nor the licensee can challenge the title of the landlord or licensor. Reliance could also be C.S 803/06 ` 18 placed upon PUR POLYURETH Products Pvt. Ltd. v Geeta Bhargav 2009 ( 107) DRJ 408. Accordingly, it is clear that licensee is not permitted to challenge the license of licensor that existed at the time of commencement of license. Therefore, the averment of defendant that plaintiff was not the licensor at the time of execution of license deed holds no ground.
27. Defendant/DW1 admitted in the crossexamination that he received legal notice from the plaintiff society for the recovery of arrears of license fees but he has not paid any amount after receiving the notice from the plaintiff. This admission of DW1 is sufficient for fixing the liability of defendant for the payment of arrears of license fees amounting to Rs.36,000/ as claimed by the plaintiff. Issue is decided in favour of plaintiff and against the defendant.
28. ISSUE No.4 Whether the plaintiff is entitled to pendente lite and Future Interest @ 24% per annum on the principal amount? OPP The onus to prove this issue was upon the plaintiff.
29. Plaintiff is praying for the interest @ 24 % p.a. which seems to be exhorbitant. Interest @ 9 % is fair and equitable recoverable from the date of filing of suit till the realization of decretal C.S 803/06 ` 19 amount.
Issue is decided in favour of plaintiff and against the defendant.
30. Relief.
In view of findings on Issue no.3 and 4, the suit of the plaintiff is decreed for the sum of Rs. 36,000/ against the defendant alongwith pendente lite and future interest @ 9 % p.a alongwith costs of the suit.
Decree Sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court ( Kapil Kumar)
on 08.11.2013 Civil Judge 1( West)/Delhi
C.S 803/06