Delhi District Court
In Re vs Mr. Tej Singh on 26 July, 2017
IN THE COURT OF SH. HARISH Sharma : ADDL. DISTRICT JUDGE
-13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 10310/16 (Old No. 147/16)
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 : 11.08.2015
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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 1 of 17 with certain offenses.
2. It is stated in the plaint that Mr. Rajesh Sharma S/o Sh. K.L. Sharma, proprietor of M/s R.K. Textiles, was the tenant in one room on the second floor of the said property, under the plaintiff at the monthly rent of Rs 121/- excluding electricity and water charges. The entire property bearing No. 168, Katra Nawab, Chandinin Chowk, Delhi-110006 has been more specifically shown in red colour and the said tenanted premise has been more specifically 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. Rajesh Sharma. It is further averred that Mr. Rajesh Sharma had filed written statement in the said suit and had categorically admitted the relationship of landlord and tenant between him and the Plaintiff herein. He also admitted the extent of the tenanted premises and the tenure of the relationship.
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) CPC 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 has been further mentioned that defendant No.1 filed a suit for possession and recovery of damages/mesne profits bearing No. 148/2015 (Old CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 2 of 17 No. 754/2014) against Mr. Rajesh Sharma, before Ld. ADJ, Tis Hazari Courts, Delhi.
6. It has been further stated that Mr. Rajesh Sharma filed written statement in the said suit and once again admitted the relationship of landlord and tenant between him and the plaintiff. Mr. Rajesh Sharma has also admitted the extent of the tenanted premises and the tenure of the relationship. Plaintiff also filed an application for impleadment under Order 1 Rule 10 CPC , in the said suit No. 148/2015.
7. It has been further pleaded that contrary to his own written statement filed in the suit No. 148/2015 and suit bearing No. 98/2002 Mr. Rajesh Sharma handed over the actual and physical possession of the suit property to the defendants on 03.03.2015. It is stated in the plaint that the said fact that Mr. Rajesh Sharma 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 when the defendant No.1 through the defendant No.2 filed an application under Order 23 Rule 3 CPC alogwith the Surrender Agreement dt 03.03.2015 allegedly executed between Mr. Rajesh Sharma and the defendant No.1 through defendant No.2. It is further averred that by way of execution of the said surrender agreement dt 03.03.2015 Mr. Rajesh Sharma had himself relinquished and determined his tenancy which relinquishment and determination of the tenancy, the Plaintiff accepts. It has been further pleaded that after the said determination and relinquishment of the tenancy, Mr. Rajesh Sharma was bound to handover the physical possession of the suit property to the plaintiff, being the landlord and Mr. Rajesh Sharma had no right to hand over the physical possession of the suit property to the defendants.
8. It is further averred that the Plaintiff approached the Defendants through Defendant no. 2 on several dates between 07.03.2015 to 10.07.2015 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 3 of 17 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. 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. Rajesh Sharma. It has been further pleaded that dispossession of Mr. Rajesh Sharma 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 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. Along with plaint, plaintiff annexed site plan, copy of plaint of suit No. 98/2002, copy of written statements filed by plaintiff in the suit No. 98/2002, copy of written statement filed by Mr. Rajesh Sharma in the suit No. 98/2002, Copy of Order dt 12.03.2013 passed in suit No. 98/2002, copy of written statement filed by Mr Rajesh Sharma in suit No. 148/2015 and copy of surrender agreement dt 03.03.2015.
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 wife 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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 4 of 17 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 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. Rajesh Sharma 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. 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. Rajesh Sharma who had been illegally occupying the property as said Sh. Rajesh Sharma had no right title or interest in the property whatsoever. It has been mentioned that said Sh. Rajesh Sharma was occupying one portion of the 2 nd floor of the subject suit property more specifically shown in the site plan attached in red boundary colour. Suit filed by defendant no. 1 was registered as CS No. 370/2013 and notice was issued to said Sh. Sh. Rajesh Sharma 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, Sh. Rajesh Sharma 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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 5 of 17 agreement dated 03.03.2015 was executed between Sh. Sh. Rajesh Sharma 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 Sh. Rajesh Sharma who delivered the possession to defendants. After settlement the said suit was withdrawn by defendant no. 1 herein on 20.05.2015.
11. 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. Rajesh Sharma 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 Sh. Rajesh Sharma 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 below Rs. 20,00,000/-.
12. 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 Sh. Rajesh Sharma was tenant under the property. It has been submitted that Sh. Rajesh Sharma was unauthorized occupant and a rank trespasser in the subject suit premises. It has been further submitted that in previous litigation Sh. Rajesh Sharma filed collusive written statement content of which are wrong and has been denied. It has been submitted that written statement on behalf of Sh. Rajesh Sharma was filed at the behest of the plaintiff. Contents of written statement filed by Sh. Rajesh Sharma 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 been reiterated in reply on merits, CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 6 of 17 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.
13. 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.
14. 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.
15. 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. Rajesh Sharma Ex. PW-1/4, true copy of the order dated 12.03.2013 Ex. PW-
1/5, true copy of written statement Ex. PW-1/6, surrender agreement Ex. PW- 1/7. He was cross examined by Ld. Counsel for defendant.
16. PW-1 is official witness namely Sh Kuldeep Sharma, JJA, Record Room Civil, Tis Hazari Courts, who brought the judicial file of Misc.
CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 7 of 17 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.
17. PW-4 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- 4/1 (OSR), written statement filed by defendant no. 2 is Ex. PW-4/2 (OSR) and written statement filed by the defendant No. 4 to 6 in the said suit Ex. PW 4/3 (OSR). He was cross examined by the Ld. Counsel for defendants.
18. In defence, defendant examined Sh. Jai Shri Priya, advocate i.e. summoned witness as DW-1 who proved the attestation of SPA Ex. DW-1/1. He has also brought the notary register showing attestation of SAP dated 13.07.2015 vide entry no. 339 Ex. DW-1/2(OSR), surrender agreement already Ex. PW-2/3. He also brought the notary register showing attestation of surrender agreement dated 13.03.2015 vide entry no. 118 Ex. DW-1/3(OSR). He was cross examined by Ld. Counsel for plaintiff.
19. DW-2 is Ved Prakash, who tendered his evidence by way of affidavit Ex. DW-2/A and relied upon the documents i.e. affidavit Ex. DW-2/1, site plan Ex. DW-2/2, special power of attorney Ex. DW-2/3, sale deed Ex. DW-2/4, copy of suit titled as Rajesh Sharma @ Babla v. Shri Shyam Behari Lal Santholia is marked as Mark A. He was cross examined by Ld. Counsel for plaintiff. Thereafter defendant closed defendant's evidence.
20. 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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 8 of 17 of a law that in a suit for possession under Section 6 of 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.
21. 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.
22. 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 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 Sh Rajesh Sharma and as such he was in legal possession of the suit property.
23. In order to prove tenancy of Rajesh Sharma under him in respect of the suit property plaintiff has relied upon admission of said Rajesh Sharma in the pleadings of previous litigation wherein in the written statements filed by him (Rajesh Sharma) he had claimed himself to be tenant in respect of the CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 9 of 17 suit property under the plaintiff herein. Plaintiff summoned the record of suit No. 98/2002 and suit No. 370/2013 and got proved the said written statements Ex PW4/3 and Ex PW2/1 filed by Rajesh Sharma respectively in the suit filed by Shyam Bihari Santholia bearing suit No. 98/2002 and suit filed by defendant No. 1 herein bearing suit No. 370/2013(148/2015).
24. There is no dispute that Shyam Bihari Santholia had filed suit against plaintiff herein, said Rajesh Sharma and others. Plaintiff herein had filed his separate written statement Ex. PW1/3 whereas said Rajesh Sharma along with other namely Trilok Chand Jain and one Raj Sharma Aggarwal had filed common written statement Ex PW4/3 (also as Ex. PW1/4). In the said written statements no doubt said Rajesh Sharma 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 Rajesh Sharma can be said to be binding against the defendants herein.
25. 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 admission cannot be proved against a third party. If Rajesh Sharma 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 Rajesh Sharma and he could have been estopped from setting up any other stand. But reason best known to the plaintiff said Rajesh Sharma has not been impleaded in the present suit on the shoulder of whom plaintiff is willing to prove his possession.
26. 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 Rajesh Sharma as rank CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 10 of 17 trespasser in respect of the suit property, hence admission of said Rajesh Sharma cannot be proved against the defendants. Had Rajesh been party to the present litigation things would have been different. Even if admission of Rajesh Sharma is taken into consideration in view of Section 19 of the Evidence Act still such admission would only be relevant but not conclusive.
27. Plaintiff in his pleadings and evidence has stated that Rajseh Sharma was the tenant in the suit property for the last more than fifteen years but did not specifically pleaded or deposed as to whether it was he who let out the same to Rajesh Sharma 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 Rajesh Sharma was tenant under him. In alleged fifteen 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 his income tax record to show that he has been receiving rent form tenants in the said property.
28. Plaintiff has sought to prove his legal possession only from admission of Rajesh Sharma 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 Rajesh Sharma 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.
CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 11 of 17 ISSUE No. 3.:- Whether the plaintiff has been forcibly dispossessed without his consent and without following due process of law? OPP.
29. 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 Rajesh Sharma 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.
30. 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 Rajesh Sharma 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. 370/2013 for 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 Rajesh Sharma 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.
31. 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 was only after noting the ruling of the Apex Court in the case titled as "Sadashiv Shyama Sawant( dead) through CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 12 of 17 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).
32. While dealing with application under Order 7 Rule 11 CPC this court in its order 03.12.2016 had observed 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 and without following due process 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.
33. 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.
34. 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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 13 of 17 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 Rajesh Sharma 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.
35. Mr Rajesh Sharma 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 suit against the defendants.
36. In the facts of the present case as pleaded by the plaintiff in the plaint, it is not the defendants but Mr Rajesh Sharma who dispossessed the plaintiff of his possession, if at all Rajesh Sharma was under obligation to hand over the possession to the plaintiff. It was Rajesh Sharma 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 Rajesh Sharma and beneficiary. Plaintiff in his cross examination specifically admitted that he (plaintiff) was dispossessed by Rajesh Sharma and defendants. Plaintiff for reason best known to him has exonerated the conduct of Mr Rajesh Sharma and has let him go scott free. Plaintiff did not file any suit against Mr Rajesh Sharma nor impleaded him in the present suit.
CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 14 of 17
37. In fact in the plaint itself plaintiff has specifically pleaded that "by execution of surrendered agreement Mr Rajesh Sharma 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.
38. As has been noted above that it was Mr Rajesh Sharma who dispossessed the plaintiff assuming that he was the tenant of the plaintiff and therefore, Mr Rajesh Sharma 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 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.
39. 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 Mr Rajesh 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 CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 15 of 17 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.
40. 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 Rajesh Sharma, therefore, the suit filed by the plaintiff is not maintainable.
41. 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 property through his tenant Rajesh Sharma 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.
42. The case law laid down in Sadashiv (Supra) has no application to the present case as plaintiff failed to prove that Rajesh Sharma 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.
CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 16 of 17 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.
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. 4 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 Sharma)
Announce in open court ADJ-13 (Central)/THC
(Judgment contains 17 pages) Delhi/26.07.2017
CS No. 10310/16 Bal Kishan Dass Goel Vs. Tej Singh and Anr. Page No. 17 of 17