Delhi District Court
Kashmiri Lal Bhutani vs Arvind Kumar Adukia on 9 October, 2024
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
SENIOR CIVIL JUDGE, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
CS SCJ No. 93294/2016
CNR No. DLCT030000031994
In the matter of:-
Sh. Kashmiri Lal Bhutani,
S/o Sh. Bahadur Chand Bhutani,
R/o G-40, Saket, New Delhi. ...Plaintiff
VERSUS
Sh. Arvind Kumar Adukia,
S/o Sh. Gauri Shankar,
R/o 4692-94, Second Floor,
Laxmi Bazar Cloth Market,
Fatehpuri, Delhi-110006. ...Defendant
Date of Institution : 11.10.1994
Reserved for Judgment : 24.08.2024
Date of Decision : 09.10.2024
JUDGMENT
1. This is a suit for possession and recovery of damages/mesne profits filed by the plaintiff against the defendant.
2. It is the case of the plaintiff that he is the owner of property bearing No. 4692 (half), 4693 and 4694, Laxmi Bazar Cloth Market, Fatehpuri, Delhi. That the plaintiff has purchased the property from the previous owner. That the aforesaid property consists of some shops on the ground floor and residential CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 1 of 27 accommodation on the first, second and third floor. That some portion are in occupation of the plaintiff and some portion are in occupation of the different tenants except the accommodation on the second floor which is in occupation of the defendant (hereinafter referred to as 'suit property'). That the defendant was kept in the suit premises by the previous owner as a licencee to look after the suit property. That the previous owner Mrs. Saroj Gupta sold the property to the plaintiff on 09.02.1994 and before the sale of the property she asked the defendant to vacate the premises but the defendant failed to vacate the same. That after the purchase of the property, the plaintiff told the defendant that he has purchased the property and he does not want to keep the defendant any more in the suit premises and verbally terminated his licence to occupy the premises with effect from the expiry of March, 1994. That the defendant promised to vacate the premises by the end of March but did not vacate the same. That the defendant has locked the premises and he very seldom visits the suit premises. That the plaintiff does not know any other address of the defendant and the last known address of the defendant has been mentioned in the present suit. The plaintiff has prayed, inter alia, for the followings reliefs:
"b) a decree for recovery of Rs.20,000/-:
c) a decree for future damages/mesne profits for use and occupation from the date of filing of the suit till the handing over of possession of by the defendant may also please be passed and the plaintiff undertakes to pay court fee on that:
a) costs of the suit may also be awarded to the plaintiff;
e) Any other relief which this Hon'ble Court deems fit and proper may be passed in favour of the plaintiff."
3. That initially, the defendant was served through substituted service and due to the non-appearance of the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 2 of 27 defendant, the case was proceeded ex-parte against the defendant. The suit was thereafter, decreed in favour of the plaintiff vide judgment and decree dated 19.03.2001. Subsequent to the judgment and decree dated 19.03.2001, the plaintiff obtained possession of the suit property in the execution proceedings. Thereafter, the defendant filed an application under Order IX Rule 13 Code of Civil Procedure, 1908 (hereinafter referred to as CPC) on 09.08.2002 which was allowed vide order dated 22.11.2004. Consequent to the order dated 22.11.2004, the defendant filed his written statement. The defendant, after the order dated 22.11.2004, has also filed an application under section 144 CPC for restoration of possession of the suit property which was also allowed vide order dated 07.05.2013. The plaintiff has filed an appeal against the order dated 07.05.2013 but the same was dismissed vide order dated 22.03.2014 by Ld. ADJ-18, Central District. Ultimately, the defendant received possession of the suit property. It is also pertinent to mention here that the an FIR bearing No. 603/02 under Section 448/442/467/468/471/409/420/120-B/411 was also registered against the plaintiff at the instance of the defendant. However, subsequently, the plaintiff was discharged vide order date 15.05.2009 passed by Ld. Sessions Court and the said order was upheld by Hon'ble Delhi High Court vide order dated 27.09.2010 and SLP against the order dated 27.09.2010 was also dismissed by Hon'ble Supreme Court.
4. The defendant, pursuant to the order dated 22.11.2004, filed written statement stating therein that the suit of the plaintiff has not been valued properly for the purpose of the court fee and the jurisdiction since the market value of the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 3 of 27 property, at the time of filing the suit was more than Rs. 20,00,000/-. That the plaintiff is neither owner nor landlord of the suit property. That the plaintiff has no concern with the suit property as well as has no concern with the defendant in any manner. That without admitting the contents of the plaint and without prejudice to the rights of the defendant, the suit of the plaintiff is even otherwise not maintainable in the eyes of law as no notice of the termination, as required under Transfer of Property Act, has ever been served upon the defendant. That the defendant is not a licensee in the suit property, at any point of time. That the defendant is a lawful tenant in the suit property and the present civil suit for recovery of possession is not maintainable. That the suit of the plaintiff is liable to be rejected under the provisions of order 7 rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) as the suit of the plaintiff is barred under section 50 of the Delhi Rent Control Act, 1958. That the defendant is a lawful tenant in the suit property at a monthly rent of Rs.125/- per month, hence only the Court of Rent Controller has the jurisdiction to entertain a petition for eviction of the defendant.
5. It is further averred that the suit property was let out to the defendant by Smt. Savitri Devi, the actual owner of the suit property, at a monthly rent of Rs. 125/- in the year 1982 for the residential cum commercial purposes and since then the defendant was enjoying and residing in the suit property along with his family members as well as running his business under the name and style of M/s. Abhishek International from the suit property. That the owner and landlord of the suit property Smt. Savitri Devi used to receive the rent from the defendant and after CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 4 of 27 her death her daughter Ms. Usha Devi was collecting the rent from the defendant. That neither Smt. Savitri Devi nor her daughter Ms. Usha Devi was in habit of issuing the rent receipt against the rent received from the defendant. That the defendant was enjoying the suit property peacefully without any interference, but in the month of July 1994, the plaintiff had illegally started harassing the defendant on the pretext that he has purchased the suit property, but in the absence of any information from the owner and landlord of the suit property, and without any letter of attornment from her, the defendant had not admitted the plaintiff as his landlord or owner of the suit property. That the plaintiff forcibly attempted to put a lock over the lock of the defendant in the suit property in order to take forcible possession of the suit property from the defendant. That the defendant reported the matter to the police station and lodged complaint on 18.07.1994 and the plaintiff could not succeed in his malafide design and aim of dispossessing the defendant from the suit property. That when the plaintiff could not succeed dispossessing the defendant forcibly, from the suit property, the plaintiff has filed the present false, frivolous and vague suit in the month of October 1994. That the plaintiff by misrepresenting and misleading the facts had fraudulently obtained the ex-parte decree dated 19.03.2001 from this Court. That the plaintiff illegally and by misrepresenting the facts and in collusion and connivance with the court bailiff has obtained the possession of the suit property by breaking open the locks of the suit property in the absence and without the knowledge of the defendant. That the plaintiff in collusion and connivance with the court bailiff and others had illegally removed goods, cash and documents, articles, CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 5 of 27 jewelleries, etc. of the defendant worth about Rs. 35,00,000/- from the suit property. That the bailiff who was acting on the instance and in collusion of the plaintiff had shown worth of the goods removed from the suit property as Rs. 2,500/- and all of them i.e. plaintiff, court bailiff and their associates had taken away the valuable goods and articles of the defendant illegally.
6. It is further averred that as and when the defendant came to know about passing of the ex-parte judgment and decree, he filed an application under Order IX Rule 13 read with section 151 of CPC for setting aside the ex-parte judgment and lodged a report to the police and also filed a complaint before the Court of Ld. M.M. Delhi and a case vide FIR No. 603/02 under section 448/442/467/468/471/409/420/120-B/411 of Indian Penal Code, 1860 was registered against the plaintiff, court bailiff and others at the Police Station Lahori Gate. That the plaintiff and his associates are bound to return the goods and articles of the defendant which has been illegally removed by them from the suit property.
7. Vide order dated 20.01.2017, the followings issues were framed:
"1. Whether the plaintiff is entitled for the possession of the suit premises? OPP
2. Whether the plaintiff is entitled for mesne profit if yes at what rate and for what period? OPP
3. Whether there is no cause of action in favour of plaintiff and against the defendant? OPP 4 Whether the suit is barred u/s 50 of DRC Act? OPD
5. Whether the suit is not property verified? OPP.
6. Whether the plaintiff has not locus standi? OPP
7. Whether the suit is not property valued for the purpose of CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 6 of 27 court fee and jurisdiction? OPP
8. Relief"
8. In order to prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents:
(i) Copy of registered sale deed Ex. PW1/1(OSR),
(ii) Site plan Ex. PW1/2, PW1 was cross-examined by Ld. Counsel for the defendant. During the course of cross-examination, probate petition filed by Smt. Saroj Gupta for grant of letters of administration of the Will was exhibited as Ex. PW1/D1.
9. The plaintiff examined Sh. S. Gurbachan Singh as PW2. He deposed that he was in occupation and running his business since 1972 in the name and style of Mahesh Textiles at 4433, Vishnu Bazar, Cloth Market, Fathpuri, Delhi, which is in the same locality where the suit property is situated. That he knew late Smt. Savitri Devi, mother of Smt. Saroj Gupta, from the time he started his business in the aforesaid locality. That Smt. Savitri Devi was the owner of the suit premises and used to come to collect rent from various tenants. That late Smt. Savitri Devi, during her life time, repeatedly and specifically, told him that the defendant was her distant relative and she had permitted him to use the suit property, merely as a licensee and permissive user, to look after and take care of her property. That she also specifically told him that the defendant never paid her any consideration for his user of the suit property. That he was aware that the plaintiff, who was a tenant in the suit property, since 1986, purchased the said property from Smt. Saroj Gupta, in the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 7 of 27 year 1994. That he has been regularly visiting the premises of the plaintiff and he observed that the portion of the suit property which the defendant was using, remained locked most of the time. PW2 was cross-examined by Ld. Counsel for the plaintiff.
Thereafter, the plaintiff's evidence was closed in affirmative on 28.09.2016.
10. The defendant, in his evidence, examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/A. He deposed on the lines of the defence taken by him in the written statement. He relied upon the following documents:
(i) Copy of ration card Mark A.
(ii) Copy of election ID Card Ex. DW-1/2 (OSR).
(iii) Copy of telegram dated 06.11.1982 Ex. DW-1/3
(colly) (OSR).
(iv) Copy of the complaint dated 18.07.1994 Ex. DW-
1/9 (OSR).
(v) The copy of list of articles submitted with the police
Ex. DW-1/10 (colly).
(vi) The bail rejection order of plaintiff dated 17.01.2003
passed by Sh. Alok Aggarwal, Ld. MM Ex.
DW1/11.
(v) The bail order of co-accused Sh. Charanjeet dated
17.01.2003 Ex. DW-1/12.
(vi) The bail rejection order dated 09.06.2003 in respect
of co-accused bailiff Madan Lal in FIR no. 603/02 Ex. DW-1/13.
(vii) Copy of criminal complaint Mark B. CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 8 of 27 DW1 was duly cross-examined by Ld. Counsel for the plaintiff.
11. The defendant examined Sh. Ashok Jain as DW2 who deposed that Sh. Arvind Kumar Adukia was his neighbour as he was residing in property No. 4692, Laxmi Bazar, second floor, Cloth Market, Fatehpuri, Delhi. That he was residing in his immediate neighbourhood in property No. 4691, Laxmi Bazaar, Cloth Market, Fatehpuri, Delhi, where he lived from his childhood till 1997. That since 1982, Sh. Arvind Kumar Adukia was a tenant and in possession as a tenant of part of property at second floor bearing No. 4692, Laxmi Bazar, Fatehpuri, Delhi at a monthly rent of Rs.125/- exclusive of electricity and water charges. That he knew this fact as his landlady Smt. Savitri Devi used to come to collect the rent from Sh. Arvind Kumar Adukia and many times used to meet him and used to disclose that she had come to collect rent @ Rs.125/-per month from Sh. Arvind Kumar Adukia. That being a neighbour, he was also aware that the tenancy was oral and no rent receipt was being issued by Smt. Savitri Devi to Sh. Arvind Kumar Adukia, during her lifetime. That Smt. Savitri Devi did not come every month and she used to come twice or thrice in a year to collect rent from Sh. Arvind Kumar Adukia of the tenanted premises. That one Gajanand Sharma has been working with Sh. Arvind Kumar Adukia from 1982 to 1988, who was residing in the said tenanted premises alongwith Sh. Arvind Kumar Adukia. DW2 was duly cross examined by Ld. counsel for the plaintiff.
12. The defendant examined Sh. Gajanand Sharma as DW3 who deposed that he was employed with the defendant namely Sh. Arvind Kumar Adukia from 1982 to 1988 and during CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 9 of 27 that period he was residing with him at 4692, Laxmi Bazar, second floor, Cloth Market, Fatehpuri, Delhi. That Sh. Arvind Kumar Adukia was a tenant in possession of part of property at second Floor bearing no. 4692, Laxmi Bazar, Fatehpuri Delhi, at a monthly rent of Rs.125/- exclusive of electricity and water charges. That Smt. Savitri Devi, who was the owner of the said property, was his landlady, till such time. That he knew this fact since Smt. Savitri Devi collected the rent from him many times on behalf of Sh. Arvind Kumar Adukia, whenever she came in his absence. That several times, the rent was given by Sh. Arvind Kumar Adukia in his presence to Smt. Savitri Devi. That being the former employee of Sh. Arvind Kumar Adukia and having worked with him for several years, he knew that the tenancy was oral and no receipt of the rent received was ever issued by Smt. Savitri Devi in respect of the tenancy to Sh. Arvind Kumar Adukia. That Smt. Savitri Devi used to come two or three times in a year, to collect the rent from Sh. Arvind Kumar Adukia and she collected the due rent several times in his presence at the rate of Rs. 125/- per month. That around September 1988, he had left the job of Sh. Arvind Kumar Adukia due to his personal difficulty and shifted to his native Village Simla in Rajasthan. That proof of his residence at property No. 4692, Laxmi Bazar Cloth Market, Fatehpuri, Delhi, was a registered letter dated 23.01.1985, addressed to him at the above address, copy of which was exhibited as Ex DW 2/A (OSR). DW3 was duly cross-examined by Ld. Counsel for the plaintiff.
Vide order dated 02.07.2022, the defendant's evidence was closed and the case was fixed for final arguments.
13. I heard the arguments advanced and perused the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 10 of 27 record. Parties have also filed written synopsis of their arguments. It is submitted by Ld. Counsel for the plaintiff that the sale deed Ex. PW1/1 has not been disputed by the defendant and has also deposited rent of the suit property by filing an application under section 27 of DRC Act. It is further submitted that defendant has not filed any rent receipt or rent agreement which can establish or prove that he was ever inducted as tenant in the suit premises. That as per the defendant, he had been paying rent to Ms. Saroj or Ms. Savitri but he has also not filed any proof of payment of rent to Ms. Saroj or Ms. Savitri as alleged by the defendant. That the defendant even has not shown the alleged rent in his income tax returns. That the defendant has not examined witnesses such as Smt. Saroj or Smt. Savitri to prove that he was inducted as tenant and not an unauthorized person. That on the other hand, in the sale deed Ex. PW1/1 in which only the defendant is mentioned as 'unauthorized' and rest were described as tenant and even rate of rent was also mentioned therein. That the rent receipts of other tenants of the property also show that rest of the occupants were tenants and defendant was not a tenant. That the defendant admitted that he had never paid any rent to the plaintiff despite the knowledge that the plaintiff had purchased the suit property through registered sale deed in 1994. That the plaintiff had filed rent receipts issued to various tenants inducted in the suit property which are exhibited as DWX1/1 to DWX1/8 and since, the defendant was never a tenant in the suit premises so no rent receipt or agreement was ever executed in his favour.
14. It is further submitted that the defendant, on one hand alleged the sale deed Ex. PW1/1 to be forged and fabricated CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 11 of 27 and on the other hand, he himself deposited rent in favour of the plaintiff. That the plaintiff has terminated the license of the defendant and even it is settled law that notice of the suit can be treated as notice of termination. It is submitted that the submission on behalf of the defendant that Mark X on the evidence affidavit of the plaintiff Ex.PW1/A is beyond the pleading, cannot be accepted as the evidence of the plaintiff can not be verbatim of the plaint. It is further submitted that the plaintiff specifically pleaded that the use and occupation charges of the suit property in the year 1994 was Rs. 4,000/- but the defendant has not rebutted the same. That the defendant has neither made any deposition nor has he examined any witness in this regard. Ld. counsel for the plaintiff has relied upon the following judgments :-
(i) Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) & Anr., 2011 Legal Eagle (Del) 433,
(ii) Hindustan Petroleum Corporation Ltd. Vs. Mohanjit Singh (Deceased) through LRs, RFA No. 20/16 dated 31.07.2019
15. On the other hand, it is submitted by Ld. Counsel for the defendant that the plaintiff/PW1 admitted during his cross- examination that he himself was a tenant in respect of a shop in the property at a monthly rent of Rs. 70-80 since 1986 and that during her lifetime, Smt. Savitri Devi used to come, half yearly or yearly basis to collect rent from him and other tenant. He further admitted that there was no rent agreement or lease deed executed between him on one hand and Smt. Savitri Devi or Smt. CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 12 of 27 Saroj Gupta on the other hand, when his tenancy was created. That thus, it is proved that there was a common practice of creating oral tenancies where no rent agreement was executed and rent receipts was being issued. It is submitted that the said cross-examination of the plaintiff supports the case of the defendant that the defendant was under oral tenancy created by Smt. Savitri Devi in the year 1982 and that she used to come every six months or one year to collect rent in cash but there was neither any rent agreement or lease deed nor Smt. Savitri Devi or Smt. Usha Devi used to issue rent receipts.
16. It is further submitted that the plaintiff has falsely pleaded that the defendant was kept in the suit premises by the previous owner Smt. Saroj Gupta as a licensee, whereas there is documentary evidence filed by the defendant that he was in occupation of the suit premises since year 1982 and own admission of the plaintiff in his cross where he himself admitted that when he came in the building in the year 1986, the defendant was residing on the second floor. That it is evident from the contents of sale deed Ex. PW1/1 that Smt. Saroj Gupta became owner on the basis of probate dated 11.11.1992, therefore the plaintiff made a deliberate false statement that the defendant was put in the property as a licensee or permissive user by her. That the claim of the plaintiff that defendant was a licensee appears to be hearsay as he deposed in cross that at the time of execution of the sale deed Ex. PW1/1, Smt. Saroj Gupta had told me that the defendant was not a tenant but gave no other evidence. It is further submitted that from the cross examination of the plaintiff with respect to the sale deed dated Ex. PW1/1, it stands amply proved that the defendant was a lawful tenant as he deposed that CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 13 of 27 Smt. Saroj Gupta had wrongly mentioned the defendant as tenant in the sale deed instead of unauthorized occupant. It is further submitted that in the sale deed Ex. PW1/1, the defendant is mentioned as unauthorized tenant which means tenant only and not licensee or permissive user. That in para 2 of sale deed Ex. PW1/1, the description of all the tenants have been mentioned. That the plaintiff has not called Smt. Saroj Gupta to depose as a witness. It is submitted that hence, in view of section 91 and 92 of Indian Evidence Act, 1872, it is proved that defendant was a tenant in the suit property. It is also submitted that PW2 also admitted during the cross-examination that the defendant was a tenant in the suit property. It is further submitted that the defendant examined DW-2 Sh. Ashok Jain and DW-3 whose testimony remained unrebutted as their cross examination was restricted only on the question of preparation of their affidavits and confined to suggestions. Hence, the defendant has been successful in proving that he was tenant in the suit property and consequently, the present suit was barred under section 50 of DRC Act. Ld. counsel for the defendant has relied upon the following judgments:-
(i) Krishna Vanti Vs. Modi Overseas & Ors., MANU/ DE/1930/2002,
(ii) Chander Mohan Chadha & Ors. Vs. Singer India Ltd. & Ors., MANU/DE/3610/2017,
(iii) Bundu Khan & Ors. Vs. Sneh Mehta, MANU/DE/2942/2022,
(iv) Suraj Munjal Vs. Chandan Munjal & Ors., MANU/DE/2083/2022, CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 14 of 27
(v) Roop Kumar Vs. Mohan Thedani, MANU/SC/0276/2003,
(vi) Placido Francisco Pinto (D) by LRs & Ors. Vs. Jose Francisco Pinto & Ors., MANU/SC/0748/2021.
Issue No.1 Whether the plaintiff is entitled for the possession of the suit premises? OPP & Issue No.4 Whether the suit is barred u/s 50 of DRC Act? OPD
17. These issues are taken together as they demand a common finding. It is the case of the plaintiff that he has purchased the property bearing No. 4692 (half), 4693 and 4694, Laxmi Bazar Cloth Market, Fatehpuri, Delhi from the erstwhile owner Smt. Saroj Gupta vide sale deed Ex. PW1/1 on 09.02.1994. It is the case of the plaintiff that defendant is the unauthorized occupant in respect of the suit property as he was merely a licensee and despite terminating his licensee orally, he did not vacate the suit property. On the other hand, it is the case of the defendant that he was inducted as a tenant in respect of the suit property by the previous owner Smt. Savitri Devi (predecessor-in-interest of Smt. Saroj Gupta) in the year 1982 for commercial-cum-residential purposes at the monthly rent of Rs.125/-. That neither the previous owner Smt. Savitri Devi nor Smt. Saroj Gupta used to issue rent receipts in respect of the rent received from the defendant. It is alleged by the defendant that plaintiff is neither the owner nor the landlord of the suit property. However, during the course of his cross-examination, the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 15 of 27 defendant himself deposed that in the month of June 2002, he came to know that the suit property has been purchased by the plaintiff. It is also pertinent to mention that Ld. counsel for the defendant himself put the Will and the probate granted in favour of Smt. Saroj Gupta to the plaintiff during his cross examination. Therefore, the defence of the defendant that the plaintiff is not the owner of the suit property does not stand. However, it was submitted by Ld. counsel for the defendant that the plaintiff himself has admitted that when he entered the property as a tenant in the year 1985, he was aware about the occupation of the defendant and since at that time the owner of the property was Smt. Savitri Devi, the plea of the plaintiff that the defendant was inducted as a licensee in the suit property stands falsified. It is true that the plaintiff has averred in para No. 3 of the plaint that the defendant was kept as a licensee in the suit property by the previous owner and the previous owner has been stated to be Smt. Saroj Gupta and from the testimony of PW1, it is revealed that Smt. Saroj Gupta became the owner of the property in question on in the year 1992 by virtue of Will dated 14.08.1986. But this fact by itself does not lead to the conclusion that the defendant was a tenant in the suit property and not a licensee. The burden of proving that the defendant was a statutory tenant under DRC Act was on the defendant and he was required to establish from the documentary proof that he was a tenant protected under DRC Act and not merely a permissive user.
18. It is pertinent to mention that the defendant has not been able to bring on record any documentary evidence to establish his plea that he was a tenant in the suit property at a monthly rent of Rs. 125/-. In a civil suit such as the present case, CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 16 of 27 the parties to the suit are expected to prove their respective case by leading documentary evidences. However, the defendant has failed to bring on record any document such as rent agreement or rent receipts to establish that he was a tenant in the suit property. It is the plea of the defendant that the tenancy was oral and the previous owner(s) did not use to issue rent receipts. It is pertinent to mention that during the cross examination of the defendant, the plaintiff confronted the defendant with rent receipts Ex. DW1/X1 to Ex. DW1/X8 which were issued to the plaintiff (as the plaintiff was also a tenant in the property earlier) as well as to the other tenants. It is also pertinent to mention that no electricity or water connection was installed in the suit property in the name of the defendant. It was admitted by the defendant during his cross examination that he has not paid the house tax of the suit property at any point of time. Therefore, the plea of the defendant that he was a statutory tenant in respect of the suit property appears to be moonshine. The defendant has miserably failed to prove that he was a statutory tenant under DRC Act in respect of the suit property.
19. It is the plea of the defendant that he was doing business under the name M/s Abhishek International from the suit property. However, the defendant has failed to prove by leading any evidence that he was doing business from the suit property. During his cross examination, defendant deposed that the income tax returns were stolen by the plaintiff when he took possession of the suit property. However, the defendant could have summoned the record from the income tax office but he did not do so. Further, if the defendant was doing business from the suit property, he must have been registered with the sale tax CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 17 of 27 authorities but the defendant also did not bring on record any document pertaining to sales tax nor he chose to summon the record from the concerned sales tax department. It is also pertinent to mention that the defendant deposed during his cross examination that he was not showing the rent of the suit property in the income tax returns. If the defendant was doing business from the suit property, there was no occasion for the defendant to not claim tax rebate on the rent being paid by him in respect of the suit property.
20. It is also pertinent to mention that in the sale deed Ex. PW1/1, the defendant has been described as an unauthorized tenant. It is the contention of the defendant that the phrase 'unauthorized tenant' is suggestive of the fact that the defendant was a statutory tenant whose tenancy was determined but protected by the statute i.e. DRC Act. The interpretation given by Ld. counsel for the defendant cannot be accepted since the phrase 'unauthorized tenant' does not appear to be used in the sense of the meaning given to the term statutory tenant within the scheme of the DRC Act. The phrase 'unauthorized tenant' has been used by private parties in a sale deed and therefore, the said phrase could also be interpreted to mean 'unauthorized occupant' because all the other tenants who are mentioned in clause 2 of the sale deed are statutory tenants themselves, therefore, if the intention of the parties were to convey the nature of the tenancy as protected by the DRC Act then all the other tenants would also have been described as 'unauthorized tenants'. Further, it is only the defendant in respect of which no rate of rent has been mentioned, whereas in respect of all the other, the rate of rent has been mentioned. It is the contention of Ld. counsel for the CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 18 of 27 defendant that once the defendant has been described as 'unauthorized tenant' in the sale deed Ex. PW1/1, the plaintiff was barred from contradicting the same in view of Section 91 and 92 of Indian Evidence Act, 1872. Ld. counsel for the defendant has relied upon Suraj Munjal (supra), Roop Kumar (supra) and Placido Francisco Pinto (supra) in this regard. The contention of Ld. counsel for the defendant is misconceived as Section 91 and 92 of Indian Evidence Act apply only to 'terms of contract, grant or any other disposition of property' and not to any other information which might have been mentioned in the document. In the present case, the provisions of Section 91 and 92 would be applicable only to the terms of the transaction of sale and not to the information about the occupants as mentioned in clause 2 of the sale deed. The authorities relied upon by Ld. counsel for the defendant is not applicable as the provisions of Section 91 and 92 of the Evidence Act do not apply to the facts of the present case.
21. It is the plea of the defendant that the plaintiff has obtained the possession of the suit property surreptitiously when he was out of India from October - November 2001 till June 2002 due to the medical condition of his mother. It is pertinent to mention that the defendant deposed in his cross examination that his mother was residing at Kathmandu along-with his brother and that he used to visit Kathmandu for business purpose and that he was also having a rented accommodation at Kathmandu. However, nothing has been brought on record by the defendant to substantiate his claim about his alleged visit except self-serving statements. It is deposed by him that he used to operate business from India. He further deposed that from 2001 to 2003, he along-
CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 19 of 27 with his family i.e. his wife and children were shifted to Malviya Nagar and from there to Hong Kong. It is deposed by him that during the period between 2001-2003, his son completed his study and his daughter was studying in Kamla Nehru College. However, it is also deposed by the defendant during his cross examination that prior to 2001, his children were residing at Kathmandu but his wife was residing in India. It is also deposed by the defendant during his cross examination at the subsequent stage that his family is settled in Hong Kong and he occasionally visits India. Further, the plaintiff has filed copies of (i) lease deed dated 21.09.2002 in respect of 77-V, Malviya Nagar, Delhi, (ii) lease deed dated 01.08.2004 in respect of R-20, South Extn., (iii) lease deed dated 09.06.2008 in respect of 5/55, WEA, Karol Bagh, Delhi, (iv) lease deed of June 2008 in respect of 59/18, Rohtak Road, Delhi (v) lease deed dated 03.06.2014 in respect of New Rohtak Road, Delhi executed in favour of the defendant. These lease deeds are not disputed by the defendants. It is pertinent to mention that even though the defendant has deposed in his cross-examination that he had taken Malviya Nagar property on lease in September 2003, but as per the lease deed the said property was taken on lease w.e.f. 01.10.2002 till 30.08.2002. It is pertinent to mention that all these properties were taken on lease for residential purposes. Moreover, in none of these lease deeds, the defendant has shown the suit property as his residence. Thus, the deposition of the defendant is contradictory and it raises a doubt on the assertion of the defendant that he was residing in the suit property and was actively using the same. The testimony of the defendant does not inspire confidence at all.
CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 20 of 27
22. It is to be noted here that the plaintiff as well as the defendant has examined witnesses to prove their respective claim about the possession of the defendant in respect of the suit property but their testimonies appear to be self serving and the witnesses PW2, DW2 and DW3 are not found to be trustworthy. Therefore, reliance should not be placed upon their testimony in deciding the issues involved in the present suit.
23. In view of the above, the plaintiff has been able to prove on the basis of preponderance of probabilities that the defendant was a permissive user of the suit property. The defendant has not been able to discharge his burden for proving that he was a statutory tenant under DRC Act. In the present case no written notice of the termination of license was given by the plaintiff, however, it is case of the plaintiff that he had verbally terminated the license of the defendant w.e.f. from 31.03.1994. It is pertinent to mention that the defendant himself has stated in his written statement that the plaintiff started harassing the defendant in July, 1994 on the ground that he has purchased the property. Thus, the claim of the plaintiff that he has verbally terminated the license finds corroboration from the averments of the written statement itself but it is unclear as to when the same was done. The evidence adduced by the parties is not sufficient to hold that the license was terminated in March, 1994. However, even if it is assumed that no notice of termination was not served, the license can be treated to be terminated on filing of the suit. In Nopany Investment (P) Ltd. Vs. Santokh Singh, 146 2008 DLT 195, it was held by Hon'ble Supreme Court that even if no notice of termination of tenancy is served, the tenancy would stand terminated on filing of a suit for eviction. There is no reason why CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 21 of 27 the said ration would not be applicable to the present case.
24. The defendant has also disputed the site plan filed by the plaintiff. However, the defendant himself has not filed any site plan. It is a settled law that if the defendant disputes the correctness of the site plan filed by the plaintiff, he must file a counter site plan and he cannot get away by merely stating that the site plan filed by the plaintiff was incorrect. Reliance in this regard is placed on V. S. Sachdeva Vs. M. L. Grover, 67 1997 DLT 737, Krishan Gupta Vs. Swadesh Bhushan Gupta, 2008 152 DLT 556 and Rishal Singh Vs. Bohat Ram & Ors., 2014 144 DRJ 633. Accordingly, the contention of the defendant is rejected.
Accordingly, the issue No.1 and issue No.4 are decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether the plaintiff is entitled for mesne profit if yes at what rate and for what period? OPP
25. The plaintiff has prayed for a decree of Rs. 20,000/- against the defendant on account of arrears of use and occupation charges and future mesne profits from the date of the suit till handing over of the possession by the defendant. There is no sufficient evidence on record to hold that the plaintiff terminated the license w.e.f 31.03.1994 itself so that the defendant was liable to pay the arrears of use and occupation charges from April 1994 till the date of the suit. The plaintiff did not lead sufficient evidence in this regard. However, the mesne profits can be awarded from the date of the suit till actual handing over of the possession. The plaintiff has sought mesne profits at the rate Rs.
CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 22 of 27 4,000/- per month. It is the contention of the defendant that the plaintiff did not lead any evidence hence, the mesne profits should not be granted. Ld. Counsel for the plaintiff has relied upon Hindustan Petroleum (supra) to contend that when the evidence is sufficient on record for granting mesne profits no inquiry under Order XXXX Rule 12 is necessary. It is relevant to take note of the observations made by Hon'ble Delhi High Court in Hindustan Petroleum (supra), which read as under:
"42. Accordingly, in the facts of the present case, once the Court has exercised its discretion to award mesne profits by relying upon the virtually uncontroverted testimony of the landlord/respondent along with the prevalent rents of similarly situated properties in the area, which had been taken judicial notice of, it cannot be said that the mesne profits awarded is, in any manner, whimsical or not based on the evidence brought on record. Since it is apparent that the mesne profits awarded by the trial Court is based on the evidence led before it, the appellant's contention that the trial Court could not have awarded mesne profits without conducting an inquiry under Order XX Rule 12of the CPC has also been rendered without any merit and is rejected. Even the decisions in Bachhaj Nahar (supra), Ganpathy (supra) and National Radio (supra), relied upon by the appellant, reiterate the settled legal position that the Courts ought to order an inquiry as per the provisions of Order XX Rule 12 of the CPC only in cases where absolutely no evidence has been led by the parties on the issue of quantum of mesne profits to be awarded. In the present case, given that the evidence led by the respondent/landlord on the quantum of mesne profits to be awarded remained uncontroverted, I find no merit in the appellant's submission that the award of mesne profits without an inquiry was not justified. I am of the view that, in the light of the evidence on record, there is absolutely no reason to interfere with the monthly mesne profits awarded by the trial Court.
43. I may now refer to the next contention of the appellant that considering the admitted position that the respondent had, in his plaint, not claimed mesne profits at a rate higher than Rs.2,00,000/-, the trial Court could not have granted any enhancement or interest thereon; or that the award of any enhancement on the amount of mesne profits as prayed for in the plaint, amounts to granting a relief to the respondent beyond his pleadings. In my opinion, this contention of the appellant overlooks the fact that the grant of relief for future mesne profits at a rate higher than what was claimed in the plaint was, in fact, a natural consequence of the delay in adjudication of the respondent's claim for mesne profits. Merely because the respondent, in his plaint filed in April, 2000, claimed mesne profits at the rate of Rs.2,00,000/- p.m. the same would not CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 23 of 27 preclude him from subsequently claiming a higher amount towards mesne profits for the period which has elapsed during the pendency of the suit, especially in cases like the instant one where the suit remained pending for over a period of 15 years.
Unscrupulous parties delaying the disposal of cases is a common sight in our litigation system and even when the landlord/owner of the suit property succeeds in obtaining a decree for possession in his favour, the execution of such decree may still take a long time. It is for this reason that it is necessary for the Courts to remain mindful of such extenuating circumstances and award reasonable mesne profits, as per the prevailing market rent; the grant of enhanced mesne profits, in such circumstances, to accommodate loss of rent endured during the pendency of the suit proceedings cannot be deemed as granting relief beyond the pleadings of the parties. As noted earlier, mesne profits under section 2(12) of the CPC is a compensation which the owner is entitled to receive from the person who has been in wrongful possession of the property and the determination thereof would be based on the evidence led before the Court. A substantive right of this nature cannot be diluted on the pretext of a technicality and a landlord/owner of the suit property cannot be estopped from claiming a larger sum as mesne profits than what was claimed in the plaint. I find that the reliance placed on Trojan (supra), Om Prakash (supra), and Bachhaj Nahar (supra) by the appellants is wholly misplaced as these decisions only concern cases where the Court had granted reliefs which were not only beyond the pleadings but were neither consequential nor ancillary to the relief sought in the plaint and were, therefore, held to be impermissible.
xxxxx
45. In the present case, I find that the trial Court has granted an annual enhancement of only 10% in the mesne profits which, in my considered opinion, cannot be deemed to be arbitrary or exorbitant in any manner, especially in the light of the decisions of this Court in M.C. Agrawal HUF (supra) and Om Prakash Chopra (supra), wherein this Court had approved an annual enhancement of 15% in mesne profits. That being so, I find no infirmity in the trial Court's decision to grant an annual enhancement of 10% in the mesne profits awarded to the respondent."
In view of the above law, the mesne profits can be awarded on the basis of material available on record. In the present case, the suit property is situated at a prime commercial location at Laxmi Bazar Cloth Market, Fatehpuri, Delhi. The suit property is situated on first floor and the same can be used for commercial purposes. The mesne profits claimed by the plaintiff at the rate of Rs. 4,000/- per month does not appear to be CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 24 of 27 unreasonable or exorbitant. Accordingly, the mesne profits are awarded to the plaintiff at the rate of Rs. 4,000/- per month with yearly increment at the rate 15% per annum as per the ratio of M. C. Agrawal HUF Vs. Sahara India & Ors., 183 2011 DLT 105, with interest thereon at the rate 6% per annum.
Issue No.3 Whether there is no cause of action in favour of plaintiff and against the defendant? OPP & Issue No.5 Whether the suit is not property verified? OPP & Issue No.6 Whether the plaintiff has not locus standi? OPP & Issue No.7 Whether the suit is not property valued for the purpose of court fee and jurisdiction? OPP
26. All the above issues are taken together. The plaintiff has relied upon the sale deed Ex. PW1/1 to assert his ownership over the suit property. The defendant has also admitted the ownership of the plaintiff during the trial of the suit, hence, not only that the plaintiff has the locus standi to file the present suit but there was sufficient cause of action for him to file the present suit. As far as the verification of the suit is concerned, the suit cannot be dismissed for non-compliance with the provisions of Order VI CPC. Further, these grounds have not been pressed by the defendant during the trial as well as at the time of addressing final arguments. However, the suit has not been properly valued by the plaintiff since the plaintiff has valued the suit on the amount of Rs. 20,000/- for the purpose of court fees and jurisdiction. As per Section 7 (v) of Court Fees Act, 1870, the suit CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 25 of 27 for possession of the immovable property has to be valued for the purpose of court fees on the market value of the property in terms of clause (c) of Section 7 (v) of Court Fees Act, 1870. As per Section 8 of Suits Valuation Act, 1887, in case of suits falling under Section 7 (v) of the Court Fees Act, the valuation of the suit for the purpose of jurisdiction shall have to be same as the valuation for the purposes of court fees. As per the sale deed Ex. PW1/1, the value of the entire property was Rs. 1,95,000/- in the year 1994 when the suit was filed. The defendant has alleged the value of the suit property to be more than Rs. 20,00,000/- but no evidence has brought on record by the defendant to prove the same. Therefore, the valuation of the suit property can be taken with reference to the sale consideration of the sale deed Ex. PW1/1. The property was constructed upto third floor and the value of the property should not have been less than Rs. 70,000/- at that time. Therefore, the valuation given by the plaintiff was not correct. However, the suit of the plaintiff cannot be dismissed for under valuation of the suit since the plaintiff can always be asked to deposit the deficient court fees before preparation of the decree.
In view of the above, the above issues are decided in favour of the plaintiff and against the defendant.
Relief
27. In view of my aforesaid findings, the suit of the plaintiff is decreed in the following terms:-
(i) a decree of possession of second floor, property No. 4692 (half), 4693 and 4694, Laxmi Bazar Cloth Market, Fatehpuri, CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 26 of 27 Delhi as shown in the red colour in the site plan Ex. PW1/2,
(ii) the plaintiff shall remit deficient ad-valorem court fees on the proportionate value of the suit property with reference to the sale consideration of the sale deed Ex. PW1/1,
(iii) a decree of mesne profits in respect of the suit property at the rate Rs. 4,000/- per month w.e.f. 11.10.1994 till handing over of the possession by the defendant with yearly increment at the rate 15% alongwith interest thereon at the rate 6% per annum till realization,
(iv) realistic costs of Rs. 5 lacs in terms of the judgment of Salem Advocate Bar Association, Tamil Nadu Vs Union of India, 2005 6 SCC 344.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
PRANAV
Announced in open Court PRANAV JOSHI
On this 09th Day of October, 2024 JOSHI Date:
2024.10.09
17:10:27
+0530
(PRANAV JOSHI)
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI
CS SCJ No. 93294/2016 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia Page No. 27 of 27