Delhi District Court
Roshni Devi And Ors vs Vimla Gupta And Ors on 3 June, 2024
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL JUDGE-
01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 34/18
CNR No :- DLST03-000006-2018
1. SMT. ROSHNI DEVI
Wd/o Late Sh. Mool Chand
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 1
2. SH. LALIT KUMAR
S/o Late Sh. Mool Chand
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 2
3. SH. BRIJESH CHAUDHARY
S/o Late Sh. Mool Chand
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 3
4. SH. KAPIL KUMAR
S/o Late Sh. Mool Chand
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 4
5. SH. AMIT KUMAR
S/o Late Sh. Mool Chand
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 5
6. SMT. SHEELA DEVI
Wd/o Late Sh. Lal Singh Dhankard,
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 6
Digitally signed
by KANIKA
AGARWAL
KANIKA
AGARWAL Date:
2024.06.03
Page no. 1 of 73 16:42:05
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
7. SH. RAHUL DHANKARD
S/o Late Sh. Lal Singh Dhankard,
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 7
8. SH. ROHIT DHANKARD
S/o Late Sh. Lal Singh Dhankard,
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 8
9. SMT. OM VATI
Wd/o Late Sh. Ram Mehar
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 9
10. SH. BHUPENDER KUMAR
S/o Late Sh. Ram Mehar
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 10
11. SH. NARENDERA KUMAR
S/o Late Sh. Ram Mehar
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 11
12. SH. SURENDRA KUMAR
S/o Late Sh. Ram Mehar
R/o 38, Village Yusuf Sarai Jat,
Delhi-110016 ......PLAINTIFF NO. 12
VERSUS
1. SMT. VIMLA GUPTA
W/o Late Sh. Hari Om Prakash Gupta
R/o B-266, Chhatarpur Enclave
New Delhi-110074 ......DEFENDANT NO. 1
Digitally signed
by KANIKA
KANIKA AGARWAL
Page no. 2 of 73
AGARWAL Date:
2024.06.03
16:42:15 +0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
2. SH. MUKESH GUPTA
S/o Late Sh. Hari Om Prakash Gupta
R/o 5/2, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 2
3. SH. RAJEEV GUPTA
S/o Late Sh. Hari Om Prakash Gupta
R/o 5/1, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 3
4. SH. SANJEEV GUPTA
S/o Late Sh. Hari Om Prakash Gupta
R/o C-137, Chhatarpur Enclave
New Delhi-110074 ......DEFENDANT NO. 4
5. SMT. SUMAN GUPTA
W/o Late Dinesh Gupta
R/o B-266, Chhatarpur Enclave
New Delhi-110074 ......DEFENDANT NO. 5
6. SH. ANKIT GUPTA
S/o Late Sh. Dinesh GUpta
R/o 5/14, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 6
7. SMT. NIDHI GUPTA
W/o Sh. Anuj Gupta
D/o Late Sh. Dinesh Gupta,
R/o A-352, First Floor,
Chhatarpur Enclave,
New Delhi-110074 ......DEFENDANT NO. 7
8. SH. RAMA KANT GUPTA
(ex-parte vide order dated 31.05.2018)
S/o Late Sh. Ram Nath,
R/o 74/3-4, Sri Aurbindo Marg, Digitally signed
by KANIKA
KANIKA AGARWAL
AGARWAL Date:
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(Kanika Agarwal)
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CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
Yusuf Sarai Market
New Delhi-110016 ......DEFENDANT NO. 8
9. SH. VIKAS GUPTA
S/o Late Sh. Sri Kant Gupta,
R/o 5/5, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 9
10. SMT. REENA GUPTA
D/o Late Sh. Sri Kant Gupta
W/o Sh. Sanjay Gupta
R/o 5/12, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 10
11. SMT. MALTI GUPTA
(ex-parte vide order dated 31.05.2018)
Wd/o Late Sh. Om Hari,
R/o F-3, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 11
12. SMT. SUMAN GUPTA
(ex-parte vide order dated 31.05.2018)
W/o Late Sh. Sudhir Gupta
R/o F-3, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 12
13. SH. SHIVAM GUPTA
(ex-parte vide order dated 31.05.2018)
S/o Late Sh. Sudhir Gupta
R/o F-3, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 13
Digitally signed
by KANIKA
AGARWAL
KANIKA Date:
AGARWAL 2024.06.03
Page no. 4 of 73
16:42:29
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
14. SH. KRISHNA GUPTA
(ex-parte vide order dated 31.05.2018)
S/o Late Sh. Sudhir Gupta
R/o F-3, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 14
15. MS. CHANDNI GUPTA
(ex-parte vide order dated 31.05.2018)
D/o Late Sh. Sudhir Gupta
R/o F-3, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 15
16. SMT. SAPNA GUPTA
(ex-parte vide order dated 31.05.2018)
W/o Late Sh. Varun Gupta
R/o F-27, Gulmohar Park Road,
Gautam Nagar,
New Delhi-110049 ......DEFENDANT NO. 16
17. SMT. VINOD GUPTA
W/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 17
18. SH. AMIT GUPTA
S/o Late Sh. Hari Ram
R/o 13/9 and 13/4, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 18
19. SH. SUMIT GUPTA
S/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 19
Digitally signed
by KANIKA
AGARWAL
KANIKA
AGARWAL Date:
2024.06.03
Page no. 5 of 73 16:42:38
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
20. MS. SANDHYA GUPTA
D/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 20
21. MS. SANGEETA GUPTA
(ex-parte vide order dated 20.09.2019)
D/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 21
22. MS. ALKA GUPTA
(ex-parte vide order dated 20.09.2019)
D/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 22
23. MS. ANURADHA GUPTA
(ex-parte vide order dated 20.09.2019)
D/o Late Sh. Hari Ram
R/o 13/9, Yusuf Sarai,
New Delhi-110016 ......DEFENDANT NO. 23
Date of Institution : 04.01.2018
Date of Decision : 03.06.2024
Date of framing of issues : 26.10.2018
Date of final arguments : 05.04.2024
Decision : PARTLY DECREED
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT,
MESNE PROFITS, DAMAGES AND PERMANENT
INJUNCTION
JUDGMENT
Digitally signed
by KANIKA
AGARWAL
KANIKA Date:
AGARWAL 2024.06.03 16:42:52 Page no. 6 of 73 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
1. This is the suit filed by the plaintiffs for recovery of possession, arrears of rent, mesne profits, damages and permanent injunction against the defendants.
AVERMENTS OF THE PLAINT
2. Succinctly, it is the case of the plaintiffs that Sh. Khubi Ram and Sh. Prabhu Dayal (predecessor in interests of the plaintiffs) during their lifetime had let out property bearing private no. 5, comprising in Khasra No. 127/49, Village Yusuf Sarai Jat, New Delhi- 110016 ad-measuring 8 biswas i.e. 400 sq. yards (hereinafter referred to as "Suit Property") to Sh. Bishambar Dayal s/o Sh. Shambhu Dayal at an annual rental of Rs. 36/- i.e. Rs. 3/- per month. It is stated that after demise of Sh. Prabhu Dayal his son Sh.
Dhan Singh inherited the 1/2 share of his father and thus along with Sh. Khubi Ram became the joint owner of suit property. It is stated that Sh. Dhan Singh s/o Late Sh. Prabhu Dayal, however expired on 11.05.1952 and Sh. Khubi Ram also expired issue less in the year 1958 and upon their demise, three sons of Late Sh. Dhan Singh namely Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar became the joint owners of the suit property. It is stated that the lease hold rights of the suit property along with property bearing Private no. 13, comprising in Khasra no. 118/49, Village Yusuf Sarai Jat, New Delhi-110016 also ad-measuring 450 sq. yards were later got transferred to Sh. Ram Nath s/o Sh. Mathura Prasad and a fresh oral tenancy was created in favour of Sh. Ram Nath s/o Sh. Mathura Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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Prasad in respect of both the properties who then started paying rent to Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar for the suit property as well as for the other property at an enhanced rate of Rs. 54/- per annum or Rs. 4.50/- per month for each property.
3. It is stated that Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar all sons of Late Sh. Dhan Singh have expired on 26.11.1984, 02.08.2003 and 29.06.1994 respectively. It is stated that plaintiffs being the sons and widow of Late Sh. Mool Chand, Late Sh. Lal Singh and Late Sh. Ram Mehar have thus jointly inherited the suit property under the general law of succession and are thus jointly absolute owners/ landlords of the suit property.
4. It is further stated that Sh. Ram Nath s/o Sh. Mathura Prasad expired in the year 1970 and defendants no. 1 to 23 being the legal heirs of Late Sh. Ram Nath inherited/ acquired the tenancy rights in respect of the suit property which is now commonly known as 5, Yusuf Sarai, New Delhi-110016. It is stated that after the death of Late Sh. Ram Nath, his son Sh. Hari Ram continued to pay the rent for the suit property thereafter to Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar and after their demise, the rent was paid to plaintiffs, however, since the demise of Sh. Hari Ram Gupta in December, 2010, the rent for the suit property has not been paid by the defendant no. 1 to 23 to the plaintiffs, however, lately owing to their scheming minds, dishonest and malafide intentions, the defendants have offered rent at Rs. 36/- per annum for the suit Digitally signed by KANIKA AGARWAL KANIKA Date:
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property thought they have not tendered the same to the plaintiff and on the other hand in the Hon'ble High Court in RC Rev No. 498/2017, they have claimed to have purchased the suit property from the plaintiffs. It is stated that defendants and their predecessor in interest have also inducted various sub tenants in the different portions of the suit property without the written consent of the landlords.
5. It is stated that the plaintiffs on 29.04.2016 had filed an eviction petition bearing E No. 15/2016 under Section 14(1)(e) of DRC Act in respect of a portion of the suit property i.e. Shop No. 5/1, comprising in the suit property for the bonafide need and requirement of the plaintiff no. 5 wherein defendant no. 1 to 4 along with Late Sh. Dinesh Kumar were impleaded as respondents since they were claiming to be in possession of the said portion who all had filed their leave to defend application. It is stated that in the said leave to defend application, they went to the extent of denying the title of the plaintiffs over the suit property as well as landlord/ tenant relationship with the plaintiffs in respect of the suit property and rather claimed their ownership/ title over the entire suit property. It is stated that defendants have also filed an eviction petition against the sub-tenants namely Sh. Sunil Kalra, Smt. Seema and Smt. Phoola Kalra in respect of a portion of property bearing no. 5/4 comprising in the suit property wherein defendants are claiming themselves as owner of the entire suit property.Digitally signed by KANIKA AGARWAL
KANIKA Date:
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6. It is stated that defendants have forfeited the tenancy rights in the suit property and also lost protection under the Rent Control Act. It is stated that plaintiffs have also terminated the tenancy of the defendants in respect of the suit property vide legal notice dated 13.10.2017. Hence, the occupation of the defendants over the suit property is unauthorized and are liable to pay damages and mesne profits to the plaintiffs for their unauthorized use and occupation of the suit premises at Rs. 5,00,000/- per month from the date of filing of the present suit as per the market rent. It is stated that after terminating the tenancy of the defendants, they are threatening to jeopardize the rights, title and interest of the plaintiffs by creating third party interest in the suit property. It is stated that defendants have also failed to maintain financial discipline and have defaulted in making payment of rent at the agreed rate of Rs. 54/-
per annum or Rs. 4.50/- per month since December, 2010, however, the plaintiffs restrict their claim to the extent of legally recoverable arrears of rent i.e. for three years preceding the date of termination of the tenancy i.e. 31.10.2017 which comes to Rs. 162/- with arrears of rent the defendants are liable to pay to the plaintiff along with interest @ 18% per annum. Having left with no other option, the present suit is filed seeking following reliefs:-
(a) pass a decree of possession in favour of the plaintiffs and against the defendants in respect of the suit property i.e. property bearing Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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private no. 5, comprising in Khasra no. 127/49, Village Yusuf Sarai Jat, New Delhi-110016 ad-measuring 8 biswas i.e. 400 sq. yards;
(b) pass a decree of damages and mesne profits in favour of the plaintiffs and against the defendants thereby directing the defendants to pay to the plaintiffs, damages and mesne profits @ Rs. 5,00,000/- per month for the unauthorized use and occupation of the suit property from the date of filing of the suit till the date of actual handing over the vacant, peaceful possession of the suit property to the plaintiffs;
(c) pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their representatives and assigns etc. from creating any third party interest in the suit property;
(d) pass a decree of arrears of rent of Rs. 162/- in favour of the plaintiffs and against the defendants thereby directing the defendants to pay the same to the plaintiffs along with interest @ 18% per annum is the date of actual payment of the same;
(e) any other relief; and
(f) cost of the suit.
WRITTEN STATEMENT OF DEFENDANT NO. 1 TO 7, 9, 10, 17 TO 20
7. Per contra, it is stated by defendants that the present suit filed by the plaintiff is abuse of process of law and is based on false and frivolous grounds in order to harass the defendants and to Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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illegally grab the suit property. It is stated that plaintiffs have no right, title or interest in the superstructure existing on the land underneath the suit property. It is stated that initially Sh. Khubi Numberdar s/o Sh. Mohra @ Mehar and Sh. Prabhu Dayal s/o Sh. Bhola (the predecessor in interest of the plaintiffs) were the owners of a piece of land measuring 400 sq. yards forming part of Khasra no. 48 and 49 situated within the Revenue Estate of Village Yusuf Sarai Jat, Delhi and they had given the said piece of land without constructing existing thereon to Sh. Bishamber Dayal s/o Sh. Munshi Shambu Dayal vide registered perpetual lease dated 03.04.1939 for a period of 20 years from the date of execution of said lease deed at a rent of Rs. 36/- per annum. It is stated that after taking the said land by Sh. Bishamber Dayal, he had raised construction of shops and room etc. on the said land at his own costs and as per terms of the said lease deed, Sh. Bishamber Dayal had become the owner of the superstructure raised by him on the said land and he remained lessee with respect to land measuring 400 sq yards at a rent of Rs. 36/- per annum. It is stated that Sh. Bishamber Dayal had sold the entire construction raised by him to Late Lala Ram Nath s/o Lala Mathura Pershad (the predecessor in interest of the defendants) for a sum of Rs. 5500/- vide registered sale deed dated 03.05.1943 and had also given possession of the entire construction raised thereon alongwith the land underneath the same to Late Lala Ram Nath and thereafter, Late Lala Ram Nath had Digitally signed by KANIKA AGARWAL KANIKA Date:
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become the absolute owner of the entire superstructure raised thereon. It is stated that later on, the number of superstructure raised on the said plot was given as property no. 5, Yusuf Sarai, New Delhi and at the time of letting out the aforesaid land by predecessor of interest of the plaintiffs to Sh. Bishamber Dayal, the said plot of land was known by Khasra no. 48 and 49 situated at Yusuf Sarai Jat, Delhi.
8. It is stated that Late Lala Sh. Ram Nath died in the year 1970 leaving behind his five sons and four daughters and later, his daughters had executed relinquishment deed dated 15.06.1975 in favour of his five sons in respect of properties bearing no. 5, 13 and 74 situated at Yusuf Sarai, New Delhi left by their father. It is stated that later on by virtue of family settlement, property no. 5, Yusuf Sarai, New Delhi came to the share of two sons of Late Ram Nath namely Sh. Sri Kant Gupta (predecessor in interest of defendant no. 9 and 10) and Sh. Hari Om Prakash Gupta (predecessor in interest of defendant no. 1 and 7) and they had become the joint owners of the said property. It is stated that as per the said partition, half portion of the said property consisting of shops and floors had fallen to the share of Sh. Sri kant Gupta and Sh. Hari Om Prakash Gupta.
9. It is stated that Sh. Hari Om Prakash Gupta had died on 09.04.1997 leaving behind Smt. Vimla Gupta/ defendant no. 1, Sh. Mukesh Gupta/ defendant no. 2, Sh. Rajeev Gupta/ defendant no. 3, Sh. Sanjeev Gupta/ defendant no. 4 and Sh. Dinesh Gupta Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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(predecessor in interest of defendant no. 5 to 7). It is stated that later Sh. Dinesh Gupta had also died on 10.09.2017 leaving behind Smt. Suman Gupta/ defendant no. 5, Sh. Ankit Gupta/ defendant no. 6, Smt. Nidhi Gupta/ defendant no. 7. It is stated that as such now, defendant no. 1 to 7 are the owners of the portion of the property that had fallen to the share of Late Sh. Hari Om Prakash Gupta and same are in possession of defendants no. 1 to 7 and their tenants. It is stated Sh. Sri Kant Gupta had also died on 30.06.2003 leaving behind Sh. Vikas Gupta/ defendant no. 9, Smt. Reena Gupta/ defendant no. 10 and they are now the owners of remaining portion of the said property fallen in the share of Late Sh. Sri Kant Gupta.
10. It is stated that plaintiffs are only the owners of 400 sq. yards of land underneath property no. 5, Yusuf Sarai, New Delhi. It is stated that plaintiffs or their predecessor in interest had never paid any property tax levied on the suit property. It is stated that no portion of the suit property has ever been let out by the plaintiffs or their predecessor in interest and they had only let out open piece of land underneath the suit property to Sh. Bishamber Dayal by means of registered perpetual lease deed dated 03.04.1939. It is stated that plaintiffs are only entitled to recover rent of the land underneath the said property at the rate of Rs. 36/- per annum.
11. It is stated that plaintiffs have not come to the court with clean hands. It is stated that as per lease deed dated 03.04.1939, the lessee was also given right to make construction of buildings etc Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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thereon with his own costs. It is stated that present suit has not been valued properly. It is stated that predecessor in interest of the plaintiffs namely Sh. Khubi Nambardar and Sh. Prabhu Dayal had given an open piece of land on perpetual lease deed ad-measuring 400 sq. yards which form part of Khasra no. 48 and 49 situated within the revenue estate of Village Yusuf Sarai Jat, New Delhi on which plot now property no. 5, Yusuf Sarai, New Delhi exists to Sh. Bishamber Dayal by means of registered perpetual lease deed dated 03.04.1939. It is stated that plaintiffs are not entitled to the relief of possession in the present suit and the present suit is without any cause of action and is liable to be dismissed. All the other averments of the plaint are denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed.
REPLICATION
12. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied. ISSUES
13. From the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 04.01.2023.
(i) Whether the plaintiff is entitled to decree of possession in respect of property bearing no. private no. 5, comprising n Khasra no. 127/49, Village Yusuf Sarai Jat, Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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New Delhi-110016, ad-measuring 8 biswas i.e. 400 sq. yards as prayed in prayer clause (i)? OPP
(ii) Whether the plaintiff is entitled to damages and mesne profits @ Rs. 5,00,000/- per month as prayed in prayer clause (ii)? OPP
(iii) Whether the plaintiff is entitled to permanent injunction restraining defendants from creating third party interest in the suit property as prayed in prayer clause
(iii)? OPP
(iv) Whether the plaintiff is entitled to arrears of rent along with interest as prayed in prayer clause (iv)? If so, at what rate? OPP
(v) Whether the present suit is not maintainable for want of cause of action? OPD
(vi) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction in so far as the relief of possession is concerned? OPD
(vi) Relief.
PLAINTIFF EVIDENCE
14. To prove his case, Sh. Amit Kumar/ plaintiff no. 5 examined himself as PW-1 who tendered his affidavit of evidence as Ex. PW1/A. He placed reliance upon the following documents:
(i) Ex. PW1/1 (OSR) i.e. Counter file of rent receipt dated 02.09.1964;Digitally signed
by KANIKA KANIKA AGARWAL AGARWAL Date: 2024.06.03 Page no. 16 of 73 16:44:29 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
(ii) Ex. PW1/2 (OSR) i.e. Death certificate of Late Sh. Lal Singh;
(iii) Ex. PW1/3 (OSR) i.e. Death certificate of Late Sh. Ram Mehar;
(iv) Ex. PW1/4 (OSR) i.e. Death certificate of Late Sh. Mool Chand;
(v) Ex. PW1/5 i.e. Certified copy of site plan;
(vi) Ex. PW1/6 i.e. Photographs of the suit property;
(vii) Ex. PW1/7 i.e. Photographs of the suit property;
(viii) Ex. PW1/8 i.e. Office copy of legal notice dated 13.10.2017; and
(ix) Ex. PW1/9 (colly) i.e. Reply dated 14.11.2017 along with documents annexed thereto.
15. PW1 was extensively cross-examined by Ld. Counsel for defendant no. 1, 7, 9, 10, 17 to 20 on five dates. During cross- examination, PW1 stated that Sh. Mool Chand Nambardar was his father. It is stated by PW1 that he does not know upto which standard Sh. Mool Chand Nambardar had studied. It is stated by PW1 that although he know that his father had attended the school. It is stated by PW1 that he does not know the period during which his father attended the school but his uncle (chacha) Mr. Lal Singh and Mr. Ram Mehar had told him that he attended DAV School, Yusuf Sarai, New Delhi. It is stated by PW1 that his father late Sh. Mool Chand was about 45 years of age at the time of his death in the year 1984. It is stated by PW1 that he was born in the year 1976. It is stated by PW1 that when his father had died, he was about 8 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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years of age. It is stated by PW1 that he cannot say if the counterfoil of rent receipt no. 52 Ex. PW1/DX1 in the booklet was filled up by his grand-mother or his father. It is stated by PW1 that the rent was not collected monthly rather the rent was collected annually and at times after two or three years.
16. It is stated by PW1 that the lease Ex. D1 had come to end even before the period of 20 years as Sh. Bishambar Dayal had vacated and had left the same and had transferred his tenancy in favour of Shri Ram Nath in the year 1943. It is stated by PW1 that Sh. Bishambar Dayal had transferred his lease rights in favour of Sh. Ram Nath and thereafter, their predecessor in interest accepted Sh. Ram Nath as their tenant in respect of this property and they started accepting rent from Sh. Ram Nath at Rs. 4.50 paisa per month. It is stated by PW1 that as per his knowledge Sh. Bishambar Dayal had transferred his tenancy to Sh. Ram Nath by means of sale deed dated 03.05.1943 Ex. D2 in the admission denial. It is stated by PW1 that the fact about this document came in their knowledge when they started the litigation against the defendants.
17. It is denied by PW1 that he has wrongly stated that the aforesaid piece of land was let out to Sh. Bishambar Dayal for residential purposes. It is stated by PW1 that in the lease deed the permission was granted only to construct pakka kaccha "house" which can be used only for residence purpose. It is stated by PW1 that the house is used for residential purpose only and thereafter, it Digitally signed by KANIKA AGARWAL KANIKA Date:
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was so mentioned in the lease deed. It is stated by PW1 that Sh. Bishambar Dayal had raised construction which exists even today. It is stated by PW1 that Sh. Bishambar Dayal had raised construction of a house which was comprising of Kothre i.e. rooms. It is stated by PW1 that since his birth, he has not entered into the suit property so he cannot tell the exact detail of construction raised by Sh. Bishambar Dayal. It is stated by PW1 that his great grand father had expired before his birth so he cannot tell if any permission was taken from him. It is stated by PW1 that when Sh. Bishambar Dayal transferred the tenancy to Sh. Ram Nath, it was a built up property comprising of four shops with two arches and verandah and other constructions.
18. It is stated by PW1 that Sh. Bishambar Dayal had spent the entire amount of construction of the property made by him on the said piece of land. It is stated by PW1 that when the municipal corporation was formed at that time the property was given the description as property no. 5, Yusuf Sarai, Delhi.
19. It is stated by PW1 that the construction on property no. 5 was raised by their tenant Sh. Bishambar Dayal and the construction over property no. 13 was raised by their tenant Bhola Nath and Kanhaiya Lal and after they had left these properties, their predecessor in interest had become the owner of both the land and superstructure qua both these properties. It is stated by PW1 that their predecessor in interest had not purchased the superstructure Digitally signed by KANIKA AGARWAL KANIKA Date:
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existing in their land i.e. property no. 5 and 13. It is stated by PW1 that the defendants with respect to cases relating to property no. 5 and 13 are their tenant in these properties. It is stated by PW1 that Sh. Ram Nath became their tenant in property no. 5 in the year 1943 and in respect of property no. 13, he became their tenant in the year 1946. It is stated by PW1 that thereafter, they had been made issuing same rent receipt for both the properties. It is stated by PW1 that he was born in the year 1976. It is stated by PW1 that the extent of construction on the ground floor, first floor and second floor as pucca construction was told to him by his grand-mother. It is stated by PW1 that his grand-mother had expired on 2003. It is stated by PW1 that he cannot tell when for the first time his grand-mother had told him about the said construction.
20. It is stated by PW1 that his grand-mother used to tell about the construction off and on. It is stated by PW1 that his grand-
mother had not prepared any site plan on the construction existing on the spot of property no. 5. It is stated by Pw1 that he cannot remember when lastly his grand-mother had told him about the same. It is stated by PW1 that he cannot given the date of death of his grand-mother, however, she expired in summer of 2003. It is stated by PW1 that his grand-mother was illiterate. It is stated by PW1 that he had two uncles, elder one was Late Sh. Ram Mehar and younger name is Late Sh. Lal Singh. It is stated by PW1 that his uncle Ram Mehar had died in 1994 and Sh. Lal Singh had died in Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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the year 2003. It is stated by PW1 that Sh. Khubi had died in the year 1958 and Sh. Prabhu had died in the year 1944.
21. It is stated by PW1 that he cannot tell the date and the month when the rent was agreed to be paid at Rs. 54/- per annum by Sh. Ram Nath. It is stated by PW1 that the rent was agreed to be paid at Rs. 54/- per annum by Sh. Ram Nath to their predecessor in interest in the year 1943. It is stated by PW1 that he was told by his grand mother Jeet Kaur and his uncle Late Sh. Ram Mehar and Late Sh. Lal Singh about the enhancement of rent of Rs. 54/- per annum in the year 1943. It is stated by PW1 that only one receipt of rent at Rs. 54/- per annum of the period from 1943 to 1964 was found available in the almirah of his mother. It is stated by PW1 that no other receipt is available with them. It is stated by PW1 that when he had demanded rent at Rs. 4.50/- per month by notice, the legal heirs of Ram Nath sent their reply stating that they were ready to pay rent at Rs. 36/- per annum and they denied to pay rent at Rs. 4.50/- per month. It is stated by PW1 that Rs. 36/- per month was never their rent and therefore, no demand at this rate was ever made by them.
22. It is stated by PW1 that in the application for leave to defend Ex. PW1/X filed by Vimla Gupta, Dinesh Gupta, Mukesh Gupta and Sanjeev Gupta to the eviction petition bearing no. E-
15/2016 filed before the Rent Controller titled as Amit Kumar Vs. Vimla Gupta, the legal heris of Sh. Ram Nath at point A in sub para Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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B at point B in sub para C and at many other places have stated that Sh. Prabhu or Sh Khubi or their successor are not the owners of the land underneath the property. It is stated by PW1 that they were not party to the case referred by them. It is stated by PW1 that he does not know anything if nobody was present on behalf of Vikas Gupta and Reena Gupta before the Hon'ble High Court on 01.11.2017 in RC revision no. 498/2017. PW1 cross-examination was concluded on 05.09.2019.
23. Further, plaintiff examined Sh. Upender as PW2 who proved the lease deed dated 23.10.2013 in respect of property bearing no. 72/1, comprising Khasra No. 73, main Yusuf Sarai Market, New Delhi-16 as Ex. PW2/1 (OSR). During cross-
examination, it is stated by PW2 that he has not seen the above said property and does not know the distance between property no. 5 and 72/1, comprising Khasra no. 73, Main Yusuf Sarai Market, New Delhi-16. PW2 cross-examination was concluded on 01.11.2019. Thereafter, vide separate statement of Ld. Counsel for the plaintiff, plaintiff evidence was closed on 01.11.2019 and matter was fixed for defendant evidence.
DEFENDANT EVIDENCE
24. On the other hand, Sh. Rajiv Gupta / defendant no. 3 was examined as DW1 who tendered his affidavit of evidence as Ex. DW1/A. He placed reliance upon the following documents:
(i) Mark A i.e. Photocopies of house tax bills;Digitally signed by KANIKA AGARWAL
KANIKA Date:
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(ii) Mark B i.e. Photocopies of house tax bills;
(iii) Ex. D1 i.e. lease deed dated 03.04.1939;
(iv) Ex. D2 i.e. sale deed dated 03.05.1943;
(v) Ex. P3 i.e. notice dated 13.10.2017 and
(vi) Ex. P4 i.e. reply dated 14.11.2017.
25. DW1 was duly cross-examined by Ld. Counsel for plaintiff. During cross-examination of DW1, it is stated that he does not remember if he had mentioned in his leave to defend application that he is a tenant of the plaintiffs in respect of the land underneath the property no. 5, Yusuf Sarai, New Delhi and are owners of superstructure build thereupon. It is denied by DW1 that in the eviction petition no. 15/2016, he and his family members had claimed that the plaintiffs were the petitioners in the eviction petition had no relation or concern with shop no. 1 of property bearing no. 5, Yusuf Sarai, New Delhi of any portion of the property no. 5, Yusuf Sarai, New Delhi. It is stated by DW1 that in portion A1 to A2, B1 to B2, C1 to C2 and D1 to D2 of the leave to defend application, they had stated that the plaintiffs are stranger to the respondents who are no way connected either with them or with the property in question including the remaining portion of the building/ property bearing no. 5, Yusuf Sarai, New Delhi and that Late Lala Ram Nath was the absolute owner of building/ property bearing no. 5, measuring 400 sq. yards, Yusuf Sarai, New Delhi-110061 since 1943. Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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26. It is stated by DW1 that there does not exist any relationship of landlord and tenant between them and the plaintiffs. It is stated that in eviction petition bearing no. 15/2016, they had never claimed that they and the other legal heirs of Late Sh. Ram Nath are the owners of only the superstructure existing on property no. 5, Yusuf Sarai, New Delhi-110016 ad-measuring 400 sq. yards and are tenants of the plaintiffs in respect of the land underneath the same. It is further stated that they had filed eviction petition against their tenants to whom they had let out different portions of the suit property bearing no. 5, Yusuf Sarai, New Delhi-110016, ad- measuring 400 sq. yards and they had stated that they are absolute owner of the respective portions of the suit property. It is stated that order sheet dated 01.11.2017 of Hon'ble High Court of Delhi in RC Revision no. 500/2017 as Ex. DW1/X1 wherein in para no. 9, it has been recorded that he and other LRs of Late Sh. Ram Nath had purchased this property from the respondents in the interpleader suit. It is stated by DW1 that the lease deed he understood that the lease deed is perpetual in nature.
27. It is stated by DW1 that the lease was to be automatically renewed after every 20 years on the same terms and conditions. It is stated by DW1 that vide lease deed Ex. D1, Sh. Bishamber Dayal was only given permission to construct a pakka or kaccha house and no permission was granted to construct anything else including any shop. It is stated that he does not know that no Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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permission was granted by the landlord in the lease deed to construct any shop. It is stated that he has not seen any document which had granted permission by the landlord to Bishmber Dayal to construct any shop. It is denied by DW1 that Bishmber Dayal was not given any right in lease deed Ex. D1 to sale or transfer any construction that was to be raised in the land let out to him. It is stated by DW1 that at the time of lease deed, there was no superstructure and right was only granted to Kaccha and pakka house.
28. It is denied by DW1 that his assumption that the permission to transfer as mentioned in clause-2 of the lease deed Ex. D1 was also in respect of superstructure. It is stated by DW1 that Sh. Bishambar Dayal had vacated and left all concerns with the tenanted property as let out vide lease deed Ex. D1 even before expiry of the tenancy terms of twenty years as agreed in the lease Ex. D1. It is stated by DW1 that the signatures appearing on the counterfoil dated 02.09.1964 at point A on Ex. PW1/1 (OSR) is not the signature of late Sh. Ramnath. It is stated by DW1 that the defendants have not filed on record any documents bearing the signatures of Late Sh. Ramnath to show that the signature appearing at point A on Ex. PW1/1 is not the signatures of Late Sh. Ramnath. It is stated by DW1 that the suit property has eight shops on the ground floor.
Digitally signed by KANIKA AGARWALKANIKA Date:
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29. It is stated by DW1 that on the first floor there is residential accommodation and one portion has been let out for commercial purpose to M/s South Delhi Medicos since many years. It is stated by DW1 that his tenancy was lastly renewed about 10 to 12 years back vide an unregistered lease deed. It is stated by DW1 that in 2019, there were talks of letting out the aforesaid shop no. 5/7 at a monthly rent of Rs. 26,000/-. It is stated by DW1 that the suit property as on date can fetch a monthly rent of Rs. 5 lakhs. It is denied by DW1 that after termination of the tenancy of the defendants vide notice dated 13.10.2017 Ex. PW1/8, the possession of the defendants is unauthorized. It is denied by DW1 that the defendants are liable to pay damages for unauthorized use and occupation of the suit property @ Rs. 5 lakh per month to the plaintiffs. It is denied by DW1 that he had taken the plea in the application for leave to defend that he is the owner of the entire suit property including land and the building. It is further denied by DW1 that he had stated in his application for leave to defend that plaintiffs are strangers to the property no. 5. DW1 cross- examination was concluded on 07.10.2022.
30. Thereafter, Sh. Naveen, Record Keeper, Department of Delhi Archives was examined as DW2 who has proved the following documents:-
(i) Ex. DW2/A (OSR) i.e. Copy of Lease deed dated 03.04.1939 executed by Sh. Khubi and Sh. Prabhu Dayal in favour of Sh.Digitally signed by KANIKA
KANIKA AGARWAL AGARWAL Date:
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Bishamber Dayal which deed was duly registered as document no. 1677 in additional book no. 1, Vol. no. 2019 on pages 9 to 12 on 12.04.1939 in the office of Sub-registrar, Kashmere Gate, Delhi;
(ii) Ex. DW2/B (OSR) i.e. Copy of Lease deed dated 27.031939 executed by Sh. Khubi and Sh. Prabhu Dayal in favour of Sh. Bhola and Sh. Kanhayya which deed was duly registered as document no. 1569 in additional book no. 1, Vol. no. 2013 on pages 323 to 326 on 03.04.1939 in the office of Sub-registrar, Kashmere Gate, Delhi;
(iii) Ex. DW2/C (OSR) i.e. Copy of Sale deed dated 03.05.1943 executed by Sh. Bishamber Dayal in favour of Lala Ram Nath which deed was duly registered as document no. 1738 in additional book no. 1, Vol. no. 2258 on pages 13 to 19 on 08.05.1943 in the office of Sub-registrar, Kashmere Gate, Delhi; and
(iv) Ex. DW2/D (OSR) i.e. Copy of Sale deed dated 24.08.1946 executed by Sh. Bhola and Sh. Kanhayya Lal in favour of Lala Ram Nath which deed was duly registered as document no. 3165 in additional book no. 1, Vol. no. 2461 on pages 263 to 267 on 18.10.1946 in the office of Sub-registrar, Kashmere Gate, Delhi.
31. Thereafter, vide separate statement of Ld. Counsel for defendant no. 1 to 7, 9, 10, 17 to 20, defendant evidence was closed on 11.08.2023 and matter was fixed for final arguments. FINAL ARGUMENTS
32. Detailed arguments were advanced by both the sides. It is argued by Ld. Counsel for plaintiffs that plaintiffs are the joint Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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owners of the suit property, which was initially let out by their predecessors in interest namely Sh. Khubi Ram & Sh. Prabhu Dayal to one Sh. Bishambar Dayal s/o Sh. Shambhu Dayal at an annual rent of Rs.36/- However lease hold rights of the suit property was later taken over by Sh. Ram Nath S/o Sh. Mathura Prasad in his name, who is the predecessor in interest of the defendants. No written lease agreement was executed with Sh. Ram Nath and when he took over the tenanted premises, a fresh oral tenancy was created, who then started paying enhanced rent @ Rs.54/- p.a. Sh. Ram Nath was also inducted as a tenant in respect of an other property bearing number 13 at the same rent of Rs.54/- p.a. The consolidated counter foil of the rent receipt dated 02/09/1964 for both the properties for the period 01/01/1957 to 31/12/1964 i.e. for 08 years for Rs. 864/- bearing the signatures of Sh.Ram Nath was also filed by the plaintiffs along with the suit.
33. It is stated that the plaintiffs however on 29.04.2016 had filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 bearing e-number 15/2016 in respect of one of the shops comprised in the suit property i.e. shop number 5/1 wherein defendants no. 1 to 4 along with Late Dinesh S/o Late Sh. Hari Om Prakash Gupta were impleaded as respondents who were in possession of shop number 5/1 and being the legal heirs of Sh. Ram Nath in their capacity as joint tenants were representing the entire estate of Sh. Ram Nath including all his legal heirs, wherein Digitally signed by KANIKA AGARWAL KANIKA Date:
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the said respondents representing the estate of Sh. Ram Nath went to the extent of denying the title of the plaintiffs over the suit property and also denied any landlord tenant relationship with the plaintiffs in respect of the entire suit property and rather claimed ownership/ title over the entire suit property. It is stated that it is the case of the plaintiffs since there was no registered lease deed between the plaintiffs and the defendants in respect of the suit property, therefore, the tenancy of the defendants was a monthly tenancy, which was terminated by the plaintiffs vide notice dated 13.10.2017 in abundant caution, which was duly replied vide reply dated 14.11.2017, wherein the defendants for the first time tried to set up a new defense and claimed that they are owners of the superstructure and are perpetual tenants in respect of the land of the suit property, which was a complete u-turn form the claims made in the aforestated eviction petition and refused to vacate the suit property.
It is stated that defendants no. 1 to 7, 9, 10 and 17 to 20 filed their written statement claiming that the original tenant Sh. Bishambar Dayal was let out the land ad-measuring 400 sq. yards vide registered lease deed dated 03.04.1939 and after raising construction on the land, he had sold the superstructure to Sh. Ram Nath and further sold the lease hold rights of the land ad-measuring 400 sq. yards to Sh. Ram Nath vide sale deed dated 03.05.1943.
34. It is contended that the tenancy of Sh. Ram Nath in respect of the land was perpetual in nature and whereas he was Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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owner of the superstructure and therefore, the same rights have been inherited by all his legal heris who are defendants in the present suit. It was denied that Sh. Ram Nath was inducted at a rent of Rs. 54/- per annum and the counterfoil dated 02.09.1964 bearing the signature of Sh. Ram Nath was claimed to be forged and fabricated. It is stated that in the leave to defend application in the earlier eviction petition bearing E-number 15/2016, the defendants had not denied the landlord tenant relationship with the plaintiffs and it was further stated that the defendants had not claimed ownership in the land of the suit property in the said petition. It is stated that whatever construction was raised by the original tenant Sh. Bishambar Dayal became part and parcel of the lease itself in view of Section 108 (d) of The Transfer of Property Act, 1882. It is stated that since Sh. Ram Nath was inducted as a tenant at Rs. 54/- per annum, therefore, the contention that he was a tenant under the lease deed dated 03.04.1939 at Rs. 36/- per annum was also misplaced and baseless.
35. It is argued that the whole defence of the defendants is premised on two grounds i.e. (i) that they are perpetual tenants of the land underneath the superstructure at Rs. 36/- per annum which is owned by the defendants and (ii) that the defendants are the owners of the superstructure existing in the suit property . It is argued that such contention is grossly misconceived and misplaced as the same is in the teeth of Section 108 (d) of The Transfer of Digitally signed by KANIKA AGARWAL KANIKA Date:
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Property Act, 1882 which has been dealt with by the Hon'ble High Court in the case of "Bhupinder Kalra Vs. Paramjit Kaur @ Ors. (2016 (8) AD 693)" wherein it has been held that in the absence of any contract to the contrary, any construction raised by a tenant in the property of the landlord leased out to them shall be deemed to be comprised in the lease.
36. It is stated that Section 108 (q) of the The Transfer Of Property Act, 1882 read together with Section 108(d) makes it absolutely clear that the permission to construct a house on the land let out to Sh. Bishamber Dayal did not create ownership in the said structure and therefore in the absence of a contract to the contrary (as was agreed upon in the lease deed which was the subject matter of the case of Swami Jai Ram Chela Versus Hari Singh relied upon by the defendants), Sh.Bishamber Dayal could not have created any ownership in favour of Sh.Ram Nath by executing the alleged sale deed dated 03/05/1943 as he himself had no ownership in the same.
37. It is stated that admittedly Sh. Bishamber Dayal only had tenancy rights in the land and therefore as per the said clause 2, he was granted permission to sell only his said tenancy rights by way of mortgage, sale etc that too during the tenancy tenure of 20 years , which clause 2 is in accordance with Section 108(j) of The Transfer Of Property Act, 1882 and thus no special status was created in favour Sh. Bishamber Dayal even by such clause and therefore the interpretation of clause 2 of the lease deed being Digitally signed by KANIKA AGARWAL KANIKA Date:
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presented by the defendants so as to give it a colour of perpetual tenancy is grossly misconceived and since Sh. Bishamber Dayal himself had no ownership of either the land or the super structure therefore he could not have sold the same as has been claimed. It is stated that the contention of the defendants that they are governed by the lease deed dated 04/04/1939 wherein rent was fixed as Rs. 36/- p.a. also stands falsified from the perusal of the counter foil of the rent receipt dated 02/09/1964 issued for a period of 08 years i.e. 01/01/1957 to 31/12/1966 showing the rent to be Rs.54/- p.a., which has been proved on record by the plaintiffs as Ex. PW1/1, qua which document presumption of correctness is also attached being more than 30 years old document in view of Section 90 of the Indian Evidence Act.
38. It is pertinent to note that a counterfoil is maintained only by the landlord and therefore, the same has been produced by the plaintiffs being the landlords. That further the onus of proof to show that the counter foil was a forged and fabricated document was on the defendants in view of Section 101 to 104 of the Indian Evidence Act as held in Mukesh Kumar versus Chander Pal Singh RSA 93/2016 decided on 01/04/2016 and for discharging such onus no evidence has been lead by the defendants and therefore the said counter foil exhibit PW 1/1 has been proved on record in view of the judgment dated 01/04/2016 of the Hon'ble High Court in the case of Mukesh Kumar Versus Chander Pal Singh, RSA 93/2016.
Digitally signed by KANIKA AGARWALKANIKA Date:
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39. It is stated that the defendants however, while relying upon the judgment of Swami Jai Ram Chela Sarjudas versus Hari Singh (AIR 1967 P&H 159) have argued that Sh. Ram Nath was a perpetual tenant under the lease deed dated 03/04/1939 and therefore the defendants having inherited such perpetual tenancy, their tenancy could not have been terminated vide notice dated 13/10/2017. It is respectfully submitted that this judgment , relied upon by the defendants is not at all applicable to the facts of the present case for many reasons, such as : in the case of Swami Jai Ram (supra), the parties to the suit were also parties to a registered lease deed. It is stated that in the lease deed in the case of Swami Jai Ram (supra), it was agreed between the landlord and the tenant that "the tenant shall remain the owner of any superstructure that he might build on the land and shall also remain the owner of the tree which he may plant thereupon and the tenant shall also have a right to sell or mortgage his interest in the plot, the superstructure and trees etc. to anyone he likes. It is stated that in the present case; (i) there is no registered lease deed between the parties i.e. between the predecessors in interest of the plaintiffs and the defendants. (ii) In the lease deed dated 03/04/1939 Ex D1 executed with Sh. Bishamber Dayal, there was no such clause that the tenant Bishambar Dayal would become the owner of the superstructure raised by him or the trees planted by him on the land let out to him.
(iii) Further in the lease deed dated 03/04/1939 Ex D1, the tenant Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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Sh.Bishamber Dayal was not given any right or authority to sell, alienate or mortgage the superstructure.
40. It is stated that without prejudice to the submissions made herein above and even going by the best of the defence of the defendants that the tenancy of Sh.Ram Nath was perpetual, even that alleged perpetual tenancy stood determined in view of Section 111(g) of The Transfer Of Property Act, 1882, when, in the eviction petition bearing E number 15/2016 titled as Amit Kumar & Ors. Versus Vimla Gupta & Ors., on 27/02/2017, in the leave to defend application, the ownership of the plaintiffs in respect to the entire suit property was denied and disputed, it was pleaded that there is no landlord tenant relationship and it was pleaded that Sh.Ram Nath was the absolute owner of the entire suit property i.e. property number 5, Yusuf Sarai, New Delhi and it was claimed that after his demise, his ownership in the suit property was inherited by his legal heirs. It is stated that it is a settled proposition, which has also been discussed by the Hon'ble High Court in the case of S.Makhan Singh versus Amarjeet Bali (2008 (154) DLT 211) (Paragraph 5 ) that "The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law.".
41. Ld. Counsel has relied upon following judgments i.e.
(i) Jagdish Gupta Vs. The State Trading Corporation of India Ltd. CS(OS) No. 2098/1990; (ii) M/S MGR Holding (P) Ltd. Vs. M/s Loil Overseas Foods Ltd. & Anr. IA No. 9260/2010; (iii) Jeevan Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (Huf) & Anr. 2011 Legal Eagle (DEL) 433; (iv) Chandrakantaben, Wife of Jayantilal Bapalal Modi, Narendra Jayantilal Modi Vs. Vadilal Bapalal Modi 1989 Legal Eagle (SC) 193; (v) Hemkunwar Bai Vs. Sumer Singh & Ors. 2019 Legal Eagle (SC) 1451; (vi) State of U.P. & Anr. Vs. Synthetics and Chemicals Ltd. & Anr. 1991 Legal Eagle (SC) 315; (vii) Union of India Vs. Major Bahadur Singh 2005 Legal Eagle (SC) 1004; (viii) Syed Sughra Zaidi Vs. Laeeq Ahmad (Dead) Through LRs. & Ors. 2017 Legal Eagle (SC) 1105, Bidyadhar Bachar & Ors. Vs. Mahindra Nath Das & Ors. AIR 1925 Cal 1076 , Mukesh Kumar Vs. Chander Pal Singh decided on 01.04.2016 RSA 93/2016, S. Makhan Singh Vs. Amarjeet Bali 2008 (154) DLT 211 and Bhupinder Kalra Vs. Paramjit Kaur & Ors. 2016 (8) AD 693.
42. It is stated by Ld. Counsel for defendants that the present case involves the important question of law, where, the defendants are in settled possession for last more than 60 years and predecessor-in-interest of the plaintiff waived their right to take the possession. The lease was of an open land with right to construct and further right to receive compensation for superstructure in case it is acquired. From the aforesaid, it is clear that the ownership of the superstructure is I was of predecessor-in-interest or of the defendant in the present suit. It is stated that the perpetual Lease I Patta dated 3.4.1939 is a Perpetual Lease for perpetuity and/ or permanent lease for the following reasons:- (i) Plot of land Digitally signed by KANIKA AGARWAL KANIKA Date:
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admeasuring 3600 sq. ft. was given to Bishambar Dayal to construct his pucca house and Khubi Numberdar and Prabhu Dayal had no right to stop the construction, no right to evict, (ii) The second party tenant shall have the right to transfer his rights title as a Mortgage, sale etc. to someone else; (iii) The aforesaid terms would confer the right on Bhishambar Dayal to transfer his right, title as a mortgage I sale etc. and Bishamber, who has constructed the superstructure owner of Pucca house, as use of word is 'his', (iv) It is stated that giving right to Bishamber to transfer the right in lease and further to sell the superstructure, in which he had ownership right and further to create mortgage, would only show that lease was for perpetuity and permanent in nature and conduct of the parties shows the real intention, (v) The lease does not permit increase of rent, (vi) Only eventuality in which the lease could be terminable is envisaged only in clause 3 & 4, (vii) As per Clause 6, the superstructure was owned by Bhishambar Dayal as it was the intention of the parties that if in future, the land is acquired, the value of the land will be received by the owner and the compensation for the superstructure shall be received by the owner.
43. It is stated that there is no option to the Lessor I Khubi Ram I Prabhu Dayal to take the possession. Thus, it can be safely concluded that the lease is permanent in nature and is perpetual. The defendants rely upon the judgment Sivayogeswara Cotton Press, Devangere & Ors. Vs. M Panchaksharappa & Anr. AIR 1962 SC Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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413, wherein on a construction of the terms of the lease deed the tenancy was held to be perpetual. It is stated that Swami Jai Ram Chela Sarju Das Vs Hari Singh reported as 1966 SCC Online Punj 3 31, the facts of the aforesaid case and the facts of the present case are similar. In the present case, the perusal of Ex.D-1 would show the real intention of the parties. The intention of the parties are that the Lessee i.e. Bishambar Dayal remain the owner of the superstructure if he is the owner of the superstructure then intention was to create the lease of perpetuity I permanent. More so, Sh. Khubi Ram and Sh. Prabhu Dayal waived their rights to take the possession of land, which is also the factor to be considered by this Hon'ble Court to decide the issue whether the Lease is permanent in nature and is perpetual.
44. It is stated that the argument of the plaintiffs with respect to the receipt is that in the year 1957, a fresh tenancy was created with respect to the plot and superstructure in favour of Ram Nath @ Rs. 4.50 per annum and with regard to another plot and the rent of 10 years was paid. It is stated that the plaintiff has not been able to prove the execution of the receipt. It is stated that if a person is not able to prove in whose handwriting the document is written, can such a document be said to be proved as per law? It is stated that during the life time, Bhishambar Dayal sold the superstructure and transfer the lease hold rights in favour of Ram Nath, Ex. D-2. The said document is admitted by plaintiff. The sale deed is dated Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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8.5.1943. The perusal of the sale deed would show that Bhishambar Dayal had sold the superstructure and transfer the leasehold right in the plot. The said sale deed is witnessed by Khubi Numberdar and Prabhu Dayal, the executors of the lease deed dated 03.04.1939 Ex.
D-1. It is stated that the plaintiffs are estopped from filing the present suit. In view of the terms of Ex. D-1. The lease is permanent in nature and not determinable. The circumstances to take the possession, as per Ex. D-1 are not made out. The plaintiffs have failed to prove the alleged oral tenancy. It is stated that to have a foundation under Section lll(g)(2), it was incumbent upon the plaintiffs to specifically plead the forfeiture. In the present suit, the plaintiffs in the legal notice dated 13.10.2017 nowhere pleads that the defendants claimed themselves to be the owner of the plot. The notice was given on the premise that the defendants have violated the terms and conditions of the registered lease deed. It is nowhere pleaded that the defendants have claimed themselves to be the owner of the plot. The legal notice was duly replied Ex b. P-4 dated 14.11.2017, in which, it has been specifically stated that the addressees in the legal notice are the owners of the superstructure and they are the lessees of the plot. Therefore, the provisions of Section 111 (g)(2) are not applicable.
45. Ld. Counsel for defendants has relied upon the following judgments in support of their contentions i.e. Swami Jai Ram Chela Sarju Das Vs. Hari Singh 1966 SCC Online Punj 331, Digitally signed by KANIKA AGARWAL KANIKA Date:
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Sivayogeswara Cotton Press Devangere & Ors. Vs. M. Panchaksharappa & Anr., Bavasaheb Walab Mansursahed Korti & Anr. Vs. West Patent Co. Ltd. & Ors. 1953 SCC Online Bom 67, Sapna Pathania & Anr. Vs. Jagdish Chander Mehta & Ors. 1998 SCC Online De. 347 and M/s Ranjit Construction Co. Ltd. Vs. National Highway Authority of India & Ors. 2003 SCC Online De. 934, Guru Amarjit Singh Vs. Rattan Chand & Ors. (1993) 4 SCC 349, Munisami Naidu Vs. C. Ranganathan (1991) 2 SCC 139.
46. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under :-
ISSUE NO. 1Whether the plaintiff is entitled to decree of possession in respect of property bearing no. private no. 5, comprising n Khasra no. 127/49, Village Yusuf Sarai Jat, New Delhi-110016, ad-measuring 8 biswas i.e. 400 sq. yards as prayed in prayer clause (i)? OPP
47. The burden of proof is upon the plaintiffs to establish that they are entitled for relief of possession with respect to suit property. The dispute relates to the claim of the plaintiffs on plot of land ad-measuring about 400 sq. yards situated in Yusuf Sarai, Delhi which was taken on rent by Sh. Bishambar Dayal s/o Sh. Shambhu Dayal vide lease deed dated 03.04.1939 Ex. D1 for a period of 20 years at Rs. 36/- per annum for the purpose of raising construction thereon. Sh. Bishambar Dayal during his tenancy had raised construction/ superstructure on the plot. It is asserted that Digitally signed by KANIKA AGARWAL KANIKA Date:
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tenancy was surrendered by Sh. Bishambar Dayal and it was taken on lease by Ram Nath s/o Sh. Mathura Prasad (predecessor-in- interest of the defendants) . It is stated that no written lease agreement was executed with Sh. Ram Nath and; when he took over the tenanted premises, a fresh oral tenancy was created at enhanced rent of Rs. 4.5/- per month amounting to Rs. 54/- per annum. It is averred that Sh. Ram Nath was also inducted as a tenant by the predecessor in interest of the plaintiffs in respect of other property bearing no. 13 at same rent of Rs. 54/- per annum. The plaintiffs relied upon consolidated counterfoil of rent receipts dated 02.09.1964 for both the properties for the period 01.01.1957 to 31.12.1964 bearing the signatures of Sh. Ram Nath. It is asserted that after the demise of Sh. Ram Nath in the year 1970, all the legal heirs of Sh. Ram Nath inherited his tenancy right and one of his son Sh. Hari Ram continued to pay the rent, however, after his demise in the year 2010, the defendants have stopped paying the rent to the plaintiffs.
48. It is further averred that the plaintiffs on 19.04.2016 had filed an eviction petition under Section 14(1)(e) of Delhi Rent Control Act, 1958 bearing no. 15/16 EX. PW1/X1 in respect of property bearing no. 5/1 against defendant no. 1 to 4 (herein) along with Late Dinesh s/o Late Shri Hari Om Prakash Gupta. It is asserted that the defendants in their application for leave to defend have denied the title of the plaintiffs over the property / shop Digitally signed by KANIKA AGARWAL KANIKA Date:
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bearing no. 5/1 which is part of suit property and also denied landlord-tenant relationships with plaintiff with respect of the entire suit property and instead claimed ownership over the suit property and therefore, plaintiff had incurred forfeited under Section 111(g) and the tenancy was terminated between the parties.
49. It is further asserted that since there was no registered lease deed/ agreement between the plaintiffs and the tenancy between the parties was merely month to month tenancy, therefore, same has also been terminated after legal notice dated 13.10.2017 was issued by the plaintiffs calling upon the defendants to vacate the property.
50. The suit is resisted by the defendants on the ground that tenancy in their favour is a permanent and perpetual in nature, thus incapable of being determined by the defendants. It is argued that a vacant plot of land ad-measuring 400 sq. yards was taken on rent by Sh. Bishambar Dayal from Sh. Khubi Ram and Sh. Prabhu Dayal vide perpetual lease deed dated 03.04.1939 Ex. D1 for the purpose of raising construction on the plot. It is averred that as per the lease deed Ex. D1, the lessor had no right either to increase the rent or seek ejectment of the lessee from the suit property. It is argued that lease was given of a vacant land ad-measuring 400 sq. yards and the lessee had raised superstructure on the said land in accordance with the terms of perpetual lease deed dated 03.04.1939 Ex. D1. It is argued that the ownership of the superstructure raised by Sh.
Digitally signed by KANIKA AGARWALKANIKA Date:
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Bishambar Dayal vested with him and later, he had sold his ownership rights in the superstructure and lease hold rights in the land belonging to predecessor in interest of plaintiffs to Sh. Ram Nath vide registered sale deed dated 08.05.1943 Ex. D2. It is argued that by virtue of the registered sale deed dated 08.05.1943 Ex. D2, Sh. Ram Nath (predecessor-in-interest of the defendants) had become the absolute owner of the suit property and lessee with respect to the land ad-measuring 400 sq. yards. It is argued that since the lease dated 03.04.1939 Ex. D1 was a perpetual in nature, therefore, Sh. Ram Nath and his successor in interest had acquired perpetual lease hold rights in the land ad-measuring 400 sq. yards with ownership of the superstructure. Accordingly, it is argued that the perpetual lease is in incapable of being terminated/ determined by the plaintiffs (successor -in-interest of Sh. Khubi Ram and Sh. Prabhu Dayal). Further, it is argued that defendants had never disputed the ownership of the plaintiffs with respect to land ad- measuring 400 sq. yards and they have claimed ownership only with respect to the superstructure raised on the said land.
51. In light of pleadings of both the sides, the following aspect appear to be significantly relevant for the decision of this case and therefore, required to be discussed and answered before any finding could be given on the issue in hand:-
(a) What is the nature of the lease deed Ex. D1 executed by Sh.
Khubi Ram and Sh. Prabbu Dayal in favour of Sh. Bishamabar Digitally signed by KANIKA AGARWAL KANIKA Date:
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Dayal with respect to plot of land ad-measuring 400 sq. yards forming part of Khasra no. 48 & 49, Yusuf Sarai, New Delhi? In other words, whether the lease deed Ex. D1 is a permanent lease or lease for limited tenure?
(b) If lease deed dated 03.04.1939 Ex. D1 is held to be a permanent lease then whether Sh. Ram Nath was a tenant under the perpetual lease deed dated 03.04.1939 Ex. D1 or a fresh oral tenancy was created between Sh. Ram Nath and Sh. Khubi Nambardar and Sh. Prabhu Dayal ?
(c) Whether the defendants have challenged the title/ ownership of the plaintiffs, if yes, what is the effect?
52. In order to ascertain the true nature of the lease deed dated 03.04.1939 Ex. D1 and the intention of the parties; executing the same, it is relevant to first refer the various clauses/ recital of lease deed Ex. D1 which are quoted as below:-
LEASE AGREEMENT DATED 12.04.1939 Between (1) Khubi S/o Mohar and (2) Prabhu Dayal S/o Bhola, Caste Jat, Occupation Agriculture, r/o Village Yusuf Sarai Jat, Delhi Province;
AND (2) Bishamber Dayal S/o Munshi Shambhu Dayal Cast Kaisth, Occupation Deed Writer, r/o Mohalla Dassan, Delhi.
"This Lease Agreement executed between We (1) Khubi S/o Mohra and (2) Parbhu Dayal S/o Bhola, Caste Jat, Occupation Digitally signed by KANIKA KANIKA AGARWAL Page no. 43 of 73 AGARWAL Date:
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Agriculture, Resident of Village Yusuf Sarai Jat, Delhi Province, hereinafter called the Joint Owners First Party.
AND Bishamber Dayal S/o Munshi Shambhu Dayal, Caste Kaisth, Occupation Deed Writer, Resident of Mohalla Dassan, Delhi, hereinafter called the Tenant Second Party of the Other Part;
WHEREAS a plot piece of land measuring 3600 Sq. ft. at the side of Sarak Qutab Mehrauli Road, 40 Ft. wide and 90 Ft.Length out of total Khasra Nos. 48 and 49
situated at Yusuf Sarai Jat, Delhi and bounded as under:-
East: Sarak Qutab Saheb Mehrauli Road West: Way Passage continued Land of the owners.
North: Plot of land owners South: Plot of the land of the owners Second Party under possessed by Mohan Lal S/o Ram Chander and Lachmi Narain S/o Gobind Ram is under ownership and possessed by the First Party. Therefore, above land possession has been delivered to the Second Party for the construction of a Pucca and Kaccha house for the period Twenty years (20 Years) with effect from this date, from the first party owners rented out on annual rent of Rs.36/- (Rupees Thirty Six only) and therefore both the parties shall remain bounded by the following conditions:-
1. First:- The second party shall have right to construct on the said land measuring 3600 sq.ft to construct his house Pucca and Digitally signed by KANIKA KANIKA AGARWAL Page no. 44 of 73 AGARWAL Date:
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Kaccha. The First party owners shall not have the right to stop the same construction.
2. Second:- The ownership of the said land will remain with the First party the owners and the Second party shall have the possession. The second party tenant shall have the rights to transfer his rights title as a Mortgage, sale etc. to some where else.
3. Third:- That he will not give it to any Christian or Musalman permanently on rent or without rent for residential purposes. 4 Fourth:- That on this place there will be no Meat Shop etc. of any kind of Pucca and Kaccha, nor the house will be given to anybody for this purpose.
5. Fifth:- That on the said rent there will be no increase of rent.
6. Sixth:- That if any time the Government acquired this land, then from the compensation, the second party will be entitled to received for the value of the structure and the first party received for the value of the land.
7. Seventh:- That if at any time there is violation of conditions Third (3) and Fourth (4) then the land owners the first party shall have the right to get the second party evicted without given any compensation and the second party or his successors shall have no objection to it.
8. Eight:- That the First Party will remain the owner of "Khaat" "Koora", the Second party shall have no concern with it and nor shall be give it to any other person.
9. Ninth:- That there will be no increase of rent on the said Rent. Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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10. Tenth:- That the Second Party shall to pay the said rent amount annually to the First Party against the receipt. If the said rent amount is not paid year by year and three years period lapse, then the first party the owners will have the right to retrieve their rent amount dues with legal expenses cost, through litigation' but the First Party shall not have the right to evict the second party.
11. Eleventh:- That after the lapse of the Lease period of every twenty years (20 years) of this lease, it shall continue to draw a lease on the same conditions and the same rent. This rent shall always remain the same rate of rent and there shall be no increase in the rent in future.
12. Twelve:- That on this above plot of land, construction will be completed within three years from this today date, otherwise this lease will be deemed to be null and void.
13. Thirteen:- That we parties and our successors and representatives shall be bound by these terms and conditions and shall not deviate from them.
In witness whereof this lease agreement for a period of Twenty years for Rs.36/- (Rupees Thirty Six only) per annum executed for future evidence."
53. Notably, the first clause/ recital of the lease deed Ex. D1 grants lessee the right to construct "his Kaccha and Pucca house" in the demised premise and the lessor had no right to stop the construction to be raised by the lessee. Further, there are absolutely no riders/ conditions attached to what kind, type and nature of Digitally signed by KANIKA KANIKA AGARWAL Page no. 46 of 73 AGARWAL Date:
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construction is allowed to be raised by the lessee. The lessee has been given complete autonomy to raise the construction as per his wishes and preferences. Further, the usage of expression "his house Pucca and Kaccha" in the said clause conveys a sense of ownership with the lessee with respect to the superstructure to be raised by him.
54. Further, vide clause 2 the lessee was given right to transfer his rights and title in the demised premise to third party by way of mortgage, sale and other modes of transfer. It is significant to emphasize that second clause of the lease deed stipulates that ownership of the 'land (does not used the word superstructure) would remain with the lessor and lessee shall have the possession of the land. The clause is evidently silent as to who shall be the owner of the superstructure to be raised by the lessee and exactly what kind of rights the lessee is entitled to transfer.
55. It is not specifically mentioned that lessee is solely entitled to transfer his leasehold right in the land to the third party. The second clause which comes right after preceding clause vide which absolute right of construction is granted in favour of lessee has to be read in that context and setting.
56. When the lessor vide first clause gives right to lessee to construct "his house Pucca and Kaccha" and then the lessor specifically in the very next clause limits his ownership rights with respect to land only, then the intention of the parties to confer right Digitally signed by KANIKA KANIKA AGARWAL Page no. 47 of 73 AGARWAL Date:
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of ownership qua the superstructure in favour of the lessee cannot be disregarded. The said reasoning is further fortified when clause 2 of the lease deed Ex. D1 is read in conjunction with other clauses particularly clause 6 and clause 8.
57. Clause 6 which deals with compensation specifically mentions that "if any time" the land is acquired, the plaintiff shall be entitled to compensation for the value of the superstructure. The expression "if any time" indicates permanence and perpetuity. It does not limit the right of compensation only during the subsistence of the lease deed Ex. D1. Clause 6 further strengthen the inference that the intention of the parties was precisely to confer ownership in the lessee with respect to the superstructure he would raise on the land. Had it been otherwise, it would have been mentioned that right of compensation qua the superstructure would only be during the subsistence of the lease.
58. Next, Clause 8 stipulates that lessor shall remain the owner of "khatt" and "khoora" and the lessee shall have no concern with it. Thus, Clause 2 and Clause 8 specifically enlist the properties qua which the lessor shall hold the ownership rights. If the parties had intended to vest ownership rights qua the superstructure with lessor, the same would have been found mentioned in the deed.
59. Coming to Clause 11 of the lease, which deals with renewal clause, it is significant to recognize the peculiar language used in that clause. The renewal clause is not like any other renewal Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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clause, which usually states that after the expiry of certain period, the parties shall execute a fresh lease deed. Rather, it uses the expression that "it shall continue to draw a lease on the same condition and the same rent" giving a semblance of automatic renewal of lease deed Ex. D1 on same conditions / stipulation and same rent. The clause even stipulates that there shall be no increase in rent in future. This particular clause gives a sense of lease being permanent in nature in other words if lease was intended to be of limited tenure extendable on execution of fresh lease, then there was no occasion for parties to put such a fetters on the power of the lessor so as to take his right to increase the rent in future. The most crucial power of lessor is to have complete freedom to decide the rate of rent whenever the property is given on lease, however, once such a pivotal power is curbed down, it would only indicate that the parties meant to execute a permanent tenancy.
60. Clause 10 further put further fetters on the right of the lessor by taking away his power to seek ejectment of the lessee even in case of non payment of rent. The lessor could only institute a suit for recovery of rent and was dis-entitled to seek ejectment of lessee.
61. Further, a bare perusal of Clause 12 suggest that lease was executed for building/ construction purpose as it is clearly stipulated that if the construction is not raised within 3 years from date of execution of lease, then the lease would deemed to considered as null and void. Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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62. The important take away from the discussion above is that the lease was unquestionably executed for a building/ construction purposes. Further, the lease was intended to be permanent in nature as can be inferred from the lease itself particularly in view of the fact that landlord was divested of his rights to increase rent and seek ejectment of lessee in case of non- payment of rent. Further, it can be safely inferred from above that the parties had intended that the ownership of the superstructure would vest with the lessee. Any last doubt with respect to lease deed Ex. D1 being a permanent lease deed and lessee having absolute right of ownership are dispersed by the sale deed dated 08.05.1943 Ex. D2 vide which the Sh. Bishmaber Dayal s/o Late Sh. Mathura Prasad had transferred his ownership rights in the superstructure as raised on the vacant plot along with his leasehold rights in favour of Sh. Ram Nath for certain consideration. This particular sale deed is attested by none other than by Sh. Khubi Ram and Sh. Prabhu Dayal which itself is a testament to the fact that ownership of the superstructure vested with Sh. Ram Nath (predecessor in interest of defendants). Notably, the sale deed Ex. D2 has never been challenged either by Sh. Khubi Ram and Sh. Prabhu Dayal or by their successor in interest till date.
63. At this juncture, the court deems it fit to refer to judgment of Hon'ble Supreme Court in Sivayogeswara Cotton Press, Devangere & Ors Vs. M. Panchaksharappa & ANR (1962) 3 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 34/18
ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
SCR 876 wherein the court has discussed that there is a presumption that if a lease is for building purpose then prima facie it is arguable that it is a permanent lease. The relevant paragraph is quoted as below:-
"14. We are in complete agreement with the following observations of the court made in that case, which in our opinion apply to the facts and circumstances of the case in hand "The forms in which tenancy rights are created in India are not uniform and they do not conform to precedents known to conveyancing ; sometimes the words used are not precise and it is not easy to understand from the said words the intention of the parties in executing the documents. Leases are often executed without legal assistance; and the aid that the parties obtain from professional scribes does not always contribute to make the terms clear or precise. The nature of the tenancy created by any document must never- the less be determined by construing the document as a whole. If the tenancy is for a building purpose, prima facie it may be arguable that it is intended for the life-time of the lessee or may in certain cases be even a permanent lease. Prima facie such a lease is not intended to be tenancy at will. But whether it is a tenancy for life or a permanent (1) I. L. R. [1954] Bom. 448, 4 50. Tenancy must ultimately depend upon the terms of the contract itself. And in construing the terms of 'such contracts the courts must look at the substance of the Matter And decide what the parties really intended to do."
64. In Swami Jai Ram Chela Sarju Das vs Hari Singh AIR1967P&H159 while dealing with the issue whether the lease in question is permanent or limited in nature has observed as follows:-
"6. It is on a construction of the above mentioned terms of the lease deed that the trial court held that the tenant was not liable to ejectment on the expiry of the first period of twenty years and the first appellate Court held to the contrary. In the above mentioned case of AIR 1962 SC 413 their Lordships of the Supreme Court emphasised the fact that while construing a lease deed it should be borne in mind that if the tenancy is for a building purpose, prima facie it may be arguable that it is intended for the lifetime of the lessee or 'nay in certain cases be even a permanent lease, It was held in that case that prima facie such a lease is not intended to be a tenancy-at-will, but, whether it is a tenancy for life or a permanent tenancy must Digitally signed by KANIKA Page no. 51 of 73 KANIKA AGARWAL AGARWAL Date: 2024.06.03 16:49:52 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
ultimately depend upon the terms of the contract itself. The note of caution sounded by the Supreme Court in that case is that in construing the terms of such contract the Courts must look at the substance of the matter and decide what the parties really intended to do and not merely rely upon literal construction of some isolated terms in the agreement, applying the said principles to this case, and qualifying the above mentioned terms of the lease deed it is clear to me that the parties in this case definitely intended the relationship of landlord and tenant in respect of the plot in question to continue between them in perpetuity on the terms and conditions contained in exhibit P. 1.
(i) it has been specifically agreed to by the parties that on a renewal of the lease after every period of 20 years (the word "every" is significant) the rate or rent will not be increased;
(ii) contrary to the usual terms of a building lease for a fixed period only it has been provided that the tenant would continue to be the owner of the superstructure and the trees, etc. planted on the plot by him. If the intention was to get the plot vacated in any circumstances after 20 years it would normally have been provided that the superstructures and the trees would thereupon belong to the landlord or that the tenant would be entitled to remove them;
(iii) the lease deed emphasises the fact that even on non-
payment of rent for a period of three years or for any period whatsoever the tenant would not be liable to ejectment and the Only right of the landlord would be to recover the arrears of rent by a suit;
(iv) in cases of leases for a fixed period with merely an option to renew them it is usual to provide for the option being exercised before the expiry of the period of the lease. In this case it has been specially provided that the fresh lease deeds which have to be executed after the 20 years i.e. have to be executed only after the expiry of the previous period of 20 years and not before that;
(v) the lease is for the specified purpose of enabling the tenant to make his building thereon. The nature, type, kind and extent of the building has been left exclusively to the discretion of the tenant which is not fettered in any manner;
(vi) the presumption of a lease of this type being only for the lifetime of the lessee is also ousted by providing in clause 10 of the agreement that the heirs, successors and legal representatives of the parties would also be bound by the terms of the lease;
(vii) if it was intended to leave it open to the landlord to agree to the renewal of the lease or not there was no sense in providing that the rate of rent would not be liable to be increased after the expiry of 20 years. Even without providing a renewal clause it is always open to parties to a lease deed to renew a lease after it has expired by the efflux of time. Clauses relating to option to renew are usually contained in leases Page no. 52 of 73 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL 16:50:00 Date: 2024.06.03 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
when option is given to one side and not to the other or if certain changes in the terms of the lease are envisaged at the time of renewal. In the instant case if the lease was to be renewed for any number of periods of 20 years no option at all is given to any of the parties to change any of its material terms;
(viii) the tenant has been given the authority even to alienate, sell or mortgage his rights in the leasehold as well as in the superstructure that he may make thereon. Normally such rights are not conferred in case of short-term lease."
65. In the opinion of the court, the lease agreement in question Ex. D1 contains similar clauses to those discussed by the Hon'ble High Court in the Swami Chela case. The Ld. counsel for defendant has argued that Swami Chela case is not applicable to the facts of the present case as the lease deed under consideration in that judgment had granted specific right of ownership qua the superstructure to the lessee, however, in the lease deed Ex. D1 under consideration, no ownership rights have been granted. Concededly, the lease deed Ex. D1 in question does not specifically confer ownership rights qua the superstructure in favour of the lessee, however, on proper construction and interpretation of the lease, it remains amply clear that ownership of the superstructure was meant to be with lessee. Further, the sale deed dated 08.05.1943 Ex. D2 is the most crucial and significant proof of the real intention of the parties. Thus, taking into account that lease was for a construction purposes, granting ownership rights over the superstructure; which also curtailing the right of lessor to seek ejectment and /or to increase rent, it cannot assumed to be a short-
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term lease. The necessary inference is that lease deed was intended to be permanent in nature.
66. Accordingly, this could holds that lease deed dated 03.04.1939 Ex. D1 was a permanent lease in favour of Sh. Bishmaber Dayal and it was clearly not executed for a limited term/ tenure. Further, the said lease was not only permanent but also heritable and assignable in light of clause 13 of the said lease deed Ex. D1.
(B). Whether Ram Nath was a tenant under the perpetual lease deed dated 03.04.1939 or a fresh oral tenancy was created between the predecessor in interest of the defendant and the predecessor in interest of defendants?
67. Now that it has been established that the lease deed dated 03.04.1939 Ex. D1 was a perpetual lease deed, the court shall ascertain whether the Ram Nath was tenant under the perpetual lease deed dated 03.04.1939 Ex. D1 or a fresh oral tenancy was created between predecessor in interest of the plaintiffs and the defendants.
68. The plaintiff have set out a case that initially the suit property was let out to Sh. Bihsmaber Dayal at an annual rent of Rs 36/-, however, subsequently, lease hold rights of the suit property was taken over by Sh. Ram Nath (predecessor-in-interest of the defendants). It is asserted that no written lease agreement was executed with Sh. Ram Nath and only the oral tenancy was created Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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at enhanced rent of Rs 4.5/- per month. It is further asserted that Sh. Ram Nath was also inducted as a tenant in respect of and another property bearing property no. 13 at same rent of Rs 4.5/- per month.
69. In order to prove the assertion of oral tenancy between predecessor in interest of plaintiffs and defendants, the plaintiffs have relied upon rent receipts Ex. PW1/1 (OSR) dated 02.09.1964 for the period from 01.01.1957 to 31.12.1964 alleged to be signed by Sh. Ram Nath.
70. Notably, from the pleadings of the plaintiffs it remain unclear as during which year, Sh. Bishamber Dayal had surrendered his tenancy and to whom he had surrendered his tenancy. Further, there is no clarity during which period Sh. Ram Nath was inducted as a tenant in the suit property and by whom he was inducted. Further, in light of sale deed dated 03.05.1943 Ex. D2 which was executed by Sh. Bishambar Dayal in favour of Sh. Ram Nath, it remains all the more doubtful if oral tenancy was created prior to execution of sale deed or after that. The plaintiffs have placed on record the counterfoil of rent receipts Ex. PW1/1 (OSR) for the period from 01.01.1957 to 31.12.1964. There is no explanation as to why there are no rent receipts for the period before 1957 and after 1964. Further, counterfoil does not bears the particular of the plots for which rent is being paid. Further, the plaintiffs have had no idea/ knowledge as to who had prepared the rent receipts Ex. PW1/1 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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(OSR), in other words in whose handwriting the particulars of it were filled up.
71. Ld. Counsel for defendant has argued that the rent receipts Ex. PW1/1 (OSR) being a 30 year document carries a presumption of Section 90 of Indian Evidence Act, 1872, to the effect that signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting.
72. With respect to presumption under Section 90 of Indian Evidence Act, 1872, the court deems it fit to refer to judgment of Hon'ble Apex Court in Lakhi Baruah & Ors. Vs. Padma Kanta Kalita & Ors. reported in MANU/SC/0334/1996: 1996 (8) SCC 357 wherein it has been observed as under:
"15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to led evidence to prove handwriting, signature of execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document. Section 90 has been incorporated in the Evidence Act, 1872 which do away with the strict rule of proof of private documents, Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.
Therefore, court needs to exercise the discretion judiciously while taking presumption under Section 90 of the Evidence Act, keeping in mind the underlying object of the provision, being the necessity and convenience and also the precondition required for taking a presumption. Section 90 of the Evidence Act provides that before taking a presumption, two basic ingredients should be there, namely the document sought to be proved must be of 30 years old and it must be produced from proper custody." Digitally signed by KANIKA AGARWAL KANIKA Date:
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73. Further, the Hon'ble Court in Paramesh Sarmah & Ors. Vs. Islamali & Ors. decided on 29.09.2000 has observed as follows:
"9. The condition on which the execution of a document, may presume for:
(1) That it must have been existed for 30 years or more ; (2) It must be produced in Court from proper custody. The document must be in appearance free from suspicion and doubt.
(3) It must be in a handwriting of a person and should not be anonymous.
Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of considera- tion, legal necessity, etc. may be presumed under Section 90."
74. It is also important to refer to judgment of Hon'ble High Court of Calcutta in Bhagirathmal Kanodia And Anr. vs Jamini Ghose, Shebait of Lahshmi AIR1942CAL309 wherein it has been observed as follows:-
"4. The plaintiffs conceded that if the defendants could produce any evidence like an extract from the Collectorate register showing that these lands were entered as revenue-free, that would conclude the matter. The defendants claim that the document which has been referred to as a sanad is really an official record of that character. That document is in Persian, and a Bengali translation of it was put in and is on the record. But it is not clear whether it is an extract from a Collectorate register, or merely, purports to be a copy of an order for the issue of a confirmatory grant to one Maharam Bhanja, who, it has been found by the Courts, is the predecessor-in-interest of the present defendants. This document is certainly of very great importance from the defendants' point of view, and in order to decide this appeal on the basis of it, I consider it to be essential to have more information than is available as to its true character. It was produced no doubt from the custody of the Collector, but the record-keeper who produced it did hot say whether it purported to be an extract from any official register. It does not bear the signature of any official. In fact it seems to me that in the absence of any signature or of the name of any person by whom the document purports to be written, it is not possible to admit it in evidence as an ancient document under the provisions of Section 90, Evidence Act. Section 90 says that where a document purporting to be 30 years old is produced from proper custody, the Court may presume that the Digitally signed Page no. 57 of 73 by KANIKA KANIKA AGARWAL AGARWAL Date: 2024.06.03 (Kanika Agarwal) 16:50:40 +0530 CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
signature and any other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to be duly executed and attested. The presumption referred to in this section is of a limited character and applies only to the signature or handwriting. Where, however, there are no names of executant, scribe or witness, I do not see how the section can avail to prove the document, merely because it happens to be more than 30 years old or is produced from custody which the Court may consider proper."
75. From above, it is clear that Section 90 deals with presumption which is permissive in nature and it is not mandatory for court to raise such a presumption. It is a matter of judicial discretion to be exercise reasonable to either raise the presumption or call upon the party to offer other proof. Further, the presumption under Section 90 is for a limited in nature and applies only to the signature or handwriting if the document is produced from a proper custody. Further, when the name of the executant of the document is not known in other words; if it is not known who has signed the document or prepared the document, then the presumption under Section 90 cannot be invoked.
76. Admittedly, PW1 has stated in his cross-examination dated 12.07.2019 that he is not aware of the author of the document. Thus, even if it is assumed that the rent receipt Ex. PW1/1 (OSR) was signed by Sh. Ram Nath even then the receipts cannot be taken as proof of oral tenancy in as much as the plaintiffs have failed to prove who was the author of the documents. Also, the presumption under Section 90 does not apply to contents of the documents.
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Further, the plea of oral tenancy appears to be sham and vague in light of fact that defendants have not filed any rent receipts prior to 1957 and post 1967. Despite taking a specific stand in their pleadings that rent was paid by the defendant upto the year 2010, no rent receipts have been filed to support their bare assertions.
77. On the other hand, defendants in order of support their claim of being the perpetual lessee under lease deed dated 18.10.1946 have relied upon sale deed dated 24.08.1946 Ex. DW2/D (OSR). Both the documents have not been disputed or challenged by the plaintiffs. Perusal of sale deed Ex. DW2/D (OSR) shows that Sh. Bishmaber Dayal has sold his ownership rights in the superstructure and leasehold rights in the land for consideration amount of Rs. 5,500/- to Sh. Ram Nath which has been attested to by both the original lessors i.e. Sh. Khubi Ram and Sh. Prabhu Dayal. The sale deed dated 24.08.1946 Ex. DW2/D (OSR) leave no room for doubts that by virtue of sale deed dated 24.08.1946 Ex. DW2/D (OSR) Sh. Ram Nath and his successor in interest stood in shoes of Sh. Bihsmaber Dayal and became a permanent lessee. Accordingly, it is held that Sh. Ram Nath was a lessee under the perpetual lease deed dated 18.10.1946.
(C). Whether the defendants have challenged the title/ ownership of plaintiffs, if yes. What is the effect?
78. The plaintiffs have alleged that the defendants in their application for leave to defend Ex. PW1/X have challenged/ Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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renounced the ownership of the plaintiffs in the property bearing private no. 5/1 comprising in Khasra no. 127/49 forming part of suit property by setting up title in themselves. It is asserted that defendants took the plea that they are the absolute owner of shop bearing private no 5/1 and by taking such a plea, the defendants have made the clear and unequivocal disclaimer of tenancy and denial of title of the landlord/plaintiffs by claiming ownership in them resulting into forfeiture of tenancy under Section 111(g) of the Transfer of Property Act, 1882.
79. In order to address this issue, the court deems it fit to first refer to section 111(g) of Transfer of Property Act, 1882 which is as follows:
SECTION 111. DETERMINATION OF LEASE "(g) A lease of immoveable property determines(g)by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event;
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
80. At this juncture, the Court also deems it fit to refer to judgment of Hon'ble Supreme Court of India in Sheela & Ors vs Firm Prahlad Rai Prem Prakash AIR 2002 SCC 1264 wherein it has been observed as follows:
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"What is denial of landlord's title or disclaimer of tenancy and what impact it has on the landlord's right to evict and tenant's liability for eviction under the Act? It is pertinent to note that denial of title of the landlord or disclaimer of tenancy is not as such set out as a ground on which tenant may be evicted under Section 12 of the Act. Section 12(1)(c) provides inter alia that a tenant incurs liability for eviction if the tenant or any person residing with him has done any act which is likely to affect adversely and substantially the interest of the landlord therein. A tenant's denial of the landlord's title and/or disclaimer of tenancy has been held to be an act which is likely to affect adversely and substantially the interest of the landlord. In a series of decisions, the High Court of Madhya Pradesh has consistently taken this view and we see no reason to make a departure therefrom. It has to be seen how and in what manner a denial of title or disclaimer by tenant would attract applicability of Section 12(1)(c) of the Act? In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule. Clause
(g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact-
situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his Digitally signed by KANIKA KANIKA AGARWAL Page no. 61 of 73 AGARWAL Date:
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landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
81. In S. Makhan Singh vs Amarjeet Bali CM(M) 1604/2007, the Hon'ble High Court of Delhi has observed as follows:
"5. A tenant has been given protection under Delhi Rent Control Act from eviction only where the jurial rela tionship of tenant and landlord was not disputed and the tenant claims himself to be the tenant and not the owner. A perusal of Section 14, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. Section 111 (g) of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111 (g) is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises. A lease may come to an end by termination of lease by or by efflux of time. Where the rent is below Rs. 3,500/-, a landlord cannot recover possession from tenant whose term of lease comes to an end or whose tenancy is terminated by a notice because such a tenant is a protected tenant. The landlord can recover possession only if the case falls within the ambit of section 14 of dre act. Where a tenant repudiates the title of the landlord and does not recognize him as landlord or as a owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him. Where the tenant does not recognize anyone as landlord or owner and claims ownership in himself he cannot seek protection of Delhi Rent Control Act against the true landlord or owner. The Trial Court therefore rightly held that the petitioner was not entitled to protection under Section 50 of Delhi Rent Control Act".Digitally signed by KANIKA AGARWAL
KANIKA Date:
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82. It should be noted that this court has already held that the defendants are the owner of the superstructure raised on plot given on lease by the predecessor in interest of the plaintiffs. Hence, the court shall now endeavor to ascertain if the defendants have made clear, unambiguous and unequivocal denial of plaintiff's title to the land ad-measuring 400 sq. yards located in Yusuf Sarai, New Delhi. For the said purpose, the court deems it fit to first refer to eviction petition Ex. PW1/X1 filed by the plaintiff before the court and Ld. ARC-cum-CCJ, Saket Court. The relevant paragraphs of the eviction petition are quoted as below:
(i) That the petitioners, jointly, are the absolute owner of the Property bearing private no.5, Comprising in Khasra No. 127/49, Village Yusuf Saral Jat, New Delhi 110016 admeasuring 8 Biswa (400 sq.yds),
(ii) That this Property bearing private no.5, Comprising in Khasra No.127/49, Village Yusuf Sarai Jat, New Delhi-110016 admeasuring 8 Biswa was earlier jointly owned by Sh. Khubi S/o Sh. Mehar and Sh. Prabhu Dayal S/o Sh.Bhola and during their lifetime were the owners of 1/2 share each. It won't be out of place to mention here that Sh.Mehar and Sh.Bhola both sons of Sh.Sahab singh were real brothers and during their lifetime were the owners of 1/2 share each of this khasra no.127/49, Village Yusuf Saral Jat, New Delhi. 110016.
(iii) That thereafter on the demise of Sh. Prabhu Dayal his son Sh. Dhan Singh inherited the 1/2 share of his father Late Sh.
Prabhu Dayal and thus along with Sh. Khubi Ram, became the joint owner of this khasra no.127/49, Village Yusuf Sarai Jat, New Delhi.110016.
(iv) That Sh. Dhan Singh S/o Late Sh. Prabhu Dayal, however expired on 11/05/1952 and Sh. Khubi Ram also expired issue less in the year 1958 and upon their demise, the three sons of Late Sh. Dhan Singh namely Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar became the joint owners of the entire khasra no.127/49, Village Yusuf Sarai Jat, New Delhi. 110016 admeasuring 8 Biswa i.e. 400 sq.yds.
(v) That Sh. Mool Chand, Sh.Lal Singh and Sh. Ram Mehar all sons of Late Sh. Dhan Singh have since expired on 10/11/1984, 02/08/2003 and 29/06/1994 respectively. The copies of the death certificates are fled herewith for the kind perusal of this Hon'ble Court. Digitally signed by KANIKA KANIKA AGARWAL Page no. 63 of 73 AGARWAL Date: 2024.06.03 16:51:33 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
(vi) That the petitioners are the sons and widow of Late Sh. Mool Chand, Late Sh. Lal Singh and Late Sh. Ram Mehar, who have thus jointly, inherited the said property under the general law of succession and are thus jointly, the absolute owners of the said property.
(vii) That it wont be out of place to mention here that Sh. Mool Chand, Sh. Lal Singh and Sh. Ram Mehar in the similar manner and also inherited from Late Sh. Dhan Singh another plot of land bearing Khasra no. 118/49, Village Yusuf Sarai Jat, New Delhi.110016 which was also admeasuring 8 Biswa i.e. 400 sq.yds, which otherwise is not the subject mater of the present eviction petition.
(viii) That Sh. Khubi Ram and Sh. Dhan Singh during their lifetime had let out the plot of land bearing Khasra no. 127/49, Village Yusuf Sarai Jat, New Delhi. 110016 admeasuring 8 Biswa i.e. 400 sq.yds to one Sh. Bishambar Dayal S/o Sh. Shambhu Dayal at an annual rental of Rs. 36/- and whereas the plot of land bearing Khasra no. 118/49, Village Yusuf Sarai Jat, New Delhi. 110016 admeasuring 8 Biswa i.e. 400 sq.yds was also let out to Sh. Bhola Nath and Sh. Kanhaiya Lal both Sons of Sh. Sohan Lal.
(ix) That however, the lease hold rights of both these plots were later got transferred by Sh. Ram Nath S/o Sh. Mathura Prasad in his name, who also then started paying rent to Sh.Mool Chand, Sh.l.al Singh and Sh. Ram Mehar for these two plots @ Rs.54/- per annum or say Rs. 4.50/- per month for each plot i.e. Rs. 108/- per annum or say Rs.9/- per month for the two plots. The counter foil of the rent receipt dated 02/09/1964 bearing the signatures of Sh. Ram Nath S/o Sh. Mathura Prasad is filed herewith for the kind perusal of this Hon'ble Court.
(x) That the said property bearing Khasra No.127/49, Village Yusuf Sarai Jat, New Delhi. 110016 admeasuring 8 Biswa, was given private no. 5 and was commonly known as Yusuf Sarai, New Delhi and is comprising of 15 portions, both commercial and residential, which were further given private nos from 5/1 to 5/15 and which were commonly, known as and this entire premises including the other plot was being used by Sh. Ram Nath S/o Sh. Mathura Prasad and his family members, however some portion was also sub-let by him without the consent of the landlords."
83. The eviction petition bearing no. 15/16 Ex. PW1/X1 was preferred by all the plaintiffs (herein) against the defendant no. 11, 12, 13 and 14 (herein) with Late Sh. Dinesh Gupta. Notably, the plaintiff claims themselves to be absolute owner of the property Digitally signed by KANIKA KANIKA AGARWAL Page no. 64 of 73 AGARWAL Date:
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bearing private no 5 comprising in khasra no 127/49, Village Yusuf Sarai, New Delhi ad-measuring 400 sq. yards. The eviction petition mention that Sh. Khubi Ram and Sh. Prabhu Dayal had let out plot of land bearing no. 127/49, Village Yusuf Sarai to Sh. Bhishamber Dayal at rent of Rs. 36/- and subsequently, the lease hold rights of the plot was transferred to Sh. Ram Nath at Rs. 4.50/- per month. That property bearing no. 127/49 comprises of 15 portions bearing private no. 5/1 to 5/15 and for reason of bonafide needs, the plaintiffs seek eviction of defendant in shop no. 5/1. It is to be acknowledged that the petition does not mention anything about the lease deed dated 03.04.1939 Ex. D1 and the sale deed dated 03.05.1943 Ex. D2. The petition is based on premises that both land and superstructure belonged to predecessor in interest of the plaintiffs. It does not even mention that only a vacant plot of land was given on rent to Sh. Bishambar Dayal who had during his tenure raised construction upon the same. The eviction petition does not mention anything about the extent of construction that existed on the property when it was leased out to Sh. Ram Nath.
84. In this backdrop and setting, the court shall now refer to application for leave to defend Ex. PW1/X1 filed by the defendants in the eviction proceedings. The relevant paragraphs of that leave to defend are as follows:-
"(a) That the present petition has been filed by the petitioners who are stranger to the respondents as they do not have any locus standi and nowhere connected with the respondents or the property in question. The respondents have never heard about them. The petitioners are not connected or known by any Digitally signed Page no. 65 of 73 by KANIKA KANIKA AGARWAL AGARWAL Date: 2024.06.03 16:51:57 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
family members of late Lala Ram Nath who was the absolute owner of building/property bearing No.5 measuring 400 sq.yds. approx. at Yusuf Saral, New Delhi-110016 since 1943.
(b) That the petitioners are neither the owner of the premises in question nor the landlord of the premises bearing No. 5/1, Yusuf Sarai, New Delhi-110025 as the premises No. 5/1 is one of the portion of building bearing No. 5, which was owned by late Lala Ram Nath.
(c) There exists no relationship of landlord and tenant between the parties as the respondents are the owner of the property in question and the petitioners have nothing to do with the said property.
(d) That it appears that the petitioners just to extort the money from the respondents filed the present petition as the petitioner has no connection whatsoever with the premises in question including remaining portion of the building/property bearing No.5, Yusuf Sarai, New Delhi- 110016.
(e) That the present petition has been filed by the petitioners without filing any affidavit in support of their petition just to save themselves from any penal action, as whatever they are stating in their petition in respect of building no. 5 regarding their alleged ownership and relationship are absolutely false, fabricated, misconceived, concocted, unfounded and no basis at all.
(h) That it is submitted that Lala Ram Nath purchased a Pucca Structure/ Building bearing No. 5, Yusuf Sarai, New Delhi 400 sq. yds., (including property in question i.e. property no.5/1 which is one of the portion/shop of building no.5) in the year 1943 vide sale deed dated 03.05.1943 regd. Vide document no. 1738, book no.1, volume no. 2258 on pages 13 to 19 registered on 08.05.1943 with Sub- Registrar, Delhi.
(o) That it is respectfully submits that the petitioners are the local residents of the Yusuf Sarai, New Delhi but till date neither the petitioners nor their predecessor in interest as alleged in the petition never approached or claimed any ownership right in the premises in question including any right in said building no.5.
(r) That as Late Ram Nath was the owner of the property no. 5, hence after his death all his legal heirs inherited the said building/ property no.5, and became the owners of the same. The present petition has been filed only against the five respondents mentioned in the petition without impleading the other legal heirs of late Ram Nath and as such is not maintainable without impleading all the legal heirs of late Ram Nath.
(u) That the respondents are entitled to leave to contest the eviction petition on the ground that there is no relationship of landlord and tenant between the petitioners and the respondents, moreover, the petitioners are not the owner of the property, therefore, the respondents are entitled to leave to Digitally signed by KANIKA AGARWAL KANIKA Page no. 66 of 73 Date:
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contest the present eviction petition. Moreover, respondents are the owners of the said premises.
(x) That the respondents submits that they are the owners of the said premises therefore no question of relationship arises between the respondents and petitioners regarding the said premises."
85. In the opinion and understanding of the court, the defendants in their application for leave to defend have only denied the title of the plaintiffs with respect to superstructure on lease deed Ex. D1. On scrutiny of application for leave to defend, the defendants seemed to have categorically denied the title of the defendants with respect to superstructure which is being referred to by them as "property/ building". Also, the fact that they have categorically mentioned in clause (h) that Sh. Ram Nath had purchased pucca structure/ building vide sale deed dated 03.05.1943 Ex. D2 further substantiate the stand of the defendants that they had only disputed the title of the plaintiffs with respect to the superstructure on the land. There is no gainsaying the fact that vide sale deed dated 03.05.1943 Ex. D2, the defendants had become absolute owner of the superstructure leased land. The defendants have been in possession of the lease land for over 60 years now without any interruption.
86. It is also to be seen that plaintiffs have not produced any rent receipts post the year, 1967 and therefore, it is also in question whether the defendants were even aware at the time of filing of application for leave to defend that the petitions are the successor in interest of original owner of the land.
Digitally signed by KANIKAKANIKA AGARWAL Page no. 67 of 73 AGARWAL Date:
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87. Also, the court at this stage deems it fit to refer to judgment of Hon'ble Supreme Court of India in Raja Mohd. Amir Ahmed Khan Vs. Municipal Board of Sitapur (1964) SCC 246 wherein it has been held that if there is disclaimer of tenancy by denial of title of the landlord, it must be clear and unequivocal. It was held by the Ld. Apex Court that the background of the lease, history of the case and nature of pleadings must be looked into before any finding is given on forfeiture of tenancy.
88. Coming to case in hand, the court is of the view that given the fact that defendants were enjoying the suit property for over 60 years with ownership of the superstructure by virtue of sale deed Ex. D2, therefore, the claim of ownership by the defendants over shop bearing no. 5/1 only amounts to assertion of title over that shop and not on the land on which same is built. Additionally, at best the denial could be described as filled with ambiguities and not unequivocal.
89. Accordingly, the court is of the opinion that there is no clear and unequivocal denial of title of the plaintiffs qua the plot of land ad-measuring 400 sq. yards by the defendants.
90. To sum up, it is held that the lease deed dated 03.04.1939 Ex. D1 which was perpetual in nature had created a permanent tenancy between predecessor in interest of the plaintiffs and Sh. Bishamber Dayal. Further, Sh. Bishamber Dayal had sold his perpetual leasehold rights in land ad-measuring 400 sq. yards Digitally signed by KANIKA AGARWAL KANIKA Date:
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comprised in Khasra no. 127/49, Village Yusuf Sarai to Sh. Ram Nath vide sale deed dated 03.05.1943 Ex. D2. In these circumstances, the defendants are the tenant under the perpetual lease deed dated 03.04.1939 Ex. D1 and not liable to be evicted from the suit property. Thus, this issue is decided in against the plaintiffs and in favour of the defendants.ISSUE NO. 2
(ii) Whether the plaintiff is entitled to damages and mesne profits @ Rs. 5,00,000/- per month as prayed in prayer clause (ii)? OPP
91. In light of findings of this court upon issue no. 1, no relief as sought is made out in favour of plaintiffs. Hence, this issue is decided against the plaintiffs and in favour of the defendants .ISSUE NO. 3
(iii) Whether the plaintiff is entitled to permanent injunction restraining defendants from creating third party interest in the suit property as prayed in prayer clause (iii)? OPP
92. No evidence has been led by the plaintiffs that defendants have made any attempt to create third party interest in the demised premises i.e. plot of land ad-measuring 400 sq. yards comprised in Khasra no. 127/49, Village Yusuf Sarai Jat, New Delhi. As far as the issue of ownership of superstructure is concerned, same has already been dealt with while addressing issue no. 1. The defendants being the owner of the superstructure existing on the leased land cannot be injuncted from dealing with in the Digitally signed by KANIKA AGARWAL KANIKA Date:
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manner they prefer. Hence, this issue is decided against the plaintiffs and in favour of the defendants .ISSUE NO. 4
(iv) Whether the plaintiff is entitled to arrears of rent along with interest as prayed in prayer clause (iv)? If so, at what rate? OPP
93. The burden to prove this issue is upon the plaintiffs to establish that they are entitled to arrears of rent along with interest. Since, it has been already held that the defendants were the tenants under the perpetual lease deed Ex. D1 for monthly rent of Rs. 3/- per month and also it has been acknowledged and admitted by the defendants that they have not paid the rent for the period as sought i.e. three years preceding the date of filing of the suit, therefore, the defendants are liable to pay the rent for last three years preceding the date of filing of suit i.e. 04.01.2018 at agreed rate of rent of Rs. 36/- per annum as per the perpetual lease deed Ex. D1. As far as interest on arrears of rent is concerned, there is no documentary or oral evidence on record, to proof on that what basis the plaintiffs are entitled for interest @ 18% per annum. However, in the interest of justice, court deems it fit to grant interest @ 9% per annum to be paid by the defendants from the date of accrual till its actual realization. Hence, this issue is decided in favour of the plaintiffs and against the defendants .
ISSUE NO. 5 Digitally signed by KANIKA AGARWALKANIKA AGARWAL Date:
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(v) Whether the present suit is not maintainable for want of cause of action? OPD
94. The burden of proof is upon the defendants to establish that the plaintiff has filed the present suit without any cause of action. The court is of the opinion that merely because plaintiffs have failed to prove their claim for possession and injunction, it cannot be held that the suit was filed without any cause of action. For the said reason, issued no. 5 is decided against the defendants and in favour of plaintiff .
ISSUE NO. 6(vi) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction in so far as the relief of possession is concerned? OPD
95. The burden of proof is upon the defendants to establish that relief of possession has not been properly valued. However, the defendants have neither led any evidence and nor tendered any arguments in this regard. The plaintiffs have valued the relief of possession at annual rent preceding the date of filing of the suit.
96. In S. Malkhan Singh Vs. Amar jeet Bali CM(M) No. 1604/2007 decided on 03.11.2008 , the Hon'ble High Court of Delhi while addressing the issue with regard to valuation of suit for possession by the landlord whose title/ownership is being denied by the tenant has observed as follows:
"5. A tenant has been given protection under Delhi Rent Control Act from eviction only where the jurial relationship of tenant and landlord was not disputed and the tenant claims himself to be the Digitally signed Page no. 71 of 73 by KANIKA KANIKA AGARWAL AGARWAL Date: 2024.06.03 16:52:52 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 34/18 ROSHNI DEVI AND ORS. Vs. VIMLA GUPTA AND ORS.
tenant and not the owner. A perusal of Section 14, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. Section 111 (g) of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111 (g) is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises. A lease may come to an end by termination of lease by or by efflux of time. Where the rent is below Rs.3,500/-, a landlord cannot recover possession from tenant whose term of lease comes to an end or whose tenancy is terminated by a notice because such a tenant is a protected tenant. The landlord can recover possession only if the case falls within the ambit of Section 14 of DRC Act. Where a tenant repudiates the title of the landlord and does not recognize him as landlord or as a owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him. Where the tenant does not recognize anyone as landlord or owner and claims ownership in himself he cannot seek protection of Delhi Rent Control Act against the true landlord or owner. The Trial Court therefore rightly held that the petitioner was not entitled to protection under Section 50 of Delhi Rent Control Act.
6. Where the tenant continues in occupation after he repudiates the title of the landlord, lease comes to an end by operation of law because of the repudiation of title and the landlord/owner can file a suit for possession in Civil Court. The valuation of such a suit has to be on the basis of annual rent in view of Section 7 (xi)(cc) of Court Fee Act."
97. Thus , in view of above, the plaintiff is not required to value his suit for possession at market value but on the annual rent payable in the precededing year. The plaintiff has valued his relief for possession at Rs. 54/- which is equivalent to annual rent of the suit property. Hence, court finds no infirmity in the valuation of Digitally signed by KANIKA KANIKA AGARWAL Page no. 72 of 73 AGARWAL Date:
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relief of possession. Accordingly, this issue is decided against the defendants and in favour of the plaintiffs .ISSUE NO. 7
Relief
98. In light of the aforesaid discussion, the suit of the plaintiff stands partly decreed to the effect that defendants are held liable to pay the rent for last three years preceding the date of filing of suit i.e. 04.01.2018 at agreed rate of rent of Rs. 36/- per annum as per the perpetual lease deed dated 03.04.1939. Further, the defendants are liable to pay interest @ 9% per annum from the date of accrual till its actual realization .
99. Cost of the suit is also awarded in favour of the plain- tiff.
100. Decree Sheet be accordingly prepared.
101. File be consigned to record room after due compliance.
Digitally signedPronounced in open court: KANIKA
by KANIKA
AGARWAL
AGARWAL Date:
Dated: 03.06.2024 2024.06.03
16:53:11 +0530
(Kanika Agarwal)
CJ-01(South)Saket/New Delhi/03.06.2024 Note :-This judgment contains seventy three pages and all the pages have been checked and signed by me.
Digitally signedby KANIKA KANIKA AGARWAL AGARWAL Date: 2024.06.03 16:53:19 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/03.06.2024 Digitally signed by KANIKA AGARWAL KANIKA Date:
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