Delhi District Court
Sh. Prahlad Rai vs Smt. Tara Devi on 16 March, 2018
IN THE COURT OF SH. NAVJEET BUDHIRAJA, ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
No. 7938/2016
Date of Institution: 28.07.1993
Date of Decision: 16.03.2018
1. Sh. Prahlad Rai
S/o Sh. Naru Mal
R/o EU-8, Pitam pura, (Uttri), Delhi
2. Sh. Naru Mal
S/o Sh. Jhamat Mal
R/o 11/109, Geeta Colony,
Jheel, Delhi-31 ..Plaintiffs
Versus
Smt. Tara Devi
W/o Sh. Jhangi Ram
R/o 40, Chander Shekhar Azad Colony,
Bagh Kare Khan, Delhi ...Defendant
JUDGMENT
1. This is a suit for mandatory and permanent injunction in respect of almirahs/boxes in property bearing no. 5329, Gali Peti Wali, Ground floor, Ghans Mandi, Sadar Bazar, Delhi ( hereinafter referred to as "property").
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2. The present suit is being pursued by plaintiff no.2 Sh. Prahlad Rai and plaintiff no. 4 Sh. Naru Mal only. Suit qua other plaintiffs was either dismissed as withdrawn or settled. Thus, the facts in brief qua these two plaintiffs are that plaintiff no.2 is a tenant in respect of six almirahs and plaintiff no. 4 is the tenant of one almirah in the property. Defendant with the malafide intention has not opened the property since 23.07.1993 with the deliberate intention to harass the plaintiffs and restrict them to using the almirahs which they have been using for more than 15 years from the date of filing the suit. The plaintiffs are out of their jobs since 23.07.1993 causing them great financial loss. The matter was also reported to the police but to no avail. Hence the present suit for mandatory injunction seeking direction to the defendant to open the shutter of the property and to hand over the plaintiff a duplicate key of the locks and for permanent injunction against the defendant not to dispossess the plaintiffs from their respective almirahs/boxes.
3. Defendant filed the written statement alongwith the counter claim combating the case of the plaintiff by asserting that the plaintiffs are not entitled to any discretionary relief being not in possession of the almirahs/boxes. The defendant herself is a tenant in the property. The present suit is also barred by limitation. All the almirahs/boxes installed in the property are like boxes of the cloak room where the plaintiffs were allowed to store their articles on leave and license basis on daily charges of Rs. 10 per day per box having no actual right, title or interest. It is denied that the plaintiffs are tenants in the property and therefore have no right to enter the property against the wishes of defendant.
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4. Replication was filed on behalf of the plaintiffs denying the grounds raised in the written statement and counter claim and reaffirming the pleas taken in the plaint.
5. After completion of proceedings following issues were framed:
(1) Whether plaintiffs are tenants under defendants as alleged?OPP. (2) Whether plaintiffs have misrepresented, conceded and suppressed material facts from courts, if so to what effect? OPD. (3) Whether suit is barred by time?OPD.
(4) Whether suit in the present form is not maintainable?OPD. (5) Whether counter claim of defendant is maintainable?OPD. (6) Relief.
6. In plaintiffs evidence, plaintiff Sh. Prahlad Rai was examined as PW-1 who tendered his evidence by way of affidavit Ex. PW-1/A and who relied upon following documents. Ex. PW-1 is a complaint lodged with the police commissioner dated 30.07.1993, Ex.PW-1/2 to Ex. PW-1/4 are postal receipts thereof bearing no. 2647, 2648 and 2649 respectively. Ex. PW-1/5 and Ex. PW-1/6 are the AD Cards. The photocopy of the document "booking slip" of Janta Flat with DDA is mark C which is Ex. PW-1/7 in the affidavit. Ex. PW-1/8 as mentioned in the affidavit is mark D. Ex.PW-1/9 as mentioned in the affidavit is mark as E. Ex. PW-1/10 to Ex.PW-1/25 are the photographs. Ex. PW-1/26 to Ex. PW-1/41 are the negatives of the photographs which have been exhibited as Ex.
No. 7938/16 Page no. 3 0f 12 PW-1/10 to Ex. PW-1/25. Ex. PW-1/42 and Ex. PW-1/43 are the post cards addressed in the name of Prahlad Plastics.
7. Vide order dated 11.01.2008, the then Ld. Civil Judge Sh. Gaurav Rao observed that both the matters bearing suit no. 866/06 and 867/06 be consolidated and the evidence recorded in suit no. 866/06 titled as "J.N. Pawan Kumar Vs. Tara Devi" shall be read in the present suit.
8. In the said suit no. 866/06 PW-2 Sh. Kewal Kishan was examined vide his affidavit Ex. PW-2/A who relied upon document Ex. PW-1/1. Both the plaintiff's witnesses were cross-examined on behalf of the defendant. Plainitiff's evidence then stood closed.
9. In defence evidence, Smt. Tara Devi was examined as DW-1, vide her affidavit Ex.D-1. She also relied upon documents Ex. DW-1/A to Ex. DW-1/K. She was cross-examined on behalf of the plaintiffs. Mohd. Ismail was examined as DW-2 who his affidavit Ex.DW-2/A. He was also cross-examined on behalf of plaintiffs. After consummation of the evidence from both these sides, matter was finally heard.
10. Ld. counsel for the plaintiffs has ambitiously argued that there is only one line cross-examination on the point of tenancy/payment of rent. Defendant has nowhere mentioned the exact period when the plaintiffs allegedly unauthorizedly entered into the property. It is further argued that the plaintiffs have filed number of documents wherein the given address of the property was mentioned which proves their possessary rights over the property. At the time of cross-examination of the defendant, she gave evasive responses and her stand in the evidence is contrary to No. 7938/16 Page no. 4 0f 12 the pleadings. Ld. Counsel for the plaintiffs also took this court to the cross- examination of DW-1 Smt. Tara Devi to highlight the discrepancies and also relied upon the following judgments:
(a) A. Satyanarayan Shah Vs. M. Yadgiri, 2002 X AD (SC) 129.
(b) Smt. Gomti Devi Vs. Sh. Om Prakash and Anr., DOD 23.02.1980.
(c) Bhagwat Singh and Anr. Vs. Mohan Lal And Anr, DOD 17.10.1985.
11. On the other hand, Ld. Counsel for defendant has clamoured for dismissal of the suit by alluding to the judgment of the then Civil Judge Sh.G.P. Singh dated 23.12.1999 wherein it was held that the plaintiffs were a permissive user in respect of the almirahs/boxes in the property. It is argued that since this issue has already been decided right upto the Ld. Appellate Court, therefore it debunks the claim of the plaintiffs that they are tenants in the property. It is further argued that when the property is under the control of the landlord, the permissive user of the same cannot be termed as tenants. Ld. counsel for defendant has relied upon following judgments:
(a) Rama Kant Sharma Vs. State (NCT of Delhi) & Anr., DOD 26.05.2005.
(b) Mariyam Vs. A. Vijayaranjan, DOD 16.10.2014.
(c) Subba Vs. Debiya, 2009 RLR 169 (SC).
(d) Rajbir Ranjan and Ors. Vs. R. Vijaykumar, DOD 14.10.2014.
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(e) Indu Vs. Sri Kishan & Anr., 234 (2016) DLT 36.
(f) Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai
Sarangpurwala, DOD 13.11.1987.
(g) Shashi Kapoor Vs. Subhash Kapoor & Ors., AIR 1972
DELHI 84.
Now I shall give my findings on the issues as below:
(1) Whether plaintiffs are tenants under the defendants as alleged?
OPP. &
(4) Whether suit in the present form is not maintainable? OPD.
Both these issues are dealt with together.
Plaintiff Sh.Prahlad Rai vide his affidavit Ex. PW-1/A testified in
consonance with the averments in the plaint. But it is pertinent to note that in the entire evidentiary affidavit, there is no whisper as to the terms and conditions on which tenancy was initiated, there is no word as to when the tenancy came into force and what was the rate of rent agreed between the parties. Mere bald averment that the property is being enjoyed for more than 25-30 years will not advance the cause of the plaintiffs. In his cross-
examination also, PW-1 fessed up that there is no rent agreement or rent receipts in regard to the boxes in his occupation.
In the instant case, the bone of contention is the usage of the almirahs/boxes installed in the property. Although, plaintiffs have claimed to have tenancy rights over the same however, the plaint as well as No. 7938/16 Page no. 6 0f 12 evidentiary affidavit of PW-1 and PW-2 are silent as to what kind of trade was being carried on by the plaintiffs, number of persons visiting the property etc. He also admitted that the boxes/almirahs have been placed in property consisting of one room and there are other like properties in the vicinity. He also stated that he was dealing with almirahs/boxes no. 32 to
35. It is also an admitted position that there are other such type of properties in the vicinity containing boxes/almirahs. It is generally seen that these can merely be used as space for keeping the articles on payment of some user charges. But at any rate, the user of these almirahs cannot be termed as tenants having any proprietary rights in respect of the same.
PW-1 has also deposed that earlier the keys of the outer shutter of the property used to remain with plaintiff no.1 Sh. Pawan Kumar and plaintiff no. 3 Mohd. Ummal before the death of the husband of defendant. But thereafter the defendant installed her own lock and refused to open the shutter. However, PW-1 has not clearly mentioned as to when the husband of the defendant expired and since when the defendant used to put her own lock on the shutter. It is not clear whether the plaintiffs after the death of the husband of the defendant at any point of time used their respective almirahs/boxes in the property.
On the contrary, to falsify the case of the plaintiffs that the keys of the locks on the shutter of the property were with plaintiffs, defendant confronted the witness PW-2 Sh.Kewal Kishan with his cross-examination in earlier suit, the relevant extract of which was admitted and is Ex. PW- 2/D-1. It is pellucid from this extract that PW-2 has categorically admitted that son of the defendant who opened the lock of the shutter with his own No. 7938/16 Page no. 7 0f 12 key in the morning and would close the shop with his own lock and keys in the evening. Although he had volunteered that before the year 1992 the key of the shop were in his custody but it is conceded that thereafter it was handed over to the defendant Smt. Tara Devi. Thus, it is established that for some time before filing the present suit, the property would be opened in the morning by or on behalf of the defendant and would be closed in the evening in the similar manner. As noted herein above that the plaintiffs have deliberately not made any express submissions as to what was the status of the usage of the property soon after the death of the husband of the defendant, perhaps for concealing this fact that after the death of the husband of the defendant, the keys of the shutter were handed over to the defendant and the shutter of the property would thereafter be operated upon by the defendant.
It is also the deposition of DW-1 that the wooden boxes were being used on the basis of daily charges of Rs. 10 per box and in respect of which a register was also maintained by her husband which is Ex. DW-1/C. although, the contents of this register have not been legally proved by the defendant but no counter suggestions were putforth to DW-1 on behalf of the plaintiffs in regard to this part of the testimony. DW-1 has also relied upon the judgment of the then Civil Judge Sh. G.P. Singh dated 23.12.1999 Ex. DW-1/J wherein it was held as regards issue no.2 that the said wooden boxes were being used on the basis of leave and license charges. In the judgment of Ld. Appellate court dated 07.01.2004 Ex. DW-1/K also, this finding was upheld and the appeal filed by the present plaintiffs was dismissed.
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One of the limbs of argument of Ld. Counsel for plaintiff is that
defendant has failed to ever as to when and how the plaintiffs came to be in unauthorized occupation of the property in question. This contention of Ld. Counsel seems to be attractive in the first blush in as much as defendant has failed to lead any evidence to prove this assertion. Nevertheless, it is for the plaintiffs to stand on their own legs by adducing cogent and reliable evidence and any weakness in the claim of the defendant would not be of any help to them.
It is also noted from the evidence part that PW-1 has filed certain documents i.e. Ex. PW-1/7 to Ex. PW-1/9 to proof his possession of the property however, an objection was raised with regard to mode of proof of these documents on behalf of defendant. It is clear that these documents have not been legally proved by adducing the evidence of author of these documents. Otherwise also, these documents even though containing the address of the property would not go on to prove that the plaintiffs were in occupation of the property as tenants.
Similarly, in the evidence part of the defendant also, plaintiff raised objection as to mode of proof of documents i.e. affidavit Ex. D-1 on the ground of the same beyond pleadings. However from the discussion herein above, it is manifest that no part of evidence of DW-1 has been relied upon which is beyond the pleadings.
Further, the judgments relied upon by Ld. Counsel for plaintiffs are distinguishable from the facts of the present case. The judgment in A. Satyanarayan Shah Vs. M. Yadgiri, the Hon'ble Supreme Court has No. 7938/16 Page no. 9 0f 12 spoken about the definition of building, which is not the issue in hand. The other two judgments are on distinct facts and are not applicable to the facts of the present case.
Above discussed circumstances collectively go on to falsify the case of the plaintiffs that they were tenants in respect of the almirahs/boxes in the property. Since plaintiffs were not the tenants in respect of the almirahs in the property but merely a permissive user, therefore defendant had all the rights to thwart the plaintiffs from using the almirahs/boxes in the property. The law with regard to the lease and license is also settled that in the case of lease, the exclusive possession of the property is given to the lessee whereas in case of license, limited rights are being given to the licensee to use the property without giving the exclusive possession of the same. The licensor remains in the overall control and management of the property.
In the light of this discussion, it is held that plaintiffs have failed to prove that they were tenants in respect of the almirahs/boxes in the property. The suit for mandatory injunction is thus held to be not maintainable. Therefore these issues are decided against the plaintiffs and in favour of the defendant.
(2) Whether plaintiffs have misrepresented, conceded and suppressed material facts from courts, if so to what effect? OPD.
The burden to prove this issue was upon defendant. However, there has been no specific deposition by the defendant that plaintiffs have suppressed or concealed any material facts from the court. Although, defendant in her evidentiary affidavit Ex. D-1 has denied the case set up by the plaintiffs, however, there is no specific No. 7938/16 Page no. 10 0f 12 deposition as to what facts have been misrepresented or concealed by the plaintiffs. Thus, this issue has not been proved by the defendant and is accordingly decided against her.
(3) Whether suit is barred by time?OPD.
The onus to prove this issue was also upon defendant but defendant has failed to lead any evidence to this effect. There is no averment at all how the suit of the plaintiff is barred by limitation. Thus, this issue is also decided against the defendant and in favour of the plaintiff.
(5) Whether counter claim of defendant is maintainable? OPD.
The counter claim of the defendant is in respect of issuance of perpetual injunction restraining the plaintiffs from interfering in any manner in the possession of the defendant over the almirahs/boxes in the property in question. However, it is noted that the defendant has not led any evidence in this respect. There is no specific averment as to when and in what manner defendant has been threatened by the plaintiffs for dispossession from the property. The evidentiary affidavit Ex.D-1 of the defendant is bereft of any assertions so as to warrant the grant of perpetual injunction in favour of the defendant. Thus, this issue is also decided against the defendant.
(6) Relief.
In the light of the above discussions, plaintiffs have failed to establish that they were tenants in respect of the almirahs/boxes installed in the property under the defendant and are thus not entitled to any relief of Mandatory or Permanent No. 7938/16 Page no. 11 0f 12 injunction in respect of the property in question. Resultantly, the suit of the plaintiffs stand dismissed. No orders as to cost. Decree sheet be drawn up.
Digitally signed File be consigned to record room. NAVJEET
BUDHIRAJA
by NAVJEET
BUDHIRAJA
Date: 2018.03.16
16:25:54 +0530
Announced in the open court on (NAVJEET BUDHIRAJA)
16.03.2018 ACJ/CCJ/ARC(W)/16.03.2018
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