Delhi District Court
(2). Shri B.K. Gupta vs Shri B.P. Bansal on 25 October, 2018
IN THE COURT OF SH. MANISH GUPTA,
ADJ04, NORTHWEST, ROHINI COURTS, DELHI.
CS No. 575222/16
(1). Mrs. Ranjana Gupta
W/o Shri B.K. Gupta
R/o B10, Ashoka Niketan,
Delhi110092.
(2). Shri B.K. Gupta
S/o Late Shri Shiv Charan Gupta
R/o B10, Ashoka Niketan,
Delhi110092. ................ Plaintiffs
Versus
Shri B.P. Bansal
S/o Late Shri Hans Raj Bansal
R/o C148, Pundrik Vihar,
Pitampura, Delhi110034 ................. Defendant
Date of filing of the suit: 20.11.2006
Date of Judgment : 25.10.2018
JUDGEMENT
(1). This is a suit for Recovery of Possession, Permanent and Mandatory Injunction and Damages/Mesne Profits. It is relevant to note that the present suit was filed before Hon'ble High Court of Delhi and the same was received by transfer to this Court in view of the order dated 11.01.2016 passed by Ld. Joint Registrar (Judicial). As per the said order, the case was transferred to CS No. 575222/16 Page No. 1/26 Ranjana Gupta & Anr. V/s B.P. Bansal District Courts, NorthWest, Delhi.
(2). In brief the relevant facts of the case as mentioned in the amended plaint are that the plaintiff no. 1 is the owner of the suit property i.e. Flat bearing No. C148, Pundrik Vihar, Pitampura, Delhi110034. Plaintiff no. 2 is husband of plaintiff no. 1 and was allotted the flat originally by Pundrik Cooperative Group Housing Society Ltd. The plaintiff no. 2 has been impleaded with plaintiff no. 1 as being authorised by plaintiff no. 1 and who alongwith plaintiff no. 1 granted licence of the suit property to the defendant at his request, orally, only as a permissive licensee without any monetary consideration and it is also averred that defendant is not a tenant. The said permissive licence was granted in April, 1995.
(3). It is also mentioned that defendant is friend of brotherinlaw of plaintiff no. 2. Said brotherinlaw is namely Surender Mohan Garg. It is alleged that the relations between the parties herein had become fairly proximate over the period of time.
(4). It is further mentioned that the plaintiff no. 2 transferred the flat in question to his mother Smt. Barfi Devi, who has since expired. Smt. Barfi Devi during her life time got plaintiff no. 1 nominated as her nominee in the records of the Society.
CS No. 575222/16 Page No. 2/26Ranjana Gupta & Anr. V/s B.P. Bansal (5). It is further mentioned that Smt. Barfi Devi, out of love and affection, willed the suit property to the plaintiff no. 1 Mrs. Ranjana Gupta. It is mentioned that Mrs. Barfi Devi expired on 04.01.1995.
(6). It is further mentioned that the Group Housing Society vide communication dated 20.09.2005 confirmed the transfer and ownership of the suit property in the name of plaintiff no. 1. It is also alleged that the electricity bill dated 26.07.2006 is in the name of plaintiff no. 2. It is also mentioned that plaintiff no. 1 has become the sole owner of the suit property.
(7). It is further mentioned that in April, 1995, the plaintiffs were residing at B10, Ashoka Niketan, Delhi110092 and the defendant was in the process of locating a residential flat and upon learning that, the brotherinlaw of plaintiff no. 2 requested the plaintiffs to allow the use of said flat for nine months by the defendant and accordingly the plaintiffs offered the subject flat solely on licence basis as permissive user and without any monetary consideration, to the defendant. The flat was to be vacated as and when so demanded by plaintiffs, even by oral request. It is also mentioned in the plaint that there would be no consideration payable by the defendant for the use of the flat on account of close relations between the parties and the defendant agreed to it.
CS No. 575222/16 Page No. 3/26Ranjana Gupta & Anr. V/s B.P. Bansal (8). There was no written document due to proximate relations between the parties. It is also mentioned that the keys of the locks of the suit property were also held by the plaintiffs at all times and they had access to every part of the suit property at all times.
(9). It is further mentioned that the permission to use the flat by the defendant was given by plaintiffs only for a period of nine months and the same was extended from time to time as per requests of the defendant.
(10). It is further mentioned that the defendant wants to manipulate the title and ownership of suit property in his favour as learnt by the plaintiffs. It is further mentioned that on 01.10.2006, the plaintiffs orally terminated the licence as permissive user which was granted to the defendant and called upon the defendant to give the vacant possession of the suit property to the plaintiffs. The defendant promised to vacate the same immediately after Diwali which fell on 21.10.2006. The plaintiffs accordingly extended the period of notice to 31.10.2006 and asked the defendant to vacate the suit property by that date. The defendant failed to keep his promise and refused to vacate the suit property.
CS No. 575222/16 Page No. 4/26Ranjana Gupta & Anr. V/s B.P. Bansal (11). It is further mentioned that the plaintiffs are entitled to damages/ mesne profits @ Rs. 7,500/ per month commencing from 01.11.2006 till disposal of the suit. It is also mentioned that on 05.11.2006 the plaintiffs came to know from local property dealers that defendant is seeking to alienate the suit property.
In this background, the plaintiffs have filed the present suit with prayer to pass an order/direction of Mandatory Injunction thereby directing the defendant to handover the vacant possession of the suit property to the plaintiffs and to remove his articles from said property. In the alternative, the plaintiffs have prayed for decree of Possession against the defendant in respect of suit property bearing no. C148, Pundrik Vihar, Pitampura, Delhi110034. Plaintiffs have also prayed for Permanent Injunction thereby restraining the defendant from selling, alienating, damaging, wasting, defacing, transferring or creating any third party right in the suit property. Plaintiffs have also prayed for decree of Mesne Profits/Damages @ Rs. 7,500/ per month from the date of filing the present suit till handing over of possession of suit property to the plaintiffs. Plaintiffs have also prayed for interest @ 24% per annum on the amount of damages/ mesne profits which may be awarded. Lastly, the plaintiffs have prayed for costs of suit.
(12). The defendant has filed written statement to the amended CS No. 575222/16 Page No. 5/26 Ranjana Gupta & Anr. V/s B.P. Bansal plaint wherein it is mentioned that the suit is bad for misjoinder of plaintiff no. 2 and nonjoinder of Pundrik Vihar Cooperative Group Housing Society Ltd.
(13). It is also mentioned in WS that the defendant is tenant in suit property at the rate of rent of Rs. 1,665/ per month. The defendant has stated that he knew plaintiffs through Shri Surender Mohan Garg who is brotherinlaw of plaintiff no. 2. It is also alleged that defendant knew Shri Surender Mohan Garg since 1968 being resident of Bhatinda, Punjab and both were close friends and on family terms. It is also alleged in WS that the friendship grew more closer and in 1979, defendant was married to the daughter of the first cousin of said Shri Surender Mohan Garg and plaintiff no. 1. It is further mentioned in WS that during March/ April, 1995 when the defendant was residing at Dehradun and executing MES Contract Work, he decided to shift to Delhi and contacted Shri Surender Mohan Garg who was settled in Delhi, for help and guidance. It is also alleged that Mr. Garg invited the defendant to handle his custom liaison business in partnership/ profit sharing basis in the name and style of M/s. Manu Cargo Services alongwith one Mr. P.L. Mehta. Mr. Garg also assured to arrange a flat on rent belonging to his brotherin law i.e. plaintiff no. 2. At that time suit property was in possession of Shri Surender Mohan Garg being used for stay of his employee.
CS No. 575222/16 Page No. 6/26Ranjana Gupta & Anr. V/s B.P. Bansal The plaintiff no. 2 inducted the defendant as tenant on oral agreement on monthly rent of Rs. 1250/ inclusive of Society Maintenance charges and excluding electricity charges with 10% increase in rent every three years on mutual consent.
(14). It is further alleged in WS that defendant was paying maintenance charges at the rate of Rs. 100/ per month to the Pundrik Vihar Cooperative Group Housing Society Ltd. and remaining amount was regularly paid to the plaintiff no. 2 in cash for which no cash receipt was ever demanded by defendant or issued to the defendant, due to cordial relations. It is further alleged that the rent including maintenance charges were enhanced from time to time and last rent was enhanced to Rs. 1,665/ per month including maintenance charges of Rs. 300/. The defendant has stated that he paid the rent and the maintenance charges upto December, 2006. It is further alleged that after filing the present suit, the plaintiff stopped accepting rent in cash from defendant and, therefore, defendant used to tender Rs. 1,665/ per month to plaintiff no. 2 by money order which was regularly refused by plaintiff no. 2. It is further alleged that after the said refusal the defendant deposited the rent in the court of Rent Controller for the period January, 2007 onwards till December, 2009 through different applications for deposit of rent.
CS No. 575222/16 Page No. 7/26Ranjana Gupta & Anr. V/s B.P. Bansal (15). It is further alleged in WS that defendant settled his own business with someone else and by September, 1998, some serious disputes arose between defendant and Shri Surender Mohan Garg and subsequently the defendant approached plaintiff no. 2 to persuade Mr. Garg to settle the accounts but plaintiff no. 2 flatly refused to intervene and hence, the relation between the defendant and the plaintiff no. 2 and Shri Surender Mohan Garg became sour and tense and plaintiffs concocted story to evict the defendant where the defendant ever since May, 1995 is residing. It is also alleged that plaintiffs attempted to forcibly dispossess the defendant on 22.01.2006 for which complaint dated 23.01.2006 was lodged with the police.
(16). The defendant has denied that on 01.10.2006, the plaintiffs orally terminated the licence as permissive user and called upon the defendant to handover the vacant possession of the suit property to them. Defendant has alleged himself to be a tenant in the suit property of the plaintiff. Defendant has prayed for dismissal of the present suit filed by the plaintiffs.
(17). It is relevant to note that on 27.11.2006 it was ordered that defendant would maintain statusquo in respect of ownership and possession qua the suit property. The said interim order dated 27.11.2006 was made absolute till the pendency of the suit, vide CS No. 575222/16 Page No. 8/26 Ranjana Gupta & Anr. V/s B.P. Bansal order dated 26.10.2010.
(18). On the basis of the pleadings the following issues were framed on 26.10.2010:
(a). Whether the suit is liable to be rejected under Order VII Rule 11(a) CPC? OPD
(b). Whether the suit is bad for misjoinder/ nonjoinder of the necessary parties? OPD
(c). Whether the defendant was inducted as a licensee which was terminated vide notice dated 01.10.2006, if so, to what effect? OPD
(d). Whether the defendant is a tenant in respect of the suit premises, if so, at what rate and to what effect? OPD
(e). If the issue no. (c) is decided in affirmative and issue no. (d) is decided in negative, whether the plaintiff is entitled to recovery of possession of the suit premises from the defendant?OPP
(f). If the issue no. (e) is decided in affirmative, whether the plaintiff is entitled to damages/ mesne profit from the defendant, if so, for what period and at what rate?OPP
(g). Whether the plaintiff is entitled to pendente lite and future interest @ 25% as prayed for?
(h). Relief.
It is relevant to note that as per order dated 27.01.2015, the CS No. 575222/16 Page No. 9/26 Ranjana Gupta & Anr. V/s B.P. Bansal onus of proof of Issue no. 1(c) framed on 26.10.2010 shall be on the plaintiff instead of the defendant.
(19). I have already heard final arguments and perused the record. The plaintiffs have examined six witnesses and defendant has examined three witnesses. Now I shall give my issuewise findings which are as under.
(20). Issue no. (a): Whether the suit is liable to be rejected under Order VII Rule 11(a) CPC? OPD The onus to prove this Issue was upon the defendant. The provisions of Order VII Rule 11 (a) CPC are regarding the disclosure of the cause of action. For that purpose the plaint has to be looked into. I have carefully examined the pleadings. The plaint very well discloses the cause of action in favour of the plaintiffs and against the defendant. In such circumstances the plaint cannot be rejected under Order VII Rule 11 (a) CPC as it discloses a cause of action. Accordingly, this Issue is decided against the defendant and in favour of plaintiffs.
(21). Issue no. (b):Whether the suit is bad for misjoinder/ nonjoinder of the necessary parties? OPD The onus to prove this Issue was upon the defendant. It is CS No. 575222/16 Page No. 10/26 Ranjana Gupta & Anr. V/s B.P. Bansal relevant to note that the defendant has examined himself as DW
1. He was also crossexamined at length. In the cross examination he admitted that as on date the suit property is in the name of plaintiff no. 1 by way of Conveyance Deed. He also stated that he knows it from the record of the plaintiff that the suit property has been bequeathed by Smt. Barfi Devi in favour of plaintiff no. 1 by way of a Will. The defendant has alleged himself to be a tenant of plaintiff. The defendant cannot challenge the title of the plaintiff in the suit property as per Section 116 of the Indian Evidence Act, 1872. The said Section relates to Estoppel of tenant; and of licensee of person in possession. It is also relevant to note that as per document Ex. DW1/3 which is the police complaint dated 23.01.2006, the defendant has alleged therein that Flat no. C148, Pundrik Vihar is owned by one Dr. B.K. Gupta. The plaintiff no. 2 has not been misjoined in this case. He is the husband of plaintiff no. 1. The facts of the case as detailed before clarifies that plaintiff no. 2 is also a necessary party in this case. Even otherwise, the joining of plaintiff no. 2 as party in this case is not fatal to the case of the plaintiff. Moreover, the Pundrik Vihar Cooperative Group Housing Society Ltd. is not a necessary party in this case. Suit is not bad for its nonjoinder. The plaintiff inducted the defendant in the suit property owned by the plaintiff. PW5 Smt. Malti from the office of MCD, Pitampura Zone, Delhi stated that she is a summoned witness and had brought the CS No. 575222/16 Page No. 11/26 Ranjana Gupta & Anr. V/s B.P. Bansal summoned record i.e. Form CI1 dated 06.09.2006 pertaining to mutation of Flat no. C148, Pundrik Vihar, CGHS in the name of plaintiff no. 1 Mrs. Ranjana Gupta. Said mutation Form is Ex. PW 1/6. The letter dated 04.10.2006 thereby communicating the mutation in the name of Mrs. Ranjana Gupta and issued by MCD is Ex. PW1/7. The said mutation is with respect to suit property. It is relevant to note that the present suit has been filed on 20.11.2006. PW6 Shri Suresh Pal Singla, Joint Secretary, Pundrik Cooperative Group Housing Society, Pitampura, Delhi interalia stated that the office copy of letter dated 20.09.2005 issued by the Society for transferring the share/ ownership/ membership in the name of Smt. Ranjana Gupta is already on record which is Ex. PW1/5. In view of above facts and circumstances and reasons given, the present Issue is decided against the defendant and in favour of the plaintiffs.
(22). Issue no. (c): Whether the defendant was inducted as a licensee which was terminated vide notice dated 01.10.2006, if so, to what effect? OPD The onus to prove this Issue was upon the plaintiff instead of defendant as clarified by order dated 27.01.2015 of Hon'ble High Court. The plaintiff no.1 has examined herself as PW1. Her evidence by affidavit is Ex. PW1/A. In crossexamination she stated that prior to the defendant's induction into the suit property, CS No. 575222/16 Page No. 12/26 Ranjana Gupta & Anr. V/s B.P. Bansal none resided there. She denied the suggestion that the employees of Surender Mohan Garg had put the defendant into the possession of the suit property. PW1 stated that she knows defendant since 1969 and she met him since he is friend of her brother who was studying in Bhatinda and defendant was also resident of Bhatinda. She denied the suggestion that she was not directly involved and further denied that house was given on rent. She stated that she handover the physical possession of the suit property to the defendant in April or May, 1995. She also deposed that the house was vacant since 1986 till it was occupied by the defendant in the year 1995. She stated that it could be true that defendant was paying maintenance charges to the Cooperative Society during 1995 to December, 2006. She volunteered that she also paid it at times and it was because the defendant himself volunteered to pay the charges as he remained in occupation. She deposed that no written terms and conditions were entered as defendant happened to be distant relative. She stated that she do not know whether there was no speaking terms between defendant and S.M. Garg. She also stated in cross examination that there was no scope of adjustment of the expenses towards white washing and repairs from the rent as the property was never given on rent. She denied the suggestion that when dispute arose, defendant paid rent of Rs. 1665/ through moneyorder to her and that she rejected. She volunteered that CS No. 575222/16 Page No. 13/26 Ranjana Gupta & Anr. V/s B.P. Bansal property was never given on rent. She further deposed that there was no misunderstanding or quarrels during the period of eleven years between defendant and plaintiffs.
(23). Plaintiff no. 2 examined himself as PW2 and filed his evidence by affidavit which is Ex. PW2/A. In crossexamination he deposed that he has filed the suit as plaintiff no. 2 since the electricity connection in suit property is in his name. He stated that Shri Surender Mohan Garg is his brotherinlaw. He denied the suggestion that employees of Mr. Garg had given the possession of the suit property to the defendant. He further stated that defendant was married in May, 1995 and defendant is his soninlaw in distant relation. The relationship between the parties is not in dispute so far as the fact that the defendant had married with the daughter of cousin of plaintiff no. 1 is concerned. The only dispute is whether the defendant is tenant or only a permissive user of the premises without any consideration. PW2 deposed that possession of suit property was given to the defendant by his wife i.e. PW1. PW2 admitted that he had never dealt with defendant and only his wife used to deal with him. He denied the suggestion that the defendant used to pay the rent to him in his clinic. He admitted that the defendant had been depositing some money as rent before Rent Controller. He volunteered that they had also filed objections and further stated CS No. 575222/16 Page No. 14/26 Ranjana Gupta & Anr. V/s B.P. Bansal that question of payment of rent does not arise since defendant is not their tenant. He denied the suggestion that last paid rent was Rs. 1,665/. He admitted that his wife refused the money orders sent by the defendant from time to time on the pretext of payment of rent. PW2 volunteered that it was refused as defendant was never their tenant. He also denied the suggestion that defendant did not promise to vacate the premises on 21.10.2006. He also denied that they had forcibly tried to evict the defendant from suit property and stated that they have no information regarding lodging of any complaint by the defendant to that effect. He denied the suggestion that the defendant is not an unauthorised occupant. He also denied the suggestion that they are not entitled to take possession or occupation charges.
(24). PW3 Shri Surender Mohan Garg filed his evidence by affidavit which is Ex. PW3/A. In the said affidavit it is stated in para 4 that in 1979 the defendant married the daughter of his first cousin (i.e. the cousin of Shri Surender Mohan Garg). In para 5 of the said affidavit he has stated that plaintiff no. 1 provided the premises only on a permissive user basis and without any monetary consideration to the defendant. It is also stated therein that it was made clear to defendant that the defendant would vacate the premises on demand or oral request being made for the same. It is also specified therein that plaintiff no. 1 specifically CS No. 575222/16 Page No. 15/26 Ranjana Gupta & Anr. V/s B.P. Bansal enjoined upon defendant and insisted that the locks of the property were to be retained as they were and not to be changed and that one set of keys would remain with her at all times. It is further mentioned in said affidavit that defendant agreed to the aforesaid permissive user. He also stated in the affidavit that the defendant stopped working with him some time in 1997 but on account of proximity in relations, defendant continued living in the said premises as by then he had developed a close relationship with the plaintiffs also. PW3 was also crossexamined wherein he stated that the suit property is in the name of his sister Mrs. Ranjana Gupta. He further stated that he introduced the defendant to the plaintiff Mrs. Ranjana Gupta in the year 1995. He stated that he knows defendant since 1968. He admitted that he and the defendant were living in Bhatinda at that time where he got acquainted with the defendant. He denied the suggestion that he invited the defendant to Delhi to join him in business i.e. M/s. Manu Cargo Services which he was running. He further denied the suggestion that from April, 1995 to December, 1995, the defendant worked with him in the abovesaid business as a partner. He further denied the suggestion that the defendant worked for eight months for him and M/s Manu Cargo Services and he did not pay any money to him for the work done. This suggestion regarding not paying the money to defendant is in contradiction to the prior suggestion of the defendant wherein it CS No. 575222/16 Page No. 16/26 Ranjana Gupta & Anr. V/s B.P. Bansal was suggested that defendant worked with Mr. Garg as a partner in the business. He also denied that he arranged suit property on rent to the defendant. He volunteered that he only allowed him to stay for few months in the suit property. He stated that plaintiffs have given notice to the defendant for vacating the suit premises and further stated that he has no idea whether any legal notice was issued by plaintiffs to defendant. He also denied the suggestion that the defendant was tenant at initial rate of rent of Rs. 1250/ per month which was raised to Rs. 1650/ per month thereafter. He also denied the suggestion that the plaintiffs are not entitled for any damages/ mesne profits. He denied the suggestion that he is deposing falsely in favour of his sister as his relations are strained with defendant. He also stated that he do not know whether the defendant can afford a rented accommodation or not.
(25). The defendant examined himself as DW1 and has filed his evidence by affidavit which is Ex. DW1/A. He was also cross examined. It is relevant to note that in para no. 8 of the said affidavit the defendant has stated that he knows plaintiffs through Mr. Surender Mohan Garg, brotherinlaw of plaintiff no. 2. It is also stated therein that Mr. Surender Mohan Garg is known to him since 1968 being residents of Bhatinda, Punjab as both were close friends and on family terms. It is further stated in the said CS No. 575222/16 Page No. 17/26 Ranjana Gupta & Anr. V/s B.P. Bansal para that the defendant belongs to high status family and is known for his moral values and utmost honesty. In crossexamination DW1 deposed that he is post graduate in Physics and he was married in February, 1979 with the daughter of the cousin of plaintiff no. 1. He stated that electricity connection in suit property is in the name of plaintiff no. 2. He stated that by "high status" he means that he owns many properties and is having high relations and well settled businesses and he was sought by the companies. He admitted that he has not filed any document in support of his contentions regarding "high status". He denied the suggestion that he is not enjoying "high status". He admitted that an FIR No. 928/1998, under Section 420/406/120B IPC was registered at PS Okhla Industrial Area against him and he remained in judicial custody in the said case FIR. He deposed that said case FIR was settled and he paid Rs. 60,000/ to the complainant for settlement in the said case FIR.
The averments of defendant regarding " high status" as mentioned in the affidavit filed by the defendant are totally in contradiction to the admission of the defendant as highlighted above. Defendant admitted that the document Ex. DW1/2 which is the acknowledgement signed by police officials does not bear the signatures of any of the plaintiffs. The said acknowledgement is purported to be regarding the police verification of the occupant of the property let out by plaintiff allegedly. Defendant denied the CS No. 575222/16 Page No. 18/26 Ranjana Gupta & Anr. V/s B.P. Bansal suggestion that the suit property was never given on rent to him by any of the plaintiffs or that the same was given on licence basis to him free of charge as he was working with Shri Surender Mohan who is the brother of the plaintiff no. 1. It is most important to note that in crossexamination the defendant admitted that Smt. Ranjana Gupta or her husband has never received any rent from him. (Here it is relevant to note that the said crossexamination of defendant was conducted on 03.03.2017 and the defendant subsequently filed an application u/s 151 CPC on 07.09.2017 with prayer to correct the portion of the evidence of the defendant recorded on 03.03.2017. Defendant wanted that the evidence be read as follows: " it is incorrect that Smt. Ranjana Gupta or her husband has never received any rent from me". Said application of the defendant was dismissed with cost of Rs. 10,000/ and on request and in the interest of justice the cost was reduced to Rs. 8,000/ only.). He volunteered that he sent the rent to them but they did not accept. He stated that he paid house tax once regarding suit property and stated that there is no receipt of house tax paid by him on record and he is not having it. He admitted that premises were given to him for residential purpose. He admitted that he is doing commercial activities also in the said premises. He volunteered that he is doing share trading business from said premises. He also stated that he opened a bank account in the name of A.V. Enterprises but he did not run any business under CS No. 575222/16 Page No. 19/26 Ranjana Gupta & Anr. V/s B.P. Bansal the name and style of A.V. Enterprises. Subsequently, he volunteered that he may have done the business under the name of A.V. Enterprises for some time. He stated that he had seen the copy to copy of one bill dated 24.01.1997 raised by A.V. Enterprises which bears his signatures as proprietor. He admitted that the correct copy of the same is Ex. DW1/P1. The copy to copy of FIR No. 928/98, PS Okhla Industrial Area is Ex. DW1/P2. He further deposed that there was no written partnership deed between him and Shri Surender Mohan. He admitted the suggestion that there is no document on record to show that some business dispute arose between him and Shri Surender Mohan. He stated that he has not filed any document on record to show that Shri B.K. Gupta was landlord of suit premises at the time when he i.e. the defendant came in the possession of said premises. The defendant admitted in crossexamination that all the rent petitions were filed after the present suit was filed before Hon'ble High Court of Delhi. He denied the suggestion that he has cooked up a false story that he was inducted as tenant by plaintiff no. 2 in the suit property. He denied the suggestion that he was inducted in suit property as permissive licensee only by plaintiff no. 1.
(26). The defendant also examined DW2 ASI Ramesh Kumar, PS Subhash Place, Delhi who stated that he has not brought the CS No. 575222/16 Page No. 20/26 Ranjana Gupta & Anr. V/s B.P. Bansal summoned record. He stated that complaint register upto 2011 have been destroyed being old record. DW3 Shri K.C. Bansal, Joint Treasurer in Pundrik Cooperative Group Housing Society Ltd. deposed that they have destroyed the records of the maintenance receipt prior to 2004 and hence they do not have the same. DW2 and DW3 were of no help to the defendant as per their testimonies.
(27). In view of the detailed evidence as discussed above while dealing the Issue no. (c) under consideration, it is clear that the defendant was not inducted as a tenant in suit property. He was inducted as a licensee without any consideration. There was no written document regarding induction of defendant in suit property. The defendant has tried to manipulate that he is having "high status" and he is of utmost honesty. Admittedly, he was involved in a cheating case. He paid the money to complainant for settlement of criminal case against him. It is not out of place to mention here that the defendant has himself relied upon the document Ex. DW1/3 which is a police complaint dated 23.01.2006 wherein the defendant himself has stated that Shri B.K. Gupta is the owner of Flat No. C148, Pundrik Vihar. Defendant has stated that he i.e. B.P. Bansal has been living at Flat no. C148, Pundrik Vihar since last 12 years. This is mentioned in Ex. DW1/3. It is relevant to note that the defendant CS No. 575222/16 Page No. 21/26 Ranjana Gupta & Anr. V/s B.P. Bansal has utterly failed to mention therein that he is residing in the said flat as a tenant. In view of the overall facts and circumstances of the case and reasons given and observations made and also in the light of the evidence discussed above in detail, it is clear that defendant was inducted as licensee which was terminated on 01.10.2006. Said licence was due to the relationship between the parties and purely without any consideration. Consequently, the defendant has to vacate the suit property and handover its possession to the plaintiff no. 1. The present Issue is accordingly decided in favour of plaintiffs and against the defendant.
(28). Issue no. (d) :Whether the defendant is a tenant in respect of the suit premises, if so, at what rate and to what effect? OPD The onus to prove this issue was upon the defendant. This issue is related to Issue no. (c) above. The findings on the Issue no. (c) may be read as part and parcel of the findings on this Issue also. It has already been held above that the defendant was inducted as licensee. In view of the said findings it is held that defendant is not a tenant in respect of suit premises. Accordingly, the present issue is decided against the defendant and in favour of the plaintiff.
(29). Issue no. (e):If the issue no. (c) is decided in affirmative CS No. 575222/16 Page No. 22/26 Ranjana Gupta & Anr. V/s B.P. Bansal and issue no. (d) is decided in negative, whether the plaintiff is entitled to recovery of possession of the suit premises from the defendant?OPP In view of the findings given on Issue no. (c) and (d) as above, the plaintiff is entitled to recovery of possession of the suit premises from the defendant. The present issue is accordingly decided in favour of plaintiff and against the defendant.
(30). Issue no. (f):If the issue no. (e) is decided in affirmative, whether the plaintiff is entitled to damages/ mesne profit from the defendant, if so, for what period and at what rate?OPP The onus to prove this issue was upon the plaintiff. Plaintiff examined PW4 Shri R.K. Chhikara, UDC from the office of Sub Registrar, Pitampura, Delhi. The said witness brought the summoned record pertaining to lease deed dated 17.08.2009 which is a registered document. The certified copy of the same is already Ex. PW1/8. Said document is bearing registration no. 7318 in Additional Book No. 1, Volume no. 2365, at pages 119 to
123. In view of the findings on Issue no. (e) as mentioned above, the plaintiff is entitled for damages/ mesne profit from the defendant. The said document i.e. PW1/8 is regarding one HIG Flat on First Floor in Dhudial Cooperative Group Housing Society Ltd., Pitampura, Delhi34. The said document is reflecting the CS No. 575222/16 Page No. 23/26 Ranjana Gupta & Anr. V/s B.P. Bansal lease amount of Rs. 14,500/ per month. The plaintiff has not examined the executant of the said lease deed. However, the judicial notice can be taken regarding the prevailing market rate of rent. The suit property is situated in Pitampura, Delhi. During arguments it was submitted that it is on Ground Floor and having two rooms and also drawing room. The present suit has been filed in the year 2006. In view of the detailed facts and circumstances and evidence on record, I award a sum of Rs. 5,000/ (Rupees Five Thousand Only) per month towards damages/ mesne profits/ use and occupation charges in favour of plaintiff no. 1 and against the defendant, payable w.e.f. the date of filing the present suit i.e. 20.11.2006 till the date of this order and further damages/ mesne profits/ use and occupation charges @ Rs. 7,000/ (Rupees Seven Thousand Only) per month from the date of this order till handing over the vacant, peaceful physical possession of the suit property by defendant to plaintiff no. 1. Plaintiff is directed to furnish the requisite court fees on the amount of damages/ mesne profits/ use and occupation charges within a period of three weeks from today. The present Issue is accordingly disposed off in favour of plaintiff and against the defendant.
(31). Issue no. (g): Whether the plaintiff is entitled to pendente lite and future interest @ 25% as prayed for?
CS No. 575222/16 Page No. 24/26Ranjana Gupta & Anr. V/s B.P. Bansal The plaintiff examined PW3 Shri Surender Mohan Garg as witness in this case who stated in the crossexamination that there was no agreement for payment of any interest on mesne profits. In view of the material on record and the findings already given on other issues, the plaintiff is not entitled for interest as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
(32). Issue (h): Relief: In view of the detailed findings given above, the present suit is hereby decreed in favour of the plaintiffs and against the defendant and the following reliefs are awarded:
(i). Decree of Possession w.r.t. suit property i.e. Flat No. C148, Pundrik Vihar, Pitampura, Delhi110034.
(ii). Decree of recovery of a sum of Rs. 5,000/ (Rupees Five Thousand Only) per month towards damages/ mesne profits/ use and occupation charges in favour of plaintiff no. 1 and against the defendant, payable w.e.f. the date of filing the present suit i.e. 20.11.2006 till the date of this order and further damages/ mesne profits/ use and occupation charges @ Rs. 7,000/ (Rupees Seven Thousand Only) per month from the date of this order till handing over the vacant, peaceful physical possession of the suit property by defendant to plaintiff no. 1. Plaintiff is directed to furnish the requisite court fees on the amount of damages/ mesne profits/ use and occupation charges within a period of three weeks from today.
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(iii). Costs of the suit.
In the facts and circumstances of the case and in the interest of justice, the defendant his agents, attorneys, assignees, representatives, servants etc. are hereby permanently restrained from creating any third party right, title or interest in the suit property.
Decree sheet be prepared accordingly after furnishing of the requisite court fees by the plaintiffs as directed above.
File be consigned to record room after completing the necessary formalities.
Digitally signed by MANISH MANISH GUPTA
GUPTA Date: 2018.10.25
20:23:14 +0530
Passed & announced in (Manish Gupta)
the open court today. ADJ04(NW)/Rohini Courts
Delhi/25.10.2018.
CS No. 575222/16 Page No. 26/26
Ranjana Gupta & Anr. V/s B.P. Bansal