Delhi District Court
Mrs. Raisa Begum vs Sh. Abdul Rashid on 15 January, 2014
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 404/11
Mrs. Raisa Begum
W/o Late Sh. Mirza Ghulam Jilani,
R/o 5379, First Floor, Kucha Rehman,
Chandni Chowk, Delhi110006.
.......... Plaintiff
VERSUS
Sh. Abdul Rashid,
S/o Sh. Achchey Sahib,
5379, Gali Anwar Wali,
Kucha Rehman, Chandni Chowk,
Delhi110006.
.........Defendant
SUIT FOR RECOVERY OF POSSESSION AND RECOVERY OF
PENDENTILITE AND FUTURE INTEREST DAMAGES/MESNE
PROFITS AND PERMANENT INJUNCTION
Date of institution : 17.08.2010
Date for reserving for orders : 13.01.2014
Date of decision : 15.01.2014
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 1/29 the plaintiff against the defendant seeking following reliefs: a. Decree of possession of one shop on the ground floor in property bearing no. 5379, Kucha Rehman, Chandni Chowk, Delhi110006 as shown in red color in the site plan annexed (herein after wards referred as suit property).
b. Decree U/o XX rule 12 CPC in favour of the plaintiff and against the defendant for recovery of damages/mesne profits @ 6,000/ per month or after inquiry at such rates as the court may deemed fit and proper.
c. Pendentelite and and future interest on the aforesaid amount @ 15% p.a. d. Permanent injunction restraining the defendant from sub letting, assigning, parting with the possession of the suit property or from creating third party interest qua the suit property.
2. Briefly stated the facts as averred by the plaintiff in the plaint which are necessary for the disposal of the present suit are as follows: a. The plaintiff is the owner of the southern portion of property bearing no. 5377 to 5379, Kucha Rehman, Chandni Chowk, Delhi110006 which is mutated in the records of MCD in the name of the plaintiff.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 2/29 b. In the year 2005, the defendant approached the plaintiff to let out the suit property for temporary purpose for storing the stitched garments/clothes and other allied items.
c. The plaintiff had let out the suit property to the defendant on the monthly rent of Rs. 2,500/ per month exclusive of electricity which is required to be payable by the defendant as per the actual consumption in accordance with the sub meter reading.
d. On expiry of approximately 2 years in January 2007, the plaintiff required the defendant to vacate the suit property but the defendant showed his inability to vacate the same and requested for some more time and the plaintiff had permitted the defendant to occupy the suit property and mutually the rent was enhanced to Rs. 3,200/ per month.
e. The plaintiff in the month of January 2009 required the defendant to vacate the suit property but the defendant again requested for some more time stating that he is looking for some alternative place.
f. Despite persistent demands, the defendant failed to vacate the suit property and in order to harass the plaintiff, the defendant had filed frivolous suit against the son of the plaintiff bearing CS No. Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 3/29 391/2009 titled as Abdul Rashid Vs. Mehmood Elahi claiming himself to be tenant under Sh. Mehmood Elahi, son of the plaintiff @ monthly rent of Rs. 800/ per month inclusive of electricity charges.
g. The son of the plaintiff filed the written statement in the said suit thereby denying the allegations contained in the plaint and specifically stating that the plaintiff herein is the landlord/owner of the suit property and he has nothing to do with the suit property.
h. The defendant had filed the replication in the said suit and in the same, he had specifically denied the ownership of the plaintiff as well as relationship of the landlord and tenant between the parties qua the suit property.
i. The plaintiff had send a legal notice dated 22.01.2010 thereby enhancing the rent as per section 6(A) of Delhi Rent Control Act from Rs. 3,200/ per month to 3,520/ per month w. e. f. 01.03.2010 and further requiring the defendant to pay the arrears of the rent.
j. In reply to the said notice, the defendant again denied the relationship of landlord and tenant between the parties vide reply dated 11.02.2010 and also the ownership of the plaintiff qua the suit property.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 4/29 k. The plaintiff again got issued notice dated 27.04.2010 thereby terminating the tenancy of the defendant and calling the defendant to restore the possession of the suit property to the plaintiff before 31.05.2010 along with arrears of rent. It is stated that in the said notice it was specifically stated that on failure on part of the defendant to restore the possession, his possession shall be that of unauthorized occupant.
l. The defendant was duly served with the said notice, but the defendant had neither complied with it nor responded to it in writing.
m. The defendant not only denied the relationship of landlord and tenant between the parties but further threatened the plaintiff to part with the possession of the suit property and/or create third party interest qua the suit property.
n. The defendant had denied the relationship of landlord and tenant between the parties and also ownership of the plaintiff qua the suit property, therefore the status of the defendant qua the suit property is that of a trespasser and therefore plaintiff is entitled to recover mesne profits as well as possession of the suit property from the defendant.
3. In the written statement (herein after wards referred as W.S) Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 5/29 filed by the defendant following preliminary objections were raised by the defendant.:
a. The suit of the plaintiff is premature for want of permission from competent authority, Slum.
b. The suit is barred by U/s 50 of Delhi Rent Control Act as rate of rent is Rs. 800/ p.m inclusive of electricity charges.
c. The plaintiff has no locus standi to file the present suit as the plaintiff is neither the owner nor landlord of the defendant qua the suit property.
d. The suit is barred as per the provision of Specific Relief Act as in the garb of present suit, the plaintiff is seeking the declaration of his title to the suit property.
e. The plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction.
f. The suit is bad for nonjoinder of necessary party namely Mehboob Elahi.
4. On merits, the defendant had denied each and every averment of the plaint averring that the plaintiff is neither the owner of the Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 6/29 suit property nor landlord of the defendant qua the suit property.
5. It is stated that the suit property was let out to the defendant in the year 2005 by Sh. Mehboob Elahi @ monthly rent of Rs. 800/ inclusive of electricity charges and Sh. Mehboob Elahi has been claiming his ownership rights qua the suit property and the defendant had paid the rent to Mehboob Elahi upto 30.06.2009.
6. It is pleaded that Sh. Mehboob Elahi had never issued any rent receipt to the defendant and in fact he had threatened the defendant to increase the rent from Rs. 800/ p.m to Rs. 8,000/ p.m.
7. It is stated that the defendant always told Mehboob Elahi that although Sh. Mehboob Elahi failed to show his title documents but without prejudice to his legal rights and without admitting the alleged claim of Sh. Mehboob Elahi, the defendant is ready to increase the rent by 10% as permissible under law subject to Sh. Mehboob Elahi issuing rent receipts, to which Sh. Mehboob Elahi flatly refused.
8. It is stated that on 20.07.2009, Sh. Mehboob Elahi came to the suit property and threatened the defendant to throw the defendant out from the suit property against which the defendant averred to have filed the suit for permanent injunction i.e C.S No. Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 7/29 391/09.
9. The defendant had denied receipt of legal notice dated 27.04.2010 and also denied extension of threat as to parting with possession or creation of third party interest.
10. Replication to the W.S of the defendant was filed by the plaintiff therein reaffirming the facts of the plaint and denying the contents of the W.S.
11. On completion of the pleading of the parties, following issues were framed on 10.02.2011:
1. Whether the plaintiff is entitled to decree of possession as prayed for?OPP
2. Whether the plaintiff is entitled to mesne profits as prayed for ? OPP
3. Whether the suit is barred by under section 19 of Limitation Act and Under Section 150 of DRC Act?OPD
4. Whether the plaintiff has no locus standi to file the suit?OPD
5. Whether the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction?OPD
6. Relief.
12. Vide order dated, 25.09.2012, issue no. 3 was amended on the Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 8/29 objection of both the parties that the said issue was not correctly framed and after amendment, the said issue was reframed as under:
3. "Whether the suit is barred by section 19 of Slum Area (Improvement and Clearance) Act and under section 50 of DRC Act?OPD".
13. Further, vide order dated 04.01.2014, following additional issue was framed by the court, as no issue was framed with regard to the prayer of the plaintiff seeking permanent injunction:
"Whether the plaintiff is entitled to relief of permanent injunction as prayed?OPP"
14. In support of her case, the plaintiff had got herself examined as PW1, her examination in chief which is mere reiteration of the averments of plaint was tendered in evidence as Ex. PWA and she had placed reliance on the following documents:
Ex. PW1/1 : Copy of Will Ex. PW1/2 : Copy of sale deed Ex. PW1/3 : Certified copy of statement order and plan in suit no. 612/93 but exhibit mark was not put on the same.
Ex. PW1/4 : Mutation letter.
Ex. PW1/5 : Site plan.
Ex. PW1/6 : Copy of plaint bearing suit no. 391/09.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 9/29
Ex. PW1/7 : Written statement to the plaint.
Ex. PW1/8 : Replication of the suit bearing no. 391/09.
Ex. PW1/9 : Notice date 22.1.2010.
Ex. PW1/10
(Colly) : Postal receipts.
Ex. PW1/11 : UPC certificate .
Ex. PW1/12 &
Ex. PW1/13
(Colly.) : AD cards .
Ex. PW1/14 : Reply dated 11.2.2010 to the notice. Ex. PW1/15 : Notice dated 27.4.2010. Ex. PW1/16 & Ex. PW1/17 : Postal receipts.
Ex. PW1/18 : UPC.Ex. PW1/19
( Colly.) : Two AD cards.
15. The plaintiff had further examined Sh. Tara Chand as PW2 from House Tax department, NDMC, New Delhi who had proved Ex.
PW1/4.
16. PW3 is LDC Record Room Civil, Tis Hazari Court who had proved Ex. PW1/6 to Ex. PW1/8 by deposing that they are certified copies of the records brought by him.
17. PW4 was summoned witness from Sub RegistrarI who had proved Ex. PW1/1 and Ex. PW1/2.
18. Mehboob Elahi, S/o plaintiff was examined as PW5 who in his examination in chief by way of affidavit (Ex. PW5/A) deposed that the plaintiff is owner of the suit property and PW5 denied that there Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 10/29 is any relationship of landlord and tenant between him and the defendant.
19. In his defence, the defendant had got himself examined as DW1, his examination in chief by way of affidavit was exhibited as Ex. DW1/A and he had placed reliance on three documents i.e Mark A which is Complaint dated 17.07.2009, Mark B and Mark C are telegrams, but none of the documents were proved by the defendant by placing the original of the same on record.
20. The defendant had further examined Sh. Manohar Lal, Surveyor, Delhi Urban Shelter Improvement Board who had proved Ex.DW2/1 which is the information with regard to status of the suit property that the same falls in notified Slum Area. Ex. DW2/2 is Gazette Notification no. SRO.1252 dated 10.04.1957.
21. It is worthwhile to mention here that after framing of additional issue with regard to permanent injunction on 04.01.2014, Ld. Counsels for both the parties had given separate statement on 08.01.2014, that neither the plaintiff nor the defendant wants to lead any additional evidence on this issue and the evidence already recorded be considered with regard to the additional issue.
22. Final arguments were addressed by Ld. Counsels for both the parties.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 11/29
23. After careful perusal of the records of the case in the light of rival submissions of both the parties and relevant provision of law, issue wise findings of this court are as follows:
ISSUE No. 3Whether the suit is barred by section 19 of Slum Area (Improvement and Clearance) Act and under section 50 of DRC Act?OPD.
24. The onus of proving the present issue is on the defendant and the present issue was framed on the objection of the defendant as to bar of Sec 19 of Slum Area (Improvement and Clearance) Act (herein after wards referred as Slum Act) and Section 50 of Delhi Rent Control Act (herein after wards referred as DRCA).
25. The first objection was raised by the defendant as to bar of Sec 19 of Slum Act averring that the suit property is situated in notified Slum Area and therefore, the suit for recovery of possession without seeking necessary permission from competent authority under Slum Act is premature as per the provision of Sec 19 of the Slum Act.
26. In order to prove this objection, the defendant is firstly required to prove that the suit property falls in the area which is notified Slum Area.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 12/29
27. To prove the same, the defendant had examined Sh. Manohar Lal, Surveyor, Delhi, Urban Shelter Improvement Board, Delhi Govt. ITO, New Delhi and he deposed on oath that the suit property falls in Slum Area in Ward No. VI vide Gazette Notification No. SRO.1252 dated 10.04.1957 and certified copy of the document containing the said information was exhibited as Ex. DW2/1 and gazette notification was exhibited as Ex. DW2/2.
28. Thus, the defendant by evidence of DW2 had discharged the initial onus of proving that the suit property falls in notified Slum Area which the plaintiff had failed to rebut by her evidence, thus it is duly proved that the suit property falls within notified Slum Area.
29. During the course of arguments, it is submitted by Ld. counsel for the plaintiff that as the defendant had denied relationship of landlord and tenant between the parties which is prerequisite for the applicability of section 19 of the Slum Act, therefore, the permission U/s 19 of Slum Act is not required.
30. In support of his submissions, Ld. counsel for the plaintiff had placed reliance on several authorities and the same are listed below: •S. Makhan Singh Vs. Smt. Amarjeet Bali, 2008 (106) DRJ 705. •Abdulla Bin Ali & Ors Vs. Galappa & Ors (1985) 2 SCC54.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 13/29 •Mohan Lal Goela and Ors. Vs. Siri Krishan & Ors. AIR 1978 Delhi
92. •Mahavir Prasad Vs. Sukhdev Mongia & Anr., 40 (1990) DLT 82.
31. All the aforesaid decisions relied by the plaintiff are distinguishable from the facts of the present case and does not come to the aid of the plaintiff to deny the applicability of section 19 of the Slum Act.
32. S. Makhan Singh (Supra) was in the context of DRCA whereby while dismissing the plea of the defendant as to bar of section 50 DRCA, it was observed that once the tenant had denied the title of the landlord over the suit property as well as tenancy and further set up a title in himself then the tenant cannot be permitted to take the plea of protected tenant under DRCA.
33. In the present case, though the defendant had denied the landlord tenant relationship between the parties and also denied the ownership of the plaintiff but, the defendant had not set up a title in himself and he is admittedly in possession of the suit property in the capacity of a tenant, thus the aforesaid decision is not applicable to the facts and circumstances of the present case.
34. In Abdulla Bin Ali & Ors (Supra), it was observed that a suit against a trespasser would lie only in civil court but as per the Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 14/29 relevant facts of the said case, the plaintiff in that suit had initiated proceedings for correction of tenancy register and recovery of arrears of rent which was dismissed and the plaintiff was directed to approach civil court for appropriate remedy.
35. Thus, as per facts of Abdulla Bin Ali & Ors (Supra), the plaintiff had approached all the competent forums, where the defendant had denied tenancy as well as title of the plaintiff and by dismissal of the application for correction of tenancy register, the question of tenancy was decided against the plaintiff, consequently the plaintiff was left with no remedy except to come on the basis of better title and thus it was decided that for the same, jurisdiction of civil court is not barred.
36. But, in the present case, as per plaintiff's own case, the defendant was inducted by the plaintiff as a tenant. Further, in none of the proceedings as alleged by the plaintiff wherein the defendant had denied the relationship of landlord and tenant between the parties, the plaintiff herein was a party, thus it can not be said that the plaintiff had approached all the competent forums and consequently the plaintiff has no efficacious remedy except to file the present suit seeking recovery of possession on the basis of better title.
37. In Mohan Lal Goela and Ors.(Supra), the suit was based on independent title against defendants whose possession was alleged Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 15/29 and proved to be unauthorized and unlawful and consequently it was held that Sec 19 of Slum Act is not applicable.
38. In the present case, the plaintiff had alleged in the plaint that the defendant is in possession of the suit property as unauthorized occupant because of denial of relationship of landlord and tenant between the parties.
39. But, in the present case, as per plaint of the plaintiff, she had inducted the defendant as a tenant in the suit property and this fact was reiterated by the plaintiff/PW1 in her examination in chief which was further corroborated by the testimony of PW5 who during his cross examination had volunteered that the defendant was inducted as tenant in the suit property by his mother i. e. the plaintiff.
40. Further, PW1 had placed reliance on legal notices i. e. Ex. PW1/9 and Ex. PW1/15 by virtue of which the plaintiff had allegedly enhanced the rent U/s 6A of DRCA Act and terminated the tenancy of the defendant respectively.
41. Thus, as per plaintiff's own case, there is existence of relationship of landlord and tenant between the parties and even if the tenancy is taken to be terminated by service of legal notice (Ex. PW1/15), then also, the possession of the defendant in the suit property cannot be said to be that of unauthorized occupant for the Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 16/29 purpose of the Slum Act as per decision of Harish Chand Malik Vs. Vivek Kumar Gupta and Ors, RFA No. 480/2008, DOD 23.05.2011.
42. Further, Mahavir Prasad(Supra), is also distinguishable from the facts of the present case, as in the same, the plaintiff in the plaint had stated that defendant was unauthorized occupant and defendant had claimed to be tenant which he had failed to prove and the plaintiff had proved that the defendant was unauthorized occupant, but in the present case, the defendant cannot be said to be un authorized occupant as discussed in para no. 41 above.
43. Further, in C.R. Abrol vs Administrator Under The Slum, ILR 1970 Delhi 768, it was observed that the Competent Authority under Slum Act was bound to make a preliminary inquiry into the existence of the relationship of landlord and tenant between the parties under Section 19(1) where there is denial of such relationship, with a view to be able to decide on the basis of such a preliminary inquiry whether permission should be given to the landlord to institute proceedings for the eviction of the tenant. If the Competent Authority arrived at a preliminary finding that the relationship of landlord and tenant did not exist between the parties then the Competent Authority was precluded from granting permission sought by the landlord for the institution of a proceeding for the eviction of the tenant.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 17/29
44. It was further observed that the preliminary finding given by the Competent Authority under Section 19 is not res judicata between the parties and the question of the relationship of landlord and tenant between the parties would have to be decided afresh by the Controller under Section 14 of the Delhi Rent Control Act, 1958, if necessary.
45. Thus, as per the aforesaid ratio, even if there is denial of relationship by the tenant still the landlord is required to take necessary permission from the competent authority under Slum Act who is required to hold preliminary inquiry into this question and after holding preliminary inquiry, it may grant or refuse to grant necessary permission which is dependent upon determination of the question whether alternative accommodation within the means of the tenant would be available to him if he were evicted.
46. In the present case, it is an admitted case that the plaintiff had not taken permission under section 19 of Slum Act, thus on failure on the part of the plaintiff to take permission from Competent Authority, the present suit for recovery of possession is not maintainable.
47. The second objection raised by the defendant is as to bar of Section 50 of DRCA on the ground that he is protected tenant as per provision of DRCA as he is in occupation of the suit property at monthly rent of Rs. 800/ p.m. inclusive of electricity charges.
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 18/29
48. The plaintiff had denied the defence of the defendant averring that the defendant was inducted as a tenant in the suit property by the plaintiff in the year 2005 at a monthly rent of Rs. 2,500/ exclusive of electricity charges which has been enhanced to Rs. 3,200/ p.m. in January, 2007 as per mutual agreement between the parties and was further enhanced to Rs. 3,520/ p.m. w.e.f. 01.03.2010 as per Sec 6A of DRCA.
49. The initial onus of proving that the rate of rent is Rs. 800/ p.m inclusive of electricity charges and consequently jurisdiction of civil court is barred is on the defendant. To prove the same, the defendant had cross examined PW1 and during the course of cross examination, suggestion was put to PW1 that Rs. 2,500/ was never the rent of the suit property and it was never enhanced to Rs. 3,200/ p.m. or Rs. 3,520/ which was denied by the plaintiff/PW1.
50. In her examination in chief (EX. PWA), in para no. 3, PW1 deposed that she had let out different portions/rooms of said property to different tenants. PW1 deposed that Mr. Afroz Ali was inducted as a tenant in the year 2001 in respect of two rooms at monthly rent of Rs. 4,000/ and present rate of rent is Rs. 6,000/ p.m. Syed Mohd. Idris was inducted as a tenant in the year 2000 in respect of one room at monthly rent of Rs. 2,500/ and at present, the rate of rent is Rs. 3,700/ p.m. Mr. Tariq Aziz was inducted as a tenant at monthly rent Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 19/29 of Rs. 3,500/ in the year 2008 in respect of one room and subsequently he was let out one more room, thus at present the rent of two rooms is Rs. 6,700/.
51. Thus, by the aforesaid deposition which went un rebutted during the course of cross examination of PW1, the plaintiff wants to prove that since different portions of the same property was let out to different tenants at different point of time at rate of rent which is much higher than Rs. 800/ p.m, and even the rate of rent of the tenant inducted in the year 2001 for two rooms was Rs. 4,000/ p.m., thus it is highly improbable that the defendant was inducted as a tenant in the suit property which is commercial property in the year 2005 at monthly rent of Rs. 800/ p.m. inclusive of electricity charges.
52. The defendant had put suggestion to PW1 that the aforesaid deposition as to rate of rent is not correct which PW1 had denied.
53. The defendant had further put question to PW1 as whether the plaintiff is maintaining accounts in respect of the rent realized from different tenants on the ground floor of the same property and in response to the same, the plaintiff had deposed that she had started issuing rent receipts to all the tenants and maintaining the accounts after the present defendant had filed a suit against her son.
54. The defendant had further put question as to filing of any such Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 20/29 document on record which plaintiff had admitted that she had not filed in the court. The defendant had further put suggestion to PW1 that the accounts were intentionally not produced as the rate of rent of the defendant was mentioned in the books of accounts as Rs. 800/ p.m inclusive of electricity charges which PW1 had denied.
55. During the course of cross examination of PW1, PW1 had deposed that she had been showing rate of rent of all the tenants in her house tax records, and PW1 further deposed that she had not placed on record any document to show the same. The defendant had further put suggestion to PW1 that in the house tax record, the rate of rent of the defendant was reflected as Rs. 800/ p.m inclusive of electricity charges which PW1 had denied.
56. By putting the aforesaid suggestions, the defendant had put forth his defence to PW1 that in the accounts maintained by the plaintiff and in house tax records, the rate of rent of the defendant was mentioned as Rs. 800/ p.m inclusive of electricity charges which PW1 had denied.
57. Further, the defendant had reiterated in his examination in chief as well as in his cross examination that the rate of rent of the suit property is Rs. 800/ p.m inclusive of electricity charges, but the defendant had failed to examine any of the tenants of the plaintiff who is proved by the plaintiff/PW1 as paying higher rent for the same Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 21/29 premises, so as to rebut the oral testimony of PW1 that the rate of rent is more than Rs. 3,500/ p.m .
58. Defendant had further failed to get the production of accounts from PW1 to prove the defence put forth by him as suggestion put to PW1 that the rate of rent of the defendant was reflected as Rs. 800/ p.m inclusive of electricity charges in the accounts of the plaintiff.
59. The defendant had also failed to summon the records of house tax so as to prove the defence put forth by him as suggestion put to PW1 that the rate of rent of the defendant was reflected as Rs. 800/ p.m inclusive of electricity charges in the house tax records.
60. Further, in the present case, it is an admitted fact that the suit property is commercial property and it was let out to the defendant in the year 2005. Though the defendant had pleaded that the rate of rent of the suit property is Rs. 800/ p.m inclusive of electricity charges since 2005, but the same appears to be highly improbable taking judicial notice of the increase in rental value of the properties in Delhi over the number of years in the light of the nature of property and the area in which the suit property is situated.
61. Further, the oral testimony of the defendant that the rate of rent of the suit property was not increased since 2005 and it remains at Rs. 800/ p.m inclusive of electricity charges does not inspire Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 22/29 confidence and as already discussed above, that the defendant had also failed to corroborate his oral testimony as to rate of rent by examination of independent witnesses, or by production or summoning of documentary record, it cannot be said that the defendant had discharged the initial onus of proving that the rate of rent of the suit property is Rs. 800/ p.m inclusive of electricity charges or less then Rs. 3,500/ p.m, so as to attract bar of section 50 DRCA.
62. Thus, the objection of the defendant as to section 19 of Slum Act is decided in favour of the defendant and as to 50 DRCA is decided against the defendant.
ISSUE No. 4"Whether the plaintiff has no locus standi to file the suit?OPD
63. The onus of proving this issue is on the defendant as the defendant has denied the locus standi of the plaintiff to file the present suit averring that the plaintiff is neither the owner of the suit property nor the landlord of the defendant qua the suit property.
64. It is averred by the defendant that he is tenant in the suit property under the landlord ship of Mehboob Elahi S/o Sh. Jilani.
65. The defendant/DW1 had reiterated this defence in his Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 23/29 examination in chief (Ex. DW1/A) but during his cross examination, DW1 was shown Ex. PW1/6 and he had admitted that the same is certified copy of plaint filed by him against his alleged landlord Mr. Mehboob Elahi, son of the plaintiff.
66. DW1 was confronted with Ex. PW1/6 at point C, wherein it was written by the defendant herein that the present defendant always told his landlord, Mr. Mehboob Elahi that Mr. Mehboob Elahi has no legal right in the suit premises but he is ready to increase the rent by 10% as permissible under law subject to Mr. Mehboob Elahi showing his title documents or authority to collect the rent and also subject to issuance of rent receipt to which Mr. Mehboob Elahi flatly refused.
67. During his cross examination, the defendant/DW1 had denied that he had pleaded any such fact in his earlier suit, but once there is certified copy of plaint of earlier suit admittedly filed by DW1 against son of the plaintiff and DW1 had admitted that it is the certified copy of the said plaint, the defendant can not be permitted to deny that the facts mentioned in the same is not stated by him and the same act as an admission on the part of the defendant and is binding on the defendant.
68. Thus, as per the admission of the defendant made by him in Ex. PW1/6 it is duly proved that the son of the plaintiff which the defendant is claiming to be his landlord has no legal right in the suit Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 24/29 property and no authority to collect the rent from the defendant and that is why he had called upon Mehboob Elahi to show his title documents and authority to collect the rent.
69. DW1 during his cross examination further deposed that Mehboob Elahi never claimed himself as owner or the landlord of the suit property.
70. Thus, the defendant had failed to prove that the person to whom the defendant is claiming to be his landlord is his landlord and has legal right qua the suit property to collect rent from the defendant.
71. In the present case, the plaintiff had examined his son Mehboob Elahi as PW5 who by his deposition had duly proved that his mother i. e. the plaintiff is the owner of the suit property and she had inducted the defendant as a tenant in the suit property and PW5 had denied the relationship of landlord and tenant between him and the defendant qua the suit property.
72. The plaintiff/PW1 had further proved Ex. PW1/1 (copy of Will), Ex. PW1/2 (Copy of Sale deed) in respect of suit property which is further proved by the witness from Sub Registrar I who deposed that Ex. PW1/1 and Ex. PW1/2 is the same document as available with their department and thus it is duly proved that Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 25/29 plaintiff is registered title holder of the suit property.
73. The plaintiff had further proved that she is the landlord of the defendant by her oral testimony which is corroborated by testimony of PW5.
74. Thus, it is duly proved that the defendant is a tenant in the suit property under the landlord ship of the plaintiff.
75. The plaintiff had also proved her ownership qua the suit property, thus the plaintiff had duly proved her locus standi to file the present suit.
76. In contrary, the defendant had failed to prove that the plaintiff is neither the owner of the suit property nor there exits any relationship of landlord and tenant between the plaintiff and the defendant, consequently, the defendant had failed to prove that the plaintiff has no locus standi to file the present suit against the defendant.
This issue is decided against the defendant.
ISSUE N0. 5 "Whether the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction?OPD"
Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 26/29
77. The onus of proving this issue is on the defendant. The defendant had raised the objection that the plaintiff had not valued the suit properly for the purpose of court fee and jurisdiction and it is stated by the defendant that the plaintiff is liable to pay court fee on the market value of the suit property without specifying the market value.
78. Perusal of the plaint reveals that the plaintiff had valued the relief of possession at Rs. 2,49,760/ and permanent injunction at Rs. 130/ and annexed requisite court fee on the same.
79. The defendant had not lead any evidence to prove that the valuation as done by the plaintiff is not correct, neither the defendant is able to elicit any admission from the plaintiff's witnesses to prove the same and on failure on part of the defendant to discharge the initial onus of proving that the valuation as done by the plaintiff is not correct, this issue is decided against the defendant.
ISSUE NO. 1"Whether the plaintiff is entitled to decree of possession as prayed for?OPP"
80. In view of the findings of this court on Issue no. 3 above, the plaintiff is not entitled to recover the possession of the suit property Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 27/29 from the defendant being premature in the absence of obtaining necessary permission from Competent authority under Section 19 of Slum Act.
This issue is decided against the plaintiff.
ISSUE No. 2"Whether the plaintiff is entitled to mesne profits as prayed for ? OPP"
81. In view of the findings of this court on issue no. 3, the defendant is proved to be in possession of the suit property by virtue of statutory protection provided to him by Slum Act, thus the possession of the defendant can not be termed as wrongful, so as to entitle the plaintiff to claim mesne profits as prayed.
This issue is decided against the plaintiff.
ADDITIONAL ISSUE "Whether the plaintiff is entitled to relief of permanent injunction as prayed?OPP"
82. The onus of proving this issue is on the plaintiff. In the present case, right of the plaintiff being landlord and owner of the suit property stood proved as decided in issue no. 4 above.
83. Further, the plaintiff/PW1 in para no. 15 of her examination in Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 28/29 chief (Ex. PWA) had reiterated her plea that the defendant had threatened to sub let, assign or part with the possession of the suit property and further threatened to create third party interest qua the suit property, but PW1 was not cross examined by the defendant on this fact, thus PW1's testimony as to extension of threat is duly proved by her unrebutted testimony and consequently the plaintiff is entitled to permanent injunction as prayed.
This issue is decided in favour of the plaintiff.
RELIEF
84. In view of the findings of this court on the aforesaid issues, the suit of the plaintiff is partly decreed. The suit of the plaintiff qua relief of possession and mesne profits is dismissed. The suit of the plaintiff qua the relief of permanent injunction is decreed and the defendant, his agents, successors etc. are restrained from sub letting, assigning, parting with the possession of the suit property or from creating third party interest qua the suit property. Parties to bear their own cost.
Decree sheet sheet be prepared accordingly. File be consigned to Record Room, after necessary compliance.
Announced in the open court today i. e. on 15.01.2014.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /15.01.2014 Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 29/29 CS No.404/11 Raisa BegumVs. Abdul Rashid 15.01.2014 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is partly decreed. The suit of the plaintiff qua relief of possession and mesne profits is dismissed. The suit of the plaintiff qua the relief of permanent injunction is decreed and the defendant, his agents, successors etc. are restrained from sub letting, assigning, parting with the possession of the suit property or from creating third party interest qua the suit property. Parties to bear their own cost.
Decree sheet sheet be prepared accordingly. File be consigned to Record Room, after necessary compliance.
(SHMA GUPTA) CIVIL JUDGE03C/THC DELHI /15.01.2014 Suit no. 404/11 Raisa Begum Vs. Abdul Rashid 30/29