Delhi High Court
Mansa Ram vs Sohan Singh And Anr. on 29 April, 1994
Equivalent citations: 1994IIIAD(DELHI)179, 54(1994)DLT434
JUDGMENT Mr. R.L. Gupta, J.
1. This regular second appeal had been filed by Shri Mansa Ram (since dead) against the judgment and decree dated 28.2.1973 of a learned Addl. District judge, Delhi by which he reversed the judgment and decree dated 16.5.1968 of a learned Sub Judge, 1st Class in suit No. 98/ 66. The Sub Judge had granted a decree for possession of the suit premises as described in the site plan Ex. PW5/T, which was reversed by the first Appellate Court. During the pendency of this appeal for more than two decades all the three parties died and their legal representatives were brought on record.
2. The suit initially filed is based on the allegations that the plaintiff was a refugee from Lahore, and came to India in 1948, and took possession of Nazul plot No. 62 measuring 325 sq.yards belonging to Delhi Improvement Trust (since vested in Delhi Development Authority) situated in Mohalla Ara Kashan, Paharganj, New Delhi. He constructed four rooms, bath room, kitchen and a Verandah. He claims that his possession had been regularised on payment of damages to DDA. He also continued to pay the house tax in respect of this property. In 1949 deceased defendant No. 2 i.e. Charan Dass who was related to him as maternal uncle approached him for accommodation because he was being compelled by a PWD employee, in whose quarter he was living, to vacate that quarter and so he accommodated him in the premises in dispute. It is further alleged that he lived in this house up to 5.5.1962 because he had constructed another house for himself and shifted there. He, however, did not hand over the possession to Mansa Ram and rather handed over the same to his nephew Niranjan Singh. After great persuasion, Niranjan Singh gave vacant possession of the disputed premises to Mansa Ram on 10.5.1962. Charan Dass got enraged on coming to know of this fact, and he in conspiracy with his nephew Niranjan Singh and Sohan Singh, with the help of 7-8 more persons attempted to take forcible possession on 22.5.1962, but then succeeded in his designs on 25.5.1962 in the absence of Mansa Ram who had gone to see his ailing uncle. But on 25,5.1962 Sohan Singh, deceased, defendant No. 1 took forcible possession of the disputed premises. There were proceedings under Sections 107/151 and also under Sections 145/146 Code of Criminal Procedure between the parties. The present suit was filed by the deceased on 4.3.1966 for possession.
2. Both the deceased defendants contested the suit. Charan Dass deceased, the maternal uncle of the plaintiff-appellant had claimed that actually he himself had constructed the house and Mansa Ram had nothing to do with that property. He further said that he had inducted Sohan Singh deceased, respondent No. 1 as a tenant. The case of Sohan Singh was also to the effect that he was a tenant of Charan Dass.
Charan Dass had also raised an issue that the suit was time barred.
Pleadings of the parties were incorporated in following issues by the learned Trial Court.
1. Whether the plaintiff is the owner of the suit property? OPP
2. Whether the suit is bad for misjoinder of any party? OPD
3. Whether the suit is properly valued? If not, what is the proper valuation? OPP
4. Whether the defendant No. 2 was a licensee under the plaintiff? If so, to what effect? OPP
5. Whether the defendant No. 1 is a tenant under defendant No. 2.? If so, to what effect? OPD No. 1.
6. Whether the suit is within time? OPP
7. Relief.
Learned Trial Court after consideration of evidence and inspection of the spot came to the following conclusions:
(1) The land underneath the disputed portion and that of the plaintiff's portion is owned by the Delhi Development Authority.
(2) The plaintiff has been paying the damages to the DDA in respect of plot No. 62 measuring 108 sq.yards. vide Ex. P3 to P8. The demand was made by the DDA vide Ex. P1 and P2. The area on the spot of the disputed portion plus the portion in occupation of the plaintiff comes to 108 sq.yards.
(3) The Municipal number given to the entire premises including the disputed one is 8652 and the plaintiff has been paying house tax/property tax to the Municipal Corporation vide Ex. P9.
(4) The disputed portion abuts on the passage which opens towards the lane from that portion which is in the occupation of the plaintiff.
(5) The masonry, design of construction and the design of doors, windows and sun shades of the disputed portion was found exactly the same which is of the portion in the occupation of the plaintiff.
(6) The defendant No. 2 is a maternal uncle of the plaintiff.
3. Trial Court also observed that Charan Dass did not lead any evidence to prove his title except that of the construction of the disputed property, despite the fact that he had specifically pleaded that house was built in 1948-49 and that he was in possession of the documentary as well as other proof sufficient for the purpose. The evidence regarding construction at the instance of Charan Dass is not reliable at all. PW1 Balwant Singh first said in examination-in-chief that he constructed all the four rooms and other portions in 1948 at the instance of Mansa Ram. In cross-examination he deposed that the disputed portion of Charan Dass was, however, constructed at the instance of Charan Dass 2-3 years after the construction of Mansa Ram. Again in reply to a Court question, he deposed that 2-3 years after the construction of four rooms, he had only replaced a roof of a room on the ground floor. This clearly shows that he did not construct the disputed portion at the instance of Charan Dass. Later on, Charan Dass produced DW1 Kishori Lal mason to prove the same fact. It is obvious that it is not possible to rely on the evidence of this witness because he came to prove the same fact after PW1 Balwant Singh failed to oblige Charan Dass fully.
4. When the matter was taken to the first Appellate Court in appeal by the respondent, the judgment and decree of the Trial Court were reversed by giving following reasons:
(1) The first and third points can be met by the argument that plaintiff's portion and the defendant's portion alone do not belong to the Delhi Development Authority, but besides that the portion shown towards the south as well as the portion of Manohar Singh are also owned by Delhi Development Authority and this entire property bears the Municipal No. 8652.
(2) The 5th and 6th point can be met by the reasoning that similarity of design, masonry of doors and windows are due to the fact that defendant No. 2 is the maternal uncle of the plaintiff and the same contractor constructed both the portions.
(3) Plaintiff had been paying damages to DDA in respect of 108 sq.yards. But excluding the disputed portion he is in possession of 78 sq.yards of his own plot and is in possession of 98 sq.yards along with Manohar Singh out of which plaintiff's share would be 49 sq.yards and in this way the plaintiff is in possession of 127 sq.yards.
(4) The 4th point can very easily be met by the argument that the doors of the plaintiff's portion as well as of the defendant's portion are from the North and the doors of the plaintiff is also towards the west.
5. I have heard arguments of learned Counsel for the parties. The most important point to note in this case is that the deceased Charan Dass admittedly never paid any house tax to the Corporation or damages/mesne profits to the DDA. If, in fact, he in his own right had occupied this piece of land and had constructed the disputed premises of his own, it was certain that he would have paid the house tax as well as the damages to the aforesaid authorities. He has admitted in his cross-examination that he never paid any house tax to the Corporation or damages to the DDA. Second important thing is that the disputed portion abuts on the passage which opens towards the lane through the portion in occupation of the plaintiff. If the disputed portion had been independently constructed by Charan Dass, there was no need for him to keep exit of his house into the lane through the house of Mansa Ram. He would have definitely kept an independent out-let from his house into the lane in front. This will, therefore, show positively that Charan Dass must not have built this property on his own. If that was so, he was bound to keep an independent passage in the lane to this property and not through the portion of Mansa Ram. Another reason given by learned Appellate Court for disallowing the claim of the appellant is that if actually Charan Dass was a licensee under Mansa Ram, he was bound to pay some license fee and since there was no evidence regard ing payment of any license fee, the case of Mansa Ram was false. It is not possible to subscribe to the reasoning of the first Appellate Court. In fact, it is clearly pleaded in the plaint that Mansa Ram gave disputed portion on license to Charan Dass because he was being thrown out by a Govt. servant with whom he was living in a PWD quarter. Therefore, taking pity upon his maternal uncle, he agreed to induct him in the disputed portion as a licensee. Even Charan Dass never claimed himself to be paying any amount to Mansa Ram either as a tenant or as a licensee. Rather he claimed himself to be the owner. Therefore, the conclusion of the first Appellate Court that Charan Dass was bound to pay some amount as license fee to Mansa Ram is otherwise also not borne out from the pleadings or the evidence.
6. It may be noted that learned Trial Court inspected the spot and took measurements of the disputed premises along with the premises in possession of Mansa Ram. It found the total measurements to be 108 sq.yards. The receipt issued by DDA on realisation of damages from Mansa Ram which is Ex. P-2 mentions the measurements of the land as 108 sq.yards. Therefore, I am of the view that the disputed portion which is part of 108 sq.yards for which Mansa Ram deceased had been paying damages to the DDA is a part of the same property which was in possession of Mansa Ram deceased and now in possession of his legal representatives. The findings given by learned first Appellate Court that Mansa Ram deceased was in possession of 127 sq.yards is neither borne out from the pleadings of the parties nor by evidence. The reason given by the first Appellate Court that notice terminating the license should also have been served by Mansa Ram upon Charan Dass also does not seem to be correct because the very filing of the suit for recovery of possession from a licensee amounts to notice and indicating an intention of the owner that he wants vacation of the premises from the licensee. Also observations of the first Appellate Court that it did not matter if house tax or damages were paid by the deceased Mansa Ram is contrary to common course of human conduct. I think the payment of house tax and damages in respect of the Nazul property was a sure indication about the ownership of a particular person. If house tax and damages were being paid by the deceased Mansa Ram during his life time, it will clearly show that he, in fact, was the owner of the disputed premises.
7. In addition to the above circumstances it may further be noted that during the pendency of this appeal, an application, CM 1036/88 was moved by the legal representatives of the deceased Mansa Ram under Order 41 Rule 27 read with Section 151 CPC along with release/relinquishment deeds registered/executed by legal representatives of the deceased Charan Dass. It is stated in these deeds that the deceased Charan Dass had actually taken the disputed premises as a licensee from the deceased Maasa Ram and that later on Charan Dass had constructed his own house in Karol Bagh and shifted to that house. Reply to this application was filed by all the LRs of respondent No. 1, Sohan Singh traversing all these allegations. Though strictly speaking these relinquishment deeds have not formally been exhibited in evidence, they do corroborate the case of Mansa Ram. It is a matter of common knowledge that no body would give up his or her right to a property without any rhyme or reason and the filing of these relinquishment/release deeds shows an absolute desire of the heirs of Charan Dass deceased not to be a part of the fraud played by him during his life time with Mansa Ram deceased. As already stated earlier, even from the evidence, it is proved on record that the deceased Charan Dass was actually a licensee only under the deceased Mansa Ram without payment of any license fee.
8. After having given my careful consideration to all the evidence on record and the submissions made by learned Counsel for the parties, I am of the view that the conclusions arrived at by learned Trial Court were correct and the learned first Appellate Court was not justified in accepting the appeal. Therefore, the judgment and decree of the Trial Court are hereby restored and the judgment and decree of the first Appellate Court are set aside and the appellants are hereby granted a decree for recovery of possession of the disputed premises against the respondents. The appeal is accordingly allowed. However, there will be no order as to costs.