Delhi High Court
Surinder Kumar Jhamb vs Mr. Om Parkash Shokeen on 28 September, 1999
Equivalent citations: 1999VIAD(DELHI)579, 82(1999)DLT569, 1999(51)DRJ704
Author: Madan B. Lokur
Bench: Madan B. Lokur
ORDER Usha Mehra, J.
1. The appellant was inducted as a tenant by the respondents in suit property bearing No. 487/31, measuring 2 bighas 10 biswas within phirni (extended abadi) of Village Peera Garhi, Delhi. Each of the respondents herein (plaintiffs before the Trial Court) is 1/3rd share holder of the said property. Their respective shares in the property were let out to the appellant vide three separate lease deeds of the same date i.e. 15th October, 1979. The appellant was to pay separate monthly rent of Rs. 1,67/- to each of the respondent. The lease was for a period of five years with a right to the appellant to raise temporary structure over the plot in order to carry out his business activities. The appellant, as per the version of the respondents did raise temporary super structure on the plot. However, w.e.f. 15th October, 1983 the appellants failed to pay the montly rent to the respondents, therefore, notices terminating the tenancy of the appellant were issued by respondents thereby terminating his tenancy from the mid night of 14th April, 1985. Beside terminating the tenancy vide said notice, arrears of rent was also demanded. After the expiry of the notice period when the appellant did not vacate the suit property nor paid the arrears of rent, these respondents filed a joint suit for recovery of possession of the suit property as well as recovery of rent amounting to Rs. 56,001/- beside future rent/damages at the rate of Rs. 3,501/- per month.
2. By the impugned order the learned Single Judge decreed the suit for possession in respect of the suit property and also passed decree for the recovery of Rs. 24,507/- as arrears of rent. Further granted preliminary decree for recovery of damages/mesne profits till recovery of possession at the rate of Rs. 3,501/- per month. It is against this judgment and decree that the appellant has preferred this appeal.
3. Before we deal with the legal submissions raised by the appellant against the decree, we would like to mention the intervening events happened during the pendency of this appeal and the consequence flowing therefrom. Since the challenge in appeal was also made against money decree of Rs. 24,507/- and preliminary decree of mesne profit/damages at the rate of Rs. 3,501/-, therefore, directions were given to the appellant to deposit the decretal amounts before appeal could be heard. Directions were given on 17th March, 1999 to the appellant to deposit the user charges/damages for use and occupation of the property w.e.f October, 1984 till the 17th March, 1999 on the basis of agreed rate of rent i.e. Rs. 3,501/- per month. Counsel for the appellant informed that a sum of Rs. one lakh had already been paid to the respondents as part of arrears of rent. Accordingly, directions were given to the appellant that after adjusting the amount of Rs. one lakhs, balance amount on account of user charges be deposited in Court within two weeks. The case was thereafter adjourned and taken up on 21st April, 1999 when Mr. Ravinder Sethi, Senior counsel for the appellant stated that arrears of user charges from October, 1984 till date would be deposited in three instalments. Rs. two lakhs would be deposited within four weeks from that date and balance in two equal monthly instalments. On his request matter was adjourned with direction to be listed after four weeks. On 21st May, 1999 counsel for the appellant stated that a sum of Rs. two lakhs had been deposited in the Court. Directions were given to the Registry to take out FDR for that amount from UCO Bank, High Court Branch for a period of 46 days, and in case the appeal was not disposed of by then, the Registry would get the FDR renewed for a further period. Matter was thereafter adjourned and taken up on 13th August, 1994. The appellant by then had not deposited balance two instalments as undertaken to do so vide proceeding dated 21st April, 1999. On the adjourned date counsel for the appellant insisted that one last opportunity be granted to the appellant to comply the order of this Court by next date appellant would deposit the balance amount. It was made clear at that time that appeal against a money decree without depositing the same would be deemed to have been dismissed. The money decree including the decree on account of use charges at the rate of Rs. 3,501/- per month from October, 1984 till delivery of possession would become final. On request of counsel for the appellant last opportunity to deposit the amount was granted. The case was adjourned to 31st August, 1999, on which date Mr.S.K.Puri, counsel for the appellant stated that the appellant was not in a position to deposit the decretal amounts and/or the amounts agreed to be deposited by the appellant vide order 21st April, 1999 and 13th August, 1999. Mr. V.P.Singh, Senior Advocate appearing for the respondent pointed out that since the decretal amounts have not been deposited inspite of the undertaking given by the appellant through counsel hence decree on account of recovery of Rs. 24,507/- and user charges/damages at the rate of Rs.3,501/- per month till recovery of possession became final. There is, therefore, no challenge to the money decree and the decree on account of damages. Appeal against the same deemed to have been dismissed. Mr. S.K.Puri fairly conceded this position but urged that even if the appeal against money decree and decree on account of damages/user charges is deemed to have been dismissed for non-compliance of the Court Order, still the appeal against eviction i.e. for recovery of possession is maintainable. It is only against the decree of recovery of possession of suit property that arguments were advanced by counsel for the parties and heard. Thus so far as the decree with regard to recovery of Rs. 24,507/- and damages/mesne profits at the rate of Rs. 3,501/- per month from October, 1984 till recovery of possession appeal stands dismissed. The appellant in his written submissions has also conceded this position when stated that the appeal against money decree has been dismissed on account of default in making and/or depositing the decretal amounts. The appellant confined his arguments only against the decree for recovery of possession.
4. We are now left with the appellant's challenge to the decree of possession which he has raised primarily on four counts, namely: (i) It was not a case of single tenancy, therefore, three different owners could not file a joint suit for recovery of possession. (ii) The suit property is a premises as defined under Section 2(i) of Delhi Rent Control Act (in short DRC Act) and not a vacant land, hence the suit was barred under Section 50 of DRC Act. (iii) By wrongly clubbing three different acts or transactions in one suit the respondents invoked the jurisdiction of the District Judge which never vested in him. (iv) Notice under Section 106 of TP Act was bad. The suit property let out for industrial purpose hence six months notice was required to be given.
5. In order to answer the challenge raised by the appellant, we may quickly brush through admitted facts, namely, the respondents are brothers, they own 1/3rd share each in the suit property. They let out the property to the appellant by three different lease deeds. The appellant was to pay to each of the respondents a monthly rent of Rs.1,167/-. The lease was for a period of five years. The appellant was authorised to raise temporary structure on the suit property which he in fact did in order to carry out his business activities. The suit property was let out for industrial purposes. That on the expiry of the lease period, the appellant would remove the super structure raised by him. Appellant constructed one room, one tin shed and a hall. He, however, failed to pay the rent to the respondents w.e.f. 15th October, 1983. Notice under Section 106 of Transfer of Property Act (in short TP Act) was issued thereby terminating the tenancy of the appellant effective from the midnight of 14th April, 1985 and also arrears of rent beside vacation of suit property was demanded vide the said notice. Even otherwise according to the respondents the tenancy stood automatically terminated by efflux of time on the midnight of 14th October, 1984. Since despite service of notice, the appellant neither vacated the suit property nor paid the arrears of rent and user charges hence respondents filed a joint suit for possession and recovery of rent.
6. That suit was contested by the appellant on the grounds which are the challenges raised and mentioned above beside raising the plea that respondents had agreed to sell their entire land alongwith the boundary wall and constructed portion to the appellant for a sum of Rs. 5 lakhs out of which a sum of Rs.1 lakh by cheque had already been paid to them. Respondents had been avoiding to complete their part of the contract. Appellant had always been ready and willing to pay the balance amount of Rs. 4 lakhs and to adhere to the terms of the contract. But the respondents herein avoided to do so. The Trial Court framed nine issues. The relevant issues for the purpose of determination to the points raised and as mentioned above are issues No.2, 3, 7, and 8 which are reproduced as under :
2. Whether this Court has no jurisdiction to try the suit as pleaded in the written statement filed by the defendant? OPD
3. Whether suit is bad for multifariousness? OPD
7. Whether there existed any structure and three rooms at the time of letting if so its effect ? OPD
8. Whether plaintiffs are entitled to the decree of possession and arrears of rent as prayed for?
7. At the outset, it must be stated that all the three lease deeds were unregistered. It is settled law that unregistered lease deed cannot be looked into but for collateral purpose. Mr. S.K. Puri's main thrust of argument was based on the plea that suit suffered from multifariousness. According to him, once the respondents entered into three different lease agreements it would amount to creating three different tenancies. Therefore, there were three distinct transactions and three different causes of actions. In this view of the matter one suit filed by three different persons having three different transactions was not maintainable. It was barred by the provisions of Order 1 Rule 1 of the Code of Civil Procedure (in short CPC). Rule 1 of Order 1 CPC enables two or more plaintiffs having separate causes of action to join in one suit if (a) the right to relief, alleged to exist in each plaintiff, arises out of the same act or transaction; and (b) there is a common question of law or fact. These two requirements in Clause (a) and (b) are cumulative and not alternative. In this case three owners having separate share in the property which shares are identifiable and they had divided the property by means of oral partition and having entered into three different transations, they could not be called co-owners nor could common question of law or fact arose in the case. Even if the terms of the lease were sililar and entered into on the same day still their causes were different. They claimed arrears of rent from different dates. Their ownership of distinct portion of the property made them individual owner of that portion only. Hence, a joint suit was not permissible nor maintainable. To support his arguments he relied on the following judgments, namely, M/s. Hari Ram Fatan Das & Ors. Vs. Kanhaiya Lal & Ors., , Lobsang Khampa & Ors. Vs. Sunam Ram, , Ramjas Agarwala & Anr. Vs. Linton Molesworth & Co. 1923 Patna 411 and Kali Charan Vs. Ganesh Prasad & Anr. . According to him since there existed three different transactions hence a suit was not maintainable. To prove that the suit property was orally partitioned by the respondents he drew our attention to Exhibit P-9, P-16, P-17 and P-18 fortified by the assessment notice P-13, P-14 and P-15. Vide Exhibit P-9 respondents edmitted that orally partition of the suit property took place and specific portion of the property fell to their respective share, namely, 1/3rd portion of the property facing South fell to the share of Rajinder Singh, 1/3rd again facing South fell to the share of Om Parkash and the remaining 1/3 share fell to the share of Bal Kishan. On the basis of this admission, Mr. S.K. Puri contended that definite, identifiable portions fell to the respective shares of the respondents pursuance to which respondents got their portion of the property mutated in their names in the record of the Municipal Corporation of Delhi. The Municipal Corporation of Delhi issued separate assessment orders regarding property tax. Hence, after the partition, respondents no more remained co-owners of the property. They became individual owners of their respective portions. Being joint owners they could not stand on the same footing as co-owners nor could file one suit. Knowing fully well that they were owners of their respective portions they entered into three different transations/ lease deeds. By filing one suit they tried to over reach the jurisdiction of Civil Court. If separate suits had been filed, the cases could not have been filed before the earned District Judge.
8. Refuting these contentions Mr. V.P. Singh pointed out that admittedly suit property was let out by three different lease deeds, however, in the lease it was made clear that the respondents had 1/3 undivided share in the property. The appellant vide Exhibit PW-2/1 i.e. the objections filed by him with the Municipal Corporation of Delhi admitted the terms of the lease. Not only appellant admitted this fact vide his objections, he also admitted the factum of respondents having undivided share in the suit property vide paras 2 to 4 of his written statement on merits. In para Nos.
2 to 4 of the plaint it was specifically pleaded that each of the respondents, had 1/3rd undivided shares in vacant plot bearing No. 487/31 (2 bighas 10 biswas). In reply appellant in his written statement admitted this fact. In view of these admissions Mr. V.P. Singh contended that the appellant cannot be allowed to turn around and say that the suit property stood partitioned or that respondents had identifiable shares. According to him, unless the oral partition is followed by dividsion by metes and bounds it is no partition in the eyes of law.
9. It appears what has been urged by Mr. S.K. Puri was the precise argument raised before the learned Lower Court and the Lower Court, to our mind, dealt the issue legally and competently, We find no substance in the contention of Mr. S.K. Puri. It is settled principle of law that oral partition as such does not indicate that the property ceases to be joint. The partition would take effect only when the shares are defined and there is a severance of the joint status. The parties may then make a physical division of the property by metes and bounds. It is only then the property ceases to be joint and the shares are defined. Otherwise the mere use of the expression in a letter that the property had been orally partitioned will not amount to a partition of the property taking place. A partition by actual division of property by metes and bounds will make the co-owner as the joint owner. To arrive at this conclusion reference can be made to the decision of Supreme Court in the case of S.K.Sattar S.K. Mohd. Choudhari Vs. Gundapa Amabadas Bukate, . The Apex Court was dealing with the initiation taken by the co-sharer for eviction of a tenant from the portion of tenanted accommodation and observed that tenancy cannot be split up either in estate or in rent or any obligation by unilateral act of one of the co-owners. If, however, all the co-owners or co-lessors agree among themselves and splited by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. However, in this case there is nothing on record to show that the partition of the suit property was carried out by metes and bounds. The only expression "oral partition" appears in Exhibit P-9 i.e. a letter written by the respondents to Municipal Corporation of Delhi challenging the assessment of property tax b itself does not indicate splitting of property by metes and bounds. Rather respondents denied the factum of partition in their plaint as well as in evidence. Mr. Rajinder Singh appearing as PW-1 in his examination-in chief recorded on 10th December, 1986 stated thus "as yet disputed plot had not been partitioned among the plaintiffs and all of us are co-shares". On this he was not subjected to any cross-examination though he was subjected to lengthy cross-examination. Rather to one question in cross-examination dated 19th July, 1988 he stated that they were co-owners of the suit property having 1/3rd undivided share. Vide Exhibit P-9 objections were raised by the respondents to the assessment of their property as assessed by the Municipal Corporation of Delhi. It is not uncommon that to avoid higher taxes such like pleas are taken by the owners of the property as taken by respondents in Exhibit P-9. This we can say because from all other documents and pleadings and evidence it gets clear that property was undivided and the respondents co-owners. This is all the more so in view of the admission made by the appellant in paras No. 2 to 4 of the Written Statement. Applant now cannot be allowed to blow hot and cold in the same breath. On the one hand that property stood partitioned and in pleading admitting the property to be jointly owned by the respondents. Mr. S.K. Puri tried to draw distinction in the case of S.K. Sattar Sk. Mohd. Chaudhary (supra) by placing reliance on the decision of Privy Council reported as Malik Harkishan Singh Vs. Malik Partap Singh, AIR 1938 Privy Council 189 and to contend that oral partition is sufficient. Division by metes and bounds is not an essential requirement of law. We are afraid this proposition is contrary to the settled law in view of Supreme Court decision quoted above and the decision of our own High Court in the case of Shri Shyam Sunder Sharma Vs. Smt. Prem Lata & Anr., 1986 (2) RCJ 375 where an eviction petition was filed of a part of premises by one of the owners. Petitioner therein admitted in his cross-examination that there was a partition between two joint owners and separate rent was being paid to each one of them from 1966 onwards. The factum of partition was also proved but it was admitted that there was no partition by metes and bounds between two joint owners. The partition deed also indicated how the share would devolve on the individual joint owner. The Rent Controller held that the petitioner had accepted partition when he started paying separate rent to each of the joint owners. In Civil Revision this Court held that separate payment of rent did not through light on the actual partition because there was no partition by metes and bounds. These observations in the case of Shyam Sunder Sharma (supra) squarely apply to the facts of this case. Merely because respondents had been receiving separate rents from the appellant and had entered into separate lease deeds would not be conclusive proof that partition by metes and bounds had taken place. Fact remains that the appellant had been enjoying the entire premises as one unit. This is coupled with the admission made by him in his written Statement that respondents had 1/3rd undivided share in the property. If the division of partition had already taken place the appellant would not have admitted the same in the written statement. In view of his admission in the pleadings, no amount of evidence which is at variance to the pleadings can be looked into. Mr. S.K. Puri did try to distinguish this case of Shyam Sunder Sharma (supra) by saying that the Court was primarily concerned with the area of tenancy and not with the partition. We find this line of his arguments without substance. In fact in view of the authoritative decision of the Supreme Court in SK. Sattar Sk. Mohd.Choudhary (supra) no more uthority is required to arrive at the conclusion that splitting of property by partition can only be by metes and bounds where definite, positive and identifiable shares in the property are carved out. It is only then the co-owners become separate individual owners of each served portion and can deal with that portion as also the tenant thereof as individual owner/lessor. But that is not the case in hand. No evidence had come on record to show that partition by metes and bounds look place. Merely saying south portion belonged to one brother, another south portion to another and the remaining to the third brother does not indicate definite, position and identifiable shares. Madras High Court in the case of S. Balakrishna Vs. Viswanathan & Ors., 1977 (1) RCR 209 observed that by paying rent in two halves to the co-owners of the tenanted premises no inference can be drawn that there was a separate tenancy. Single petition for eviction of such co-owner was held to be maintainable. In that case it was alleged that there was partition of the tenanted property between the co-owners. Court found that rent was being paid in two halves for the sake of convenience. Inference of partition on that basis could not be drawn. In this case also Mr. V.P. Singh stated that three lease deeds were executed for convenience but the suit property till date remained undivided and this fact has come on record by the unrebutted testimony of PW-1 and by admitted pleadings. The entire building is a one unit. It is in occupation of the appellant as one unit. In the facts of this case, there arose common question of law and facts. For the reasons stated above, it can safely be concluded that respondents did not suffer from multifariousness nor hit by the provisions of Order 1, Rule 1 CPC.
10. Now turning to the second limb of appellants, argument that suit property was not a vacant plot but a premises as there existed three rooms when the property was let out to him. We find this contention not based on any reliable evidence. Reliance on Khasra Girdawri to show that there existed some "Makan" (translated house) since 1976 is against the overwhelming evidence came on record. Khasra Girdawri by itself does not prove the correctness of this fact that the suit property when let out to the appellant had built up portion on it. Had it been so it sould have formed term of the lease deed. Admittedly an unregistered lease cannot be looked into yet for collateral purpose it can. Whether there existed some construction is a collateral purpose hence to that extent term of the lease can be passed in order to find out what was let. The learned Lower Court basing her conclusion on the term of lease and the oral and documentary evidence correctly concluded that vacant plot was let out on tenancy to the appellant. We find no material discrepancy in the conclusion arrived at by the Lower Court when in para 15 she concluded that the construction on the plot was merely a temporary structure which could be removed at any point of time. Khasra Girdawri does not conclusively prove that there existed permanent structure. Khasra Girdawri is not a conclusive piece of evidence of correctness of the entries made therein. It is so held by the Supreme Court in case of Jattu Ram Vs. Kakam Singh & Ors., wherein it has been observed that entries made by patwari in official record are only purpose and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same particularly in the absence of corroborative evidence. In the plaint in para No.1 it had been specifically pleaded that the respondents herein were owners of the plot. In para Nos. 2, 3 and 4 of the plaint it was pleaded that respondents herein let out their undivided 1/3rd share in the vacant plot bearing No.487/31 with boundary wall all around at a monthly rent of Rs.1167/- for a period of five years to the appellant. In response to paragraphs 1 to 4 of the plaint, the appellant in his written statement admitted the correctness of paras No.1 to 4 of the plaint, meaning thereby that the appellant admitted that tenancy was of a vacant plot. There was no super structure standing on it when plot was let out on tenancy. That the alleged one room, one tin shed and a hall were constructed by the appellant. Appellant admitted this fact in his objection Exhibit PW-2/1 filed with the Municipal Corporation of Delhi against the proposed property tax assessment wherein he stated that vacant plot was let out to him. He also admitted that it was leased to him on month to month basis and that there was only a temporary tin shed standing on iron pillars which could be removed any time and that no con-struction or any built up portion was there on the suit land when plot was let out to him. He, therefore, objected to the levy of house tax on a vacant piece of land as well as his liability to pay the tax. He also admitted vide Exhibit PW-2/1 that as per the terms of the lease he raised temporary construction for his business purpose which was to be removed at the time of handing over of possession to the lessors and that the total covered area of such temporary structure was less than 10,000 sq.ft. In para No.8 of objection Exhibit PW-2/1 he reiterated that for vacant plot no liability of any tax could be imposed. In view of this admission coupled with the admission made in the written statement, the learned Lower Court correctly concluded that vacant plot was let out to the appellant. Hence reliance on Khasra Girdawri could not have changed the actual position at the site. The objection Exhibit PW-2/1 was filed in 1983. At that time there was no dispute, therefore, appellant admitted that no super structure or built up area exist at the site and that only a vacant piece of land was let out to him. Now when the suit was filed he tried to wriggle out from his admissions. Therefore, took the plea that Exhibit PW-2/1 was not filed by him nor under his instructions. It was filed by the respondents under his name. To prove him wrong and to establish that Exhibit PW-2/1 was filed by the appellant through his counsel, the respondents herein had to summon his counsel Mr. Raman Kapoor in the witness box. Mr. Raman Kapoor appearing as PW-2 admitted that he filed the objections Exhibit PW-2/1 on behalf of the appellant herein. That the objections were filed on the instructions of the appellant. This fact in itself proves that the appellant could not be relied upon. He tried to resile from his own admission made vide Exhibit PW-2/1 by deliberately mis-representing the facts in order to misguide the Court. In view of the overwhelming evidence which has come on record, the learned Lower Court's conclusion cannot be faulted that vacant plot was let out to the appellant by the respondents. Even otherwise as per appellant's own showing out of an area of 2 bigha 10 biswas less than 10,000 sq. ft. was the covered area where temporary structure had been raised i.e. one tin shed, one room and a hall. The built up area being a temporary structure cannot be called premises nor the vacant plot can be adjunct of this temporary structure. It can hardly be called premises. The dominant portion of the property let out as emerged from the evidence was vacant piece of land at best with temporary structure standing on iron pillars. That could be adjunct to the vacant plot. This temporary structure was raised by the appellant as admitted by him vide Exhibit PW-2/1. It was his requirement of running his business which he was to remove on the expiry of the lease period. As the construction was raised by the appellant after the property was let hence by no means it could be said that property let out to the appellant was premises as defined under Section 2(1) of DRC Act. Thus suit was properly instituted and was not hit by the provisions of delhi Rent Control Act.
11. We also find no force in the submission of Mr. S.K. Puri that the notice under Section 106 of TP Act was defective because property was let out for industrial purpose hence six month's notice was required to be given. Admittedly the lease is an unregistered document. In the absence of registration no evidentiary value can be attached to the same. Letting purpose cannot be looked into from an unregistered lease deed. It is not a collateral purpose. In such an eventuality the tenancy will be from month to month. This was in the knowledge of the appellant, that is why vide Exhibit PW-2/1 he admitted that it was an unregistered lease deed and the tenancy was from month to month basis. We do not find any fault in the notice under Section 106 of TP Act. It being a month to month tenancy the learned Lower Court correctly concluded that notice was valid. On this count also we find no infirmity in the conclusion arrived at by the Court below.
12. Lastly Mr. S.K. Puri raised the cotention that the Lower Court misdirected herself by relying on the testimony of PW-5 whom the respondent had given up. We have persued the record and find substance in his this submission. Respondents had given up their witness PW-5. Counsel's statement to this effect was recorded on 9th July, 1998. There appears to be omission on the part of the Lower Court in discussing the testimony of PW-5 who had been given up. It could be by inadvertence that the learned Lower Court mentioned about the testimony of PW-5. But that cannot be a ground to set aside the impugned judgment and decree because even if the testimony of PW-5 is ignored, the finding would still be the same. There is otherwise overwhelming oral and documentary evidence to prove that vacant plot only was let. PW-5 was only a neighbour, his testimony was not based on any document. Therefore, on account of this minor lapse, it will not annul the decision which has been correctly arrived based on other oral and documentary evidence.
13. For the reasons stated above, we find no merits in the appeal. Dismissed.