Delhi District Court
Abdul Wahid vs Rahis Khan on 9 November, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 476551/2015
CNR No. DLNE01-000781-2015
Abdul Wahid
S/o Sh. Abdul Hakim
R/o H. No. E-125, Gali No. 5,
Shastri Park, Delhi. .....Plaintiff
Versus
1. Mohd. Rahis Khan
S/o Sh. Jamil Khan
2. Zubeda
W/o Sh. Rahis Khan
Both residents of H. No. A-6,
Gali No. 9, Shastri Park, Delhi.
Also at:-
Shop/property No. E-11/A-488,
Old No. E-11A/54, T-Hut main road,
Near Buland Masjid, Shastri Park, Delhi. ..... Defendants
Date of Institution : 07.01.2015
Date of Reserving Judgment : 09.11.2023
Date of Judgment : 09.11.2023
JUDGMENT
CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 1 of 23
1. The present suit has been filed by the plaintiff against the defendants seeking the possession, cancellation, declaration, recovery of rent, arrears, damage & mesne profits, permanent and mandatory injunction.
2. Brief facts, as stated in the plaint are that the plaintiff is the exclusive and lawful owner of the suit property that is a shop in property bearing number E-11/A-488, old number E-11A/54, T-Huts main road, Near Buland Masjid, Shastri Park, Delhi. It is stated that the defendant number 1 is the tenant of plaintiff, in aforementioned shop, at the rate of rupees 7,000/- per month excluding the electricity and water charges. It is stated that defendant number 1 had got executed the rent agreement on 01.01.2013 and the period of tenancy was fixed as eleven months that is from 01.01.2013 to 30.11.2013. It is further stated that at the time of execution of rent agreement, defendant number 1 had also deposited an amount of rupees 12,000/- as security to the plaintiff. It is further stated that the defendant number 2 is the wife of defendant number 1. It is stated that it is the defendant number 2 who had prepared the forged and manipulated documents qua the tenanted shop of the plaintiff in collusion with defendant number 1.
It is further stated that after preparing the forged and fabricated documents, defendant number 1had applied for the electricity connection vide order number 8001001105 dated 18.06.2013, in the name of defendant number 2. It is further stated that after receiving the information, plaintiff had lodged various complaints against defendant number 2 and her husband that is defendant number 1. It is further stated that because of filing of complaints, defendant number 1 had got annoyed from the plaintiff and beat him. It is further stated that later on, electricity connection installed in the name of plaintiff was disconnected. It is further CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 2 of 23 stated that despite taking objections before the electricity company BSES, it had not taken any action against the defendants. It is further stated that the plaintiff had also asked for rent, but, the defendants and their associates used filthy language and gave beatings to the plaintiff on 08.11.2013, for which 100 number call was also made.
It is further stated that the plaintiff had purchased the tenanted shop that is E-11/A-488, old number E-11-A/54, T-Huts, main road, near Buland Masjid, Shastri Park, Delhi from Smt. Abida W/o Sh. Afaq on 29.08.2000 measuring 20 square yards for a total consideration amount of rupees 80,000/-. It is further stated that Smt. Abida had executed General Power of Attorney, agreement to sell, payment receipt, etc. in favour of plaintiff and handed over the vacant and physical possession of the suit property to the plaintiff. It is further stated that the defendants are basically land mafia and are in the habit of creating the disputes in collusion with the tenants. Various criminal cases are also pending against the defendants especially First Information Report bearing number 186/2014 and 607/2014 under section 420/467/468/471/34 of Indian Penal Code.
It is further stated that the defendants are in the habit of stealing the electricity and selling the same to other persons for which complaints were been made before electricity company BSES, but, again it failed to take any legal action against the defendants. It is further stated that the plaintiff had lodged the complaint against the defendants regarding attempt to grab the suit property before the Sub Divisional Magistrate, Seelampur, Delhi vide DD No. 4180, dated 24.03.2014, and said complaint was marked to Station House Officer of Police Station New Usmanpur. It is further stated that the defendants are habitual litigants and filed various cases against the plaintiff and other persons with malafide intention to extort money from them. It is further stated that the plaintiff had sent a legal notice, dated 16.07.2013, to defendant number 1 thereby terminating the tenancy with CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 3 of 23 immediate effect and asked him to hand the peaceful and vacant possession of the suit property. It is further stated that defendant number 2 is basically unauthorized occupant/sub-lettee of defendant number 1 and tenancy period had already expired on 30.11.2013. It is therefore requested by the plaintiff that a decree of possession, declaration, damages, recovery of rent, permanent and mandatory injunction be passed in favour of plaintiff and against the defendants.
3. Common written statement has been filed on behalf of both the defendants in which in which apart from denying the allegations, levelled in the plaint, it is stated by the defendants that they have been earning the livelihood by running a Vaishno Hotel (Shudh Shakahari Bhojanalaya) at the suit property which is owned by defendants. It is stated that the plaintiff has also been residing in the immediate neighbourhood of defendants' shop and they are not sharing good terms with each other. It is stated that, on 28/29.08.2013, at about 12:15 pm, plaintiff and his son had attempted to break open the locks of the shop of defendants, but, because of timely intervention of the defendants, they were not successful in their plan. It is further stated that on the pretext of procuring a shop for the defendants, plaintiff had taken an amount of rupees 12,000/- from the defendants in the month of January 2013. It is stated that though plaintiff did not fulfil the aforesaid promise and even not returned the amount taken from the defendants. It is further stated that on 08.11.2013, defendant number 2 had requested the plaintiff to return back the amount of rupees 12,000/-. In the evening of the same day, plaintiff and his wife alongwith other relatives/associates came at the shop of defendants and started quarreling for which police was called by dialing at 100 number.
It is further stated that in the aforesaid incident, defendants had suffered serious injuries. It is stated that police had not taken any action CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 4 of 23 against the plaintiff, despite, the complaint made by the defendants. It is stated that the plaintiff and his associates continued to abuse the defendants in filthy language even in the presence of police officials in the hospital. Police officials inspite of all these misdeeds of the plaintiff did not register any case against the plaintiff as they were acting hand in gloves with the plaintiff. It is further stated that the defendants are still under the apprehension of mishappening as plaintiff and his associates had already threatened them to kill. Plaintiff and his associates also pressurized the defendants to vacate and hand over the possession of the suit property. It is stated that the defendants might be dispossessed from the suit property by the plaintiff and his family members with the use of force.
It is further stated that plaintiff and his associates had even tried to forcibly dispossess the defendants. It is further stated that the present suit is filed with the ulterior motive to mislead the Hon'ble Court as plaintiff is neither the owner nor the landlord of the suit property. It is stated that the defendants are the lawful owner of the suit property as they had purchased the same from their own funds, savings and hard earned money. It is further stated that the defendants are in the possession of the suit property being sole and absolute owner of the same. It is further stated that the plaintiff had gone to all the extent to implicate the defendants in false cases. It is further stated that there is no question of payment of rent by the defendants as they are the lawful owner of the suit property. It is also stated that no cause of action had accrued in favour of plaintiff as plaintiff has no right, title or interest in the suit property. It is therefore requested that the suit of plaintiff be dismissed.
4. Replication to the written statement of defendants was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 5 of 23
5. On the basis of pleadings, the following issues were framed:-
(i) Whether there exists relationship of landlord and tenant between the plaintiff and defendant? OPP
(ii) Whether the plaintiff has concealed the material facts and if so, its consequences? OPD
(iii) Whether the defendant is the owner of the suit property and thus, plaintiff has no locus standi to file the present suit? OPD
(iv) Whether the valuation of the suit for the purpose of Court fee and jurisdiction is not correct? OPD
(v) Whether the plaintiff is entitled for a decree of possession as prayed for?
(vi) Whether the plaintiff is entitled to seek cancellation of documents in respect of property/shop bearing E-11/A-488 (Old no. E-11-
A/54), T-Huts, Main Road, Near Buland Masjid, Shastri Park, Delhi, as prayed for? OPP
(vii) Whether the plaintiff is entitled for a decree of declaration, as prayed for? OPP
(viii) Whether the plaintiff is entitled for the decree of arrears of rent, as prayed for? OPP
(ix) Whether the plaintiff is entitled for recovery of the damages as claimed? OPP
(x) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
(xi) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
(xii) Relief.
6. After framing of issues, plaintiff has led his piece of evidence.
CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 6 of 23 Plaintiff got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. He tendered his evidence by way of affidavit which is Ex.PW1/B and relied upon the documents i.e. site plan as Ex.PW1/1, copy of rent agreement, dated 01.01.2013, as Ex.PW1/2 (OSR), photographs of the suit shop as Ex.PW1/3 (OSR), copy of complaint to BSES Yamuna Power Ltd. in respect of electricity meter as Ex.PW1/4, photographs of BSES slip as Ex.PW1/5, visiting card of plaintiff as Ex.PW1/6 (OSR), complaint, dated 24.07.2013 to BSES Yamuna Power Ltd. as Ex.PW1/7 (OSR), copy of complaint to BSES Yamuna Power Ltd. in respect of electricity order number 8001001105 as Ex.PW1/8, MLC number 30 of plaintiff as Ex.PW1/9 (OSR), copy of MLC number 107692, dated 08.11.2013 of wife of the plaintiff as Ex.PW1/10, legal notice, dated 16.07.2013, as Ex.PW1/11, election I Card number DL/04/049/012152, dated 27.03.1995 as Ex.PW1/12 (OSR), survey card number 246371, dated 23.02.1990 of plaintiff as Ex.PW1/13 (OSR), acknowledgment slip for registration-cum-demand note, dated 06.10.1997, vide number 697316 as Ex.PW1/14 (OSR), copy of General Power of Attorney, agreement to sell, payment receipt, affidavit, all dated 29.08.2000 in favour of plaintiff as Ex.PW1/15 (colly) (OSR), cash/credit memo number 245, dated 18.03.2005 as Ex.PW1/16 (OSR), copy of complaint DD No. 33B, dated 25.05.2006 as Ex.PW1/17 (OSR), copy of gas book number 3504126, dated 05.02.2006 as Ex.PW1/18 (OSR), PW1 has also relied upon copy of income certificate, dated 29.12.2000 as Ex.PW1/19, copy of Sahara Pass Book number 233, dated 14.03.2007 as Ex.PW1/20 (OSR), copy of Central Bank pass book of SB Account number 949, dated 06.01.2007 as Ex.PW1/21 (OSR), copy of ration card number BPL 49500043, dated 25.06.2008 as Ex.PW1/22 (OSR), copy of Central Bank pass book number 1682052080, dated 17.05.2008 as Ex.PW1/23 (OSR), copy of electricity bill of CA number CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 7 of 23 1250230061, dated 04.10.2008 as Ex.PW1/24 (OSR), copy of provisional receipt number 343805, dated 14.07.2009 as Ex.PW1/25 (OSR), copy of provisional receipt number 352650, dated 11.08.2009 as Ex.PW1/26 (OSR), copy of vodafone bill of phone number 9873000596, dated 20.08.2009 as Ex.PW1/27 (OSR), copy of electricity bill, dated 29.09.2009 as Ex.PW1/28, copy of affidavit number 37AA 899880, dated 27.10.2010 as Ex.PW1/29, copy of electricity bill of CA number 1250230061, dated 30.01.2010 as Ex.PW1/30 (OSR), copy of electricity bill of CRN number 1250230061, dated 02.06.2011 as Ex.PW1/31 (OSR), copy of electricity bill due date 13.08.2012 of CRN number 1250230061 as Ex.PW1/32 (OSR), Copy of customer request letter, dated 17.01.2013 of CA number 1250230061 as Ex.PW1/33 (OSR), copy of complaint case filed by plaintiff against the defendants as Ex.PW1/35 (colly), copy of First Information Report bearing number 186/2014, Police Station Seelampur, Delhi as Ex.PW1/36, status report filed by the IO before the PG Cell, North East Delhi, dated 26.08.2014 as Ex.PW1/38, copy of complaint, dated 31.08.2013 as Ex.PW1/39, copy of complaint, dated 30.09.2013 as Ex.PW1/40, copy of complaint, dated 16.07.2013 filed by Rajda as Ex.PW1/42, copy of action taken report, dated 18.12.2013 vide number PGC/2012/BP/40685 as Ex.PW1/43 (document is not visible and contents cannot be read), copy of letter, dated 26.02.2014 received by Mohd. Umar as Ex.PW1/44.
PW1 has also relied upon copy of complaint, dated 24.02.2014 filed by Mohd. Umar as Ex.PW1/45, copy of complaint, dated 26.05.2007 filed by Shamshu Duz Begum as Ex.PW1/46, copy of complaint, dated 21.03.2014 filed by plaintiff as Ex.PW1/47, copy of General Power of Attorney, agreement to sell, affidavit, Will, receipt, all dated 09.05.1989 prepared by defendants as Ex.PW1/48 (colly), copy of General Power of Attorney, agreement to sell, affidavit, receipt, Will, all dated 19.02.1985 CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 8 of 23 prepared by the defendants as Ex.PW1/49 (colly), copy of new electricity connection application form of defendant number 2, dated 25.06.2013 as Ex.PW1/50, copy of Indemnity Bond of defendant number 2, dated 25.06.2013 as Ex.PW1/51, copy of Election I Card RRP 1520568 in the name of defendant number 2 as Ex.PW1/52, copy of First Information Report bearing number 607/2014, Police Station Seelampur as Ex.PW1/53, copy of written statement filed by plaintiff in case titled as Zubeda vs. Abdul Wahid & Ors. as Ex.PW1/54 and copy of action taken report vide DD No. 28B, dated 26.08.2014 as Ex.PW1/55.
PW1 was cross examined at length by Ld. Counsel for defendants. During the course of his cross examination, PW1 has clarified that number of the shop was changed from A-48 to A-54 as was informed through the letter of the Municipal Corporation of Delhi. The relevant card in that regard is Ex.PW1/13. PW1 has further submitted that the possession of the suit property was handed over to him by Smt. Abida on the date of the execution of the General Power of Attorney, agreement to sell, affidavit, receipt, etc. Sh. Asmat Ali Khan was examined as PW2. PW2 in his examination in chief deposed that he is the neighbour of the plaintiff and eye witness of execution of the rent agreement, dated 01.01.2013, executed by defendant number 1 as tenant in respect of suit property for a period of 11 months from 01.01.2013 to 30.11.2013. PW2 has further deposed that all the terms and conditions of the aforesaid rent agreement were settled in his presence and both the parties put their signatures in the presence of PW2. Marginal witnesses including him also put their signatures on the aforesaid rent agreement. PW2 has further deposed that Sh. Abdul Wahid S/o Sh. Abdul Hakim is the exclusive and lawful owner of the suit property having purchased the same from one Abida after paying the full and final settled sale consideration amount of rupees 80,000/- on 29.08.2000. CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 9 of 23 PW2 further deposed that Smt. Abida had also executed the sale/transfer/ownership documents in favour of plaintiff and handed over the vacant and peaceful possession of the suit property to the plaintiff. PW2 has further deposed that thereafter, plaintiff got installed the electricity and telephone connection in his name in the suit property. PW2 has further deposed that the defendant number 1 is the tenant under the landlordship/ownership of plaintiff at the rate of rupees 7,000/- per month. Defendant number 1 had also deposited an amount of rupees 12,000/- as security money with the plaintiff. PW2 has further deposed that both the defendants are habitual litigants. Thereafter, PW2 tendered his evidence by way of affidavit which is Ex.PW2/A. PW2 was cross examined at length by Ld. Counsel for defendants. During the course of his cross examination, PW2 has submitted that agreement was already prepared when it was brought before him. PW2 had also seen the suit property's paper in the name of plaintiff Abdul Wahid. PW2 has also submitted that the rent was paid to the plaintiff by the defendant in his presence. PW2 has also submitted that defendants are involved in various other cases.
Sh. Zahid Ali was examined as PW3, but, later on, he was dropped vide statement, dated 07.04.2017 by the plaintiff.
Ms. Raheesa was examined as PW4. PW4 has deposed in her examination in chief that being the neighbour, she had eye witnessed the rent agreement, dated 01.01.2013 which was executed between defendant number 1 as tenant and the plaintiff as owner. Both the parties put their signatures in her presence and in the presence of other marginal witnesses, namely, Mohd. Alam and Asmat Ali Khan, who also put their signatures on the agreement, dated 01.01.2013. Thereafter, PW4 has deposed similarly as that of plaintiff and especially as that of PW2. PW4 tendered her evidence by way of affidavit which is Ex.PW4/A. PW4 was cross CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 10 of 23 examined by Ld. Counsel for defendants. During the course of her cross examination, PW4 has submitted that the plaintiff had purchased the suit property from Smt. Abida.
Sh. Sattar was examined as PW5. PW5 has deposed similarly as that of plaintiff PW1, PW2 and PW4. PW5 in his examination in chief has submitted that he had seen the title documents in the name of plaintiff. Thereafter, PW5 tendered his evidence by way of affidavit which is Ex.PW5/A. PW5 was cross examined at length by Ld. Counsel for defendants. During the course of his cross examination, PW5 submitted that he has seen the title documents of the suit property in the name of plaintiff which was purchased by him in the year 2000. PW5 has also submitted that tenancy was started with effect from 01.01.2023.
Sh. Mukesh Pal, Upper Division Clerk (UDC) from the office of SDM, Seelampur, Delhi was examined as PW6. He produced the photocopy of letter, dated 29.03.2014 issued by Sh. L.S. Yadav, SDM, Seelampur by which the complaint of Sh. Abdul Wahid against Mohd. Rahees S/o Sh. Jamil Khan and Zubeda W/o Sh. Rahees, was received in their office vide diary number 4184, dated 24.03.2014 was forwarded to the Station House Officer, New Usmanpur, Delhi for immediate necessary action. Photocopy of the said letter is Ex.PW6/A. He also produced the diary register and the copy of same is Ex.PW6/B. Sh. V.S. Mann, Upper Division Clerk (UDC), from the office of Election Office, AC-60 (Krishna Nagar), Geeta Colony, Delhi was examined as PW7. He produced the report regarding the verification of the voter ID Number DL/04/049/012152, dated 27.03.1995. The verification report alongwith electronically computer generated copy of electoral roll management system is Ex.PW7/A (colly).
Sh. Rajeev Kumar Sharma, Section Officer from the office of BSES Yamuna Power Limited, Division Yamuna Vihar, Delhi was examined as CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 11 of 23 PW8. He produced the copy of record pertaining to request number 8001042488 made by applicant Abdul Waheed S/o Abdul Hakim for installation of an electricity connection at E-11, A/488, Buland Masjid, Shastri Park, Delhi-53. The photocopies of the inspection report and the other documents of the said file are Ex.PW8/A (colly, running into 20 pages). He also produced the copy of record pertaining to the request number 8001001105 made by applicant Smt. Zubeda W/o Mohd. Rahees for installation of an electricity connection at A-54, Ground Floor, Main Road, Buland Masjid, Shastri Park, Delhi behind Rafeejiya Masjid, Delhi-
53. The photocopies of the inspection report and the other documents of the said file are Ex.PW8/B (colly, running into 28 pages). PW8 has further deposed that the record of CA number 101316907 in the name of Abdul Waheed R/o E-11, A488, Buland Masjid, Shastri Park, Delhi-53, installed, on 07.06.2008 is not traceable due to record shifting to Noida, U.P. The certificate in this regard issued by Sh. Vipin Gautam, Assistant Manager (Power Supply), Division Yamuna Vihar, BSES is Ex.PW8/C. Sub Inspector Rahul, from the office of Deputy Commissioner of Police, North East District, Complaint Branch, Delhi was examined as PW9. He produced the summoned record of complaint, dated 26.08.2014, lodged by Abdul Waheed S/o Abdul Hakim, R/o E-11/A488, Buland Masjid, Shastri Park, Delhi-53 against Mohd. Rahees and Zubeda. The inquiry report on the said complaint is Ex.PW9/A (running into 9 pages).
Sh. Anil Kumar, Circle-65, Seelampur, Inspector Food and Supply Department, DDA Complex, Shastri Park, Delhi was examined as PW10. He produced the summoned record of BPL card number 49500043. PW10 deposed that the said BPL card did not pertain to circle number 65 (Seelampur). The same pertains to circle number 61 (Gandhi Nagar). However, he produced the computer generated record of the ration card number 077000784010 from circle number 61. As per the record, Hasida CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 12 of 23 Begum was the head of the family and the old BPL card has been converted into NFS card number 077000784010 in the name of Smt. Hasida Begum, at circle 61, Gandhi Nagar. The report in this regard alongwith computer generated record running into three pages are Ex.PW10/A. Constable Pooran from Police Station Seelampur was examined as PW11. He produced the record of First Information Report bearing number 607 dated 15.09.2014, under section 468/471/506/34 of Indian Penal Code, Police Station Seelampur. Copy of same is Ex.PW11/A (OSR). He also produced the record of First Information Report bearing number 186 dated 20.03.2014 under section 420/467/468/471/34 of Indian Penal Code of Police Station Seelampur. The copy of First Information Report bearing number 186 dated 20.03.2014 is Ex.PW11/B (OSR).
Thereafter, plaintiff closed his evidence and matter was proceeded further for taking on record defendant's evidence. Despite opportunities given to defendants on various occasions by law and later on, by Court itself, they have failed to lead their piece of evidence and defence evidence was accordingly closed vide order dated 09.01.2020.
7. I have heard the arguments advanced on behalf of all the parties and perused the case file carefully. Written submissions have also been filed on behalf of both the parties.
Plaintiff has made detailed arguments/filed written submissions in which he has reiterated the contents of the plaint as well as his deposition made by him before the Court. It is submitted by the plaintiff that the defendants are involved in illegal activities and a First Information Report bearing number 186/2014 under section 420/467/468/471/34 of Indian Penal Code at Police Station Seelampur was lodged against them alongwith another First Information Report bearing number 607/2014 CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 13 of 23 under section 420/468/471/06/34 of Indian Penal Code was lodged by the plaintiff against them. Thereafter evidence led by the plaintiff and the other witnesses on behalf of plaintiff discussed vis-a-vis contentions/averments in the plaint. It is stated that PW2, who is also one of the attesting witnesses of the rent agreement Ex.PW1/2 has deposed in favour of plaintiff. The other witnesses that is PW5, PW6 and PW7 have also deposed in favour of plaintiff qua the rent agreement. It is also stated that despite giving opportunities to the defendants on various occasions and especially, the opportunity given after the imposition of the cost for leading the defence evidence, defendants miserably failed to lead evidence. It is stated that no application/appeal/revision was filed by the defendants against closing of defendants' evidence. It is stated that the plaintiff has filed the present suit as per law and it has been completely proved by plaintiff in accordance with the balance of probabilities.
Defendants have also chosen to file two sets of written submissions. In the first written submissions filed by the defendants, again, apart from reiterating the facts mentioned by the defendants in their written statement. It is stated that there is apprehension that any mishappening may be caused at any point of time as the plaintiff and his associates threatened the defendants. In this regard, defendants have also lodged police complaint. Plaintiff and their associates tried to forcibly dispossess the defendants from the suit property though they were not successful. Defendants suffered irreparable injury because of plaintiff. Defendants were constrained to file the suit against the plaintiff. It is stated that the present suit is an abuse of process of law and plaintiff has dragged the defendants in the vexatious litigations.
Additional set of written submissions has also been filed by the defendants in which it is stated that the plaintiff is claiming the ownership rights over the suit property, but, it is the defendants who are the absolute CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 14 of 23 owner of the property in question and latter are residing in the suit property since many years. It is stated that the plaintiff could not claim the ownership right over the suit property on the basis of the documents relied upon by him in light of Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr (2012) SCC 656 and Ram Chandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (2007) 6 SCC 737.
8. After recording the gist of evidence led by both the parties and discussing the written submissions filed on behalf of parties, let me record the findings on each issue.
Issue number 1, that is, whether there exists relationship of landlord and tenant between the plaintiff and defendant? Issue number 5, that is, whether the plaintiff is entitled for a decree of possession as prayed for? Issue number 6, that is, whether the plaintiff is entitled to seek cancellation of documents in respect of property/shop bearing E-11/A-488 (Old no. E-11-A/54), T-Huts, Main Road, Near Buland Masjid, Shastri Park, Delhi, as prayed for? Issue number 7, that is, whether the plaintiff is entitled for a decree of declaration, as prayed for? Issue number 10, that is, whether the plaintiff is entitled to a decree of permanent injunction as prayed for? and Issue number 11, that is, whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? The onus of proving these issues is upon the plaintiff. As all these issues are interconnected and having the bearing upon each other as well as on the other issues are taken up together and in preference to other issues.
First of all, it is relevant here to mention the words/observations of Denning LJ (Bater v. B, 1950, 2 All ER 458,459) that in law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 15 of 23 there may be degrees of proof within that standard. So, also in civil cases there may be degrees of probability. Agreeing, with this statement of law, Hodson, LJ observed that just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.
Also, it is observed by the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, 2003 SCC Online SC 1117 that: "....Whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case...."
Secondly, the burden of proof/onus also needs to be discussed as both these are relevant in the present scenario. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial plaintiff has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 16 of 23 evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Reliance is placed upon 'The Law of Evidence' by Rattan Lal & Dhiraj Lal. With respect to the Indian Evidence Act, as per, Section 101 of the Act, burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Act also says that the burden of proof lies on the person, who would fail, if no evidence was given at either side.
Until, such burden is discharged the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. A party has to plead the case and produce / adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Reliance is placed upon Life Insurance Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693.
Now, in the instant case, burden of proof with respect to the fact that plaintiff is entitled to the possession of the suit property falls upon the plaintiff and the same has to be discharged by the plaintiff, in the light of, the specific counter allegations of the defendants. This is a peculiar case where not only the landlord tenant relationship is disputed by the defendants, but the ownership of the plaintiff as well, as defendant has CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 17 of 23 claimed himself to be the owner of the suit property. Going by the sequencing it seems appropriate that aspect of ownership be dealt before the analysing the validity of rent agreement. It is evident in light of detailed discussion above that to prove his averments plaintiff has to lead evidence which has to be appreciated in light of preponderance of probabilities. Plaintiff has himself appeared in the witness box as PW1 and relied upon the wide range of the documents viz. General Power of Attorney, agreement to sell, affidavit, receipt, all dated 29.08.2000 executed in favour of plaintiff by the admitted erstwhile owner. A person strictly may not have complete ownership rights unless there is duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of Transfer of Property Act, 1882 and Section 202 of Contract Act, 1872. By virtue of both these sections possessor of Power of Attorney, agreement to sell, Will, etc. which in this case is the plaintiff may not be a classical owner of the suit property, but, he can be said to have better rights/entitlement of possession of the suit property than the defendants.
Thus, right to possession of an immovable property arises not only from a complete ownership right in the property, but, having a better title or a better entitlement/right to possession of the property than qua the person who is in actual physical possession thereof. Reliance is placed upon Shri Ramesh Chand v. Suresh Chand & Anr on 09.04.2012 decided by Hon'ble High Court of Delhi, Maya Devi v. Lalta Prasad 2014 Legal Eagle (SC) 120, Hardip Kaur v. Kailash (2012 ) 193 DLT 168 and Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeira (Dead) through LRs. Civil Appeal No. 2968/2012 (arising out of SLP (C) No. 15382/2009. In view of the aforesaid facts/evidence/discussion plaintiff though is not the classical owner of suit property as would an owner be under a duly registered sale deed, but he would have better CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 18 of 23 rights/entitlement of possession of the suit property than the defendants.
Further, the plaintiff has also relied upon rent agreement Ex.PW1/2 (OSR) and got examined one of the signatories of the rent agreement that is Sh. Asmat Ali Khan, who has deposed in favour of PW1/rent agreement. It has been observed in judgment titled as Maria Margarida Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria(Dead) through L.Rs., Civil Appeal No. 2968/2012 by Hon'ble Supreme Court that "...in an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession..."
Undisputably, two terms that are 'burden of proof' and 'onus of proof' has subtle difference, while, former never shifts latter keeps on shifting. Such a shifting of onus is a continuous process in evaluation of the evidence. The evidence required to shift the burden need not necessarily be a direct evidence i.e. oral or documentary evidence and it may include circumstantial evidence of even presumption of law or fact. In these circumstances it seems that plaintiff has well discharged their burden CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 19 of 23 of proof in terms of preponderance of probability as is earlier discussed in detail which is required in Civil Law. Now, onus is upon the defendant that the plaintiffs are not entitled to possession defendants must have given a detailed specific pleading alongwith documents to support their claim alongwith details of conduct which established possession. All relevant documents must also necessarily be produced during course of evidence but same were never produced as despite opportunities given on various occasions and to say even after intervention of Court, defendants miserably failed to lead any evidence to substantiate their claim of ownership over the suit property. Any person stressing a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading alongwith documents to support his claim and details of conduct which establish possession which defendants miserably failed to do. Even in their affidavit of evidence lying untendered in file no iota of documents mentioned to support their claim.
Otherwise also, though, the Civil and Criminal Proceedings are not overlapping still it needs to be pointed out that on the basis of complaint of the present plaintiff, First Information Report was registered against the defendants in connection with the suit property. Therefore, it can be summed up that onus is on the plaintiff to prove his ownership over the suit property and it is he who must establish his clear right, title and nature of possession superior to that of the person who is already in possession of the suit property. To be more precise, a claimant/plaintiff has to establish a clear title which must be superior to or say a better than the title of non- claimant/defendant which in light of above discussion here plaintiff successfully discharges. Defendants on the other hand have not lead any evidence despite repeated opportunities given on various dates for the reason best known to them and thus miserably fail to discharge the onus falling upon them. Also, as defendants have miserably failed to lead CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 20 of 23 evidence or say exhibited any document/produce any document qua their ownership with respect to the suit property therefore, there seems to be reason for delving into the issue of cancellation and declaration, as prayed for by the plaintiff. Accordingly, these issues are decided in favour of plaintiff.
Issue number 2, that is, whether the plaintiff has concealed the material facts and if so, its consequences? Onus to prove this issue is upon the defendants. As the issue number 1, 5, 6, 7, 10 and 11 have already been decided against the defendants, this issue is also decided against the defendants.
Issue number 3, that is, whether the defendant is the owner of the suit property and thus, plaintiff has no locus standi to file the present suit? As the issue number 1, 5, 6, 7, 10 and 11 have already been decided against the defendants, this issue is also decided against the defendants.
Issue number 4, that is, whether the valuation of the suit for the purpose of Court fee and jurisdiction is not correct? The onus to prove this issue is upon the defendants. No evidence/submissions in that regard has been put forward by the defendants during the course of oral submissions. Further, after perusing the case file properly in light of the Suit Valuation Act/Court Fees Act/Civil Procedure Code, there seems to be no reason for arriving at such conclusion. Accordingly this issue is decided against the defendants.
Issue number 8, that is, whether the plaintiff is entitled for the decree of arrears of rent, as prayed for? and Issue number 9, that is, whether the plaintiff is entitled for recovery of the damages as claimed? The onus of proving both these issues is upon the plaintiff. As per the rent agreement Ex.PW1/2 (OSR) no doubt, it is one of the conditions that the rate of rent would be increased by 10% after the period of 11 months, but, that has to be with mutual consent of the parties and if the agreement was CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 21 of 23 extended for further period. Plaintiff has miserably failed to produce any relevant evidence/rent agreement regarding the fulfilment of these conditions which are to be completed before enhancement of rent. Therefore, there seems to be no reason for granting the rent at higher rate than as found mentioned in the Ex.PW1/2 (OSR). Accordingly, rent at the rate of rupees 7,000/- per month is granted to the plaintiff with effect from 01.01.2013 to 15.09.2013. Further, the plaintiff has miserably failed to lead any evidence with regard to damages as claimed. No affirmative evidence/proof has been put forward by the plaintiff despite availing opportunities with respect to the mesne profits/damages. Neither any such averment found mentioned either in the plaint or even in the affidavit of evidence filed by the plaintiff. Accordingly, mesne profits/damages at the rate of rupees 7,000/- per month is granted to the plaintiff with effect from 16.09.2013 till the handing over the vacant and physical possession of the suit property to the plaintiff.
9. Thus, in the totality of circumstances and in view of foregoing discussion of the case coupled with evidence adduced on record by plaintiff, the suit of the plaintiff is decreed in favour of plaintiff and against the defendants in the following terms:- A decree of permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendants from handing over the possession of suit property bearing E-11/A-488, old number E-11A/54, T-Huts main road, Near Buland Masjid, Shastri Park, Delhi to anybody other than the plaintiff. Further, a decree of possession is passed in favour of plaintiff and against the defendants thereby defendants are directed to hand over the vacant and physical possession of property bearing number E-11/A-488, old number E-11A/54, T-Huts main road, Near Buland Masjid, Shastri Park, Delhi. Further, defendants are directed CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 22 of 23 to pay the rent at the rate of rupees 7,000/- per month to the plaintiff with effect from 01.01.2013 to 15.09.2013. Defendants are also directed to pay an amount of rupees 7,000/- per month towards mesne profits/damages to the plaintiff with effect from 16.09.2013 till the handing over the vacant and physical possession of the suit property to the plaintiff, subject to furnishing of deficit Court fee, if any by the plaintiff.
10. Parties to bear their own costs.
11. Decree sheet be prepared accordingly.
12. File be consigned to Record Room after necessary compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 09th November, 2023 CS No. 476551/2015 Abdul Wahid Vs. Mohd. Rahis Khan & Anr. Page No. 23 of 23