Delhi District Court
Sh. Parshotam Dass Seth vs Shri Kanhaya Lal Seth Son Of Shri Banwari ... on 25 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 161/2012
IN THE MATTER OF:
Sh. Parshotam Dass Seth
son of Shri Banarshi Lal Seth
R/o House No. 2409 ( First Floor)
Chippi Wara Kalan, Jama Masjid Delhi. .....................Plaintiff
VERSUS
1. Shri Kanhaya Lal Seth son of Shri Banwari Lal Seth
R/o House No. 2409 ( Ground Floor) Chippi Wara
Kalan, Jama Masjid Delhi.
Now deceased and represented by the following LRs
and the defendant No. 2:
i) Shri Parveen Seth son of
Shri Kanahaya Lal Seth, R/o
House No. 2409 ( Ground Floor) Chippi Wara
Kalan, Jama Masjid Delhi
ii) Smt. Madhu Mehra d/o
Shri Kanahaya Lal Seth, R/o
House No. 2409 ( Ground Floor) Chippi Wara
Kalan, Jama Masjid Delhi
2. Smt. Savitri Devi Wife of
Shri Kanahaya Lal Seth, R/o
House No. 2409 ( Ground Floor) Chippi Wara
Kalan, Jama Masjid Delhi. ....................Defendants
Date of Institution: 041078
Date of Reserving for Judgment: 03102012
Date of Judgment : 25102012
Suit No. 161/2012 Page No. 1 of 12
SUIT FOR DECLARATION & POSSESSION
JUDGMENT:
1. Vide this judgment, I shall dispose of the suit for declaration & possession filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are as follow: The owner/landlord of the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi was Smt. Janki Devi and the plaintiff was tenant under her of the aforesaid entire property including the basement @ monthly rent of Rs. 30/. The plaintiff was in possession of the entire first floor and the defendant no. 1 was in possession of the entire ground floor. Smt. Janki Devi died in 1956 and her daughters Smt. Satyawati and Smt. Bhagwati Devi became the landlord and were paid rent by the plaintiff. The defendant no. 1 purchased the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, Delhi from Smt. Satyawati and Smt. Bhagwati Devi in the year 1962 and the plaintiff became the tenant of the defendant on the same terms and conditions of the entire first floor along with common bathroom and toilet. Earlier a baithak was also in possession of the plaintiff but the same was surrendered to the defendants. The defendants filed a suit for mandatory injunction against the plaintiff which was pending before the then SubJudge Sh. S.S. Kanwar, which was withdrawn by the Suit No. 161/2012 Page No. 2 of 12 defendants in the year 1968. The plaintiff filed a suit for perpetual injunction when the defendants tried to dispossess him from the tenanted premises which was pending before the then SubJudge Smt. Mamta Kumari, the matter was withdrawn after a compromise deed was executed between the plaintiff and the defendant no. 1, which was signed by the plaintiff under force and coercion, wherein it was stated that the plaintiff would vacate the aforesaid house by 30/9/1974 and till then he would continue to pay rent @ Rs. 30/ pm. The defendants once again threatened the plaintiff of dispossessing him so the plaintiff filed in the court of then Sub Judge Sh. R.K. Sharma, a suit for declaration that he be declared as a tenant in respect of the first floor comprising of two rooms,a kitchen and open terrace with common bath and laterine but in the meantime the defendants succeeded in dispossessing the plaintiff thus that suit was withdrawn on 29/8/78, with liberty to file fresh. Hence the plaintiff has filed the present suit.
3. On the other hand, the defendant in his written statement has stated that the suit of the plaintiff is barred by the principle of estoppal. The plaintiff is the licencee and not a tenant that too in the one room and kitchen on the first floor of the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi. There is only one laterine in the entire property bearing no. 240809, Suit No. 161/2012 Page No. 3 of 12 Chhippi Wara Kalan, Jama Masjid, Delhi which is used commonly by both the parties. There is no common bathroom in the property so the question of common bathroom or use of a bathroom by the plaintiff does not arise. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed
5. On the basis of the pleading of the parties following issues were framed vide order dt. 14021980.
i) Whether the suit is barred by the principle of estoppled as alleged? OPD
ii) Whether the present suit is maintainable in the present form as alleged? OPP
iii) Whether the plaintiff is a tenant of the room in dispute as alleged ? if so its effect? OPD
6. To prove his case the plaintiff has examined Sh. Naval Kishore as PW1 who was examined and crossexamined on 15041980.
7. Further the plaintiff has examined Sh. Parshotam Dass as DW2. Suit No. 161/2012 Page No. 4 of 12 The PW2 was examined in chief and crossexamined. The PW2 relied upon the following documents:
i) Certified copy of rent receipt Ex. PW2/1 to PW2/3.
ii) Copy of site plan is Ex. PW2/4.
8. Further the plaintiff has examined Sh. Radhe Sham as PW3. PW3 was examined and crossexamined on 20091983 and relied upon the document i.e. Mark A.
9. On the other hand, the defendant has examined Sh. Parveen Seth as DW1 who has filed his evidence by way of affidavit Ex. D/A. In his evidence the DW1 has reiterated the facts mentioned in the written statement and relief upon the following documents:
i) The certified copy of plaint & written statement in suit titled as Kanhiya Lal Vs. Purshotam Dass is Ex. DW1/5 & DW1/6
ii) Certified copy of order dt.20111968 is Ex. DW1/6A.
iii) Copy of agreement dt. 25031974 is DX.
iv) Translated copy of Agreement dt. 25031974 is DW1/8 The DW1 was also crossexamined by the Ld. counsel for the plaintiff at length.
10.I have heard Ld. counsel for both the parties, perused the record & gone through the relevant provision of law.
11. My issues wise findings is as follow:
12. Issue No. 1 Whether the suit is barred by the principle of Suit No. 161/2012 Page No. 5 of 12 estoppled as alleged? OPD The contention of counsel for the defendant is that the present suit is barred by the principle of estoppel as the plaintiff has by his own conduct estopped from filing the present suit. The burden to prove this issue was on the defendants but the defendants have not led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
13.Issue No. 2 Whether the present suit is maintainable in the present form as alleged? OPP The burden to prove this issue was on the defendants but the defendants have not led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
14. Issue No. 3 Whether the plaintiff is a tenant of the room in dispute as alleged ? if so its effect? OPD The case of the plaintiff is that the owner/landlord of the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, Delhi was Smt. Janki Devi and the plaintiff was tenant under her of the aforesaid entire property including the basement @ monthly rent of Rs. 30/. The plaintiff was in possession of the entire first floor and the defendant no. 1 was in possession of the entire ground floor. Suit No. 161/2012 Page No. 6 of 12 Smt. Janki Devi died in 1956 and her daughters Smt. Satyawati and Smt. Bhagwati Devi became the landlord and were paid rent by the plaintiff. The defenant no. 1 purchased the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi from Smt. Satyawati and Smt. Bhagwati Devi in the year 1962 and the plaintiff became the tenant of the defendant on the same terms and conditions of the entire first floor along with common bathroom and toilet. Earlier a baithak was also in possession of the plaintiff but the same was surrendered to the defendants. The defendants filed a suit for mandatory injunction against the plaintiff which was pending before the then SubJudge Sh. S.S. Kanwar, which was withdrawn by the defendants in the year 1968. The plaintiff filed a suit for perpetual injunction when the defendants tried to dispossess him from the tenanted premises which was pending before the then SubJudge Smt. Mamta Kumari, the matter was withdrawn after a compromise deed was executed between the plaintiff and the defendant no. 1, which was signed by the plaintiff under force and coersion, wherein it was stated that the plaintiff would vacate the aforesaid house by 30/9/1974 and till then he would continue to pay rent @ Rs. 30/ pm. The defendants once again threatened the plaintiff of dispossessing him so the plaintiff filed in the court of then SubJudge Sh. R.K. Sharma, a suit for Suit No. 161/2012 Page No. 7 of 12 declaration that he be declared as a tenant in respect of the first floor comprising of two rooms,a kitchen and open terrace with common bath and laterine but in the meantime the defendants succeeded in dispossessing the plaintiff thus that suit was withdrawn on 29/8/78, with liberty to file fresh. The plaintiff has filed the present suit for declaration to the effect that the plaintiff was also the tenant of the room in dispute as shown in red colour in the site plan on the first floor of the property bearing no. 2408 09, Chhippi Wara Kalan, Jama Masjid, delhi and the possession of the same may be delivered to the plaintiff after dispossessing the defendants therefrom.
15.The case of the defendants is that the plaintiff is the licencee and not a tenant that too in the one room and kitchen on the first floor of the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi. There is only one laterine in the entire property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi which is used commonly by both the parties. There is no common bathroom in the property so the question of common bathroom or use of a bathroom by the plaintiff does not arise. Further, it has been denied that the plaintiff was dispossessed ever by the defendants.
16. The defendant witness DW 1 Sh. Parveen Seth stated in the Suit No. 161/2012 Page No. 8 of 12 crossexamination dated 23/8/2012 that the plaintiff was not a tenant in the property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi. . The plaintiff was a licencee. But at the same time he also stated that he had sent a legal notice dated 1409 1986 Ex. DW1/PX for payment of arrears of rent to the plaintiff. Also, a suit for eviction under S. 14 (1) (e) was filed before the Ld. Arc which was dismissed and an appeal is pending before teh Hon'ble Delhi High Court. Clearly, admittedly, the plaintiff and the defendants share a landlordtenant relationship. The plaiintiff is not a licencee under the defendants.
17.Now, the only question that remains is that whether the plaintiff is tenant in respect of the room coloured in red in the site plan. To prove the same the plaintiff examined Sh. Nand Kishore, a friend as PW1; himself as PW2 and Sh. Radhey Sham Sharma, husband of Smt. Satyawati Devi, as Pw3 who deposed that the plaintiff was a tenant in respect of the entire property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, delhi under Smt. Janki Devi and after her death under her daughters Smt. Satyawati and Smt. Bhagwati Devi. PW1 and Pw2 also deposed that the plaintiff is a tenant in respect of the first floor comprising of two rooms,a kitchen and open terrace with common bath and laterine under the defendant but the defendant took possession of one room on the Suit No. 161/2012 Page No. 9 of 12 first floor marked in red colour in the site plan illegally from the plaintiff. On being asked whether any legal action was taken or police complaint etc. was made by the plaintiff against the forcible dispossession, from the one room on the first floor marked in red colour in the site plan, illegally by the defendant, the plaintiff denied having taken any legal action or police complaint in this regard. A prudent man who would have been in the place of the plaintiff would have filed a police complaint immediately as it is not a case that the plaintiff and the defendants were not involved in any litigation earlier. But the plaintiff withdrew the suit before Sub Judge Sh. R.K. Sharma on 29/8/78 and filed the present suit on 4/10/1978.
18.Further, the defendant has vehemently denied that the plaintiff is a tenant in respect of one room on the first floor marked in red colour in the site plan and the Dw1 has maintained this stand even in his crossexamination. The defendants have relied on DW1/6 which is the certified copy of the written statement filed by the plaintiff in the suit for mandatory injunction filed by the defendants against the plaintiff which was pending before the then SubJudge Sh. S.S. Kanwar, which was withdrawn by the defendants in the year 1968, wherein the plaintiff has stated that the plaintiff and his wife are tenants of the portion consisting of a room and kitchen on Suit No. 161/2012 Page No. 10 of 12 the first floor and a baithak and a common laterine and bathroom on the ground floor of the premises no. 2409, Chippiwara Kalan, Delhi under the defendant no. 1 at the rent of Rs. 30/ per month. The certified copy of the written statement was allowed to be taken on record as secondary evidence after the vigilence Dept. filed the report that in the enquiry conducted by the office of the Ld. District & Sessions Judge, Delhi, the file was found to be not traceable. There is a presumption as to the genuineness of the aforesaid document Ex. DW1/6 as per the provisions of the Evidence Act, thus the same is duly proved.
19.In the present case, the plaintiff is stating that he is a tenant of the two room on the first floor of property bearing no. 240809, Chhippi Wara Kalan, Jama Masjid, Delhi but in in the suit before Sh. S.S. Kanwar the plaintiff's stand was that he was a tenant in respect to only one room on the first floor of the aforesaid property. There is a clear contradiction in the stand of the plaintiff in the present suit and in the earlier suit filed before Sh. S.S. Kanwar. The defendants have raised a serious doubt as regards the stand of the plaintiff in the case at hand and the plaintiff has not brought forth anything on record to dispel the said doubt. Now when such a situation arises when a cloud is cast on the case/stand of the plaintiff then as per Section 102 of the Indian Evidence Act, the Suit No. 161/2012 Page No. 11 of 12 burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Now clearly, the plaintiff has failed to discharge this burden as discussed above and thus, the plaintiff is not entitled to the decree of declaration as well as possession qua the room on the first floor shown in the red colour in the site plan. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
20. Relief In view of the above discussion, the suit of the plaintiff is dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 25102012. Civil Judge/Central05 Delhi Suit No. 161/2012 Page No. 12 of 12