Kusum Anand vs Smt. Mohinder Kaur
1999 Latest Caselaw 75 Del

ORDER

K.S. Gupta, J.

1. This appeal by the defendant/appellant is directed against the judgment of a learned Single Judge dated 22nd August, 1997 whereby the suit of the plaintiffs/respondents for possession of the ground floor of property bearing No. 1/5, West Patel Nagar, New Delhi and mesne profits @ Rs.3,000/ per month from January 1, 1978 was decreed.

2. Suit for recovery of possession and mesne profits etc. was filed, inter alia, alleging that the plaintiffs purchased property bearing No.1/5, West Patel Nagar from M/s. Jawahar Mal & Sons sometime in 1961. The land underneath the property was given on lease by the President of India to M/s. Jawahar Mal & Sons under a leasedeed dated 24th January, 1961, registered as document No. 100 in supplementary book Vol. 43, on pages 21 to 23 on 27th January, 1961. After purchase, said property was let out by the plaintiffs to National Cadet Corps. As the property was being used by National Cadet Corps for the purposes other than residence, the DDA lodged a complaint against the plaintiffs under Section 29(2) read with Section 14 of DDA Act, 1957 sometime in 1974 and the plaintiffs were eventually convicted on April 21, 1976 and were ordered to pay fine of Rs.1,000/ each. In view of the misuser of the property by National Cadet Corps, the plaintiffs filed an application for eviction under Section 14(1)(a), (c) & (k) of the Delhi Rent Control Act, 1958 against UOI & Others. Realising that property could not be put to nonconforming use, the National Cadet Corps vacated the property on 31st August, 1977.

3. It is stated that the plaintiffs had appointed D.K. Chadha as attorney to conduct the said eviction case and the defendant got in touch with him and asked to let her out the ground floor of the property on a monthly rent of Rs. 3,000/ for the purpose of residence. She also addressed a letter dated 28th October, 1977 to the plaintiffs in the matter. Plaintiffs, however, did not reply to the letter. On 16th November, 1977 defendant paid a sum of Rs. 3,000/ to said D.K. Chadha as attorney of the plaintiffs towards one month rent in advance against a receipt. Since the plaintiffs resided and carried business in Calcutta, said D.K. Chadha while accepting the advance rent told the defendant that the same was subject to the confirmation by the plaintiffs or their son Sharanjeet Singh as he was not competent to let out the property on his own and she will have to execute a lease deed. As the defendant was to occupy the ground floor portion of the said property w.e.f. 1st January, 1978, she requested D.K.Chadha a week of so before that date to allow her to have the furniture/fixture prepared in the verandah of the property to which he agreed.

4. It is further pleaded that on or about 29th December, 1977 when said Sharanjeet Singh happened to visit the property he found that the defendant had entered into the ground floor portion by getting the keys of the outer door from the chowkidar. Sharanjeet Singh closed the outer door and put a lock on it. In the absence of Sharanjeet Singh and D.K. Chadha, the defendant put her lock over the lock of the plaintiffs on the outer door. Thereafter, Sharanjeet Singh contacted the defendant and asked her to remove the belongings from the property but she declined to do so. Accordingly, he got a telegram on 31st December, 1977 sent to the defendant through G.S. Vohra & Co., Advocates besides lodging report with the police on 31st December, 1977 itself. Plaintiffs have learnt that the defendant have started a school in the ground floor portion of the property.

5. It is further alleged that on 7th January, 1978 Sharanjeet Singh received summons of the suit filed by the defendant from the Court of Sh. Ajit Bharioke. Sub Judge. On the application filed under Order 39 Rules 1 & 2 by the defendant, an ex parte ad interim injunction had also made in her favour. Sharanjeet Singh offered to refund amount of Rs. 3,000/ paid by the defendant to aforesaid D.K. Chadha but she refused to accept it saying that she is a lawful tenant in the property and wants to run a school there. It is stated that Sharanjeet Singh went to the extent of condoning the trespass and asked the defendant to execute a lease deed containing the term that she would use the property only for residential purpose but she declined to do so. It is asserted that the plaintiffs never gave the possession of the ground floor portion of the property to the defendant nor is she a lawful tenant under them. Defendant is not entitled to run a school contrary to the terms of the lease deed. Plaintiffs are entitled to mesne profits @ Rs. 3,000/ per month w.e.f. 1st January, 1978 till vacant possession of the property is handed over to them by the defendant together with interest @ 12% per annum.

6. Defendant contested the suit by filing written statement. By way of preliminary objections it is alleged that the defendant was serving as a Head Mistress in Spring Dales School at 13, West Patel Nagar. In the month of October, 1977, she decided to start a junior school upto 2nd standard and for taking on rent suitable premises for running school, she approached Mahajan & Co. and other property brokers. Ladi Mahajan of Mahajan & Co. showed to the defendant the ground floor of property No.1/5 West Patel Nagar comprising of 10 rooms, miani, store, bathrooms, kitchen lobby and the open courtyard sometime in the end of October 1977. D.K. Chadha, attorney of the plaintiffs had accompanied Ladi Mahajan, D.K. Chadha demanded Rs. 3,500/ as the monthly rent for the entire ground floor of the property. Defendant, however, offered to pay Rs. 3,000/ per month. As suggested by Ladi Mahajan, defendant gave the offer to take on rent the property at the said rate of D.K. Chadha. Later on, the matter was discussed with D.K. Chadha, Ladi Mahajan, Sharanjeet Singh and the defendant and the property was agreed to be let out to the defendant at a rental of Rs. 3,000/ per month. At that time it was made clear by the defendant that the property was required for starting junior school. In the letter dated 28th October, 1977 purpose of letting was shown as residence to avoid any objection by the local authorities. It is stated that a sum of Rs. 3,000/ by way of advance rent was paid to D.K. Chadha, attorney by the defendant on 16th November, 1977 against a receipt. In the receipt it was noted that in case the defendant occupies the property before 1st January, 1978 she will be liable to pay the rent for that period. It is claimed that the possession of the ground floor was handed over to the defendant by D.K. Chadha on 1st December, 1977. It is alleged that as there is relationship of landlord and tenant between the parties, the suit is barred under Section 50 of Delhi Rent Control Act, 1958. Suit for permanent injunction was filed against the plaintiffs on 2nd January, 1978 as the defendant apprehended forcible dispossession from the property at the hands of the plaintiffs. On merits, it is denied that the plaintiffs are the owners of said property No.1/5, West Patel Nagar. It is claimed that use of the suit property by the defendant for running junior school is neither prohibited by the alleged lease deed or the Master or Zonal Plans. It is asserted that the D.K. Chadha is the attorney of the plaintiffs with powers to lease out the property for any purpose he liked. It is denied that D.K. Chadha while accepting the advance rent told the defendant that the same was being accepted subject to confirmation by the plaintiffs or Sharanjeet Singh or that D.K. Chadha was not competent to let out the property of his own. It is denied that before being put into the possession of the suit property defendant was to execute a lease deed in favour of the plaintiffs as alleged. Receipt of the telegram from Sh. G.S. Vohra, Advocate is admitted. It is stated that the defendant being tenant is only liable to pay rent which she has never refused.

7. Plaintiffs filed replication to the written statement of the defendant and in para No. 5 on merits it is, inter alia, stated that the plaintiffs are not aware what Mahajan & Co. represented to the defendant in regard to the permissible user of the property but it was fully known to the defendant that the property could be used only for residential purpose and the same was let out for that purpose. In para No. 7 it is further alleged that the defendant got the property by misrepresenting that she was to use it for residential purpose.

8. On the pleadings of the parties, following issues were framed:

1. Whether the plaintiffs are the owners of the property in dispute?

2. Whether the defendant trespassed into the premises in dispute on or about 29th December, 1977?

3. For what purpose the property in dispute was let out?

4. Even if it is found that the premises was let out for running a school, whether the lease for the said purpose is void because of violating the terms of the master plan?

5. To what relief are the plaintiffs entitled?

9. Following additional issues are framed on 25th September, 1980.

1. To what mesne profits are the plaintiffs entitled for the past period as well as in future?

2. Are the plaintiffs also entitled to interest on the mesne profits? If so at what rate and for what period?

10. By the judgment under appeal, inter alia, holding that the defendant had trespassed into the property, decree for possession and mesne profits @ Rs.3,000/ per month was passed against her.

11. We have heard Bawa Shiv Charan Singh for the defendant/appellant and Sh.Ravinder Sethi for the plaintiffs/respondents at length.

12. In short the plaintiffs' case is that the defendant trespassed into the suit property and the trespass was noticed by said Sharanjeet Singh on or about 29th December, 1977. Immediately thereafter, he got a telegram sent to the defendant on 31st December, 1977 through Sh. G.S. Vohra, Advocate besides lodging report with the police. Plaintiffs deny that D.K. Chadha was ever authorised by them to let out the suit property to the defendant. On the other hand, defendant alleges that she contacted Mahajan & Co., property dealer for getting the premises for running school and the suit property was shown to her by Arun Kumar Mahajan of Mahajan & Co. D.K. Chadha, attorney of the plaintiffs accompanied them to the property. D.K. Chadha demanded rent of Rs.3,500/ per month while she offered to pay Rs. 3,000/ per month and the offer in writing vide Ex.P4 dated 28th October, 1977 was given by her to Sh. Chadha. Ex.P4 was typed out in the office of Mahajan & Co. After the defendant was told by D.K. Chadha that the plaintiffs are agreeable to let out the suit property on a rental of Rs. 3,000/ per month, a sum of Rs.3,000/ was paid in cash by her to said D.K. Chadha towards one month advance rent vide receipt Ex.P3 on 16th November, 1977 and the possession of the suit property was delivered to her by said Sh. Chadha on 1st December, 1977. Arun Kumar Mahajan, DW7 and S.K. Arora, DW9 are stated to be present at the time the possession was given to her. Considering the arguments advanced on behalf of both the parties as also the pleadings, broadly the following points arise for determination in this appeal:

(1) Whether D.K. Chadha under power of attorney other than Ex.P7 executed by the plaintiffs, was empowered to let out the suit property on their behalf?

(2) Whether the defendant trespassed into the property or was she given possession thereof by D.K. Chadha on 1st December, 1977?

13. On point No. 1 the statements of Darshan Singh Kohli, one of the plaintiffs, PW1 and his son Sharanjeet Singh, PW3 are relevant. PW1 deposed that he had been residing in Calcutta since 1951 and after the property was vacated by National Cadet Corps, tenant in 1977 he intended that ground floor thereof be let out and the upper floor be retained for residence as he had business under the name of Kohli Trading Company in Delhi also. D.K. Chadha was the manager of the business in Delhi Plaintiffs gave a power of attorney in favour of D.K. Chadha to prosecute the eviction case against National Cadet Corps. Defendant sent letter Ex.P4 by post of Calcutta but he did not sent any reply thereto nor had he any talk with anyone on telephone about the letter. He did not receive any rent of the suit property either from the defendant or D.K. Chadha. In cross examination he has stated that D.K. Chadha was employed 2 to 4 years prior to 1977 and he left the service by about 1978. He did not remember his address but he resided in Paharganj. Case against National Cadet Corps was filed in the year 1977 or 1976. The power of attorney related to the property in dispute and also provide for the engagement of the counsel in the case. The power of attorney was with Sh.Chadha. There was another power of attorney with regard to Kohli Trading Company (Ex.P7) and D.K. Chadha used to look after tax and licence matters of the business. Ex.P7 remained with him. It is further in his crossexamination that he might be having photostat copies of both the said power of attorneys. He however, denied the suggestion that the power of attorney with regard to the property is dispute included the authority to let out. PW3 deposed that no power of attorney was granted to D.K. Chadha regarding management of the property in dispute. His father had previously given a power of attorney to D.K. Chadha to conduct the eviction case filed against National Cadet Corps and the same was never returned by him. D.K. Chadha did not file that power of attorney in the eviction case. In cross examination he stated that D.K. Chadha was employed in or about 1974 and he left the service in 1978. He had the power of attorney granted in connection with the case against National Cadet Corps. It was in English. He expressed his inability in telling if the said power of attorney was attested by any witness of the names of the attesting witnesses and also the person who drafted it. It is further in his crossexamination that he saw the power of attorney with D.K. Chadha sometime in 1975 while sitting in the office of the firm. He has admitted that he was not present at the time the power of attorney in question was executed by the plaintiffs. He, however, denied the suggestion that the power of attorney authorised D.K. Chadha to manage the property in dispute.

14. It may be noticed that as per the deposition of PW1, eviction petition was filed against National Cadet Corps, tenant either in 1976 or 1977 by the plaintiffs. The power of attorney in favour of D.K. Chadha to conduct that eviction in case, thus could have been executed either simultaneously with the filing of the eviction petition or thereafter. Therefore, there was no occasion on the part of PW3 to have seen that power of attorney with Sh. Chadha in 1975 as alleged. Further, taking note of the admissions referred to above made in crossexamination by PW3, it seems highly doubtful that PW3 had infact gone through the contents of the power of attorney in question favouring D.K. Chadha.

15. Since the execution of power of attorney concerning the property in dispute in favour of D.K. Chadha is admitted by PW1 it was for the plaintiffs to show that it did not include the authority to let the suit property by said D.K. Chadha. This could have been done either by producing the photostat copy of the power of attorney or to have examined D.K. Chadha with whom the original power of attorney in question was. As discussed above, it is in the deposition of PW1 that he may be having photostat copy of the power of attorney in question and that although he did not remember the address of D.K. Chadha but he resided in Paharganj. It is not in the deposition of either PW1 or PW3 that at the time the evidence of the plaintiffs was recorded said D.K. Chadha had left the place where he was staying in Paharganj or that his whereabouts were not known to them. For the reasons best known to the plaintiffs, they have neither placed on record the photostat copy of the power of attorney in question or examined said D.K. Chadha. It was immaterial that D.K. Chadha was not in the employment of the plaintiffs during the period the evidence of the plaintiffs was recorded. Thus, on account of the nonfiling of the photostat copy of the power of attorney in question and nonexamining the said D.K. Chadha, adverse inference has to be drawn against the plaintiffs. From the said discussion, it must follow that D.K. Chadha under the power of attorney in question had also the authority to let out the suit property on behalf of the plaintiffs.

16. Coming to said point No.2, it was suggested to defendant/DW8 in crossexamination that D.K. Chadha handed over possession of the suit property to her and she took possession of the property in collusion with D.K. Chadha against the directions of the plaintiffs. Suggestion to the above effect clearly goes to show that it is admitted by the plaintiffs that the possession of the suit property was handed over by D.K. Chadha to the defendant as alleged by her on 1st December, 1977. It is not the case of the plaintiffs that the possession of the property was handed over in collusion with D.K. Chadha to the defendant. Pleadings particularly raised in paras 5 & 7 on merits of the replication referred to earlier further indicate that the defendant came into possession of the suit property as tenant instead of a trespasser. Receipt Ex.P3 dated 16th November, 1977 executed by said D.K. Chadha as attorney of the plaintiffs in regard to having received Rs. 3,000/ from the defendant towards one month advance rent also negates the plea in regard to the defendant having come to occupy the suit property as a trespasser.

17. Thus, it stands proved satisfactorily that there is relationship of landlord and tenant between the parties and the finding recorded by the learned Single Judge that the defendant trespassed into the suit property cannot be legally sustained. Rate of monthly rent payable by the defendant being less than Rs. 3,500/, the instant suit for possession and mesne profits was barred by Section 50 of Delhi Rent Control Act, 1958.

18. By the order dated 1st October, 1997 passed in the appeal, dispossession of the defendant from the suit property was stayed subject to her depositing the entire mesne profits as decreed and continuing to pay/deposit Rs. 30.000/ per month from the date of decree. Admittedly, the plaintiffs have not filed any appeal against the award of mesne profits @ Rs. 3,000/ per month. Since the defendant is only liable to pay the rent @ Rs. 3,000/ per month she being the tenant in the suit property, she is entitled to the refund of the amount paid in excess of Rs. 3,000/ per month pursuant to the said order dated 31st October, 1997.

19. For the foregoing discussion, the appeal is accepted with costs through out. Judgment under appeal is set aside and the plaintiffs' suit is dismissed. Defendant/appellant is entitled to the refund of the excess amount paid as noted in the preceding para of the judgment.