Smt. Sheela Gehlot vs Smt. Preeti Khilnani
2007 Latest Caselaw 513 Del

JUDGMENT

Vipin Sanghi, J.

1. The plaintiff Smt. Sheela Gehlot has filed the present suit for recovery of possession, mesne profits and damages against the defendant Smt. Preeti Khilnani. The case of the plaintiff is that one Smt. D.P. Vachhani was the owner of residential property situated at A-5, admeasuring 805.55 sq.yds (the said property). Smt. D.P. Vachani passed away on 25.7.1996. After her demise, the said property was inherited by her son Shri Sushil Vachhani and her daughter Ms. Indu Ramchandani in equal shares. Shri Sushil Vachhani and Ms. Indu Ramchandani transferred the said property in favor of the plaintiff by a registered sale deed on 28.9.2004 Consequently, the plaintiff became the absolute owner of the said property.

2. The plaintiff avers that she was delivered the actual physical possession of the said property except the second floor annexe block comprising of two rooms, verandah and bathrooms above the two garages (the suit premises) by her vendors.

3. It is further averred that one, Sh. I.P. Khilani was a tenant in the suit premises at a monthly rent ofRs. 300/-. Mr. I.P. Khilnani was in employment of M/s. Oxford which was owned and managed by the husband of Smt D.P. Vachhani, Shri P.J. Vachhani.

4. In January 1987, Shri I.P. Khilani had resigned from Oxford Book and Stationerty Co. and joined Laxman Public School, Hauz Khas, New Delhi. On 1.3.1988, Shri I.P. Khilani informed the erstwhile owner, Smt. D.P. Vachhani that he would hand over the vacant and physical possession of the suit premises on 1.4.1988. Shri I.P. Khilnani surrendered the tenancy on 1.4.1988 and handed over possession of the suit premises to Shri Deepak Mukherjee, representative of Smt. D. P. Vachhani. This last averment is explained by stating that though Shri I.P. Khilani vacated the suit premises, his wife, the defendant refused to vacate the same and continued to remain in possession thereof.

5. The defendant filed a suit against Smt. D.P. Vachhani in March, 1988 seeking a permanent and perpetual injunction and restrain against her dispossession from the suit premises. Her claim was that she was a tenant in respect of the suit premises in her occupation. The suit filed by the defendant was dismissed by the learned Sub Judge vide order dated 26.2.1997. It is further averred that the defendant filed an appeal against the dismissal of her suit and at the time when the present suit was filed, that appeal was pending.

6. It is averred that the defendant in the garb of the litigations initiated by her was continuing in illegal and wrongful possession of the suit premises and that she had not paid any use or occupation charges in respect thereof since 1988. It is further averred that the defendant has no right whatsoever to continue to remain in possession of the suit premises and that her occupation is unauthorised. It is further averred that in October, 2005, the plaintiff discovered that the plaintiff was trying to hand over and part with possession of the suit premises in her occupation. Accordingly the present suit has been filed, claiming, inter alia, possession of the suit premises, damages in the sum ofRs. 19.44 lakhs being profits at the rate ofRs. 54,000/- per month and a permanent injunction restraining the defendant from selling, transferring alienating or otherwise parting with possession of any part of the suit premises in favor of any person. Plaintiff has also claimed interest and costs of the suit.

7. Summons were issued by this Court in the suit on 17.11.2005. In I.A 9173/05 filed by the plaintiff under Order 39 Rules 1 and 2 C.P.C, this Court passed an ex parte ad interim order of injunction restraining the defendant from alienating any rights in the property, in suit or any portion of the suit premises in her possession to any one till the next date of hearing. The interim order was thereafter continued.

8. Despite service of the summons in the suit and notice in the aforesaid application, no appearance was put on behalf of the defendant. Accordingly on 26.4.2006, this Court proceeded ex parte against the defendant. The plaintiff was granted time to file her evidence on affidavits. Even thereafter, till date there has been no appearance on behalf of the defendant. The plaintiff has led her ex parte evidence. The plaintiff has appeared as PW- 1, Mr. A. K. Ganju, an Architect as PW-2 and Ms. Indu Ramchandani has appeared as PW-3. The first two witnesses have tendered their affidavits in evidence on 2.8.2006 and the same have been marked as Exhibit PW-1 and Exhibit PW-2/A. PW3 has appeared today and tendered her evidence by way of affidavit as exhibit PW- 3/A.

9. The depositions of PW1 and PW3 are entirely consistent with the averments made in the plaint. PW3 has also proved the documents proved by PW1. Exhibit PW-1/1 is the letter of appointment of Sh. I.P. Khilnani with Oxford Book and Stationery Company with effect from 1st December, 1965. The photocopy of this document has been proved on record. PW-1/2 is the subsequent letter of appointment of Sh. I.P. Khilnani with effect from 16th August, 1982. Both these letters of appointment have been issued by Shri P.J. Vachchani. From the aforesaid, it is evident that Sh. I.P. Khilnani was an employee of Oxford Book and Stationery Company, which was the business outfit of Sh. P.J. Vachchani the father of PW-3 and Sh. Sushil Vachchani. Exhibit PW-1/3 is a letter written by Sh. I.P. Khilnani dated 16th October, 1982. In this communication, addressed by Sh. I.P. Khilnani to Sh. P. J. Vachchani, Sh. I.P. Khilnani states that if ever he leaves the firm, Oxford Book and Stationery company, he will surrender the residential accommodation, i.e., the suit premises simultaneously without any trouble. He further states that he knows that the said accommodation has been given to him only by virtue of his being employed with Oxford Book and Stationery company. This communication shows that Shri I.P.Khilnani was the tenant of Smt. D.P.Vachchani in respect of the suit premises. Exhibit PW-1/4 is a letter written on 8th September, 1982 by Sh. P. J. Vachchani, the partner of Oxford Book and Stationery Company, to Sh. I. P. Khilnani granting him special allowance ofRs. 70/- with effect from 16th August, 1982. The original of this document was received by Sh. I. P. Khilnani as he has endorsed the acknowledgment of receipt of the said letter, in original, on PW-1/4. This communication further proves the employment of Sh. I.P. Khilnani with Oxford Book and Stationery company. Exhibit PW-1/5 is the letter of resignation of Sh. I.P. Khilnani. He states that he has tendered his resignation since his health was not keeping well and he sought to be relieved from service on 17.1.1987. It is stated by PW3 as well as PW1 that the original of the said document is lost and misplaced. Exhibit PW-1/6 is carbon copy of the communication sent by Smt. D.P. Vachhani to Sh. I.P. Khilnani dated 24.10.1987. Vide this communication Smt. D.P. Vachhani called upon Sh. I.P. Khilnani to pay amount ofRs. 900 towards arrears of rent. Exhibit PW-1/7 is the postal receipt and exhibit PW- 1/8 is the AD card in respect of exhibit PW-1/6. Sh. I.P. Khilnani responded to this communication vide exhibit PW-1/9 recording that he had already sent an amount ofRs. 900 vide Money Orders dated 29.10.1987 and 31.10.1987. These communications establish the relationship of landlady and tenant between the Smt. D.P. Vachhani and Sh. I.P. Khilnani. Exhibit PW-1/10 is a copy of another communication sent by Smt. D.P. Vachhani on 3rd November, 1987 to Sh. I.P. Khilnani. Exhibit PW-1/11 is the postal receipt. Vide this communication Smt. D.P. Vachhani required Sh. I. P. Khilnani to pay the rent for the month of October, 1987 and advance for the month of November, 1987. Further correspondence in relation to payment of rent is exhibit as PW-1/12 sent by Smt. D.P. Vachhani on 4th November, 1987 sent under certificate of posting, exhibit PW-1/13.

10. On 1st March, 1988, vide exhibit PW-1/14 Sh. I.P. Khilnani records that he has been a tenant with Smt. D.P. Vachhani of the suit premises for the past several years. In January, 1987 he resigned from Oxford Book and Stationery Company and he did not vacate the suit premises which had been let out to him on account of his employment with Oxford Book and Stationery Company. He further records that he requested the landlady, Smt. D.P. Vachhani to allow him to retain the suit premises till the academic year of his children's school ended. He further records that he was not able to vacate the suit premises even thereafter, despite his promise to do so. He further records 'I am voluntarily without any pressure or duress from you or any one else, ready to handover vacant possession of the same flat to you as of 1st April, 1988'. Vide exhibit PW-1/16 dated 1st April, 1988 Smt. D. P. Vachhani communicated to Sh. I.P. Khilnani that she had deputed Shri Deepak Mukharji to take possession of the suit premises from him on her behalf. On 1st April, 1988 itself Sh. I.P. Khilnani vide communication, exhibit PW-1/17, stated that in response to her communication dated 1st April, 1988, exhibit PW-1/16, he had handed over one key to the entrance door of the suit premises to Shri Deepak Mukharji. He further states the he had not been able to give the keys of the rooms and the vacant possession of the flat as his wife was creating some obstacles. He stayed another 5 to 7 days during which he is stated to have cleared his personal effects. He also states to the effect 'that any persons/possession that may be still in the flat after 7th April, will be your responsibility to evict and or/clear'. He also states that he wishes to apologise for any embarrassment that may have been caused by police intervention as a result of his wife's obstinate temper and wild behavior. Vide exhibit PW-1/18 dated 4th May, 1988 sent to Smt. D.P. Vachhani, Sh. I.P. Khilnani recorded that he had moved out of the suit premises and handed over the keys to the entrance door. He further recorded that he had not paid the rent for the months of February, 1988 to March, 1988. He enclosed a cheque ofRs. 600/- in full payment of the rent for the months of February, 1988 to March, 1988 and stated that this makes his account clear.

11. The witnesses PW3 and PW1 have stated that the original of Ex.PW1/1, Ex.PW1/2, Ex.PW1/4, Ex.PW1/6, Ex.PW1/10, Ex.PW1/12, Ex.PW1/15 and Ex. PW1/16 are not in their possession and since there are appointment letters and communications issued to Shri I.P. Khilanani, they would be in the possession of Shri. I.P.Khilnani. In respect of Ex. PW1/5 it is stated by the witnesses PW3 and PW1 that the original of the said letter dated 15.1.1987 is not traceable. I accept the secondary evidence of all these documents.

12. From the evidence brought on record by the plaintiff, it is established on record that the previous owner Smt. D.P. Vachhani had inducted Sh. I. P. Khilnani as tenant in respect of the suit premises on monthly rental ofRs. 300/-. Sh. I. P. Khilnani was a relative of Smt. D. P. Vachhani and was working in Oxford Book and Stationery Company, a concern of Shri P.J. Vachhani, the husband of Smt. D.P. Vachhani. It was on account of his employment with Oxford Book and Stationery Company, that he was given the suit premises on rent. All the correspondence that the landlady Smt. D.P. Vachhani had was with Shri I.P. Khilnani and never with his wife i.e. the defendant. The defendant has not come forward to controvert any of the averments made in the plaint or to challenge the evidence led by the plaintiff. There is nothing on the record to even remotely suggest that the defendant had any independent right of occupation of the suit premises, other than as the wife of the tenant Shri I.P. Khilnani. It is also established on record that Sh. I.P. Khilnani surrendered the tenancy on 1st April, 1988 by delivering the key to the entrance door of the suit premises. Once a tenant voluntarily surrenders the tenancy of a premises under his tenancy, no dependent of his can claim a right to hold on to the tenancy premises. Upon the surrender of his tenancy by Shri I.P. Khilnani on 01-04-88, his tenancy came to an end, and with that not only his, but the right of all his dependents to occupy the suit premises ended. The continued possession of the suit premises by his wife after 01-04-88, was therefore unauthorised and that of trespasser. In fact, the tenant Sh. I. P. Khilnani showed his own inability in respect of the obstacles created by his wife and stated that landlady Smt. D. P. Vachhani will be responsible to evict her from the suit premises.

The tenancy having been surrendered by the tenant Sh. I.P. Khilnani, the defendant being his wife is liable to be evicted. The plaintiff is entitled to a decree of possession of the suit premises since the plaintiff has stepped in the shoes of the erstwhile owners Sh.Sushil Vachhani and Smt. Indu Ramchanani who had inherited the said property from their mother Smt. D.P. Vachhani. The plaintiff is also entitled to the injunctive relief prayed for, since the defendant has no right to deal with the suit premises, as she has no right title or interest therein.

The plaintiff has filed on record the plan of the suit premises as exhibit PW-1/19. The same has also been proved by the Architect Shri A.K. Ganju PW2, who states that he has prepared Ex.PW1/19, a plan of the suit property on the request of the plaintiff after inspection and recording of measurements thereof.

Counsel for the plaintiff states that his client is not pressing for the relief of mesne profits and damages. Accordingly, I pass a decree for possession in respect to the suit premises, more particularly shown and described in plan exhibit, PW-1/19 being the entire second floor of the annexe block of property situated at A-5 Mayfair Garden, New Delhi-17, comprising of two rooms, verandah and bath rooms above the two garages.

I also pass a decree of perpetual injunction thereby restraining the defendant from transferring or otherwise parting with possession of the suit premises aforesaid to any third party other than the plaintiff. The parties are left to bear their respective costs.