Delhi High Court
Arya Orphanage vs Mrs. Sharon Lowen on 27 November, 2008
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2442/2001
DATE OF RESERVE: September 25, 2008
DATE OF DECISION: November 27, 2008
ARYA ORPHANGE ..... Plaintiff
Through: Mr. H.L. Tikku, Sr. Advocate with
Mr. Nitinjya Chaudhary and Mr. J. Sumit,
Advocates
versus
MRS. SHARON LOWEN FC+ ..... Defendant
Through: Mr. Sanjeev Sharma and Mr. Rajnish
Vats, Advocates
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
: REVA KHETRAPAL, J.
1. The present suit instituted by the plaintiff against the defendant on
27.11.2001 is for possession, recovery of mesne profits and permanent
injunction.
2. The relevant facts as they emerge from a reading of the plaint are as
follows. The plaintiff institution known as 'Arya Orphanage' is a society
registered under the Societies Registration Act, 1860, which owns, inter alia, a
big complex at 1488, Pataudi House, Darya Ganj, New Delhi and another
complex having an area of about 10 acres known as 'Des Raj Campus' in East
of Kailash, New Delhi. The institutions working under the control of the
plaintiff or associated with it cater to the care, upbringing and education of
more than 1100 orphan/destitute boys and girls, providing free boarding and
lodging to them.
3. The property bearing No.13, Barakhamba Road, situate on Plot No.31,
Block No.148, New Delhi (hereinafter referred to as the suit property)
belonged to one Lala Narain Dutta, who was its owner and perpetual lessee,
the lease having been granted by the Government of India on 31.05.1932.
Lala Narain Dutta died on 07.11.1950, leaving behind his widow, his only son
Shri Krishan Dutta and three daughters. Shri Krishan Dutta, soon after the
death of his father, asserting himself to be the absolute owner of the said
property, vide his letter dated 06.05.1952, got his name mutated as such owner
in the record of the L&DO as also in the record of the New Delhi Municipal
Committee. Shri Krishan Dutta along with his mother and his wife Mrs. Rani
Dutta continued to live in the said property till he breathed his last on
24.09.1976.
4. Shri Krishan Dutta and Smt. Rani Dutta had no issue. Shri Krishan
Dutta executed a will on 07.06.1976 bequeathing the suit property to the
plaintiff, but granting life interest in the same to his wife Smt. Rani Dutta
along with all income therefrom. After the death of Shri Krishan Dutta on
24.09.1976, Smt. Rani Dutta on or about 15.12.1977 filed an application for
letters of Administration in the Court of the learned District Judge, Delhi under
Section 276 of the Indian Succession Act, 1925, which was registered as
Probate Case No.232/1977. By an order passed on 24.08.1978 by the learned
District Judge, Delhi, letters of Administration with will annexed were issued
in favour of Smt. Rani Dutta on her complying with various legal formalities,
and eventually the letters of Administration were granted to her on 08.11.1978.
5. After Smt. Rani Dutta came to acquire life interest in the suit property,
she inducted the defendant as a licencee in a portion of the said property, as
shown in the site plan annexed with the plaint at a licence fee of Rs.1,000/- per
month. The defendant, on 30.11.1992, gave an undertaking in respect of the
aforesaid portion, stating, inter alia, that she had been inducted as a licencee
by Smt. Rani Dutta; that she was paying a licence fee every month to Smt.
Rani Dutta but had no independent right, title or interest in the premises in her
occupation; that her occupation was purely permissive, which permission was
derived from Smt. Rani Dutta; that she was given to understand by Smt. Rani
Dutta that the plaintiff was the owner of the said property and that the said
property stood mutated in the records of the L&DO and the NDMC in the
name of the plaintiff; and that she was giving the undertaking of her own free
will and accord that after one year of the death of Smt. Rani Dutta, she would
handover peaceful vacant possession of the portions in her occupation in the
said property to the Secretary of the plaintiff. She also undertook that in the
meanwhile, she would not induct any other person, either as a tenant or as a
licencee or in any other capacity in the portion in her occupation.
6. Smt. Rani Dutta eventually breathed her last on 06.10.1993. After her
death, the Secretary of the plaintiff sent a letter dated 10.02.1999 to the
defendant wherein it was stated that on the death of Smt. Rani Dutta on
06.10.1993, the licence granted to the defendant to stay in the suit property had
automatically come to an end. The undertaking given by the defendant was
also referred to, and it was stated that the Managing Committee of the plaintiff
in its meeting held on 20.11.1993 had resolved not to renew the licence of the
defendant in respect of the suit property in her possession. The defendant was
called upon to handover vacant possession to the Secretary of the plaintiff at
the earliest, but in any case by 06.10.1994, i.e., on the expiration of the one
year period after the death of Smt.Rani Dutta referred to in the undertaking of
the defendant.
7. According to the plaint, after the issuance of the letter dated 10.02.1999,
and, at any rate, after 06.10.1994 (by which date the defendant had herself
undertaken to vacate the premises in suit vide her undertaking dated
30.11.1992), the defendant must be treated as an unauthorised occupant of the
premises in her possession and thus liable to pay damages at the market rate
for use and occupation thereof. The plaintiff asserts that the property in the
possession of the defendant can easily fetch a rent of at least Rs.5,000/- per
month, which is much less than what has been and is the prevalent market rent
in the locality and, accordingly, the plaintiff is entitled to claim damages at
Rs.1,60,000/- for the period from 01.03.1999 to 31.10.2001. The plaintiff
accordingly prays for a decree for possession in respect of the property in the
possession of the defendant, a decree for Rs.1,60,000/- towards damages for its
use and occupation, and a decree for future mesne profits and damages from
the date of the filing of the suit till the delivery of the possession to the
plaintiff.
8. The defendant, in her written statement, contends that the suit is wholly
misconceived and, in any case, the plaintiff has no locus standi to file the suit.
The defendant further contends that the allegations in the plaint about the
defendant being the licencee of the portion in question is false. The defendant
claims to be inducted into tenancy as a tenant thereof against the rent of
Rs.1,000/- per month, which, she states, she has been depositing in the Court
of the Additional Rent Controller, Delhi after the death of Smt. Rani Dutta,
who died on 06.10.1993. The rent of the said tenancy premises being less than
Rs.3,500/- per month, the defendant claims to be protected by the provisions of
the Delhi Rent Control Act, which she asserts bar the jurisdiction of this Court
to try and entertain the present suit in respect of the said tenancies. The suit,
according to her, deserves to be dismissed on this short ground alone. Even
otherwise, it is contended by the defendant that the suit is liable to be
dismissed for the non-joinder of necessary parties as all the legal heirs of late
Lala Narain Dutta, who are the co-owners of the property in question, have not
been impleaded as parties in the present suit.
9. The plaintiff filed replication to the written statement of the defendant,
controverting the pleas taken in the written statement, and reiterating and
reaffirming the averments made in the plaint.
10. On the aforesaid pleadings of the parties, issues were framed by this
Court on 11.07.2003. All the parties were permitted to lead evidence by way
of affidavits and the witnesses to be cross-examined thereafter. The affidavits
of two witnesses, PW1 Shri Viresh Pratap Chaudhary and PW2 Shri Sanjiv
Bhagat, were filed on behalf of the plaintiff. Both the said witnesses were
cross-examined before the Local Commissioner and their detailed cross-
examination forms part of the record. The defendant filed her own affidavit
by way of evidence and was cross-examined at length.
11. Having gone through the record and heard the learned senior counsel for
the plaintiff Mr. H.L. Tikku as well as the learned counsel for the defendant
Mr. Sanjeev Sharma, my findings on the issues are being rendered. For the
sake of convenience, it is proposed to deal with the Issue Nos.2 and 3 together,
Issue Nos.1, 5, 6, 7 and 8 together and thereafter to deal with Issue No.4, Issue
No.9, and Issue No.10 separately.
12. Issue Nos.2 and 3, which are being taken up together, are:
"2) Whether the plaintiff had no locus standi to file the
present suit? OPD
3) Whether the suit is bad for non joinder of the legal
heirs of Late Lala Narain Dutt? OPD"
13. To recapitulate, the case of the plaintiff, in sum and substance, is that
late Lala Narain Dutta was the owner and perpetual lessee of the said property,
the lease having been granted in his favour by the Government of India on
31.05.1932. Lala Narain Dutta having died on 07.11.1950, his son Shri
Krishan Dutta became the owner and perpetual lessee of the said property and
exercised all rights incidental to ownership. Shri Krishan Dutta, in the first
instance, got his name mutated as owner in the records of the L&DO as also in
the records of the New Delhi Municipal Committee, now known as New Delhi
Municipal Council. Thereafter, he executed a will dated 07.06.1976. By
virtue of that will, he bequeathed the property at 13, Barakhamba Road, New
Delhi (the suit property) to the plaintiff, but gave life interest in the said
propety to his wife, Smt. Rani Dutta, providing that so long as she was alive,
she would have the right to live in that property and all income accruing
therefrom would be hers, and after her death or if she so wished during her life
time, the possession of the said property be taken over by the plaintiff, to do
with it what it liked.
14. It also emerges from the plaint Shri Krishan Dutta was paying the
annual licence money to the L&DO and the property tax to the NDMC since
the death of his father and till his own death on 24.09.1976. After his death,
Letters of Administration were obtained by his wife Smt. Rani Dutta in respect
of his will. The leasehold rights of the said property were also substituted by
the L&DO in the name of the plaintiff, on the application made to the L&DO
in this respect by Smt. Rani Dutta herself, on the same terms and conditions as
laid down in the lease deed executed on 31.05.1932, and the properties stood
substituted in the books of that office in the name of the plaintiff. Smt. Rani
Dutta breathed her last on 06.10.1993. On her death, the plaintiff became the
absolute owner of the said property. Accordingly, the plaintiff contends that
the plaintiff is fully competent and has locus standi to file the present suit.
15. On the aspect of non-joinder of the legal heirs of late Lala Narain Dutta,
the plaintiff has averred in the plaint itself that one of the sisters of late Shri
Krishan Dutta, namely, Smt. Sumitra Sahai, had filed a suit, being Suit
No.785/1994, in this Court on or about 18.03.1994 claiming that she was one
of the co-owners of the said property and that late Shri Krishan Dutta, at best,
had only 1/4th share in the said property. The plaintiff herein was impleaded as
the defendant No.1 in that suit. The said suit filed by Smt. Sumitra Sahai was
dismissed by this Court as withdrawn by order dated 14.12.1998. The plaintiff
avers that there has been no other litigation whatsoever initiated against the
plaintiff by any party claiming any interest in the suit property, and, as a matter
of fact, right since the death of his father, Shri Krishan Dutta had exercised all
rights incidental to ownership in respect of the suit property and continued to
do so till his death on 24.09.1976, without the slightest murmur or protest from
any quarter whatsoever. Thus, there is no doubt whatsoever that the plaintiff
alone is the rightful owner of the suit property and is entitled to exercise all
rights incidental to ownership in respect thereof. The defendant's contention
that the suit is bad for non-joinder of the legal heirs of late Lala Narain Dutta
is, therefore, wholly misplaced.
16. The burden of proving both Issue Nos.2 and 3 was on the defendant.
Apart from her bald statement in her affidavit by way of evidence, no other
evidence was led by the defendant to prove that the plaintiff was not the owner
of the suit property, including the portion licenced to the defendant. Further,
no evidence was led by the defendant to show any right, title or interest in the
suit property in favour of any of the alleged legal heirs of late Lala Narain
Dutta, other than his son Shri Krishan Dutta. The plaintiff, on the other hand,
apart from the oral evidence of PW1 Shri Viresh Pratap Chaudhry, reiterating
and reaffirming the averments made in the plaint, has proved the following
documents on record to show that the plaintiff is the absolute owner of the suit
property:-
S.No. Description of documents Exhibit
(i) Certified copy of the registration of the plaintiff as a PW1/1
Society under the Societies Registration Act, 1860.
(ii) Certified copy of the letter dated 06.05.1952 sent by the PW1/3
L&DO to Shri Krishan Dutta, intimating that the propety
at 13 Barakhamba Road stands mutated in the records of
the L&DO.
S.No. Description of documents Exhibit
(iii) Certified copy of the petition along with its annexures in PW1/5
Probate Case No.232/1977 titled Smt. Rani Dutta vs.
State for grant of Letters of Administration to Smt. Rani
Dutta with the will dated 07.06.1976 by Shri Krishan
Dutta annexed as Annexure-C.
(iv) Copy of the joint written statement dated 17.02.1978 PW1/6
filed by Smt. Vidya Wati, Smt. Kaushalya Devi Dhawan
and Smt. Sumitra Sahai (all sisters of late Shri Krishan
Dutta) in the said probate case. In the said written
statement, it was prayed that Letters of Administration
with the will annexed be granted to Smt. Rani Dutta and
they had no objection to the same.
(v) Certified copy of the order dated 24.08.1978 passed by PW1/7
the then District Judge, Delhi in the aforesaid probate
case granting Letters of Administration with the will
annexed in favour of Smt. Rani Dutta.
(vi) Copies of Letters of Administration granted to Smt. Rani PW1/8
Dutta along with the will Exhibit PW-1 annexed to it.
S.No. Description of documents Exhibit
(vii) Letter dated 31st March, 1982 sent by the L&DO to Smt. PW1/11
Rani Dutta, intimating that leasehold rights of the suit
property had now been substituted in the name of the
plaintiff on the same terms and conditions as laid down
in the lease deed executed on 31.05.1932. It was further
stated that the said property stands substituted in the
books of that office in the name of the plaintiff Arya
Orphanage.
(viii) Letter dated 12.11.1987 sent by the NDMC to the PW1/12
Secretary of the plaintiff, intimating that the suit
property had been mutated in the name of the plaintiff in
the House-tax register maintained by NDMC.
(ix) Certified copy of the amended plaint in Suit PW1/15
No.785/1994 titled Mrs. Sumitra Sahai vs. Arya
Orphanage & Ors. instituted in the High Court of Delhi.
(x) Certified copy of the order dated 14.12.1998 passed by PW1/19
the Delhi High Court in the above suit, dismissing the
suit as withdrawn.
S.No. Description of documents Exhibit
(xi) Copy of letter dated 15.03.2000 from the office of the PW1/26
L&DO of Government of India, addressed to the
plaintiff, demanding a sum of Rs.40,688/- towards
ground rent, etc. in respect of the suit property.
(xii) Receipt dated 30.03.2000 issued by the L&DO, PW1/27
Government of India acknowledging the receipt of
cheque towards ground rent in respect of the said
property.
(xiii) Letter dated 07.08.2002 issued by the NDMC to the PW1/33
plaintiff towards property tax; also containing receipt
dated 28.02.2002 for a sum of Rs.4,480/- in respect of
the said demand.
17. In view of the aforesaid oral and documentary evidence brought on
record by the plaintiff, it stands established beyond doubt that the plaintiff is
the owner of the suit property by virtue of the Letters of Administration issued
in Probate Case No.232/1977 in favour of Smt. Rani Dutta and the mutation of
the suit property at her behest in the name of the plaintiff. The filing of the suit
by Smt. Sumitra Sahai, impleading the plaintiff herein as the defendant No.1,
and its subsequent dismissal by this Court also stand established. The
necessary corollary is that the plaintiff alone has the locus standi to file the
present suit and the legal heirs of late Lala Narain Dutta were not required to
be impleaded as parties in the suit.
18. Issue Nos.2 and 3 are accordingly answered in favour of the plaintiff
and against the defendant.
19. The facts concerning the aforesaid issues being common, it is deemed
expedient to deal with these issues together. These issues are:-
"1) Whether the suit is barred by the provision of Section
50 of the Delhi Rent Control Act? OPD
5) Whether Mrs. Rani Dutta had inducted the defendant
as a tenant in the suit premises as claimed by the
defendant in his written statement? OPD
6) Whether Mrs. Rani Dutta had only a life interest in the
suit property. If so its effect? OPP
7) Whether the defendant is in unauthorised possession of
the premises for the reason which have been given in
paragraphs 28 and 37 of the plaint? OPP
8) Whether the plaintiff is entitled to recover the
possession of the premises from the defendant? OPP"
20. As stated above, the case of the plaintiff is that the defendant was
inducted as a licencee in the property in suit by Smt. Rani Dutta on the demise
of her husband Shri Krishan Dutta. The defendant denies her status of licencee
and claims to have been inducted as a tenant. The onus of proving whether
Smt. Rani Dutta had inducted the defendant as a tenant in the suit premises as
claimed by the defendant in her written statement (Issue No.5) was upon the
defendant. The defendant has not produced any documentary evidence to
suggest that she was inducted as a tenant.
21. The plaintiff, on the other hand, led oral as well as documentary
evidence to prove that the defendant was inducted as a licencee in the suit
property and not as a tenant by Smt. Rani Dutta, who had only a life interest in
the suit property, and to further show that the defendant had given
undertakings of her own free will and accord that within one year of the death
of Smt. Rani Dutta, she would handover the peaceful and vacant possession of
the property in suit to the Secretary of the plaintiff and, in the meanwhile,
would not induct any other person either as a tenant or in any other capacity in
the suit property.
22. PW1 Shri Viresh Pratap Chaudhry, in his cross-examination, also
categorically stated that since Smt. Rani Dutta knew that she had only life
interest in the suit property, she told him that she had not inducted anybody as
a tenant, but had given the property to the defendant as a licencee. PW1
further stated, in his cross-examination, that the defendant herself had
informed him that she was a licencee of Smt. Rani Dutta. The defendant, who
appeared in the witness-box as DW1, did not refute either of the aforesaid two
statements made by PW1 in his cross-examination.
23. The documentary evidence on record also affirms that the defendant
was a licencee of Smt. Rani Dutta, and became an unauthorised occupant of
the premises in question upon her death and, at any rate, on the expiry of the
period mentioned in her undertakings. This is borne out by the letter dated
10.10.1992 sent by Smt. Rani Dutta to the Secretary of the plaintiff (Exhibit
PW-1/13A), enclosing therewith a list of various occupants of the suit property
excluding herself (Exhibit PW-1/13). It is specifically stated in the aforesaid
letter by Smt. Rani Dutta that none of the occupants have any right, title or
interest therein and that they were living therein as licencees and that their
possession was wholly permissive. The defendant's name figures in the list
enclosed with the said letter at Serial No.5.
24. The undertaking given by the defendant dated 30th November, 1992 in
respect of the portion of the suit property licenced to the defendant, further
show that the defendant was a mere licencee of late Smt. Rani Dutta (Exhibit
P-1). As already stated, in the said undertaking, the defendant stated, inter
alia, that Mrs. Rani Dutta, who had a life interest in the suit property, had
inducted the defendant as a licencee a few years ago and that her occupation
was purely permissive and that within one year of the death of Smt. Rani
Dutta, she would handover peaceful and vacant possession of the property in
suit to the Secretary of the plaintiff, and, in the meanwhile, she would not
induct any other person either as a tenant or as a licencee or in any other
capacity in the suit property. The undertaking exhibited as Exhibit P-1 reads
as follows:-
"UNDERTAKING Exhibit P-1
This undertaking is given on this the 30th day of
November, 1992 by Mrs. Sharon Lowen, W/o Shri
______________, presently residing in a portion of 13,
Barakhamba Road, New Delhi-110001.
1. WHEREAS in the property situate at 13,
Barakhamba Road, New Delhi, hereinafter referred
to as 'the said property', Smt. Rani Dutta, who has a
life interest therein, inducted me as a licencee in a
portion of the said property a few years ago and that
portion is more particularly described in the
schedule below;
2. AND WHEREAS I am paying a licence fee of
Rs.1000/- p.m. to Smt. Rani Dutta but I have no
independent right, title or interest in the premises in
my occupation and my occupation is purely
permissive which permission is derived from Smt.
Rani Dutta;
3. AND WHEREAS I am given to understand by Smt.
Rani Dutta that Arya Orphanage, Pataudi House,
Darya Ganj, New Delhi is the owner of the said
property and the said property stands mutated in the
record of L.N.D.O. and N.D.M.C. in the name of the
said Arya Orphanage;
Now I give this undertaking of my own free WILL
and accord that within one year after the death of Smt. Rani
Dutta, I shall hand over peaceful, vacant possession of the
portion in my occupation in the said property to the
Secretary, Arya Orphanage, Pataudi House, Darya Ganj,
New Delhi-110002 and I also undertake that I shall not in
the meanwhile induct any other person, either as a tenant
or as a licencee or in any other capacity in the portion in
my occupation.
SCHEDULE
1 room, 1 bath-cum-toilet and 1 kitchen situate on the top
floor (Barsati) of the premises.
Signed by me this the 30th day of November, 1992.
sd/-
(Sharo Lowen) (Mrs.)"
25. In respect of the undertaking (Exhibit P-1), the plea taken by the
defendant in her written statement is that it was obtained from her by
misrepresentation and fraud and that she was requested by Mrs. Rani Dutta to
sign the alleged document as it will solve some of her problems and in no
manner would effect the tenancy rights of the defendant, and that she was
assured and promised that such document would not be used against her nor
would the same effect her tenancy rights. What is to be noted here is that in
her cross-examination, the defendant maintained that she had not read the
document (Exhibit P-1) before signing it, which is in an entirely contradictory
to her earlier plea. The defendant further stated in her cross-examination that
when she signed the undertaking (Exhibit P-1), Mr. Alfred Wuerfel and Leela
Badhwar were also present. However, she did not produce either of them as
her witness to substantiate her version.
26. In Hanuman Dutt Bajpai vs. Budha Singh reported in 68 (1997) DLT
414, which was a case in which the facts were identical to the facts in the
present case, and the question involved was whether the respondent was a
licencee or a tenant, a learned Single Judge of this Court relying upon an
undertaking given by the respondent to the appellant and holding that the
respondent was in occupation of the disputed property as a licencee, observed
as follows:-
"8. The case of the respondent is that he was in
possession of the disputed property as a tenant. The burden
is undoubtedly upon the respondent to establish the said
relationship between him and the appellant. The law of
evidence enjoins upon the party to prove the fact which he
relies on and in that sense, an obligation is cast upon the
party and if he fails to discharge that obligation, adverse
consequences will follow and will have to face the
repercussions of the same..........................................."
27. Applying the ratio of the aforesaid decision, the irresistible conclusion
is that the defendant was under an obligation to establish her case that she was
a tenant of Smt. Rani Dutta and she having failed to discharge the said onus
placed upon her of proving that she was inducted as a tenant in the suit
premises, must be held to be a licencee in view of the undertaking furnished by
her to Smt. Rani Dutta and not denied by her in the course of her cross-
examination before this Court.
28. Issue Nos.1 and 5 are accordingly answered in favour of the plaintiff
and against the defendant.
29. As regards Issue Nos.6, 7 and 8, the letters of Administration granted to
Smt. Rani Dutta in respect of the will of late Shri Krishan Dutta (Exhibit PW-
1/8) clearly show that Smt. Rani Dutta was given only life interest in the suit
property and thereafter the plaintiff was to be its absolute owner. The
substitution of the name of the plaintiff, at the instance of Smt. Rani Dutta, by
the L&DO by its letter dated 31.03.1982 (Exhibit P-1/11) and also by the
NDMC by its letter dated 12.11.1987 (Exhibit P-1/12), leave no manner of
doubt that Smt. Rani Dutta had only a life interest in the suit property. No
evidence to the contrary has been brought on record by the defendant. It
deserves to be mentioned at this juncture that the defendant filed a suit against
the plaintiff for permanent injunction claiming, inter alia, that water and
electricity supply to her in the property in suit be not disconnected and that the
defendant be not dispossessed from the property in suit except in due process
of law. The said suit was assigned to the Court of Shri A.K. Chaturvedi, Civil
Judge, Delhi and was numbered as Suit No.57/99. This suit was disposed of in
terms of the order (Exhibit PW-1/23) dated 04.03.1999 passed by the learned
Civil Judge. In the plaint, the following facts, inter alia, were asserted by her:
(a) Shri Krishan Dutta was the owner of the entire said property (para 1 of
the plaint).
(b) He executed a WILL in respect of that property and he gave life interest
to his wife, Smt. Rani Dutta in that WILL (para 2 of th plaint).
(c) After the death of Shri Krishan Dutta, Smt. Rani Dutta, by virtue of the
WILL executed by her husband, had been managing the affairs of the
said property (para 3 of the plaint).
(d) During her life time, Smt. Rani Dutta asked the plaintiff (the defendant
in the present suit) to give in writing that the plaintiff would vacate the
premises within 1 year after her death but that writing dated 30.11.1992
does not mean that the plaintiff had no other interest in the portion than
that of a tenant (para 10 of the plaint).
All the aforesaid statements made by the defendant in the document
(Exhibit PW-1/20) were put to her in cross-examination and she was asked
whether those statements were correct. But the defendant on the advice of her
counsel, refrained from giving answer to that question. The defendant,
however, to the question whether what she had stated in Exhibit PW-1/20 is
correct, answered that she believed to be so. Hence it stands conclusively
established that Smt. Rani Dutta had only a life interest in the suit property.
As regards the effect thereof, it cannot be lost sight of that a person whether by
lease, licence or otherwise cannot confer a better title on another than that
enjoyed by him. Reference in this context may be made to the first decision on
this point in Mahabir Gope vs. Harbans Narain Singh AIR 1952 SC 205,
wherein it was held as under:-
"The general rule is that a person cannot by transfer or
otherwise confer a better title on another than he himself
has."
30. The same view was taken in Asa Ram vs. Mst. Ram Kali AIR 1958 SC
183, All India Film Corporation Ltd. vs. Raja Gyan Nath 1969(3) SCC 79,
Harihar Prasad Singh vs. Deonarain Prasad 1956 SCR 1, Carona Shoe Co.
Ltd. and Anr. vs. K.C. Bhaskaran Nair AIR 1989 SC 1110 and Balkishan
and Ors. vs. Baldeo Kumar and Ors. AIR 1953 P&H 297.
31. All the aforesaid decisions were relied upon by a Full Bench of this
Court in the case of Puran Chand & Co. vs. Ganeshi Lal Tara Chand and
Ors. reported in AIR 1988 DLT 1. In the said case, the Full Bench after
referring to the aforesaid decisions held:-
"Following these decisions we hold that the general rule is
that every subordinate interest must perish with the
superior interest on which it is dependent. A mortgagee in
possession may grant a lease but he cannot create a lease of
the mortgaged property which may enure beyond the
termination of his own interest as a mortgagee unless he has
been empowered to do so under the mortgagee contract.
The relationship of landlord and tenant between the
mortgagee in possession and his tenant, comes to an end on
redemption unless the relationship is agreed by the
mortgagor or a fresh relationship is recreated."
32. The provision of law behind this well established legal principle is
incorporated in Clause (c) of Section 111 of the Transfer of Property Act,
1882, the effect of which is that the lease of an immovable property is
determined where the interest of the lessor in the property terminates on, or his
power to dispose of the same extends only to, the happening of any event, by
the happening of such event. Since Mrs. Rani Dutta had only life interest in
the suit property, the licence created by her in the said property in favour of the
defendant automatically perished with the death of Mrs. Rani Dutta. In other
words, the right, if any, of the defendant to the possession of the premises
licenced to her stood extinguished upon the death of Smt. Rani Dutta. More
so, as there is no assertion from the side of the defendant that the plaintiff, at
any point of time, recognised the defendant as its licencee/tenant or that the
defendant attorned to the plaintiff or was acknowledged by the plaintiff as its
licencee.
33. Accordingly, the plaintiff must be held to have discharged the onus
placed upon him of proving Issue No.6 in its favour and as a necessary
corollary of proving Issues No.7 and 8, as it must be held that the defendant is
in unauthorised possession of the premises and the plaintiff is entitled to
recover possession thereof. Issues No.6, 7 and 8 are, therefore, decided in
favour of the plaintiff and against the defendant.
Issue No.4
34. Issue No.4 reads as under:-
"4) Whether the suit is not properly valued for the purpose
of court fees and jurisdiction? OPD"
35. The plaintiff, for the relief of possession, valued the suit at Rs.10 lakhs
and paid requisite Court fees on the aforesaid amount. The defendant, in para
48 of her written statement, pleaded that the value of the property in suit is
more than Rs.40 lakhs and the plaintiff be directed to pay the requisite court
fee on the alleged relief of possession. In paras 40 to 41 of the written
statement, however, it was stated by her that the property in suit was a very old
construction, that the same was in a very dilapidated condition and the
property in suit in possession of the defendant cannot fetch rent of more than
Rs.1,000/- per month. This statement was reiterated by the defendant in
para 40 of her affidavit by way of evidence. Thus, the defendant is blowing
hot and cold at the same time; while on the other hand she alleges that the
property in suit is in a very dilapidated condition and would not fetch rent of
more than Rs.1,000/- per month, on the other hand, in the para under reply, she
alleges that the value of the property in suit is more than Rs.40 lakhs.
36. The onus of proving this issue was upon the defendant. The defendant
did not lead any evidence to show that the property in suit was not properly
valued for the purposes of Court fees and jurisdiction for claiming the relief of
possession. In the absence of any evidence led by the defendant, in my view,
it cannot be said that the suit has not been properly valued by the plaintiff for
the relief of possession.
37. Issue No.4 is, therefore, answered in favour of the plaintiff and against
the defendant.
Issue No.9
38. Issue No.9 reads as under:-
"10) Whether the defendant is liable to pay mesne profits?
If so at what rate and for what period? OPP"
39. In view of my findings on Issue Nos.6 to 8 holding that the defendant is
an unauthorised occupant in the property licenced to her after 06.10.1994 [by
which date the defendant had herself undertaken to vacate the property in suit
as per her undertaking (Exhibit P-1), the defendant must be held liable to pay
mesne profits for the use and occupation of the property unauthorisedly
occupied by her.
40. It is settled law that mesne profits, which are to be determined on
account of wrongful continuation of occupation after termination of
tenancy/licence, should be computed at the rate which the property might have
fetched at the relevant time [See UCO Bank vs. Kalicharan 127 (2006) DLT
21 (DB) and another Division Bench decision of this Court in the case of State
Bank of Bikaner and Jaipur vs. I.S. Ratta and Ors. 120 (2005) DLT 407].
The defendant is thus liable to pay damages at the market rate for use and
occupation of the property in suit. The plaintiff, though became entitled to
claim damages with effect from 06.10.1994, has restricted its claim to a period
of three years, i.e., from 01.03.1999 to 31.10.2001, in view of the fact that the
Limitation Act precludes the plaintiff from claiming mesne profits for a period
anterior to the three years immediately preceding the institution of the suit.
Additionally, the plaintiff has also claimed mesne profits from the date of the
filing of the suit till the handing over of the property in suit to the plaintiff.
41. The learned counsel for the plaintiff contends that the suit property is
situate in a posh locality in Delhi and is located at the intersection of Tolstoy
Marg and Barakhamba Road. As such, the property in the possession of the
defendant could have easily fetched the rent of Rs.5,000/- per month at the
relevant time. It is on this basis that damages and mesne profits have been
claimed at Rs.1,60,000/- from the defendant, i.e., Rs.5,000/- per month X 32
months.
42. The plaintiff, in order to substantiate his aforesaid claim for mesne
profits, adduced the evidence of PW-2 Shri Sanjiv Bhagat, who in his affidavit
by way of evidence dated 05.08.2003, deposed that he had been a property
dealer, dealing in real estate for the last thirteen years, that during this period
he had acted as an agent in hundreds of transactions of sale, purchase and lease
of various properties situate in the Delhi and New Delhi areas and was well
aware of the market rate prevalent in the various localities of New Delhi. He
further stated on oath that at the request of the President of the plaintiff society,
he had issued a letter dated 12.01.2002 (Exhibit PW-1/24) in respect of
property situate at Barakhamba Road or in its vicinity, quoting the rate of
"Rs.35/- to Rs.50/- per sq. ft. per month depending on location and building".
However, when he visited the suit property in the third week of September,
2002, he found that the building was not in a dilapidated condition and its rent
fetching capacity was enhanced by the fact that it was open from three sides
and situate in a prime locality. He accordingly opined that its various portions
could be let out at the rate of Rs.50/- per sq. ft. keeping in view its situation
and condition.
43. Per contra, DW-1/A the defendant, in her affidavit by way of evidence
contended that her only liability was to pay the agreed and contractual rent,
that is, Rs.1,000/- per month, and that she cannot be held liable to pay any
damages of Rs.1,60,000/- as claimed by the plaintiff or any other amount from
01.03.1999 to 31.10.2001. Keeping in view the fact that the possession of the
defendant was clearly unauthorised and an unauthorised occupation must lead
to the liability of damages, it is deemed expedient to award mesne profits to
the plaintiff. Mesne profits have been claimed by the plaintiff at the rate of
Rs.5,000/- per month from 01.03.1999 till 31.10.2001, and thereafter at the
same rate for the period from 01.11.2001 till the delivery of possession of the
property in the suit. On calculation, this works out to approximately Rs.10.50
per sq. ft., since, as per the site plan Exhibit PW-1/4, the area of the portion
licenced to the defendant was more than 475 sq. ft. If the statement of PW-2
Shri Sanjiv Bhagat is believed to be correct and even Rs.35/- per sq. ft. is taken
to be mesne profits towards the use and occupation of the licenced premises,
the calculation of mesne profits works out to Rs.16,625/- per month. In the
course of hearing arguments, relying upon Rattan Arya vs. State of Tamil
Naidu AIR 1986 SC 1444 and D.C. Oswal vs. V.K. Subbiah AIR 1992 SC
184 - it was no doubt contended by plaintiff's counsel that judicial notice may
be taken of the manifold increase of rents throughout the country particularly
in urban areas, but, in my view, Rs.5,000/- per month for a period from
01.03.1999 till 31.10.2001, and thereafter at the same rate for the period from
01.11.2001 till the delivery of possession of the licenced property, would be
fair and equitable to both the parties.
Needless to state, however, that if the defendant furnishes the details of
the deposits made by her before the Rent Controller, she shall be entitled to the
adjustment of the amount deposited by her against the total amount due to the
plaintiff for damages and mesne profits as awarded by this Court.
Issue No.9 is decided accordingly.
Issue No.10
44. Issue No.10 reads as under:-
"10) Whether the plaintiff is entitled to claim interest? If so
at what rate, at what amount and for what period?
OPP"
45. The plaintiff in the suit has claimed interest on the entire decretal
amount at 15% per annum from the date of filing of the suit till realisation. In
the context of interest which ought to be awarded to the plaintiff, first a look at
the provision of Section 2(12) of the Civil Procedure Code, which defines
mesne profits and reads as follows:-
"2(12) "mesne profits" of property means those
profits which the person in wrongful possession of such
property actually received or might with ordinary diligence
have received therefrom, together with interest on such
profits, but shall not include profits due to improvements
made by the person in wrongful possession."
46. The Supreme Court in Mahant Narayana Dasjee Varu vs. Board of
Trustees, Tirumalai Tirupathi Devasthanam reported in AIR 1965 SC 1231
held that interest is an integral part of the mesne profits and, therefore, the
same has to be allowed in the computation of mesne profits itself. The
following paragraph from the judgment, which is relevant, is extracted
hereunder:-
"The last of the points urged was that the learned Judges
erred in allowing interest upto the date of realisation on the
aggregate sum made up of the principal and interest upto
the date of the decree, instead of only on the principal sum
ascertained as mesne profits. For the purpose of
understanding this point it is necessary to explain how
interest has been calculated by the learned Judges. Under
Section 2(12) of the Civil Procedure Code which contains
the definition of "mesne profits", interest is an integral part
of mesne profits and has, therefore, to be allowed in the
computation of mesne profits itself. That proceeds on the
theory that the person in wrongful possession appropriating
income from the property himself gets the benefit of the
interest on such income. In the present case the
Devasthanam was entitled to possession from and after
June 7, 1933 i.e., when the Act came into force and the
Devasthanam Committee was appointed. The Mahant
having wrongfully resisted the claim of the Devasthanam to
possession without surrendering the property, was
admittedly bound to pay mesne profits. This, it may be
stated, is not disputed. The question raised are, however,
two: (1) When is the aggregation of the principal amount of
the mesne profits and the interest thereon to be made for the
purpose of the total carrying further interest?, (2) What is
the rate of interest to be charged. The learned trial Judge
allowed interest at 6 per cent for the calculation of interest
which is part of mesne profits. Having calculated mesne
profits on this basis he aggregated the amount of mesne
profits i.e. income from the several items of property plus
the interest on it up to the date of the plaint i.e. January 10,
1946. On the total sum so ascertained he decreed interest at
6 per cent till the date of his decree i.e. March 28, 1952. He
passed a decree for this sum with further interest at 6 per
cent till the date of realisation."
47. The aforesaid dicta laid down by the Supreme Court has been relied
upon by a Division Bench of this Court in the case of I.S. Ratta (supra). In
paragraph 17 of its judgment, the Division Bench held that the issue was no
longer rest integra that interest on mesne profits could be paid.
48. The question, therefore, which arises for consideration is as to what
would be the appropriate rate of interest in the instant case. The plaintiff
claims interest at the rate of 15% per annum from the date of the filing of the
suit till realisation on the premise that the amount being claimed in the suit is
towards damages for use and occupation and mesne profits. The Division
Bench in its aforesaid decision had deemed it proper to fix the rate of interest
payable by the appellant to the respondent towards the arrears of mesne profits
from the date of decree till the date of possession at 12% per annum, holding
that the interest awarded by the learned trial court as interest on the rent at
16.5% per annum was on the higher side. Keeping in view the totality of the
facts and circumstances in the instant case, in my view, the award of 12%
interest per annum towards the arrears of mesne profits from the date of the
decree till the date of possession would be fair and reasonable to both the
parties.
49. To conclude, the plaintiff is held entitled to a decree for recovery of
possession of the licenced property as shown in red in the plan (Exhibit PW-
1/4). The plaintiff is also held entitled to a sum of Rs.1,60,000/- towards
damages for use and occupation of the property in the suit for the period from
01.03.1999 to 31.10.2001 and a decree for future mesne profits and damages
from the date of the institution of the suit till the date of delivery of possession
at the rate of Rs.5,000/- per month. The defendant shall also be liable to pay
interest on the entire decretal amount at 12% per annum from the date of filing
of the suit till realisation as also the costs incurred by the plaintiff.
50. CS(OS) 2442/2001 and IA Nos.11037/2001, 1462/2003, 4462/2005 and
2421/2008 stand disposed of accordingly.
REVA KHETRAPAL, J
November 27, 2008
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