Shri Praveen Narang vs Shri Dinesh Gulati & Anr.
2009 Latest Caselaw 2259 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No.789/2002

%                     Date of Decision: May 26 , 2009


# SHRI PRAVEEN NARANG                       ..... Plaintiff
!        Through: Mr. Krishnan Venugopal, Sr. Advocate with
                  Mr.Anshu Mahajan, Advocate.

                                Versus

$ SHRI DINESH GULATI & ANR.                ..... Defendants
^             Through: Mr.Rakesh Tiku, Advocate


CORAM:
HON'BLE MR. JUSTICE S.N. AGGARWAL

1.    Whether reporters of Local paper may be allowed to see
      the judgment? YES
2.    To be referred to the reporter or not? YES
3.    Whether the judgment should be reported in the
      Digest? YES

S.N.AGGARWAL, J
1.    The plaintiff has filed this suit against the defendants for

possession, permanent injunction and damages for illegal use and

occupation of the property bearing No.G-48, Jangpura Extension,

New Delhi. The portion of the said property in possession of the

defendants is shown in the site plan annexed with the plaint.

2.    The case of the plaintiff is that one Smt. Sita Devi Narang was

the owner of the suit property who had executed a registered Will

dated 26.04.1988 and had thereby bequeathed the above referred

property to him. The plaintiff is the son of Shri S.S. Narang who was

the younger brother of the husband of Smt.Sita Devi Narang. On

the death of Smt. Sita Devi Narang in July, 1991, the plaintiff filed a



CS(OS) No.789/2002                                        Page No.1 of 26
 Probate Case No.263/1991 and letters of administration were

granted to him in respect of the property in suit on 16.10.1992.

Thereafter, both the L&DO and MCD mutated the property in favour

of the plaintiff by 1995. It is alleged that the plaintiff had permitted

the defendants to stay in the scheduled premises as a measure of

goodwill for the last seven years preceding the filing of the present

suit. Since the plaintiff wanted the suit accommodation for his own

use, he vide his letter dated 25.06.2001 asked the defendants to

vacate the suit premises. The plaintiff also sent legal notices dated

20.09.2001 and 22.09.2001 informing the defendants that they

were in unlawful possession of the suit property as they no longer

had leave or licence of the plaintiff to stay in the said premises. The

plaintiff is stated to have not received any reply to his legal notice

from the defendants. Since the defendants failed to vacate the suit

premises despite service of legal notices dated 20.09.2001 and

22.09.2001, the plaintiff has filed this suit against them seeking a

decree of possession and also a decree of damages for illegal use

and occupation of the suit property by the defendants @

Rs.15,000/- per month with effect from 07.10.2001 till realization.

This suit was filed by the plaintiff on 05.04.2002.

3.    In response to the summons of the suit, the defendants have

filed their written statement. It is stated by them in their written

statement that this Court has no jurisdiction to try and decide the

present suit as the relationship between the predecessor-in-title of

the plaintiff and the defendants herein and their predecessor-in-title


CS(OS) No.789/2002                                         Page No.2 of 26
 was earlier that of landlord-tenant and, according to them, in view

of the provisions of Delhi Rent Control Act, this suit is barred and

not maintainable in this Court. It is alleged that their predecessor-

in-title, namely, Shri Ram Prakash Gulati was inducted in the suit

premises on or around 1972 at a rental of Rs.70/- per month, which

rent was increased from time to time and according to the

defendants, the rent in respect of the suit premises in 1986 was

Rs.350/- per month. The defendants have alleged that they were

tenants in the suit property till 1986 and thereafter they became

owner of the said premises by adverse possession since no rent

after 1986 was either claimed by anybody or paid by them either to

the plaintiff or to his predecessor-in-title. However, the defendants

have pleaded 'adverse possession' as an alternative plea stating

that in case their plea of 'tenancy' is not accepted by the Court,

then in that event they are entitled to resist this suit on the ground

of having become owners by adverse possession. The defendants

have further taken an objection of limitation in their written

statement stating that in any case, this suit is barred by limitation.

They have further contended that this suit has not been valued

correctly for the purpose of jurisdiction and court fee and for that

reason also, according to them, the plaint is liable to be rejected. As

per the defendants, this suit is also liable to be dismissed for non-

joinder of all the legal heirs of deceased R.P. Gulati, as they all

according to them, are necessary and proper parties to this suit.

The defendants in their written statement have made additional



CS(OS) No.789/2002                                        Page No.3 of 26
 factual submissions to state how their predecessor-in-title Shri Ram

Prakash Gulati came in possession of the suit property in the year

1972. The defendants have denied their liability for their eviction

from the suit premises or to pay any damages for alleged illegal use

and occupation of the suit premises by them as they are claiming

themselves to be the owner of the suit property by adverse

possession. The defendants have prayed for the dismissal of this

suit.

4.      The plaintiff in his replication to the written statement of the

defendants has reiterated the fact that the predecessor-in-title of

the defendants, namely, Late Shri Ram Prakash Gulati was inducted

into suit premises by plaintiff's predecessor-in-title late Smt. Sita

Devi Narang in 1972 merely as a licensee. The plaintiff has

reiterated that the predecessor-in-title of the defendants was

brought into the suit premises by late Smt. Sita Devi Narang

because late Shri R.P.Gulati was distantly related to late Smt. Sita

Devi Narang and also because of the fact that after the demise of

her husband Smt. Sita Devi Narang in her old age, she was feeling

lonely and wanted somebody to take care of her. The plaintiff has

refuted the claim of ownership by adverse possession set up by the

defendants in their written statement. The plaintiff has re-asserted

its claim for possession and also for recovery of damages at market

rate for use and occupation of the suit premises by the defendants

ever since the date their license was terminated vide legal notices

dated 20.09.2001 and 22.09.2001. The plaintiff has denied all the


CS(OS) No.789/2002                                         Page No.4 of 26
 allegations which are inconsistent and contrary to his averments

contained in the plaint and in specific reply thereto, he has

reiterated, re-asserted and re-affirmed the averments contained in

his plaint to be correct.

5.    Following issues were framed on 16.02.2005:-

            "1.    Whether the plaintiff has validly terminated
                   the license of the defendants? OPP
            2.     Whether the defendant is a tenant or a
                   licensee in the suit property? OPD
            3.     Whether the defendant is liable to pay
                   mesne profits to the plaintiff, if so, at what
                   rate? OPP.
            4.     Whether the defendant has become the
                   owner of the suit property by way of adverse
                   possession? OPD
            5.     Whether the suit is barred by limitation?
                   OPD
            6.     Whether the suit is not correctly valued for
                   the purposes of court fee and jurisdiction?
                   OPD
            7.     Whether the suit is bad for non-joinder of
                   necessary parties, if so, its effect? OPD
            8.     Whether the plaintiff is entitled to a decree
                   of possession? OPP.
            9.    Whether the plaintiff is entitled to a decree
                   of permanent injunction? OPP.
            10.     Relief."

6.    In evidence, the plaintiff has examined two witnesses. PW-1

Shri Parveen Narang is the plaintiff himself and PW-2 Shri S.S.

Narang is his father. The defendants have examined only one

witness, namely, defendant No.1 Shri Dinesh Gulati as DW-1. The

witnesses examined by the parties have filed their evidence-in-chief

by affidavits and they were thoroughly cross-examined by counsel


CS(OS) No.789/2002                                             Page No.5 of 26
 for each other's party. The plaintiff (PW-1) has tendered 36

documents in his evidence affidavit and they are Ex.PW-1/1 to

Ex.PW-1/36. Though defendant No.1 (DW-1) in his evidence affidavit

has tendered 17 documents marked Ex.DW-1/1 to Ex.DW-1/17 but

when he appeared before the Court to give evidence, only one

document, i.e. document Ex.DW-1/1 was tendered by him in his

evidence-in-chief.

7.     I have heard the arguments of Mr. Krishnan Venugopal,

learned senior counsel for the plaintiff and of Mr. Rakesh Tiku,

learned counsel for the defendants. I have also perused the entire

case file carefully and have given my anxious consideration to the

rival arguments advanced by counsel for the parties.

8.     Before I proceed to give my issue-wise findings, I would like

to mention that defendant No.2, being the mother of defendant

No.1, died during the pendency of the present suit around July,

2006 and her name was deleted from the array of defendants vide

order of the Joint Registrar dated 27.07.2006. After deletion of the

name of defendant No.2 from the array of the defendants, the Court

is concerned only with the legal rights of defendant No.1, being the

sole   surviving     defendant   in   the   suit.   The   defendant   No.1,

hereinafter, will be referred to as the 'defendant'.

9.     I now proceed to give my issue-wise findings as follows:-

ISSUE NO.2

       "Whether the defendant is a tenant or a licensee in the suit
       property?"

CS(OS) No.789/2002                                            Page No.6 of 26
 10.   This is the most crucial issue as the findings on the said issue

will more or less decide the fate of the suit.

11.   The defendant has not produced any documentary or cogent

oral evidence to prove his plea of alleged tenancy. However, Mr.

Rakesh Tiku, learned counsel appearing on behalf of the defendant,

has placed heavy reliance on a complaint dated 10.10.1991 (Ex.PW-

1/35) lodged by the plaintiff with Chowki Incharge, Jangpura

Extension, New Delhi, wherein in that complaint, the plaintiff

himself has described the defendant as a tenant. Mr. Venugopal,

learned senior counsel appearing on behalf of the plaintiff, has

responded to the above contention of the defendant's learned

counsel and said that the use of the word 'tenant' in the letter

Ex.PW-1/35 was totally unintentional and an error. According to Mr.

Venugopal, the use of the word 'tenant' in letter Ex.PW-1/35, should

in no way, be construed as an admission by the plaintiff, of any

landlord-tenant relationship between the plaintiff and the defendant

or his predecessor-in-interest. According to the learned senior

counsel appearing on behalf of the plaintiff, the defendant and his

predecessor-in-interest were staying in the suit property as pure

licensee till their licence was terminated vide legal notices dated

20.09.2001 and 22.09.2001. In this context, Mr. Venugopal has

referred to and relied upon the contents of another complaint dated

24.01.1992 (Ex.PW-1/36) made by the plaintiff to the Police of

Police Post, Jangpura Extension, wherein the defendant has been



CS(OS) No.789/2002                                       Page No.7 of 26
 described in so many words as a 'licensee'. Mr. Vengopal has also

relied upon a letter dated 18.03.1987 (Ex. PW-1/34) written by

plaintiff's predecessor-in-title, Smt. Sita Devi Narang, to the MTNL

asking the MTNL people not to install independent telephone

connection in the name of defendant's predecessor-in-interest, Shri

Ram Prakash Gulati, as he was only a licensee in the suit premises.

The letter Ex.PW-1/34 dated 18.03.1987 is important and is

extracted below :-

            "To,

                     Manager Telephone Nigam Ltd.,
                     Through its Secretary,
                                        rd
                     Corporate Office, 3 Floor,
                     19, Ashok Road,
                     NEW DELHI-110 001

            Subject:      Regarding allotment of New Telephone
                          Connection in the name of Mr.R.P.Gulati.

            Dear Sir,

            The undersigned is the owner of property No.G-48 Jangpura
            Extn., New Delhi-110 014 and she had permitted Shri Ram
            Prakash Gulati to live in a portion of her property No.G-48,
            Jangpura Extn., New Delhi as caretaker and her licency as
            she is a lonely widow. The possession of Shri R.P.Gulati is
            only permissive to live with the undersigned.

            That it appears Shri R.P.Gulati without the knowledge and
            consent of the undersigned has applied a new telephone
            connection in his name and the said connection has been
            alloted and is going to be installed by you.

            That it is illegal to install telephone connection in the property
            of the undersigned without her knowledge and consent and
            your action is illegal and without jurisdiction by installing a
            telephone connection in the name of Shri R.P.Gulati or any of


CS(OS) No.789/2002                                                     Page No.8 of 26
             his family members name, you are indirectly creating illegal
            interest.

            Please take notice and refrain from installing a telephone
            connection in the name of Shri R.P.Gulati or any of his family
            members name otherwise I shall have no option but to take
            out appropriate legal action against you according to law.

                         Thanking you,
                                                   Yours truly,
                                             (SITA DEVI NARANG)
                                             R/o G-48, Jangpura Extn.,
                                             New Delhi-110 014"

12.   I have carefully gone through all the three documents, Ex.PW-

1/34 to Ex.PW-1/36 and on going through the same, it appears to

me that the description of the defendant as 'tenant' given by the

plaintiff in his complaint Ex.PW-1/35 is a loosely worded expression

and in any case in the teeth of documents Ex. PW-1/34 and Ex.PW-

1/36 also written by the plaintiff and his predecessor-in-title

describing the defendant as licensee, no weightage can be attached

to the term 'tenant' and his complaint Ex.PW-1/35. Even otherwise,

I am of the view that the question as to whether the defendant or

his predecessor-in-interest Shri Ram Prakash Gulati was a tenant or

a licensee in the property in dispute, has to be determined on the

basis of the evidence of the parties available on record, to be

discussed hereinafter.

13.    Admittedly, the defendant claims his right, title and interest

in the suit property from his predecessor late Shri Ram Prakash

Gulati. Shri Ram Prakash Gulati was the father of the defendant. He

was brought into the suit property by late Smt. Sita Devi Narang,


CS(OS) No.789/2002                                                 Page No.9 of 26
 widow of title owner Shri R.S.Narang in 1972.      Shri Ram Prakash

Gulati was staying in the suit property along with his wife

(defendant No.2), two sons, namely, Dinesh Gulati (defendant No.1)

and Sanjay Gulati and his one daughter. Shri Ram Prakash Gulati

died on 03.11.1992 and after his death his sons and widow

continued residing in the suit property. One of his sons, Shri Sanjay

Gulati, after his marriage along with his family shifted to Rohini and

the daughter of late Shri Ram Prakash Gulati after her marriage was

settled in her matrimonial home. Even the widow of late Shri

R.P.Gulati has died during the pendency of the present suit and

after her death only one of her sons, namely, Shri Dinesh Gulati

(defendant herein) is residing in the suit property and seeks to

resist the present suit for possession against him on the ground

that his father late Shri Ram Prakash Gulati was inducted in the suit

premises as a tenant and, therefore, he being his son acquired the

tenancy rights from his father in respect of the suit premises. In

the alternative, he also seeks to resist this suit on the ground of his

ownership by adverse possession.

14.   The plaintiff has denied both the above claims of the

defendant, as according to him the late father of the defendant was

inducted by late Smt. Sita Devi Narant (predecessor-in-title of the

plaintiff) only as a licensee. Therefore, the main question that

needs to be considered is whether the late father of the defendant

was inducted as a licensee or a tenant in the suit premises by late

Smt. Sita Devi Narang.


CS(OS) No.789/2002                                       Page No.10 of 26
 15.   The defendant in para 3 at page 32 and in para 7 at page 34

of his written statement has admitted that he does not have a

single piece of documentary evidence such as a written tenancy

agreement or a rent receipt that directly supports his plea of

tenancy. He has stated in his cross-examination recorded on

29.08.2007 that he has not shown in any of the returns of the

income tax that he is residing as a tenant in the suit property. In

his cross-examination recorded on 03.09.2007, he has deposed that

his late father had paid rent to late Smt. Sita Devi Narang upto the

year 1986.     He has deposed that the rent receipts were never

issued by late Smt. Sita Devi Narang despite demand. He further

said that neither his late father ever asked late Smt. Sita Devi

Narang to issue rent receipt nor she issued any rent receipt to

them. He went on to say that his late father did not deposit the

rent in any Court after 1986 or sent the same by money order or by

way of cheque. He candidly admitted in his cross-examination

recorded on 03.09.2007 that after the death of Smt. Sita Devi

Narang neither his father nor he ever paid any rent to the plaintiff.

In fact, the defendant has admitted against his own interest in his

cross-examination on 13.11.2007 that :


            "It is correct that after the death of Smt. Sita Devi
            Narang, my father and later on myself was allowed
            to continue in the property in dispute by the plaintiff
            as a licensee."

16.   In view of the above candid admission of the defendant in his

cross-examination, his plea of tenancy stands contradicted and



CS(OS) No.789/2002                                          Page No.11 of 26
 defeated by the plea that he became owner by way of adverse

possession as pleaded in para 2 of the preliminary objections and

para 11 of the factual submissions (on page 8) in the written

statement. It will be significant to mention the statement made by

the defendant in his cross-examination on 13.11.2007 and the

same is reproduced below:-

            "At this stage, the witness is shown para 11 of the
            written statement filed by him wherein it was
            mentioned that in 1998, the defendant became
            entitled to the ownership of the property in dispute
            by way of adverse possession. The witness has
            stated that this statement written in para 11 of the
            written statement filed by him is correct.

            Q. Since in para 11 of your written statement, you
            have claimed that you became owner by way of
            adverse possession in the year 1998, therefore, as
            per you, you are claiming to remain in the property
            as owner and not as a tenant. What you have to
            say?

            A. I cannot answer this question as I will have to
            consult my lawyer.

            Q. I put it to you that since you have claimed
            ownership in the property in dispute, your claim to
            tenancy in the property does not survive?

            A. I cannot answer this question as I will have to
            consult my lawyer."


17.    The evasive answers given by the defendant in response to

specific questions relating to tenancy and adverse possession put

to him, clearly reflect that he has mischievously taken the plea of

'tenancy' and in the alternative, 'ownership by adverse possession',


CS(OS) No.789/2002                                      Page No.12 of 26
 only to prolong the trial and enjoy the suit premises as long as he

can. Not only are these pleas self-contradictory and mutually

inconsistent but they are demolished in the course of cross-

examination, particularly the admission of the defendant himself in

his cross-examination referred above wherein he candidly admitted

that after the death of plaintiff's predecessor-in-title, late Smt. Sita

Devi Narang, his father and later on, he himself was allowed to

continue in the property in dispute as a licensee. This candid

admission by the defendant demolishes his defence that he is a

tenant in the suit premises. The plaintiff has proved by his evidence

that the defendant is occupying the suit premises as a licensee and

the defendant has not been able to controvert or rebut the said

plea in his cross-examination.

18.   From the evidence of the plaintiff on record, it is established

that the late father of the defendant was brought into the suit

premises by late Smt. Sita Devi Narang in 1972 on sympathetic

grounds because Late Shri R.P. Gulati was in a bad financial

condition at that time and to ensure that the family of Shri R.P.

Gulati will take care of Late Smt. Sita Devi Narang, who did not

want to live completely alone. The plaintiff's evidence in this regard

has remained unshaken in cross-examination. There is nothing in

the cross-examination either of PW-1 or PW-2 to impinge on their

credence. The mere statement of the defendant that he is a tenant

in the suit property without producing any document in support

thereof, cannot be accepted as sufficient proof of tenancy.



CS(OS) No.789/2002                                        Page No.13 of 26
 19.   In Prem Pal Singh Versus Jugal Kishore Gupta, 1993

(50) DLT 49, it was held by the Division Bench of this Court that

the plea of tenancy cannot be accepted in the absence of

documentary evidence of tenancy. Para 3 of the judgment is

relevant and is extracted below:-

            "As noted above, on the second issue the defendant has not
            led any documentary evidence except his own statement that
            he was the tenant. He admits that he has no document to
            show that he was a tenant in the premises. Tenancy rights are
            created by contract under the statute being the Transfer of
            Property Act and court has to be satisfied that there in fact a
            tenancy existed, and when landlord denies the same a mere
            statement of the tenant may not be enough. Mr. Chopra has
            also referred to a judgment of the Calcutta High Court in short
            note in Satinath Mukherjee Versus Sa\ilendra Nath Sen alias
            Aailen Sen, AIR 1991 Noc 55 (Calcutta), to contend that to
            prove the tenancy it is not necessary to prove an agreement.
            That, of course, will depend upon the facts of each case and
            the evidence that may be led in a case. In the present case the
            defendant has been unable to prove that he had been a
            tenant."


20.   In view of the above judgment of the Division Bench of this

Court in Prem Pal Singh's Case (supra), I have no hesitation in

holding that the defendant has miserably failed to prove his plea of

tenancy. Rather the plaintiff has proved, through reliable and

cogent evidence, that the late father of the defendant was inducted

in the suit premises as a licensee and even after the death of his

father, he was also treated as a licensee by the plaintiff till his

licence was terminated vide legal notices dated 20.09.2001 and

22.09.2001. This issue is, therefore, decided against the defendant

and in favour of the plaintiff.


CS(OS) No.789/2002                                                Page No.14 of 26
 ISSUE NO. 4 :

           "Whether the defendant has become the owner of the
           suit property by way of adverse possession? OPD


21.   The plea of 'ownership by adverse possession' has been taken

by the defendant in the written statement in the alternative to the

plea of 'tenancy', i.e., in case the plea of 'tenancy' is not accepted.

22.   Mr. Venugopal, learned senior counsel appearing on behalf of

the plaintiff, has strenuously argued that the plea of 'tenancy' as

well as the plea of 'ownership by adverse possession' are not

tenable as they are mutually destructive to each other. In support

of his said contention, he has referred to and relied upon a Division

Bench judgment of this Court in S. Pritam Singh and Others

Versus Ram Narain Vij, 1999 (77) DLT 76 wherein it has been

held as under:-

            "the appellants had simply claimed to be in occupation of the
            premises. The appellants also simply denied the ownership of
            the respondent. The plea of tenancy and that of having

acquired ownership by adverse possession are mutually destructive of each other. As discussed earlier, the amendment application deserves dismissal and is dismissed. The appeal also has no merit and is dismissed. Appeal dismissed." (Emphasis Supplied).

23. In view of the above judgment of the Division Bench of this

Court in Pritam Singh's Case (supra), Mr. Venugopal had argued

that the defendant is precluded even from raising the plea of

ownership by adverse possession.

24. On the other hand, Mr. Rakesh Tiku, learned counsel

appearing on behalf of the defendant, had taken a stand that the

plea of 'tenancy' and the plea of 'ownership by adverse possession'

set up by the defendant are alternative pleas and cannot be said to

be mutually destructive to each other. However, Mr. Tiku, could not

give any reason as to how and why the Division Bench judgment of

this Court in Pritam Singh's Case (supra) which holds that the plea

of 'tenancy' and the plea of 'ownership by adverse possession' are

mutually destructive to each other, is not applicable to the facts of

this case. It will be significant to mention that the defendant has

admitted in his cross-examination that the plea of 'ownership by

adverse possession' taken by him was on the advice of his lawyer.

The relevant part of the cross-examination of the defendant (DW-1)

is reproduced herein below :-

"'Adverse possession' means that I have occupied a place for 12 to 15 years and no rent is being taken from me by the landlord."

"At this stage, the witness is shown para 11 of the written statement filed by him wherein it was mentioned that in 1998, the defendant became entitled to the ownership of the property in dispute by way of adverse possession. The witness has stated that this statement written in para 11 of the written statement filed by him is correct.

Q. Since in para 11 of your written statement, you have claimed that you became owner by way of adverse possession in the year 1998, therefore, as per you, you are claiming to remain in the property as owner and not as a tenant. What you have to say?

A. I cannot answer this question as I will have to

consult my lawyer.

Q. I put it to you that since you have claimed ownership in the property in dispute, your claim to tenancy in the property does not survive?

A. I cannot answer this question as I will have to consult my lawyer."

It is correct that I have not informed in writing to the plaintiff that I have become the owner of the property in dispute."

25. It shall further be significant to mention that the defendant

(DW-1) in his cross-examination on 13.11.2007 has very

categorically admitted that neither he nor his father had ever

claimed themselves to be the owner of the property in dispute

either against Smt. Sita Devi Narang or against the plaintiff. This

admission of the defendant coupled with his admission that he took

the plea of 'ownership by adverse possession' on the advice of his

lawyer completely demolishes the foundation of the defendant's

plea of 'ownership by adverse possession'.

26. In view of the above admission of the defendant on his plea of

adverse possession, I do not find any merit in the argument of Mr.

Tiku that the plea of 'adverse possession' taken by the defendant is

in the alternative or that it is not mutually destructive to the plea of

'tenancy' taken by his client. In the peculiar facts and

circumstances of this case, the plea of 'tenancy' and the plea of

'adverse possession' taken by the defendant are anti-thesis to each

other and the same are not acceptable.

27. The plaintiff has proved that he is the owner of the entire

property bearing No. G-48, Jangpura Extension, New Delhi, part of

which is in possession of the defendant. The plaintiff is the real

nephew of the husband of late Smt. Sita Devi Narang, who after the

death of her husband, had inherited the above referred property

from her late husband. The plaintiff has proved that late Smt. Sita

Devi Narang had executed a registered Will dated 26.04.1988

(Ex.PW-1/1) and that he has also proved the judgment of the

Probate Court as Ex.PW-1/3 and Letters of Administration granted in

his favour as Ex.PW-1/4. The original mutation letter dated

16.01.1995 for the above referred property including the portion in

possession of the defendant issued by the Land and Development

Office and MCD respectively have been proved on record as Ex.PW-

1/5 and Ex.PW-1/6 respectively.

28. The defendant in his evidence has not disputed the ownership

of the plaintiff in respect of the suit property. As per the testimony

of the defendant himself in his cross-examination, the property

bearing No. G-48, Jangpura Extension, New Delhi, has two portions,

one in possession of the plaintiff and the other in possession of the

defendant. The portion of the said property in possession of the

defendant is shown in the site plan of the property proved (Ex.PW-

1/21) in the testimony of PW-1. The fact that the above referred

property has two portions, one in possession of the plaintiff and the

other in possession of the defendant, stands admitted by the

defendant, in his cross-examination recorded on 03.09.2007. He

has admitted that there is a connecting door connecting the two

portions of the house and that the portion in possession of Late

Smt. Sita Devi Narang was locked by the plaintiff after her death.

The defendant has very categorically admitted that the portion of

the above referred property except the portion in his possession, is

in possession of the plaintiff being the true owner of the said

property. He has also stated in his cross-examination on 03.09.2007

that there are two name plates of stone fixed on the outer gate of

the house, one bears the name 'Sita Ram House' and the other

bears the name 'Prem House'. He has further stated that after the

death of Smt. Sita Devi Narang, the plaintiff is continuously paying

the house tax for the above referred property.

29. I am of the view that how a person, knowing fully well about

the possession of the true owner over a substantial portion of the

property in dispute and that the true owner is continuously paying

house tax of the entire property, can claim his possession in a

portion of the property to be hostile or adverse to the possession of

the true owner (plaintiff herein). In fact, the defendant has

admitted in his cross-examination that neither he nor his late father

ever claimed themselves to be the owner of the property in dispute

either against Smt. Sita Devi Narang or even against the plaintiff.

The essential ingredients required to prove the ownership by

adverse possession are, therefore, conspicuously absent in the

present case.

30. In Thakur Kishan Singh Versus Arvind Kumar, 1994 (6)

SCC 591 it was held by the Hon'ble Supreme Court as under:-

"As Regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument, could not demolish the finding on adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this court under Article 136 of the Constitution. Further, we do not find that the appellant has suffered any injustice which requires to be remedied by this court."

31. In view of the above judgment of the Hon'ble Supreme Court

in Thakur Kishan Singh's Case (supra), mere long possession of the

defendant over the suit property, does not prove his plea of

'ownership by adverse possession'.

32. For the reasons delineated above, I hold that the defendant

has failed to prove his plea of 'ownership by adverse possession'.

Hence, this issue is decided against the defendant and in favour of

the plaintiff.

ISSUE NO. 1 :

"Whether the plaintiff has validly terminated the licence of the defendants? OPP"

33. The onus of proof to prove this issue was upon the plaintiff.

The plaintiff had terminated the licence of the defendant with

regard to the suit property in his possession vide his letter dated

25.06.2001, proved on record as document Ex.PW-1/22. The licence

of the defendant was also terminated by serving the defendant with

legal notices dated 20.09.2001 and 22.09.2001, which have been

proved on record as documents Ex.PW-1/25 and Ex.PW-1/27

respectively. The defendant in his cross-examination on

13.11.2007 has admitted that the plaintiff had sent a letter dated

25.06.2001 (Ex.PW-1/22) to him for vacating the property in

dispute. He has also admitted the receipt of legal notices dated

20.09.2001 and 22.09.2001 (Ex.PW-1/25 and Ex.PW-1/27). It may

be noted that in the evidence of the defendant, there is no denial of

termination of licence by the plaintiff vide legal notices dated

20.09.2001 and 22.09.2001. I, therefore, hold that the plaintiff has

validly terminated the licence of the defendant prior to filing of the

present suit. This issue is decided against the defendant and in

favour of the plaintiff.

ISSUE NO. 3 :

"Whether the defendant is liable to pay mesne profits to the plaintiff, if so, at what rate? OPP"

34. After termination of the licence of the defendant by the

plaintiff vide legal notices dated 20.09.2001 and 22.09.2001, the

possession of the defendant over the suit premises became illegal

and unauthorized. The defendant is, therefore, liable to pay

damages/mesne profits for illegal use and occupation of the suit

property by him after termination of his licence. What should be

the rate of damages/mesne profits, is the question that needs to be

considered by the Court.

35. The plaintiff has proved on record the Valuation Report of

Er.B.P.Singh as Ex.PW-1/32 and Ex.PW-1/33 and in the said reports,

the Valuer has assessed the fair rental of the suit premises at

Rs.35/- per Sq.Ft. or Rs.17,850/- as monthly rental value. There is

no challenge to this report in the cross-examination of the plaintiff

by the defendant. The reports of the Valuer (Ex.PW1/32 to Ex.PW-

1/33) have remained un-controverted and un-rebutted. There is

absolutely no cross-examination on the rate of damages as

deposed by the plaintiff. It is not disputed that the property in

dispute is located in a prime locality of South Delhi.

36. Mr. Venugopal, learned senior counsel appearing on behalf of

the plaintiff, had argued that the rentals in the locality where the

suit property is situated, have gone up by two to three times after

the date of the Valuation Reports especially in view of the ceilings

carried out throughout Delhi under the supervision of this Court

and, therefore, he had submitted that the damages/mesne profits

be awarded to the plaintiff at least @ Rs.17,850/- per month as

assessed by the Valuer in his reports referred above.

37. On the other hand, Mr. Rakesh Tiku, learned counsel

appearing on behalf of the defendant, had relied upon a Division

Bench judgment of this Court in S.Kumar Versus G.R. Kathpalia,

1999 (1) RCR 431 to contend that the Division Bench of this Court

had awarded damages @ Rs.25,000/- per month for a property built

on a 500 Sq.Yd. plot in East of Kailash, New Delhi. He had

submitted that since the property in dispute has much lesser area

than the East of Kailash property dealt with by the Division Bench in

S.Kumar's Case (supra), the Court should not assess the

damages/mesne profits at a rate more than Rs.7500/- per month

agreed upon by counsel for both the parties before the Division

Bench in FAO(OS) 614 and 615/2006 disposed of vide order dated

11.10.2006. Mr. Venugopal, in response to this submission made

by Mr. Tiku, left the matter regarding assessment of rate of

damages/mesne profits to the discretion of the Court and said that

whatever damages/mesne profits shall be assessed by this Court,

will be acceptable to the plaintiff.

38. I have given my anxious consideration to the above rival

submissions made by the counsel for the parties for determining

the rate of damages/mesne profits payable by the defendant.

39. The licence of the defendant was terminated by the plaintiff

vide legal notices dated 20.09.2001 and 22.09.2001 and thereafter

the possession of the defendant over the suit property became

illegal and unauthorized, which rendered him liable to pay

damages/mesne profits for the period he retained the possession

unauthorisedly, i.e., w.e.f. 07.10.2001. Though there is no rebuttal

either set up or proved by the defendant against the Valuation

Reports Ex.PW-1/32 and Ex.PW-1/33, according to which, the

damages/mesne profits in respect of the property in dispute in

possession of the defendant has been assessed @ Rs. 17,850/- per

month, I am of the view that the ends of justice will be adequately

met by awarding the damages/mesne profits to the plaintiff against

the defendant @ Rs. 7500/- per month already agreed upon by the

parties before the Division Bench as referred above. The defendant

is, therefore, held liable to pay mesne profits for illegal use and

occupation of the suit property by him to the plaintiff @ Rs. 7500/-

per month w.e.f. 07.10.2001. He shall be entitled to adjustment of

the payments on account of damages already made by him

pursuant to the order of the Single Judge dated 09.05.2006 and the

order of the Division Bench dated 11.10.2006. This issue is decided

accordingly in favour of the plaintiff and against the defendant.

ISSUES NO. 5, 6 and 7 :

"Whether the suit is barred by limitation? OPD Whether the suit is not correctly valued for the purposes of court fee and jurisdiction? OPD Whether the suit is bad for non-joinder of necessary parties, if so, its effect? OPD"

40. The onus of proof to prove all these three issues was on the

defendant. The defendant has not led any evidence to prove as to

how this suit is barred by limitation or how this suit is not correctly

valued for the purposes of court fee and jurisdiction. The defendant

has also not led any evidence to show how this suit is bad for non-

joinder of necessary parties. In fact, none of these three issues was

pressed by Mr. Tiku who appeared for the defendant. Hence, all

these three issues are decided against the defendant.

ISSUES NO. 8, 9 & 10 :

"Whether the plaintiff is entitled to a decree of possession? OPP.

Whether the plaintiff is entitled to a decree of permanent injunction? OPP.

Relief."

41. All these three issues are proposed to be dealt with together

because they all relate to the relief to be granted to the plaintiff in

the present suit.

42. In view of my findings on the above issues, I hereby pass a

decree of possession in favour of the plaintiff and against the

defendant directing eviction of the defendant from the suit

premises as per the site plan Ex.PW-1/21. The plaintiff is also held

entitled to damages/mesne profits in respect of the property in

dispute in unauthorized and illegal occupation of the defendant @

Rs. 7500/- per month w.e.f. 07.10.2001 till the date the vacant and

peaceful possession of the suit property is handed over by the

defendant to the plaintiff and this decree for damages/mesne

profits granted in favour of the plaintiff will be subject to his paying

the court fees within four weeks from today, on the decretal

amount to be worked out by the Registry. The defendant is granted

six weeks time from the date of this judgment for handing over the

vacant and peaceful possession of the suit property by him to the

plaintiff and in the meanwhile, the defendant is restrained from

creating any third party interest in respect of the property in

dispute in favour of anyone whomsoever. The plaintiff shall also be

entitled to the costs of this suit.

43. Decree sheet be prepared in terms referred hereinabove.

May 26, 2009                              S.N.AGGARWAL
vg/ma                                          [JUDGE]