Delhi High Court
Jagbir Singh vs Jai Singh Panwar & Ors. on 27 May, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No. 10131/2008 IN RFA (OS) No. 47/2008
% Date of decision : 27.05.2009
JAGBIR SINGH ... ... ... ... ... ... ...APPELLANT
Through : Mr. Vivek Chib &
Mr. Vibhore Kr. Singh,
Advocates.
-VERSUS-
JAI SINGH PANWAR & ORS. ... ... ... ... RESPONDENTS
Through : Mr. Arun Varma &
Mr. Aman Anand,
Advocates for LRs of R-1.
R-2 to R-5 proceeded ex-parte
vide Order dated 17.02.2009.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J. (ORAL)
1. A suit for possession, recovery of mesne profits /
damages for use and occupation, declaration and
permanent injunction was filed by respondent No. 1
against the appellant and respondents No. 2 to 5 in
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 1 of 11
respect of the property bearing Municipal No. 35-B,
Village Shahpur Jat, Delhi ( hereinafter referred to as,
'the suit property' ). Respondent No. 1 / the original
plaintiff claims to have left for United States of America
(USA) in the year 1980 leaving behind the house in the
care and possession of one Master Hari Chand Kadian,
relative. The son of respondent No. 1 visited India in
February, 1990 when a marriage was finalized and
thereafter solemnized with one Kumari Sneh Singh,
daughter of respondent No. 2. The marriage, however,
did not succeed. Respondent No. 1 has alleged that
respondent No. 2 in collusion with the appellant and
respondents No. 3 to 5 illegally took possession of the
house built on the land and that they had even forged
and fabricated documents alleging that respondent No.
1 had agreed to sell the suit property to the appellant.
The appellant appointed a new Attorney and thereafter
suit was filed in the year 1991.
2. The suit unfortunately dragged on for a very long time
and was ultimately dismissed with costs of Rs.50,000/-
against the appellant in terms of the judgment and
decree dated 19.05.2008.
3. The defence of the appellant in the suit was that he was
the bona fide purchaser without notice in respect of the
suit property from respondent No. 2 on the strength of a
Power of Attorney stated to have been executed by
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 2 of 11
respondent No. 1 in favour of respondent No. 2. The
suit was not contested by respondent No. 2 and it was
left to the appellant to establish that any Power of
Attorney was executed in favour of respondent No. 2 by
respondent No. 1. The appellant failed to establish such
a Power of Attorney. The findings of learned Single
Judge are against the appellant practically on all issues
and it is found that the appellant had failed to establish
any Agreement to Sell in his favour by respondent No. 1
through any duly authorised Attorney. The damages
were awarded to respondent No. 1 against the appellant
at the rate of Rs.6,000/- per month from 01.10.1991 as
the appellant had no right, title or interest to occupy the
suit property. These were the damages claimed
originally at the stage of filing of the suit.
4. The appeal was admitted on 17.02.2009 being a first
appeal, which would be both on law and facts. The
appellant filed an application for interim relief and when
notice had been issued earlier on the appeal, the
decretal amount of damages was directed to be
deposited vide Order dated 23.07.2008 and subject to
that, the stay of judgment and decree was granted. The
decretal amount, which was so deposited by the
appellant, has been released to respondent No. 1
subject to furnishing an undertaking for restitution in
case the appellant succeeds.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 3 of 11
5. On 17.02.2009, it was noticed that the mesne profits /
damages awarded at the rate of Rs.6,000/- per month
were on the basis of the tentative claim of mesne profits
when the suit was filed in the year 1991 and, thus, it
would have to be determined as to what amount the
appellant should be directed to deposit in the Court per
month during the pendency of the appeal and as to
what security should be provided by the appellant as a
condition of stay in view of the fact that the appellant
had continued to enjoy possession and would continue
to enjoy the suit property even after the suit had been
decreed against him during the pendency of the appeal
in view of the earlier interim orders. The matter was
heard on 28.04.2009 when it was noticed that in order
to determine the amount of use and occupation
charges, which the appellant should deposit during the
pendency of the appeal, two aspects had to be
examined : (i) the rate per sq.ft.; and (ii) the actual
covered area. The parties had placed on record
material insofar as the rate per sq. ft. was concerned,
but there appeared to be a wide disparity in the covered
area as stated by the parties. It was, thus, agreed by
learned counsel for the parties that a Local
Commissioner should be appointed to measure the
existing covered area of the premises for all the floors.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 4 of 11
The Local Commissioner was so appointed and has
submitted a report dated 08.05.2009.
6. The report of the Local Commissioner shows that there
is a dwelling house on the property consisting of Ground
Floor and First Floor. This house is on the rear portion of
the plot and on the front side, there is a large tin-shed
starting from the main entrance right upto the dwelling
unit. There is also another small tin-shed in one corner
of the suit property. The Ground Floor consists of one
living room, two bedrooms, two toilets, one kitchen and
a store room and on the First Floor, there is a lobby, one
drawing room, two bedrooms, one toilet and one kitchen
and the remaining area is lying as terrace. The
measurements were taken with the assistance of an
Architect and are as under :-
S.No. Particulars of Floor / Area Carpet Area
1. Ground Floor 815.78 sq. ft.
2. First Floor 708.60 sq. ft.
3. Large tin-shed on the front side 1147.37 sq. ft.
4. Small tin-shed on the corner 150 sq. ft.
7. The Local Commissioner along with the report has also
annexed the photographs, which show that what is
shown as the tin-shed has a proper flooring and a
ceiling with Girders. Surprisingly, cars were found
parked there though photographs show that the interior
has been altered as some poles had been removed
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 5 of 11
whose holes were visible. There is also a fan. The
stand of learned counsel for respondent No. 1 is that
there were originally cabins and after the directions
passed by this Court, those cabins had been dismantled
to give a picture as if the area was used for car parking,
which could not be so in view of the interiors of the tin-
shed.
8. Insofar as the current rate per sq. ft. of the area is
concerned, respondent No. 1 claims that the structure
can be used for commercial letting and gave rates of
adjacent areas let out. On the other hand, the appellant
claimed that the premises were being utilized only for
residential purposes and, thus, only residential letting
rates could be considered.
9. The appellant filed a Rent Agreement dated 18.02.2009
of the Ground Floor in Shahpur Jat Village and another
one dated 24.04.2008 of the same area. Learned
counsel for the appellant pleads that the rate varies
between Rs.11.77 per sq. ft. to Rs.13 per sq. ft. Learned
counsel for respondent No. 1 has relied upon the Lease
Deeds of property bearing No. 4A where Ground Floor is
let out at the rate of Rs.30 per sq. ft. and the Lease
Deed dated 01.09.2008 where the First Floor has been
let out at the rate of Rs.21.87 per sq. ft. Respondent
No. 1, thus, claims the amount as per these Lease
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 6 of 11
Deeds depending on the floor and the sq. ft. area as
under :-
Ground Floor Lease Deed at Lease Deed at
Annexure R1-A @ Annexure R1-D @
Rs.30/- per sq. ft. Rs.21.87 per sq. ft.
for Ground Floor for First Floor
815.78 sq. ft. Rs.24,473.40
(Carpet Area)
1147.73 sq. ft. Rs.34,431.90
{Tin Shed (1)}
150 sq. ft. {Tin Rs.4,500.00
Shed (2)}
Total Rs.63,405.30
First Floor
708.60 sq. ft. Rs.15,500.60
(Carpet Area)
Total Rs.63,405.30 + Rs.15,500.60 = Rs.78,905.90 p.m.
10. It is the submission of learned counsel for respondent
No. 1 that the fact that the appellant is using the
premises for residential purposes is not material as it
has the potentiality of commercial use. A rough sketch
plan of the area was also produced by learned counsel
for the appellant to show where the property bearing
No. 4A was located and the suit property. On perusal of
the said rough sketch plan with the assistance of
learned counsel for the parties, it became obvious that
the picture sought to be presented before us of the suit
property being in an inferior location was not correct as
access to the suit property is from the peripheral road of
Shahpur Jat, which has access through August Kranti
Marg, while access to property bearing No. 4A is
through a pedestrian shopping street.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 7 of 11
11. We are conscious of the fact that no exact calculation is
possible, but we cannot lose sight of the fact that the
suit property has a commercial potential. The Lease
Deeds filed by respondent No. 1 prima facie are proof of
this. The appellant cannot claim that because he is
using the property for residential purposes, the
commercial potentiality should be ignored. We have
also noticed that the sheds are being used as car
parking area possibly for consideration as per the
situation prevalent on the visit of the Local
Commissioner. The nature of those sheds, however,
show that they are really not meant for car parking and
there seems to be some truth in the claim of learned
counsel for respondent No. 1 that there have been
alterations in the structure to show it as a car parking
though earlier cabins existed in the sheds. No one
would make proper flooring for car parking with
coverage and fans. There are also telltale holes, which
have been filled up where there could be existing
internal partition poles.
12. We are of view that the benchmark of commercial
letting has to be taken into consideration, but a discount
has to be made for the fact that the appellant has been
using a part of the premises for residential purposes and
the premises are old. The fact that the appellant has
constructed the First Floor without any authority of
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 8 of 11
respondent No. 1 as also the sheds would not imply that
the appellant can utilize the same without paying for it.
We, thus, consider it appropriate to give a discount of
about 25% on the commercial letting potential and feel
that a reasonable amount of use and occupation
charges for the property would be Rs.60,000/- per
month.
13. Learned counsel for the appellant sought to rely upon
the judgment in Smt. Krishna Prakash & Anr. v. Dilip
Harel Mitra Chenoy, 2001 V AD (Delhi) 685 to contend
that since respondent No. 1 had not led any evidence in
excess of Rs.6,000/- per month as damages, interim use
and occupation charges could not be more than what
was decreed by the learned Single Judge. It was
emphasized that respondent No. 1 had not filed any
cross-objections. We find the said judgment of little
assistance in the given facts of the case where the
damages were originally sought on the basis of the
position prevalent when the suit was filed in the year
1991. Since then, eighteen years have elapsed and
ground realities have changed. The appellant has lost
in the suit. The defence of the appellant was of having
entered into an Agreement to Sell to purchase the suit
property through an alleged Attorney of respondent No.
1, which was not proved. Respondent No. 1 has been
residing in USA.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 9 of 11
14. We are fortified in our view by the observations of the
Supreme Court in Atma Ram Properties (P) Ltd. v.
Federal Motors (P) Ltd., 2005 (1) SCC 705 where it was
held that an appellate court while exercising jurisdiction
under Order 41 Rule 5 of the CPC does have the power
to put the appellant tenant on terms while granting stay
of decree for eviction. We are unable to accept the plea
of learned counsel for the appellant that since that
judgment related to a tenancy protected under the
Delhi Rent Control Act, 1958, analogous principles
would not apply in the present appeal. In fact, in our
view, they would apply more so in the present appeal
where the occupation of the appellant is not protected
under any Rent Act, but is claimed on the basis of an
alleged Agreement to Sell, which he has failed to
establish before the learned Single Judge.
15. It is not always possible to decide every case promptly
because of pendency of large number of matters and,
thus, litigants at times take advantage of delays. The
first appeal being both on law and facts would have to
be examined and this gives an opportunity to the
appellant(s) to prolong the litigation. There are
observations to this effect in Atma Ram Properties Pvt.
Ltd.'s case (supra) and the present case is one where
the litigation before the court of first instance has been
prolonged for eighteen years and we see no reason why
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 10 of 11
appropriate condition should not be put on the appellant
if he wants to continue to enjoy the occupation of the
suit property.
16. We, thus, direct the appellant to deposit a sum of
Rs.60,000/- per month commencing from the date of
interim stay in appeal, i.e., 23.07.2008 till he continues
to occupy the suit property. The arrears to be deposited
within two months from today. If the appellant fails to
deposit this amount, there would be no stay of
operation of the judgment and decree even insofar as
dispossession of the appellant is concerned. If the
amounts are deposited, the same can be released to
respondent No.1 on furnishing security for restitution to
the satisfaction of the Registrar General. If no security
is furnished, the amount deposited be kept in FDs of
one year each initially to be kept renewed till further
orders.
17. The application accordingly stands disposed of.
SANJAY KISHAN KAUL, J.
May 27, 2009 SUDERSHAN KUMAR MISRA, J.
madan
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 11 of 11
