Delhi High Court
Balkishan Yadav vs Shri Ranbir Yadav & Anr on 9 March, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.3.2010
Judgment Delivered on: 09.3.2010
+ CS(OS) No.836/2006, I.A.Nos.5693/2006 & 1241/2009
BALKISHAN YADAV ..........Plaintiff
Through: Mr.S.P.Kalra, Sr. Advocate with Mr.B.S.
Sharma, Advocate.
Versus
1-SHRI RANBIR YADAV
2-STATE BANK OF INDIA ..........Defendants
Through: Mr.H.L.Narula, Advocate for defendant
no.1.
Mr. S.L. Gupta, Advocate for defendant
no.2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. Plaintiff Balkishan Yadav and defendant no.1 Ranbir Yadav
are real brothers; they are born of their deceased father Umrao
Singh. They have two other brothers namely Dharam Pal and
Randhir Singh, they are not parties to the present suit.
2. Property bearing no.55, Jwalaheri, PaschimVihar,New
Delhi was owned by their deceased father Umrao Singh. He
died intestate on 08.4.1996. The aforestated property, thus,
devolved in equal shares upon all the four brothers including the
plaintiff and the defendant no.1.
3. The said property had been let out to defendant no.2 by
the deceased Umrao Singh in his life time in the year 1980.
Defendant no.2 continues to be in occupation of the said
property as a tenant. After the death of Umrao Singh, plaintiff
authorized his brother defendant no.1 vide special power of
attorney to collect rent of the plaintiff's share from defendant
no.2 and this arrangement continued for several years.
4. In the year 1996, defendant no.1 was not faithful in
discharging his obligations, plaintiff revoked the power of
attorney. A family settlement was arrived at between the
brothers. It was agreed that each of the four brothers would be
entitled to 1/4th share of the rent payable by the defendant no.2
and intimation to the said effect dated 3.01.1997 was sent to
defendant no.2. Defendant no.2 was requested by defendant
no.1 to apportion the total rent in four shares and credit it in
the account of the plaintiff to the extent of his 1/4th share.
Similarly 1/4th share of the total rent payable was apportioned
as share of defendant no.1 and the balance fell to the share of
the other two brothers.
5. Defendant no.2 started crediting the plaintiff's saving
bank account no.28893 with 1/4th of the rent which had fallen
due as his share. This arrangement continued from February
1997 up to June 1998. Thereafter defendant no.2 discontinued
paying rent to the plaintiff. In spite of requests, defendant no.2
did not pay heed to the same.
6. CS(OS)No.933/2001 was filed by plaintiff against
defendant nos.1 and 2 for the recovery of his unpaid rent. On
17.1.2002 defendant no.2 was restrained from releasing 1/4th of
the total rent i.e. the share of the plaintiff to the defendant no.1.
An application for release of the rent was filed by the plaintiff
which was rejected vide order dated 28.2.2002. In appeal i.e.
FAO(OS) No.132/2003 vide order dated 4.8.2004, defendant
no.2 was directed to deposit the 1/4th share of the rent of the
plaintiff in his account. Appeal was disposed of.
7. Parties had arrived at settlement and on 1.2.2005 the
aforestated suit CS(OS)No.933/2001 was dismissed as
withdrawn having been compromised. On 14.4.2005 in terms of
the aforestated compromise defendant no.1 wrote a letter to
defendant no.2 asking him to pay 1/4th share of the plaintiff to
him. However, defendant no.2 did not credit account of the
plaintiff with his share of 1/4th of the rent. A request letter was
sent to defendant no.2. In its reply, dated 30.11.2005 defendant
no.2 stated that he had paid the share of the plaintiff's 1/4th rent
to defendant no.1. Legal notice dated 30.12.2005 was sent by
the plaintiff to both the defendants demanding the share of his
rent. However, neither of the defendants paid any heed to this
legal notice.
8. That the rent of the aforestated property had been
enhanced from time to time by defendant no.2. From June 2001
to 1.2.2005 rent was being paid @ Rs.80,000/- per month; from
February,2005 to 31.3.2006 rent was being paid @ Rs.1,00,000/-
per month. Defendants are thus liable to pay Rs.20,18,481/-
towards his 1/4th share of the rent which comprises as follows:-
i. Difference of rent for the period February 1997 to June
1998 Rs.19,583.75-13,
522=6,061.75 & 17 months Rs.1,03,049.75
ii. Rent in arrears from July, 98 May
2001 @ Rs.19583.75 x 35 Rs.6.85,431.25
_______________
Total Rs.7,88,481.00
iii. Rent from June 2001 to 1.2.05
@ Rs.20,000/- per month i.e.
44 months Rs.8,80,000.00
iv. Rent from Feb. 2005 to 31.3.06
i.e. 14 months @ Rs.25,000/- Rs.3,50,000.00
________________
Grand total Rs.20,18,481.00
Decree for the aforestated amount has been claimed.
9. In the written statement filed by defendant no.1 the
preliminary objection is that the suit is barred under Order 23
Rule 1 CPC as also under the provisions of Order 2 Rule 2 of the
Code of Civil Procedure (hereinafter referred to as the CPC). It
is contended that the earlier suit i.e. CS(OS) No.933/2001
between the same parties was withdrawn on 01.2.2005 on an
application under Order 23 Rule 1 CPC. Present suit in respect
of the same subject matter and on the same cause of action is
thus not maintainable. It is stated that the plaintiff in the earlier
suit had admitted that in terms of a decree dated 19.5.1971 the
defendant no.1 is the exclusive owner of the suit property i.e.
property bearing no.55, Jwalaheri, Paschim Vihar, New Delhi.
This is an admission by the plaintiff himself which he is not
permitted to withdraw.
10. Plaintiff has no right, title or interest in the property. The
letter dated 14.4.2005 purported to have been signed by
defendant no.1 is a forged and fabricated document; no such
letter had been written by him. Plaintiff's claim is even
otherwise barred by estoppel in view of the fact that he had
withdrawn the earlier suit CS(OS) No.933/2001 on 01.2.2005.
On 10.5.2005 a gift deed was executed by defendant no.2 in
favour of the plaintiff relating to 1/4th share in the land
measuring 29 kannal 9 marla situated at Siwana Muaza Jautolla,
Tehsil Farookh Nagar, Distt Guargaon, on a payment of stamp
duty of Rs.36,000/- which fact has been concealed by the
plaintiff. Suit is even otherwise barred by limitation as the claim
for rent is from July 1998 whereas the present suit had been
filed on 01.5.2006 i.e. after almost eight years. No original
document has also been filed by the plaintiff. The forged
documents relied upon by the plaintiff prima facie makes out a
case of perjury for which he is liable to be prosecuted under
Section 340 Cr.P.C.
11. On merits, it has been reiterated that on 19.5.1971 in Suit
No. 184/1971 a compromise decree was passed and the property
in dispute i.e. the property bearing no. 55, Jwalaheri, Paschim
Vihar, New Delhi had fallen to the share of defendant no.1 who
has thereafter raised additional constructions over the said
property at the cost and expenses of defendant no.1. Plaintiff
has no right or claim over the said property. It is denied that
the plaintiff has any claim in the rent accruing from the said
property.
12. Defendant no.2 has filed a separate written statement.
Preliminary objection on the bar of the present suit in view of
the provisions of Order 2 Rule 2 CPC has been taken. It is
stated that the earlier suit i.e. CS(OS) No.933/2001 had been
withdrawn on 01.2.2004 unconditionally without seeking leave
to file a fresh suit and as such the present suit is not
maintainable. Proper court fee has not been paid. Defendant
no.2 is a tenant of the premises and up to date rent has been
paid. Defendant no.2 was earlier a tenant with late Umrao
Singh and thereafter after his death defendant no.1 being one of
his legal heirs started dealing with the defendant no.2 and rent
was being paid to him to which the plaintiff had never objected.
No action is maintainable against the answering defendant. It is
stated that defendant no.2 had not recognized the plaintiff as
the owner of the 1/4th share in the property; the amount of
Rs.15,520/- was transferred by the answering defendant from
the account of defendant no.1 to the account of the plaintiff on
the express instructions of defendant no.1 being his banker and
not as a tenant. In June 1998, defendant no.1 had withdrawn
these instructions. As such defendant no.2 did not transfer any
amount to the plaintiff from the account of defendant no.1. It is
denied that the answering defendant is under any obligation to
pay any amount to the plaintiff. It is stated that the defendant
no.1 had filed two suits i.e CS(OS) No.1404/2001 and 1405/2001
against defendant no.2 for possession and mesne profit; plaintiff
had moved an application for impleading himself as a party
which had been dismissed by trial court as also by the appellate
court.
13. On 01.2.2005, the plaintiff had unconditionally withdrawn
his suit CS(OS) No.933/2001. It is submitted that the defendant
no.2 does not have any knowledge of any compromise arrived at
between the plaintiff and the defendant no.1. At the relevant
time when the rent payable was Rs.78,335/-, defendant no.2 was
crediting a sum of Rs.13,522/- every month in the account of the
plaintiff as per the instructions of defendant no.1 which is 1/4th
of the total rent. It was from the account of defendant no.1 that
the amount was being transferred to the account of the plaintiff.
Thereafter on instructions from defendant no.1 to the contrary
defendant no.2 stopped depositing this amount in the account of
the plaintiff. Suit of the plaintiff is liable to be dismissed.
14. Replication has been filed by the plaintiff to the written
statements of both the contesting defendants reiterating the
averments made in the plaint and denying the submissions and
defence set up by the defendants.
15. On 10.9.2007 on the pleadings of the parties, the following
issues were framed:-
1. Whether suit is barred under Order 23 Rule 1(4)(b) and
Order 7 Rule 11 CPC as per preliminary objection in WS of
D-1?OPD-1
2. Whether present suit is barred under Order 2 Rule 2
CPC as per preliminary objection of D-1? OPD-1
3. Whether suit is not maintainable in its present from as
raised in preliminary objection in the WS? OPD
4. Whether plaintiff is entitled to 1/4th share in the rent
payable by D-2? OPP
5. Whether letter dated 14.4.05 is a forged and fabricated
document? If so, its effect? OPD-1
6. Whether the suit is within the period of limitation? OPP
7. Whether defendant no.1 was the owner of suit property
and entitled to receive full rent by virtue of being the
owner as alleged in the written statement? OPD-1
8. Whether defendant no.2 is not liable to pay any share in
the rent of the suit premises to the plaintiff? OPD-2
9. To what amount is the plaintiff entitled and for what
period? OPP
10. Whether plaintiff is entitled to any interest as claimed
in the suit? OPP
11. Whether plaintiff is entitled to mandatory injunction
against the defendants as prayed? OPP
12. Relief.
16. The plaintiff in support of his case has examined one
witness Mr.Balkishan Yadav i.e the plaintiff himself. In defence
two witnesses have been examined. Defendant no.1 has come
into witness box as DW-1. Defendant no.2 has also produced one
witness Ravi Prakash Mahor, Branch Manager, of defendant
no.2, as DW-2.
17. Arguments have been heard. Record has been perused.
Issue-wise findings are as follows:-
18. ISSUE NO.1:-
A preliminary objection has been raised that the suit is
barred under Order XXIII Rule 1 (4)(b) of the CPC as the earlier
suit i.e. CS(OS) No.933/2001 titled as Bal Kishan Yadav Vs.
Ranbir Yadav & Ors. which had been filed between the same
parties had been withdrawn on 01.2.2005 unconditionally.
Plaintiff is precluded from filing the present suit in respect of
the same subject matter.
19. Admittedly CS(OS) No.933/2001 had been filed which was
a suit for recovery and mandatory injunction in which the
plaintiff had made his claim for recovery of rent from February
1997 to May 2001 for Rs.7,88,481/-. The present suit has been
filed claiming recovery of rent which for a period beginning from
June 2001 to 31.3.2006; the accrual of rent for each month of
the tenancy has given rise to a fresh cause of action. The period
beginning June 2001 was admittedly not covered by the relief
prayed in CS(OS) No.933/2001. As such the withdrawal of the
said suit unconditionally on 1.2.2005 would not bar the plaintiff
from making such a claim in the present suit which claim is
based on a distinct and a separate cause of action. The bar of
Order XXIII Rule 1 (4)(b) CPC is not attracted. "Subject matter"
in the present suit is distinct from the subject matter of the
earlier suit.
20. Issue no.1 is decided in favour of the plaintiff and against
the defendant.
21. ISSUE NO.2.
The onus to discharge this issue is on the defendant.
Order II Rule 2 CPC prescribes that the suit shall include the
whole of the claim which the plaintiff is entitled to make in
respect of a cause of action; but the plaintiff may relinquish any
portion of his claim in order to bring his claim within the
pecuniary jurisdiction of this Court. The cause of action of the
plaintiff in the earlier suit was the accrual of the rent for the
period up to May 2001. The cause of action in the present suit
is the accrual of rent up to 31.3.2006. The causes of action are
distinct and different; plaintiff could not have prayed for a relief
in respect of his share for the rent for the month of June 2001
onwards when he had filed the earlier suit. As such a plain
reading of Order II Rule 2 shows that the entire claim in the
present suit cannot be barred under this provision of law.
22. The object of this rule is based on the principle that the
defendant should not be vexed twice for one or the same cause
of action. Causes of action not being the same in the first suit
and the subsequent suit, it is clear that this bar is not attracted.
23. Issue no.2 is decided in favour of the plaintiff and
against the defendant.
24. ISSUE NO.6
The plaintiff has filed this suit for recovery of
Rs.20,18,681/- which are arrears of rent which include different
amounts and these amounts are claimed from February 1997 to
31.3.2006. Present suit has been filed on 11.5.2006. Under
Article 52 of the Indian Limitation Act 1963 right to sue on a
claim of arrears of rent would be 3 years to be computed from
the date when the last amount became due which in this case
would be three years preceding 11.5.2006. The entire suit of
the plaintiff is not barred; he is entitled to make a claim from
11.5.2003 onwards.
25. Issue no.6 is decided accordingly.
All the aforestated issues will be decided by a common
discussion. The case of the plaintiff is that he is entitled to 1/4 th
share of the rent which is payable by defendant no.2 of the
property which is under his lease. The total rent payable as on
June 2001 to February 2005 is Rs.80,000/-; 25% share of the
plaintiff is Rs.20,000/- which amount is payable from June 2001
to 1.2.2005. Thereafter the rent had been enhanced to Rs.1 lac
per month; share of the plaintiff would be Rs.25,000/- per
month. Further case of the plaintiff is that in terms of the
partition between the brothers only the constructed portion of
the suit property had fallen to the share of defendant no.1. The
open verandah/ground on which construction had been raised by
their father subsequently and which portion had been given on
lease to defendant no.2 was the joint property of all the brothers
on the basis of which this 1/4th share in the rent has been
claimed by the plaintiff. Defendant no. 1 is not the owner of this
suit property. Apart from other documents the plaintiff has
relied upon a family settlement/agreement dated 03.01.1997
signed by all the members whereby they had agreed to share the
rental accruing from defendant no.2 in four equal shares.
Further as per letter dated 14.4.2005 addressed by defendant
no.1 to defendant no.2; defendant no.1 in terms of the
compromise between the brothers had informed defendant no.2
that 1/4th share of the rent from the property leased out to
defendant no.2 would fall to the share of the plaintiff Balkishan
and the said rent be released to him on a regular basis.
27. PW-1 has on oath reiterated the aforenoted averments.
He has deposed that the plaintiff and the defendant no.1 are real
brothers; apart from them they have two other brothers Dharam
Pal and Randhir Singh. Property bearing no. no.55, Jwalaheri,
PaschimVihar,New Delhi i.e the suit property was owned and
belonged to Umrao Singh their deceased father. Umaro Singh
died on 08.4.1996. He had died intestate. This property
amongst other properties devolved upon all the four brothers in
equal shares. In suit no.184/1971 vide decree dated 19.5.1971
Ex. PW1/DX1 only the built up portion of this property bearing
no. no.55, Jwalaheri, Paschim Vihar, New Delhi had fallen to the
share of defendant no.1. Open ground and the unbuilt portion of
the said property was constructed later on in 1980 by their
deceased father and let out to defendant no.2 who till date is the
lessee in the said property. After the death of their father
plaintiff had authorized defendant no.1 in terms of a Special
Power of Attorney to collect rent of the share of the plaintiff as
well and this arrangement continued for several years up to
1996. Thereafter defendant no.1 did not discharge his
obligation faithfully and the rental share of the plaintiff was not
paid to him. On 3.1.1997 a communication duly signed by
defendant no. 1 had been sent to defendant no.2 requesting him
to apportion the total rent payable in four different shares i.e. in
the names of the four brothers. This document is admitted by
the defendant no. 1. He has admitted that this letter was sent
by him to defendant no. 2. Another document of even date i.e. a
family settlement/agreement Ex. PW1/1 dated 03.01.1997 duly
signed by all the four brothers has also been proved; as per this
settlement parties i.e. the four brothers had inter-se agreed that
they being the joint owners of property no. 55 and 56 situated at
Jwala Heri, inherited by them from their father and mother and
which properties are under the tenancy of the State Bank of
India and State Bank of Bikaner & Jaipur and the LIC; the
rents/profits will be shared by all the parties equally. PW-1 has
further deposed that thereafter defendant no.2 continued to
credit the account of the plaintiff with his 1/4th share; this was in
his bank account no.28893. This arrangement continued from
February, 1997 up to June, 1998. Thereafter defendant no.2
stopped paying any rent to the plaintiff. Defendant no.2 was
legally obliged to pay this rent to the plaintiff. PW-1 has further
deposed that due to this non-payment of rent CS(OS)
no.933/2001 was filed by the plaintiff impleading the present
defendants as parties in the said suit. On 17.1.2002 defendant
no.2 was restrained from releasing 1/4th of the total rent to
defendant no.1; the said order is Ex.PW-1/2. An application for
release of this rent by the plaintiff was filed which was
dismissed on 28.2.2002; in appeal being FAO No.132/2003 this
request of the plaintiff was accepted by the Division Bench in
terms of the order dated 4.8.2004 which is Ex.PW-1/3. Rights of
the plaintiff to receive 1/4th share out of the total rent was
recognized. Eventually a compromise settlement was arrived at
between the parties whereby the defendant no.1 agreed that
1/4th share of the rental payable by defendant no.2 would fall to
the share of the plaintiff. In terms of this compromise CS(O)S
No.933/2001 was withdrawn by the plaintiff on 1.2.2005 vide
Ex.PW-1/5. Letter dated 14.4.2005 Ex.P-1 was a communication
sent by defendant no.1 to defendant no.2 informing defendant
no.2 to release the 1/4th share of the rent to the plaintiff in terms
of the settlement and continue to do regularly.
28. In his cross-examination PW-1 had denied that the earlier
suit withdrawn by him is based on the same cause of action as
the present suit; it is stated that the rent in the present suit has
been claimed for different periods of time. He has reiterated
that in terms of the decree Ex.PW-1/DX-1 only the built up
portion of the property bearing no.55, Jwalaheri, PaschimVihar,
New Delhi had fallen to the share of defendant no.1. It is
further reiterated that the open ground in front of this property
had been built up by their father subsequently which was the
subject matter of the lease which had been executed with
defendant no.2. The site plan appended to Ex.PW-1/DX-1 has
been proved as Ex.PW-1/DX-2. PW-1 had admitted that the
stamp paper on which the agreement/family settlement between
the parties was recorded on 3.1.1997 was in his possession and
copies of the same were in possession of the other brothers. He
has denied the suggestion Ex. PW-1/1 is a fabricated document.
He has admitted that he has two copies of Ex. P-1(letter dated
14.04.2005) and one copy was given to the bank. He has
admitted that after the death of his father there was no direct
agreement between him and the bank and the agreement was
made through defendant no.1 who acted as his attorney. This
power of attorney was cancelled in 1996 vide cancellation deed
Ex.PW-1/DY. He has further stated that till 1986 i.e during the
life time of their father, house tax for the said property was
being paid by their father and there was no dispute till that time
between the brothers. He denied the suggestion that the letter
dated 14.4.2005 is a forged or a fabricated document.
29. Defendant no.1 has entered the witness box as DW-1. He
has controverted the stand as set up by the plaintiff. On oath he
has stated that the agreement dated 3.1.1997 (Ex.PW-1/1) is a
forged and fabricated document and no such settlement was
arrived at between the brothers and nor was it acted upon. The
orders dated 17.1.2002 Ex.PW-1/2 and order dated 4.8.2004
Ex.PW-1/3 were passed on interim applications which have come
to an end after the suit and the appeal had been withdrawn.
Ex.P-1 which is the letter dated 14.4.2005 is forged and
fabricated. DW-1 has deposed that he did not write any such
letter. He has denied that he had been given any power of
attorney by the plaintiff for letting out the premises to the bank;
the plaintiff had played a fraud upon the Court by manipulating
and fabricating Ex.PW-1/1 and Ex.P-1.
30. In his cross-examination, he had deposed that he had
given the suit property on rent in 1983 at the time when his
father was alive. He has stated that his father let out the
property in 1980 to defendant no.2 on his behalf. He has further
stated that from 1980-83 the proceeds of the rent were credited
in the account of his father. He denied the suggestion that till
1986 i.e. till the lifetime of their father the rent proceeds used to
be credited to the account of his father. He denied the
suggestion that his father was the owner of the suit property.
He further denied the suggestion that the suit property had
been let out by his father to the bank during his lifetime. On
Ex.PW-1/1 dated 3.1.1997, the stand of the defendant is that he
cannot remember if any such letter was written to defendant
no.2. When confronted with Ex. PW-1/1 the witness has admitted
that the signatures at point X and Y appear to be his own
signatures but this is qualified by his statement that he has not
signed nor intended to execute any such agreement; it is a
fabricated document. He appears to be confused with the letter
and the agreement both of which are of the same date i.e.
3.1.1997. In his cross-examination he has denied that he
executed the letter dated 03.01.1997. This is a blatant lie as in
the written statement filed by him. He has while admitting the
execution of this letter stated that this letter did not create any
right, title or interest of the plaintiff in the suit property. He
denied the suggestion that the bank was giving 1/4 th rent to the
plaintiff from his account; he has reiterated that the entire rent
was being received by him and he cannot remember whether he
had parted at any time with 1/4th share of the rent to the plaintiff
during the period from either February 1997 or June 1998 or
otherwise. He denied the suggestion that after the letter of
3.1.1997 the bank started crediting the account of the plaintiff
with 1/4th share of the total rent and this was in term of the
settlement between the brother. He denied the suggestion that
in the written statement Ex. DW-1/PX which had been filed by
him in the previous suit he has admitted the execution of Ex.PW-
1/1. He admitted that Ex.DW-1/PX is the certified copy of the
written statement filed by him in CS(OS) No.933/2001. On the
perusal of the written statement which was confronted to DW-1
he has admitted that Ex.DW-1/PX has stated that defendant
bonafidely started paying to the plaintiff his share of rent from
February 1997 from his own account. He has further stated that
he cannot remember if he had made any complaint with the
bank with regard to the non-receipt of the complete rent from
February 1997 up to June 1998. DW-1 has reiterated that his
father in the year 1971 had partitioned the entire property and
DW-1 had become owner of the entire suit property. On the
specific query as to who was receiving the rent from 1980-83
DW-1 has stated that he could not remember; he further could
not remember if his father was receiving the rent at that time.
To the specific query whether in 1971 when the partition decree
had been passed the land underneath the suit property was an
open piece of land, the defendant has given an evasive and non-
committal answer that he does not know; it is qualified by his
subsequent statement that he is not aware if the decree of 1971
related only to the built up portion of property bearing no. 55 or
it belonged to the open area as well.
31. The second witness produced by the defendants is DW-2.
He is Ravi Prakash Mahor, Branch Manager of State Bank of
India. He has on oath deposed that in the year 1980 late Umrao
Singh had let out the ground floor and a portion on the first floor
of the property to defendant no.1 @ Rs.4670/- per month;
subsequently another portion of the first floor was constructed
by Ranbir Yadav after taking a loan from the bank. Lease deed
dated 21.7.1980 had been signed by Umrao Singh. This
document pertains to an area 2336 sq. ft. and remaining area
was let out by Ranbir Yadav. Umrao Singh died in 1986 and
thereafter defendant no.1 started dealing with the bank to which
the other legal heirs of Umrao Singh did not object. Bank has
paid up to date rent to defendant no.1. In February 1997
defendant no.1 instructed the bank to transfer a sum of
Rs.13,522/- every month from his account with the Branch to the
account of the plaintiff and the same was regularly transferred
till June 1998 when these instructions were withdrawn by
defendant no.1. Bank was acting as per the instructions of
defendant no.1. Rent was not being paid to the plaintiff in terms
of his share. No amount is due from the bank.
32. In his cross-examination, he has admitted that he was not
posted in the Branch from the period 1980 till 2007. He has no
personal knowledge about the lease which was created in the
year 1980. He has further admitted that in his affidavit by way
of affidavit he has stated that remaining portion of the property
was let out by Ranbir Singh on the basis of a letter dated
23.6.1985 which had been filed in Suit No.244/1982; he has not
seen the file of that suit. The witness was specifically
confronted with the written statement Ex.P-6(PW-1/14) filed by
defendant no.2 in the earlier suit i.e. CS(OS) No.933/2001.
Defendant no.2 has admitted that as per this document, the first
portion of the property was initially let out by Umrao Singh to
the bank; there is no lease deed signed by Ranbir Singh prior to
1986; further in terms of letter dated 03.01.1997 defendant no.
1 had advised them to equally divide the rent between all the
four brothers.
33. Ex.PW-1/DX-1 is the decree dated 19.5.1971 passed in Suit
No.184/1971; this is an admitted document. The parties in the
suit were the plaintiff, defendant no.1 and the other two
brothers namely Randhir Singh and Dharampal. The details of
the properties owned by the parties has been detailed in para
no.2 which include the present property i.e. the property
bearing no.55, Jwalaheri, Paschim Vihar, New Delhi shown in
red colour in the site plan. Apart from this property there are
four other properties which had been divided between the
parties. Ex.PW-1/DX-2 the site plan annexed along with the
partition decree forms a part of the decree. House no.55 has
fallen to the share of Ranbir Singh i.e. defendant no.1 which is
shown in red colour. In front of this red portion there is an open
ground and it specifically describes it as open. Another portion
of constructed area in this plot is a green coloured construction
which has fallen to the share of another brother namely
Daharam Pal. The property shown in blue colour has fallen to
the share of Randhir; the property shown in chocolate colour has
fallen to the share of plaintiff Balkishan. All these portions are
constructed portions as is evident from the description in the
site plan; they are described as shops/rooms. There is another
yellow portion which is described as the courtyard in which two
rooms and one verandah is shown as constructed; this yellow
portion has fallen to the share of Umrao Singh deceased father
of the parties.
34. Perusal of Ex.PW-1/DX-2 clearly shows that the shares
falling to each party are constructed portions. The open area in
front of the red colour portion has been left open; there is no
colouring on it; it is an open, unclaimed and unpartitioned area.
It was in this portion that Umrao Singh had constructed a
building in the year 1980 and leased it to the Bank; initially it
was an area a space of 2336 sq. ft.. This is evident from the
lease deed dated 21.7.1980 executed between Umrao Singh and
the State Bank of India. This document is mark X. It is not a
disputed document. It is also not disputed by the parties that
initially this lease deed had been executed between Umrao
Singh and the bank. Defense of the defendant that Umrao Singh
had executed this lease in favour of the bank on behalf of the
defendant no.1 is palpably false. House tax on this property was
admittedly paid by Umaro Singh during his lifetime. Rent was
also being collected by him; this is admitted by defendant no. 2
in his statement on oath, he has categorically stated that only
after death of Umrao Singh defendant no. 1 started dealing with
the Bank.
35. In Ex.DW-1/PX defendant no.1 has admitted that the
partition decree between the parties was passed in 1971 and
only thereafter the front portion no longer remained an open
land and stood constructed in 1980-85. It is thus established
that defendant no. 1 in terms of Ex. PW-1/DX1 (decree dated
19.05.1971) had become owner only of the portion shown in red
in Ex.PW-1/DX2 (site plan). In 1980-85 the open ground in front
of this red portion was constructed by Umrao Singh which was
leased out to the Bank; rent was being received by him in his
lifetime; house tax was also being paid by him. Only after his
demise in 1986 defendant no.1 on behalf of himself and his other
brothers started dealing with the Bank which arrangement was
in terms of a power of attorney executed by all the brothers in
favour of defendant no.1. This power of attorney has not come
on record. Yet the cancellation of this power of attorney is
Ex.PW-1/DY dated 06.09.1996 which document proves that such
a power of attorney had in fact been executed by all the
brothers. No suggestion has been give to PW-1 that this
document is a false or an incorrect document. DW-1 has also not
denied this document in his written statement.
36. Ex.PW-1/1 has been endorsed on a stamp paper dated
3.7.1997. Much emphasis has been laid by defendant on this
stamp paper; it is pointed out that a document executed on
3.1.1997 could not had been purchased on 3.7.1997 which itself
throws out the veracity of this document. On the other hand
counsel for the plaintiff has placed before the Court four other
stamp papers purchased on 3.1.1997 having serial nos. 6680,
6687, 6688 and 6691 all purchased on 3.1.1997. Ex.PW-1/1 has
a serial no.6681. There appears to be an overwriting on the
date of 3.7.1997; all these stamp papers had been purchased
from the same stamp vendor Narender Singh at Patiala House;
it is clear that this stamp paper on which Ex.PW-1/1 has been
endorsed is also dated 3.1.1997 and not 3.7.1997 on which there
is a clear and visible overwriting. Defendant has even otherwise
not denied this agreement in both his written statements i.e. the
present written statement as also in Ex.DW-1/PX. His denial of
the same at the time of arguments is thus of no value; defendant
no. 1 has taken shifting stands; he is not speaking the truth.
Plaintiff along with his other brothers thus became entitled to
receive1/4th share of the rental being paid by the Bank.
37. DW-1 has admitted both the documents of 3.1.1997.
Letter dated 03.01.1997 was admittedly written by defendant
no.1 to defendant no. 2 requesting the Bank to equally distribute
the total rent into the names of the four brothers i.e. the
plaintiff, defendant no. 1 and the other two brothers namely
Randhir and Dharampal. This letter further recites that the
share be credited to the parties after deducting TDS and 30% of
the rent as house tax. The second document of 03.01.1997
(Ex.PW-1/1) i.e. the family settlement/agreement was initially
disputed by defendant no.1 stating that this was a forged
document. Yet in Ex.DW-1/PX (written statement of defendant
no. 1 in the first suit i.e. CS(OS) 933/01) he has admitted this
document; his only defense being that it was not acted upon. In
his present written statement also he has admitted the execution
of this document.
38. Perusal of these two documents further show that one is
the follow up of the other. Ex.PW-1/1 recites that the rent/profit
from the properties bearing nos. 55-56, Jwalaheri will be shared
by all the four brothers; house tax and income tax will be
deducted from the share of each. This is reiterated in the letter
dated 03.01.1997 (admitted document) written by defendant
no.1 to defendant no.2, the same details of the deduction of
house tax and income tax from the share of each brother has
been given. Further in Ex.PW-1/DX defendant no. 1 has
admitted that he had bonafidely started paying rent to the
plaintiff from February 1997. In Ex.P-6( 1st written statement of
DW-2) defendant no.2 has admitted the receipt of letter dated
03.01.1997. He has further admitted that from February, 1997
defendant no. 1 had advised defendant no.2 to equally distribute
the rent amongst the plaintiff, defendant no.1 and the other two
sons of Umrao Singh which he had been doing regularly upto
June 1998 when the aforestated instructions were withdrawn by
defendant no. 1. Defendant no.2 was transferring this share of
the plaintiff from the account of defendant no.1 to his account.
Further the other brothers including the plaintiff as per the
records of the Bank were all recorded as "co-owners" and
defendant no.1 was acting as representative of the said co-
owners. On 11.4.1996, defendant no.1 had instructed defendant
no.2 to pay a sum of Rs.16,308/- to Randhir Singh (another
brother) as his share of the rent. Further in Ex.PW-1/1 the
agreement/settlement dated 3.1.1997 is an
agreement/settlement of property no.55, 56, Jwalaheri alone. If
this property stood exclusively owned by defendant no.1 in
terms of a decree dated 19.5.1971 there would have been no
question of the execution of this document. Admitted letter
dated 03.01.1997 written by defendant no.1 to defendant no.2
also relates to the sharing of the rent of this property which
question could not have arisen if defendant no.1 was its
exclusive owner.
39. On 17.1.2002 in CS(OS) 933/2001 defendant no.2 was
restrained from releasing 1/4th of the total rent to defendant
no.1. The Division Bench vide order dated 04.08.2004 had
directed defendant no.2 to deposit this rent in the account of the
plaintiff as was being done in the past. Entitlement of the
plaintiff to receive this amount was prima facie recognized by
the Appellate Court.
40. On 01.02.2005 this suit i.e. CS(OS) No. 933/2001 was
withdrawn by the plaintiff as the parties had entered into a
compromise settlement. Statement of the parties recorded on
the application under Order 23 Rule 1 CPC(Ex.PW-1/13) inter
alia reads under :-
"On S.A.
Statement of Shri Balkishan S/o Shri Chadhary Umrao Singh
aged 65 years, Agriculturist, R/o WZ-58, Jwala Heri, Paschim
Vihar, New Delhi
I have compromised the matter with the defts. The suit be
dismissed as withdrawn. Parties be left to bear their own cots.
I am matriculate. Ex. C-1 bears my signatures at point A. The
affidavit Ex. C-2 bears my signatures at points A & B.
R.O.& A.C. (H.S. SHARMA)
ADJ, DELHI. 1/2/2005
Statement of Shri H.L.Narula, Adv. for deft. no.1 without oath
I have heard the statement of the plff. The same is correct.
The matter has been compromised. The suit be dismissed as
withdrawn and the parties be left to bear their own costs.
R.O.& A.C. (H.S. SHARMA)
ADJ, DELHI. 1/2/2005"
41. It is evident from these versions of the plaintiff and the
defendant that the matter stood compromised in terms of which
this suit had been withdrawn.
42. Letter dated 14.4.2005 written by defendant no. 1 to
defendant no. 2 has been assailed. Vide this document
defendant no.1 had written to defendant no.2 informing him
that the parties had settled their disputes. This letter was a
sequence to and in consequence of this compromise.
43. It categorically recites that the plaintiff and defendant
no.1 have settled their disputes and the plaintiff had withdrawn
his court case; defendant no.1 had requested the defendant no.2
to pay 1/4th share of the rent to the plaintiff and continue to do
so regularly in future as well. The onus to establish this
averment that this letter dated 14.4.2005 is a forged and
fabricated document has been placed upon defendant no.1. At
the time of the admission/denial of the documents the signature
of defendant no.1 on the letter dated 14.4.2005 (Ex.P-1) stood
admitted. Making a mere bald denial without detailing the
circumstances as to when and how this letter had been forged or
fabricated; at whose behest; by whom; the defendant has failed
to discharge this onus. On the other hand, the plaintiff has
categorically reiterated that this letter had been written by
defendant no.1 to defendant no2 and this was in pursuance of
the compromise between the parties pursuant to which the
plaintiff had withdrawn his earlier suit. Version of the plaintiff
appears to be more probably and more plausible.
44. Learned defence counsel has further argued that this
cancellation document Ex. PW1/DY shows that the power of
attorney was executed by the plaintiff on 31.5.1982 i.e. during
the lifetime of Umrao Singh but the case of the plaintiff is
otherwise. The case of the plaintiff is that this power of attorney
had been executed after the death of their father; this document
is contrary to this version. This submission of the learned
defence counsel is not borne out from the record. Defendant
no.2 has in fact admitted that after the death of Umrao Singh
defendant no.2 was dealing with defendant lno.1 to which the
other brothers although recorded as "co-owners" in the Bank
record did not object; defendant no.2 under instructions from
defendant no.1 was adhering to the arrangement of
apportioning 1/4th share of the total rental in favour of the
plaintiff. As per defendant no.1 after June 1996 he was not
getting his 1/4th rental share. Thereafter a settlement dated
29.9.1996 had been entered into between the parties. This is an
admitted document. This settlement was, however, not acted
upon. On 3.1.1997 even as per the admission of defendant no.1
he had written to the bank to pay 1/4th share of the rental to the
plaintiff. This was supported by the agreement of even date
which was signed by all the brothers Ex. PW-1/1. Arrangement
for payment of rent thereafter continued up to June 1998 when
again this arrangement got suspended as defendant no.1
instructed the bank otherwise. Defendant no.2 the bank was
admittedly all along dealing with defendant no.1 to which
arrangement the other brothers did not object. Bank has further
admitted that in terms of the letter dated 3.1.1997 from
February 1997 up to June 1998 1/4th share of the rent of the
plaintiff was paid by defendant no.2 to him. He continued doing
so till June 1998 when defendant no.1 told him not to do so.
Since defendant no.2 was dealing with defendant no.1,
defendant no.2 adhered to the instructions of defendant no.1.
Suit i.e. CS(OS) No.933/2001 was filed. Division Bench vide its
order dated 4.8.2004 prima facie recognized the right of the
plaintiff and directed defendant no.2 i.e. bank to deposit 1/4th
share of the rental in favour of the plaintiff. Thereafter the
parties settled their disputes; matter was compromised and the
suit was withdrawn as compromised on 1.2.2005. On 14.4.2005
in terms of this compromise defendant no.1 wrote to defendant
no.2 requesting defendant no.2 to pay 1/4th share of the rent to
the plaintiff on regular basis. This version and the stand of the
plaintiff is fully fortified by his documentary evidence.
45. Defendant no.1 has also laid much emphasis on the letter
dated 4.11.2005 admittedly sent by the plaintiff to the bank
wherein the plaintiff has requested the bank to credit his
account with 1/4th share of the rental. It is pointed out by
counsel for defendant no.1 that in this communication dated
4.11.2005 Ex.P-2 there is no mention of letter dated 14.4.2005
which again shows that this is a forged document and has been
cooked upon later on. There is no force in this submission. This
letter Ex.P-2 categorically recites that suit i.e. CS(OS)
No.933/2001 had been withdrawn in terms of a compromise
arrived at between the parties; defendant no.1 wrote to the bank
to apportion 1/4th share of the rental to the account of the
plaintiff; all these details are given; merely because the date of
14.4.2005 does not find mention in this letter Ex.P-2 does not
substantiate this argument of the defendant which is of no
merit; it is worthless. Further submission of defendant no.1
that the plaintiff has alleged in his plaint that he has already
filed a contempt application which application is dated
24.5.2006 when the suit was filed on 11.5.2006 is also of merit;
either way it would have no consequence to the case in hand.
Defendant no.1 has failed to discharge the onus that the letter
dated 14.4.2005 is either forged or fabricated. Defendant no.1
is playing a fraud upon the Court.
46. Plaintiff has been able to establish that he is entitled to
1/4th share of the rent. Defendant no.1 is not the exclusive
owner of the property. Share of the plaintiff would thus be his
share for the preceding three years i.e. three years prior to the
filing of the suit i.e. from 11.05.2003. Rent for period June,
2001 to February, 2005 was Rs. 80,000/- per month; thereafter
from March 2005 up to the filing of the suit it was Rs.1 lac per
month. Share of the plaintiff is accordingly calculated at
Rs.7,92,419.34 i.e. for the period of three years immediately
preceding the filing of the suit.
47. Issue nos.4,5,7, & 9 are decided accordingly.
48. ISSUE NO.8
Onus to discharge this issue was on the defendant no.2.
DW-2 on oath has stated that in the year 1980 vide lease deed
dated 21.7.1980 Umrao Singh deceased father of defendant no.1
had leased out the property to the bank at monthly rental of
Rs.4670/-. This was the ground floor and a portion of the first
floor of the suit property; it was an area 2336 sq. ft. After the
death of Umrao Singh in the year 1986 defendant no.1 started
dealing with the bank and granted lease from time to time to
which the other legal heirs of Umrao Singh never objected. The
bank has paid up to date rent to defendant no.1. In February
1997 defendant no.1 had instructed the defendant bank to
transfer Rs.13,522/- every month from his account to the
account of the plaintiff and which was regularly done so till June
1998 when these instructions were withdrawn by the defendant
no.1; the bank was acting as per the instructions of defendant
no.1. No claim can be founded against defendant no.2.
49. The plaintiff has also not disputed that after the death of
their father Umrao Singh defendant no.1 had been authorized to
deal with the bank on behalf of all the brothers and this
arrangement had continued satisfactorily till 1996. Thereafter
since defendant no.2 stopped paying the 1/4th rental share to the
plaintiff which was at the behest of defendant no.1, the plaintiff
had vide Ex.PW-1/DY cancelled the power of attorney which he
had executed in favour of defendant no.1. Plaintiff has thus
admitted that he had authorized defendant no.1 to act on his
behalf in his dealings with the bank. It is also not in dispute that
defendant no2 has paid up to date rent. Defendant no.2 was
earlier, for a partial period under instructions of defendant
no.1, paying 1/4th share of the rental to the plaintiff but
thereafter after the instructions had been withdrawn in June
1998 defendant no.2 continued to pay the rent to defendant
no.1. The interse arrangement and the interse disputes between
the plaintiff and the defendant no.1 are of no concern with
defendant no2 who has no liability qua the plaintiff as the privity
of contract of defendant no.2 was with defendant no.1 after the
death of Umrao Singh and this position has been amply admitted
by the plaintiff himself. As such the claim of the plaintiff lies
against the defendant no.1 only.
50. This issue is accordingly decided in favour of defendant
no.2 and against the plaintiff.
51. ISSUE NO.3
Onus to discharge this issue is on the defendant. Both the
defendants had taken a preliminary objection that the suit is not
maintainable in the present form. Defendant no.1 has stated
that the plaintiff has no right, title or interest in the suit
property and nor in the suit premises. Defendant no.2 has
stated that he has no privity of contract with the plaintiff.
Plaintiff has successfully established his right and interest in the
suit property. No arguments have been addressed on behalf of
defendant no.2 and no submission has been advanced on this
count.
52. Issue no.3 is accordingly, decided in favour of the plaintiff
and against defendant no.1.
53. ISSUE NO.10:
Plaintiff has claimed interest @ 12% per annum on the
principal sum.
54. While deciding the preceding issues this Court has held
that the plaintiff is entitled to a claim of Rs. Rs.7,92,419.34.
Interest @ 12% per annum is fair and equitable.
55. Issue no.10 is decided in favour of the plaintiff and against
the defendant.
56. ISSUE NO.11
Issue no.11 no longer survives in view of the finding on the
preceding issue i.e. while deciding issue no.8.
57. ISSUE NO.12: RELIEF:
Suit of the plaintiff is decreed in the sum of Rs.7,92,419.34
with interest @ 12% per annum to be paid from the date of filing
of the suit till realization. Cost be also awarded in favour of the
plaintiff. Decree sheet be drawn. File be consigned to record
room.
(INDERMEET KAUR)
JUDGE
MARCH 09, 2010
nandan
