Delhi High Court
Girwar Singh vs Ramjas Foundation on 27 September, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 27th September, 2010
+ RSA No.35/2009 & CM No.3242/2009
GIRWAR SINGH ...........Appellant
Through: Mr.Javed Ahmed and Mr.Eram Khan,
Advocates.
Versus
RAMJAS FOUNDATION ..........Respondents
Through: Mayank Bansal, Advocate.
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.(Oral)
1. This second appeal has impugned the judgment and decree
dated 22.10.2008 which had endorsed the judgment and decree of
the Trial Court dated 12.12.2005 decreeing the suit of the plaintiff
for damages.
2. The plaintiff /respondent i.e. the Ramjas Foundation had
filed a suit for recovery of possession and damages of suit
property i.e. land measuring 100 sq. yards housing Jhuggi
No.A-17, Punjabi Basti, Anand Parbat, Delhi, a part of Khasra
No.367 in village Chokri Mubarikabad, Delhi. The defendant was
stated to be a licensee in terms of a license deed dated 1.12.1979;
license fee was Rs.25/- per month. Defendant had been irregular
in making payment of license fee. The license deed was cancelled
RSA No.35/2009 Page 1 of 4
vide legal notice dated 4.5.1987. Damages amounting to Rs.375/-
as also future damages for use and occupation of the land @ Rs.2/-
per sq. yard per month were claimed.
3. Defendant contested the suit. It was stated that the plaintiff
is not the owner of the suit property. The license deed dated
1.12.1979 was not denied; it was, however, stated that the same
had been got executed from the defendant by wrongly
representing that the plaintiff was the owner of the land and as
such the license deed is a nullity. It is relevant to state that in the
written statement the license deed dated 1.12.1979 had been
challenged only for this reason that the plaintiff was not owner of
the suit land.
4. The licence deed had been proved before the Trial Court as
Ex.PW-1/1; the site plan of the suit property had been proved as
Ex.PW-2/7. Issue no.3 was answered against the plaintiff; he was
held not to be the owner of the suit property. In the course of the
proceedings before the Trial Judge the relief for possession had
been given up by the plaintiff. He had confined his claim only to
damages/mesne profits. Issue no.5 was accordingly not answered.
All the other issues were decided in favour of the plaintiff and
against the defendant. The Trial Court endorsed the finding that
the execution of the license deed Ex.PW-1/1 had not been
specifically denied by the defendant. The relationship of landlord
and tenant in terms of Section 116 of the Evidence Act was
established. A decree for arrears of license fee in the sum of
Rs.375/- along with interest 9% per annum as also a decree for
damages at the rate of Rs.2/- per sq. yard qua the suit premises in
terms of site plan Ex.PW-2/7 was passed from the date of the
RSA No.35/2009 Page 2 of 4
filing of the suit till realization.
5. The first Appellate Court vide the impugned judgment and
decree dated 22.10.2008 endorsed this finding.
6. This is a second appeal. The questions of law have been
formulated on page 1 and 2 of the memo of appeal. They all
border on the proposition that once the relief of possession had
been given up by the plaintiff, a claim fo damages/mesne profit
would not lie. This is also the only argument which has been
urged before this Court. Counsel for the appellant has submitted
that the Courts below had erred in granting a decree for
damages/mesne profits when the main relief i.e. the relief of
possession had been given up.
7. In 154(2008) DLT 230 Syndicate Bank Vs. Raj Kumar
Tanwar a Bench of this Court while relying upon a judgment S.
Santokh Singh & Ors. Vs. Gurbux Singh rendered by a Division
Bench of this Court on 16.7.2001 (reported in
MANU/DE/0704/2001) had held that a suit for possession and a
suit for recovery of mesne profits are based on two distinct causes
of action; in that case the Court had held that the provisions of
Order 2 Rule 2 Code of Civil Procedure would not apply and a
subsequent suit for possession would be maintainable as the
earlier suit filed for mesne profits was based on a distinct cause of
action. Applying the analogy of the aforestated judgment, it is
clear that the relief of possession is based on a separate cause of
action which is distinct and different from the relief of mesne
profits. Order II Rule 2 in fact permits a party to intentionally
relinquish any portion of his claim.
6. Under Section 116 of the Indian Evidence Act, 1872 the plea
RSA No.35/2009 Page 3 of 4
of estoppel accrues in favour of a plaintiff who is admittedly the
landlord of the premises for which damages/mesne profits is
claimed by him. Ex.PW-1/1 is an admitted document between the
parties. Relationship of landlord and tenant stood proved. This
provision clearly stipulates that the tenant shall not be permitted
to deny, during the continuation of tenancy, the relationship of
landlord and tenant; he is estopped from doing so. The Courts
below had also rightly applied this principle in favour of the
plaintiff. No question of law much less any substantial question of
law has arisen in this appeal.
7. The appeal as also pending application is dismissed in
limine.
INDERMEET KAUR, J.
SEPTEMBER 27, 2010
nandan
