Delhi High Court
Shri Rajendra Kumar Bansal & Ors. vs Shri Des Raj Batra & Ors. on 20 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 20.4.2011
+ RSA No.235-38/2006 & CM No.10204/2006
SHRI RAJENDRA KUMAR BANSAL & ORS. ........Appellants
Through: Mr.Shiv Charan Garg and
Mr.Imran Khan, Advocates.
Versus
SHRI DES RAJ BATRA & ORS. ..........Respondents.
Through: Mr.G.B.Tulsiani, 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 appeal has impugned the judgment and decree dated
13.7.2006 which had endorsed the finding of the trial judge dated
15.12.2005 whereby the suit filed by the plaintiffs seeking
mandatory and perpetual injunction against the defendants that
they should be restrained from interfering in their possession qua
the suit property had been decreed.
2. There are three plaintiffs in the present case. Plaintiff nos.1
and 2 claimed to be joint tenants in respect of two rooms on the
first floor above shop No.4707 and 4849 on the eastern side
staircase and one room and one kitchen on the first floor above
shop No.4748 on the eastern side and common toilet on the ground
floor. Plaintiff no.3 claimed himself to be tenant in respect of two
rooms on the first floor on the western side of the stair case and
common toilet and common staircase. Plaintiffs had taken on rent
the aforenoted suit property from defendant no.1 w.e.f. 16.5.1991;
rent receipts had been executed by defendant no.1. Plaintiffs were
regularly paying the rent to the said defendant. On 01.5.1991 one
Kailash Chand Jain an erstwhile tenant had surrendered the
portions of his tenancy to defendant no.1. On 16.5.1991 defendant
no.1 created a new tenancy in favour of the plaintiffs in respect of
the portions which had fallen vacant pursuant to the vacation of
the property by Kailash Chand Jain in addition to the portion
already in the tenancy of the plaintiffs. On 16.9.1991, defendants
no.2 and 3 contacted the plaintiff and told him to stop paying rent
to defendant no.1 as interse disputes had arisen between
defendant no.1 on the one hand and defendants no.2 and 3 on the
other hand. Plaintiffs apprehended threats of dispossession;
present suit was filed.
3. Defendants no.2 and 3 filed their written statement. It was
stated that they are the owners of the suit property. No tenancy
had been created in favour of the plaintiff.
4. On the pleadings of the parties, the following ten issues were
framed:
1.Whether the court has no pecuniary and territorial jurisdiction to try
the present suit? OPD
2.Whether the suit is bad for mis-joinder and non-joinder of the parties?
OPD
3.Whether the plaintiffs have no cause of action against the defendants?
OPD
4.Whether defendant no.1 is owner of the property in dispute? OPD
5. Whether the rent receipts are forged and false and bogus? OPD
6. Whether the grandfather of defendants No.2 and 3 and father of
defendant No.1 execute any will, if so, its effect?
7. Whether any mental agreement was executed between defendant no.3
and Sh.Kailash Chand Jain? OPP
8. Whether tenanted premises let out for residential-cum-commercial
purposes? OPP
9. Whether the plaintiff are tenant under defendant No.1? OPP
10. Whether the plaintiffs are entitled to the relief claimed? OPP
11. Relief.
5. Oral and documentary evidence was led. Plaintiff has
examined himself as PW-1 and proved site plan of the portion
which was under his tenancy as Ex.PW-1/1. His contention was
that there was an oral tenancy between the parties. Suit property
had been handed over to him on 16.5.1991. PW-2 has proved the
rent receipts which have been executed in favour of the plaintiff
which are Ex.PW-2/1 and Ex.PW-2/2; in spite of opportunity PW-2
was not cross-examined. The plaintiff had moved an application
seeking permission to recall PW-2 which was dismissed. This was
vide order dated 30.3.2005. This order has since become final as
no appeal has been filed against the said order. The oral and
documentary evidence was scrutinized by both the courts below.
The impugned judgment had clearly noted that these rent receipts
Ex.PW-2/1 and Ex.PW-2/2 had been issued by Vimlesh Bansal
(defendant no.1) and showed the extent of the tenancy of Naresh
Chand Jain i.e. the plaintiff no.3. Ex.PW-2/4 was the receipt of
possession of the portion which was under the erstwhile tenant
Kailash Chand Jain; Ex.PW-2/7 evidenced that Kailash Chand Jain
had handed over the portions of his tenancy to defendant no.1.
Ex.PW-1/2 to Ex.PW-1/12 evidenced that plaintiffs no.1 and 2
(namely Des Raj Batra and Baljit Kumar Batra) are tenants of one
room on the first floor along with a kitchen; these receipts bear the
signature of defendant no.1; court drew a categorical finding that
there was no evidence to show that the aforenoted documents i.e.
the rent receipts Ex.PW-1/2 to Ex.PW-1/12 and Ex.PW-2/1 and
Ex.PW-2/2 were either forged or fabricated. Vimlesh Bansal is
admittedly the daughter of Ram Bhagat Bansal. She was claiming
her right in this suit property in terms of a will dated 30.11.1984.
It has been admitted by the parties that this will has since been
probated although appellants have filed an appeal against the said
probate.
6. Be that as it may, the will is not the only document which has
proved the claim of the plaintiff; all the aforenoted documentary
evidence coupled with the oral testimony established that the
plaintiffs were tenants in the suit property under Vimlesh Bansal;
they could not be dispossessed by defendants no.2 and 3; the
report of the local commissioner had also been adverted to; he had
also held that the possession of the suit property was with the
plaintiffs.
7. This is a second appeal. It has been admitted and the
following three substantial questions of law were formulated on
02.7.2007:
1. Whether the appellant was given an opportunity to cross-
examine PW-2 in accordance with law?
2. What is the effect of not passing any order on the
application moved under Order 41 Rule 23 and Section 151
of the CPC wherein it was mentioned that the case be
remanded back for proper adjudication?
3. Whether the rent receipt Ex.PW-2/1 and Ex.PW-2/2 were
proved in accordance with law?
Today i.e. 20.4.2011, in view of the submission an
additional substantial question of law was formulated; it
reads as follows:
Whether the findings in the impugned judgment dated 13.7.2006
are perverse as they are based on no evidence? If so, its effect?
8. Record shows that in spite of opportunity the defendants
have failed to cross-examine PW-2. This right has now been lost.
Rent receipts Ex.PW-2/1 and Ex.PW-2/2 were proved in accordance
with law; no objection was taken qua their proof at any stage.
Even if the impugned order did not specifically make a mention of
the remand application; it is an implicit corollary of the dismissal of
the appeal that the prayer seeking remand had been rejected. No
perversity has been pointed out by the learned counsel for the
appellant. The findings of the court below are based on cogent and
corroborative evidence which call for no interference. Substantial
questions of law are answered accordingly. There is no merit in
the appeal. The appeal as also the pending application is
dismissed.
INDERMEET KAUR, J.
APRIL 20, 2011
nandan
