Smt Devi Bai (Since Deceased Now ... vs Smt. Kailash Devi
2011 Latest Caselaw 377 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 19.01.2011
                   Judgment Delivered on: 21.01.2011


+               RSA No.2/2004 & CM No.164/2004


SMT DEVI BAI
(SINCE DECEASED NOW REPRESENTED BY HER LEGAL HEIRS)
                                  ...........Appellant
              Through: Mr.Ravi Gupta Sr. Advocate with
                       Mr.Swastik Singh, Advocate.
              Versus

SMT. KAILASH DEVI                         ..........Respondent
              Through:         Mr.Pradep    Dewan,   Ms.Anupam
                               Dhingra and Mr.Rajiv Samaiyar,
                               Advocates.

       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. This appeal has impugned the judgment and decree dated

10.11.2003 which had reversed the finding of the trial judge dated

01.4.2003. Vide the judgment and decree dated 01.4.2003, the suit

of the plaintiff/appellant Devi Bai seeking mandatory injunction

that the defendant be directed to handover the suit property to him

along with recovery of `1360/- had been decreed in her favour.

The impugned judgment had reversed this finding. The suit of the

plaintiff stood dismissed.

2. The predecessor-in-interest of the plaintiff i.e. her husband

Prithvi Raj Manocha, in the year 1966 had permitted Gobind Ram

(husband of the defendant Kailash Devi) to use and occupy a piece

of land with a temporary tin shed on a licence basis. Prithvi Raj

Manocha expired in 1976. Gobind Ram became a licensee under

the plaintiff Devi Bai. Gobind Ram also expired; his widow Kailash

Devi continued to use and occupy the said land. She continued

making payment for use and occupation of the said premises to the

plaintiff @ Rs.40/- per month up to September 1988. Thereafter

there was a default. The licence of the defendant was terminated

vide legal notice dated 15.9.1989. Defendant did not vacate the

suit property. Suit was filed.

3. Defendant contested the suit. Contention was that the

defendant Kailash Devi is a lawful tenant for the last 20-25 years

and had been paying monthly rent of Rs.40/- per month; she had

not defaulted in payment of rent; the enhanced rent for the month

of September 1989 and October 1989 had been deposited in the

court of Additional Rent Controller, Delhi. It was admitted that the

tenanted premises comprised of one room/shop covered with

asbestos sheets and a front verandah. The jurisdiction of the Civil

Courts is barred as there existed a relationship of landlord-tenant

between the parties.

4. Issues were framed. Thereafter oral and documentary

evidence was led by the respective parties. Two witnesses had

been examined on behalf of the plaintiff. Seven witnesses were

examined by the defendant. The trial judge found the version of

the plaintiff more credible. The documentary evidence adduced by

the defendant i.e. Ex.DW-2/1 and Ex. DW-1/2 which were the

inspection reports of house tax department where the name of the

Gobind Ram (husband of the defendant) had been mentioned as a

tenant were held not by themselves sufficient to establish the

tenancy of the defendant. Versions of DW-6 and DW-7 were

discarded on the ground that it was a hearsay evidence. Trial

judge was of the view that the intention of the parties was to create

a licence. The licence had been validly terminated vide the legal

notice Ex.PW-1/3. Suit of the plaintiff was accordingly decreed.

5. The impugned judgment while reversing this finding was of

the view that the testimony of DW-6 and DW-7 could not be

regarded as hearsay. The plaintiff had failed to adduce any

documentary evidence. Per contra the defendant had produced

four documents in his support which were Ex.DW-2/1 to Ex.DW-2/2

(noted supra); Ex.DW-1/1 was the certified copy of the Shops and

Establishment Department. Ex.DW-7/B was the ration card

produced by the defendant substantiating his possession in the suit

property. The appellate Court was of the view that the long period

of occupation by the defendant in the suit premises without any

demur or protest by the plaintiff was an additional factor depicting

the intention of the parties which was to create a lease. The

relationship between the parties was that of landlord-tenant;

jurisdiction of the Civil Court was barred under Section 50 of the

Delhi Control Act (hereinafter referred to as „the DRCA‟); suit was

dismissed.

6. This is a second appeal. It was admitted and the following

substantial questions of law were formulated on 27.7.2009:

"1. Whether Notice dated 15th September, 1989 sent through Under Certificate of Posting is deemed to be valid service of notice on the respondent?

2. Whether respondent is a licencee or a lessee in the suit property?"

7. On behalf of the appellant, it has been urged that the

judgment of the trial court is perverse; the trial judge had rightly

rejected the version of DW-6 and DW-7 which was only hearsay.

The documentary evidence adduced by the defendant could not be

relied upon to decipher the intent of the parties. Ex.DW-2/1 and

Ex.DW-2/2 were merely cyclostyled formats of the House Tax

Department. Entire property owned by the plaintiff is about 300

sq. yards of which only 12 to 15 sq. yards are in possession of the

defendant; this is also a deciding factor to determine the intention

of the parties; intent was not to create a lease; it was only a

permissive user granted to the defendant. The finding in the

impugned judgment that merely because the legal notice had been

sent by UPC is not sufficient to hold that it would be suspect

document; such a finding is an illegality. For this proposition

reliance has been placed upon RCR 1974 578 Kishan Chand Vs.

Satya Paul (Delhi); another judgment of the this Court reported in

35 (1998) DLT 279 Prem Chander Jain Vs. Jagat Parkash Gupta. It

is pointed out that even for a communication sent by UPC, a

presumption of service can be raised.

8. Arguments have been countered. It is pointed out that the

intent of the parties was clear from the fact that the predecessor-

in-interest of the plaintiff had initially allowed Gobind Ram, the

husband of the defendant, to use and occupy the suit property. It is

pointed out that this is clear from the averments made in the

plaint. Even after the death of the predecessor of the plaintiff as

also the husband of the defendant, the relationship between the

parties i.e. between Devi Bai and Kailash Devi continued; rent was

also enhanced. It is submitted that this by itself reflects upon the

intent of the parties which was to give exclusive right of user to the

defendant; it was a landlord-tenant relationship between the

parties. Learned counsel for the respondent has placed reliance

upon a judgment of the Apex Court reported in AIR 1959 1261

Associated Hotels of India Vs. R.N.Kapoor ; a subsequent judgment

dated reported in (1989) 3 SCC 574 Capt. B.V. D,Souza Vs. Antonio

Fausto Fernades ; as also on another judgment reported in

(2006)6 SCC 394 Anthony Vs. K.C. Ittoop & Sons to bring out a

distinction between a lease and a licence. It is pointed out that

applying the ratio of the aforenoted judgments it can clearly be

concluded that the parties had in fact intended to create a lease.

On the question of notice, it is submitted that the defendant all

along had pleaded that the notice Ex.PW-1/3 terminating his

tenancy had not been served upon him. Reliance has been placed

upon (1994) 4 SCC 445 Shiv Kumar and Ors. Vs. State of Haryana

& Ors. to support his submission that mere a bald assertion by the

plaintiff that he had served the notice is not by itself sufficient.

9. Record has been perused. The substantial questions of law

as aforenoted have also been noted.

10. Question no.2 shall be answered first; whether it was a lease

or a licence? The Apex Court has time and again reiterated these

principles which have to be borne in mind to answer this issue. All

the aforenoted judgments have proceeded on the assumption that

there was a document in writing between the parties. In the

instant case there is no such document. There is no such averment

in the plaint that the parties had created any document by virtue of

which the defendant had been inducted into present premises. In

the written statement, contention of the defendant was that he is a

tenant. He had also not stated that there was any document in

writing between the parties to create this tenancy. In his cross-

examination, PW-10 had in fact admitted that there was a written

licence deed between his father Prithvi Raj Manocha and Gobind

Ram although it was not registered; he does not know whether it

was notarized or not. This document has not seen the light of the

day. The positive assertion of the plaintiff that there was a written

licence deed between the parties and he not having produced it,

this Court is constrained to draw an adverse inference against him;

the adverse inference being based on the presumption that if this

document would have been produced it would have gone against

the interest of the plaintiff.

11. PW-1 had deposed that in the year 1966 his father Prithvi Raj

Manocha had allowed Gobind Ram to occupy this piece of land on a

licence basis. He has further admitted that after the death of

Gobind Ram his wife Kailash Devi continued to stay there; she had

opened a tea stall in the suit premises; she was also residing

therein. He had further admitted that Prem Prakash Bhaskar was

another tenant under his father and he was running a coal depot

there. It has also been admitted that the verandah in front of the

room in occupation of the defendant, did not have any roof earlier

but later on the defendant had covered it with tin sheets. It is also

not in dispute that after the death of Prithvi Raj Manocha on

28.6.1976, the plaintiff Devi Bai continued to accept occupation

charges from Gobind Ram @ `40/- per month. After the death of

Gobind Ram the same arrangement continued with his widow

Kailash Devi. It is also not disputed and in fact it has been elicited

in the cross-examination of PW-1 that initially the rate of

occupation charges was `20/- and thereafter it was enhanced to

`40/- and the same continued to be accepted by plaintiff Devi Bai.

The relationship between the parties whether it to be attributed as

a licensor-lincesee relationship or as a landlord-tenant relationship

had continued right from 1966 up to the time when the legal notice

was sent by the plaintiff to the defendant which on 15.6.1989 i.e.

for an intervening period of more than 23 years.

12. Ex.DW-1/1 was the certificate of Shops and Establishment

Department. Ex.DW-7/B is the copy of the ration card; both these

documents establish the possession of the defendant which

otherwise is not contentious. Ex.DW-2/1 and Ex.DW-2/2 were the

documents of the House Tax Department which are dated

10.9.1970 and 20.8.1984. There is a gap of 14 years between the

two documents. Ex. DW-2/1 records the name of Gobind Ram as a

tenant; the next document i.e. Ex.DW-2/2 has recorded the name of

Gobind Ram as an old tenant. This was as per the survey report of

the MCD. These documents by themselves are not sufficient to

deduce the intent of the parties i.e. whether the parties had

intended to create a landlord-tenant relationship or that of a

licensor-licensee is an undisputed proposition. Nevertheless these

documents cannot be overlooked. DW-5 was a neigbour living in

the vicinity for the last 25 years. DW-6 was also living in the

vicinity since the year 1956. Both these witnesses have deposed

that the suit property had been rented out to Gobind Ram @ `20/-

per month; thereafter was enhanced to `40/- per month. No

suggestion has been given to DW-5 that he was deposing falsely

at the behest of the defendant. DW-6 has admitted that he had no

family relation with Gobind Ram.

13. The oral and documentary evidence led in the Courts below

had been rightly adverted to in the impugned judgment to return a

finding that this evidence adduced between the parties had in fact

intended to create the relationship of a landlord-tenant. PW-1 had

admitted that there was a licence executed between his father and

Gobind Ram; he did not produce it for the reasons best known to

him. Gobind Ram had first been inducted into the premises in the

year 1966 by Prithvi Raj Manocha. After the death of Prithvi Raj

Manocha his wife Devi Bai continued her relationship with Gobind

Ram. She continued to accept the user and occupation charges

being paid by Gobind Ram. After the death of Gobind Ram, Kailash

Devi stepped into the shoes of Gobind Ram. The arrangement

between Devi Bai and Kailash Devi continued. In fact this

arrangement had lasted for more than 23 years when the legal

notice was issued by the plaintiff. The defendant had initially been

allowed to use a room with a front verandah. The verandah

thereafter was covered with tin sheets; no demur or protest was

raised even then. The tea stall of the defendant was continuing

even during the lifetime of Gobind Ram. The premises were being

used for running a tea stall as also for the residence of the

defendant. A part portion of the property had also been tenanted

out to another tenant namely Prem Prakash Bhasker. There was

no reason as to why the DW-5 and DW-6 who were neigbours living

in the vicinity of both the plaintiff and the defendant would have

deposed falsely. No ulterior motive was also attributed to them.

Documents i.e. Ex.DW-2/1 and Ex.DW-2/2 were additional features

depicting the intent of the parties. The long possession of the

defendant without any interference, demur or protest has been

established. Ex.DW-1/1 evidenced that even in April 1970 a tea

shop was being run by the defendant. PW-1 had admitted that the

open verandah in front of the room in occupation of the defendant

was subsequently covered by tin sheets; no protest was lodged. All

these factors clearly establish that the parties had intended to

create a relationship of landlord and tenant between themselves.

14. The jurisdiction of the Civil Court is thus barred under

Section 50 of the DRCA. Substantial question no.2 is answered

accordingly.

15. This Court shall now advert to the substantial question no.1.

The substantial question no.1 as framed is not required to be

answered in view of the finding returned on substantial question

no.2. Whether the notice Ex.PW-1/4 had or had not been served

upon the defendant is of little consequence in view of the finding

that the parties being governed by a relationship of landlord-tenant

relationship; the Civil Court has no jurisdiction to entertain the

suit. This has been rightly held in the impugned judgment. Such a

finding calls for no interference.

16. Appeal is without merit. The appeal as also the pending

application is dismissed.

INDERMEET KAUR, J.

JANUARY 21, 2011 nandan