Hans Raj Batra vs Kalka Prasad Aggarwal & Ors
2011 Latest Caselaw 65 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                        RFA No.741/1999
 %                                                   6th January, 2011


HANS RAJ BATRA                                   ...... Appellant
                                      Through:   Harish Kr. Mehra, Adv.
                          VERSUS


KALKA PRASAD AGGARWAL & ORS                      ...... Respondents

Through: Mr. Siddhanth Bambha, Adv, for R-1 & R-4.

Mr. Anand Yadav and Mr. Atul Kumar, Advocates for R-2 & R-

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this first appeal under Section 96 of

the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment

and decree dated 7.9.1999 whereby the suit of the

respondents/plaintiffs for possession and mesne profits has been

decreed against the appellant/defendant no.1.

2. The appellant became a tenant with respect to a piece of land

measuring 1200 sq. yds situated in Khasra No. 1283/67/2 of Mauja

Kilokri, Mathura Road, New Delhi. The original Khasra number was

Khasra No. 67. By a rent note dated 19.12.1956, the appellant was let

out this piece of land by the predecessor-in-interest of the

respondents. It is not disputed by learned counsel for the appellant

that the appellant came into possession of the land through this rent

note dated 19.12.1956 (Ex.PW1/16). The learned trial court has held

that though a part of land was acquired by the government, however,

to the extent the land continues to be in possession of the

appellant/defendant no1./tenant, because the government does not

become the owner of the same since possession was not taken

although the land was sought to be acquired. A government becomes

the owner of land under Section 16 of the Land Acquisition Act, 1894

only when possession is taken. The learned counsel for the appellant

also does not dispute that if the ownership of the land is not taken over

by the government, the respondents/plaintiffs no.1 to 4 would be the

owners of the subject land.

3. Before this court, the learned counsel for the appellant raised

three main contentions. The first contention was that the site plan

filed by the respondents is not correct as per site as of now because

part of the land shown in the plan stands acquired by the government

and therefore the suit should fail. The second defence is that the suit

was not maintainable under Section 50 of the Rent Control Act. The

third argument raised was that the rate of damages awarded at Rs.

12,000/- per month is exorbitant.

4. So far as the first aspect is concerned, the same is merely an

argument of technicality rather than anything else because it cannot

be disputed that the appellant is in possession of the land of which, the

respondents no.1 to 4 are the owners. If that be so, the decree of

possession will be to the extent of the land in possession of the

appellant. Merely because the site plan would stand changed post

acquisition of a part of the land by the government, the same cannot

change the position so far as the land which the appellant is in

possession of, because that land is within the boundary walls and it is

this portion within the boundary walls which the appellant is in

possession and which belongs to the respondents no. 1 to 4, against

which the decree for possession would be operative. This argument of

the appellant is therefore rejected. As a matter of abundant

precaution, the respondents no.1 to 4 are held entitled to move an

application before the executing court, if so necessary that there can

be a site plan prepared of the land in possession of the appellant and

which is stated to be within boundary walls.

5. The second argument that the suit is barred by limitation under

Section 50 of the Rent Control Act, 1958. Firstly, this was not a ground

which was raised either in the trial court or has been raised in the

grounds of appeal in this court. In any case, since what was let out to

the appellant was land, there is no question of protection under the

Control Rent Act because the protection of the Delhi Rent Control Act,

1958 is only with respect to premises i.e. constructed structures and

not with respect to land. Merely because, a tenant constructs on the

land leased out to him would not make the tenancy fall within the

protection of the Delhi Rent Control Act, 1958. The tenant is at liberty

to remove the structures in case he wants to and as constructed by

him on the suit land. Also, there is nothing appearing on the record of

the trial court as to that these constructions were made with the

consent of the landlord, and on the contrary, counsel for the

respondents states that at no point of time any consent was given to

the appellant and the appellant has not proved any such consent

before the trial court. This argument is also rejected.

6. The last argument with regard to the rate of damages. If the rate

of rent was Rs.100/- p.m in the year 1956, surely giving a rate of

Rs.12,000/- p.m as in 1991 cannot said to be exorbitant. The civil

courts have taken regular judicial notice of increase in rents, more so

in urban areas. One such judgment is the Division Bench of this court

S. Kumar Vs. G.R.Katpalia 1999 RLJ 114, (1999) 77 DLT 266,

where judicial notice of increase of rents has been taken note of for

awarding mesne profits.

7. No other point was argued or canvassed before this court on

behalf of the appellant. The appeal is therefore dismissed leaving the

parties to bear their own costs. All interim orders passed in the appeal

are vacated. Trial court record be sent back.

JANUARY 06, 2011                                VALMIKI J. MEHTA,J
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