Yoginder Singh vs Prem Lata & Anr.
2011 Latest Caselaw 1520 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI
       %                    RFA 36 OF 2005
       +                             Date of Decision: 16th March, 2011


       YOGENDER SINGH                                        .....Appellant
                                       Through:Mr. S. S. Tomar, Advocate
                                    Versus
       PREM LATA & ANR.                                    ....Respondents
                              Through: Ms. Amrit Kaur Oberoi, Advocate

              CORAM:
       *      HON'BLE MR. JUSTICE P.K.BHASIN

       1.     Whether reporters of local papers may be allowed to see the
              judgment?(No)
       2.     To be referred to the reporter or not?(No)
       3.     Whether the judgment should be reported in the digest?(No)


                                JUDGMENT

P.K.BHASIN, J:

The appellant-plaintiff filed this appeal against the judgment and

decree dated 9.12.2004 passed in suit no.351/2004 by the learned

Additional District Judge whereby the suit for possession in respect of

part of property no. A-39 , Badli extension ,village Badli, Delhi -42 as well

as for a decree of cancellation of some documents, injunction and mesne

profits filed by him against the respondents-defendants was dismissed.

2. It was the case of the appellant-plaintiff (hereinafter to be referred to

be as the plaintiff) that he was owner of plot no. A-39, Badli Extension,

Delhi which was 100 square yards plot and out of 100 square yards he had

sold 50 square yards to one Shri Keshu Ram and had raised two storeyed

house on the remaining 50 square yards area( hereinafter to be referred as

'the suit property'). Since he was living in another house also the suit

property was lying vacant. Respondent no.1 herein was working as a

domestic help in his house and since she was in financial distress she had

requested him to allow her to live in the suit property temporarily. The

plaintiff allowed the respondents, who are mother and son and reference to

whom shall now onwards be made as defendants no. 1 and 2 respectively,

to occupy the suit property as a licensee only and that too without

charging any license fee in December 1997 for a period of two years.

However, when in October, 1999 he asked the defendants to vacate the suit

property defendant no.1 had sought more time to vacate and they were

allowed to continue to live there for some more time. When again

possession of the suit property was demanded back from the defendants

they refused to do so. Then a legal notice dated 25th September, 2002 was

served on defendant no.1. In her reply dated 8th October, 2002 defendant

no.1 claimed that the plaintiff had sold the suit property to her on 23rd

may, 1997 by executing an agreement to sell, general power of attorney

etc. and thereafter she herself had with her own funds constructed two

storeyed house.

3. The plaintiff thereafter filed the suit in the year 2002 against the

defendants claiming a decree of possession and mesne profits, declaration

that documents of title in respect of the suit property being relied upon by

the defendants were null and void and be cancelled, and also for a decree

of injunction restraining the defendants from creating any third party

interest in the suit property. In the plaint, the plaintiff pleaded that

whatever documents of title in the suit property the defendants were

relying upon were procured by defendant no.1 from him under the

influence of liquor and so were not binding upon him.

4. The defendants filed a common written statement and resisted the

suit, inter alia, on the grounds that the plaintiff had sold the suit property

to defendant no.1 Smt. Prem Lata on 23rd may, 1997 vide agreement to

sell, general power of attorney, affidavit, Will etc. It was also claimed by

the defendants that defendant no.1 had spent huge amount on construction

of the ground and first floor with her funds from time to time. The

plaintiff's claim that he had raised two storeyed house was refuted as being

false. It was denied that the plaintiff had permitted her to stay in the suit

property as a licensee on her request that defendant no.1 was infact even

prior to the purchase of the property from the plaintiff in occupation of one

temporary room and a kitchen as a tenant of the plaintiff .The defendants

also denied the allegation that property documents were obtained from the

plaintiff under the influence of liquor.

5. Aforesaid pleadings of the parties led to the framing of the

following issues by the trial Court:-

"1. Whether the plaintiff allowed defendant no.1 to occupy the suit property as licencee? OPP.

2. Whether the defendant secured signatures/thumb impression of plaintiff on various documents when the plaintiff was under the influence of liquor? OPP.

3. Whether the plaint is likely to be rejected for want of cause of action u/o-7, rule -11 CPC? OPD.

4. Whether the plaintiff has no locus-standi as the property has been purchased by the defendant? OPD.

5. Whether the plaintiff has not affixed the court fees as per market value of the suit property? OPD.

6. Whether the defendant raised construction from time to time on the suit property after its purchase? OPD.

7. Whether the plaintiff is entitled for the relief claimed? OPP.

8. Relief .

6. The learned trial Court decided issues no.1 and 2 against the

plaintiff. However, issues no. 3, 4 and 6 were decided against the

defendants and issue no. 5 relating to the objection about valuation

of the plaint was disposed of with the observation that the same had

not been agitated. However, in view of the findings on issues

no.1and 2 going against the plaintiff his suit came to be dismissed.

The plaintiff feeling aggrieved by the decision of the trial Court

came up in appeal.

7. From the pleadings of the parties and evidence adduced by them

during the trial the undisputed position which emerges is that to begin with

the defendant no.1 was permitted by the plaintiff to occupy his property.

The dispute between the parties was as to in what capacity the defendant

no. 1 occupied the property. As per the case of the plaintiff the defendant

no. 1 occupied the suit property as a licensee while the defendants had

claimed in their written statement that plaintiff had prior to the sale

transaction ,which according to them had taken place in May,1997, let out

the property to defendant no.1. This dispute regarding the nature of

possession of defendant no. 1 before the alleged transaction of sale in

respect of the suit property becomes relevant since in the present appeal

the findings of the learned trial Court in respect of the execution of various

property documents relied upon by the defendants can either be affirmed

or reversed. In case the trial Court's decision, which has at present gone

against the plaintiff, is affirmed then the question whether the defendant

no. 1 had initially occupied the suit property as a licensee or as a tenant

would be of no significance as far as this appeal is concerned. However,

in case this Court comes to the conclusion that the property documents

relied upon by the defendants were null and void then the question would

definitely arise whether the plaintiff is still entitled to get a decree for

possession in the present suit against the defendants and the answer to that

question would depend upon the decision about the nature of possession of

the suit property by defendant no.1 . The learned trial Court, however, did

not frame any issue regarding the plea of the defendants that defendant no.

1 was initially inducted into the property as a tenant. That issue, in my

view, was a material one and essential for the right decision of the suit on

merits. Since there was no issue in this regard framed by the trial Court

no evidence appears to have been adduced by defendant no. 1 to establish

her defence that she was a tenant and that is why even the trial Court has

not said anything about this plea of the defendants.

8. This court, therefore, is of the view that this is a fit case where in

exercise of the power conferred upon the Appellate Court under Order XLI

Rule 25 of the Code of Civil Procedure should frame an additional issue in

respect of the plea of tenancy raised by the defendants and the matter

should be remanded back to the trial Court for recording evidence on that

issue and giving its findings. Accordingly, the following additional issue,

which shall be treated as issue no. 1A, is framed:

1A. Whether defendant no. 1 was inducted in the suit property by the plaintiff as a tenant before 23rd May, 1997? OPD

9. The matter is now remanded back to the trial Court for giving its

findings on the said additional issue after giving opportunity to the parties

to adduce evidence which however shall be restricted only to this issue.

After the additional issue is decided the learned trial Court shall send its

findings to this Court. The case shall be taken up by the trial Court on 8th

April, 2011 at 2:00 pm and the matter should be disposed off within six

months thereafter. Trial Court record be sent back well before the said

date.

P.K. BHASIN, J

March 16, 2011 sh