Sh. Pavinder Pal Singh & Anr. vs Sh. Ranjit Singh Soni
2011 Latest Caselaw 1684 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 21.03.2011
                   Judgment Delivered on: 24.03.2011


+            RSA No. 268/2005 & CM Appl No. 12829/2005


SH. PAVINDER PAL SINGH & ANR.                     ...........Appellants

                   Through:     Mr. Ravi Bhushan, Advocate.

                                Versus

SH. RANJIT SINGH SONI                   ..........Respondent
              Through: Mr. Parvinder Singh, 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.

1. This appeal has impugned the judgment and decree dated

11.05.2005 which had reversed the finding of the trial judge dated

24.08.1992. Vide judgment and decree dated 24.08.1992, the suit

of the plaintiff Sh.Pavinder Pal Singh seeking possession and

damages/mesne profits qua the suit property bearing no. 10023 in

Block No. XV. Gali No. 2, Multani Dhanda, Paharganj, New Delhi-

110055 had been decreed. Vide the impugned judgment dated

11.05.2005, this finding of the trial judge was reversed; suit of the

plaintiff had been dismissed.

2. The case of the plaintiffs as set out in the plaint is that their

father Late. Sh. Tirlochan Singh Sahni had been allotted the

aforenoted suit property comprising of two rooms, a kitchen, store

and a terrace by the Ministry of Rehabilitation of Govt. of India.

Rate of rent was ` 5.50/- per month. The plaintiffs along with their

father were residing therein. After the death of their father, they

became tenants by operation of law. The Ministry of Rehabilitation

transferred this property to the Municipal Corporation of Delhi

(MCD); the Slum Department of the MCD was transferred to the

Delhi Development Authority (DDA); DDA through this Slum

Department started receiving rent from the father of the plaintiffs

and after his death, from the plaintiffs. Plaintiffs had also applied

for mutation of this property. Defendant is the maternal uncle of

the plaintiff. He requested for permission to stay in the suit

property as a licensee which was accordingly accorded to him. No

rent was being charged from the defendant. Defendant was a

licensee; he had no right or interest in the suit property; he had

only been granted permissive user. Defendant, in spite of request

to plaintiff, had refused to hand-over the suit property to the

plaintiffs. Plaintiffs had earlier also been constrained to file a suit

for permanent injunction. On 06.06.1984, plaintiffs cancelled the

license of the defendant; defendant had become an unauthorized

occupant. He was also liable to pay damages/mesne profits at the

rate of ` 100/- per month. Present suit was filed.

3. In the written statement, the defence set up by the defendant

was that plaintiff had no locus standi to file the present suit; the

ownership and management of the suit property vests with the

DDA, Slum Department, defendant was not an occupant of the suit

property in his own independent right; DDA had accepted him as

an occupant and he was regularly paying occupancy charges to the

DDA. A sum of ` 3,604.70 ps had been paid vide receipt dated

06.09.84. The authorized and accepted possession of the

defendant could not be disturbed.

4. On the pleadings of the parties, following issues were

framed:-

"i) Whether the plaintiff is tenant in the suit property?

             ii)    Whether the plaintiff allowed the
             defendant to live in the suit property as a
             licensee?

iii) Whether the suit is bad for non-joinder of necessary party i.e. DDA?

iv) Whether the suit is not properly valued for the purpose of Court Fee and jurisdiction?

             v)     Whether the defendant is residing in the
             suit property in his own right?
             vi)    Whether the plaintiff is entitled to the

relief of possession and damages? If yes, then damages at what rate?

vii) Relief."

5. In the earlier suit filed by the plaintiff which was a suit for

permanent injunction.

The following issues were framed:-

1. Whether the plaintiffs allowed defendant to live in the suit property as a licensee?

2. Whether the defendant is occupying the suit property in his own right?

3. Whether the plaintiff is entitled to the relief of injunction?

4. Relief.

6. Both the said suits had been consolidated. Oral and

documentary evidence was led. Plaintiff had produced the

allotment letter Ex. PW 1 /4 and rent receipts Ex. PW 1 / 13 to

substantiate the allotment in his name as also the fact that he was

paying rent of the suit premises. The site plan was proved as Ex.

PW 1/1. Four witnesses were examined in defence. The defendant

had made payment to the DDA vide receipt Ex. DW 1/1 and DW

1/2. On the basis of this oral and documentary evidence, both the

suits of the plaintiff had stood decreed.

9. The impugned judgment had reversed this finding. It held

that the plaintiffs had not been able to prove the case; per contra

preponderance of probabilities was in favour of the defendant; they

were in occupation of the suit property since 1961 in their own

independent right. Suits of the plaintiffs were accordingly

dismissed.

10. This is a second appeal. It has been admitted and on

21.03.2011, the following substantial question of law was framed

which reads as follows:-

"Whether the finding in the impugned judgment dated 11.05.2005 reversing the finding of the trial judge dated 24.08.1992 thereby dismissing the suit of the plaintiff is a perverse finding and if so, its effect?"

11. Learned counsel for the appellant has urged that the

impugned judgment is perverse; the defendant was a trespasser.

The claim of the plaintiff was never that he was an unauthorized

occupant; attention has been drawn to the definition of the

"unauthorized occupation" as contained in Section 2(g) of The

Public Premises (Eviction of Unauthorized Occupants) Act, 1971

which reads as follows:-

"2. Definitions- In this Act, unless the context otherwise requires,- ...............................................

(g) "unathourised occupation", in relation to anypublic premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of

transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."

It is pointed out that the impugned judgment recording the finding

that the defendant was an unauthorized occupant and not a

trespasser is an illegality. It is submitted that under Section 115 of

the Indian Evidence Act, the principle of estoppel is attracted; the

defendant was nothing but a licensee; he could not dispute the title

of the plaintiff who was the licensor. The impugned judgment

holding that the plaintiff had not asked for mutation and this being

the ground for dismissal of the suit is also an illegality as it was not

mandatory for the plaintiff to have got mutation effected in his

name; he was a legal allottee from the Government. The guidelines

and policy of the DDA Ex. DW 4/1 and DW 4/2 would apply only to

unauthorized occupants and not to a trespasser; defendant was a

trespasser; the said policy/guidelines would have no application to

the case of the defendant.

12. Arguments have been countered. It is submitted that the

findings in the impugned judgment call for no interference.

13. Record has been perused. It is not in dispute that the parties

are closely related. The defendant is the maternal uncle (mama) of

the plaintiff. Tirlochan Singh Sahni was the original allottee of this

suit premises; he had been allotted an allotment from the Ministry

of Rehabilitation at the rent of ` 5.50 per month. Plaintiff had

permitted the defendant to occupy the accommodation as a

licensee. Admittedly, Tirlochan Singh died in 1972. Present suit

had been filed in the year 1984. Although the plaintiff had averred

that he has got efforts to get mutation of the suit property in his

name yet no documentary evidence has been filed to substantiate

this submission. DW-1, Sh. Ram Sewak Sharma, UDC, Slum Wing,

DDA, an official witness from the DDA had admitted that property

had not been mutated in the name of the plaintiff. He had on oath

stated that as per the summoned record, one Ranjit Singh Soni

(defendant) was the licensee and had been shown as an occupant

of the aforenoted suit property i.e. of two rooms and kitchen.

Further, license of Tirlochan Singh had been cancelled vide order

dated 24.08.1984 passed by Dy. Director (Land & Revenue); DW-1

had further deposed that on inspection of site, he found Ranjit

Singh Soni in possession of the suit property; damages assessed

qua the suit property had also been paid by the defendant; notice

under Section 7(ii) and 7 (iii) P.P. Act was given to the defendant to

pay the damages; plaintiffs had not been shown either as a licensee

or an occupant. In his cross-examination, this witness had

admitted that up to 31.03.1977, Tirlochan Singh had paid rent at

Rs. 5.50 per month. It is the vehement contention of the learned

counsel for the appellant that this statement of DW-1 shows that up

to 31.03.1977, it was Tirlochan Singh who was paying the rent qua

the suit property and this establishes their possession till 1977.

Even as per the case of the plaintiff as is evident from the plaint,

the plaintiffs were residing in the suit property till April 1969 and

thereafter since their father Tirlochan Singh was a heart patient,

they had purchased a house in Rajouri Garden. In 1973, at the

request of the defendant, the defendant was permitted to occupy

the suit premises. In his cross examination, PW 1 admitted that

from 1977 up to 1980, rent was given to the defendant for being

deposited in DDA; he admitted that the defendant has got his

driving license issued in 1961 from the suit premises. DW-4, Sh.

Raj Pal, Superintendent, Slum Department, DDA had also come

into the witness box. He had proved the policy and guidelines of

the Department wherein it had been notified that all unauthorized

occupants except trespassers would be regularized as licensees.

14. This oral and documentary evidence was re-appreciated by

the first appellate court. Impugned judgment had noted that even

as per the Ex. DW 4/1 and DW 4/2 even presuming that the

defendant was an unauthorized occupant, such unauthorized

occupants had been regularized in terms of this aforenoted policy.

The submission of the learned counsel for the appellant that the

defendant was a trespasser and not an unauthorized occupant and

there is a distinction between the two, has no force. As per the

plaintiff vide notice dated 06.06.84, the license of the defendant

had been terminated; after its termination, the status of the

defendant was that of an unauthorized occupant. Testimony of

DW-1 had also been rightly adverted to wherein he had proved the

summoned record and it had been noted that the allotment of the

plaintiff had stood cancelled; defendant was in occupation of the

suit premises in 1984; he was paying damages in lieu thereof.

15. The whole case of the plaintiff was hinged upon his allotment

which was admittedly initially in the name of his father; however in

1984, this allotment stood cancelled. Defendant had been granted

permissive user to occupy this suit property by the plaintiffs. PW-1

had admitted that in April 1969 they had shifted to Rajouri Garden.

In this intervening period, the allotment of the plaintiff stood

cancelled; user charges/damages were being paid by the defendant

in his own capacity. Plaintiff had no right or title left in the suit

property to claim back its possession.

16. The impugned judgment calls for no interference.

Substantial question of law answered against the appellant and in

favour of the respondent. Appeal has no merit. Appeal as also the

pending application is dismissed.

(INDERMEET KAUR) JUDGE MARCH 24, 2011 SS