Dharamshala Lala Lachman Dass ... vs Smt. Sunita Sharma & Ors.
2011 Latest Caselaw 2588 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 09.05.2011
                               Judgment delivered on : 13.05.2011

+            R.S.A.No. 149/2007 & CM 7592/2007

DHARAMSHALA LALA LACHMAN DASS TRUST
                                ...........Appellant

                   Through:   Mr. Maninder Singh, Sr. Advocate
                              Mr. Gaurav Sharma, Advocate.
                         Versus

SMT. SUNITA SHARMA & ORS.
                                                 .........Respondents

                   Through:    Mr. B.B. Gupta & Mr. Harsh Hari
                               Haran, 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

18.11.2006 which had reversed the finding of the trial judge dated

14.03.2005. Vide judgment and decree dated 14.03.2005, the suit

filed by the plaintiffs seeking possession of the suit property (i.e.

property bearing No.3, Part of Dharamshala Lala Lachman Dass

bearing No.1840 to 1854, Jamna Bazar, Nigam Bodh Ghat, Delhi

as depicted in red colour in the site plan Ex.PW-1/8) had been

decreed. The impugned judgment had reversed this finding; suit

of the plaintiffs stood dismissed.

2. Case of the plaintiffs as is borne out from the pleadings is

that the plaintiffs are the trustees of the aforenoted Dharamshala

Lala Lachman Dass Trust (hereinafter referred to as the Trust).

The plaintiffs had built 14 shops at the site and since then were

managing the affairs of the trust. Lala Lachman Dass died on

16.10.1963. By virtue of a registered Will dated 02.12.1942 the

following persons were left as his legetees:

1.Babu Tara Chand Advocate

2.L.Sada Nand Gurwale

3.L.Johri Mal

4.L.Brij Bhushan Sharan All

5.Sh.Brij Mohan Sharan sons

6.Sh.Madan Mohan Sharan of

7.Sh.Brij Behari Sharan L. Lachman

8.Sh.Brij Raj Sharan Dass

3. The defendant was a licencee in the suit property in terms of

the licence deed dated 4.6.1992; he had caused damage to the

suit premises. In spite of legal notice dated 24.1.1994 revoking

his licence the defendant had failed to vacate the suit property;

present suit was accordingly filed.

4. Defendant Harish Chander contested the suit. It was stated

that the premises are under the tenancy of the deceased son of

the defendant Vijender Kumar who was a tenant in respect of one

room and covered verandah which is now in occupation of his

legal heirs i.e. the defendants. The premises had been let out for

residential-cum-commercial purpose; widow of Vijender Kumar is

carrying on her business in the said property; the site plan has not

correctly depicted the suit property; under the garb of the present

suit the plaintiffs are seeking possession of the portion shown in

red which is the occupation of the daughter-in-law of the

defendant which was not a part of the tenancy created by the

plaintiff in favour of Harish Chander. It was further denied that

the plaintiffs are the trustees of the suit property.

5. On the pleadings of the parties, the following seven issues

were framed:

"1.Whether the suit has not been instituted plaint signed and verified by duly authorized person? OPP

2.Whether there is no cause of action against defendant? OPD

3.Whether the plaintiff has no locus standi to institute the present suit? OPD

4.Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

5.Whether the suit is bad for non-joinder of parties? OPD

6.Whether the plaintiff is entitled for relief of possession, as prayed for? OPP

7.Relief."

6. Oral and documentary evidence was led. On the pleadings of

the parties as also the oral and documentary evidence adduced

the suit of the plaintiff was had been decreed.

7. The impugned judgment had reversed this finding; suit of

the plaintiff was dismissed. The court was of the view that no

licence had been created in favour of the defendants. No room

number had been allotted to the rooms constructed on the

Dharamshala; plaintiff was not entitled to the relief claimed by

him.

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

25.5.2007, the following substantial question of law had been

formulated:-

1.Whether the trust deed and licence deed stand proved in

accordance with the Indian Evidence Act?

2.Whether the appellants have been able to identify the

premises in dispute?

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

impugned judgment suffers from a perversity; the suit of the

plaintiff had been dismissed by drawing an adverse inference for

not having produced the earlier license deed i.e. the license deed

prior to 04.06.1992 which as per the impugned judgment would

have depicted the correct number of the suit property; it is

pointed out that this is clearly a perversity as DW-1 in her cross-

examination had admitted the site plan to be correct and had

admitted that house No. 3 was the property which was being

occupied by her; there was thus no dispute about the identity of

the suit property; as such even if the license deed of an earlier

period was not produced, no ground for drawing an adverse

inference was made out. It is pointed out that Ex.PW-1/1 which

was the trust deed and Ex.PW-1/4 which was the license deed

were duly proved in the court below; in fact DW-1 had admitted

that her father in law Harish Chander had signed at point „A‟ on

Ex.PW-1/4. The defence of the defendant that he was a tenant in

the suit property was never proved; attention has been drawn that

part of the testimony of DW-1 wherein she has admitted that she

had never paid any rent; the rate of rent was also not known to

the defendant. The impugned judgment holding otherwise suffers

from an illegality; findings are liable to be reversed.

10. Arguments have been rebutted. It is pointed out that the

fact findings retuned in the impugned judgment do not call for any

interference. It is pointed out that PW-7 had not signed the plaint;

there was nothing on record to show that any other person was

entitled to sign on his behalf; suit had not been filed by a duly

authorized person. The impugned judgment had correctly noted

that Harish Chander the defendant had a separate tenanted

portion which was room No. 4 and which was returned back by

him to the plaintiff; the defendant Sunita Sharma (legal

representative of Vijender) was occupying room no. 3 in her

independent capacity; electricity bills produced by the defendant

had also been correctly appreciated in the right perspective. No

interference is called for in the impugned judgment.

11. Record has been perused. Plaintiff No. 7 is the Trust of

whom plaintiffs No. 2 to 6 are its trustees. The case of the

plaintiffs as is evident from the pleadings in the plaint is that Lala

Lachman Dass the father of plaintiffs No. 1 to 5 had taken this

piece of land on lease from the Government for the purpose of a

dharamshala; this was vide lease deed dated 11.08.1939. He had

constructed the plot and built 14 shops therein; he died on

16.10.1963 leaving behind a registered will dated 02.12.1948

bequeathing his properties to his five sons as also to two other

persons of whom plaintiff No.6 is also a trustee. The registered

trust deed has been proved as Ex. PW-1/1. This shows that this

trust had come into operation on 01.08.1991. Further case of the

plaintiff is that the defendant had executed a licence deed dated

04.06.1992 in favour of the plaintiff. However, he was misusing

the property and thereafter inspite of legal notice dated

24.01.1994 revoking the license of the defendant, the defendant

had failed to vacate the suit property. The case of the defendant-

Harish Chander was that he was a tenant of room no. 4 which had

since been given back to the plaintiff; his son Vijender had a

separate tenancy with the plaintiff (i.e. room No. 3) which has

been created in his favour and after his death on 30.10.1992 his

widow Sunita and his three minor children continued to occupy

the suit property. To prove her tenancy, an electricity bill in the

name of her husband Vijender dated 23.01.1987. Her case was

that she had an independent status of a tenant since the year

1986; the electricity bill was however not proved; it was given a

mark.

12. This court has to answer the substantial question of laws as

formulated by it on 25.05.2007.

13. Ex. PW-1/4 is the license deed executed by Harish Chander

in favour of the plaintiff. This document is dated 04.06.1992. It

recites that Harish Chander has taken room No. 3 on a temporary

license basis from the Trust and whenever he is asked to vacate

the property, he will do so. This document was witnessed by two

witnesses of whom Om Prakash Sharma was examined as PW-2.

He had testified that Ex.PW-1/4 was executed in his presence.

Harish Chander could not come into the witness box because at

that time he was a dead man. PW-1 had also testified on the

veracity of this document; he was Brij Mohan Saran. Although

initially this document had been refuted by the defendant Sunita

(DW-1) yet in her cross-examination she admitted that the

signatures at point „A‟ on Ex.PW-1/4 bears the name of Harish

Chander, her father- in- law but she could not say whether they

are his signatures as they were not put in her presence. This

testimony of DW-1 coupled with the version of PW-1 & PW-2 as

noted by the trial Judge had led him to hold that Ex.PW-1/4 was a

genuine document; contention of the defendant that it was forged

and fabricated had been repelled. The impugned judgment had

rejected this document only for the reason that Ex.PW-1/4 had

been executed by Harish Chander in favour of the plaintiff

through B.B. Saran who had not come into the witness box;

further that the earlier license deed prior to 04.06.1992 has not

been produced which would have material to prove the room

number allotted to various shops in the Dharamshala. For this an

adverse inference has been drawn.

14. The finding on this score is perverse. DW-1 in her cross-

examination has admitted that the site plan Ex.PW-1/8 showing

room no. 3 in red colour is correct and site plan is also correct.

Drawing of an adverse inference on this count is an illegality. The

evidence of PW-1 & PW-2 of whom PW-2 was a witness to this

document has also been ignored; admission of DW-1 that this

document bears her father-in-law‟s signatures had also not been

adverted to; merely because Mr.B.B. Saran who was a witness to

this document which had been executed by Harish Chander had

not been produced in the witness box for rejecting this document.

It had stood proved. The impugned judgment holding otherwise is

a finding suffering from an illegality and is liable to be set aside.

15. Ex.PW-1/1 was the trust deed. It had been proved in

accordance with law. This is also not disputed by learned counsel

for the respondent. The impugned judgment had rejected the trust

deed Ex.PW-1/1 holding that a photocopy of the same has been

placed on record; at the time of exhibition of this document, there

was no objection; further there is also no dispute about the factum

of this document; rejecting it on this ground only that it was a

photocopy of the same is again an illegality. PW-1 had also

brought the original document and the court had also noted that

the original has been seen. This was recorded in the proceeding of

09.05.1996. In one breath the appellate court had rejected this

document whereas clause 2 & 3 had thereafter been relied upon

to hold that a lease could have been granted only by the secretary

or Manager of the Trust. The case of the plaintiff was not of the

eviction of a lease; his case is that the defendant is a licensee.

Moreover the impugned judgment in one breath had rejected this

document and in next breath relying upon its contents to non-suit

the plaintiff is again a perversity.

16. The impugned judgment had noted the contention of the

defendant that Vijender (deceased husband of Sunita) had an

independent status as a tenant; there was however no

documentary evidence to substitute this fact; no rent agreement

or rent receipt in favour of the defendant was produced. The sole

electricity bill produced in the name of Vijender dated 23.01.1997

showing that he was a resident of 1850, ground floor, Jamna

Bazar, Delhi had not been proved; it had merely been marked.

Moreover the learned counsel for the appellant had drawn

attention of this court to the unrebutted testimony PW-2 wherein

he had stated that Harish Chander for some time was living in

room No. 3 alone; he had another residence also in Jamna Vihar; it

had thus come on record that apart from the present premises i.e.

room no. 3 which had been let out to Harish Chander, there was

yet another room which was in occupation of Harish Chander and

although he lived in room No. 3 exclusively for about three years;

thereafter it was shared by his family. Ex.PW-1/7 & Ex.PW-1/9

were the „mafinamas‟/pardon receipts (executed by Harish

Chander dated 08.01.1992 & 11.08.1993) wherein he has clearly

stated that room no. 4 which he had illegally usurped is returned

back to the plaintiff and he will remove his lock from there. These

documents had been proved in the testimony of PW-1; not a single

suggestion has been given to this witness that these documents

were either forged or fabricated.

17. The trial Judge had thus correctly noted that there was no

evidence to substantiate the claim of defendant No. 5 (Sunita who

was claiming tenancy through her husband) that she had an

independent status as a tenant.

18. The next argument urged by learned counsel for the

respondent is that even as per the case of the plaintiff the

defendant had been inducted as a licensee only in the year 1992

by virtue of the licence deed, Ex.PW1/4 ; this stand in his plaint

was contrary to his evidence; for this purpose attention has been

drawn to the averments made in the plaint.

19. The averments have been perused. The case of the plaintiff

is that it was a trust; reference to 04.06.1992 is only for the

purpose of showing that on 04.06.1992 a document in the form of

a license deed had been created; Otherwise the case of the

plaintiff is that the defendant was in occupation of the suit

premises prior thereto and this is clear from his deposition (PW-1)

wherein he had stated that prior to the termination of license of

the defendant, he was residing in this property as a licensee; the

said room had been given to him on license basis to look after the

dharamshala; no rent was being paid by him as he was not a

tenant. This submission of learned counsel for the respondent thus

has no force.

20. Counsel for the appellant has lastly submitted that the plaint

has not been signed by plaintiff No.7; plaint has also not been

filed through an authorized person. PW-1 had deposed that he was

the attorney holder of plaintiffs No. 3 & 6 who had authorized him

to file the present suit; powers of attorney in his favour were Ex.

PW-1/2 and Ex.PW-1/3; plaint has been signed by plaintiff No. 1;

plaintiff No. 2 has signed for himself and as attorney of plaintiff

No. 6; Praveen Kumar has signed as attorney of plaintiff No. 3;

plaint has also been signed by the other plaintiffs. Further in

terms of Ex. PW1/1, (registered Trust Deed) plaintiffs were

competent to institute, sign and verify the pleadings and to file the

suit against the defendant. This was also dealt with by the Trial

Judge while disposing of Issue No.1. This argument has also no

force. The suit was instituted by a duly authorized person.

21. For all the aforenoted reasons, the findings in the impugned

judgment call for an interference; it suffers from a perversity. The

plaintiff is entitled to the relief sought for by him.

22. Both the substantial questions of law are answered in favour

of the appellant and against the respondent. Appeal is allowed.

Suit is decreed.

INDERMEET KAUR, J.

13th May , 2011 ns/a