Gajanand Mittal vs Ashok Kumar (Deceased) Through ...
2011 Latest Caselaw 2802 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on : 23.05.2011
                              Judgment delivered on :25.05.2011

+            R.S.A.No. 104/2009

GAJANAND MITTAL
                                                ...........Appellant
                        Through:    Mr.Sanjeev Soni, Advocate.

                  Versus

ASHOK KUMAR (DECEASED) THROUGH LRS
                                                ..........Respondent
                        Through:    None

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

19.03.2009 which has reversed the findings of the trial Judge

dated 19.03.2005. Vide judgment and decree dated 19.03.2005,

the suit filed by the plaintiff Ashok Kumar seeking recovery of

`1,35,000/- qua the suit property (i.e.plot No.36, measuring 80

square yards in Khasra No. 25/11, Shiv Ram Park Extension

forming part of village Kamruddin Nagar, Nangloi, Delhi had been

dismissed. The impugned judgment had reversed this finding;

appeal filed by the plaintiff had been accepted; the Court had

noted that the plaintiff had become the owner of the suit property

vide valid documents of title, general power of attorney, Will,

affidavit dated 11.06.1997; the defendant was a mere licensee; he

was liable to be ejected; damages/mesne profits @ `2,000/- per

month had also been awarded in his favour.

2 The plaintiff claimed himself to be the owner of the suit

property. He had inducted the defendant as a tenant at monthly

rent of `5,000/-; this was vide agreement dated 09.061997.

Tenancy was terminated vide notice dated 02.08.1999; defendant

was asked to deliver the possession of the property by 10.09.1999;

the defendant has also not paid rent w.e.f. 11.06.1987 @ `5,000/-

per month which was calculated @ `1,35,000/- up to 10.09.1999;

mesne profits had also been claimed. Suit was accordingly filed.

3 In the written statement the defence set up was that the

defendant owed a sum of `48,410/- to one Mr. Naresh Kumar;

Naresh Kumar had demanded the original documents of the suit

property from him in lieu of this loan; defendant had handed over

the original title papers of the suit property to Naresh Kumar; the

averments in the plaint had been denied; it was further contended

that Naresh Kumar is in collusion with the plaintiff; present suit

has been filed falsely against the him.

4 On the pleadings of the parties, the following eight issues

were framed:-

"1 Whether there exists no relationship of landlord and tenant between the parties as alleged? OPD 2 Whether the suit is not maintainable in view of preliminary objections no. 2,3 & 4 of written statement? OPD 3 Whether the tenancy of the Defendant has been duly terminated? OPP 4 Whether the Plaintiff is entitled to possession of the suit premises? OPP 5 Whether the plaintiff is entitled for recovery of rent as claimed in the suit? OPP 6 Whether the plaintiff is entitled for damages / mesne profits? If so, at what rate and for which period? OPP 7 Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP 8 Relief."

5 Oral and documentary evidence was led. The trial court was

of the view that Ex.PW-1/6 which is the rent agreement dated

09.06.1997 had created a relationship of landlord and tenant

between the plaintiff and the defendant; his tenancy had been

validly terminated vide legal notice Ex.PW-1/7 dated 02.08.1999.

However, the documentary evidence of the plaintiff i.e. Ex.PW-1/2

(receipt), Ex. PW-1/3 (Will) and Ex. PW-2/1 (GPA) dated

09.06.1997 have not been adequately proved; the plaintiff not

being the owner of the suit property was not entitled to the relief.

Suit had been dismissed.

6 This finding had been reversed in appeal. The impugned

judgment was of the view that the documents Ex. PW-1/2

(receipt), Ex.PW-1/3 (Will), Ex.PW-1/4 (agreement to sell) and

Ex.PW-1/5 (affidavit) coupled with the general power of attorney

(Ex.PW-2/1) endorsed transfer of interest in favour of the plaintiff

qua the suit property; rent agreement Ex.PW-1/6 was also

believed; these were valid documents executed by the defendant

in favour of the plaintiff; further the defendant was a licensee in

the suit property as the plaintiff had permitted him to stay in the

suit land on humanitarian grounds; suit of the plaintiff stood

decreed. Mesne profits/damages had also been granted.

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

09.08.2010, the following substantial question of law was

formulated:-

"Whether there was no relationship of landlord and tenant between the appellant and deceased respondent (now represented through his LR) and if so its effect?"

8 On behalf of the appellant, it has been urged that the

judgment of the trial court suffers from a perversity; the case of

the plaintiff himself was that the defendant was a tenant; this is

evident from the plaint; the impugned judgment returning a

finding that the defendant was a licensee is clearly a perversity;

the impugned judgment calls for an interference on this ground

alone. It is pointed out that there was no relationship of landlord

and tenant between the parties; the trial Judge had rightly noted

that the documents Ex.PW-1/2 to Ex. PW-1/5 had not been

properly proved.

9 None has appeared on behalf of the respondent although he

has been served.

10 The trial Judge had framed eight issues. Issue no. 1 had

been decided in favour of the plaintiff. The trial Judge had

returned a finding that there exists a relationship of landlord and

tenant between the parties; while disposing of issue no. 3 it was

noted that the Ex. PW-1/7 dated 02.08.1999 had been served upon

the defendant terminating his tenancy; tenancy of the defendant

had been validly terminated; however, the suit had been dismissed

for the reason that the other documentary evidence i.e. Ex. PW-

1/5 & Ex. PW-2.1 had not been proved in accordance with law.

Testimony of PW-1 is relevant on this count. He had proved the

aforenoted documents i.e. Ex.PW-1/2 to Ex. PW-1/5. PW-2 had

produced the summoned record from the office of Sub-Registrar;

the certified copy of the general power of attorney had been

proved through his testimony as Ex. PW-2/1. Ex.PW-1/2 is the

receipt of `50,000/- executed by the defendant Gajanand Mittal in

favour of the plaintiff; it is dated 09.06.1997. It was attested by

Naresh Kumar. Ex.PW-1/3 is the will of the same date; this

document also bears the signatures of the defendant; Ex.PW-2/1 is

the certified copy of the general power of attorney executed by

the defendant in favour of the plaintiff. The impugned judgment

had noted that all the aforenoted documents have been proved;

the impugned judgment had also noted that Ex.PW-1/6 (rent

agreement) is also proved; it had been signed on each and every

page by the defendant. The finding qua these documents reads as

follows:-

"14) A close look on these documents shows that even if the Defendant had given any blank signed papers, the same could not have been misused as alleged. The Defendant has not claimed that he ever put his signatures on any blank paper with revenue stamp affixed thereon. The manner in which the signatures of Defendant, as executant, appear across the revenue stamp clearly shows that the 'Receipt' (Ex.PW1/2) could not have been made by using already signed blank papers. Further, the Will (Ex.PW1/3) not only bears the signatures of the Defendant as testator on the front but also at its back on two points alongwith his thumb impressions. The signatures are admitted by the Defendant. It is not his case that he had put his signatures at two different points (places) on any blank paper. Moreover, the manner in which the stamps and endorsement of the Sub-Registrar's office appears at the back of the said Will, it is evident that the Defendant himself has knowingly signed / executed the same. This is further corroborated from the fact that a hand-written receipt

for General Power of Attorney which was issued by the Sub-Registrar's office also bears his signatures at point 'A'.

15) The Will (Ex.PW1/3) not only has his photograph affixed but his Identity card number is written in black ink and the photograph bears the seal of Sub Registrar's office. The General Power of Attorney dated 09.06.1997, (a certified copy of which has been proved) shows the signatures of the Defendant at two points, namely, point A and B separated by the seal / stamp and endorsement of the office of Sub-Registrar. The signatures which are accompanied by thumb impressions could not have been put on a blank paper and the same has not been so claimed by the Defendant also. It is crystal clear that the documents, namely, rent agreement Ex.PW1/6, GPA Ex.PW2/1, agreement to sell and purchase Ex.PW1/4 and the affidavit (Ex.PW1/5) to the effect that the Defendant had handed over the possession of the suit property to the Plaintiff, the receipt Ex.PW1/2, the Will Ex.PW1/3, are not forged and fabricated but genuine documents executed by the Defendant only. The Will as well as General Power of Attorney were also got registered by the Defendant in person, in the office of Sub-Registrar Delhi. The contention of ld counsel for the Defendant is devoid of merits, has no force in the eyes of law and hence rejected."

11 The impugned judgment had noted that the aforenoted documents

i.e. Ex.PW-1/2 to Ex. PW-1/5 coupled with the version of the plaintiff that

the suit property had been delivered to the plaintiff on the same date

created a title in favour of the plaintiff; the impugned judgment had

placed reliance upon a judgment of this Court reported in Ajit

Narain vs Arti Singh andothers, 81(1999) DLT 355. There is no

perversity in this finding. It had validly upheld that the aforenoted

documents had created interest in the suit property in favour of

the plaintiff; these documents had been read coupled with the oral

testimony of the plaintiff who had deposed that the suit property

had been delivered to him. Ex. PW-1/6 was also proved; parties

were governed by a landlord-tenant relationship.

12 In para 23, the Court had returned a finding that this

document is proved; however the further finding that although

Ex.PW-1/6 speaks of a relationship of landlord and tenant between

the parties yet it had actually created a license by the plaintiff in

favour of the defendant was a perversity. While returning a

positive fact finding that Ex.PW-1/6 had been executed between

the parties, the express terms of the document could not have

ignored and substituted for a plea which was neither pleaded nor

proved by the plaintiff. It was never the case of the plaintiff that

the defendant was a license; his case always was that the

defendant was a tenant. Ex.PW-1/6 in fact established this. To this

extent, this finding is set aside.

13 Rent being more than `3,500/- per month, a civil suit was

maintainable.

14 It is also not in dispute that the original title documents of

the suit property had since been parted with by the defendant; his

defence was that he had given these documents to Naresh Kumar

from whom he had taken a loan of `48,000/-; Naresh Kumar had

not been summoned by the defendant. The defence of the

defendant was bald and make belief; it was not substantiated and

rightly held to be so.

15 The impugned judgment had decreed the suit of the plaintiff

for possession; mesne profits had been granted @ `2,000/- per

month; this was inspite of the fact that the claim of the plaintiff

was `5,000/- per month. In Ex.PW-1/6 rate of rent was `5,000/-

was mentioned at per month; the rent recoverable could not more

than three years prior to the date of filing of the suit; i.e. at the

rate of `5,000/- per month. The impugned judgment having relied

upon Ex. PW-1/6 could not have substituted its own figure of

`2,000/- for `5,000/-; this is again a perversity. Document Ex. PW-

1/6 has to be read as per its express terms which had detailed the

rent of `5,000/- per month.

16 Suit of the plaintiff is accordingly decreed for possession

and mesne profits which are recoverable @ `5,000/- per month;

`1,35,000/- is rent which is payable w.e.f. 11.06.1987 to

10.09.1999 and thereafter `5,000/- per month till the date of

delivery of possession. Interest @ `6% per annum is endorsed.

17 With the aforenoted modifications in the impugned

judgment substantial question of law is answered against the

appellant. The appeal is dismissed.

INDERMEET KAUR, J.

MAY 25, 2011, A