Moorti Devi vs Pawan Mehra (Deceased) Through ...
2013 Latest Caselaw 4541 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 1st October, 2013.

+                              RFA No.47/2007

       MOORTI DEVI                                       ....... Appellant
                         Through:    Mr. T.C. Sharma, Adv.

                               Versus

    PAWAN MEHRA (DECEASED)
    THROUGH LR'S & ANR                        ..... Respondents
                  Through: Mr. Pramod Kumar Sharma, Adv. for
                           R-1.
                           Mr. Satish Mehra, R-2 in person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 17 th November,

2006 of the Court of Additional District Judge (ADJ), Delhi in Suit

No.342/2003 filed by the respondent/plaintiff. By the said decree, the

appellant/defendant has been directed to hand over the possession to the

respondent/plaintiff of the portion of the property beyond the premises in

her tenancy comprising of two rooms, kitchen and open space and the

appellant/defendant has also been restrained from raising any construction

over the property.

2. Notice of the appeal was issued and vide ex-parte ad-interim order

dated 26th April, 2007, the execution of the decree stayed, subject to the

appellant/defendant maintaining status quo qua possession and construction

of the suit property. The appeal was on 19 th September, 2007 admitted to

hearing and the ad interim order confirmed. The respondent/plaintiff died

during the pendency of the appeal and vide order dated 9 th July, 2010, his

legal heirs were substituted. One Mr. Satish Mehra, paternal uncle of the

deceased respondent applied for impleadment as a party in the present

appeal and which application was allowed vide order dated 9 th July, 2010;

though no amended memo of parties as directed is filed. The hearing of the

appeal was expedited owing to the one of the legal heirs of the

respondent/plaintiff being a senior citizen. The counsel for the appellant,

counsel for the legal heirs of the deceased respondent/plaintiff and the

newly impleaded respondent Mr. Satish Mehra appearing in person have

been heard.

3. The deceased respondent/plaintiff instituted the suit from which this

appeal arises, pleading:

(i) that he was one of the co-owners of property No.WZ-436,

popularly known as old Pili Kothi, Tihar, New Delhi;

(ii) that the appellant/defendant's husband Mr. Chhatar Singh was

a tenant in respect of two rooms, kitchen and open space in between,

which was a part of quarters of Pili Kothi, under Mr. Dina Nath

Mehra, the grandfather of the deceased respondent/plaintiff;

(iii) that after the death of Mr. Dina Nath Mehra his two sons i.e.

Mr. Satish Mehra (respondent No.2) and Sh. Suresh Mehra became

owners/landlords of the property;

(iv) that the said Mr. Satish Mehra and Mr. Suresh Mehra were

Non-Resident Indians settled in United States of America (USA)

since long;

(v) that the father of the deceased respondent/plaintiff was

managing the property and had filed an eviction petition against the

said Mr. Chhatar Singh and obtained a decree for eviction in respect

of the space shown in blue colour in the site plan;

(vi) that the certified copies of the record relating to the eviction

petition will be obtained and be placed on record;

(vii) that at the request of Mr. Chhatar Singh, the said decree of

eviction from the Court of the Additional Rent Controller, Delhi was

not executed and Mr. Chhatar Singh was allowed to remain as a

tenant in respect of the portion aforesaid of the property after

enhancing the rent to Rs.100/- per month;

(viii) that Mr. Chhatar Singh died and the appellant/defendant was

accepted as a tenant in his place;

(ix) that somewhere in 1980-81, disputes arose between the co-

owners and which were subject matter of a suit for partition being

CS(OS) No.282/1981 of this Court; a decree dated 9 th March, 1987 of

partition was passed therein but remained unenforced as the same was

challenged in appeal and which appeal remained pending till 1998;

(x) that while the said CS(OS) No.282/1981 was pending disposal,

it was noticed that certain persons were trying to encroach upon the

property and an application in that regard was filed in the said suit

and vide order dated 17th April, 1998 a boundary wall around the

property was permitted to be constructed;

(xi) that subsequently, respondent No.2 Mr. Satish Mehra was

appointed as an Arbitrator to resolve all the disputes between the co-

owners and the respondent no.2 Mr. Satish Mehra passed an award on

24th December, 1998 and which was final and binding on the parties;

under the said award, the deceased respondent/plaintiff had acquired

title as co-owner in respect to the property;

(xii) that the appellant/defendant was able to take forcible

possession of one room and open space with tin shed in the property

without the consent and permission of the co-owners including the

deceased respondent/plaintiff;

(xiii) that the appellant/defendant was a trespasser in the portion

occupied beyond her tenancy premises;

(xiv) that the appellant/defendant in order to legalize her possession

of the portion trespassed upon by her, applied for grant of electricity

connection and submitted an affidavit and indemnity bond, where she

claimed to be in possession of a plot of land admeasuring 50 sq. yds.

in the property for the past one year or so.

Accordingly, the suit for recovery of possession of the portion

of the property trespassed upon by the appellant/defendant and for

permanent injunction to restrain her from dealing therewith, was filed.

4. The appellant/defendant contested the suit, by filing a written

statement, on the grounds:

(a) that the suit was bad for non-joinder of other owners of the

property and the deceased respondent/plaintiff being admittedly a co-

owner was not entitled to maintain the same;

(b) denying that the deceased respondent/plaintiff was a co-owner;

(c) denying the site plan filed by the deceased respondent/plaintiff;

(d) denying that the appellant/defendant or her husband were

tenant in respect of two rooms, kitchen and open space only and

pleading that the appellant/defendant and her husband were tenant in

respect of three rooms, store, verandah, kitchen, tin shed, open space,

W/C and bathroom under the tin shed all comprising a single

dwelling unit at a monthly rent of Rs.25/- since 1959;

(e) denying that any eviction petition was filed against the husband

of the appellant/defendant or that after the eviction order, the rent was

increased;

(f) denying that the appellant/defendant had trespassed over any

portion of the property;

(g) though admitting that the appellant/defendant had applied for

provisional/temporary electricity connection but pleading that as she

could not afford electricity in the entire premises, she had applied on

Standard Farms/Affidavit supplied by advice received from the Delhi

Vidyut Board (DVB) office;

(h) pleading that she was in occupation of the premises as a tenant.

5. The deceased respondent/plaintiff filed a replication to the written

statement aforesaid, denying the contents of the written statement and

reiterating his case.

6. On the pleadings of the parties, the following issues were framed on

23rd August, 2005:

"1. Whether the suit is without cause of action or is liable to be dismissed? (OPD)

2. Whether the suit covered by DRC Act and the same is not maintainable for permanent injunction on the suit property for the purpose of stoppage of illegal construction on adjoining land? (OPD)

3. Whether the suit is bad for non joinder of necessary parties? (OPD)

4. Whether the plaintiff is entitled to a decree for possession as prayed for? (OPP)

5. Whether the plaintiff is entitled for the decree of permanent injunction as prayed? (OPP)

6. Whether the possession of defendant is as trespasser on the land shown in RED colour in the site plan and plaintiff is entitled for possession of the same as prayed?

(OPP)

7. Relief."

7. The deceased respondent/plaintiff besides himself examined four

other witnesses.

8. The appellant/defendant besides herself examined two other

witnesses.

9. The learned ADJ, decreeing the suit in favour of the deceased

respondent/plaintiff and against the appellant/defendant vide the impugned

judgment has held/observed/found:

(i) that the deceased respondent/plaintiff had established that he

was a co-owner of the property and was thus entitled to maintain the

suit;

(ii) that the suit was not barred by the provisions of Delhi Rent

Control Act, 1958;

(iii) that the non-joinder of the other co-owners was not fatal to the

interest of the deceased respondent/plaintiff;

(iv) that the report of the Local Commissioner (LC) appointed and

from the factum of the appellant/defendant applying for new

electricity connection qua 50 sq. yds. which she claimed to be in her

possession for the last one year or so, established that the

appellant/defendant had trespassed into 50 sq. yds. of property;

(v) that if the appellant/defendant had been occupying the entire

premises in her possession for 30-40 years prior to the institution of

the suit, it was unbelievable that she would apply for electricity

connection with respect to 50 sq. yds. only and not with respect to the

entire portion in her tenancy;

(vi) that the factum of the construction at the instance of the

appellant/defendant being underway had been established from the

report of the LC;

(vii) that since there was no sanction for construction, the same was

unauthorized.

Accordingly, a decree for recovery of possession as well as for

permanent injunction aforesaid was passed.

10. The counsel for the appellant/defendant has argued:

(A) that though the deceased respondent/plaintiff in the plaint had

relied on an eviction petition stated to have been earlier filed against

the husband of the appellant/defendant and site plan in which eviction

petition would show the portion in the tenancy of the

appellant/defendant, but no record of the said eviction petition was

produced;

(B) that no reliance can be placed on the report of the LC who was

not even authorized to prepare any site plan;

(C) that the LC along with his report filed the same site plan as the

deceased respondent/plaintiff, apparently on a copy of the said site

plan being supplied by the deceased respondent/plaintiff to the LC;

(D) that the impugned judgment is based solely on the

affidavit/indemnity bond submitted by the appellant/defendant to the

DVB for a temporary electricity connection;

(E) that the site plan filed by the deceased respondent/plaintiff does

not even show the two rooms admitted to be in the tenancy of the

appellant/defendant and thus falsifying the said site plan.

11. The counsel for the legal heirs of the deceased respondent/plaintiff

per contra has from the site plan shown the tenancy portion and the portion

in front thereof encroached upon by the appellant/defendant and has

contended:

(I) that there is another electricity connection in the tenancy

premises (and which fact is denied by the counsel for the

appellant/defendant) but admits that there is no evidence with respect

thereto;

(II) that the appellant/defendant did not challenge the report of the

LC nor filed any objections thereto.

12. The respondent No.2 Mr. Satish Mehra appearing in person has

argued:

(a) that there are several quarters in the property with each having

two rooms;

(b) that the appellant/defendant has broken the wall separating the

quarter in her tenancy from the adjacent quarter and encroached upon

the adjacent quarter also;

(c) that admittedly the appellant/defendant, on the date of filing of

the affidavit/indemnity bond before the DVB, was in occupation of

the premises for 35-40 years; she still in her affidavit/indemnity bond

wrote that she was in occupation for a period of one year only; that

occupation of 35-40 years could not be mixed up with an occupation

of one year only and it has thus to be necessarily held that the 50 sq.

yds., qua which the electricity connection was applied for, was the

portion encroached upon by the appellant/defendant one year prior to

so applying for the electricity connection;

(d) that though the appellant/defendant denied that any

construction was underway on the property, but the LC appointed by

the Trial Court reported construction material lying at site and

construction underway.

13. That the counsel for the appellant/defendant in rejoinder has

contended that the appellant/defendant is an illiterate and uneducated lady

and was only interested in getting an electricity connection and signed

whatever documents were put before her for the said purpose and her

statement of being in occupation of 50 sq. yds. since one year only, cannot

thus so bind her.

14. The respondent No.2 Mr. Satish Mehra has after the close of hearing

and in the absence of the counsel for the appellant/defendant handed over a

synopsis/written arguments together with a copy of the judgment of the

Division Bench of the Patna High Court in Sharfuddin Vs. Bibi Khatija

AIR 1988 Patna 58 on the aspect of one co-owner being entitled to maintain

the suit for possession against a trespasser. In the said written argument, it

is further stated that:

(i) that the appellant/defendant had admitted to the LC that she

was a tenant of Mr. Amar Nath, father of the deceased

respondent/plaintiff;

(ii) that the report dated 23 rd October, 1986 of the LC appointed in

the partition suit showed that the quarter No.5 comprising of two

rooms, one bathroom, one kitchen and open space/verandah was in

the tenancy of the appellant/defendant and the appellant/defendant

had in her written statement admitted that the adjacent properties

were in symmetry.

Though certain other arguments on the other pleas in the written

statement of the appellant/defendant are also made but since the

appellant/defendant has confined her argument only to the extent of the

tenancy premises, need is not felt to deal therewith.

15. I may at the outset state that though the respondent No.2 Mr. Satish

Mehra was, with no objection of the appellant/defendant, impleaded as the

respondent but this being a first appeal arising from a suit which was

between the deceased respondent/plaintiff and the appellant/defendant and

to which the respondent No.2 Mr. Satish Mehra was not a party, the

respondent No.2 Mr. Satish Mehra can be heard supporting the case of the

deceased respondent/plaintiff only insofar as on the basis of the existing

material and not in his independent right.

16. The dispute as aforesaid, is confined to the extent of the premises in

the tenancy of the appellant/defendant, with the question for adjudication

being, whether the entire portion which is presently in occupation of the

appellant/defendant is part of the tenancy premises of the

appellant/defendant as contended by the appellant/defendant or only a part

thereof with the appellant/defendant having encroached upon the remaining

portion, as contended by the deceased respondent/plaintiff. If the said

question is decided in favour of the deceased respondent/plaintiff, then the

appellant/defendant is liable to deliver possession of the encroached portion

to the deceased respondent/plaintiff/his legal heirs.

17. The deceased respondent/plaintiff in the plaint did not plead existence

of other quarters similar to the quarter/premises in the tenancy of the

appellant/defendant/her husband or the appellant/defendant having broken

down the wall separating the quarter in her tenancy from the adjacent

quarter. On the contrary, it was simply stated that while the

appellant/defendant was a tenant in the portion shown in blue colour in the

site plan filed along with the plaint, she had trespassed on to the portion

shown in red colour in the said site plain. A perusal of the site plan filed by

the deceased respondent/plaintiff showed the combined red and blue

portions to be comprising of a room admeasuring 10 ft. X 12 ft. under

construction, an ACC sheet shed spread over both blue and red portions and

a store and a kitchen in the blue portion and a verandah and a tin shed in the

red portion. The said site plan neither shows any adjacent quarters or

accommodation therein nor shows two distinct premises; rather, the same

shows the built up portion in the red and blue portions as one.

18. The Trial Court vide ex-parte ad interim order dated 26th May, 2000

restrained the appellant/defendant from carrying out any construction work

in the property and to ensure that no further construction was carried on

appointed a LC to prepare a report about the construction existing in the

property and construction which was being carried out. A report of the visit

to the property on 27th May, 2000 was filed by the LC to the effect that a

large part of the old structure of the red portion was demolished and new

construction was about to be completed; that old walls of the blue portion

had also been damaged and whole roof thereof had been changed. The LC

along with his report filed the same site plan as filed by the deceased

respondent/plaintiff along with the plaint.

19. The deceased respondent/plaintiff in his affidavit by way of

examination-in-chief deposed that the appellant/defendant has forcibly taken

over possession of one room and open space with tin shed adjacent to

tenanted premises by breaking the wall. He also proved the report of the LC

appointed in the partition suit by the High Court of Delhi. In his cross-

examination, he admitted that no measurement of the accommodation in

tenancy of the appellant/defendant had been given in the site plan filed

along with the plaint and that the said site plan had been got prepared only

by measuring from outside and denied the suggestion that the said site plan

was prepared without visit to the site. He further admitted that the premises

were not let out in his presence and that the affidavit/indemnity bond filed

by the appellant/defendant with the DVB came in his possession in the year

2000. He denied the suggestion that similar accommodation existed in six

quarters in the property.

20. The deceased respondent/plaintiff also examined a witness from DVB

who proved the affidavit/indemnity bond admittedly submitted by the

appellant/defendant to the DVB for electricity connection. Though other

witnesses were also examined, but their testimonies are not relevant qua the

extent of the tenancy premises.

21. The appellant/defendant in her examination-in-chief deposed that the

entire portion in her possession was part of the tenancy premises. In her

cross-examination, a suggestion was given that all the quarters in the

property were not similar.

22. As would be apparent from the aforesaid, the only evidence on record

and on the basis whereof the learned ADJ has decreed the suit for

possession is the affidavit/indemnity bond submitted by the

appellant/defendant to the DVB describing herself to be occupant for the

last one year of an area of 50 sq. yds. in the property. I am unable to, on the

basis of the said affidavit/indemnity bond, hold that the appellant/defendant

is not a tenant with respect to the said 50 sq. yds. of the property. There is

no site plan filed by the deceased respondent/plaintiff describing the

measurements of the portion claimed to be in the tenancy of the

appellant/defendant. On the basis of the site plan filed by the deceased

respondent/plaintiff, no finding whatsoever of the extent of the tenancy

premises and the extent of the portion on which the appellant/defendant has

encroached upon can be returned. Rather, on the basis of said site plan no

executable decree even can be passed for possession as it cannot be

demarcated therefrom which is the tenancy portion and which encroached

portion, as there are no measurements. Else there is no evidence of what

was the portion let out. There is no date of such encroachment by the

appellant/defendant or explanation for no complaint thereof being made. As

far as the report of the LC is concerned, the same is only with respect to

demolition and construction activity being underway. Merely because

demolition and construction activity was underway, is not enough to draw a

presumption that the appellant/defendant had encroached over a portion of

the property beyond that in her tenancy. The said report would entitle the

deceased respondent/plaintiff only to the relief of injunction claimed and

may entitle the deceased respondent/plaintiff to on the basis thereof file an

eviction petition under the Delhi Rent Control Act, 1958, the rent of the

premises being less than Rs.3,500/- per month. There is no cross-

examination of the appellant/defendant with respect to the

affidavit/indemnity bond submitted to the DVB.

23. All that can be observed is that though the story, convincingly argued

by the respondent No.2 Mr. Satish Mehra in person, of the

appellant/defendant taking advantage of the inter se disputes between the

co-owners having broken down the wall supporting the quarter in her

tenancy and adjacent unoccupied quarter, is a plausible one, but I am afraid

that in the absence of proof and which there is none, no decree for

possession can be given.

24. The counsel for the appellant/defendant is correct in his contention

that the respondent No.1/plaintiff pegged his case in the plaint on the

description of the tenancy premises in the eviction petition earlier filed, but

failed to prove the record of the said eviction petition and did not even give

any explanation for non production thereof.

25. Further, on the one hand it is argued that the accommodation in all

quarters is identical and the accommodation in tenancy of

appellant/defendant is described as of two rooms etc.; on the other hand

while it is argued that the appellant/defendant has encroached on adjoining

quarter but the encroached accommodation is described as comprising of

one room etc. only and not of two rooms etc.

26. I am therefore unable to concur with the reasoning given by the

learned ADJ. Neither the report of the LC nor the affidavit/indemnity bond

submitted by the appellant/defendant to the DVB justify the conclusion

drawn of trespass. Accordingly, the impugned judgment and decree dated

17th November, 2006 insofar as granting a decree for recovery of possession

of the red portion shown in the site plan of property to the deceased

respondent/plaintiff is set aside. However, a case of the appellant/defendant

having carried out unauthorized addition, alteration or construction in the

property is made out and the grant of the decree for injunction is justified.

27. The appeal is accordingly partly allowed; the decree insofar as for

recovery of possession is set aside and the suit for the said relief is

dismissed. However, the decree for permanent injunction shall remain. In

the facts and circumstances, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

OCTOBER 01, 2013 bs