Shri Subhash Chand Dass vs Shri Ram Gopal Aggarwal
2013 Latest Caselaw 4023 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

        +      RSA 182/2013

        SHRI SUBHASH CHAND DASS                              ..... Appellant

                            Through:        Mr.Puneet Verma, Advocate.

                                   versus

        SHRI RAM GOPAL AGGARWAL                            ..... Respondent

                           Through:         Mr.S.N.Gupta and
                                            Mr.S.S.Shukla, Advocates.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

                            ORDER

% 09.09.2013

1. This is a regular second appeal filed by the appellant against the

judgment dated 20.07.2013 passed by the learned ADJ in RCA

No. 5/2013 upholding the judgment and decree dated passed by

the Civil Judge.

2. The learned counsel for the appellant has stated that two

substantial questions of law are arising from the present appeal.

The first question is that the suit filed by the respondent/plaintiff

was barred by Section 50 of the Delhi Rent Control Act, 1958 as

the rent of the premises in question was less than Rs.3,500/- and

the second question being that the appellant/defendant was

entitled to raise the question of title so far as the

respondent/plaintiff being the owner in respect of the first floor of

the premises in question, was concerned. It has been contended

that both these issues required consideration and the learned trial

court as well as the appellate court have grossly erred in deciding

both these issues against the appellant/defendant. He has further

placed reliance on two judgments i.e. Sh.Ripu Daman Haryal &

Anr v. Miss Geeta Chopra & Anr.; ILR (2011) V Delhi 406 and

M.L.Aggarwal vs. Oriental Bank of Commerce & Ors; 2006 (88)

DRJ 214 (DB) in order to canvass the point that he can raise the

question of title so far as the respondent/plaintiff is concerned.

3. Before seeing as to whether the questions which are sought to be

raised by the learned counsel for the appellant as substantial

questions of law, a brief background of the case is required to be

given.

4. The respondent/plaintiff filed a suit for possession and mesne

profits/damages against the appellant/defendant. The sum and

substance of the case which was set up by the respondent/plaintiff

was that the appellant was a tenant in respect of the ground floor

and the first floor of property bearing No.49-A, Pratap Nagar,

Patparganj, Delhi under the respondent/plaintiff at a monthly rent

of Rs.4,300/-. The respondent/plaintiff had also given the detailed

sequence of events in which the tenancy in respect of both the

floors i.e. ground floor and the first floor, which was originally

independent, came to be merged together in favour of the

appellant at a monthly rent of Rs.4,300/- as alleged by the

respondent/plaintiff.

5. The appellant took the plea that he was the tenant only in respect

of the ground floor of the suit premises on a monthly rent of

Rs.2,070/- while as in respect of the first floor, he was not the

tenant. It was also stated that since the respondent/plaintiff was

claiming the appellant to be tenant in respect of the first floor,

which was being denied, therefore, the appellant was entitled to

raise the question of title so far as the first floor of the property in

question was concerned. As regards the ground floor, it was

sought to be urged that the rent as claimed by the appellant was

less than Rs.3,500/-, therefore, he was protected by virtue of

Section 50 of the Delhi Rent Control Act, 1958.

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

"i) Whether the suit is bad for the lack of action? (OPP)

ii) Whether the suit is hit by the provisions of Rent Control Act? (OPD)

iii) Whether the suit is bad for the non-joinder of the parties? (OPD)

iv) Whether the suit is barred under the provisions of the Delhi Land Restriction & Transfer Act? (OPD)

v) Whether the plaintiff is owner/landlord of the suit premises? (OPP)

vi) Whether the tenancy of the defendant has been duly terminated by the plaintiff? (OPP)

vii) Whether the plaintiff is entitled for the possession of suit property? (OPP)

viii) Whether the plaintiff is entitled for the recovery of money if so what sum? (OPP)

ix) Whether the plaintiff is entitled for the damages, mense profit, is so at what rate and for which period? (OPP)

x) Whether the plaintiff is entitled for interest if so, at what rate and for which period? (OPP)

xi) Relief."

7. After the parties were permitted to adduce their respective

evidence, the trial court came to a definite finding holding the

appellant to be the tenant under the respondent/plaintiff in respect

of the ground floor as well as the first floor on a monthly rent of

Rs.4,300/- apart from electricity and water charges.

8. In view of the aforesaid finding, the trial court passed a decree of

ejectment in favour of the respondent/plaintiff and against the

appellant/defendant. The appellant/defendant was further directed

to pay damages/mesne profits at the rate of Rs.7,000/- per month

from 01.01.1996 till handing over of possession of suit property to

the respondent/plaintiff along with interest @ 9% per annum from

the date of filing of the suit till realization.

9. The appellant, feeling aggrieved by the aforesaid judgment and

decree, preferred the first appeal before the court of ADJ. The

learned ADJ revisited the entire evidence as well as the pleadings

of the parties and confirmed the findings returned by the trial

court with regard to the applicability of the Act holding the

appellant to be tenant under the respondent/plaintiff at a monthly

rent of Rs.4,300/- as a composite tenancy in respect of the ground

floor and the first floor.

10. Still not being satisfied, the appellant/defendant has preferred

the present regular second appeal.

11. I have considered the submissions advanced by the learned

counsel for the appellant/defendant which are stated to be

substantial questions of law arising from the appeal. However, I

am not impressed at all with the submissions of the learned

counsel for the appellant in respect of the aforesaid two questions,

both with regard to the appellant being the tenant only in respect

of the ground floor at a monthly rent of Rs.2,070/- or that there

was separate tenancy in respect of the first floor under the

respondent/plaintiff and, therefore, the appellant/defendant was

entitled to challenge the title of the respondent/plaintiff. This is

on account of the fact that a concurrent finding has been returned

by the two courts below, which does not suffer from any

perversity. The finding of the two courts below is that the

appellant is a tenant in respect of the entire ground floor and the

first floor on a monthly rent of Rs.4,300/-. The learned counsel

for the appellant has made submissions before this court so as to

take this court on a voyage to determine and re-appreciate the

evidence with regard to the rent being less than Rs.3,500/- and

because of the rent being less than Rs.3,500, the appellant being

protected under the Delhi Rent Control Act, 1958. These

questions, which have been raised by the learned counsel for the

appellant hereinabove, both with regard to the quantum of rent

and the consequent protection under the Delhi Rent Control Act,

1958 or the factum that there are separate tenancies in respect of

the ground floor and the first floor are essentially questions of fact

in respect of which concurrent finding has been returned by the

two courts below against the appellant. I, therefore, feel that there

is no substantial question of law arising from the present appeal.

12. So far as the question of reliance by the appellant on the

judgments is concerned, where it has been observed that the title

of a person can be challenged on the ground that the title is not

perfect, it may be said that these are essentially cases where the

opposite party is claiming himself to be the owner of a property

on the basis of power of attorney, Will, receipt, etc. while as in the

instant case the respondent is claiming that the appellant is a

tenant of both ground floor and the first floor for a rent of `4,300/-

while as appellant is admitting that he is the tenant of only ground

floor and challenging the title of the respondent of first floor.

That issue does not arise in the instant case for the simple reason

that there is a composite tenancy in respect of the portions of the

ground floor and the first floor under the occupation of the

appellant and thus the question of title cannot be raised by the

appellant-tenant as the same is barred by virtue of Section 116 of

the Evidence Act, 1872. The judgments which have been relied

upon by the learned counsel for the appellant are also

distinguishable from the facts of the case in hand on account of

the fact that the judgment referred to in the case of Sh.Ripu

Daman Haryal's case (supra) was essentially a case where the

probate petition was involved while as in the instant case, there is

no question of probate involved and what is involved is a question

of eviction of the appellant.

13. In totality of the circumstances, I feel that there is no

substantial question of law arising from the present appeal and the

same is dismissed.

14. At this stage, the learned counsel for the appellant has stated

that since the appellant is running a business, therefore, two

months time may be given to vacate the premises in question

though initially the learned counsel for the respondent had stated

that he has no objection to the grant of two months time to the

appellant to vacate the premises in question subject to the

appellant paying a sum of Rs.30,000/- by way of damages for user

and occupation of the premises in question for a period of two

months, but subsequent thereto, he had agreed that the appellant

may continue to pay the damages at the rate of Rs.7,000/- only, as

directed by the courts below. However, he has put a rider that the

appellant shall file an undertaking within a period of two days

from today that he shall vacate the premises in question on or

before the expiry of two months.

15. Having regard to the aforesaid submission, with respect to the

question of time being granted to the appellant to vacate the

premises in question, the appellant is granted time to vacate the

premises in question on or before 10.11.2013. During the period

of his occupation of the premises in question, the appellant shall

not cause any substantial damage or changes to the property and

he shall not create any third party interest in respect of the

premises in question and after vacating the same, he shall hand

over the vacant and peaceful possession of the property on or

before 10.11.2013 to the respondent/decree holder. The appellant

shall also clear the entire arrears of damages in terms of the orders

passed by the two courts below in respect of the electricity and

water charges.

16. Let an undertaking, as directed hereinabove, be filed by the

appellant before the Registrar of this court within a period of two

days from today.

17. List the matter before the Registrar on 16.09.2013.

18. The learned counsel for the respondent/decree holder shall not

press his execution application till 10.11.2013.

19. Dasti.

V.K. SHALI, J

SEPTEMBER 09, 2013/dm