Surendra Kumar Gupta vs Mukesh Kumar Gupta
2015 Latest Caselaw 1349 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on : 9th February, 2015
                               Judgment delivered on :13th February,2015

                           CS(OS) 623/2010

SURENDRA KUMAR GUPTA                   ......Plaintiff
            Through: Mr. Suryakant Singla with Mr. Shanto
                     Mukerjee, Advocates

                      Versus

MUKESH KUMAR GUPTA                                    .......Defendant
           Through:                Mr. Randhir Jain, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The present suit has been filed by the plaintiff Surendra Kumar

Gupta against his brother Mukesh Kumar Gupta. It is a suit for recovery

of possession, mesne profits/damages and for injunction.

2. The plaintiff had purchased half undivided share in House No.

E-262, Greater Kailash Part II, New Delhi from Smt. Kamla Kundra

vide sale deed dated 18th December, 1974. This is a registered

document. It is stated to be the self acquired property of the plaintiff. It

is on a plot of land admeasuring 250 square yards upon which initially

there was one and a half storeyed building built upon it.

3. Devinder Nath Gupta, half brother of the plaintiff had purchased

the remaining half undivided share in the afore-noted property vide a

separate sale deed dated 18th December, 1974 from Smt. Kamla Kundra.

This was also a registered document.

4. Thereafter, the plaintiff and his half brother Devinder Nath Gupta

entered into a partition deed dated 18th January, 1980 duly registered. In

terms of this partition, Devinder Nath Gupta became the absolute owner

of the ground floor of the property. The plaintiff became the absolute

owner of the first floor and the terrace as the value of the ground floor

was more than the value of the first floor and the terrace. Devinder Nath

Gupta had paid Rs. 39,300/- to the plaintiff to set off the difference.

5. At the time of purchase of the suit property, the first floor had

only two rooms, a toilet, kitchen and a lounge. In the year 1988, the

plaintiff completed the construction on the first floor and also

constructed a two room set on the second floor at his own expenditure.

Thereafter, in the year 1999, the plaintiff completed the construction on

the second floor and made the barsati floor.

6. The defendant is the real brother of the plaintiff. After the

construction of the second and the barsati floor in the year 1999, the

defendant who was living at Naya Bans, Khari Baoli, Delhi had

requested the plaintiff to accommodate him on the second floor as the

accommodation in Naya Bans, Khari Baoli, Delhi was not suitable. He

requested the plaintiff to permit him to occupy the second floor as a

licensee which permission was accordingly granted by the plaintiff to

the defendant.

7. The plaintiff had permitted the defendant to occupy the second

floor in the suit property as a licensee. There was only one electricity

connection at that time. Since the defendant was living there as a

licensee, the defendant was requested to obtain a separate electricity

meter which was accordingly obtained. The defendant is since then

occupying the property. However, under compelling circumstances, the

plaintiff in need of the accommodation, sent a notice dated 23 rd

February, 2010 revoking the licence of the defendant and required him

to vacate the suit property; failure to do so would render him liable to

pay damages at the rate of Rs. 50,000/- per month. The defendant not

being willing to vacate the suit property and nor agreeing to pay Rs.

50,000/- per month as damages, the plaintiff was compelled to file the

present suit.

8. Written statement was filed by the defendant. His defence in the

written statement was twofold. His first submission was that the suit

property was purchased out of joint family funds by the father of the

parties. The second defence set up by the defendant was that he was

tenant in his own right in the suit property and not a licensee as alleged

by the plaintiff. Contention of the defendant was that he is living in the

suit property since 1985 and being the younger brother of the plaintiff

was also his partner in the business firm M/s Mega Enterprises, he was

entitled to stay in the suit property. His brother (plaintiff) was charging

him Rs. 1000 per month as rent which amount was being paid regularly

by the defendant to the plaintiff. The suit which is filed by the plaintiff

is wholly malafide and is liable to be dismissed.

9. Replication was filed by the plaintiff reiterating the averments

contained in the plaint and disputing the contentions raised in the written

statement.

10. On 9.12.2010, the following issues were framed:-

(i) Whether the defendant is a tenant in the suit property as alleged in the written statement? OPD

(ii) Whether the plaintiff is entitled to the decree of possession in respect of the second floor of E-262, Greater Kailash-II, New Delhi? OPP

(iii) Whether the plaintiff is entitled to any mesne profits/damages from the defendant? If so, at what rate and for what period? OPP

(iv) Whether the plaintiff is entitled to the decree of injunction? OPP

(v) Relief."

11. Relevant would it be to note that no separate issue qua the

defence of the defendant that this property was purchased out of joint

family funds was framed. The contention of the defendant that he is a

tenant in the suit property as alleged in the written statement, was an

issue; the onus to discharge this issue was upon the defendant.

12. The plaintiff has produced two witnesses; the plaintiff himself and

his son-in-law Rajiv Gupta, examined as PW-2. The defendant in

support of his case has adduced only one witness i.e. the defendant.

13. Oral and documentary evidence relied upon by the parties has

been perused. Arguments have also been heard.

14. Issue wise findings read as under:-

Issue Nos 1 & 2

15 The onus to discharge issue No.1 was upon the defendant and the

onus to discharge issue No.2 was upon the plaintiff. It was the defendant

who had to prove that he was a tenant in the suit property as was the

defence set up by him in his written statement. The defendant was

examined as DW-1. He reiterated the averments made in his written

statement stating that he was a tenant in the suit property i.e. at the

second floor w.e.f 1985 at a monthly rent of Rs.1,000/- per month and

he has been paying this rent regularly. The plaintiff thereafter refused to

accept the rent and the same was deposited by the defendant in the Court

of Mr.Kuldeep Narayan, Additional Rent Controller; he had an

electricity connection which is in his name; he also has a telephone

connection in the suit premises. It was reiterated that the parties i.e. the

plaintiff and the defendant had a joint family business and the suit

property was purchased out of the funds of the family business. DW-1

had filed a suit before the Senior Civil Judge for permanent injunction

and it was only thereafter that the present suit has been filed which is a

counter blast to that suit.

16 DW-1 was subjected to a lengthy cross-examination. He admitted

that the ration card at the address of the suit property was issued to him

in the year 1999; the election card is of the year 2004. He did not

remember the number of the telephone or the details of the telephone

installed in the suit property; it was volunteered that earlier the plaintiff

and the defendant shared a common telephone. He admitted that he had

a passport which has been issued to him in the year 1981 which was at

his earlier residential address i.e. 391, Naya Baans, Delhi. He had got

the passport renewed and even in the application seeking renewal, he

had given his residential address as Naya Baans. The passport was

proved as Ex.DW-1/P-1 evidencing that it was renewed in the year 1999

where also the address of the defendant was given as Naya Baans and

not the address of the suit property. DW-1 admitted that the suit

property was purchased from Smt. Kamla Kundra and the property was

in the name of the plaintiff. He admitted that a partition deed had been

executed between Devender Nath Gupta and the plaintiff (Ex.PW-1/4)

substantiating the stand of the plaintiff that the suit property which had

initially been purchased by the two half brothers i.e. the plaintiff and

Devender Nath Gupta was partitioned in the year 1980 and the ground

floor had fallen to the share of Devender Nath Gupta and the first floor

had fallen to the share of the plaintiff. The partnership deed executed

between the plaintiff and the defendant (EX.DW-1/P2) executed on

01.9.1992 indicated the address of the defendant as Naya Baans, Delhi

DW-1 also admitted that he had received legal notice Ex.PW-1/12

which was not replied to by him. He denied the suggestion that he is a

licensee and his license was validly terminated by Ex.PW-1/12. He

admitted that initially there was one electricity connection; he had

applied for a separate connection in the year 1999.

17 To answer these issues, testimonies of PW-1 and PW-2 are also

relevant. PW-1 was the plaintiff. He reiterated that the suit property is in

his name. He proved the documents of title including the sale deed

Ex.PW-1/1 dated 18.12.1974 (duly registered). This property was

purchased in the name of the plaintiff and Devender Nath Gupta by two

separate sale deeds; this property was subsequently partitioned by a

partition deed Ex.PW-1/4 dated 29.02.1980. The assessment order

evidencing that this property was assessed to house tax and was in the

name of the plaintiff was proved as Ex.PW-1/3. PW-1 reiterated that at

the time when he purchased this property only the ground floor and a

portion of the first floor had been built up and consequent to the

partition, the mutation had taken place of the first floor and barsati floor

in favour of DW-1 by the MCD and proved as Ex.PW-1/5. PW-1

constructed the second floor and barsati floor out of his own expenses

and the construction was completed in 1999. The assessment orders

assessing his property to house tax proved as Ex.PW-1/6 to Ex.PW-1/10

evidence that the constructions in the second and barasati floor was done

in 1999; Ex.PW-1/7 reflects that the rateable value (RV) of the property

had gone up w.e.f. 01.4.2000 in view of this additional construction.

PW-1 reiterated that his brother was earlier living in Naya Baans in the

year 1999, he requested him to occupy the second floor as a licensee

without any occupational charges. There was one electricity connection

in the suit property but since the load was not adequate for the three

floors, the defendant got a separate electricity connection in his name

which was in the year 1999.

18 In his cross-examination PW.1 admitted that the defendant was

his brother. He however denied the suggestion that there was a joint

family business although he admitted that both, the plaintiff and the

defendant were carrying on a partnership business. It was reiterated that

plaintiff had shifted to Greater Kailash in 1965 and the defendant in

November, 1999 and before that he was a resident of Naya Baans. He

admitted that he had received a notice from the Court of Additional Rent

Controller to which he had filed objections. This Court has been

informed that these proceedings were initiated by the defendant under

Section 27 of the Delhi Rent Control Act seeking permission of the

Court to deposit rent in Court. The amount so deposited was never

withdrawn by the plaintiff as the stand of the plaintiff all along has been

that the defendant is only a licensee and not a tenant as was sought to be

set up by the defendant by moving this petition under Section 27 of the

DRCA. Admittedly these proceedings were initiated before the Rent

Controller after the notice Ex.PW-1/12 had been served upon the

defendant. Thus the submission of the learned counsel for the plaintiff

that these proceedings were started only to set up a false plea of tenancy

has been established. It is also not in dispute that the suit filed by the

defendant seeking permanent injunction had been disposed of on the

statement made by the plaintiff that he would not dispossess his

brother/defendant without due process of law as the present suit i.e.

CS(OS) No.623/2010 had already been filed by him. These proceedings

also do not in any manner advance the defence of the defendant.

19 Relevant would it be to note that the defence set up by the

defendant was initially twofold. The first defence was that the suit

property had been purchased out of the joint family funds and the

second defence is that he was a tenant in his own right. No issue was

framed on the first defence. Issue was framed only on the defence that

he was a tenant.

20 Admittedly, no documentary evidence filed by the defendant to

substantiate this defence that he was a tenant in the suit property. If he

was paying monthly rent, there would have been some documentary

evidence; even presuming that there was no receipt exchanged between

the brothers, the monthly deduction from the bank statement of the

defendant could have been brought on record. There is no such evidence

either. That apart, the submission of the defendant that he was

occupying the property since 1985 is wholly negatived by his own

admission wherein he has admitted that he was given the ration card of

the suit property in the year 1999; telephone installed in the premises

was also of the year 1999; his passport, renewed sometime in the 1990s,

also reflected his address of Naya Baans, Delhi. So also the partnership

deed (Ex.DW-1/2) executed in September, 1992. Obviously till 1999,

the defendant continued to be a resident of Naya Baans and he came to

occupy the suit property only in the year 1999 and that is why his

election card and telephone connection were of the same period. The

electricity connection in the name of the defendant was also of the year

1999. Thus the submission of the defendant that he is in occupation of

the suit property since 1985 is wholly negatived.

21 Ex.PW-1/12 is the legal notice dated 23.01.2010 which was

admittedly received by the defendant. This has been admitted by him.

He did not file any reply to the said notice. In terms of this notice, the

license of the defendant stood terminated within 15 days from the

receipt of this notice i.e. w.e.f. 12.03.2010.

22 The defendant on all counts having failed to prove that he was a

tenant in the suit property; he is held to be a licensee. A license has

been defined under Section 52 of the Indian Easement Act, 1882. It is a

contract for the use of the property in a certain way and on certain terms

while possession and control of the property remains upon the owner.

This is the concept of a license and what is evident from the evidence

which is adduced before this Court that the plaintiff and the defendant

shared a relationship of licensor and a licensee. A license does not create

any interest in favour of the licensee. It is the gratuitous; a personal

arrangement. It can be terminated at the will of the licensor. This is clear

from Section 60. Revocation may be expressly or impliedly. The

termination notice i.e. Ex.PW-1/12 which was admittedly received by

the defendant had revoked the license giving 15 days time to the

defendant to vacate the suit property i.e. up to 12.3.2010, failing which

the defendant would have to pay the damages at the market rate. License

stood validly revoked. The defendant had failed to vacate the suit

property.

23 Defendant being only a licencee in the suit property and not a

tenant, the plaintiff is entitled to a decree of possession.

24    Both these issues are decided accordingly.



25    The plaintiff has led evidence on this score which is in the nature

of his own testimony (PW-1) and that of his son-in-law (PW-2). Legal

notice Ex.PW-1/12 was proved; defendant did not file any reply to the

notice. In terms of Ex.PW-1/12, the license of the defendant stood

terminated w.e.f. 12.03.2010 and the defendant was directed to vacate

the suit property within fifteen days from its receipt failing which mesne

profits at the rate of Rs.50,000/- per month (as per the prevailing market

rent) was claimed. The son-in-law of the plaintiff (Rajiv Gupta) was

examined as PW-2. His testimony was relevant to substantiate the stand

of the plaintiff on mesne profits. PW-2 was also a resident of E-383,

Greater Kailash-II, New Delhi i.e. a property in the vicinity. He on oath

deposed that similar premises could fetch Rs.50,000/- per month in the

market. This witness was also subject to a lengthy cross-examination but

nothing could discredit this version. Both of them have reiterated that a

property of such like nature could fetch monthly rent of Rs.50,000/- per

month. Admittedly the suit property is built on a 250 square yard plot. It

comprises of two bed rooms, a kitchen and a lounge. In the cross-

examination of PW-1, this stand has been reiterated. PW-1 denied the

suggestion that the prevailing rental value is not Rs.50,000/- per month.

The same suggestion was given to PW-2 who has also denied it. DW-1

has not led any evidence to discredit this version. He did not know what

was the rate of house tax. He also does not know what was the cost of

construction of barsati floor. He also had not idea what would be the

rent of such accommodations. He denied the suggestion that it would be

Rs.50,000/- per month.

26 There is no documentary evidence filed by either parties.

However, this Court need not delve into any further inquiry (in terms of

Order 20 Rule 12 of the Code) in view of the fact that apart from the

oral evidence adduced, this Court also takes judicial notice that the

property is located in the heart of Delhi in a posh locality and the

disputed portion comprises of a large accommodation of three bed

rooms, a kitchen and a lounge. Vice-versa this Court also notes that

trends in real estate have been depressed. The property was constructed

in the year 1999 i.e. almost 10 years ago; it has no lift and access to the

second floor is through the stairs.

27 In MANU/DE3765/2013 Hindustan Paper Corporation Vs. Kanta

Manocha judicial notice had been taken of the market rent prevailing in

the vicinity; it was noted that judicial notice is required to be taken

because of the difficulties in finding evidence of letting of similar

premises, especially residential, as owners as well as tenants of the

residential premises hesitate from disclosing the terms of their

occupation to strangers; inasmuch as the evidence of letting of identical

premises being rarely available. The Supreme Court in (2011)12 SCC

18 Saradamani Kandappan Vs. S. Rajalakshmi had held that though the

third quarter of the 20th Century saw a very slow but steady increase in

prices of immovable property but a drastic change occurred from the

beginning of the last quarter and a galloping increase in prices of

immovable properties has taken place with prices increasing steeply, by

leaps and bounds and judicial notice can be taken thereof. Thus it would

be fair to assess Rs.20,000/- as the rental value of such a property which

is the mesne profits that the defendant is liable to pay to the plaintiff

w.e.f. the date of termination of his license i.e. w.e.f. 12.3.2010 up to the

date of the decree.

28 Accordingly a decree in the sum of Rs.9,40,000/-

(Rs.20,000/-x 47) is passed in favour of the plaintiff and against the

defendant with future damages at the same rate till the defendant vacates

the suit property. In case of default, the plaintiff would be entitled to

interest at the rate of 9% per annum on this outstanding.

Issue No.4

30 The plaintiff has not pressed this issue.

31 It is disposed of accordingly.

Relief

32 The suit of the plaintiff is decreed. He is entitled to a decree of

possession as also the mesne profits calculated at the rate of Rs.20,000/-

and in case the amount is not paid, simple interest at the rate of 9% per

annum on the outstanding. Costs of the suit are also awarded in favour

of the plaintiff. Decree sheet be drawn. File be consigned to the record

room.

INDERMEET KAUR, J FEBRUARY 13, 2015 Sd/A