Ranjeet Singh Kalra vs Paramjit Kaur & Ors.
2017 Latest Caselaw 1920 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 254/2016

%                                                         20th April, 2017
RANJEET SINGH KALRA                                       ..... Appellant
                  Through:               Mr. Deepak Gupta, Mr. Rishi
                                         Manchanda and Mr. Naveen
                                         Grover, Advocates.
                          versus
PARAMJIT KAUR & ORS.                                   ..... Respondents

                 Through:                Mr. K.B. Sachdeva, Advocate
                                         for R-1 to 5.
                                         Ms. Sapna Chauhan, Advocate
                                         for DDA/R-6.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the

appellant/plaintiff/landlord, impugning the concurrent judgments of the

courts below; of the Trial Court dated 26.11.2014 and the First

Appellate Court dated 30.11.2015; by which the appellant's/plaintiff's

suit for possession and damages has been dismissed by holding that the

appellant/plaintiff is not the owner of the suit property and that the suit

property is owned by the Delhi Development Authority (DDA).

2. The facts of the case are that the appellant/plaintiff

pleaded that he let out a shop bearing no. RZ-631, Gali No. 4, Anand

Parbat, New Delhi-110005 to the deceased husband of respondent no.

1/defendant no. 1. The deceased tenant was the father of the other

respondent nos. 2 to 5/defendant nos. 2 to 5. Appellant/plaintiff

pleaded that the suit property was let out at Rs.3,500/- per month in

terms of the lease deed dated 22.2.2006. The rent which was initially

Rs.3,500/- per month was increased to Rs.4,000/- per month with

effect from March, 2006 and another lease deed was executed between

the appellant/plaintiff and the tenant Sh. Balwinder Singh on 1.3.2006.

The appellant/plaintiff pleaded that both the lease deeds were for a

period of eleven months, and the husband of the respondent no.

1/defendant no. 1 Sh. Balwinder Singh failed to pay the rent of the

premises with effect from April, 2006. The appellant/plaintiff

therefore terminated the tenancy by serving a legal notice dated

12.12.2006 and thereafter filed the subject suit for possession. Before

filing of the suit the tenant Sh. Balwinder Singh expired on 1.9.2007

and therefore the suit was filed against the respondents/defendants who

are the legal heirs of Sh. Balwinder Singh being his widow and

children.

3. The written statement filed by the respondents/defendants

was of blanket denial of the averments of the plaint. The

respondents/defendants also denied that the appellant/plaintiff was the

owner of the suit property and it was pleaded that it was the DDA who

was the owner of the suit property. Respondents/defendants had

pleaded that appellant/plaintiff was not the land lord and the deceased

Sh. Balwinder Singh was not the tenant. As per the written statement

filed by the respondents/defendants the appellant/plaintiff used to

"extort" moneys from Sh. Balwinder Singh. The suit was therefore

prayed to be dismissed.

4. After the pleadings were complete the trial court on

2.5.2010 framed the following issues:-

1. Whether the plaintiff is not owner of the suit property? OPD

2. Whether the plaintiff is entitled to decree for recovery of suit amount as prayed for? OPP (Reframed by order dt. 03.11.2014 as issue No. 2A) 2A. Whether the plaintiff is entitled for the decree of possession as prayed? OPD

3. Whether the plaintiff is entitled to the decree of recovery of arrears of rent, if yes at what rate and for what period? OPP

4. Whether the plaintiff is entitled to decree of damages/mesne profit, if yes at what rate and for what period? OPP

5. Whether the plaintiff is entitled to decree of recovery of Rs.10,000/- on account of arrears of electricity charges? OPD

6. Relief.

5. The suit has been dismissed by both the courts below

by holding that the appellant/plaintiff is not the owner of the suit

property. The relevant paras of the judgment of the trial court in this

regards are paras 3.7 to 3.9 and paras 4.2 to 4.9, and the same read as

under:-

"3.7 Sh. Jasvir Singh, Kanoongo Delhi Development Authority examined as DW2, DW2 is a summoned witness and he deposed that Ex.DW2/1 confronted to him is the reply of the Smt. Satnam Kaur filed with the DDA under RTI Act. The witness brought the official copy of said reply available with DDA with respect to land bearing khasra No. 1024/350 mi in which property no. RZ 631, Gali no.4, Ramjas Road, Anand Prabjhat has been constructed was acquired vide award no. 10/94-95 and the possession of land was taken over by the DDA from LAC/Land& Building on 19.06.1998 including structure "as is on where is basis". 3.8. The witness was cross examined by counsel for plaintiff and he was confronted with mark A reply to RTI dated 10.09.2008 filed by the plaintiff. The witness stated that he has no personal knowledge of said reply and he is deposing on the basis of official record. He deposed that he could not tell whether any order/notification pertaining to taking over of possession of the super structure in Anand Parbhat area has been passed subsequent to the award no. 10/94-95. He also deposed that he has no knowledge about any action if taken against Sh. Ranjeet Singh Kalra by DDA with respect to the property no.RZ-631. In his further cross- examination held on 22.05.2014, the witness had brought the original record pertaining to RTI reply.

3.9. The same witness Sh. Jasvir Singh Kanoongo also examined as a witness DW6 on behalf of DDA and tender his evidence Ex.DW6/W1/A. The witness was again subject to cross examination and he was put a question that whether he is aware that the plaintiff was a licensee of Ramjas Foundation with respect to suit property. Witness deposed that there is no record with DDA in this respect. He claimed that the plaintiff is an unauthorized occupant of the suit property. And the land upon which the suit property is situated is a acquired land and the possession of the same has been handed over to DDA by LAC on 19.06.1998 as is where basis with existing structures. The witness deposed that he has no knowledge that any action against plaintiff or any other occupant of Khasra no. 1024/350, Village Sindora, Khurd for a recovery of possession has been carried out. Witness denied that no such action has been taken by the DDA for the recovery of possession from the occupant in khasra no.1024/350 MIN, Village, Sindora, Khurd. It was further denied that no policy has been framed with respect to occupant in khasra no.1024/350, MIN, Village, Sindora, Khurd till date. Witness admitted that as per record there is no proceedings pending for unauthorised construction in the suit property.

            XXXXX                       XXXXX                          XXXXX

    4.2        It is apparent that onus to prove this issue was cast upon the

plaintiff that whether he is entitled for the possession of the suit property. It is the claim of the plaintiff that the plaintiff has let out one shop measuring 8'x17' at the ground floor in property bearing no. RZ-631m, Gali No. 4, Anand Parbat (suit property) to the deceased Sh. Balvinder Singh H/o of defendant No. 1 on the rent. However the is no whisper in the entire plaint, about the basis of claiming the possession of the suit property. However, from the plaints in can be inferred that the plaintiff is claiming the ownership rights over the property. Accordingly, he further claims for arrears of suit & electricity charge & mesne profit etc. 4.3 Not a single piece of document is on record to support the claim of the plaintiff, showing him to the owner of the same. The lease agreement Ex.PW1/5 and PW1/6 file on record are apparently in admissible in evidence being unregistered piece of document & hit by Section 49 of the Indian Registration Act 1917.

4.4 The document Ex.PW1/2 to ExPW1/4 are objected to by the counsel for defendant being beyond pleadings Ex.PW1/2 to Ex.PW1/4 are rent receipts issued by Ranjeet Singh dt. 19.08.2004, 19.10.2004 and 01.03.2004 respectively.

4.5 It is reflected from these rent receipts that they have been executed with respect to the shop in question, however, the signature of the tenant has been appended in Gurmukhi script are not identified by the defendant no. 1. 4.6. The court is of the view that since the plaintiff has filed this suit on the basis of letting out the shop in question in favour of husband of defendant. These rent receipts are not beyond pleading and the same can be admitted in evidence. The plaintiff has also placed on record mark x, apart that no other document have been placed by plaintiff on record. During course of cross examination it is claimed by the plaintiff that the suit property belongs to the plaintiff/PW1 and he has purchased the same from Sh. Parameet Singh in the year 1997. He also claimed that thereafter he visited Ramjas Foundation where he got the lease deed of suit property mutated in his name. Though it is a matter of great wonder that no such mutated lease deed in favor of plaintiff is put forth in evidence. 4.7 Witnesses initially denied in his cross examination that the suit property belongs to the DDA and further deposed that the property in vicinity have been acquired by DDA on as is where is basis and the matter is still subjudice against DDA. In the later on part cross examination of the witness admitted that with the suit property has been acquired by DDA in the year 1998. And he further admitted that thereafter the acquisition that the defendants have been inducted as a tenant with respect to the shop in question.

4.8 The witness was also confronted with mark X which is reply to RTI application filed by the plaintiff himself dt. 10.09.2008 and in the said reply it is informed to the plaintiff that the revenue staff of office reported that no any other notification/office order to the effect to take over the superstructure constructed on the said land in Anand Parbat Industrial Area has been received in this office. It clearly shows that the plaintiff is well aware of the acquisition of the property in question and his assertion and

averment with respect to the claim of ownership of the suit property is not correct. It is also to be noted that the plaintiff has no document to show his right title and interest in the suit property.

4.9. It is apparent that from the material available on record the plaintiff has miserably failed to prove that the he has/had any ownership right over the property in question and accordingly, he is entitled for the possession of the same. DDA has also produce on record the notification dated 13.09.1959 and thereafter on 1998 where the DDA has acquired the area of Sindora Khurd where property in question is situated admittedly. Ex.DW1/6 is acquisition proceedings with respect to the Sindora Khurd area which has been placed on record by the defendant no. 6 DDA in support of their contention." (emphasis added)

6. A reading of the aforesaid paras shows that it has been

held that the appellant/plaintiff is not the owner of the suit property and

the same belonged to DDA. It has been held by the trial court that the

appellant/plaintiff has not filed any documents to show that the

appellant/plaintiff is the owner. The trial court also held that the lease

deeds Ex.PW1/5 and Ex.PW1/6 are inadmissible in evidence because

these lease deeds are unregistered documents and are therefore hit by

Section 49 of the Registration Act, 1908. It is also held that the rent

receipts signed by the tenant Sh. Balwinder Singh and proved as

Ex.PW1/2 to Ex.PW1/4 and Ex.PW1/7 could not be looked into

because there is no mention of the rent receipts in the pleadings and

hence these documents were beyond pleadings. Trial court also held

that the signatures of the tenant Sh. Balwinder Singh signed in

Gurmukhi were not identified by his widow respondent no.

1/defendant no. 1 and hence these rent receipts could not be looked

into.

7. The first appellate court has affirmed the judgment of the

trial court by holding that the appellant/plaintiff is not the owner of the

suit property and it is the DDA which is the owner of the suit property.

The first appellate court refused to give the benefit of Section 116 of

the Indian Evidence Act, 1872 to the appellant/plaintiff. The first

appellate Court in this regard has made the following observations in

paras 24 to 29 of its judgment and the same read as under:-

"24. Applying the afore-discussed proposition of law to the facts of the present case, it is clear that the plaintiff filed the suit for possession, recovery of arrears of rent, electricity charges alongwith mesne profit/damages against the defendants claiming to have let out the suit shop to the husband of defendant no.1 and father of defendants nos.2 to 5 namely, S. Balwinder Singh at a monthly rent of Rs.3500/- on the strength of one lease deed dated 01.03.2006 Ex.PW-1/6. The said lease deed Ex.PW-1/6 was executed pursuant to an agreement dated 22.02.2006 Ex.PW-1/5. It is nowhere mentioned either in the agreement Ex.PW-1/5 or in lease deed Ex.PW-1/6 when the tenancy in favour of S. Balwinder Singh was incepted for the first time. As per the covenants in Ex.PW-1/5 and Ex.PW-1/6 S. Balwinder Singh was in possession of the suit shop "since last five years as tenant", but it is not mentioned under whose landlordship was S. Balwinder Singh a tenant. The plaintiff also claimed the ownership rights in the suit shop in both Ex.PW-1/5 and Ex.PW-1/6. While deposing as PW-1 before the Ld. Trial Court, the plaintiff also claimed to have purchased the suit property from one Shri Paramjit Singh in the year 1997. He deposed with regard to the mutation of the suit property in his name and also claimed to be in possession of sale documents, but the fact remained that no such title documents could be placed on record by the plaintiff.

25. A perusal of the written statement and affidavit Ex.D-1 filed by the defendants reveal that the relationship of landlord and tenant between parties to the suit or between the plaintiff and the husband of defendant no.1 was nowhere admitted. It was only during cross-examination of DW-1 that she stated her husband to be a tenant of the plaintiff in the suit shop. It is also clear from the perusal of the written statement as well as the testimony of DW-1 that the defendants did not claim the title in the suit shop in themselves or in any third person. The defendants denied the payment of

rent to the plaintiff either by the husband of defendant no.1 or by themselves rather they termed the payment of money by the husband of defendant no.1 to the plaintiff as "extortion". As far as the aforesaid admission on the part of DW-1 in her cross-examination being a tenant of the plaintiff in the suit shop is concerned, in view of the afore-discussed proposition of law, the same is not fatal or detrimental to the case of defendants. Even in Sheela & Ors (supra) case also the defendant admitted the plaintiffs as his landlord and also having paid rent to the plaintiffs, but it was not considered sufficient by the Apex Court to doubt the bonafide of the tenant while denying the title of the landlord. In the present case also, there is no clear and unequivocal denial of the title of the landlord of the plaintiff by the defendants to amount a disclaimer, entailing forfeiture of tenancy right and incurring a liability to be evicted.

26. In the given circumstances, in my considered opinion, the denial of title by the defendants was a bonafide act, calling upon the plaintiff to prove his ownership so as to protect the defendants. By no stretch of imagination, the same can be said to have disclaimed the tenancy and, therefore, the bar contemplated under Section 116 of the Evidence Act would not be applicable to the facts of the case.

27. Another noteworthy point as culled out from the record of the Ld.Trial Court is that during the proceedings, the DDA was impleaded as one of the defendants, who filed written statement, claiming to be the owner of the land measuring 11 Bighas 10 Biswa of Khasra no. 1024/350 min of Village Sadhora Khurd, Delhi, over which the suit shop was situated. Shri Jasvir Singh, Kanoongo /DDA was also examined as DW-2 vide affidavit Ex.D6W1/A, who also relied upon the document Ex.D6W1/1 i.e. kabza Karwahi dated 19.06.1998. He also deposed in categorically terms that the land upon which the suit shop was situated was an acquired land and possession of the same was handed over to the DDA by the LAC department on 19.06.1998 on "as is where is basis" with existing structure.

28. The claim of the DDA being the exclusive owner of the aforementioned land over which the suit shop was situated was not disputed at all by the plaintiff. The fact that the DDA had acquired the aforesaid land alongwith all its superstructure built over on 19.06.1998 is, therefore, stands established. As per the property tax receipt Ex.PW-1/5 relied upon by the plaintiff, he had constructed 3600 sq.ft covered area over ground floor and first floor, rateable value of which was fixed at Rs.97,920/-per annum w.e.f 01.04.1998. It goes to imply that prior to taking over the possession of all the superstructure on the afore- mentioned land by the DDA on 19.06.1998, the plaintiff had also raised some construction over the said land when the entire superstructure was taken over by the DDA including the one raised by the plaintiff. There is no single evidence led by the plaintiff before the Ld. Trial Court to show that he raised structure over the acquired land subsequent to taking over the possession of the land by the DDA. Admittedly, the DDA had not acquired the land from the plaintiff.

29. In these circumstances, even if the stand taken by defendants no.1 to 5 for disputing the title of the plaintiff is kept aside, in my considered opinion, once the DDA enters into the scene and claims ownership of the

land over which the suit shop was situated, it was incumbent upon the plaintiff to lead positive evidence to establish his ownership qua the suit shop to show his "competence" to transfer a right to enjoy the property in terms of Section 105 of TPA. I am not in agreement with the contentions of counsel for the plaintiff that the suit was simply a suit between a landlord and tenant, wherein the plaintiff was not supposed to prove his title qua the ownership of the suit property. In the attending circumstances, it was a bounded duty cast upon the plaintiff to prove his ownership of the suit property by leading positive and convincing evidence, which he miserably failed to do." (emphasis added)

8. The following substantial questions of law are framed for

disposal of the present second appeal:-

(i) Whether the courts below have not committed a clear cut

illegality and perversity in holding that the lease deeds Ex.PW1/5 and

Ex.PW1/6 could not be looked into because they were not registered

documents inasmuch as only a lease deed of one year and above had to

be registered as per Section 107 of the Transfer of Property Act, 1882

and Section 17 (1)(d) of the Registration Act, 1908.

(ii) Whether the courts below have not committed a complete

illegality and perversity in denying the benefit of Section 116 of the

Indian Evidence Act, 1872 to the appellant/plaintiff when such Section

clearly denies the right to a tenant, or persons who claim through the

tenant to deny the ownership of the landlord of the tenanted premises?

As regards this question, it is noted that respondent

no.1/defendant no.1 in the cross-examination admitted the

appellant/plaintiff to be the landlord of the suit premises, and as noted

by the appellate court itself in para 25 of its judgment which is

reproduced above.

(iii) Whether the courts below have not committed an illegality and

perversity in holding that DDA is the owner of the suit property

inasmuch as even after acquisition proceedings are complete,

ownership of a property does not pass unless physical possession is

taken of the property in terms of Section 16 of the Land Acquisition

Act, 1894 and no proof was filed by the DDA of taking physical

possession, and in fact the witness of the DDA DW-2 only talked of

possession taken on "as is where is basis"?

OR

Whether the courts below have not committed a clear illegality and

perversity because so far as the present suit is concerned the issue is of

taking possession by the appellant/plaintiff against the

respondents/defendants and the appellant/plaintiff was not seeking

possession from DDA?

9. All the aforesaid questions of law have to be answered in

favour of the appellant/plaintiff and against the

respondents/defendants. The reasons are given hereinafter but with a

caveat that the discussion given hereinafter will not operate as res

judicata between the appellant/plaintiff and the DDA as regards title to

the suit property or of DDA's right to take possession of the suit

property from the appellant/plaintiff.

10. It is seen that the appellant/plaintiff in his examination in

chief filed his evidence by way of affidavit and duly proved the two

lease deeds Ex.PW1/5 dated 22.2.2006 and Ex.PW1/6 dated 1.3.2006.

Appellant/plaintiff duly identified the signatures of Sh. Balwinder

Singh in his deposition. There is no cross-examination of the

appellant/plaintiff/PW1 that the signatures on the lease deeds are not of

the tenant Sh. Balwinder Singh. Also, the appellant/plaintiff proved on

record the rent receipts signed by Sh. Balwinder Singh exhibited as

Ex.PW1/2 to Ex.PW1/4 and Ex.PW1/7 for identifying the signatures of

Sh. Balwinder Singh and the trial court erred in discarding these

receipts merely because the respondent no.1/defendant no.1

conveniently did not identify the signatures of her late husband Sh.

Balwinder Singh on those rent receipts. A convenient denial of

identification of her husband's signatures by the respondent

no.1/defendant no.1 cannot take away the factum with respect to proof

of the rent receipts executed by Sh. Balwinder Singh in favour of the

appellant/plaintiff.

11. I may also note that the written statement is completely

vague as to how the appellant/plaintiff is not the landlord because the

written statement does not state that if not through appellant/plaintiff

then how Sh. Balwinder Singh came in possession of the suit premises.

Obviously, the expression "extort" used in the written statement by the

respondents/defendants with respect to collection of rent/monies by the

appellant/plaintiff shows that in fact money i.e rent was paid by late

Sh. Balwinder Singh to the appellant/plaintiff. Therefore, it is held that

the appellant/plaintiff is undoubtedly a landlord of the suit premises.

12. In law, once a person is a landlord of the suit premises, he

has not to prove further his ownership in order to claim possession of

tenanted premises from a tenant. Not only a landlord is entitled to take

back possession of the premises given on rent, in fact the tenant and his

legal heirs cannot dispute the title and ownership of the landlord as per

Section 116 of the Indian Evidence Act and the first appellate court

without any proper reasoning and by improper reasoning has illegally

refused to give benefit of the principle of estoppel under Section 116 of

the Indian Evidence Act to the appellant/plaintiff. Accordingly, the

respondents/defendants were/are in fact estopped from denying the

ownership/title of the appellant/plaintiff of the suit premises.

13. I would also like to at this stage also note that the

premises may no doubt have been acquired under an Award by the

DDA, but ownership of the premises would only vest with the

government if possession is taken under Section 16 of the Land

Acquisition Act. The premises are situated in one of the oldest area of

Delhi i.e Anand Parbat and this entire area is built up area, and merely

because the witness of the DDA DW-2 deposed that possession was

taken on "as is where is basis" cannot mean that the actual physical

possession was taken as required by Section 16 of the Land

Acquisition Act. In fact, the respondent no.1/defendant no.1 in her

evidence by way of affidavit as DW-1 admitted that the property was

acquired in 1998 but the tenancy commenced thereafter meaning

thereby possession of the suit premises was with the appellant/plaintiff

in spite of the Award being passed with respect to the suit premises. In

any case, respondents/defendants, and as already stated above, have no

locus standi to question the ownership of the appellant/plaintiff in view

of Section 116 of the Indian Evidence Act.

14. Learned counsel for the appellant/plaintiff agrees that

appellant/plaintiff will be satisfied with being granted damages at the

admitted rate of rent pendente lite and future till handing over physical

vacant possession of the shop, and therefore, appellant/plaintiff will

also be entitled to damages at the rate of Rs.4000/- per month pendente

lite and till physical possession of the suit premises is received by the

appellant/plaintiff from the respondents/defendants. Considering the

dishonesty of the defendants, I also deem it fit that the

respondents/defendants will be liable to pay interest at 10% per annum

simple on the damages payable every month and till the damages are

actually paid to the appellant/plaintiff.

15. In view of the above discussion, since all the substantial

questions of law are answered in favour of the appellant/plaintiff and

against the respondents/defendants, this Regular Second Appeal is

allowed. In the facts of the present case, the appeal is allowed with

costs of Rs. 25,000/- and which costs shall be paid within a period of

six weeks from today by the respondents/defendants to the

appellant/plaintiff.

APRIL 20, 2017                               VALMIKI J. MEHTA, J
AK/ib