Jatinder Pal Singh vs Harinder Singh Jaggi & Anr.
2018 Latest Caselaw 6053 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No. 344/2006.

%                                                  5th October, 2018

JATINDER PAL SINGH
                                                              ..... Appellant
                              Through:      Mr. Amit Bhatia and Mr.
                                            Simranjeet Singh, Advocates.
                              versus

HARINDER SINGH JAGGI & ANR.
                                                               ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the Trial Court dated 24.01.2006 by which

the trial court has dismissed the suit for possession, damages and

injunction filed by the appellant/plaintiff against the

respondents/defendants. Respondent no.1/Defendant no. 1 was the

tenant inducted by the appellant/plaintiff in the suit property being the

ground floor of the property bearing No. 53/6, Desh Bandhu Gupta

Road, Karol Bagh, New Delhi (hereinafter 'suit property'). The

respondent no.2/defendant no.2 is pleaded to be the sub-tenant of the

respondent no.1/defendant no.1.

2. The only issue for consideration in the suit, as well as in

the present appeal, was whether the suit filed by the appellant/plaintiff

was barred under Section 50 of the Delhi Rent Control Act, 1958.

Admittedly, the respondent no.1/defendant no.1 was inducted as a

tenant at a monthly rent of Rs. 260/- per month and tus having the

protection of the Delhi Rent Control Act. The case of the

appellant/plaintiff, however, was that the respondent no.1/defendant

no.1 was not entitled to protection of the Delhi Rent Control Act,

inasmuch as the respondent no.1/defendant no.1 did not remain a

tenant because in proceedings instituted in an earlier suit, the reply

filed by the respondent no.1/defendant no.1 to a contempt application

filed by the appellant/plaintiff under Order XXXIX Rule 2(A) CPC,

the respondent no.1/defendant no.1 had denied the ownership of the

appellant/plaintiff to the suit property. It is pleaded that on denial by a

tenant of the ownership of the appellant/plaintiff/landlord of a

tenanted property, the tenancy comes to an end, and a civil suit for

possession in the civil court is maintainable.

3. The issue is no longer res integra because a Division

Bench of this Court in the case of Naeem Ahmed v. Yash Pal

Malhotra (Deceased) Through Lr's and Another, 188 (2012)DLT

579 has held that on the tenant denying the ownership of the landlord

of a tenanted premises, the tenancy of a tenant is legally brought to an

end. The relevant paras of this judgment are paras 12 and 13 and

these paras read as under:-

"12. As aforesaid, in Kurella's case (supra) and Abdulla Bin Ali's case (supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent no.1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent no.1. Consequently, the respondent no.1 had repudiated and renounced the relationship of landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent no.1 had become unauthorized and that of a trespasser.

13. In view of the above we hold that the ratio of the decision in S. Makhan Singh case (supra) does not warrant reconsideration. We are, therefore, of the considered opinion that in the facts and circumstances of the case the suit was cognizable by the civil court and the impugned order was erroneous, inasmuch as it held that the same was barred by provisions of Section 50(4) of the Delhi Rent Control Act. The appeal is allowed accordingly.

Consequently, the impugned order is set aside. The case is remanded back to the Trial Court with directions to readmit the suit under its original number in the register of civil suits and to proceed to determine the suit from the stage when the impugned order was passed in accordance with law. A copy of this order and judgment along with Trial Court record be transmitted to the court of the concerned District Judge with directions that the matter to be posted before the concerned civil judge for further proceedings."

4. Therefore, if it is proved by the appellant/plaintiff that the

respondent no.1/defendant no.1 had denied the ownership title of the

appellant/plaintiff, thus, the tenancy of the respondent no.1/defendant

no.1 will come to an end. It is not disputed by the respondent

no.1/defendant no.1 in his written statement, filed in the present suit,

of him being a tenant of the appellant/plaintiff as regards to the suit

property.

5. During the course of his evidence, the appellant/plaintiff

has proved the reply filed by the respondent no.1/defendant no.1 to the

application under Order XXXIX Rule 2(A) CPC as Ex.PW1/E. Para 7

of this reply filed by the respondent/defendant categorically denies the

ownership of the appellant/plaintiff of the suit property. This para 7 of

the reply of the respondent no.1/defendant no.1 to the application filed

by the appellant/plaintiff under Order XXXIX Rule 2(A) CPC in the

earlier suit proceedings reads as under:-

"7. That even otherwise, as mentioned in para 1 of the written statement filed by the answering defendants, it is further submitted that the plaintiff is neither the owner nor the landlord of the suit premises let-out to the answering defendant and the plaintiff has no right in the suit property. It is submitted that the plaintiff is prolonging the proceedings of the suit for the ulterior motives."

6. Therefore, it is seen that the respondent no.1/defendant

no.1 has indeed denied the title of the appellant/plaintiff of the suit

property while continuing to claim tenancy of the said property, and

therefore, applying the ratio of the Division Bench Judgment of this

Court in the case of Naeem Ahmed (supra), it is held that the tenancy

of the respondent no.1/defendant no.1 came to an end on the

respondent no.1/defendant no.1 denying the ownership title of the

appellant/plaintiff of the suit property. Once the tenancy comes to an

end, a suit can be filed in a civil court for possession. Further, once

there is no relationship of landlord and tenant, then, Section 50 of the

Delhi Rent Control Act is not a bar to filing of a civil suit for

possession.

7. The next aspect to be examined is regarding the quantum

of mesne profits which would be liable to be paid by the respondent

no.1/defendant no.1 to the appellant/plaintiff. In this regard, counsel

for the appellant/plaintiff has rightly placed reliance upon a Legal

Notice issued by the respondent no. 1/defendant no.1 to the respondent

no. 2/defendant no. 2 dated 26.08.2003. This Legal Notice dated

26.08.2003 has been proved and exhibited as Ex.PW3/1 by the

appellant/plaintiff by summoning the Advocate, Sh. Naveen

Chaudhary, who had given his reply to the Legal Notice dated

26.08.2003 issued by the respondent no.1/defendant no.1 to the

respondent no.2/defendant no.2. This reply has been proved and

exhibited as Ex.PW3/2. A reading of the documents Ex.PW3/1 and

Ex.PW3/2 shows that the respondent no.1/defendant no.1, through his

lawyer, had stated that respondent no.2/defendant no.2 was a licencee

at a monthly licence fee of Rs. 28,000/- per month. The respondent

no.2/defendant no.2 had, however, contended that he was not a

licencee but was a tenant inducted at a rent of Rs. 28,000/- per month.

In any case, the monthly charges for use and occupation of the suit

premises are admittedly Rs. 28,000/- per month. In view of the

aforesaid discussion, in my opinion it is proved that the monthly

charges payable as mesne profits for the suit premises would be Rs.

28,000/- per month.

8. At this stage, this Court would like to note that

respondent no.2/defendant no.2 has filed a written statement in the suit

that he should be deleted from the array of the defendants in the suit

because he has already handed over possession of the suit premises to

the respondent no.1/defendant no.1.

9. In view of the aforesaid discussion, this appeal is

allowed. Impugned judgment of the Trial Court dated 24.01.2006 is

set aside. Suit of the appellant/plaintiff is decreed for possession with

respect to portion of the ground floor of property bearing No. 53/6,

Desh Bandhu Gupta Road, Karol Bagh, New Delhi and as shown in

red colour in the site plan filed by the appellant/plaintiff alongwith

plaint and list of documents dated 29.03.2003. The appellant/plaintiff

is also held entitled to mesne profits at Rs. 28, 000/- per month from

three years prior to filing of the suit till the date of filing of the suit,

and at the same rate of Rs. 28,000/- pendente lite and future till the

respondent no.1/defendant no. 1 vacates the suit premises and hands

over actual vacant physical possession of the suit premises to the

appellant/plaintiff. The appellant/plaintiff is also entitled to interest @

9% per annum from the end of the month for which mesne profits are

payable till payment as interest is payable on mesne profits in view of

Section 2(12) CPC. Parties are left to bear their own costs. Decree

sheet be prepared.

OCTOBER 05, 2018/ib                           VALMIKI J. MEHTA, J