Delhi District Court
Lakshman Singh vs Ahmad Shaid Qureshi on 20 May, 2025
CS DJ No.1607/17
IN THE COURT OF MR. JITEN MEHRA,
CENTRAL DISTRICT, DISTRICT JUDGE -10:
TIS HAZARI COURTS: DELHI.
CNR NO.:- DLCT01-006531-2017
SUIT NO.:- 1607/2017
IN THE MATTER OF :-
Sh. Lakshman Singh
S/o Late Sh. Kishan Lal
R/o 2062/2, Basti Peepal Wali,
Sadar Bazar, Delhi-110006
......... Plaintiff
VERSUS
Ahmad Shaid Qureshi
R/o Phase F-1, Plot No. 170,
Shahzada Bagh, Inder Lok,
Delhi.
ALSO AT: 2075/76(2101),
Basti Peepal Wali, Sadar Bazar,
Delhi-110006.
....... Defendant
SUIT FOR EJECTMENT/POSSESSION AND RECOVERY OF
OCCUPIER AND USER CHARGES
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Date of Institution of the Suit : 29.04.2017
Date on which Judgment was reserved : 17.08.2024
Date of Judgment : 20.05.2025
::- J U D G M E N T -::
1. The plaintiff has filed the suit for ejectment/possession and
recovery of occupier and user charges with respect to property bearing
no.2075-76, Basti Peepal Wali, Sadar Bazar, Delhi-110006
(hereinafter referred to as 'suit property').
PLAINTIFF'S VERSION AS PER THE PLAINT:
2. In the plaint, it is averred that plaintiff is the 'owner/co-owner'
of the suit property, which has been bequeathed to the plaintiff by his
mother Late Smt. Ganga Devi vide Will dated 29.07.1966. A letter of
administration has also been granted with respect to the said will dated
29.07.1966 vide order dated 29.09.1980 in Probate Case No.
167/1977.
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3. In the year 1981, plaintiff had rented/licensed two rooms of
the suit property for the baithak purpose for usage as rest rooms in the
ground floor to the defendant. On 10.07.2014, when plaintiff went to
the said property to recover rent/license fee, he came to know that the
defendant has misused and converted the said residential property into
a commercial property. It is further averred that the defendant also
removed the two walls that were parting the two different properties
and also closed the main door of the said property permanently by
constructing a concrete wall from inside and combined the said
property with another property bearing no.2101, ground floor, Sadar
Nala Road, Delhi-06 and created two different openings, without
obtaining his permission. As per the plaintiff a civil suit pertaining to
the illegal construction was also pending adjudication before the Court
of Sh. V. K. Gautam, Ld. Senior Civil Judge, Tis Hazari. The plaintiff
also relied upon the the cross-examination of the defendant dated
17.03.2016 recorded before the Court of Sh. V. K. Jha, Ld. Civil
Judge, Tis Hazari.
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4. The plaintiff has also let out the first floor of the property to
one of his tenant for residential purpose, who is residing therein with
his family members, but due to the removal of the said walls by the
defendant, damage and cracks have been caused in the said property,
which may even result in the property collapsing as the two walls
were bearing the load of the first floor of the property. The plaintiff
has brought the same to the notice of the defendant on numerous
occasions, but all the pleas of the plaintiff have fallen on deaf ears.
5. The plaintiff has also filed a suit for recovery of arrears of rent
of Rs. 54,000/- against the defendant, bearing Suit No. 15/2015 titled
as 'Lakshman Singh vs Ahmad Shahid Qureshi', however the same
was dismissed by the Court of Sh. Vinay Kumar Jha, Ld. Civil Judge
on 12.05.2016 holding that there was no relationship of landlord and
tenant between the plaintiff and the defendant. The defendant also
claimed in the said suit that he was the owner of the property as he
had paid an amount of Rs. 3,00,000/- as sale consideration, which he
was unable to prove. The Ld. Court held that status of the defendant to
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be that of a licensee only. The defendant never challenged the said
order dated 12.05.2016 and hence the same has attained finality.
6. In the aforementioned Suit No. 15/2015, the defendant filed
an application under Order 16 rule 1 (3) read with section 151 of the
Code of Civil Procedure, 1908 (CPC) as he wanted to prove his case
that he was the owner of the suit property by producing two more
witnesses, which was objected to by the plaintiff on the grounds that
the defendant was trying to fill up the lacunae in his evidence and the
same was also dismissed by the Court vide order dated 05.04.2016.
7. The plaintiff had revoked the license on 12.05.2016, i.e. the
day of the judgment in C.S. No. 15/2015 was passed and sent a notice
dated 10.09.2016 to the defendant thereby terminating and revoking
the license to which the defendant sent reply dated 10.10.2016,
wherein, he claimed himself to be owner of the property and refused
to vacate the same. As per the plaintiff, the said question has already
been decided between the parties in Suit no. 15/2015 that the
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defendant was merely a licencee and hence cannot be re-agitated by
the defendant.
8. It is further averred that the defendant is putting to good use
the knowledge of the fact that a property dispute was pending between
the family members of the plaintiff. However, it is submitted that all
their issues pertaining to the said property were finally decided by the
Court of Dr. Kamini Lau, Ld. ADJ, Central, Tis Hazari Courts, Delhi
vide order dated 22.07.2016 and clarified the status of the probate and
Will dated 29.07.1996 and 29.09.1980.
9. It is further submitted that despite having been served a notice
for revocation and termination of license, the defendant has been
continuing to remain in illegal possession of the suit property and
thus, the status of the defendant in the suit property from 24.05.2016
would be that of an unauthorized occupant/trespasser and he is liable
to pay user charges/damages of Rs.6,000/- per month and as per
property valuation report dated 30.03.2017, the market rent of the
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property has been fixed at Rs.8,000/-. Hence the present suit seeking
a decree of ejectment in favour of the plaintiff and mesne profits @
Rs. 6,000/- per month from 12.05.2016 till March, 2017 and thereafter
@ Rs. 8,000/- alongwith interest @ 18% p.a. Further the plaintiff has
prayed for damages @ Rs. 25,000/- on account of mental agony and
litigation expenses and harassment.
Defendant's version as per the Written Statement
10. The defendant raised the preliminary objections that the
plaintiff had sold the shops which are in possession of the defendant
for which the defendant had paid a sum of Rs. 3,00,000/- being the
sale consideration for both the shops in the year 1981. The sale
documents were not executed by the plaintiff on the pretext that some
dispute was going on in his family and he will execute the same after
some time. Since then the defendant is in uninterrupted possession of
the shops being owner of the same.
11. The defendant received a notice from Sh. Triloki Pandit,
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Advocate on behalf of his clients, Sh. Sunder Lal and Smt. Maya Devi
claiming themselves to be co-owners of the suit property, in which it
was mentioned that a preliminary decree dated 07.08.1979 had been
passed by the Court of Sh. V. K. Jain, the then Ld. Civil Judge, Delhi
and also claimed rent of Rs. 6,000/- per month in the said notice. The
plaintiff has suppressed the said facts in his plaint.
12. As per the defendant, it has been revealed to him that the
alleged probate granted in favour of the plaintiff was the result of
concealment of facts, which has been revoked. The defendant asserted
himself to be the owner of the suit property and reiterated that he had
paid the sale consideration to the plaintiff, however the sale deed in
his favour had not been executed by the plaintiff on the excuse that
some family dispute was going on.
13. The defendant further objected that the plaint has not been
verified as prescribed under Order VI rule 15 CPC and was liable to
be dismissed.
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14. In the reply on merits, the defendant denied that the plaintiff
was either the owner or co-owner of the suit property and submitted
that the plaintiff was himself not aware whether he was the owner or
the co-owner of the same. The defendant denied that the suit property
had been been bequeathed to the plaintiff by his mother Late Smt.
Ganga Devi vide Will dated 29.07.1966.The defendant reiterated that
he had received a legal notice issued on behalf of Sh. Sunder Lal and
Smt. Maya Devi claiming themselves to be co-owners and stating that
a preliminary decree dated 07.08.1979 had been passed by the Court
of Sh. V.K. Jain, Ld. Civil Judge, Delhi. He further asserted that the
alleged probate has also been revoked as the same had been obtained
by fraud.
15. The defendant denied that the plaintiff had rented/licensed
two rooms for the baithak purposes in the year 1981 and reiterated that
the same had been sold to him by the plaintiff for a consideration of
Rs. 3 lakhs.
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16. The defendant denied the entire version of the plaintiff as
stated in the plaint or that he had been putting it to commercial use or
removed any walls from the same or closed any entrance. He stated
that he had purchased the adjoining property bearing no. 2101 and
purchased the suit property from the plaintiff for the purpose of
expanding his business and removed the wall between the same in the
presence of the plaintiff. The defendant did not deny the fact of the
plaintiff having filed a suit before the Court of Sh. V.K. Gautam,
Senior Civil Judge, Delhi and stated the same to be a false case.
17. The defendant further denied for want of knowledge whether
the occupants on the first floor of the suit property were tenants and
submitted that the walls were removed by him in the year 1981 itself,
at the time of purchasing the property from the plaintiff. He deposed
that the building in question was more than 60 years old and made of
mud and mortar and was not property maintained/repaired and hence,
on account of the same cracks may have occurred. He denied that any
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damage had been caused by him.
18. The defendant also did not deny that the plaintiff had filed a
suit for recovery of arrears of rent of Rs. 54,000/- against the
defendant, bearing Suit No. 15/2015 titled as 'Lakshman Singh vs
Ahmad Shahid Qureshi' which was dismissed, however stated the
same to be a false case. He did not specifically deny the averments
with respect to the fact that as per the order dated 12.05.2016, it was
held that there was no relationship of landlord or tenant between the
plaintiff and the defendant. The defendant also did not deny the
dismissal of his application under Order 16 rule 1 (3) CPC seeking to
lead evidence vide order dated 05.04.2016.
19. The defendant denied that plaintiff had revoked his license on
12.05.2016 and submitted that he was not a licencee of the plaintiff.
He admitted to receiving the notice dated 10.09.2016 and stated that
he replied to the same. The defendant further denied that he was not
maintaining the property
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20. With respect to the judgment passed by the Court of
Ms.Kamini Lau, the then Ld. ADJ, the defendant submitted that it is
clear from that judgment that the litigation was pending since long and
that in fact, this is the case of the defendant that the plaintiff had not
executed the sale documents on the ground that the litigation among
family members was pending.
21. The defendant sought for dismissal of the plaint with heavy
cost.
Replication by the plaintiff
22. In his replication, the plaintiff stated that the claim of the
defendant as per his written statement was barred by the principle of
res judicata under Explanation VIII of section 11 CPC. He further
relied upon the maxims of nemo debet bis vexari, Interest Reipublicae
Ut Sit Finis Litium and Res judicata pro veritate accipitur. It was
submitted that the position of the defendant as a licencee had been
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decided by the Court of Sh. V.K. Jha, Ld. Senior Civil Judge, Tis
Hazari Courts in Civil Suit No. 15/2015 vide order dated 12.05.2016
and the same could not be re-agitated again by him.
23. the plaintiff further submitted that the defendant had not
placed on record a single document to substantiate his claim over the
property, i.e. any title document or any agreement to sell. He further
submitted that on the one hand, the defendant claimed to be the owner
of the suit property as the same had been sold to him by the plaintiff
and in the same breath also submitted that the sale deed for the same
had not been executed in his favour. The plaintiff submitted that he
had placed on record the Will dated 29.07.1966 executed by him
mother and also the probate of the same. The plaintiff denied that the
suit property was commercial in nature and stated that all the
properties in the vicinity, i.e. Basti Peepal wali were residential
properties and relied on a notice issued by the MCD in the name of the
plaintiff's mother for payment of house property tax.
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24. The plaintiff reaffirmed and reiterated the contents of the
plaint and denied the averments of the written statement.
Issues framed
25. On the basis of the pleadings on record, the following issues
were framed vide order dated 18.12.2017 by the ld. Predecessor of the
Court:
(i) Whether the plaintiff is entitled to decree of possession, as prayed
for ? OPP
(ii) Whether the plaintiff is entitled to user charges @ Rs.6,000/- p.m
from 12.05.2016 till March 2017 @ Rs.8,000/- per month till actual
realisation? OPP
(iii) Whether plaintiff is entitled to mental agony/litigation
expenses/harassment charges of Rs.25,000/-? OPP
(iv) Whether plaintiff has come to the court with clean hands? OPD
(v) Whether plaint has been verified as prescribed u/O 6 Rule 15
CPC? OPD
(vi) Relief.
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Evidence adduced by the plaintiff
26. The plaintiff Sh. Lakshman Singh examined himself as PW-1
and tendered his evidence by way of affidavit, Ex. PW-1/A on
07.03.2018 in which the contents of the plaint were reiterated.
27. PW-1 relied upon the following documents in support of his
case:
a) Certified copy of the order dated 29.09.1980 passed in Probate
Case no. 167/1977 as Ex. PW-1/1.
b) Certified copy of the cross-examination of the defendant dated
17.03.2016 recorded before the Court of Sh. V.K. Jha, Ld. Civil
Judge, Tis Hazari as Ex. PW-1/2.
c) Certified copy of the order dated 12.05.2016 passed in C.S. No.
15/2015 titled as Lakshman vs Ahmad Shaid Qureshi as Ex. PW-1/3.
d) Certified copy of the petition filed before Sh. V. K. Jha, Ld.
Senior Civil Judge, Tis Hazari as Ex. PW-1/3X.
e) Certified copy of the written statement filed in the above petition
as Ex. PW-1/3Y.
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f) Certified copy of the order dated 05.04.2016 passed by Sh. Vijay
Kumar Jha, Ld. Civil Judge as Ex. PW-1/4.
g) Notice dated 10.09.2016 along with postal receipts as Ex. PW-1/5.
h) Reply dated 03.10.2016 of the defendant as Ex. PW-1/6.
I) Certified copy of the judgment dated 22.07.2016 as Ex. PW-1/7.
j) Valuation and survey report of the Civil Engineer dated
30.03.2017 as Ex. PW-1/8. (Objected as to the mode of proof)
k) Site plan of the property as Ex. PW-1/9. (Objected as to the mode
of proof)
l) Plaint along with affidavit as Ex. PW-1/10. (Objected as to the
mode of proof)
28. The plaintiff was cross-examined on 07.03.2018 during which
he deposed that he was a co-owner of the suit property. He further
stated that he did not remember whether he had mentioned before the
Court of Sh. V.K. Jha, Ld. Civil Judge, whether he was a co-owner
or not. He further deposed that he did not remember whether in the
said suit he had also pleaded about Smt. Ganga Devi having
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executed a will in his favour and stated that he had pleaded that a
probate had been granted in his favour. Thereafter witness was
confronted with Ex. PW-1/3X and he admitted that the said fact was
not mentioned in the said petition. He further volunteered to state
that he had told this fact to his counsel and had also filed the copy of
the order of the probate case in the said suit. He further deposed that
he was 10th pass and was not a graduate. Thereafter he stated that he
did not come to know about the fact that he had not mentioned the
will and probate in the said plaint and asked his counsel about the
same. He deposed that the order of probate was never challenged and
volunteered to state that an application for revocation was filed. He
further deposed that he had relied on an order passed by Dr. Kamini
Lau, Ld. ADJ and explained that the proceedings were an appeal
filed by one Sh. Sunder Lal against an order passed by Sh. Anubhav
Jain, Ld. Civil Judge in a suit titled as Kuntesh Kumari vs Kanhaiya
Lal bearing No. 178/1978. The said suit had been filed before the Ld.
Civil Judge, with respect to the property no. 2062/2, Basti Peepal
Wali, Sadar Bazaar, Delhi -06 and 2086-87, Basti Peepal Wali, Sadar
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Bazar, Delhi - 06. He stated that the present suit property i.e. 2075-
2076 was not the subject matter of the dispute before the Court of
Sh. Anubhav Jain, Ld. Civil Judge. He stated that by the time he
filed the case in the court of Sh. V. K. Jha Ld. Civil Judge, by then a
final decree had been passed by Sh. Anubhav Jain, Ld. Civil Judge.
He stated that he had not mentioned in the pleadings filed before Sh.
V. K. Jha, Ld. Civil Judge that a finald ecree had been passed by the
Court of Sh. Anubhav Jain, Ld. Civil Judge. He stated that he had
filed a copy of the will in the present case on the basis of which he
was claiming ownership of the property. The witness was then asked
to go through the judicial record and show the copy of the will. He
deposed that he not filed the will, however the order of probate of the
Court had been filed. He further deposed that he had filed the copy
of the order of the probate court before the Court of Sh. V. . Jha, Ld.
Civil Judge. Thereafter, the further cross-examination of the witness
was deferred as the defendant wished to summon the record of the
court of Sh. V. K. Jha, Ld. Civil Judge.
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29. PW-1 was then recalled for his further cross-examination on
09.04.2018 during which he was confronted with the summoned
record of the Suit bearing No. 15.2015 titled as Lakshman Singh vs
Ahmad Said Qureshi and asked to show the order of probate filed by
him in the said petition. He stated that he had filed the order dated
29.09.1980 in the said suit as well in the present suit and further
deposed that he had filed the probate order in Suit No. 15.2015 on
13.01.2016. The court observation was also recorded that the order
dated 13.01.2016 did not record that any documents were filed,
however it is recorded that reply was filed along with some
documents. PW-1 further deposed that he did not know whether any
application was filed for placing on record the said document and
volunteered to state that his lawyer would know about the same. He
stated that the revocation was filed in the year 2011, which was
dismissed in the year 2018. He admitted that the revocation was
pending before the Court of Sh. V.K. Jha, Ld. Civil Judge. He
deposed that he did not remember whether the factum of revocation
was mentioned in the pleadings in the suit filed before the Court of
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Sh. V. K. Jha, Ld. Civil Judge. He further deposed that he did not file
any title deeds issuing the title in favour of Ganga Devi and
volunteered to state that he had filed the copy of the order passed by
Dr. Kamini Lau. He further deposed that the sale deed was in the
name of his mother Late Smt. Ganga Devi and his brother namely
Sh. Kanhaiya Lal. He stated that he did not remember how many
suits were pending between him and his family members in the year
1981. He stated that in the year 1981 there was no case pending with
respect to the suit property in the year 1981 between himself and his
brother. He deposed that he did not remember whether any suit was
pending in respect of the suit property in the Court of Ms. Chhavi
Kapoor titled as Suit no. 74/2014 titled as Kanhaiya Lal vs Sunder
Lal and Ors. Thereafter, the further cross-examination of the plaintiff
was deferred.
30. The plaintiff was re-called for his further cross-examination
on 17.04.2018 during which he deposed that Smt. Chanderkala was
his bhabhi, who had filed one case against him, but did not
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remember when. He stated that he could neither admit nor deny
whether a suit was filed by the said Smt. Chanderkala. He admitted
that the title of the said suit was Chanderkala vs Kanhaiya Lal,
however he did not know the nature of the said suit. He deposed that
the suit was filed in regards to properties bearing no. 2062/2, 2086-
2087, 2075-76. He further stated that the preliminary decree of
partition was passed in the year 1979 in the said suit by Sh. V.K.
Jain, Ld. Sub Judge, as he then was. He stated that he did not
remember whether he had disclosed about the pendency of the suit
filed before the Court of Ms. Chavi Kapoor in the suit suit filed by
him which was pending before the Court of Sh. V. K. Jha. He stated
that one case had been filed by Sunder Lal, which is pending
adjudication before the Court of Ms. Pragati in which he was the
party and volunteered to state that the said suit had been filed after
the present suit. He stated that he did not know why Sunder Lal had
filed the suit and volunteered to state that he had moved an
application stating that the suit was not maintainable, and did not
know whether he had filed the reply of the said suit or not.
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31. He further deposed that he could neither admit nor deny
whether the suit filed before the Court of Ms. Pragati, Ld. Civil
Judge was for arrears of rent. He stated that his daughter Ms. Monika
Singhal was the counsel in the suit filed before the Court of Ms.
Pragati, Ld. Civil Judge. He deposed that he had claimed the
defendant to be a licencee in respect of the suit property in the
present suit. He deposed that he had given the suit property to the
defendant as a tenant, which was not proved before the Court and
stated that it had been given to the defendant as a rest room. He
stated that he had given two adjoining rooms to the defendant, which
were separated by a wall. The witness was then questioned as to
whether the rooms were having a separate door, at which stage an
observation was made by the Court that " The witness is giving
evasive reply instead of answering the question. He has pointed out
that the door is same as the on in which is attached to the Judges
chamber" He then stated that the room was having only one door and
volunteered to state that there was a door in between both the rooms.
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He further stated that no rent deed was got prepared and again stated
that he did not remember. He further deposed that he did not have
any document and could not tell how long he had let out the
property. He also could not state whether the property was let out for
a few years or in perpetuity. He stated that he had not got prepared
any document by way of which the rent agreement was extended. He
stated that he did not file any rent receipt which could show that he
was taking rent from the defendant.
32. He further deposed that he knew the defendant as he used to
live at Sarai Khalil in Sadar Bazqar. He admitted that the defendant
was running a shop adjacent to the suit property and volunteered to
state that the property belonged to Sansar Chand, bearing no.2101 as
per his recollection. He denied the suggestion that the suit property
were not rooms but were shops. He also denied the suggestion that
the door of the shop used to open in the gali where there were other
shops. He deposed that he could not state with certainty whether
photograph Mark X belonged to the suit property. He stated that the
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photograph Ex. PW-1/DX1 resembled the suit property. He stated
that he had gone to the shop of the defendant many times, but could
not identify the shop of the defendant from the photographs Mark Y,
Y1 or Y2. He deposed that he could not identify the person shown in
the photograph Y2 at point A. He stated that the defendant was
dealing in tin/iron sheets, but did not know about the area in which
the shop of the defendant was located. He denied the suggestion that
the back side wall of the suit property was along with the shop of the
defendant and volunteered to state that it was on the side. He stated
that he did not remember where the defendant used to reside in the
year 1981 and could not neither admit nor deny whether the
defendant was residing in Inder Lok in the year 1981. He stated that
he did not know when the defendant used to open or close his shop.
He stated that he never resided in the year 1981 in the suit property
and used to reside there prior to 1981. He deposed that he did not
know whether the defendant was facing shortage of space and
therefore he had taken the suit property on rent. He denied the
suggestion that the suit property was not let out for use as a rest
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room. He also denied the suggestion that the suit property was
purchased by the defendant in the year 1981 for a sum of Rs. 3Lakhs.
He further denied the suggestion that the amount was given in the
presence of two witnesses. He also denied the suggestion that the
wall in between the shop of the defendant and the suit property was
demolished in his presence at the time of the alleged purchase. He
also denied the suggestion that he had executed any receipt for the
sum of Rs. 3 lakhs. He denied the suggestion that an assurance was
given to the defendant that he would provide him with the title deed
later on as litigation was pending between the family members in
respect to the suit property. He deposed that he did not know as to
when he had gone to collect the rent from the defendant, and again
stated that he had gone to collect rent in the year 2014. He denied the
suggestion that the defendant had not given any rent as he had
purchased the suit property. He further stated that he had not filed
any suit prior to the year 2015 against the defendant claiming rent.
Thereafter, the further cross-examination of the plaintiff was
deferred.
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33. The plaintiff was recalled for his cross-examination on
20.07.2018, during which he stated that he had gone to demand rent
on 10.07.2014 at around 5-6 p.m., and he had gone to demand rent
and not licence fees. He deposed that he never went to 2101 after the
same. He stated that he had gone to the factory of the defendant
situated in Tri Nagar, and again stated Inder Lok, after 10.07.2014
for demanding rent but did not remember the exact date. He deposed
that he did not remember after how many months of 10.07.2014, he
had gone to the factory of the defendant. He deposed that the number
of the defendant's factory was 170. He denied the suggestion that the
defendant's factory was not situated at Inder Lok. He stated that he
had gone only once at the factory of the defendant after 10.07.2014.
He deposed that he had filed the present suit in January/February of
2015. He stated that he did not know the section under which there
was a prohibition of conversion from residential to commercial under
the DMC Act, 1957. He deposed that he did not know the section
under DMC Act, under which permission was required to remove the
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walls of different properties. He deposed that he did not know under
which section/bye law/ rule of the Delhi Master Plan, 2021 the
properties had been combined. He stated that since 2000, he had
visited the suit property 6-7. He stated that he had gone for the first
time in December, 2000 and further volunteered to state that he had
been visiting the property in question since the time of its purchase
by his mother and had lastly gone in July, 2014 but did not
remember in which year he had visited in between. He further
deposed that he had not stated that the defendant has made two
openings in the portion in his possession and volunteered to state that
the defendant has closed his gate which was opening in the gali and
opened the gate towards his shop by breaking the wall. He denied the
suggestion that the said wall was broken by the defendant since the
date he had purchased the property. The plaintiff admitted that he
was claiming the ownership of the of the portion in possession of the
defendant on the basis of the will of Late Smt. Ganga Devi dated
29.07.1966. He deposed that on 29.09.1980, Sh. G.C. Jain, the then
Ld. District & Sessions Judge had granted probate of the said will.
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He deposed that the revocation application was decided on
31.01.2018. He denied the suggestion that he had no right, title or
interest in the year 1981 euther on the basis of the will or by virtue of
title deeds. He denied the suggestion that he had taken money from
the defendant and since he had no title, therefore he had not executed
any documents in favour of the defendant. He deposed that property
no. 2075-76 was the subject matter of the will executed by Late Smt.
Ganga Devi and nothing had been mentioned in the will regarding
the manner in which the property was to be divided.
34. He further stated that the final decree in the suit for partition,
in which the preliminary decree was passed in the year 1979, had
been passed by the Court of Sh. Anubhav Jain, Ld. Civil Judge. He
denied the suggestion that the property bearing No. 2075-2076 was
part of the final decree. He further stated that he did not know when
the property no. 2075-2076 was constructed and volunteered to state
that his mother had purchased it as it is in the year 1958 from Sh.
Banarsi Dass. He deposed that the width of the wall was more than 9
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inches and admitted that the roof of the property was on wooden
planks/kadi and brick stone slabs. He stated that he did not know
whether the said property had pillars or not. He stated that he did
now know which walls were bearing the load of the wooden
planks/kadi. He denied the suggestion that the wall which had been
removed by the defendant was not a load bearing wall and
volunteered to state that he had affixed iron gutters. The witness was
again shown the photograph Ex. PW-1/DX1 and stated that the door
depicted in the same was of the property in question. He stated that
he could not state whether the walls as shown in the photograph Ex.
PW-1/DX1 were load bearing walls as the photograph was not clear.
He denied the suggestion that he was intentionally not giving the
correct answer to conceal facts. The further cross-examination of the
witness was deferred.
35. The plaintiff was recalled for his further cross-examination on
18.08.2018 during which he deposed that the site plan filed by him
had been prepared on his instructions and he had taken the
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draughtsman to the site. He stated that the size of one of the rooms
was 10 feet x 9 feet, with height being 10 feet. He admitted that the
property bearing no. 2075-76 was not constructed in his presence. He
deposed that the sale deed through which his mother derived the title
was also in the name of his brother. He further stated that he visited
the shop of the defendant in July, 2014 and at that he also met him
inside the shop. He admitted that tin sheets were stored inside the
shop. He admitted that at point X in Ex. PW-1/9, the property of
other persons had been shown. The entry of the X portion was from
Sadar Nala Road. He denied the suggestion that there were shops in
the portion shown as X and volunteered to state that there were
stores. He deposed that he did not know whether shops were running
in the portion shown as X and volunteered to state that most of them
were being used as godown and remained closed. He denied the
suggestion that the entire area around the suit property was a
commercial area and used as such. He stated that he never had a shop
in the suit property and volunteered to state that his shop was in
property no. 2121. He stated that the defendant had closed the main
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door with concrete in July, 2014. He denied the suggestion that the
defendant had closed the door in the year 1981 itself, when the same
was purchased by him. He admitted that there was a door in the suit
property towards the outside. He denied the suggestion that he was
falsely stating the same was closed from inside in July, 2014. He
admitted that prior to 1981, there was no ingress or outgress in the
suit property from Sadar Nala Road. He deposed that the distance
between the shop of the defendant and the suit property was about 2-
3 minutes. He stated that he did not know how many shops were
there between the gali connecting the Sadar Nala Road and the suit
property. He denied the suggestion that the walking distance of the
defendant's shop no. 2101 and the suit property was of 15-20
minutes. Thereafter the further cross-examination of the plaintiff was
deferred.
36. The plaintiff was recalled for his further cross-examination on
21.08.2018 during which he stated that he had not filed any rent
agreement or rent receipts with respect to the first floor of the
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property. He denied the suggestion that he had not filed the same as
the first floor of the property had not been rented out. He admitted
that he did not file any photographs to show that his property was
damaged as stated by him in para no.6 of his affidavit. He denied the
suggestion that they were not filed as there was no damage or cracks
in the property. He stated that he did not remember the rate of rent
which he had claimed in the suit filed by him before the Court of Sh.
V.K. Jha, Ld. Civil Judge or the names of the witnesses examined by
him. He denied the suggestion that the Court of Sh. V.K. Jha did not
declare the defendant as a licensee. He denied the suggestion that the
defendant was neither in illegal possession no an unauthorized
occupant/trespasser. He deposed that he could not state the section of
law under which a matter once decided could not be re-agitated. He
deposed that he had never told the defendant with respect to his
family disputes. He denied the suggestion that when he sold the
property to the defendant, he disclosed to him that there was a family
dispute in respect of the suit property and volunteered to state that he
never sold the property to the defendant and denied the suggestion
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otherwise. He deposed that he did not give any notice to the
defendant either in the year 1981 or thereafter claiming the defendant
to be a licencee, and volunteered to state that notice of revocation
was issued and the order was also passed in his favour. He deposed
that he did not file any document to show that the suit property was
being used by the defendant for residential purpose. He denied the
suggestion the the defendant was not an unauthorised
occupant/trespasser from 24.05.2016 onwards. He stated that he had
not filed any document to show that the adjoining property was
fetching a rent of Rs. 6,000/- per month and denied the suggestion
that no property in the vicinity commanded a rent of Rs. 6,000/- per
month. He deposed that the valuer had visited the suit property and
denied the suggestion that the valuation report Ex. PW-1/A was
false, forged and fabricated at his instance. He stated that the valuer
made enquiries from the adjoining shops, but he could not name the
shopkeepers from whom enquiry was made. He stated that no site
plan was prepared by the valuer. He deposed that he had not filed
any document except the report of the valuer to prove the mesne
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profits of Rs. 8,000/- after April, 2017. He denied the suggestion that
from April, 2017 a sum of Rs. 8,000/- could be fetched in the locality
in which the suit property was situated. He further denied the
suggestions that the defendant was not liable to pay any damages or
interest to him or hand over the possession to him. He also denied
the suggestion that the defendant was not liable to pay Rs. 25,000/-
as litigation expenses/harassment. Thereafter the plaintiff was
discharged as a witness.
37. Sh. Satish Kumar, Judicial Assistant, Record Room Civil, Tis
Hazari Courts was summoned as witness PW-2 to produce the
summoned record, i.e. case file of suit bearing no. 15/2015, titled as
Lakshman Singh vs Ahmed Sahid Qureshi, decided on 12.05.2016,
Goshwara No. 49/CD decided by the Court of Sh. Vinay Kumar Jha,
Ld. Civil Judge, who stated that the certified copy Ex. PW-1/2, Ex.
PW-1/3, Ex. PW-1/3X, Ex. PW-1/3Y and Ex. PW-1/4 were the same
as per the record summoned.
38. Sh. Ghanshyam, Junior Judicial Assistant, Record Room
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Sessions, Tis Hazari Court was summoned as witness PW-3 to
produce the summoned record, i.e. record of the case file of suit
bearing RCA No. 87/2015 titled as Sunder Lal vs Kuntesh Kumari,
bearing Goshwara no. 139 D decided by the court of Dr. Kamini
Lau, Ld. ADJ, Tis Hazari Courts, decided on 22.07.2017 and stated
that the certified copy Ex.PW-1/7 was the correct certified copy of
the judgment dated 22.07.2016.
39. Thereafter, the plaintiff closed his evidence on 28.11.2018.
Evidence adduced by the Defendant
40. The defendant filed his evidence by way of affidavit and was
granted opportunity to lead his evidence on 14.02.2019, 16.4.2019,
22.07.2019, 23.09.2014 and 06.12.2019. However, the defendant
took repeated adjournments and his right to lead evidence was closed
vide order dated 06.12.2019. The defendant also moved an
application under Order 26 rule 2 CPC seeking the appointment of a
local commissioner for the purpose of recording of his evidence,
however the same was dismissed vide order dated 25.02.2020
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observing that the right of the defendant to lead evidence was also
closed vide order dated 06.12.2020.
ARGUMENTS OF THE PARTIES
41. Ld. counsel for the plaintiff Dr. Monika Singhal has argued
that the defendant has not been able to prove any alleged transaction
of Rs.3 Lakhs and hence, the status of the defendant in the suit
no.15/15 titled as Lakshman Singh v. Ahmed Shahid Qureshi was
held that be of licensee only, hence, the claim of the defendant is
barred by the principle of Res-judicata. It is further contended that
the defendant has not placed a single title document to substantiate
his right over the property nor has he filed any agreement to sell etc.
Further, it is the admitted case that the defendant got the possession
of the suit property from the plaintiff and that he is misusing the
partition suit pending between the family members of the plaintiff. It
is vehemently contended that the defendant is engaged in frivolous
litigation against the plaintiff and relied upon the cases titled as H.S.
Bedi v. National Highway Authority of India, 2016 (I) AD Delhi 661
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and Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470. The
Ld. Counsel for plaintiff also relied upon the law laid down in the
following cases in support of his contention that the defendant, being
the licensor, cannot be allowed to challenge the ownership of the
plaintiff:
1. Biswanath Agarwalla Vs. Sabitri Bera & Ors., arising out of SLP
(Civil) No.10194 of 2007 and 15058 of 2007
2. Vidhyandhar Vs. Manikrao & Anr, AIR 1999 SC 1441
3. G. Balaji Vs. Saravanaswamy, CRP (PD) No.2182 of 2019 &
CMP No.2182 of 2019.
42. Ld. Counsel for the defendant Sh. T. R. Sharma has argued
that the evidence by way of affidavit of the plaintiff is not as per the
rules of the Hon'ble High Court of Delhi as the father's name of the
deponent has not been mentioned. Further, the evidence by way of
affidavit is false as the plaintiff has mentioned his age on 20.1.2015
as about 67 years and in the affidavit filed on 26.2.2018 i.e. after 3
years as 69, which is not possible. Further in the verification, the
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place of execution of the affidavit has not been mentioned. The
signatures on both the places at deponent are different and hence the
affidavit in evidence is not to be read and the suit is liable to be
dismissed as there is no evidence of the plaintiff. Further, the
plaintiff has mentioned various sections of the DMC Act and
deposed that there is prohibition of converting the residential
property into commercial, and that the removal of the wall is illegal
as per Delhi Master Plan, 2021. The said affidavit has been prepared
by the counsel without the instructions of the plaintiff. In the
plaintiff's cross-examination dated 20.7.2018, he has stated that " I
do not know the sec. under which there is a prohibition of conversion
from residential to commercial under the MCD act.1957. I do not
know the section under which permission is required under DMC
act." contrary to that in the affidavit the sections have been
mentioned specifically. This clearly shows that the affidavit has been
prepared by the counsel himself. He has further argued that the
defendant was having a big shop with him and the question of taking
shops for the purpose baithak does not arise as all. The shops were
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purchased by the defendant, which were adjacent to his own shops
owing to paucity of accommodation. Further, the plaintiff has
claimed himself to be the 'owner/co-owner' of the property bearing
no. 2075-2076 and is not sure about his status own status with
respect to the property. Further, the plaintiff has not filed any title
document in his favour. The plaintiff claim his rights only through
the alleged an Will executed by Smt. Ganga Devi on 29.7.1996. The
plaintiff has not filed and proved any title document in favour of
Smt. Ganga Devi or said Will as required under the provisions of
Indian Evidence Act. The plaintiff has stated in his cross
examination dated 07.03.2018 at page 4 that " I have filed the copy
of the WILL in the present suit on the basis of which I am claiming
my ownership. At this state witness is asked to go through the
judicial file and show the copy of the WILL. At this stage the
witness submits that WILL has not been filed " The witness has
further admitted in his cross examination on 18.8.22018 at first page
at fifth line from the bottom that " The sale deed through which my
mother had derived title was also in the name of my Brother " The
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witness/plaintiff has stated in cross-examination dated 7.3.2018 at
page 3 " The order of probate was never challenged. Vol. an
application for revocation was filed." The plaintiff in his evidence in
examination in chief in Para 15 that " The issue pertaining to the said
property were finally decided by the Court of Dr. Kamini Lau ADJ
Central District Tis Hazari Court, Delhi vide order dt. 22.7.2016. "
Thus it is apparently clear that the plaintiff was not the owner of the
property or having any right to sell the same and hence stated to the
defendant that due to dispute is going on in the family and he will
execute the documents after some time. The defendant had paid a
sum of Rs. 3,00,000/- (Rs. Three Lakhs Only) on the assurance of
the plaintiff and the possession of the shops was taken after making
the payment. However the receipt of Rs. 3,00,000/- (Rupees Three
Lakhs) was not traceable and lost and hence the defendant could not
produced the same. The provisions of Sec. 53A of T.P.Act provide
that if the possession has been taken and any amount is paid then the
rights has been created. The defendant could not have filed the
present suit as the matters were pending and as per plaintiff which
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was finally decided on 22.7.2016. The plaintiff had already filed the
suit against the defendant claiming the defendant to be a tenant on
21.1.2015 which was dismissed by the court of Shri. V.K.Jhan the
then C.J. Delhi on 12.5.2016. It is relevant to submit that the
defendant was cross examine by Ms. Monika, counsel for the
plaintiff/Lakshman Singh (who is the daughter of plaintiff ). In the
entire cross examination the counsel for the plaintiff i.e. Ms. Monika
had not even given the suggestion that no receipt of Rs. 3,00,000/-
(Rs.Three Lac) was executed. Thus the presumption will be made
that the receipt has been given by the plaintiff.
43. He has further argued that the plaintiff had stated in his
examination in chief, that the probate has been granted in his favour,
but when the witness was allowed to go through the Ex.Pw1/3X and
after going through the same he said that it is not mentioned in the
plaint. The witness stated "Vol. I had told my counsel as well as I
had filed the copy of order of probate case in the said suit. " at page 3
of cross examination dt. 7.3.2018. Further the question was put to the
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witness "Q. Whether after reading the plaint which was filed before
the court of Sh. V.K.Jha Ld. C.J. did you come to know that the fact
of WILL and Probate has not been mentioned in the said plaint? "
The witness in clever way replied that " technically I did not come to
know about this fact". The witness further replied that he had asked
his counsel as to why he has not incorporate the fact of Will and
probate in the said plaint. (The counsel was his daughter who cross
examine the defendant in that suit.) Due to evasive reply in clever
way the Ld. predecessor court had given its observation at page 2 of
cross examination dt.17.4.2018 that "The witness is giving evasive
reply instead of answering the question. " The Ld. predecessor court
has further mentioned that "Witness is warned to give replies on the
question being asked rather than giving answers which suits his
case." Thereafter the defendant had summoned the case file of the
case suit no. 15/2015, titled as Lakshman Singh vs. Ahmad Saeed
decided by the court of Shri. V.K.Jha the then C.J. and RCA No.
87/2015 titled as Sunder Lal vs Kuntesh Kumari decided by the court
of Ms. Kamini Lau the then ADJ. which was allowed on 7.3.2018.
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44. It is further argued that in the evidence by way of affidavit of
the plaintiff, he has stated that the two rooms had rented/licensed in
the year 1981. The Ld. Court of Shri. V.K.Jha had given its finding
vide judgment dt. 12.5.2016 "that the defendant is not tenant in the
suit property" at page 17 of the judgment and dismissed the case of
the plaintiff. The plaintiff has not filed any appeal or other
proceedings against the said judgment, to prove that the defendant is
tenant. However the plaintiff has been claiming now that the
defendant is licensee. It is relevant to submit that the present issue
was not in that suit. The issue was " whether the plaintiff is entitled to
recovery of arrears of rent amounting to Rs. 54,000/- as prayed for? "
The Ld. Court of Shri. V.K.Jha C.J. had to decide the said issue and
thus had to decide that whether there is any relation of the land lord
and tenant between the plaintiff and defendant. Thus finding on this
point that the there is no relation of land lord or tenant were matter in
issue but it was not in issue as to whether the defendant was a
licencee. Further, the said observation given by the Court is Obiter
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Dictum and is not binding on the defendant in the present suit.
However this observation has been given saying that the defendant
had got possession through plaintiff. However this observation has
been only on the fact that the defendant had mentioned that he was
put in possession by the plaintiff after receiving a sum of Rs.
3,00,000/- on account of having paid the sale consideration. Thus on
this observation the plaintiff cannot claim the defendant as licensee.
It is relevant even other wise the Ld. Court of Shri. V.K.Jha C.J.
Delhi had not given the finding that the defendant is licensee.
However the present suit has been filed claiming the defendant is a
trespasser as the licence has been revoked. It has been mentioned in
the present suit that the plaintiff had gone for recovery of
rental/license fees, that is contrary to the contents of the said suit. It
is an admitted case of the plaintiff that his case for recovery of rent
has been dismissed and it has been decided finally that there is no
relation of land-lord and tenant between the plaintiff and defendant.
45. Further in respect of alleged contention that the defendant was
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licensee is also not acceptable. A person to whom once claimed a
tenant cannot be again claimed as licensee. It is admitted case that
since 1981 the plaintiff had not gone to the shops, till 2014. It is clear
that the plaintiff who was well aware that he had sold the suit
property so never gone there. However when the daughter of the
plaintiff Ms. Monika became advocate then at her instance and
persuasion the plaintiff started to weave the web to harass the
defendant and other persons. The plaintiff filed the other suit against
the defendant in collusion with MCD and further another suit
pending in the court of Shri.Parnav Joshi A.S.C.J Delhi. Thus the
present suit has been filed falsely to harass the defendant.
46. It is case of the plaintiff that he has filed the present suit
claiming the defendant was licensee. The plaintiff has claimed that
the alleged license has been revoked on 12.5.2016 vide notice dated
10.9.2016. The alleged revocation has no force. Once the plaintiff
has not proved that the defendant is a licensee, then the alleged
notice is not on the date of alleged revocation. A person cannot be
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tenant as well as licensee simultaneously. The plaintiff further
mentioned in his affidavit that the defendant has been residing in the
suit premises as licensee from the year 1981 but has filed the
previous suit claiming the defendant as tenant which was dismissed.
The plaintiff's claim that the first floor of the property was given to
a tenant is also not proved as he did not file any document to prove
the same or examine the said tenant. Thus the plaintiff falsely tried
to show that he is owner of the property.
47. The plaintiff has also failed to prove any claim for damages in
his favour. The plaintiff was also questioned in cross examination
that whether he had filed any photograph(s) or any other document to
show that the damage has been caused to the property. Thus the
plaintiff has failed to prove that any damage has been caused to the
property as claimed by him. The photographs of the property were
shown to the plaintiff but intentionally he stated in cross-examination
dated 17.4.2018 at page 3 in 11th line from the top that " I cannot say
with certainty whether the photo graph mark X belongs to the suit
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CS DJ No.1607/17
property. The photograph Ex.Pw1/Dx-1 resembles the suit property."
He further stated that "I also cannot identify the person shown in the
photograph Y2 encircled in point A". The plaintiff also intentionally
did not identify the person in the photograph, who was the son of the
defendant.
48. The plaintiff's claim of mesne profits/damages is also not
proved as he did not examine any witness to prove the said fact that
in the vicinity such rent can be fetched. Even otherwise the
defendant is not trespasser or unauthorized occupant and thus not
liable to pay any mesne profits/damages. The plaintiff also did not
examine the alleged author of the valuation report Ram Singh to
prove the same. In fact the said report is false one and has been
prepared at the instance of the plaintiff.
49. The defendant has been enjoying the uninterrupted and
peaceful possession since 1981 to 2015 shows that the defendant has
rights in the property. He has further argued that the plaintiff himself
admits that litigations were pending regarding title of the suit
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property in 1981 and the same was finally decided in 2016 and
further the suit filed by his brother Sunder Lal remained pending
thereafter. Thus, the plaintiff had no right to execute any documents
to sell the property and only handed over the possession after taking
a sum of Rs. 3,00,000/- as the sale consideration and assured to
execute the relevant title documents as and when the litigation would
be settled. The plaintiff did not execute any title documents, but filed
the previous false suit claiming the defendant as tenant. When the
said suit was dismissed further filed the present false suit claiming
the defendant as a trespasser. He argued that the plaintiff was
required to prove his own case and cannot stand on the weakness of
the defendant.
50. He has further argued that in probate proceedings, the
ownership of the testator is not considered and only the fact of the
the execution of the valid execution of the Will is taken into account.
Thus, a person claiming his rights to a property through a Will, will
still have to prove the ownership/title of the testator. Thus grant of
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CS DJ No.1607/17
probate or letter of Administration does not confer the title of the
property. He relied on the decision of the Hon'ble High Court of
Delhi in D.D.A. vs Dr. K.K. Srivastava, 09(2004)DLT849:
2004(73)DRJ60 in this regards. Hence, the plaintiff has failed to
prove any of the issues in this case and hence the suit of the plaintiff
is liable to be dismissed with heavy cost.
51. I have heard the arguments advanced by the ld. Counsels for
the parties and perused the record and shall now proceed to decide
the issues framed in the present suit.
Issue wise findings and reasons:
Issues no.4 and 5
52. I shall first decide issues no.4 and 5, which are reproduced below
for the sake of convenience:
(iv) Whether plaintiff has come to the court with clean hands? OPD
(v) Whether plaint has been verified as prescribed u/O 6 Rule 15
CPC? OPD
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53. The onus on the above-mentioned issues was on the defendant,
who has not led any evidence to prove the above-mentioned issue.
Further, the perusal of the plaint filed by the plaintiff reveals that the
plaintiff has verified the same at the foot of the plaint and also
affixed his signatures. The plaintiff has further stated that the para
no.1 to 23 of the plaint are based on his personal knowledge.
Although the verification does not mention the date and the same has
been left blank as "Verified at Delhi, on this _____ 2017", the same
is a minor omissions. Hence, I find that the plaint appears to have
been verified as per the provisions of Order VI rule 15 CPC.
Accordingly, the issues no. 4 and 5 are decided against the
defendant.
Issues no. 1-3
54. I shall next decide issues no. 1-3, which are reproduced below
for the sake of convenience:
i) Whether the plaintiff is entitled to decree of possession, as prayed
for ? OPP
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CS DJ No.1607/17
(ii) Whether the plaintiff is entitled to user charges @ Rs.6,000/- p.m
from 12.05.2016 till March 2017 @ Rs.8,000/- per month till actual
realisation? OPP
(iii) Whether plaintiff is entitled to mental agony/litigation
expenses/harassment charges of Rs.25,000/-? OPP
55. The plaintiff has filed the present suit seeking a decree of
possession in his favour with respect to the suit property, i.e. 2075-
2076, Basti Peepal Wali, Sadar bazaar, Delhi - 110006, along with
mesne profits and damages.
56. The plaintiff has claimed himself to be the owner/co-owner of
the suit property, which has been bequeathed to him vide will dated
29.07.1966 executed by his mother Late Smt. Ganga Devi. The
plaintiff did not place on record the said will dated 29.07.1966 and
filed only the Order dated 29.09.1990 passed by the Court of Sh. G.
C. Jain, Ld. District Judge, Delhi as Ex. PW-1/1, whereby the
petition under section 276 of the Indian Succession Act, 1925 filed
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CS DJ No.1607/17
by the plaintiff and his brother Sh. Sohan Lal was allowed and a
letter of administration was issued in their favour with respect to the
aforementioned will.
57. Although it is settled law that mere probate of a will does not
prove the ownership of the property bequeathed under the said will
as a probate only confirms a will as having been validly executed. In
the present case, the defendant himself has not raised any challenge
to the plaintiff's claim as owner/co-owner of the suit property, rather
the defendant has traced his own title to the suit property from the
plaintiff himself claiming that the same has been purchased by him
for a consideration of Rs. 3 lakhs in the year 1981, however the sale
documents have not been executed by the plaintiff on the pretext that
some dispute was going on in his family and he would execute the
same after some time. Hence, the defendant himself admitted the
plaintiff as being a co-owner of the suit property. Therefore, in such
circumstances, the plaintiff is not required to prove the same as per
section 53 of the Bhartiya Sakshya Adhiniyam, 2023 (section 58 of
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CS DJ No.1607/17
the erstwhile Indian Evidence Act, 1872).
58. Further, coming to the question whether the plaintiff is the
owner or a co-owner in the present suit, during his cross-examination
dated 09.04.2018, the plaintiff has admitted that the " Sale deed was
in the name of my mother late Smt. Ganga Devi and my brother
namely Kanhaiya Lal." Hence, it appears that the plaintiff is not the
sole owner of the property and is a co-owner in the present suit.
However, it does not affect the right of the plaintiff to recover
possession as it is settled law that even a co-sharer can maintain a
suit for ejectment.
59. Coming now to the question of whether the status of the
defendant as a licencee stands already determined by the application
of the principles of res judicata as per the judgment passed by the
Court of Sh. V.K. Jha, Ld. Civil Judge, Tis Hazari Courts in Suit no.
15/2015 titled as 'Lakshman Singh vs Ahmad Sahid Qureshi', Ex.
PW-1/3. The plaintiff has proved the certified copy plaint/petition in
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CS DJ No.1607/17
the said case as Ex. PW-1/3X. The certified copy of the written
statement has been proved as Ex. PW-1/3Y. The certified copy of the
cross-examination of the defendant dated 17.03.2016 recorded before
the Court of Sh. V.K. Jha, Ld. Civil Judge, Tis Hazari has been
proved as Ex. PW-1/2.
60. The aforementioned suit bearing CS No. 15/2015 titled as
'Lakshman Singh vs Ahmad Sahid Qureshi', Ex. PW-1/3X, was filed
by the present plaintiff against the defendant before the Ld. Senior
Civil Judge, Central District, Tis Hazari Courts seeking arrears of
rent of Rs. 54,000/-, claiming that the plaintiff was the 'owner and
landlord' of the suit property and the defendant was a tenant in
respect of two rooms in the suit property, which had been let out to
him at a monthly rent of Rs. 1500/- per month, which had been
increased from Rs. 300/- over time. The other pleadings in the
present suit with respect to the defendant having altered the suit
property by removing two walls and closing a door were also
reiterated. The plaintiff claimed arrears of rent from 01.04.2011 till
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CS DJ No.1607/17
31.12.2014, i.e. 14 months of rent @ Rs. 54,000/- per month. The
plaintiff did not claim any relief with respect to the demolition of the
common wall in the suit property.
61. The defendant resisted the said suit by filing his written
statement, Ex. PW-1/3Y, in which he raised the same defence as in
the present suit, that is the plaintiff had intended to let out the shops
to the defendant, however prior to the defendant taking possession,
the plaintiff offered their sale instead and the defendant purchased
the same for Rs. 3 lakhs in July, 1981. Further, no sale deed was
executed as the plaintiff claimed that there was a family dispute
ongoing.
62. The defendant was cross-examined in the said suit on
17.03.2016, Ex. PW-1/2 during which he admitted that the plaintiff
was the owner of the suit property and that no sale deed was ever
executed and he never filed any suit for specific performance. The
relevant portion of the cross-examination of the defendant is
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CS DJ No.1607/17
reproduced below:
Suit No.15/15
17.03.2016
DW1: Ahamad Saeed Qureshi (recalled for cross examination after 01.12.2015).
XXXX by Ms. Monika, Id. counsel for plaintiff.
I am aware of the contents of affidavit Ex.DW1/A. Same was drafted in my
presence under my instructions. I have bought immovable property and I am
aware of the formalities which are to be done. It is wrong to suggest that I have
taken the suit property on rent. I am the owner of the suit property. I do not have
any documents regarding the suit property indicating that I am the owner of the
suit property. It is wrong to suggest that between myself, defendant and plaintiff
rent agreement was executed had not taken the suit property on rent. I had
purchased the suit property from Sh. Lakshman Singh (plaintiff). The plaintiff
was the owner of the suit property.
Court Ques: Tell the court if between you and the plaintiff whether any
registered document was executed in your favour regarding the suit
property?
Ans No.
I have asked the plaintiff several times for the execution of documents regarding
the suit property Vol. Before buying the suit property from the plaintiff I had the
adjacent shop and after buying the suit property from the plaintiff, i demolished
the common wall so that I may have larger shop.
Court Ques Did you file any case for execution of documents by the plaintiff
regarding the suit property in your favour?
Ans: No
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CS DJ No.1607/17
63. The aforementioned Suit No. 15/2015 was disposed off vide a
judgment dated 12.05.2016, Ex. PW-1/3, which records that on
26.05.2015, the following issues were framed in the suit:
1. Whether plaintiff is entitled to the recovery of arrears of rent
amounting to Rs. 54,000/-, as prayed for?
2. Relief
64. While deciding issue no.1, the Court held that the plaintiff was
required to prove (i) that he was the landlord of the suit property, (ii)
that the defendant was his tenant, (iii) the rate of rent as Rs. 1,500/-
per month, (iv) which was not paid since 01.04.2001.
65. The judgment further notes that during the cross-examination
of the plaintiff, he stated that the suit property was given on rent in
the year 1981 under a rent agreement which was no longer traceable
and further that no rent receipts were also issued.
66. The Court held that the plaintiff had failed to prove the
defendant as his tenant and the defendant had also failed to prove his
purchase of the suit property and hence, the only logical conclusion
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would be that the defendant was a licencee in the suit property as per
section 52 of the Indian Easement Act, 1882.
67. The principle of res judicata are the basis of section 11 of the
Code of Civil Procedure, 1908, which is reproduced below:
S. 11 Res judicata
No Court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has been heard
and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been
decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court
shall be determined irrespective of any provisions as to a right of appeal from
the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by
the other.
Explanation IV.-- Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
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CS DJ No.1607/17
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted
by the decree, shall for the purposes of this section, be deemed to have been
refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or
of a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to claim
under the persons so litigating .
Explanation VII.-- The provisions of this section shall apply to a proceeding for
the execution of a decree and references in this section to any suit, issue or
former suit shall be construed as references, respectively, to a proceeding for the
execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided by a Court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.
68. As per section 11, there are five conditions which must be
satisfied in order for the principle of res judicata to apply:
(i) The matter directly and substantially in issue in the subsequent
suit, must be the same matter, which was directly and substantially in
issue, either actually or constructively in the former suit.
(ii) The former suit must have been a suit between the same parties
or between the parties under whom they claim.
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CS DJ No.1607/17
(iii) In the former suit, the parties must have litigated under the same
title.
(iv) The Court, which decided the former suit, must have been
competent to try the subsequent suit.
(v) The matter, which is direct and substantially in issue in the
subsequent suit, must have been heard and finally decided by the
Court in the former suit.
69. In the present case, the parties are admittedly the same and
they are also litigating under the same title. The question is whether
the issue of the status of the defendant was directly and substantially
in issue in the former suit?
70. The first suit had been filed by the plaintiff claiming arrears of
rent from the defendant, in which the Court was required to
adjudicate as to the status of the parties, the same issue of the status
of parties has again arisen in the present subsequent suit. Hence, I
find that the issue of the status of parties was directly and
substantially in issue between the parties in the former suit as well,
which already stands adjudicated. Therefore, I find that the issue
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CS DJ No.1607/17
already stands decided between the parties as per the application of
the principles of res judicata.
71. Further, even otherwise if the issue of res judicata is
momentarily kept aside, even in the present suit, the plaintiff has
failed to prove any tenancy created by him against the defendant.
The plaintiff has not brought into evidence any rent agreement or
rent receipts executed with the defendant. No payment of any rent by
the defendant has also been proved by him. Further, the defendant
has also failed to prove his stand as owner of the suit property. No
proof of payment of the amount of Rs. 3 lakhs has been led into
evidence by him. It is an admitted case that no sale deed was ever
executed between the parties and further, he did not file any suit for
specific performance. In such circumstances, the status of the
defendant in the suit property is deemed to be that of a licencee.
Accordingly, in such circumstances, the licensor is always at liberty
to revoke the licence and recover the possession of the property. In
the present case, I find that same has duly been revoked by the
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CS DJ No.1607/17
plaintiff vide his legal notice dated 10.09.2016, Ex. PW-1/5.
Accordingly, the issue no.1 is decided in favour of the plaintiff and
the plaintiff is held entitled to a decree of possession, as prayed for.
72. The next question which arises is with respect to the quantum
of mesne profits, which the plaintiff is entitled to. The plaintiff has
claimed mesne profits of Rs. 6,000/- p.m. from 12.05.2016 till
March, 2017 and from April, 2017 onwards @ Rs. 8,000/- per
month. The plaintiff has not led into evidence any rent agreement of
any property in the vicinity and has relied on a valuation and survey
report of a Civil Engineer dated 30.03.2017, Ex. PW-1/9. However
as the author, i.e. the Civil Engineer himself has not been examined,
the said report has not been proved and cannot be read into evidence.
73. However, it is settled law that Courts are empowered to take
judicial notice of the prevailing rents in the city as under section
51/52 of the Bhartiya Sakshya Adiniyam, 2023 (section 56/57 of the
erstwhile Indian Evidence Act, 1872). I may refer to the decision of
the Hon'ble High Court of Delhi in Suman Verma & Ors V. Sushil
Lakshman Singh vs. Ahmad Shaid Qureshi Page 62 of 66
CS DJ No.1607/17
Mohini Gupta & Ors , 2014 (10) DRJ 595, the relevant portions of
which are reproduced below:
"22. I do not find any merit in the challenge by the appellants/defendants to the
rate at which the mesne profits/damages for use and occupation have been
awarded, for the following reasons:-
(a) though undoubtedly the Division Bench of this Court in National
Radio & Electronic Co. Ltd. supra has held that judicial notice, only of a
general increase in rent in the city of Delhi and not of the rates of rent,
in the absence of proof thereof can be taken but it cannot be lost sight of
that the Courts are for doing justice between the parties and not for, on
hyper technicalities, allowing the parties to suffer injustice.
(b). The property of the respondents/plaintiffs which the
appellants/defendants are admittedly in unauthorized occupation of, is
situated in one of the poshest colonies of the city of Delhi, properties
wherein fetch high rentals and which only the elite, affluent, expats and
foreigners are able to afford.
(c) the said property is a independent bungalow constructed over 400 sq.
yd. of land and comprising of two and a half floors.
(d) the calculation of mesne profits always involves some amount of
guess work, as held by this court in International Pvt. Ltd. Vs. Saraswati
Industrial Sundictes Ltd. (1992) 2 RCR 6, M.R. Sahni Vs. Doris
Randhawa MANU/DE/0352/2008 and reiterated in Consep India Pvt.
Ltd. supra and applicability of prevalent rents in the city and of which
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CS DJ No.1607/17
the Judges manning the Courts and who are born and brought up in the
same city, are generally aware of.
(e) The Division Benches of this court in Vinod Khanna Vs. Bakshi
Sachdev AIR 1996 Delhi 32 and S.Kumar Vs. G.K. Kathpalia 1991 (1)
RCR 431, taking judicial notice, refused to interfere with the rate of
mesne profits even where the landlord had not led any documentary
evidence. Notice of such increase has also been taken by the Supreme
Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18.
74. The suit property in the present case comprises of two rooms
located in Sadar Bazaar, which is a busy commercial area of the city.
The defendant has admittedly been using the said premises as a shop
as well and would easily command a rent of atleast Rs. 4000/- per
month, which would be an appropriate figure to award as mesne
profits in the present case. Further, the plaintiff has claimed mesne
profits from 12.05.2016 onwards. However, I find that it would be
appropriate to award mesne profits from the date of filing of the suit
i.e. 29.04.2017, as the plaintiff has not approached the court in a
reasonable time from the date of revocation of the licence i.e.
10.09.2016. The plaintiff is accordingly held entitled to receive
mesne profits of Rs. 4000/- per month from the defendant, from the
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CS DJ No.1607/17
date of filing of the suit till the handover of the possession of the suit
property by the defendant, subject to an annual increase by 10% on
the said amount. The issue no.2 is decided accordingly in favour of
the plaintiff.
75. With respect to the issue no.3, the plaintiff did not lead any
evidence with respect to the loss suffered by him on account of
mental agony and harassment. Further no evidence of legal fees/costs
has also been led by him. Accordingly, the issue no.3 is decided
against the plaintiff.
Relief
76. In view of the aforementioned reasons, the plaintiff is held
entitled to a decree for recovery of possession with respect to two
rooms in the suit property, i.e. No. 2075-2076, Basti Peepal Wali,
Sadar Bazaar, Delhi – 110006 as per the site plan Ex. PW-1/9. The
plaintiff is also held entitled to receive mesne profits of Rs. 4000/-
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CS DJ No.1607/17
per month (Rupees Four Thousand Only) from the Defendant, from
the date of filing of the suit till the handover of the possession of the
suit property by the defendant, subject to an annual increase by 10%
on the said amount. The costs of the suit are also awarded in favour
of the plaintiff. Let additional court fees be filed as per rules. Decree
sheet be prepared accordingly. File be consigned to the record room
after due compliance.
Digitally signed
by JITEN
JITEN MEHRA
MEHRA Date:
2025.05.20
16:01:22 +0530
Announced in the open Court on (JITEN MEHRA)
20.05.2025. DJ-10 (Central)
Tis Hazari Courts, Delhi.
Lakshman Singh vs. Ahmad Shaid Qureshi Page 66 of 66
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