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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 1 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 2 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 3 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 4 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 5 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 6 of 66 CS DJ No.1607/17 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, Lakshman Singh vs. Ahmad Shaid Qureshi Page 7 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 8 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 9 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 10 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 11 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 12 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 13 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 14 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 15 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 16 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 17 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 18 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 19 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 20 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 21 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 22 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 23 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 24 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 25 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 26 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 27 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 28 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 29 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 30 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 31 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 32 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 33 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 34 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 35 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 36 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 37 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 38 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 39 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 40 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 41 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 42 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 43 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 44 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 45 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 46 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 47 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 48 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 49 of 66 CS DJ No.1607/17 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 50 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 51 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 52 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 53 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 54 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 55 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 56 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 57 of 66 CS DJ No.1607/17 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 58 of 66 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. Lakshman Singh vs. Ahmad Shaid Qureshi Page 59 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 60 of 66 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 Lakshman Singh vs. Ahmad Shaid Qureshi Page 61 of 66 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
Lakshman Singh vs. Ahmad Shaid Qureshi Page 64 of 66
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/-
Lakshman Singh vs. Ahmad Shaid Qureshi Page 65 of 66
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