IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT, SAKET COURTS COMPLEX, SAKET, NEW DELHI Presiding Officer: Ms. [ENTITY], DJS Suit No.898/2013 Unique ID no.02406C01[SECTION]252013 In the matter of: 1. [ENTITY], S/o Sh. Jagan Singh R/o B44, Aali Extension, Sarita Vihar, New Delhi 110076 2. [ENTITY], S/o Sh. Dayachand Sharma R/o B70, Aali Extension, Sarita Vihar, New Delhi 110076 Plaintiffs. vs Smt. [ENTITY], W/o Sh. Aklesh Masih R/o B121, Aali Extension, Sarita Vihar, New Delhi 110076 Defendant. Date of institution of Suit : 05.07.2013 Date on which order was reserved : 23.12.2015 Date of pronouncement of the order : 04.01.2016 Present: Sh. [ENTITY], Advocate for plaintiff. Sh. [ENTITY], Advocate for defendant. JUDGMENT
1. Vide this order, the present suit has been disposed off. The plaintiff has filed the present suit with the following relief.
"(a) A decree of possession be passed in favour of the plaintiffs and against the defendant in respect of the property bearing house no. B121, Aali Extension, Sarita Vihar, New Delhi 110076, more specifically shown in red in the site plan annexed with the plaint (hereinafter mentioned as suit property).
(b) A decree of recovery of arrears of rent be passed in favour of the plaintiffs and against the defendant amounting to Rs.32,000/ being the arrears of rent from October, 2012 to May 2013 along with interest at the rate of 18 % per annum.
(c) A decree of recovery of damages / mesne profits be passed in favour of the plaintiffs and against the defendant @ Rs. 8000/ p.m. commencing from 01.06.2013 till the vacation of the premises along with interest at the rate of 18 % per month from the date of filing of the suit till the vacant and peaceful possession of the suit premises handed over to the plaintiffs by the defendant.
(d) A decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, her family members, servants, employees, associates, assignees, attorneys or representatives or any other person on her behalf from inducting any third person in the suit property or creating any third party interest in the suit premises.
(e) The cost of the present suit be also awarded in favour of the plaintiffs and against the defendant".
Plaintiff's Averments:
2. As per plaintiff, the plaintiffs are the joint /co owners of suit property. The suit property was purchased by the plaintiffs from Sh. [ENTITY] S/o Sh. [ENTITY] in October 2012. The defendant was the tenant of Sh. [ENTITY] at a monthly rent of Rs. 4000/ at the time of purchase of the suit property and soon after the plaintiffs became the owners in respect of the suit property, the defendant became the tenant under the plaintiffs. The plaintiffs intimated the defendant about the above said fact but the defendants instead of paying the rent @ Rs.4000/ per month to the plaintiffs started threatening the plaintiffs and started making false and frivolous complaints against the plaintiffs. Tenancy of the defendant is the month to month. In spite of repeated requests being made to the defendant by the plaintiffs, the defendant has failed to pay the rent w.e.f. October, 2012 to the plaintiff. The defendant sent a false and a frivolous legal notice dated 22.03.2013 to the plaintiff raising altogether false and wrong facts. The plaintiff also sent a notice dated 05.04.2013 to the husband of the defendant demanding the possession of the suit property but of no vain. Since, the defendant failed to make the payment of the rent w.e.f. October, 2012 the plaintiff got the defendant served with a legal notice dated 16.05.2013 through his Advocate. Thereby terminating the lease/tenancy in respect of the suit property and asking the defendant to deliver the vacant and peaceful vacant possession of the suit property to the plaintiff within 15 days from the receipt of the legal notice, which was duly served upon the defendant but inspite of notice, the defendant failed to make the payment of the arrears of rent and to vacate the premises. The prevailing rate of rent in the same locality pertaining to the similar property is Rs.8000/. On account of the illegal occupation of the defendants in the suit property, the plaintiff is suffering a loss of Rs. 8000/ per month i.e. the amount that the plaintiff could have easily earned as rent for the said premises had it been let out to someone else. Hence, the present suit.
Defence of Defendant:
3. The defendant filed WS and the defendant has opposed that the plaint of the plaintiffs is liable to be dismissed with heavy costs due to nonjoinder of the parties as Delhi Metro Rail Corporation is necessary party as the suit property belongs to DMRC. The suit property is a government land which belongs to DMRC. Defendant took on a rent of Rs. 500/ per month a barren land from Sh. [ENTITY]. The defendant constructed the said plot and started living there along with her family. On 03.04.2013 one Sh. [ENTITY], Sh. [ENTITY], Sh. Defender and Sh. [ENTITY] claiming to be the owners of suit property. The said people mercilessly beat defendant and her family members and demolished a portion of suit property. An FIR No. 110/13 is registered in this regard. After the said incident defendant approached D.D. A to know the actual owners of the property. It came to know that the said property belongs to Sh. [ENTITY] a farmer who had already got compensation from government, the said land has already been acquired by government for Delhi Metro Rail Corporation and the land having Khasra No. 154 is property of DMRC. Plaintiffs cannot become owners of the government land which is acquired by the government of DMRC. Sh. [ENTITY] S/o Sh. [ENTITY] is also a land grabber and is in the business setting up juggies in the government land and selling the same. Defendant was never tenant of Sh. [ENTITY] nor of the plaintiffs. The plaintiff is neither owner nor entitled for any rent from the defendant. The suit property is government land. Plaintiffs have no locus as far as suit property is concerned hence there is no question of demanding possession of the suit property. plaintiffs are land grabbers of the area. Plaintiffs had annexed with the plaint, photocopies of GPA which is neither registered nor mentioned the evolution of the ownership of the suit property in favour of Sh. [ENTITY]. The suit property is a jhuggi and there is no rental value for the same. Defendant is in possession of the suit property since January 2009 and living there along with her family. When Sh. [ENTITY] handed over the possession of the suit property to defendant, defendant was not aware that the suit property is government land.
4. The plaintiffs have filed replication in which they have reiterated the facts stated in the plaint. In their replication, they have stated that the plaintiffs have purchased the suit property from its erstwhile owner and hence have become the absolute owners in respect of the suit property. The DMRC has no right of any nature whatsoever in the suit property. The defendant is merely a tenant in the suit property and therefore has no right to challenge the said documents.
5. On the basis of the pleadings, following issues have been settled vide order dated 18.11.2013.
1. Whether the plaintiffs are entitled to a decree of possession as prayed for ? OPP
2. Whether the plaintiffs are entitled to recovery of arrears of rent from October 2012 to May, 2013 as prayed for ? OPP
3. Whether the plaintiffs are entitled to mesne profits @ 8000/ per month as prayed for ? OPP
4. Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for ? OPP
5. Whether the suit is barred for nonjoinder of necessary parties? OPD
6. Whether the suit is not maintainable in its present form? OPD
7. Relief.
6. In PE, the plaintiff has examined himself as PW1 to prove his case. PW1 has tendered his evidence by way of affidavit. PW1 has reiterated the facts stated in the plaint. He has relied upon the following documents:
a) site plan is Ex.PW1/1;
b) general power of attorney dated 01.10.2012 is Ex.PW1/2;
c) advance for agreement to sell and purchase dated 12.09.2012 is Ex.PW1/3;
d) the receipt dated 12.09.2012 is Ex.PW1/4;
e) agreement to sell and purchase dated 01.10.2012 is Ex.PW1/5;
f) the affidavit executed by Sh. [ENTITY] dated 01.10.2012 is Ex.PW1/6;
g) receipt dated 01.10.2012 is Ex.PW1/7;
h) legal notice dated 22.03.2013 is Ex.PW1/8;
i) the reply dated 05.04.2013 is Ex.PW1/9;
j) postal receipt dated 05.04.2013 is Ex.PW1/10;
k) the courier receipt dated 05.04.2013 is Ex.PW1/11;
l) legal notice dated 16.05.2013 is Ex.PW1/12;
m) postal receipt dated 17.05.2013 is Ex.PW1/13;
n) Courier receipt dated 16.05.2013 is Ex.PW1/4 and
o) acknowledgment receipt of courier is Ex.PW1/15.
7. The plaintiff has also examined Sh. [ENTITY], from whom the plaintiffs claim to purchase property, as PW2 to prove their case. The witness has supported the case of the plaintiff. He has been cross examined.
8. The defendant has examined herself as DW1 to prove her defence. DW1 has tendered her evidence by way of affidavit. She has relied upon the following documents.
a) Copy of aadhar card, election identity card is Ex.DW1/A and Ex.DW1/B (OSR);
b) the documents issued by [ENTITY] of the area is Ex.DW1/C;
9. The defendant has also examined Sh. [ENTITY] as DW2, Sh. [ENTITY] has examined as DW3 and Sh. [ENTITY], Kanungoo from office of DDA, New Delhi has examined as DW4. The witnesses were cross examined. After leading evidence, matter was fixed for final arguments.
10. Arguments heard on behalf of both parties and carefully perused the material on record.
ISSUEWISE FINDINGS
11. Issue no.1 to 3: Whether the plaintiffs are entitled to mesne profits @8000/ per month as prayed for ? OPP For the sake of convenience, issues no.1 to 3 are decided together as they require common discussion.
(a) As per plaintiff, defendant was tenant of Sh. [ENTITY] at the monthly rent of Rs.4000/ per month. Thereafter, in October 2012 plaintiffs purchased the property from Sh. [ENTITY] and they intimated the defendant about the fact of purchase of property but defendant failed to pay the rent w.e.f. October 2012 to the plaintiffs. Thereafter, the plaintiffs served a legal notice upon the defendant but despite service of legal notice defendant failed to vacate the property and to pay the arrears of rent. Hence, the present suit. On the other hand, as per defendant, the property is a Govt. property and same belongs to DMRC. As per defendant, defendant took the suit property on rent of Rs.500/ per month as barren land / vacant land from Sh. [ENTITY] and thereafter, after spending amount of Rs.1,50,000/, defendant constructed the property and started staying on the property and defendant is in possession of property since January 2009 but at that time defendant was not aware that the property does not belong to Sh. [ENTITY] but property is Govt. land.
(b) It is settled principle that the burden of proof in civil cases is upon the plaintiff and the test of burden of proof is preponderance of probabilities. In other words, the Court has to consider that amongst both parties, whose version appears to be more probable so as to be true. In cases of recovery for possession on the basis of landlord tenant relationship, plaintiff / landlord is required to prove following three facts to succeed: (1) There exists landlord tenant relationship between parties (2) The rate of rent is more than Rs.3500/ and tenancy is not protected under the [ACT]; (3) The notice for termination of tenancy has been served upon the defendant / tenant.
(c) The defendant has admitted the fact that the defendant has been put in possession of property as tenant by one Sh. [ENTITY]. It is well settled legal principle that 'once a tenant always tenant'. The defendant has taken the plea that property is a Government land but in view of [SECTION] of [ACT], the defendant is estopped from challenging the title of the landlord / owner at the time of commencement of tenancy. Now, as per the plaintiffs, they have purchased the property from the landlord Sh. [ENTITY] by way of GPA, agreement to sell, receipt, all dated 01.10.2012 which are Ex.PW1/2 to Ex.PW1/7. All these documents are notarized documents. Not even a single document is registered document. It is a well settled legal proposition that 'transfers of immovable property' can be effected only by way of a registered documents in view of the [SECTION] of [ACT] r/w [SECTION] and [SECTION] the [ACT]. Clearly, the documents relied upon the plaintiffs are not sufficient to confer the proper legal title / ownership of the property in favour of the plaintiffs.
(d) Moreover, plaintiffs have not filed any chain of previous ownership to prove that even Sh. [ENTITY] had any title ownership over the property while Sh. [ENTITY] / PW2 has specifically stated during cross examination that the original documents in his favour have been handed over to plaintiffs at the time of sale but plaintiffs have not filed any such documents. Now, it has been argued by the plaintiffs that defendant has admitted that defendant has been inducted as a tenant over the property by Sh. [ENTITY] and plaintiffs have purchased the property from Sh. [ENTITY] and Sh. [ENTITY] has deposed as PW2 that the property has been sold out to the plaintiff by Sh. [ENTITY]. Therefore, a valid title has been conferred upon the plaintiff. Now, in view of [SECTION] of [ACT] defendant cannot challenge the title of plaintiffs.
(e) At this stage, it is relevant to discuss [SECTION] of [ACT]. [SECTION] of [ACT] provides: "116. Estoppel of tenant; and licensee of person in possession: No tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
Clearly, [SECTION] of [ACT] puts a bar upon the tenant to challenge the title of landlord at the time of announcement of tenancy but the bar under [SECTION] of [ACT] is not blanket bar. It is a settled legal position that the claim of the transferee having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel and is vulnerable to a challenge. It means that the tenant is entitled to show that the plaintiff has not as a matter of fact secured a valid transfer from the original landlord or that the alleged transfer in favour of plaintiffs, is ineffective for some other valid reason, which renders the transfer non existent in the eye of law [[PRECEDENT]] Thus, clearly, a tenant is estopped from disrupting the title of his landlord at the time of induction but he is not precluded from disrupting the derivative title of a third party who claims title on the basis of transfer from indicting landlord.
The reason is that when the property has been sold out to another person then a fresh tenancy commences from the date of purchase of property by the new owner / purchaser and then the tenant can challenge the authority of subsequent transferee, new landlord unless and until the tenancy has been accepted by the tenant.
(f) As has been discussed hereinabove in the present case, the plaintiff has not derived a legal title from the previous landlord as unregistered documents have been executed in favour of the plaintiff by the previous landlord. Therefore, clearly the defendant as a tenant has been established to prove that the plaintiffs are not owner of the property and defendant has not accepted the tenancy or no new tenancy has been commenced between the plaintiffs and defendant. Thus, plaintiffs have failed to prove that there exists any landlord tenant relationship between the parties.
(g) As far as the rate of rent is concerned, as per the defendant at the time of purchase of property defendant was tenant of previous landlord of Sh. [ENTITY] @ rent of Rs.4000/ per month. The previous landlord Sh. [ENTITY] has deposed in favour of plaintiff as PW2 and he has deposed that the property was tenanted to the defendant at a monthly rent of Rs.4000/ per month. PW2 was cross examined but no suggestion was put to PW2 that the rate of rent was not Rs.4000/ nor any other documents has been filed by the defendant to show that the rate of rent was Rs.500/ as pleaded by the defendant. Nor defendant has filed any other document or evidence to prove that defendant has taken a barren land from Sh. [ENTITY].
(h) As far as the service of notice under [SECTION] of [ACT] regarding termination of tenancy is concerned, it has been held by Hon'ble Mr. Justice [ENTITY] in various judgments namely, (a) [PRECEDENT] decided on 23.04.2012, in the High Court of Delhi RFA No. 183/2012; (b) M/s jeevan Diesels and Electricals Ltd. vs M/s Jasbir Singh Chadha (HUF) & [ENTITY]., 2011 (183) DLT 712; held that "even assuming that the notice as per the case of appellant / defendant / tenant is not a notice under [SECTION] of [ACT], the service of summons in the suit can always be treated as a notice under [SECTION] of [ACT].
Thus, even if notice for termination of tenancy under [SECTION] of [ACT] has not been served upon the defendant / tenant, the service of summons of suit in itself can be considered as a notice of the intentions of plaintiff / landlord to terminate the tenancy.
In view of above discussion, it is clear that the plaintiffs has failed to prove that there exists landlord tenant relationship between plaintiffs and defendant, and therefore, plaintiffs cannot claim possession from the defendant. Further, no question of arrears of rent arises when the plaintiff failed to prove landlord tenant relationship between the parties and no question of damages / mesne profits arises. Therefore, issues no.1 to 3 are decided in favour of defendant and against the plaintiffs.
12. Issue no.4: Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for ? OPP The onus to prove this issue is upon the plaintiffs. The plaintiffs are seeking injunction against the defendant that the defendant be restrained from creating third party interest in the property. Clearly, plaintiffs are seeking relief on the basis of ownership. But as has been discussed during findings on issue no.1 to 3 that the documents relied upon the plaintiffs as to transfer of ownership are only notarized documents and not even a single document is registered. Therefore, these documents do not confer any right / title or interest in favour of plaintiffs because in view of [SECTION] of the [ACT] r/w [SECTION] and [SECTION] of the [ACT]. As plaintiffs have failed to prove their ownership, therefore, plaintiffs cannot claim any injunction regarding ownership. Accordingly, issue no.4 is decided in favour of defendant and against the plaintiffs.
13. Issue no.5. Whether the suit is barred for non joinder of necessary parties ? OPD The onus to prove this issue is upon the defendant. It has been claimed by the defendant that the suit property has been acquired by Government for Delhi Metro Railway Corporation and the compensation has been paid to the real owner, therefore, DMRC is a necessary party but plaintiffs have denied the same.
Arguments heard. Record perused.
The burden was upon the defendant to prove his plea. To prove his plea, defendant has filed copy of khasra girdabari Ex.DW1/C and plaintiff has also summoned the record i.e. reply from DDA under [ACT] and the letter is Ex.DW2/B. The DW3 has deposed that as per revenue record, khasra no.154 has been acquired by DDA but he could not prove that suit property falls in khasra no.154. Further, the document Ex.DW2/B also states that the khasra no.154 has been acquired by DDA but this document is also not sufficient to prove that suit property falls in khasra no.154. Moreover, the Court cannot adjudicate upon the fact whether suit property has been acquired by DDA or not because same is not in issue. The issue in the present case is whether plaintiff is owner / landlord of the property is entitled to claim possession of the property from defendant as tenant. Further, defendant has neither called any record from Revenue Authorities or any other office to prove that the suit property property falls in khasra no.154 and same has been acquired by DDA. On the other hand, plaintiffs have filed only notarized document. Plaintiffs have failed to file any previous chain of documents relating to ownership of property. Thus, in absence of any prima facie proof, it cannot be ascertained whether DMRC is a necessary party or not. Accordingly, issue no.5 is decided in favour of plaintiffs against the defendant.
14. Issue no.6: Whether the suit is not maintainable in its present from ? OPD No specific arguments has been addressed by the defendant on this issue as to how suit is not maintainable in the present form nor anything has been mentioned in written statement. Accordingly, issue no.6 is decided in favour of plaintiff against the defendant.
15. Issue no.7: Relief.
As issue no.1 to 4 have been decided in favour of plaintiffs against the defendant, the suit of the plaintiffs is liable to be dismissed. In view of discussion hereinabove, plaintiff has failed to prove their case in their favour. Therefore, suit of the plaintiff is dismissed as plaintiffs have failed to prove landlord tenant relationship between the parties. No order as to cost.
16. Decree sheet be prepared accordingly.
Pronounced in the open Court ([ENTITY]) th on this day 04 January 2016 Civil Judge, South East Saket Courts, New Delhi