IN THE COURT OF [ENTITY], ADDITIONAL SENIOR CIVIL JUDGE (SHAHDARA), KARKARDOOMA COURTS, DELHI. Suit No.: 508/17 1. [ENTITY] S/o Ali Hasan 2. [ENTITY] W/o [ENTITY] Both resident of: 4909A, First Floor, Gali no. 2, East Old Seelampur, Delhi110031. Plaintiffs Versus 1. [ENTITY]. S/o Haji Naseer R/o 4909A, Ground Floor, One Shop, Gali no. 2, East Old Seelampur, Delhi110031. 2. [ENTITY] S/o Ali Hasan 3. Ms. [ENTITY] W/o [ENTITY] Both resident of: 4909A, 2nd Floor, Gali no. 2, East Old Seelampur, Delhi110031 Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 1 of 12 Defendants SUIT FOR RECOVERY OF POSSESSION, DAMAGES MESNE PROFITS AND FOR PERMANENT INJUNCTION DATE OF INSTITUTION : 11.05.2017 DATE OF DECISION : 24.04.2019 JUDGMENT
1. The brief facts of the case of plaintiff as stated in the plaint are that plaintiffs alongwith defendant no. 2 & 3 are the joint owners of ground floor of property no. 4909A, Gali no. 2, East Old Seelampur, Delhi. The mother plaintiff no. 1 and defendant no. 2, Smt. [ENTITY] was owner of the suit property. She expired on 25.11.2004. During her life time, she had executed a will dated 05.10.2001 in favour of plaintiffs and defendant no. 2 & 3 jointly with respect to ground floor of suit property.
2. The ground floor of suit property consists of twelve shops. Out of the said twelve shops, one shop is in the possession of defendant no. 1, who is tenant of plaintiffs and defendants no. 2 & 3. The rate of rent of said shop is Rs. 5200/ per month. The tenancy was oral.
3. Defendant no. 1 has not paid the rent since December, 2016 till date and the defendant is liable to pay arrears of rent amounting to Rs. 20,800/ i.e. w.e.f. 01.12.2016 to 31.03.2017.
4. Plaintiffs served legal notice dated 28.03.2017 upon defendant no. 1 and made demand of aforementioned arrears of rent. The tenancy of defendant no. 1 was terminated on 31.03.2017. Despite service of legal notice, defendants did not give any reply of said legal notice. Defendant Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 2 of 12 neither paid arrears of rents nor vacated the tenanted premises. The possession of defendant no. 1 is unauthorized and illegal. The defendant no. 1 is also liable to pay mesne profits/ damages of Rs. 500/ per day from the date of termination of tenancy till the handing over the possession of tenanted premises.
5. Hence, plaintiffs have filed the present suit and prayed for decree of possession against defendant no. 1. They have also prayed for decree of recovery of sum of Rs. 20,800/ alongwith interest @ 18 % p.m and also recovery of damages/ mesne profits @ Rs. 500/ per day. They have also prayed for decree of injunction for restraining the defendant no. 1 from alienating one shop at ground floor of suit property.
6. Defendant no. 1 had filed written statement, but beyond the period prescribed under the law. In the said written statement he took preliminary objections that plaintiffs have not come to the court with clean hands. The present suit is false, baseless and misjoinder of parties because defendant no. 2 & 3 are the coowners of the suit property. The plaintiff no. 1 and defendant no. 2 are the real brothers and coowners of the suit property. He took the tenanted shop on rent from its registered owner Smt. [ENTITY] who expired on 25.11.2004. Thereafter, plaintiff no. 1 and defendant no. 2 informed him about the will of the said [ENTITY] by which plaintiffs no. 1 & 2 and defendants no. 2 and 3 became the joint owners of equal share in the suit property and since then they received the rent of the suit property from defendant no. 1.
7. The rate of rent of the shop was enhanced from time to time.
Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 3 of 12 Now the rent is Rs. 1100/ per month. However, there is no written agreement regarding the said tenancy. Smt. [ENTITY] and present owners never issued any receipt of rent received by them from defendant no. 1. Defendant no. 1 had already paid the rent towards the suit property to the owners i.e. plaintiffs and defendant no. 2 & 3 upto July, 2017 @ Rs. 1100/ per month and is ready to pay the rent continuously to the owners. There is no cause of action for filing the suit. On merits, defendant no. 1 denied the remaining averments of plaint and prayed that suit may be dismissed.
8. As the defendant had failed to disclose plausible reason for condonation of delay in filing written statement, therefore, vide order dated 08.08.2018, ld. Predecessor of this court passed an order and defence of defendant no. 1 was stuck off. Therefore, aforementioned written statement cannot be read in pleadings.
9. Defendant no. 2 & 3 filed written statement and took preliminary objections that plaintiffs have not come to the court with clean hands. Plaintiffs have concealed material facts. There is no cause of action for filing the present suit.
10. On merits, they pleaded that defendant no. 1 is in physical possession of one shop at ground floor of property bearing no. 4909A, Gali no. 2, East Old Seelampur, Delhi. The deceased mother of the plaintiff no. 1 and defendant no. 2 Smt. [ENTITY] had let out the said shop to the defendant no. 1. She expired on 25.11.2004 and thereafter, both the plaintiffs and defendant no. 2 & 3 became the joint owners of Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 4 of 12 equal share of the suit property on the basis of will executed by Smt. [ENTITY]. Since then plaintiff no. 1 and defendant no. 2 have been receiving the rent of the suit property from the tenants including defendant no. 1.
11. Plaintiffs have no right, title or interest to vacate or let out any shop or other part of the said property to any person or person without the written consent of the defendants no.2 & 3. Plaintiff no. 1 and defendant no. 2 had already received the rent from defendant no. 1, towards the suit property upto July, 2017 @ Rs. 1100/ per month, but now the plaintiffs have become greedy and they are trying to have full hold over the suit property. Defendant no. 2 & 3 denied the remaining averments of plaint and prayed that suit may be dismissed.
12. Plaintiffs filed replication to the written statement filed on behalf of the defendant no. 2 & 3 and denied the averments of the same and reiterated the averments of their plaint.
13. From the pleadings, following issues were framed:
(i)Whether the defendant no.1 is tenant in the suit premises at the rent of Rs.5200/ p.m. ? OPP
(ii) Whether the plaintiff is entitled to a decree of possession as prayed for ? OPP
(iii) Whether the plaintiff is entitled to recovery of Rs.20,800/ qua defendant no. 1? OPP
(iv)Whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 5 of 12
(v) Whether the plaintiff is entitled to damages/mesne profits? If so at what rate and for which period ? OPP
(vi)Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP
(vii) Whether the plaintiffs have concealed the material facts ? OPD2 & 3
(viii) Relief.
14. In order to prove their case, plaintiff no. 1 stepped into the witness box as PW1. He tendered his affidavit Ex. PW1/1 and relied upon documents Ex. PW1/B to Ex. PW1/D and Mark PW1/A. He was cross examined by counsel for defendant no. 1. The opportunity to cross examine was given to the remaining defendants, but it was not availed. Then, plaintiffs closed PE on 10.04.2019.
15. Without leading any evidence, defendant no. 2 & 3 closed DE 10.04.2019. Since defence of defendant no. 1 was stuck off, therefore, matter was listed for final arguments.
16. I have heard the arguments of ld. counsel for plaintiff as well as ld. counsels for defendants. I have also gone through the evidence on record. The issuewise findings are given as below:
17. Onus to prove this issue was on plaintiffs. In [PRECEDENT], the hon'ble Apex Court held that in a civil suit burden to discharge the onus is only to the preponderance of probabilities.
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18. It is admitted fact that Smt. [ENTITY] was the mother of plaintiff no. 1 and defendant no. 2. It is also admitted that Smt. [ENTITY] had inducted defendant no. 1 as tenant and she had passed away on 25.11.2004. The relationship of landlord and tenant inter se plaintiffs alongwith defendant no. 2 & 3 with defendant no. 1 is not disputed. Defendant no. 1 has specifically admitted that he tendered rent to plaintiff no. 1 & 2 and defendant no. 2 & 3 jointly.
19. The major dispute pertains to the fact, whether the rate of rent is Rs. 5200/ per month as alleged by plaintiffs or it was Rs. 1100/ per month?
20. The ld. Counsel for plaintiffs had argued that the defendant no. 1 had given the statement in the court and is paying the rent @ Rs. 5200/ per month to the plaintiffs and defendant no. 2 & 3 jointly. However, perusal of said statement of defendant no. 1 recorded on 25.04.2018 shows that he had categorically stated that he was depositing the rent @ Rs. 5200/ without prejudice to his defence. Therefore, the said statement of defendant no. 1 cannot be made the basis of decision that the rate of rent was Rs. 5200/ per months as it does not amount to admission.
21. Smt. [ENTITY] had inducted defendant no. 1 as tenant in the suit property on the basis of oral tenancy. It is also admitted by both the parties that rent receipts were never issued. PW1 has categorically deposed that rate of rent was Rs. 5200/ per month. He was cross examined by counsel for defendant no. 1, but there is nothing in his cross examination to show that the rate of rent was not Rs. 5200/ per month.
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23. The defence of defendant no. 1 had been stuck off. Neither defendant no. 1 nor defendant no. 2 & 3 have led any evidence to show that the rate of rent was Rs. 1100/ per month.
24. Since the oral evidence of PW1 to the extent that rate of rent was Rs. 5200/ per month has gone completely unrebutted, therefore, it has to be concluded that plaintiff has proved to the preponderance of probability that the rate of rent was Rs. 5200/ per month. Thus, this issue is decided in favour of plaintiffs and against the defendants.
25. Onus to prove this issue was also on plaintiffs. In order to seek decree of possession, plaintiffs had to prove following aspects:
(i) There is relationship of landlord and tenant between the plaintiffs and defendant no. 2 & 3 on one hand and defendant no. 1 on the other hand;
(ii) The rate of rent of the suit property is above Rs.3,500/ pm; &
(iii) Tenancy was terminated.
Relationship of Landlord and Tenant:
26. As discussed in issue no. 1, it is admitted that plaintiffs and defendant no. 2 & 3 are the landlords of the suit property and defendant no. 1 is their tenant.
27. The objection was taken by defendants no. 2 & 3 that plaintiffs cannot file suit for possession without consent of coowners i.e. Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 8 of 12 defendant no. 2 & 3.
28. In [PRECEDENT], it was held that, a coowner can succeed in the petition for eviction without impleading all the other coowners. It is not necessary that landlord should be a absolute owner. Since coowner owns every part of the composite property alongwith others, therefore, it cannot be said that he is only a part owner or a fractional owner.
29. Thus, in view of the aforementioned law, the present suit is maintainable on behalf of plaintiffs no. 1 & 2 who are cosharers in the suit property.
Rate of Rent:
30. As discussed in issue no. 1 it has already been held that rate of rent was Rs. 5200/ per month.
Termination of Tenancy:
31. Plaintiff has proved notice dated 28.03.2017 as Ex. PW1/C and postal receipts dated 28.03.2017 as Ex. PW1/D (colly). The said notice was posted at the correct address of defendant no. 1. Hence, as per [SECTION] of [ACT], it is presumed to have been received by defendant in due course.
32. Even otherwise, in [PRECEDENT], it has been held that, "Filing of an eviction suit under the general Law itself is a notice to quit on the tenant."
33. Thus, in view of the aforementioned discussion, it has to be Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 9 of 12 concluded that the tenancy was duly terminated as per law. Hence, plaintiffs are entitled to decree of possession qua suit property. Accordingly, this issue is decided in favour of plaintiffs and against the defendants.
34. Onus to prove this issue was on plaintiffs. In discussion of issue no. 1, it has already been held that the defendant no. 1 was tenant in the suit property at the monthly rent of Rs. 5200/. The averments of plaint that defendant no. 1 did not pay the rent w.e.f. from 01.12.2016 to 31.03.2017 have gone unrebutted. However, perusal of record shows that defendant no. 1 had paid upto date arrears of rent i.e. till 10.04.2019 @ Rs. 5200/ per month. Hence, this issue stands disposed off accordingly.
35. Onus to prove this issue was on plaintiffs. Plaintiffs have claimed interest @ 18 % per annum on arrears of rent. There was no agreement with regard to payment of interest on delay in payment of rent. Moreover, payment of arrears of rent have already been accepted by plaintiffs without any demur. Hence, plaintiffs have failed to prove that they are entitled to recovery of interest on the arrears of rent. Accordingly, this issue is decided against the plaintiffs.
36. Onus to prove this issue was on plaintiffs. Plaintiffs have claimed damages/ mesne profits @ Rs. 500/ per day. However, plaintiffs have not led any evidence to show that such property in same locality could Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 10 of have fetched rent @ Rs. 500/ per day.
37. The plaintiffs have not filed any document of the nearby property in the same locality to show that such rent was prevalent in the market. Mere bald assertion, which is neither rational nor is corroborated by any evidence cannot be made basis to conclude that plaintiff is entitled to damages at the aforementioned rate.
38. The purpose of providing mense profits is to compensate the plaintiff for unlawful occupation of tenant whose tenancy has been terminated. Since, plaintiffs and defendants no. 2 & 3 have already received rent @ Rs. 5200/ per month from the defendant no. 1 without any demur, therefore, it has to be held that plaintiffs alongwith defendants no. 2 & 3 are jointly entitled to damages @ Rs. 5200/ per month till the handing over the vacant possession of suit property to them. Accordingly, this issue is partly decided in favour of plaintiffs.
39. Onus to prove this issue was on plaintiffs. Admittedly, plaintiffs are cosharer of the suit property. Defendant no. 1 being the tenant of the suit property did not have any right to alienate the same. Even otherwise, his tenancy has already been terminated. Hence, defendant no. 1 cannot alienate the suit property. Accordingly, this issue is decided in favour of plaintiffs and against defendant no. 1.
40. Onus to prove this issue was on defendants no. 2 & 3. Defendants no.2 & 3 have not led any evidence on record to establish that Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 11 of plaintiff has concealed material facts. Perusal of pleadings, examination and crossexamination of PW1 does not reveal anything to show that they had concealed any material fact. Hence, defendants no. 2 & 3 have failed to prove that plaintiffs have suppressed material facts. Accordingly, this issue is decided against the defendants no. 2 & 3 and in favour of plaintiffs. RELIEF
41. Thus, in view of the aforementioned discussion, the suit of the plaintiff is decreed with costs to the following extent i.e. a decree of possession is hereby passed against the defendant no. 1 with respect to a shop at ground floor of property no. 4909A, Gali no. 2, East Old Seelampur, Delhi as shown in green colour marked as Shop no. C in site plan. The suit qua recovery of arrears of rent is dismissed. The suit of plaintiff qua recovery of damages/mesne profits is partly decreed and defendant no. 1 is directed to pay damages/ mesne profits @ Rs. 5200/ per month to the plaintiffs and defendant no. 2 & 3 jointly from the date of decree till handing over the vacant possession of suit property. The suit qua permanent injunction is also decreed and defendant no. 1 is restrained from alienating the suit property in any manner.
42. Decree sheet be prepared. File be consigned to record room after due compliance. [ENTITY] Date: 2019.04.25 16:18:53 +0530 (Announced in the open court) ([ENTITY]) th 24 April, 2019 ASCJ (SHAHDARA)/KKD/24.04.2019 Case no. 508/17 [ENTITY] & Anr. Vs. [ENTITY] & Ors . Page No. 12 of