IN THE COURT OF SH. SAURABH KULSHRESHTHA: CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI Civil Suit no: 279/07 ID No:02402C02[SECTION]06[SECTION]04 Sh. [ENTITY] R/o H.No. 266, Gali no.2, Bhola Nath Nagar, Shahdara, Delhi-32. Plaintiff Versus 1. Sh. [ENTITY] R/o H.No. 265, Gali no.01, Bhola Nath Nagar, Shahdara, Delhi-32. 2. Sh. [ENTITY] R/o H.No. 265, Gali no.01, Bhola Nath Nagar, Shahdara, Delhi-32. Defendants SUIT FOR POSSESSION AND DAMAGES Date of institution of the Suit : 18.10.[SECTION]04 Date on which judgment was reserved : 26.08.[SECTION]11 Date of decision : 09.09.[SECTION]11 Decision : Suit dismissed JUDGMENT
1. This is a suit for recovery of possession and damages. The plaintiff claims himself to be the absolute owner of property bearing no. 265, Gali no. 1, Bhola Nath Nagar, Shahdara, Delhi-32. It is the case of the plaintiff that previously Sh. [ENTITY], the elder brother of the [CASE NUMBER] Page No: 1/36 defendants was residing in the portion comprising of one room, store, kitchen, WC, bathroom in the aforesaid property (hereinafter referred to as the suit premises) as a tenant. However the said Sh. [ENTITY] had shifted to an alternative accommodation in the month of March [SECTION]04 and he expired in the month of May [SECTION]04 and his LRs also continued to reside at some other place.
2. It is further the case of the plaintiff that the defendants are residing illegally in the suit premises and they have no right, title or interest in the suit premises. The plaintiff had never let out the suit premises to the defendants or had otherwise inducted the defendants in the suit premises and they are unauthorized occupants in the suit premises.
3. The plaintiff has further averred that he had also terminated the tenancy of Sh. [ENTITY], the original tenant during his lifetime vide legal notice dated 02.04.[SECTION]04. Sh. [ENTITY] expired on 07.05.[SECTION]04 and thereafter the possession of the defendants in the suit premises is illegal and unauthorized.
[CASE NUMBER] Page No: 2/36
4. The plaintiff has further averred that he had made repeated requests to the defendants on [SECTION].05.[SECTION]04, 07.06.[SECTION]04, 10.07.[SECTION]04, 02.08.[SECTION]04 and 22.08.[SECTION]04 to hand over the vacant possession of the suit premises to the plaintiff, however, the defendants have failed to vacate the suit premises.
5. The plaintiff has prayed for a decree of recovery of possession of the suit premises. The plaintiff has also claimed pre suit damages to the tune of Rs. 6000/- @ Rs.1000/- per month from May [SECTION]04 till the date of filing of the suit. The plaintiff has further claimed pendente lite and future damages.
6. The defendants appeared pursuant to service of summons and filed their joint written statement. The defendants have averred that the relationship between the plaintiff and defendants is that of landlord and tenants and therefore the present suit for recovery of possession is barred under [SECTION] of the [ACT].
7. The defendants pleaded that the father of the defendants Sh. [ENTITY] was a tenant under the plaintiff and Smt. [ENTITY] [CASE NUMBER] Page No: 3/36 Devi his wife. The tenancy of Sh. [ENTITY] was never terminated during his lifetime and he remained a contractual tenant till his death in December 1967 and after his death his wife namely [ENTITY] and four sons namely Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] alongwith three sisters namely Smt. [ENTITY], Smt. [ENTITY] and Smt. [ENTITY] became co-tenants in respect of the suit premises. The defendants further averred that the electricity connection in the suit premises is still in the name of Sh. [ENTITY], father of the defendants.
8. They further averred that at the time of demise of their father, Sh. [ENTITY] was aged 18 years and the defendants were minors and therefore the rent receipts were issued by the plaintiff in the name of Sh. [ENTITY] since he was the eldest son, although the rent was being paid by Sh. [ENTITY] on behalf of all four brothers and three sisters including their mother who continued as co-tenants and they had never surrendered their tenancy rights to the plaintiff or anyone else. The defendants further pleaded that their mother also expired on 10.05.[SECTION]02.
[CASE NUMBER] Page No: 4/36
9. The defendants have further pleaded that the possession of the suit premises is with the defendants except one store which was in possession of Sh. [ENTITY] and after his death his son Sh. [ENTITY], daughter Ms. [ENTITY] and wife [ENTITY] are in possession of the same and the said store is shown in red colour in the site plan.
10. The defendants further averred that the defendants are tenants/co-tenants in respect of the suit premises having inherited the tenancy from their father. They further averred that the suit is not maintainable as no notice of termination of tenancy was ever given by the plaintiff to the defendants. They further averred that the rate of rent of the suit premises is Rs.[SECTION]0/- per month which was being paid by the elder brother who was acting on behalf of all his brothers, sisters and mother.
11. The defendants further averred that the wife of the plaintiff Smt. [ENTITY] is also a necessary party being the co landlord and the suit is liable to be dismissed as she has not been joined as a co-plaintiff.
[CASE NUMBER] They further averred that the suit has not been properly valued for the purpose of court fees and jurisdiction.
12. The defendants further stated that since the defendants are lawful tenants in the suit premises they are protected under the [ACT] and the plaintiff is not entitled to recover possession of the suit premises. They further stated that the plaintiff is also not entitled to damages @ Rs.1000/- per month as rate of rent is Rs.[SECTION]0/- per month only and the defendants are lawful tenants and therefore there is no question of payment of any damages.
13. Plaintiff filed replication and denied the averments of the written statement of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint. The plaintiff further averred that the suit property had been purchased by the plaintiff from late Smt. [ENTITY] on 03.10.1985. The plaintiff further averred that there is no relationship of landlord and tenant between the parties and the present suit is very much maintainable.
14. However the plaintiff admitted that earlier Sh. [ENTITY] [CASE NUMBER] Page No: 6/36 [ENTITY] was the tenant under the plaintiff and after his death, a new oral contract was entered between the plaintiff and Sh. [ENTITY] whereby the tenancy rights were not vested with the LRs of deceased [ENTITY] and Sh. [ENTITY] became the sole tenant in the suit premises. The plaintiff reiterated that the tenancy of Sh. [ENTITY] has been terminated and the the defendants are unauthorized occupants in the suit premises and are liable to vacate the suit premises and pay damages.
15. Vide order dated 04.03.[SECTION]05, on the basis of the pleadings of the parties , the following issues were framed in this case:
1. Whether there exists any relationship of landlord and tenant between the plaintiff and the respondent? OPD
2. Whether the jurisdiction of this court is barred under [SECTION] [ACT]?
3. Whether the suit is bad for non joinder of necessary parties? OPD
4. Whether the suit has not been valued properly for the purpose of court fees and jurisdiction? If so, its effect. (OPD)
5. Whether the plaintiff is entitled to recover damages from the defendants? If so, at what rate and for which period? OPP
6. Whether the plaintiff in entitled for any relief? If so, what relief?
16. In order to establish his case the Plaintiff examined six [CASE NUMBER] Page No: 7/36 witnesses. The Plaintiff examined himself as PW-1 and deposed on the lines of the plaint. He further examined Sh. [ENTITY], LDC from record room Civil, Karkardooma Court, to prove the record of Eviction petition bearing no. E-475/ [SECTION]00 titled as [PRECEDENT]. Sh. [ENTITY], AZI, MCD, Geeta Colony, Delhi, was examined as PW 3 who produced the assessment file of the suit premises for the year 1972. Sh. [ENTITY] and Sh. [ENTITY], were examined from the offices of the sub registrars as PW-4 and PW 5 to prove the sale documents in favour of the plaintiff. Sh. [ENTITY] posted as Sub Registrar, City Zone, MCD, Delhi was examined as PW 6 and he produced the death certificate of Sh. [ENTITY].
17. On the other hand, the defendants examined nine witnesses. The defendant no. 1 examined himself as DW-1 and the defendant no. 2 examined himself as DW-2. Sh. [ENTITY], Commercial Officer, MTNL, was examined as DW-3 and he produced the record of the telephone connection in the name of the defendant no. 2 in the suit premises. Sh. [ENTITY], from BSES was examined as DW 4 and he produced the record of the electricity connection in the suit premises in the name of Sh. [ENTITY]. Sh. [ENTITY] [CASE NUMBER] Page No: 8/36 [ENTITY], record keeper in the office of Chief Electoral Officer was examined as DW-5 who produced the electoral roll of the area showing the names of the defendants therein for the year 1998 and 1999. Ms. [ENTITY], Inspector, Food & Supply department was examined as DW-6 to prove the record pertaining ration card of the defendants. Sh. [ENTITY], from Amar Gas Agency was examined as DW-7 and he produced the record of the gas connection in the name of the defendant no. 1. Sh. [ENTITY], PGT Commerce, GBSS No.3 was examined as DW-8 who produced the school record of the defendant no. 1 showing his address as that of the suit premises. Sh. [ENTITY], Proprietor of B.N. Gupta & Co, Gas agency was examined as DW 9 who produced the record pertaining to the LPG connection in the name of [ENTITY].
18. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue no.1
19. The question to be answered is as to whether their exists [CASE NUMBER] Page No: 9/36 any relationship of landlord and tenant between the plaintiff and the defendants.
[SECTION]. The plaintiff examined himself as PW-1 and deposed on the lines of the plaint. He deposed that he had purchased the suit property from Smt. [ENTITY] through various documents such as General Power of Attorney, Agreement to Sell, Receipt, Will, Affidavit which are Ex. PW 1/14 to Ex. PW 1/19. The site plan of the suit premises is Ex. PW-1/6.
21. PW-1 further deposed that the suit premises was let out to Sh. [ENTITY] and the tenancy of Sh. [ENTITY] was terminated vide legal notice dated 02.04.[SECTION]04 which is Ex. PW-1/7. The postal receipts are Ex. PW-1/8 and Ex. PW-1/9. He further deposed that Sh. [ENTITY] expired on 07.05.[SECTION]04.
22. PW-1 was cross examined. He stated in his cross examination that his mother was the original owner of the suit property. He further stated that he started collecting rent from 1985. He stated that he does not remember who was the tenant prior to Sh. [ENTITY]. He [CASE NUMBER] Page No: 10/36 further stated that he cannot say when Sh. [ENTITY] stayed as a tenant in the suit property. He further stated that Sh. [ENTITY] might have come into the suit property in the year 1976. He denied the suggestion that Sh. [ENTITY] was the tenant in the suit premises and after his death, Smt. [ENTITY] his wife and his sons and daughters all became co-tenants. He denied that Sh. [ENTITY] used to pay rent on behalf of all the tenants. He denied the suggestion that the defendants alongwith other legal heirs of Sh. [ENTITY] have continued to reside in the suit premises. He denied the suggestion that the defendants are tenants in the suit property. However he admitted the contents of his replication.
23. As against this DW-1 has deposed that the father of the defendants Sh. [ENTITY] was a tenant under the plaintiff and Smt. [ENTITY] who remained a contractual tenant till his death in December 1967 and after his death his wife namely [ENTITY] and four sons namely Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] alongwith three sisters namely Smt. [ENTITY], Smt. [ENTITY] and Smt. [ENTITY] became the co-tenants in respect of the suit [CASE NUMBER] Page No: 11/36 premises. He further deposed that at the time of demise of his father, Sh. [ENTITY] was aged 18 years and the defendants were minors and the rent receipts were issued by the plaintiff in the name of Sh. [ENTITY] since he was the eldest son although the rent was being paid by Sh. [ENTITY] on behalf of all four brothers and three sisters including their mother continued as co tenants and neither the defendants or the brother, sisters or mother of the defendants had surrendered their tenancy rights to the plaintiff or anyone else. He further deposed that the defendants are lawful tenants in the suit premises. DW-2 also deposed on similar lines.
24. The material and evidence on record shows that Sh. [ENTITY] was initially inducted as a tenant in the suit premises. Sh. [ENTITY] expired in the year 1967. The fact that Sh. [ENTITY] was a tenant in the suit premises has been unequivocally admitted by the plaintiff in his replication although this fact was concealed by the plaintiff in the plaint. The electricity connection in the suit premises is also in the name of Sh. [ENTITY] which has been proved by DW 4.
[CASE NUMBER] Page No: 12/36
[SECTION]. The plaintiff has contended that after the demise of Sh. [ENTITY] the tenancy was not inherited by the other legal heirs and the tenancy was expressly surrendered by the other legal heirs and a fresh oral tenancy was created between the plaintiff and Sh. [ENTITY] and accordingly Sh. [ENTITY] was inducted/ treated as the sole tenant in the suit premises.
26. Since the plaintiff has averred this fact, it is for the plaintiff to establish the fact that the other LRs of Sh. [ENTITY] had expressly or impliedly surrendered their tenancy rights and a fresh oral tenancy was created between the plaintiff and Sh. [ENTITY] and since then Sh. [ENTITY] is the sole tenant in the tenanted premises and the defendants who are brothers of Sh. [ENTITY] have no right to reside in the suit premises.
27. The defendants on the other hand have contended that there was no express or implied surrender of tenancy on the demise of Sh. [ENTITY] by the other LRs of deceased Sh. [ENTITY]. The fact of the matter was that Sh. [ENTITY] was making the payment on behalf of all co-tenants and the rent receipts [CASE NUMBER] Page No: 13/36 were being issued in his name on behalf of all the co-tenants for the purpose of convenience.
28. The conduct of the parties and the material and evidence on record is extremely relevant for the purpose of ascertaining that whether there was any express or implied surrender of tenancy.
29. There is no document on record to show that there was an express surrender of tenancy rights by the defendants. The plaintiff/ PW 1 has admitted in his cross examination that nothing was given in writing by the defendants that they are surrendering their tenancy rights. At no point of time the possession was delivered to the plaintiff by the LRs of Sh. [ENTITY]. In fact PW 1 admitted in his cross examination that even Sh. [ENTITY] had not given possession to him during his life time. No fresh written agreement was executed between the plaintiff and Sh. [ENTITY] showing creation of a fresh oral tenancy. Thus there is not even an iota of evidence on record to establish that the tenancy rights of the defendants were expressly surrendered.
30. Now let us examine as to whether the tenancy was [CASE NUMBER] Page No: 14/36 impliedly surrendered by the defendants who are the legal heirs of Late Sh. [ENTITY].
31. In this respect in the judgment titled as S.A. Wali Quadri v. Sadar Anjuman-e-Islamia reported as AIR [SECTION]00 ANDHRA PRADESH 417 it was held:
" 9. The theory of implied surrender is now being assailed in this judgment. A tenancy can be determined in accordance with [SECTION] of the [ACT]. According to [SECTION] of [ACT], a lease of immovable property can be determined by express surrender or by implied surrender. There has been no express surrender in this case admittedly, and therefore, it is not germane for consideration. Whether there has been implied surrender on the part of the other legal heirs of the deceased tenant or not is the moot question. The specific plea taken in the plaint is to the effect that after the death of the original tenant, the appellant alone attorned the tenancy after due negotiations with the secretary of the institution and he enhanced the rent and had been paying the same, implying thereby that there was a fresh tenancy in favour of the appellant. The facts ultimately disclose that the other legal heirs including the three sons of one of the [CASE NUMBER] Page No: 15/36 daughters of the deceased tenant have been residing in the suit house along with the appellant, shorn of other contentious fact in regard to the vacation of the suit house by the appellant in or about the year 1988. The claim of DW1 that the appellant vacated the premises in the year 1988 is inconsistent with the plea taken in the written statement. The appellant has not chosen to come into the witness box to give evidence on oath. Therefore, the claim of DW1 cannot be countenanced in view of the absence of a specific plea in regard thereto and nay the inconsistency between the plea and the evidence. Obviously DW1 only seems to have evinced interest in the dispute. Except the names of the three nephews of the appellant, the names of the other brothers and sisters have not been furnished in the written statement. It is an insignia of evincing no interest on the part of the other legal heirs except DW1. DW1 admitted in his evidence that his other two brothers have gone abroad. Notwithstanding the fact that they have not been paying the rents and that they have relinquished the tenancy right, in the absence of clear evidence to the effect that possession of the premises was taken by the lessor pursuant thereto, no valid implied surrender can be inferred from out of the same. Mere abandonment of possession by the tenant does not ipso facto amount to surrender unless accompanied by the acceptance on [CASE NUMBER] the part of the lessor. The necessary intention must be on the part of either of the parties "
32. Adverting to the facts of the case defendants have proved various documents on record which clearly establish the continuous possession of the defendants in the suit premises. The defendants have categorically deposed that at the time of demise of Sh. [ENTITY] they were minors and were residing in the suit premises and since their birth they have been residing in the suit premises. Ex. DW-8/1 is the school record of the defendant no.1 for the year 1978-79, which shows his address as that of the suit premises. Ex DW-3/1 shows that a telephone was installed in the suit premises in the name of the defendant no.2 in the year [SECTION]01. Ex. DW-5/1 and Ex. DW-5/2 are the electoral rolls for the year 1998-99 which shows that Sh. [ENTITY], [ENTITY] and Sh. [ENTITY] were all residing at the suit premises. Ex. DW-7/1 is the copy of the document regarding the gas connection pertaining to the year 1988 in the name of the defendant no.1. Ex. DW-1/12 is the electricity bill payment made by the defendant no.1 in the year [SECTION]02. Ex. DW-1/5 is the Telephone bill dated 18.09.[SECTION]01 in the name of the defendant no. 2. Ex. DW-1/8 is the [CASE NUMBER] Page No: 17/36 election identity card of defendant no.1 issued on 13.12.1995 showing his address as that of the suit premises. Ex. DW-1/9 is the copy of the passport of defendant no.1 issued on 28.05.1993 showing his address as that of the suit premises. Copy of the ration card of the defendant no.1 issued in the year 1996 is Ex. DW-1/7.
33. Thus the defendants have placed on record ample documentary evidence which shows that they have been continuously residing in the suit premises. DW 1 and DW 2 have further categorically deposed that they have been residing in the suit premises since their childhood continuously. Counsel for the plaintiff has not been able to elicit anything substantial in there cross examination so as to discredit their testimonies. The plaintiff also could not produce any cogent and viable evidence to show that the defendants were not in possession of the suit premises.
34. The factum of continuous possession of the defendants in the suit premises runs counter to the theory of implied surrender of tenancy being raised by the plaintiff. A very important factor to determine as to whether there was implied surrender of tenancy on the [CASE NUMBER] Page No: 18/36 part of the LRs is to see as to whether the premises in question was used or occupied by LRs or not. In this case once it is proved that the defendants who are the LRs of Late Sh. [ENTITY] were continuously residing in the suit premises and using and occupying the same alongwith Sh. [ENTITY], no question of implied surrender of tenancy by the defendants arises.
35. There is also no cogent and viable evidence on record to show that a fresh tenancy was created between the plaintiff and Sh. [ENTITY]. Further more, the defendants have proved certified copy of the written statement dated 29.07.1997 filed on behalf of Sh. [ENTITY] in eviction petition bearing no. 475/[SECTION]00 titled as Padam Chand [ENTITY] Vs. [ENTITY] filed by the present plaintiff which is Ex. DW-1/22/ PW 1/DX4. In the said written statement filed on behalf of Sh. [ENTITY], it has been categorically averred by Sh. [ENTITY] that after the death of Sh. [ENTITY], Sh. [ENTITY] alongwith other LRs became co-tenants in the suit premises. This clearly shows that there was no implied surrender of tenancy on behalf of other LRs of deceased [ENTITY] and no fresh separate tenancy between the plaintiff and Sh [ENTITY] [CASE NUMBER] Page No: 19/36 [ENTITY] came into existence.
36. Moreover the plaintiff has averred in his application that a fresh tenancy was created between the plaintiff and Sh. [ENTITY] after the death of Sh. [ENTITY]. However, in his cross examination PW-1 has stated that he had started collecting the rent since year 1985 only and in the year 1962 his mother was the owner of the property. The plaintiff purchased the property in question from his mother in the year 1985 only. Thus, it is trite that at the time of the death of Sh. [ENTITY] in the year 1967 the plaintiff was not dealing with the suit property and his mother and father were dealing with the same, and therefore no question of creation of any fresh oral tenancy between the plaintiff and Sh. [ENTITY] arises.
37. The plaintiff has therefore failed to establish that the other legal heirs of deceased [ENTITY] had impliedly or expressly surrendered their tenancy rights or that a fresh oral tenancy had come into existence between the plaintiff or his mother/father on the one hand and Sh. [ENTITY] on the other hand.
[CASE NUMBER] Page No: [SECTION]/36
38. The next contention of the plaintiff is that in that even as per the [ACT] the wife of Sh. [ENTITY] should have only become the tenant but she did not deal with the landlord and Sh. [ENTITY] started dealing with the landlord which shows that Sh. [ENTITY] became the sole tenant. This contention of the counsel for the plaintiff holds no water as the wife would have solely inherited the tenancy only if the contractual tenancy of the deceased tenant Sh. [ENTITY] had been terminated during his life time. Nothing has been brought on record to show that the tenancy of Sh. [ENTITY] was terminated during his life time. Thus, Sh. [ENTITY] at the time of his death was a contractual tenant and not a statutory tenant. The tenancy right would not therefore devolve in terms of [SECTION] of the [ACT] but would be inherited by all the LRs of [ENTITY] jointly as joint tenants. To that extent even the contention of the defendants that they are co tenants is not correct.
39. In the judgment titled as "[PRECEDENT] it was held:
[CASE NUMBER] " 22. However, this Court in the case of [PRECEDENT], in connection with the same Act said (para 4 of AIR) :
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the land-lord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants."
23. The attention of the learned Judges constituting the Bench in the case of [PRECEDENT] (supra) was not drawn to the view expressed in the case of [PRECEDENT] (supra). There appears to be an apparent conflict between the two judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of the original tenant his heirs become tenant in common and each one of the heirs shall be [CASE NUMBER] Page No: 22/36 deemed to be an independent tenant in his own right. This can be examined with reference to [SECTION] which contains the grounds on which a tenant can be evicted. [SECTION] says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in [SECTION] in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heirs or heir alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground(b) of [SECTION] Page No: [SECTION], which says that if the tenant has willfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; against, if one of the sons of the original deceased tenant wilfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of clause (c) which is another ground for eviction, i.e., the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility, or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made finishing its value and utility,unless he establishes that all the heirs of the deceased tenant had done so. [SECTION] prescribes another ground for eviction - that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord [CASE NUMBER] Page No: 24/36 cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in [SECTION] against each of the heirs of original tenant. One of the well settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.
24. It appears to us, in the case of [PRECEDENT] (supra) it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefore and the heirs succeed to the tenancy as joint tenants.
[SECTION]. In the case of [PRECEDENT], the Constitution Bench of this Court in [CASE NUMBER] Page No: [SECTION]/36 connection with [ACT] said (para 36 of AIR) :
"The heirs of the deceased tenant in the absence of any provision in the [ACT] to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the [ACT] to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act."
26. The framers of the Act have clearly expressed their intention in [SECTION], [SECTION] and [SECTION] while protecting the tenant from eviction except on the grounds mentioned in [SECTION], that after the death of the [CASE NUMBER] Page No: 26/36 original tenant his heirs will be deemed to be holding the premises as joint tenants, and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in [SECTION] are established individually against each one of them, they cannot be evicted from the premises in question "
40. The defendants are therefore joint tenants in respect of the suit premises. The fact that they have not paid rent at any point of time would not change their status as joint tenants in the suit premises. It is another aspect that the plaintiff would become entitled to take legal recourse against the defendants on account of non payment of rent but the defendants would still continue to be joint tenants in the suit premises. The rent was therefore paid by Sh. [ENTITY] on behalf of all the joint tenants.
41. The net result is that the version of the defendants is more probable that Late Sh. [ENTITY] was the original tenant in the suit premises. After the demise of Late Sh. [ENTITY] his LRs including the defendants and Sh. [ENTITY] became joint [CASE NUMBER] Page No: 27/36 tenants in respect of the suit premises.
42. The plaintiff is not only the legal heir of the original owner Smt. [ENTITY] but also claims to be the absolute owner of the suit premises on the basis of a set of transfer documents viz. GPA, agreement to sell, receipt etc. Ex. PW 1/14 to Ex. PW 1/19 executed by Smt. [ENTITY] in his favour. Nothing has been established by the defendants to show that the said documents are not valid. Even if the said documents were not executed by Smt. [ENTITY] or they were canceled by Smt. [ENTITY] the plaintiff being the son of Smt. [ENTITY] is a co owner of the suit premises and therefore he is owner of the entire property for all practical purposes and is competent to file a suit for possession against the defendants without impleading the other co owners or co-landlord. Reference may be made to the judgment titled as [PRECEDENT]. The plaintiff is therefore the owner and land lord of the suit premises.
43. Thus there exists relationship of landlord and tenant between the plaintiff and the defendants. This issue is therefore decided [CASE NUMBER] in favour of the defendants and against the plaintiff.
44. I have already held that the defendants are joint tenants in respect of the suit premises under the plaintiff. It is clear from the record that the rate of rent in respect of the suit premises is Rs. [SECTION]0/- per month and hence the defendants are entitled to protection in terms of the [ACT]. The plaintiff accordingly cannot recover the possession of the suit premises from the defendants in the present suit as the present suit is barred under [SECTION] of the [ACT].
Issue no. 2 is decided in favour of the defendants and against the plaintiff.
Issue no.5
45. The plaintiff has claimed damages @ Rs. 1000/- per month w.e.f. May [SECTION]04. I have already held that the defendants are joint tenants in respect of the suit premises under the plaintiff and the rate of rent is Rs. [SECTION]0/- per month. Since the defendants are lawful tenants in the suit premises no question of payment of any damages arises. The plaintiff is therefore not entitled to any damages. There is no specific [CASE NUMBER] Page No: 29/36 prayer for recovery of arrears of rent for any specific period nor any evidence has been clearly adduced by the plaintiff so as to show that for what period the rent had not been paid by the defendants. The result is that the plaintiff is not entitled to any damages.
This issue is also decided in favour of the defendants and against the plaintiff.
Issue no.4
46. The question to be answered as to whether the suit has been properly valued for the purpose of court fees and jurisdiction.
47. The plaintiff has claimed that the defendants are the relatives of the tenant Sh. [ENTITY] who continued in possession after the demise of Sh. [ENTITY] and therefore they are unauthorized occupants. Accordingly the plaintiff valued the suit for the purpose of court fees and jurisdiction on the annual rent. The defendants have claimed that the suit ought to have been valued on the market value of the suit premises.
48. In this context reference may be made to the judgment of [CASE NUMBER] Page No: 30/36 Hon' ble High Court of Delhi titled as Krishna Prakash v. Dilip Harel Mitra Chenoy reported as 93 ([SECTION]01) DLT 777 (DB) wherein it was held:
" 42. [PRECEDENT]'s case (supra) was one where the tenancy of the erstwhile tenant was determined by means of a quit notice during his lifetime. He, however, continued in possession of the tenanted premises as a statutory tenant until his death. Thereafter, his heirs continued to retain the possession thereof and did not hand back the same to the landlords. Consequently, a suit for possession was filed against he heirs. Like the present defendants/appellants, the defendants/heirs in that suit raised a preliminary plea that the suit was liable to be valued on the market value of the suit property and the court fee was accordingly payable under [SECTION] of the [ACT]. Relying on Full Bench decision in [PRECEDENT]'s case (supra), such plea was, however, negatived by the Division Bench. The relevant part of the said judgment, as extracted hereunder, provides a complete answer to the plea raised on behalf of the defendants/appellants. It reads thus: "I appears to us that on ground of equity and legislative intention it could not have been contemplated that suits for the recovery of possession from the heirs of deceased statutory tenant should bear a court-fee at the [CASE NUMBER] Page No: 31/36 full market value of the property. It should be appreciated that the landlord in the case of tenanted premises is deemed to be in possession of the premises though symbolically through his tenant. It is for this reason that when a suit is filed for recovery of possession against a statutory tenant court-fee is leviable under [SECTION]. This is the very nature of the present suit which has been filed to recover the premises from the heirs of the deceased statutory tenant. Simply because the statutory tenant has died and his heirs are in possession and had, therefore, to be imp leaded to the suit, so that any defense which was open to the deceased tenant could be taken by him, it does not make it into a suit on the basis of title against rank trespassers. It still remains a suit for recovery of premises from a tenant after the determination of his tenancy. Statutory tenant had been inducted into the premises with the permission of the owner, the recovery of possession of that premises must continue to bear the same colour of the suit even when possession is sought to be recovered from the heirs of the deceased statutory tenant. To accede to the contention of Mr.[ENTITY] would put a premium on the unauthorised occupation by the heirs because in many cases the high rate of court-fee would act as deterrent and be prohibitive for filing a suit of the ad valorem court-fee has to be paid on the market value of the [CASE NUMBER] Page No: 32/36 property. It appears to us that there is no justification for asking the plaintiff to pay court-fee on the market value under [SECTION] of the Act and why he should not pay under [SECTION] of the Act when all that the plaintiff seeks to recover is the premises which had at one time been given on tenancy to the deceased statutory tenant. That is why we are of the opinion that in the present case the court-fee would be payable under [SECTION] of the Act."
43. Manifestly, thus, for the purpose of court fee and jurisdiction, the present unit was liable to be valued on the basis of twelve months' rent and the court fee thereon was payable accordingly. It is [SECTION] and not [SECTION] of the [ACT], which governs the issue. It is the aggregate of annual rent and mesne profits, leaving apart pendente lite and future mesne profits which will determine the jurisdictional value of the suit and not the market value. As the suit has been valued and the court fee paid in accordance with [SECTION] of the [ACT], there is no substance in the plea that the suit has not been properly valued for the purpose of court fee and jurisdiction. The plea is, therefore, liable to be negative. The issue No.5 is, accordingly, held to have rightly been decided against the appellants/defendants "
[CASE NUMBER] Page No: 33/36
49. In the present case also, the defendants cannot be described as rank trespassers as per the version of the plaintiff and as they have been described as relatives of the deceased tenant Sh. [ENTITY]. The present suit cannot be described as a title suit also. Thus the issue is squarely covered by the judgment of the Hon' ble High Court of Delhi. Even the defendants are claiming themselves to be tenants in the premises in question. Thus the suit was rightly valued on the annual rent.
50. I therefore hold that the defendants have failed to establish that the suit has not been properly valued for the purpose of court fees and jurisdiction.
This Issue is decided in favour of plaintiff and against the defendants.
51. The defendants have claimed that the suit is bad for non joinder of a necessary party and Smt. [ENTITY] who was the co landlord has not been impleaded as a party.
[CASE NUMBER] Page No: 34/36
52. The plaintiff claims himself to be the absolute owner/landlord of the suit premises. The original owner of the property was Smt. [ENTITY] who executed transfer dosuments in favour of the plaintiff which are Ex. PW 1/14 to Ex. PW 1/19. The onus to prove this issue was upon the defendants. The defendants have not established that how Smt. [ENTITY] was the co owner/ co landlord. Even otherwise if the plaintiff is a co owner of the suit premises he is to be considered as the owner of the entire property for all practical purposes and is competent to file a suit for possession against the defendants without impleading the other co owners or co-landlords. Reference may be made to the judgment titled as [PRECEDENT].
53. The argument therefore that the suit is bad for non joinder of a necessary party as the co landlord Smt. [ENTITY] has not been impleaded is therefore not tenable. It cannot be said that the suit is bad for non joinder of a necessary party.
This issue is therefore decided in favour of the plaintiff and against the defendants.
[CASE NUMBER] Page No: 35/36 RELIEF
54. In view of my findings on aforesaid issues, I hold that the plaintiff is not entitled to recover the possession of the suit premises or any damages from the defendants. The suit is also barred under [SECTION] of the [ACT]. The plaintiff is therefore not entitled to the relief claimed. The suit is accordingly dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 09.09.[SECTION]11 CCJ/ARC(East) (Judgment contains 36 pages.) KARKARDOOMA COURTS, DELHI [CASE NUMBER] Page No: 36/36