HIGH COURT OF DELHI AT NEW DELHI RFA No.68/2001 Date of Decision: February 08,2008 Sharda Devi Gill (Decd.) Thr. Lrs……. Appellants Through: Ms.Geeta Luthra, Mr.Siddharth Luthra, Mr.P.K.Dubey and Ms.Arundhati Katju, Advocates. Versus Rakesh Jain ……………... Respondent Through: Mr. V.B. Andley, Sr.Adv. with Mr. Rajinder Mathur & Ms.Lakshita Sethi, Advs. CORAM: Hon’ble Mr. Justice T.S. Thakur Hon’ble Mr. Justice S.L. Bhayana 1. Whether reporters of local papers may be allowed see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the digest or not? Yes S.L. BHAYANA, J. The present appeal arises out of a suit for possession, mandatory injunction, damages and mesne profits in respect of use and occupation of the premises bearing No. K-1, Lajpat Nagar–II, New-Delhi (hereinafter referred to as “the suit premises”). The learned Additional District Judge dismissed the suit of the Appellants by order dated 18.12.2000. The facts giving rise to the filing of suit may be summarized as under: RFA 68/2001 page 1 of 20 2. The husband of Smt. Sharda Devi Gill expired on 30.04.80. After the death of her husband, the Smt. Sharda Devi Gill continued to live alone in the suit premises till 1986. She was attended to by Sh. Digvijay Singh, PW-3, a childhood friend of her youngest son. In March 1986, Smt. Sharda Devi Gill was introduced to Sh. Rakesh Jain, the Defendant-Respondent by Sh. Digvijay Singh, PW-3. On the assurance of Sh. Digvijay Singh PW- 3, Smt. Sharda Devi Gill agreed to permit the Defendant- Respondent to stay in a portion of the suit premises as a permissive occupant/licensee along with his family. The Defendant-Respondent was not in exclusive possession of any portion of the suit premises till November 1990. In November 1990, Smt. Sharda Devi Gill fell ill and shifted to the house of her son, Dr. J.S. Gill, Appellant No.2. On her return to the suit premises in January 1991, she was shocked to see illegal construction on the suit premises and requested the Respondent to vacate and hand over peaceful possession of the suit premises to her, which he refused. On these allegations Smt. Sharda Devi Gill filed a suit for possession, mandatory injunction and mesne profits. 3. During the pendency of the suit, the Smt. Sharda Devi Gill died on 23.04.98 and her three sons- S/Sh. S.S. Gill, J.S. Gill and R.S. Gill were brought on record as her legal representatives. 4. The Defendant-Respondent contested the suit. He filed the written statement in which he denied that he was RFA 68/2001 page 2 of 20 introduced to Smt. Sharda Devi Gill by Sh. Digvijay Singh, PW-3 or by Sh. S.K. Pahwa, PW-2. He also denied that he had made any addition or alteration to the suit premises. He further claimed that Smt.Sharda Devi Gill let out three rooms, a kitchen, a bathroom and a toilet to him at a monthly rent of Rs.700/-. He averred that he had never been a licensee and, therefore, the question of termination of license would not arise. Before the institution of the present suit, the Defendant-Respondent filed suit no.604/1991 for perpetual injunction, which was decided in his favour. 5. On the pleadings of the parties, the trial Court framed the following issues for determination: “(i). Whether the suit was signed and verified by the duly authorized person? (ii) Whether the suit has been properly valued for the purpose of Court fees? (iii) Whether Section 50 of the Delhi Rent Control Act bars the suit? (iv) Whether the Defendant was a licensee? And if so, to what extent? (v) Whether the Defendants status presently is that of a trespasser? (vi) Whether the Plaintiff is entitled to the possession of the property in question? (vii) Whether the Plaintiff is entitled to possession of the property in question and if so, to what extent? (viii) Relief.” 6. In support of their case, the Appellants have examined three witnesses namely Sh. S.S. Gill, PW1, who is the RFA 68/2001 page 3 of 20 son and Attorney of late Smt. Sharda Devi Gill, Sh. S.K. Pahwa, PW-2 and Sh. Digvijay Singh, PW-3. The Respondent has examined as many as five witnesses namely Sh. Raj Kumar, DW-1, Sh. Rajinder Bisht, DW-2, Sh. Rakeh Jain, DW-3, Sh. Vijay Kumar DW-4 and Sh. B.K. Gupta, DW-5. 7. By the judgment and decree impugned in this Appeal, the Trial Court answered issue No.1 in favour of the Plaintiffs- Appellants and held that Sh. S.S. Gill, PW1 was the authorized signatory of Smt. Sharda Devi Gill by virtue of the Special Power of Attorney (Ex PW1/1) executed in his favour by her. Issue No.2 was also held in favour of the Plaintiffs-Appellants. The Trial Court was of the opinion that the suit had been correctly valued at Rs.4,00,000/-for the purposes of Court fees. The Trial Court however, in its judgment while dismissing the suit did not settle the question regarding the status of the Respondent in the suit premises and hence, correctness of the judgment and decree passed by the learned Additional District Judge has been questioned on law and fact by the Appellants in respect of issues no.3, 4, 5, 6, 7 & 8 which are based on the status of the Respondent in the suit premises. 8. Learned counsel for the Appellants contended that the Respondent, in spite of residing in the suit premises for over 10 years, was unable to produce any evidence in support of the payment of rent. It was further contended that the Respondent has been unable to produce a single rent receipt, entry regarding the RFA 68/2001 page 4 of 20 payment of rent in his tax returns, nor any bank statement to indicate that he ever paid the rent to Smt. Sharda Devi Gill. The Appellants further submitted that the Respondent cannot claim that the services of taking care of Smt. Sharda Devi Gill in lieu of right of occupation would not amount to receipt of rent, as otherwise, the entire purpose of rent law would be defeated. To support his argument, learned counsel for the Appellants relied on Ralhu Ram vs. Than Singh, AIR 1967 Punjab 328 where the Court held as under: “Non-payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar Ammar Ahmed Khan v. Union of India, 1954-56 Pun LR 468: (AIR 1955 Punj 37):-- "The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship." 9. Learned counsel for the Appellants further argued that the deceased Smt. Sharda Devi Gill permitted the Respondent to stay in a portion of the suit premises marked red in site plan RFA 68/2001 page 5 of 20 Ex.PW1/2 as a permissive occupant. The Respondent was not in exclusive possession of any portion of the suit premises and in fact the parties used a common kitchen and toilet till 1990. In the absence of Smt.Sharda Devi Gill, the Respondent raised unauthorized construction as shown green in Ex.PW1/2. Thereafter, Smt. Sharda Devi Gill directed the Respondent to vacate the suit premises. 10. Learned counsel for the Appellants vehemently argued that the Trial Court has failed to appreciate that the Respondent has been unable to prove his tenancy in the suit premises. He argued that the two essential ingredients of tenancy being ‘rent’ and ‘exclusive possession’ have not been proved by the Respondent and hence, his status in the suit premises is that of a ‘trespasser’. In support of his contention learned counsel has placed reliance on Dipak Banerjee vs. Lilabati Chakaraborty, AIR 1987 SC 2055, wherein the Apex Court categorically held that in order to prove tenancy or sub-tenancy two ingredients have to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation of rent. 11. Learned counsel for the Appellants further submitted that the Respondent was not a stranger to the Appellants and he was inducted in the suit premises on the recommendation of Sh. Digvijay Singh, PW3. The Respondent was inducted as a licensee, RFA 68/2001 page 6 of 20 in order that he takes care of Smt.Sharda Devi Gill in her old age and, had promised to vacate the premises when he was directed to do so. 12. Learned counsel for the Appellants further submitted that the learned Trial Court failed to award damages in favour of the Appellants and against the Respondent. Although the Respondent had been using the suit premises illegally and in an unauthorised manner after his licence had been revoked by the Appellants, the learned Trial Court did not award any mesne profits for use and occupation of the suit premises in favour of the Appellants and against the Respondent. Learned counsel for the Appellants has drawn our attention to the evidence of Sh. S.S. Gill who is the son and Attorney of late Smt. Sharda Devi Gill. He has categorically stated before the Trial Court that they have claimed damages for the use and occupation of the premises @ Rs. 10,000/- per month and that the same may be awarded against the Respondent. Learned counsel for the Appellants has also drawn our attention to the evidence of Sh. Digvijay Singh PW-3 who has categorically stated in his examination-in-chief that the market rent of the premises in 1996 was Rs. 10,000/- per month and he had given his own house on the 2nd floor to M/s. Jindle Polyester Ltd at a monthly rent of Rs. 12,000/-. He had a written lease agreement with the said tenant. In his cross-examination, he has denied the suggestion that he had falsely deposed about the rent of Rs. 12,000/- per month. RFA 68/2001 page 7 of 20 13. Mr. V.B. Andley, learned senior counsel appearing for the Respondent, on the other hand, contended that the Respondent was inducted in the suit premise as a tenant of Smt. Sharda Devi Gill since March 1986 for a rent of Rs.700 per month in respect of three rooms, kitchen, bathroom and a toilet along with the right of common use of the front open Courtyard and back yard of the suit premises. He further stated that he occupied the said premises on 16.03.1986 as a tenant and had been paying the rent in advance by the 6th, 7th, or 8th of each month. 14. Learned senior counsel contended that three sons of Smt. Sharda Devi Gill, i.e., Appellants No.1, 2 & 3 did not like the idea of keeping the Respondent along with his family in the suit premises. He further submitted that it is only by reason of the fact that he was inducted in the suit premises as a tenant, the Appellants had an objection as there would be no other reason for Smt.Sharda Devi Gill’s sons to object to the Respondent being inducted only as a person to look after her. 15. Learned senior counsel further argued that the Respondent was in exclusive possession of the said three rooms and had been locking the premises since its inception. It is argued that the Respondent was enrolled as voter from the suit premises and that he had a gas connection, two or three telephone lines and if the Respondent had been inducted in order to look after Smt. Sharda Devi Gill all these amenities would have been provided to the Respondent by Smt. Sharda Devi Gill. The RFA 68/2001 page 8 of 20 Respondent also denied to have raised any illegal construction marked PQRS in Ex. PW-1/2. The Respondent further, in his cross- examination, denied that he came in contact with Smt. Sharda Devi Gill through Mr. S.K.Pahwa PW-2. He has stated that he was introduced to Smt. Sharda Devi Gill in the house of Appellant No.2, through a broker. 16. It is argued on behalf of the Respondent that the Appellants were unable to prove that the Respondent was inducted as a licensee. The Respondent contended that though a formal document was absent, in such cases reliance would have to be placed on the intentions of the parties and the surrounding circumstances must be taken into account. To support his contention learned counsel placed reliance in the case of M.N. Clubwala & Anr. Vs. Fida Hussain Saheb & Ors., AIR 1965 SC 610. The Respondent has further contended that he is in exclusive possession of the suit premises having an interest therein and the conduct of the parties and the surrounding circumstances indicate that the intention of the parties was to create a tenancy and not a mere licensee. 17. We have heard the learned counsel for the parties and perused the impugned judgment and record. 18. We have gone through the statement of Sh. S.S. Gill, PW-1 who has categorically deposed before the Trial Court that in 1986 his mother was living alone in the suit premises. He and his RFA 68/2001 page 9 of 20 brother Dr. J.S. Gill were living separately from Smt. Sharda Devi Gill in Delhi while his second brother Sh. R.S. Gill has been living in England for the last 14 years. Sh. Digvijay Singh, PW-3 was a close family friend who was also living near the suit premises. Sh. Digvijay Singh brought the Defendant-Respondent to Smt. Sharda Devi Gill and told her that the Defendant was a very homely and decent person and that he would live along with her in another room in the suit premises, and would be a support to her. The Defendant was introduced by Shri S.K. Pahwa to Sh. Digvijay Singh. Sh. S.K. Pahwa was an old friend of Digvijay Singh. When he visited his mother, Smt. Sharda Devi Gill told him about the induction of the Respondent- Defendant at the instance of Sh. Digvijay Singh into a room in the suit premises, as a help and support to her. He stated that his mother Smt. Sharda Devi Gill had not entered into any kind of an agreement with the Respondent- Defendant nor was there any monetary consideration to be paid by the Defendant-Respondent for staying in the suit premises. He has further deposed that his mother fell ill in 1990 and for the purposes of treatment she shifted to the house of his brother for three months i.e. from November 1990 to January, 1991. During the absence of Smt. Sharda Devi Gill from the suit premises, the Respondent Defendant added portion PQRS shown in black outlines on the site plan. When Smt. Sharda Devi Gill discovered this, she told the same to her sons. They were very upset and directed the Respondent-Defendant to vacate the house. Instead of vacating the house, the Respondent-Defendant filed a false suit against him, his mother and brothers charging RFA 68/2001 page 10 of 20 them of forcibly trying to evict him from the suit premises. 19. We have also gone through the statement of Sh. S.K. Pahwa PW-2 who has deposed before the Trial Court, that he knew the Respondent-Defendant Sh. Rakesh Jain due to some business dealings. Sh. Rakesh Jain requested him to help him find some accommodation in Lajpat Nagar as he was having some problems with his father. Sh. Digvijay Singh had told him that the mother of his friend was an old lady and living alone and requested him to shift to the house of that lady, but he refused. He then introduced Sh. Rakesh Jain to Digvijay Singh and told him that Sh. Rakesh Jain was a nice person and would look after Smt. Sharda Devi Gill and Sh. Rakesh Jain also assured that he would vacate the suit premises whenever he was directed to do so. Sh. Rakesh Jain shifted to the suit premises in March, 1986. 20. We have also gone through the statement of PW-3 Sh. Digvijay Singh who has categorically deposed before the Trial Court that Smt. Sharda Devi Gill was above 70 years of age and had expressed her desire, for somebody to stay with her as a help as it would be good for her. He talked to Sh. S.K. Pahwa about the same, who introduced him to Sh. Rakesh Jain and told him that Sh. Rakesh Jain would be a good help to the Plaintiff as his wife was a housewife and that the Respondent-Defendant would take care of Smt. Sharda Devi Gill and help her. RFA 68/2001 page 11 of 20 21. There was no question of payment of rent but the Respondent-Defendant was to vacate the suit premises as and when asked to and, that he would look after Smt. Sharda Devi Gill. On these terms, Sh. Rakesh Jain was inducted into the house of the Plaintiff. 22. From the statement of all three witnesses examined on behalf of the Appellants-Plaintiffs, it has been proved on record that the Respondent – Defendant, Sh. Rakesh Jain was introduced to Smt. Sharda Devi Gill by Sh. S.K.Pahwa and Sh. Digvijay Singh, with a clear understanding that he would look after Smt. Sharda Devi Gill and that he would vacate the premises as and when he would be asked to do so. It has also been proved beyond reasonable doubt that the Respondent-Defendant was not inducted as a tenant in the suit premises but was inducted only as a licensee to look after the old lady who was in need of such help at the relevant time. It has also been proved on record that no rent was to be paid by the Respondent-Defendant to Smt. Sharda Devi Gill for use and occupation of the suit premises by the Respondent-Defendant. 23. We have also gone through the statements of the witnesses examined by the Respondent-Defendant in this case. Sh. Rakesh Jain who is the Respondent herein, has deposed before the Trial Court that he met Smt. Sharda Devi Gill at D-II/49, Ansari Nagar where she had agreed to let out three rooms, kitchen, bathroom and toilet along with common use of back Courtyard RFA 68/2001 page 12 of 20 and front Courtyard at a monthly rate of Rs. 700/- at ground floor K-1, Lajpat Nagar, New Delhi and it was given to him for residential-cum-commercial purpose. He occupied the suit premises on 16.3.1986. He made cash payments to the landlady and she did not give the receipt of any such payments made to him. In his cross-examination, he admitted that he had not named the broker who had introduced him with Smt. Sharda Devi Gill. He has denied the suggestion that there was no broker and, that he had made an entirely false statement. He has admitted that there was no written agreement entered into between him and Smt. Sharda Devi Gill. He has admitted that he had no rent receipt in respect of the suit premises. He has also admitted that there was no payment made by him to Smt. Sharda Devi Gill either by cross cheque or by self cheque. He has admitted that he had additional residential accommodation in East of Kailash. He has admitted that he had stated that damages for use and occupation of the suit premises was Rs. 2,000/- per month. He has denied the suggestion that he was inducted into the suit premises to take care of Smt. Sharda Devi Gill as a licensee. He has also admitted that he was an Income Tax Assessee. He has admitted that Smt. Sharda Devi Gill had asked him to vacate the premises in 1991. He has admitted that he had filed Suit No. 604/1991 in which he had admitted that he did not give the name of any broker in his statement. He has denied the suggestion that there was no broker and that he had made an entirely false statement. He has also admitted that in Suit No. 604/1991 filed by him, he had stated that damages for use and occupation of that premises was Rs. 2,000/- RFA 68/2001 page 13 of 20 per month while in the present case he has stated that the damages for use and occupation of the same premises were Rs. 1500/- per month. 24. We have also gone through the statement of Sh. Vijay Kumar DW-4. He has admitted that the Respondent-Defendant had told him that he had purchased a three bed room accommodation at East of Kailash in Block A. He has further stated that he was not in a position to say if the premises at K-1, Lajpat Nagar, New Delhi was let out and would earn rent of Rs. 10,000/- per month. He has further admitted that the premises in East of Kailash was purchased by Mr. Rakesh Jain two years back. 25. Other witnesses examined by the Defendant are formal in nature. 26. The Respondent-Defendant has not produced a single witness to prove that he had taken the suit premises on rent from Smt. Sharda Devi Gill at a monthly rent of Rs. 700/-. No witness has come forward to state this fact before the Trial Court. Sh. Rakesh Jain who has himself deposed as DW-3 has categorically stated that there was no rent deed executed between him and Smt. Sharda Devi Gill. There is no oral or documentary evidence to prove payment of rent by the respondent except a self-serving and wholly uncorroborated assertion made by him in his own testimony to that effect. The respondent has, in our opinion, failed to establish the payment of rent to Smt. Sharda Devi Gill. The RFA 68/2001 page 14 of 20 payment of rent between the parties is a circumstance pointing towards existence of landlord-tenant relationship. On the other hand, the absence of payment of rent indicates the non-existence of such a relationship. This Court in the case of Mitter Sain Jain v Attar Sain Jain, 1995 (35) DRJ 262, has held as under: “To our mind, tenancy is a matter of contract. The payment and acceptance of rent between the parties is a circumstance pointing out towards existence of landlord-tenant relationship between the parties. On the other hand, non-payment of rent between the parties would be a circumstances pointing out towards non-existence of such relationship. Such a piece of circumstantial evidence shall have to be appreciated and weight assigned to it by reference to the facts and circumstances of each individual case and the otherwise mutual relationship of the parties. The course of conduct evidenced by continued periodical payments spread over a large period of time would have more impact on the mind of the Court than a single payment or stray payment or payments spread over a short period of time. In an individual case there may be available the esxistence of circumstances both the ways. There may be a few payments and acceptance spread over a small period. The inference as to existence of tenancy relationship flowing from such a circumstance may stand rebutted by the inference flowing from the circumstances of non-payment spread over a long period as is in the case at hand, to be noticed shortly hereinafter.” 27. To the same effect is the decision of Allahabad High Court in Turab v Laxmi AIR 1984 All 180, where the Court summed up the legal position in the following passage: