CS(OS) 836/2006 Page 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 04.3.2010 Judgment Delivered on: 09.3.2010 + CS(OS) No.836/2006, I.A.Nos.5693/2006 & 1241/2009 BALKISHAN YADAV ..........Plaintiff Through: Mr.S.P.Kalra, Sr. Advocate with Mr.B.S. Sharma, Advocate. Versus 1-SHRI RANBIR YADAV 2-STATE BANK OF INDIA ..........Defendants Through: Mr.H.L.Narula, Advocate for defendant no.1. Mr. S.L. Gupta, Advocate for defendant no.2. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. 1. Plaintiff Balkishan Yadav and defendant no.1 Ranbir Yadav are real brothers; they are born of their deceased father Umrao Singh. They have two other brothers namely Dharam Pal and Randhir Singh, they are not parties to the present suit. CS(OS) 836/2006 Page 2 of 38 2. Property bearing no.55, Jwalaheri, PaschimVihar,New Delhi was owned by their deceased father Umrao Singh. He died intestate on 08.4.1996. The aforestated property, thus, devolved in equal shares upon all the four brothers including the plaintiff and the defendant no.1. 3. The said property had been let out to defendant no.2 by the deceased Umrao Singh in his life time in the year 1980. Defendant no.2 continues to be in occupation of the said property as a tenant. After the death of Umrao Singh, plaintiff authorized his brother defendant no.1 vide special power of attorney to collect rent of the plaintiff’s share from defendant no.2 and this arrangement continued for several years. 4. In the year 1996, defendant no.1 was not faithful in discharging his obligations, plaintiff revoked the power of attorney. A family settlement was arrived at between the brothers. It was agreed that each of the four brothers would be entitled to 1/4th share of the rent payable by the defendant no.2 and intimation to the said effect dated 3.01.1997 was sent to defendant no.2. Defendant no.2 was requested by defendant no.1 to apportion the total rent in four shares and credit it in the account of the plaintiff to the extent of his 1/4th share. Similarly 1/4th share of the total rent payable was apportioned CS(OS) 836/2006 Page 3 of 38 as share of defendant no.1 and the balance fell to the share of the other two brothers. 5. Defendant no.2 started crediting the plaintiff’s saving bank account no.28893 with 1/4th of the rent which had fallen due as his share. This arrangement continued from February 1997 up to June 1998. Thereafter defendant no.2 discontinued paying rent to the plaintiff. In spite of requests, defendant no.2 did not pay heed to the same. 6. CS(OS)No.933/2001 was filed by plaintiff against defendant nos.1 and 2 for the recovery of his unpaid rent. On 17.1.2002 defendant no.2 was restrained from releasing 1/4th of the total rent i.e. the share of the plaintiff to the defendant no.1. An application for release of the rent was filed by the plaintiff which was rejected vide order dated 28.2.2002. In appeal i.e. FAO(OS) No.132/2003 vide order dated 4.8.2004, defendant no.2 was directed to deposit the 1/4th share of the rent of the plaintiff in his account. Appeal was disposed of. 7. Parties had arrived at settlement and on 1.2.2005 the aforestated suit CS(OS)No.933/2001 was dismissed as withdrawn having been compromised. On 14.4.2005 in terms of the aforestated compromise defendant no.1 wrote a letter to defendant no.2 asking him to pay 1/4th share of the plaintiff to CS(OS) 836/2006 Page 4 of 38 him. However, defendant no.2 did not credit account of the plaintiff with his share of 1/4th of the rent. A request letter was sent to defendant no.2. In its reply, dated 30.11.2005 defendant no.2 stated that he had paid the share of the plaintiff’s 1/4th rent to defendant no.1. Legal notice dated 30.12.2005 was sent by the plaintiff to both the defendants demanding the share of his rent. However, neither of the defendants paid any heed to this legal notice. 8. That the rent of the aforestated property had been enhanced from time to time by defendant no.2. From June 2001 to 1.2.2005 rent was being paid @ Rs.80,000/- per month; from February,2005 to 31.3.2006 rent was being paid @ Rs.1,00,000/- per month. Defendants are thus liable to pay Rs.20,18,481/- towards his 1/4th share of the rent which comprises as follows:- i. Difference of rent for the period February 1997 to June 1998 Rs.19,583.75-13, 522=6,061.75 & 17 months Rs.1,03,049.75 ii. Rent in arrears from July, 98 May 2001 @ Rs.19583.75 x 35 Rs.6.85,431.25 _______________ Total Rs.7,88,481.00 iii. Rent from June 2001 to 1.2.05 @ Rs.20,000/- per month i.e. 44 months Rs.8,80,000.00 iv. Rent from Feb. 2005 to 31.3.06 CS(OS) 836/2006 Page 5 of 38 i.e. 14 months @ Rs.25,000/- Rs.3,50,000.00 ________________ Grand total Rs.20,18,481.00 Decree for the aforestated amount has been claimed. 9. In the written statement filed by defendant no.1 the preliminary objection is that the suit is barred under Order 23 Rule 1 CPC as also under the provisions of Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as the CPC). It is contended that the earlier suit i.e. CS(OS) No.933/2001 between the same parties was withdrawn on 01.2.2005 on an application under Order 23 Rule 1 CPC. Present suit in respect of the same subject matter and on the same cause of action is thus not maintainable. It is stated that the plaintiff in the earlier suit had admitted that in terms of a decree dated 19.5.1971 the defendant no.1 is the exclusive owner of the suit property i.e. property bearing no.55, Jwalaheri, Paschim Vihar, New Delhi. This is an admission by the plaintiff himself which he is not permitted to withdraw. 10. Plaintiff has no right, title or interest in the property. The letter dated 14.4.2005 purported to have been signed by defendant no.1 is a forged and fabricated document; no such letter had been written by him. Plaintiff’s claim is even CS(OS) 836/2006 Page 6 of 38 otherwise barred by estoppel in view of the fact that he had withdrawn the earlier suit CS(OS) No.933/2001 on 01.2.2005. On 10.5.2005 a gift deed was executed by defendant no.2 in favour of the plaintiff relating to 1/4th share in the land measuring 29 kannal 9 marla situated at Siwana Muaza Jautolla, Tehsil Farookh Nagar, Distt Guargaon, on a payment of stamp duty of Rs.36,000/- which fact has been concealed by the plaintiff. Suit is even otherwise barred by limitation as the claim for rent is from July 1998 whereas the present suit had been filed on 01.5.2006 i.e. after almost eight years. No original document has also been filed by the plaintiff. The forged documents relied upon by the plaintiff prima facie makes out a case of perjury for which he is liable to be prosecuted under Section 340 Cr.P.C. 11. On merits, it has been reiterated that on 19.5.1971 in Suit No. 184/1971 a compromise decree was passed and the property in dispute i.e. the property bearing no. 55, Jwalaheri, Paschim Vihar, New Delhi had fallen to the share of defendant no.1 who has thereafter raised additional constructions over the said property at the cost and expenses of defendant no.1. Plaintiff has no right or claim over the said property. It is denied that CS(OS) 836/2006 Page 7 of 38 the plaintiff has any claim in the rent accruing from the said property. 12. Defendant no.2 has filed a separate written statement. Preliminary objection on the bar of the present suit in view of the provisions of Order 2 Rule 2 CPC has been taken. It is stated that the earlier suit i.e. CS(OS) No.933/2001 had been withdrawn on 01.2.2004 unconditionally without seeking leave to file a fresh suit and as such the present suit is not maintainable. Proper court fee has not been paid. Defendant no.2 is a tenant of the premises and up to date rent has been paid. Defendant no.2 was earlier a tenant with late Umrao Singh and thereafter after his death defendant no.1 being one of his legal heirs started dealing with the defendant no.2 and rent was being paid to him to which the plaintiff had never objected. No action is maintainable against the answering defendant. It is stated that defendant no.2 had not recognized the plaintiff as the owner of the 1/4th share in the property; the amount of Rs.15,520/- was transferred by the answering defendant from the account of defendant no.1 to the account of the plaintiff on the express instructions of defendant no.1 being his banker and not as a tenant. In June 1998, defendant no.1 had withdrawn these instructions. As such defendant no.2 did not transfer any CS(OS) 836/2006 Page 8 of 38 amount to the plaintiff from the account of defendant no.1. It is denied that the answering defendant is under any obligation to pay any amount to the plaintiff. It is stated that the defendant no.1 had filed two suits i.e CS(OS) No.1404/2001 and 1405/2001 against defendant no.2 for possession and mesne profit; plaintiff had moved an application for impleading himself as a party which had been dismissed by trial court as also by the appellate court. 13. On 01.2.2005, the plaintiff had unconditionally withdrawn his suit CS(OS) No.933/2001. It is submitted that the defendant no.2 does not have any knowledge of any compromise arrived at between the plaintiff and the defendant no.1. At the relevant time when the rent payable was Rs.78,335/-, defendant no.2 was crediting a sum of Rs.13,522/- every month in the account of the plaintiff as per the instructions of defendant no.1 which is 1/4th of the total rent. It was from the account of defendant no.1 that the amount was being transferred to the account of the plaintiff. Thereafter on instructions from defendant no.1 to the contrary defendant no.2 stopped depositing this amount in the account of the plaintiff. Suit of the plaintiff is liable to be dismissed. 14. Replication has been filed by the plaintiff to the written statements of both the contesting defendants reiterating the CS(OS) 836/2006 Page 9 of 38 averments made in the plaint and denying the submissions and defence set up by the defendants. 15. On 10.9.2007 on the pleadings of the parties, the following issues were framed:- 1. Whether suit is barred under Order 23 Rule 1(4)(b) and Order 7 Rule 11 CPC as per preliminary objection in WS of D-1?OPD-1 2. Whether present suit is barred under Order 2 Rule 2 CPC as per preliminary objection of D-1? OPD-1 3. Whether suit is not maintainable in its present from as raised in preliminary objection in the WS? OPD 4. Whether plaintiff is entitled to 1/4th share in the rent payable by D-2? OPP 5. Whether letter dated 14.4.05 is a forged and fabricated document? If so, its effect? OPD-1 6. Whether the suit is within the period of limitation? OPP 7. Whether defendant no.1 was the owner of suit property and entitled to receive full rent by virtue of being the owner as alleged in the written statement? OPD-1 8. Whether defendant no.2 is not liable to pay any share in the rent of the suit premises to the plaintiff? OPD-2 CS(OS) 836/2006 Page 10 of 38 9. To what amount is the plaintiff entitled and for what period? OPP 10. Whether plaintiff is entitled to any interest as claimed in the suit? OPP 11. Whether plaintiff is entitled to mandatory injunction against the defendants as prayed? OPP 12. Relief. 16. The plaintiff in support of his case has examined one witness Mr.Balkishan Yadav i.e the plaintiff himself. In defence two witnesses have been examined. Defendant no.1 has come into witness box as DW-1. Defendant no.2 has also produced one witness Ravi Prakash Mahor, Branch Manager, of defendant no.2, as DW-2. 17. Arguments have been heard. Record has been perused. Issue-wise findings are as follows:- 18. ISSUE NO.1:- A preliminary objection has been raised that the suit is barred under Order XXIII Rule 1 (4)(b) of the CPC as the earlier suit i.e. CS(OS) No.933/2001 titled as Bal Kishan Yadav Vs. Ranbir Yadav & Ors. which had been filed between the same parties had been withdrawn on 01.2.2005 unconditionally. CS(OS) 836/2006 Page 11 of 38 Plaintiff is precluded from filing the present suit in respect of the same subject matter. 19. Admittedly CS(OS) No.933/2001 had been filed which was a suit for recovery and mandatory injunction in which the plaintiff had made his claim for recovery of rent from February 1997 to May 2001 for Rs.7,88,481/-. The present suit has been filed claiming recovery of rent which for a period beginning from June 2001 to 31.3.2006; the accrual of rent for each month of the tenancy has given rise to a fresh cause of action. The period beginning June 2001 was admittedly not covered by the relief prayed in CS(OS) No.933/2001. As such the withdrawal of the said suit unconditionally on 1.2.2005 would not bar the plaintiff from making such a claim in the present suit which claim is based on a distinct and a separate cause of action. The bar of Order XXIII Rule 1 (4)(b) CPC is not attracted. “Subject matter” in the present suit is distinct from the subject matter of the earlier suit. 20. Issue no.1 is decided in favour of the plaintiff and against the defendant. 21. ISSUE NO.2. The onus to discharge this issue is on the defendant. Order II Rule 2 CPC prescribes that the suit shall include the CS(OS) 836/2006 Page 12 of 38 whole of the claim which the plaintiff is entitled to make in respect of a cause of action; but the plaintiff may relinquish any portion of his claim in order to bring his claim within the pecuniary jurisdiction of this Court. The cause of action of the plaintiff in the earlier suit was the accrual of the rent for the period up to May 2001. The cause of action in the present suit is the accrual of rent up to 31.3.2006. The causes of action are distinct and different; plaintiff could not have prayed for a relief in respect of his share for the rent for the month of June 2001 onwards when he had filed the earlier suit. As such a plain reading of Order II Rule 2 shows that the entire claim in the present suit cannot be barred under this provision of law. 22. The object of this rule is based on the principle that the defendant should not be vexed twice for one or the same cause of action. Causes of action not being the same in the first suit and the subsequent suit, it is clear that this bar is not attracted. 23. Issue no.2 is decided in favour of the plaintiff and against the defendant. 24. ISSUE NO.6 The plaintiff has filed this suit for recovery of Rs.20,18,681/- which are arrears of rent which include different amounts and these amounts are claimed from February 1997 to CS(OS) 836/2006 Page 13 of 38 31.3.2006. Present suit has been filed on 11.5.2006. Under Article 52 of the Indian Limitation Act 1963 right to sue on a claim of arrears of rent would be 3 years to be computed from the date when the last amount became due which in this case would be three years preceding 11.5.2006. The entire suit of the plaintiff is not barred; he is entitled to make a claim from 11.5.2003 onwards. 25. Issue no.6 is decided accordingly. 26. ISSUE NOS.4,5,7 & 9 All the aforestated issues will be decided by a common discussion. The case of the plaintiff is that he is entitled to 1/4th share of the rent which is payable by defendant no.2 of the property which is under his lease. The total rent payable as on June 2001 to February 2005 is Rs.80,000/-; 25% share of the plaintiff is Rs.20,000/- which amount is payable from June 2001 to 1.2.2005. Thereafter the rent had been enhanced to Rs.1 lac per month; share of the plaintiff would be Rs.25,000/- per month. Further case of the plaintiff is that in terms of the partition between the brothers only the constructed portion of the suit property had fallen to the share of defendant no.1. The open verandah/ground on which construction had been raised by their father subsequently and which portion had been given on CS(OS) 836/2006 Page 14 of 38 lease to defendant no.2 was the joint property of all the brothers on the basis of which this 1/4th share in the rent has been claimed by the plaintiff. Defendant no. 1 is not the owner of this suit property. Apart from other documents the plaintiff has relied upon a family settlement/agreement dated 03.01.1997 signed by all the members whereby they had agreed to share the rental accruing from defendant no.2 in four equal shares. Further as per letter dated 14.4.2005 addressed by defendant no.1 to defendant no.2; defendant no.1 in terms of the compromise between the brothers had informed defendant no.2 that 1/4th share of the rent from the property leased out to defendant no.2 would fall to the share of the plaintiff Balkishan and the said rent be released to him on a regular basis. 27. PW-1 has on oath reiterated the aforenoted averments. He has deposed that the plaintiff and the defendant no.1 are real brothers; apart from them they have two other brothers Dharam Pal and Randhir Singh. Property bearing no. no.55, Jwalaheri, PaschimVihar,New Delhi i.e the suit property was owned and belonged to Umrao Singh their deceased father. Umaro Singh died on 08.4.1996. He had died intestate. This property amongst other properties devolved upon all the four brothers in equal shares. In suit no.184/1971 vide decree dated 19.5.1971 CS(OS) 836/2006 Page 15 of 38 Ex. PW1/DX1 only the built up portion of this property bearing no. no.55, Jwalaheri, Paschim Vihar, New Delhi had fallen to the share of defendant no.1. Open ground and the unbuilt portion of the said property was constructed later on in 1980 by their deceased father and let out to defendant no.2 who till date is the lessee in the said property. After the death of their father plaintiff had authorized defendant no.1 in terms of a Special Power of Attorney to collect rent of the share of the plaintiff as well and this arrangement continued for several years up to 1996. Thereafter defendant no.1 did not discharge his obligation faithfully and the rental share of the plaintiff was not paid to him. On 3.1.1997 a communication duly signed by defendant no. 1 had been sent to defendant no.2 requesting him to apportion the total rent payable in four different shares i.e. in the names of the four brothers. This document is admitted by the defendant no. 1. He has admitted that this letter was sent by him to defendant no. 2. Another document of even date i.e. a family settlement/agreement Ex. PW1/1 dated 03.01.1997 duly signed by all the four brothers has also been proved; as per this settlement parties i.e. the four brothers had inter-se agreed that they being the joint owners of property no. 55 and 56 situated at Jwala Heri, inherited by them from their father and mother and CS(OS) 836/2006 Page 16 of 38 which properties are under the tenancy of the State Bank of India and State Bank of Bikaner & Jaipur and the LIC; the rents/profits will be shared by all the parties equally. PW-1 has further deposed that thereafter defendant no.2 continued to credit the account of the plaintiff with his 1/4th share; this was in his bank account no.28893. This arrangement continued from February, 1997 up to June, 1998. Thereafter defendant no.2 stopped paying any rent to the plaintiff. Defendant no.2 was legally obliged to pay this rent to the plaintiff. PW-1 has further deposed that due to this non-payment of rent CS(OS) no.933/2001 was filed by the plaintiff impleading the present defendants as parties in the said suit. On 17.1.2002 defendant no.2 was restrained from releasing 1/4th of the total rent to defendant no.1; the said order is Ex.PW-1/2. An application for release of this rent by the plaintiff was filed which was dismissed on 28.2.2002; in appeal being FAO No.132/2003 this request of the plaintiff was accepted by the Division Bench in terms of the order dated 4.8.2004 which is Ex.PW-1/3. Rights of the plaintiff to receive 1/4th share out of the total rent was recognized. Eventually a compromise settlement was arrived at between the parties whereby the defendant no.1 agreed that 1/4th share of the rental payable by defendant no.2 would fall to CS(OS) 836/2006 Page 17 of 38 the share of the plaintiff. In terms of this compromise CS(O)S No.933/2001 was withdrawn by the plaintiff on 1.2.2005 vide Ex.PW-1/5. Letter dated 14.4.2005 Ex.P-1 was a communication sent by defendant no.1 to defendant no.2 informing defendant no.2 to release the 1/4th share of the rent to the plaintiff in terms of the settlement and continue to do regularly. 28. In his cross-examination PW-1 had denied that the earlier suit withdrawn by him is based on the same cause of action as the present suit; it is stated that the rent in the present suit has been claimed for different periods of time. He has reiterated that in terms of the decree Ex.PW-1/DX-1 only the built up portion of the property bearing no.55, Jwalaheri, PaschimVihar, New Delhi had fallen to the share of defendant no.1. It is further reiterated that the open ground in front of this property had been built up by their father subsequently which was the subject matter of the lease which had been executed with defendant no.2. The site plan appended to Ex.PW-1/DX-1 has been proved as Ex.PW-1/DX-2. PW-1 had admitted that the stamp paper on which the agreement/family settlement between the parties was recorded on 3.1.1997 was in his possession and copies of the same were in possession of the other brothers. He has denied the suggestion Ex. PW-1/1 is a fabricated document. CS(OS) 836/2006 Page 18 of 38 He has admitted that he has two copies of Ex. P-1(letter dated 14.04.2005) and one copy was given to the bank. He has admitted that after the death of his father there was no direct agreement between him and the bank and the agreement was made through defendant no.1 who acted as his attorney. This power of attorney was cancelled in 1996 vide cancellation deed Ex.PW-1/DY. He has further stated that till 1986 i.e during the life time of their father, house tax for the said property was being paid by their father and there was no dispute till that time between the brothers. He denied the suggestion that the letter dated 14.4.2005 is a forged or a fabricated document. 29. Defendant no.1 has entered the witness box as DW-1. He has controverted the stand as set up by the plaintiff. On oath he has stated that the agreement dated 3.1.1997 (Ex.PW-1/1) is a forged and fabricated document and no such settlement was arrived at between the brothers and nor was it acted upon. The orders dated 17.1.2002 Ex.PW-1/2 and order dated 4.8.2004 Ex.PW-1/3 were passed on interim applications which have come to an end after the suit and the appeal had been withdrawn. Ex.P-1 which is the letter dated 14.4.2005 is forged and fabricated. DW-1 has deposed that he did not write any such letter. He has denied that he had been given any power of CS(OS) 836/2006 Page 19 of 38 attorney by the plaintiff for letting out the premises to the bank; the plaintiff had played a fraud upon the Court by manipulating and fabricating Ex.PW-1/1 and Ex.P-1. 30. In his cross-examination, he had deposed that he had given the suit property on rent in 1983 at the time when his father was alive. He has stated that his father let out the property in 1980 to