CS(OS) 1184 of 2005 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.1184/2005 % Date of Decision: 21.08.2009 Mr.Anil Madan …. Plaintiff Through Mr.Prem Kumar, Mr.Nilesh Sawhney and Mr.Girish Kumar, Advocates. Versus Mr.R.K.Madan & Ors. …. Defendants Through Mr.Tarkeshwar Nath, Mr.P.K. Mishra and Mr.J.P.N.Shahi, Advocate for the defendant No.1. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1. This judgment shall dispose of plaintiff‟s suit for partition of the suit property bearing Municipal No.92-A (new Number 122), Sant Nagar, East of Kailash, New Delhi and for seeking a decree for a sum of Rs.4,20,000/- in favour of plaintiff against defendant No.1 and interest at 12% per annum from the date of payment till its realization. 2. The plaintiff, defendant No.1 and Late Sh.Gulbir Madan were brothers. Sh.Gulbir Madan, the husband of defendant No.2 and father CS(OS) 1184 of 2005 Page 2 of 27 of defendant Nos.3 & 4 had died and therefore, his rights had devolved upon them. 3. In respect of the suit property bearing No.92-A (new Number 122), Sant Nagar, East of Kailash, New Delhi measuring 207 sq.yards three separate sale deeds were executed by the vendor in favour of the three brothers. The sale deeds were in respect of 1/3rd share each. The property was purchased jointly and then a house was constructed out of the joint funds of the three brothers. 4. Disputes had arisen between the parties. On account of an arbitration agreement between the three brothers, an application for reference of disputes to arbitration was filed. During the pendency of the arbitration application, a family settlement dated 31st October, 1996 was arrived at. The family settlement accepted that the property was jointly built and all the three brothers had 1/3rd share each. Pursuant to the family settlement between the plaintiff, defendant No.1 and the widow and the children of Late Sh.Gulbir Madan, an application under Order XXIII Rule 1 and 3 of the Code of Civil Procedure was filed in the Arbitration Proceedings, which was disposed of in terms of family settlement. CS(OS) 1184 of 2005 Page 3 of 27 5. Under the family settlement, it was agreed that rent/damages for use and occupation of 1/3rd share of the suit property at the rate of Rs.30,000/- per month for the period 1st November, 1996 to 30th April, 1998 was to be paid to the legal heirs of late Sh.Gulbir Madan, defendants no. 2 to 4, which was to be shared equally by the plaintiff and defendant No.1. However, the amount of Rs.5,40,000/- on account of rent/charges for use and occupation of 1/3rd share of Late Sh.Gulbir Madan was paid by plaintiff alone and the defendant no.1 did not pay his share. Since the plaintiff had also paid the amount of Rs.2,70,000/, which as per the family settlement had to be paid by defendant No.1, the said amount is claimed by the plaintiff from defendant No.1. 6. Since the plaintiff, defendant no.1 and defendant Nos.2 to 4 have 1/3rd share each in the property and as the property has not been physically partitioned, the present suit was filed. A preliminary decree dated 3rd January, 2006 was passed declaring the share of plaintiff, defendant No.1 and defendant Nos.2 to 4 as 1/3rd each and a local commissioner was appointed to suggest the mode of partition. The local commissioner filed his report opining that the suit property cannot be divided by metes and bounds. Objections to the report of the local commissioner were not filed. The Court had directed the parties to bid amongst themselves. On 8th March, 2007 on bidding between the parties for the property, the plaintiff gave a bid of Rs.78 lakhs which CS(OS) 1184 of 2005 Page 4 of 27 was not objected to by defendant No.1 as well as defendant Nos.2 to 4 and, therefore, the bid of Rs.78 lakhs of the plaintiff was accepted. 7. By order dated 8th March, 2007, while accepting the highest bid of the plaintiff of Rs.78 lakhs, it was held that the house tax payable on the property shall be shared by the parties in proportion they had occupied the property. By the said order it was also held that the dispute raised by the plaintiff that defendant No.1 was exclusively enjoying the property and, therefore, plaintiff would be entitled to mesne profits would also be adjudicated. 8. On 19th March, 2007 the defendant No.1 had disclosed before the Court that though as per the plaintiff there was a demand for a sum of Rs.8,51,727/- as arrears of house tax, only a sum of Rs.7,51,727/- was due and payable upto 31st March, 2004 as arrears of house tax. By order dated 19th March, 2007, therefore, the Court had directed the Registrar General to issue a cheque in favour of Municipal Corporation of Delhi with respect to house tax payable on the suit property in the sum of Rs.7,51,727/- from the amount which was deposited on the acceptance of highest bid of the plaintiff. CS(OS) 1184 of 2005 Page 5 of 27 9. Since the highest bid of the plaintiff for Rs.78 lakhs was accepted and the plaintiff had deposited the amount deducting his share, he became entitled for possession of the entire property. On 29th May, 2007 the counsel for the defendant No.1 had addressed the court and had stated that defendant no.1 has not been able to locate an alternate place to carry out his business and requested for time to vacate the premises. The defendant no.1 who was present also stated that he will deposit the keys of basement, ground floor and first floor within three days. Consequent thereto, the defendant no.1 filed an application dated 30th May, 2007 with request to deposit keys of basement, ground and first floor and deposited three keys of basement, ground and first floor before the Registrar. The keys of the basement, ground floor and first floor were deposited by the defendant no.1 on 1st June, 2007. On 6th July, 2007 the counsel for the defendant no.1 had sought time to file an affidavit giving reasons as to why the second floor and the third floor of the property had not been vacated. Defendant No.1 on 18th September, 2007 stated on oath that he had deposited two keys of second and third floors, however, those two keys enabled access to the entire property. The defendant No.1 also deposed that he had no other set of keys similar to the keys deposited by him which were in his possession. He also stated that the property was vacant and no one else was in possession of the same. CS(OS) 1184 of 2005 Page 6 of 27 10. Pursuant to defendant No.1 depositing keys of the property, an amount of Rs.10 lakhs out of the defendant No.1‟s share of Rs.26 lakhs was released to him. The defendant No.1 thereafter, filed an application being IA No.13136/2007 seeking release of balance amount of Rs.16 lakhs which was contested by the plaintiff. By order dated 26th February, 2008 it was held that the balance amount of Rs.16 lakhs be not released to defendant No.1 till preferential claim of the plaintiff with regard to mesne profits and claims towards house tax liability are determined in accordance with law. 11. In the circumstances, the disputes which are to be adjudicated are as to how much house tax is to be shared by the parties on account of their occupation of the premises and how much amount, if at all, the plaintiff is entitled to from the defendant No.1 on account of mesne profits. 12. The plaintiff has categorically pleaded in para 12 and 15 of the plaint that since May, 2001 defendant No.1 is in exclusive possession of the suit property and whenever plaintiff visited Delhi to use the suit property the defendant No.1 did not allow him to do so. It was categorically asserted by the plaintiff that during April, 2005 he had come to India and visited the suit property on 8th April, 2005 when he CS(OS) 1184 of 2005 Page 7 of 27 was stopped by defendant No.1 from entering into the suit property. The plaintiff approached the local police and also made a complaint against defendant No.1, however, no action was taken by the police. A copy of the DD No.26 dated 9th April, 2005 has also been filed by the plaintiff. The plaintiff, therefore, claimed damages for illegal use and occupation of his share of the property at the rate of Rs.30,000/- per month for three years from August, 2002 to July, 2005 amounting to Rs.10,80,000/-. The plaintiff has also claimed damages after filing of the suit till the time the possession was given by the defendant no.1 to the plaintiff. 13. In his written statement, in reply to para 12 and 15 of the plaint, the defendant No.1 averred that the entire business material and record of the business were taken away by the plaintiff and nothing has remained in the suit property. The defendant No.1 also denied the averment that he did not allow the plaintiff to visit the suit property whenever he visited Delhi. The defendant No.1 also denied his liability to pay damages/mesne profits at the rate of Rs.30,000/- per month for three years from August, 2002 to July, 2005 and thereafter. 14. In support of his contentions plaintiff filed his evidence on affidavit dated 5th May, 2006 which was exhibited as P1. The defendant No.1 also filed his deposition on affidavit dated 6th September, 2006 CS(OS) 1184 of 2005 Page 8 of 27 which was exhibited as exhibit DW1/A. The plaintiff and the defendant No.1 were cross examined and during the cross examination the plaintiff was confronted by the defendant No.1 with documents which were balance sheet, profit and loss account which were exhibited as PW1/DI and PW1/DII and a photocopy of an unattested affidavit dated 31st March, 2005 which was also exhibited as PW1/DIII. The plaintiff also filed a copy of the complaint dated 8th April, 2005 filed by Sh.Ravi Madan, defendant No.1 to Station House Officer, Police Chowki Garhi, Lajpat Nagar, New Delhi. 15. I have heard the learned counsel for the parties in detail and have also perused the pleadings, deposition of plaintiff and defendant No.1 on affidavit and the cross examination of the plaintiff and the defendant No.1 recorded before the Local Commissioner. From the deposition on affidavit of plaintiff and his cross examination it can be inferred that plaintiff is settled in United Kingdom and he has visited India on many occasions. The plaintiff categorically deposed that defendant No.1 is in exclusive possession of the entire suit property since May 2001. It is also deposed that M/s Sat Guru Fashion Pvt. Ltd was over taken by him in terms of family settlement as also M/s. Satguru Enterprises, a partnership concern. However, according to plaintiff, the company Satguru Fashion Pvt Ltd is dead and it has not done any business. He has also deposed that the company was not wound up as amounts of CS(OS) 1184 of 2005 Page 9 of 27 the said company are to be recovered from AEPC. The plaintiff categorically deposed that he had been filing returns mainly to collect earnest money deposited with AEPC. The plaintiff admitted his signatures on the affidavit dated 31st March, 2005 in the cross examination though initially he had not admitted and recognized his signatures on the said affidavit. In the said affidavit, exhibit PW.1/DIII, which is also signed by defendant No.2 and defendant No.1 and the plaintiff, it has been deposed that the premises has been lying vacant since July, 1996 when the deceased Mr.Gulbir Madan had filed a suit in the High Court for settlement of money disputes which had come up between the brothers/partners. This is an affidavit which was allegedly filed with the Municipal Authorities for the purpose of House Tax. 16. Exhibit PW.1/D1 is the photocopy of the computation of the income of the accounting year ending on 31st March, 2003 and the balance sheet as on 31st March, 2003 and PW.1/D2 is the balance sheet and the profit and loss account as on 31st March, 2004 and PW.1/DW1 is a certificate by the officer/manager incharge of the computer system under the Banker‟s Books Evidence Act in respect of the statement of current account of M/s. Satguru Enterprises. CS(OS) 1184 of 2005 Page 10 of 27 17. From the balance sheets of M/s. Satguru Fashion Pvt. Ltd. which were produced by the defendant No.1 and confronted with the plaintiff , it is revealed that there has not been any licensed capacity, installed capacity, actual production detail, no raw material consumed, no turnover, no earnings in foreign currency, no expenditure in foreign currency and purchase of goods for resale for the year ending on 31st March, 2004 and for the previous year. From PW.1/D1 it also transpires that no income tax was payable and there had been a loss of Rs.9,600,03/- as no business was carried on by the company. From the copy of the current account of M/s.Satguru Enterprises which is exhibited as exhibit PW.1/DW1 for the period from 1st March, 1997 to 31st March, 1998 it cannot be inferred that the plaintiff was in possession of any portion of the suit property. The plea of the plaintiff is that defendant No.1 is in exclusive possession since May, 2001. 18. The defendant No.1 in his cross examination recorded on 11th September, 2006 deposed that basement is lying vacant and ½ of the ground floor which is owned by Ms. Poonam/defendant no.2 is also lying vacant whereas the first floor, allegedly owned by the plaintiff, contains old goods belonging to plaintiff which are stored there. The deposition of the defendant No.1 is contrary to his averment in the pleadings that the entire business material and record of the business CS(OS) 1184 of 2005 Page 11 of 27 were taken away by the plaintiff and nothing remains in the suit property. The relevant portion of the para 12 is extracted as under:- “para 12…….with reference to para No.12 of the plaint, the same is absolutely false, frivolous and hence denied. In this regard it is submitted that the entire business material including the record of the business, the record of the suit property like house tax records and books of accounts are lying in the suit property. In this regard it is submitted that the entire business material and record of the business the same are taken by the plaintiff. Nothing remains in the suit property so far as the plaintiff is concerned.” 19. The plaintiff filed the photocopy of the complaint dated 8th April, 2005 addressed by defendant No.1 to Station House Officer where he stated and admitted that till the year 2001 he used to work with the plaintiff. However, since 2001 he has severed his accounts with the plaintiff. He also categorically stated that he is exclusively running the business in the building for past 15 years and he admitted his exclusive possession of the suit property. The said document has not been exhibited, however, the defendant No.1 in his cross examination recorded on 11th September, 1996 before the local commissioner admitted that he had filed the complaint dated 8th April, 2005. He also admitted that he filed other complaints dated 17th July, 2005 and 4th December, 2005 though the copies of the other complaints dated 17th July, 2005 and 4th December, 2005 were not produced by the defendant No.1. He also admitted in his complaint dated 4th December, 2005 that he had stated that the plaintiff is a trespasser in the suit property. CS(OS) 1184 of 2005 Page 12 of 27 20. The learned counsel for the plaintiff has contended that even though the exhibit marks was not put on said documents, however, in view of evidence led by the parties, the document can be considered. Reliance for this can be placed on AIR 1973 Himachal Pradesh 62, Shiv Mohan v. Thakur Dutt; AIR 1978 SC 1393, Ram Rattan v. Bajrang Lal; AIR 2004 Chattisgarh 11, Santosh Kumar Gupta v. Jaiprakash Aggarwal. From these judgments it is apparent that if a party fails to make an endorsement on a document of an exhibit mark under Order XIII Rule 4 of the Code of Civil Procedure, it does not preclude the consideration of the document, if the evidence has already been led about that document and it has been proved. The defendant no.1 has admitted that he had filed the complaint to the police. He has also admitted the contents of the document and have not refuted them nor has he given any explanation about the said document and its contents. Thus there is ample evidence on record for the said document and it should be considered though an exhibit mark has not been put on the copy of the said complaint. In Shiv Ram (supra) it was held that omission to make the endorsement required under Order XIII Rule 4 of the Code of Civil Procedure does not preclude the consideration of the document. The said provision contemplates that a document which has been admitted in evidence should bear an endorsement by the judge as to the number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of its CS(OS) 1184 of 2005 Page 13 of 27 having been so admitted. Admission of the document is not on account of endorsement made by the judge but on account of evidence already led in respect of the document. In Ram Rattan (supra) the Supreme Court had held that when a document is tendered in evidence and an objection is raised by the opposite party that the document is not admissible, it is obligatory upon the judge to decide the objection. However, endorsing an exhibit mark with a stipulation that the objections shall be decided later on is not proof of the document unless the objection is decided. Therefore, merely putting an exhibit mark is not the proof of the document. Conversely the absence of an exhibit mark on a document will not preclude the Court from considering the said document, if evidence in respect of the proof of the document has been led. Therefore, the document, copy of the complaint filed by the defendant no.1 to the police can be considered despite no exhibit mark having been put on the said document. 21. The plaintiff was confronted with a photocopy of an affidavit dated 31st March, 2005 jointly executed by the plaintiff, defendant No.1 and defendant No.2 which is exhibited as PW.1/DIII. The plaintiff was therefore, re-examined on 21st August, 2006 and on his re-examination he deposed that defendant no.1 was filing complaints against him as he had been applying for collection of earnest money deposited from AEPC. He also deposed that PW.1/DIII was signed by him on 31st March, 2005 CS(OS) 1184 of 2005 Page 14 of 27 as on that date there was an outstanding of approximately Rs.12 lakhs for which defendant No.1 wanted the plaintiff to pay 50% which was refused by the plaintiff. The plaintiff also deposed categorically that defendant No.1 was in possession of the suit premises and he had suggested the execution of the said affidavit to obtain the rebate from the MCD. In the cross examination it has not been suggested to the plaintiff that defendant No.1 was not in possession of the entire suit property. The explanation given by the plaintiff for execution of the joint affidavit dated 31st March, 2005 has also not been refuted categorically except for a general suggestion that the deposition of the plaintiff is false. From the photocopy of the affidavit, exhibit PW1/DIII, also it cannot be inferred that defendant No.1 was not in exclusive possession after May, 2001 because the affidavit only deposes that the premises was lying vacant. The premises can be in possession of defendant No.1 and may still be lying vacant and, therefore, exhibit PW1/DIII does not help the defendant No.1 in support of his contention that he was not in exclusive possession of the property since May, 2001. There is another aspect which if taken along with the deposition of the parties will reveal that defendant No.1 has been in exclusive possession of the property since May, 2001 and he had been using it for his business as has been contended by the plaintiff. On 29th May, 2007 it was stated by the counsel for the defendant no.1 that the defendant no.1 has not been able to locate the alternate place to carry out the business and therefore, he requested for time to vacate the premises. If the premises CS(OS) 1184 of 2005 Page 15 of 27 was lying vacant as has been contended by the parties in their affidavit to the MCD dated 31st March, 2005, then there was no need for the counsel for the defendant no.1 to take time on behalf of defendant No.1 on 29th May, 2007 on the ground that the defendant no.1 cannot shift from the premises in dispute unless alternate place of business is located by the defendant no.1. The defendant no.1 handed over the keys of basement, ground floor and first floor on 1st June, 2007 and of second and third floor on 18th September, 2007. If the plaintiff was also in occupation of the part of the premises then when and how the defendant no.1 came in to exclusive possession of the entire property as the keys of basement, ground and first floor were deposited on 1st June, 2007 and second and third floor on 18th September, 2007, has not been explained by the defendant no.1. While handing over and depositing the keys for the second and third floor of the premises the defendant No.1, on 18th September, 2007, he had deposed that with those two keys the entire property could be accessed. Therefore, despite handing over the keys of basement, ground and first floor, the defendant no.1 had access to the entire property and he had handed over the possession of the entire property by handing over the keys to the second and third floors. This is not the case of the defendant no.1 that the plaintiff also had the duplicate keys and he could access the entire property. The deposition of the plaintiff that in 2005 he wanted to access the property but was not allowed by the defendant no.1 entailing filing of complaint by him to the police on which no action was taken by the police, has not been CS(OS) 1184 of 2005 Page 16 of 27 categorically refuted on behalf of defendant no.1 in the cross examination of plaintiff. 22. The logical inference from the statement of the defendant No.1 and the reasons detailed hereinabove is that the defendant no.1 was in possession of entire property till 18th September, 2007. The defendant no.1 had averred in the written statement that the plaintiff had removed all his material and articles from the property. Considering the preponderance of probability in the facts and circumstances, the inevitable inference is that defendant No.1 had been in exclusive possession of the entire property since May, 2001 up to September, 2007. 23. If the defendant No.1 had been in exclusive possession of the entire property, whether the plaintiff shall be entitled for mesne profits from defendant No.1 and if so at what rate? In support of his contention the plaintiff has relied on Punjab National Bank Ltd. Lahore through Branch Manager, Qila Sheikhupura v. Seth Pars Ram and Ors., AIR 1940 Lahore 350 and Govind Ram v. Ganesh Ram and Ors., AIR 1979 Allahabad 122. The learned counsel for the defendant has refuted the entitlement of the plaintiff to recover the