Mahavir Prashad Vs. Sukhdev Mongia and anr. - Court Judgment

R.N. Pyne, J.

(1) This Regular First Appeal has been filed by the defendant/appellant Sfari Mahavir Prashad against the decree passed by the Additional District Judge dated 10th July, 1986 in Suit No. 224 of 1984 filed by this plaintiffs/respondents herein. The said decree was passed in favor of the plaintiffs/respondents for possession of the portion comprising of two rooms, one kitchen and common latrine and bath room on the ground floor of the property bearing No. 4759, Deputy Gaoj, Sadar Bazar, Delhi, and for damages for use and occupation with effect from 1st April, 1983 to 31st July, 1984 @ Rs.50U.00 per month as also for further damages at the same rate from 1st August, 1984 till recovery of possession.

(2) In the plaint it is stated by the plaintiffs that they are the owners of property No. 4759. Deputy Ganj, Sadar Bazar, Delhi, which was construct- ed on plot No 5. It is further slated that they purchased the property by virtue of different registered sale deeds from its previous owners, namely S/Shri Jai Narain Prashad Aggarwal, Jagdish Prashad Aggarwal, Vijay Aggarwal, Pradeep Aggarwal, Pranab Aggarwel, Smt. Nirza Bansal, Smt. Raj Kumari Aggarwal and Smt. Ram Kali Devi in April, 1984. As per the sale deeds executed by the previous owners the plaintiffs (respondents herein) were authorised to recover the damages from the unauthorised occupants of the property, including the defendant, for the earlier period also i.e. before the date of purchase of the property. The plaintiffs' case is that the defendant is an unauthorised occupant of two rooms, one kitchen and common latrine and bath room on the ground floor of the said property and that the said portion is being unauthorisedly used by the defendant as a godown even though it is a residential portion. The plaintiffs claimed damages for unauthorised use and occupation @ Rs. 1000.00 per month from April, 1983 onwards. According to the plaintiffs an amount of Rs. 16.000.00 became due as damages with effect from 1st April. 1983 to 31st July,1984. The plaintiffs further claimed damages @ Rs 1000.00 per month. According to the plaintiffs, the cause of action arose in their favor in April, 1984 when they purchased the property and a cause of action for damages for use and occupation arose from April,.1983.

(3) The suit was contested by the defendant/appellant herein. The defendant raised various preliminary objections, namely-as the value of the suit property is more than Rs. 50.000.00 the Court has no pecuniary jurisdiction; as the premises is let out to the defendant for residential and commercial purposes and he is a tenant thereof the suit is barred under Section 50 of the Delhi Rent Control Act. 1958 and Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956; as the previous owners had no right to dispose of Joint Hindu Family coparcenary property the alleged sale deeds in favor of the plaintiffs are not valid; the plaint is liable to be rejected because proper court fee has not been paid. The defendant's further case is that be was inducted as a tenant by Lala Jai Narain Prashad, Karta of Joint Hindu Family at a rent of Rs. 30.00 per month with effect from 19th March, 1983 and be was given lawful possession of the premises in question after the possession thereof was surrendered by the previous tenant.

(4) On merits the averments of the plaint have not been admitted and are substantially mere repetition of the preliminary objections stated therein It is further alleged that the defendant bad paid one year's rent in advance.

(5) In the replication filed by the plaintiffs they affirmed the case made out in the plaint and denied the contrary contentions raised in the written statement. It is reiterated that the defendant is a tress-passer and not a tenant as alleged by the defendant. It is further stated that the list of tenants was given in the sale deeds but name of the defendant does not appear in the said list and that Lala Jai Narain Prashad was not the Karta of alleged joint Hindu Family It is further stated that the previous owners had served a notice dated 3rd April, 1984 on the defendant calling upon him to vacate he premises and pay damages @ Rs 1000.00 per month and the defense now being taken was not taken by the defendant in his reply dated 4th May, 1984 to the said notice.

(6) On the pleadings the following issues were framed by the trial Court :-

'1. Whether the plaintiff (s) is/are the owner (s) of the property in dispute? O.P.P. 2. Whether the defendant was inducted as a tenant by Shri Jai Narain Prashad at a monthly rental of Rs.30.00 as alleged in para 13 of the written statement. If so, its effect 3. Whether the suit has been properly valued for the purposes of court fee and jurisdiction O.P.P. 4. Whether the suit is barred by Section 50 of the D.R.C. Act or Section 19 of the Slum Areas (Improvement and Clearance) Act O.P.D. 5. To What amount of damages, if any, is/are the plaintiff (s) entitled O.P.P. 6. Whether the suit as framed is not maintainable O.P.D. 7. Relief.'

(7) Learned trial court has referred to various documents and summarised the oral evidence adduced by and on behalf of the parties in the suit in his judgment and we do not think it is necessary to go through them in any detail. We well, however, refer to and deal with the oral testimony and the documents as will be necessary for dealing with the judgment on different issues. Issue No. 1

(8) The learned trial Judge has answered this issue in favor of the plaintiffs and against the defendant. In arriving at his decision he relied on the five registered conveyances. According to him there was a Joint Hindu Family property and even if there was no partition, since all the co-owners had joined hands and executed the sale deeds in respect of their shares in the property, the title of the property stood transferred to the plaintiffs.

(9) The plaintiffs' case is that by five conveyances, namely PW-2/1 executed by Shri Jai Narain Prashad; PW-2/2 executed by Smt. Ram Kali Devi ; PW-2/3 executed by Sh. Jagdish Prashad Aggarwal; PW-2/4 executed by one Gautam Family Trust through its Sole Trustee Smt. Raj Kumari Aggarwal and PW-2/5 executed by Smt. Vijay Aggarwal, Pradeep Aggarwal, Pranabh Aggarwal & Smt. Nirza Bansal, the entire property was conveyed to the plaintiffs. In Ext. PW-2/1 it is recited that the property was owned by Shri Devi Prashad who executed a Will on 7th October, 1958 for which a Probate was granted on 1st December. 1967. Shri Devi Prasad expired on 14th September. 1966 and after his death his four sons (1) Shri Jai Narain Pd.. (2) Shri Jayanti Pd. (3) Shri Jagat Pd (4) Shri Jagdish Pd- and bids widow Smt. Ramkali Devi became the owners thereof. Thereafter the said four sons and the mother mutually decided that in respect of the aforesaid property Smt. Ramkali Devi will be the owner of 4/100th share and of the remaining 96/100th share of the said property the said four sons S/Shri Jai Narain Prashad, Jayanti Prashad, Jagat Prashad and Jagdish Prashad will be the full owners having equal shares. The recitals contained in Exts. PW-2/2: PW-2/3; PW-2/4 and PW2/5 are more or less similar. In the recital contained in PW-2/4 executed on behalf of Gautam Family Trust it is stated that Shri Jayanti Pd. who was the owner in respect of his share in the property created a Trust, namely-Gautam Family Trust for the benefit of his son Gautam and his family and appointed Smt. Raj Kumari Aggarwal as the sole trustee of the said Trust.

(10) The plaintiffs' case is that the said five conveyances prove the plaintiff's title to and ownership of the said property and hence they are entitled to file the suit against the defendant who according to the plaintiffs is in unauthorised occupation of a portion of the premises.

(11) Mr. R.P. Bansal, counsel for the appellant, has submitted that the vesting of title of the property upon the sellers have not been proved. The proof of execution and attestation of document do not prove the contents thereof. In this case nobody has proved the contents of the documents and particularly the facts recited therein. Until and unless the vendors show how they got right to the property their title is not proved. He has further submitted that the recital in a sale deed is no proof of its contents. Facts recited in a document only bind the parties who have made the recital and is not binding on a third party. He relies upon the cases of Nihar Beva v. Mohammed Air 1923 Calcutta 290 and Pratha Nath Chaudhari v. Krishna Chandra Bhattacharjee : AIR1924Cal1067 . He has further submitted that although names of the owners are given in the list of witnesses yet none of them has been called to prove the documents According to Mr. Bansal, PW-2, Sumer Chand Jain, has only proved signatures of the parties to the documents and the attesting witnesses. He cannot identify the vendors. He has submitted that the evidence of the first plaintiff, PW-1, regarding the vesting of title to the vendors is hearsay. Hence in the absence of proof of the title of the sellers in the property the vesting of title upon the purchasers i.e. the plaintiff should not be accepted. He has further stated that the suit property belonged to Devi Prashad & Sons, H.U.F. of whose Karta was Shri Jai Narain Prashad. He issued the rent receipts to the tenants of the property. thereforee in the absence of proof of the plaintiffs' title in the property the suit is not maintainable by them.

(12) Mr. Arun Kumar, learned counsel appearing for respondent No. 2 has submitted that in paragraph 9 of the written statement the plaintiffs' purchase of the property is admitted. The defendant's case is that the suit property belonged to Hindu Undivided Coparcenary of Devi Prashad and Sons of which Jai Narain Prashad was the Karta. The defendant in his evidence also has admitted the ownership of the property by H.U.F. of Devi Prashed & Sons of which Shri Jai Narain Prashad was the Karta. The defendant has stated that a shop room in the property was rented out to him by Lala Jai Narain Prashad, Karta of the said H U F. in 1977. Hence as it is submitted, according to the defendant, the property belongs to the Hindu Undivided Family of Devi Prashad & Sons of which Jai Narain Prashad was the Karta. thereforee, Shri Jai Narain Prashad had a share in the property and the conveyance executed by Shri Jai Narain Prashad dated 9th April, 1984 has been proved. According to him in as much as it is proved that Jai Narain Prashad is a co-owner of the property, he as a co-owner was entitled to file a suit for possession against an unauthorised occupant. Inasmuch as the conveyance executed by Jai Narain Prashad is admissible in evidence the transfer of his 24/100th share in the property is proved. Hence as the plaintiffs' co-ownership having been proved the suit is maintainable. It has been submitted that Shri Jai Narain Prashad being dead the execution of the conveyance being Ext. PW-2/1 by him having been proved its contents are admissible under Section 32(3) of the Evidence Act. He has also submitted that Section 110 of the Evidence Act provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that be is not the owner is on the person who affirms that he is not the owner. In the instant case nothing is shown by the defendant who is disputing the ownership of the vendors.

(13) In support of his submission that a co-owner can file a suit against the trespasser without impleading the other co-owners, Mr. Arun Kumar has relied on the cases of Currimbhoy and Co. Ltd. v. L. A. Creet and others : AIR1930Cal113 ; Ram Niranjan Das v. Loknath Mandal, : AIR1970Pat1 , Ajmer Singh v. Shamsher Singh, and Pal Singh v. Shri Sunder Singh, : [1989]1SCR67 .

(14) In reply to the arguments of Mr. Arun Kumar, Mr. Bansal has submitted that in order to enable a co-owner to file a suit for possession consent of the other co-owners should be obtained. There should be a pleading to the above effect that the suit is for the benefit of all co-owners. There is no proof that Shri Jai Narain Prashad got 24/ 100th share in the property. As no partition deed has been placed before the Court it cannot be assumed that Jai Narain Prashad had 24/100th share in the property.

(15) In the cases of Cutrimbhoy & Co. Ltd. v. LA. Creet : AIR1930Cal113 ; Ram Niranjan Das v. Loknath Mandal : AIR1970Pat1 and Ajmer Singh v. Shamsher Singh it has been held that a suit for possession by a co-owner against a trespasser without impleading the other co-owner is maintainable.

(16) The case of the defendant is that the premises belong to a Joint Hindu Family of which Jai Narain Prashad was the Karta. Hence on the admission of the defendant that Jai Narain Prashad being a member and a Karta of the Hindu Joint Family, he was admittedly a co-sharer of the same. Jai Narain Prashad being dead the statement made by him in the conveyance is admissible in evidence under Section 32(3) of the Evidence Act. The statement regarding the ownership of other co-owners in the property is against the proprietory interest. Hence the recital in the conveyance of Jai Narain Prashad being Ext PW-2/1 is admissible in evidence. PW-2 Sumer Chand Jain has proved the execution of the sale deed by the parties thereto. PW-1, the plaintiff hag stated that he had seen Jai Narain Prashad at the time of signing the sale deed. Hence the transfer of Jai Narain Prashad's interest in the property stands proved. In view of the aforesaid it is proved that the plaintiffs have admittedly acquired a share in the property and hence they are co-owners thereof. The plaintiffs' co-ownership in the property thus stand proved. Applying the principles laid down in the cases : AIR1970Pat1 . we hold that the plaintiffs as co-owners of the property are entitled to file the suit for possession against the defendant who is alleged to be a tress-passer thereof and thus the suit is maintainable. Hence our answer to Issue No. 1 is that the plaintiffs are co-owners of the property and it cannot be said that the suit is not maintainable on the ground of absence of the plaintiffs' title to the property. Issue No. 2

(17) The question is whether the defendant is a tenant in respect of the disputed portion of the property in question. As stated earlier, the defendant's case is that on 19th March, 1983 he was inducted as a tenant and possession was made over to him by Jai Narain Prashad after Smt. Ram Rati Gupta, the previous tenant, had vacated the said portion on that date. The question is whether the defendant has established his tenancy.

(18) In support of this case of the defendant's tenancy, Mr. Bansal, counsel for the defendant, has in the beginning relied upon mainly on two documents, namely-a photocopy of Surrender Lease Deed Ext. DW. 2/1 (Mark 'A') alleged to have been executed by Smt. Ram Rati Gupta and Sh. Jai Narain Prashad Aggarwal on 89th March, 1983 and the rent receipt dated 19th March, 1983 (Ext. D. 1) alleged to have been executed by Sh. Jai Narain Prashad Aggarwal as Karta for having received one year's advance rent from the defendant. But later on during the course of his arguments Mr. Bansal has submitted that he does not rely on the Surrender Lease Deed. According to Mr. Bansal the execution of the rent receipt and making over possession of the disputed premises to the defendant by Jai Narain Prashad Aggarwal on 19th March, 1983 proves the defendant's tenancy. Mr Bansal has submitted that the rent receipt is the conclusive proof of the defendant's tenancy and the plaintiffs have not adduced any evidence in rebuttal of the defendant's tenancy. Rent receipt coupled with defendant's possession proves his tenancy.

(19) Learned Additional District Judge in his judgment has dealt with this point in detail and has not relied on these documents for various reasons mentioned in the Judgment. We have gone through those reasons and in our view the reasons of the learned Additional District Judge for not relying on these two documents are cogent and correct,

(20) Although Mr. Bansal has submitted that he does not rely on the Surrender Lease Deed but inasmuch as the same has been made an Exhibit we would like to express our view in respect thereof. The photocopy of the Surrender Lease Deed shows that it is on two rupees non-judicial stamp paper and it appears to have been executed by Smt. Ram Rati Gupta and Sh Jai Narain Prashad Aggarwal on 19th March, 1983. The entries on the back of the photocopy are missing. Hence it does not appear who purchased the stamp paper and the date of its purchase. It is further stated by DW-3 that the rent receipt and the Surrender Lease Deed were sent for from Tis Hazari Courts. thereforee, there must have been a draft on the basis of which the same were typed out in Tis Hazari Courts. The draft of the Surrender Lease Deed has not been produced in this case. Non-production of draft undermines the sanctity of this document. Further it has been rightly pointed out by the learned Additional District Judge that photocopy shows different pens and different inks having been used for signing the documents. Hence for the above reasons, in our view the document Ext. Dw 2/1 cannot be relied upon. In any event, as stated earlier, Mr. Bansal docs not rely on the Surrender Lease Deed.

(21) The next question is whether the rent receipt dated 19th March, 1983, Ext. D. 1, can be relied upon in the facts and circumstances of this case. In our view, for the reasons mentioned hereunder, the rent receipt cannot be relied upon in support of the defendant's tenancy :

(1)The rent receipt is a typed document. According to PW. 5 and PW. 4 the rent receipts in respect of the property were always given by the Munim in printed form. No reason has been given by the defendant or any of his witnesses as to why in the instant case no printed rent receipt was issued. Further the rent receipt was sent for from Tis Hazari Courts. thereforee, a draft should have been in existence. No draft has been produced. For the absence of any Explanationn of not issuing the rent receipt in printed from and non-production of the draft of the typed rent receipt, we find it difficult to rely upon the rent receipt being Ext. D.I. Moreover the receipt Ext. D.1 does not bear the revenue stamp and there is no Explanationn for that. Also there is no Explanationn as to why rent for one year in advance should have been paid which is contrary to the provisions of the Delhi Rent Control Act, 1958. (Sec. 5(2)(b)). (2) PW. 5, DW. I and DW. 4 have stated that during the creation of the tenancy in respect of the property in question a rent note used to be executed. In the instant case, although the rent receipt is alleged to have been issued by Sh. Jai Narain Prashad Aggarwal. the question remains as to why any rent note which is the usual practice at the time of the creation of the tenancy was not executed. The rent receipt was sent for from Tis Hazari Courts. If that be so why a rent note was not prepared. In the absence of the rent note without any Explanationn leaves doubt in our minds as to how far the rent receipt can be relied upon in support of the defendant's tenancy. (3) The previous owners of the premises sent a notice through their Advocate Shri B.K. Goel dated 3rd April, 1984 (Ext. P. 1) to the defendant. In the notice it is alleged that the defendant has been in unlawful and unauthorised occupation of the premises in question. In this notice the circumstances in which the defendant unlawfully and unauthorisedly occupied the premises in question are fully mentioned. By this notice the defendant was asked to vacate the premises in question and to pay damages. This notice was replied by the defendant through his Advocate Shri S.R. Gupta, which is dated 4th May, 1984 (Ext. P. 2). In the reply Ext. P. 2 only the unauthorised occupation of the property by the defendant is disputed. The defense now being put up by the defendant was not raised in in the reply. Neither there was any assertion that the defendant was inducted as a tenant at a monthly rent of Rs. 30.00 after Smt. Ram Rati surrendered possession of the property on 19.3.1983 in favor of the previous owners or Sh. Jai Narain Prashad nor there is mention of the Surrender Lease Deed or the rent receipt. (4) Ext. D.W. 5/1 is the certified copy of the Inspection Register of the Municipal Corporation of Delhi. It is dated 26th March. 1983. From the Inspection Register it appears that during inspection of the property in question on 8th January, 1983 it was found out that the defendant was in possession of the disputed portion. Shri Ved Prakash Gupta (DW. 5), House Tax Inspector Pahar Ganj Zone, has given evidence in this case. He has proved Ext. DW. 5/1. He has stated that he had inspected the property in question on 8th January, 1983 and made entries in the daily diary where from inspection book was prepared and then entries were made in the assessment file. According to him inspection took place on 8th January, 1983 and on that date the premises were measured after getting it reopened. He had stated that the date 26th March, 1983 in the assessment file is the date of re-checking by his superiors. Although this witness said that he maintained the daily diary but he was not asked to produce the same. The inspection was done and the inspection book was prepared by him in the usual course of business and in the absence of any evidence to the contrary the entries in the Inspector Register should be presumed to be correct. Nothing has been produced to contradict the correctness of the entries made in the Inspection Register, the certified copy of which is Ext. DW. 5/1. This would show that the defendant was in possession prior to 19.3. 1983 and the case set up by him on the basis of Ext. D. 1 could not be true.

(22) Hence for the aforesaid reasons as also the reasons given by the learned Additional District Judge in his judgment were unable to rely on the Surrender Lease Deed and the rent receipt. For all the reasons mentioned hereinbefore, in our view. the learned Additional District Judge has rightly answered issue No. 2 in favor of the plaintiffs and against the defendant. Issue No. 3

(23) This issue relates to the valuation of the suit. This issue has not been seriously pressed. Nothing has been shown as to why the evidence of the PW. 4, Shri S.D. Bhatia, a practicing valuer should not be accepted. In that view of the matter we accept the finding of the learned Additional District Judge on this issue. issue No 4

(24) In view of our answer to issue Nos. 1 and 2 and inasmuch as the defendant has failed to prove his tenancy in respect of the disputed property Section 50 of the Delhi Rent Control Act and Section 19 of the Slum Areas (Improvement and Clearance) Act have no application in the instant case. We, thereforee, agree with the finding of the learned trial Judge on this issue. Issue No. 5

(25) The plaintiff has claimed damages @Rs. 1000/per month in respect of the period from 1.4.1983 to 31.7.1985 as also future damages at the same rate until delivery of the vacant possession of the disputed property by the defendant. In support of their claim for damages the plaintiffs have adduced the evidence of the valuer Shri S.D.Bhatia.P.W. 4. According to his evidence if the portion occupied by the defendant was vacated it would have fetched Rs. 1000.00 as rent in the year 1984. This is a mere opinion of the valuer. He has not indicated any basis for arriving at the figure of Rs. 1000.00 per month as rent of the occupied portion of the property.

(26) According to the learned trial Judge there is no evidence on record to show the rental of the similar premises in the locality in the year 1984. According to learned trial Judge keeping in view of the extent of accommodation and its commercial user by the defendant in his opinion damages for user and occupation at the rate of Rs. 500.00 per month will be reasonable and shall meet the ends of justice. The determination of rental of the occupied portion is based on the opinion for which there is no basis. In the absence of any proof in support of the claim of damages at the rate of Rs. 1000.00 per month and taking into the account of the rent paid by Ram Rati at the rate of Rs. 1918 ps. per month and according to the defendant rent would be Rs. 30.00 per month, in our view the amount of damages should be Rs. 30.00 per month. Issue No. 6

(27) No argument was made by the defendant in respect of this issue. Hence the answer to this issue by the learned Additional District Judge is accepted.

(28) thereforee, this appeal fails and is dismissed. The decree for possession in respect of the portion comprising 2 rooms, one kitchen and common latrine and bathroom on the ground floor of the property bearing No. 5/4759, Deputy Ganj. Sadar Bazar, Delhi, as shown in red in the site plan is affirmed. There will be a decree for damages for use and occupation it the rate of Rs. JO.00 per month from 1.4-1983 until recovery of possession in favor of the plaintiffs and against the defendant. The defendant is granted two months' time to vacate the property. The defendant will pay to the plaintiffs Rs. 3.000.00 as costs of the suit and the appeal. Decree sheet be drawn accordingly.