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Delhi High CourtIndian Cases

Sh. V.K. Saxena vs Dr. Shamsher Singh on 28 August 2006

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Delhi High Court
Sh. V.K. Saxena vs Dr. Shamsher Singh on 28 August, 2006
Author: T.S. Thakur
Bench: T.S. Thakur, S.L. Bhayana
JUDGMENT

T.S. Thakur, J.

1. This is a defendant’s appeal, arising out of a suit for possession, damages, mesne profits and injunction, decreed by the Additional District Judge, Delhi. The facts leading to the institution of the suit are few and may be summarised as under:

2. Single storeyed house No. C-24, Gulmohar Park, New Delhi was owned by Sardar Gian Singh, the predecessor-in-interest of the plaintiff-respondent. The said house was let out to Escorts Ltd., who had allowed the appellant, one of its employees to occupy the same. After the appellant left the services of the employer company, he was allowed to continue in occupation of a part of the premises comprising one drawing-cum-dining room, two bedrooms with attached bathrooms, kitchen and varandah on the ground floor on a monthly rent of Rs.15,000/-. The terms of the tenancy so created in favor of the appellant were set out in a lease deed executed on 16th December, 1981. The lease deed, inter alia, stipulated that the Lesser had retained with himself one room on the ground floor and the mezzanine floor and that he was entitled to use the same or let the same out to any other tenant to which the appellant would have no objection. The lease was meant to be for a period of three years commencing 1st December, 1981. It is common ground, however, that the tenancy was extended from time to time up to 31st March, 1995, where after an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act was filed by the owner Sardar Gian Singh for the eviction of the appellant. The said petition was, however, dismissed by the Additional Rent Controller vide judgment dated 14th October, 1997.

3. Aggrieved by the said order, the owner preferred a revision petition before this Court, which too failed and was dismissed by order dated 20th September, 2000. Shortly thereafter came the suit for possession, damages, mesne profits and injunction filed by the respondent in the year 2002. The plaintiff claimed ownership on the basis of a gift deed executed by Sardar Gian Singh in his favor. The plaintiff’s case in the plaint was that the entire house excluding the portion mentioned in Clause 12 of the lease agreement had been let out to the defendant-appellant and that the defendant had illegally and without any lawful justification broken the locks of the said portion and occupied the same. According to the plaintiff, no tenancy was ever created in favor of the appellant in so far as the said portion of the property was concerned. The plaintiff in that backdrop claimed a decree for possession of the disputed portion of the property and for recovery of damages/compensation for unauthorised use and occupation thereof.

4. In the written statement, apart from questioning the validity of the gift deed propounded by the plaintiff, the defendant alleged that he was a tenant of the entire house and not just the portion mentioned in the lease deed. On the pleadings of the parties the trial court framed the following issues:

1. Whether this Court has no jurisdiction to try suit in view of Section 50 of Delhi Rent Control Act? OPD
2. Whether the plaintiff has locus standi to maintain the present suit? OPP
3. Whether the suit is not properly valued? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the plaintiff is entitled to relief of possession of the suit property? OPP
7. Whether the plaintiff is entitled to damages, if so at what rate and for what period? OPP
8. Whether the Gift Deed executed by Sh. Gian Singh in favor of the plaintiff dated 24.10.01 is not valid? OPD
9. Relief.
5. In support of the case, the plaintiff examined Sh. S.P. Marwaha, attorney, who in his deposition proved the execution of the gift deed in favor of the plaintiff and asserted that defendant-appellant was a tenant inducted by Sardar Gian Singh only in respect of one drawing-cum-dining room, two bed bedrooms with attached bathrooms, kitchen, verandah and a common passage. The rest of the accommodation available in the use was excluded from the tenancy created under the lease agreement executed between Sardar Gian Singh and the appellant. The witness further deposed that the defendant-appellant had in the year 1995 illegally and unauthorisedly broken the locks of one bedroom with attached bathroom on the ground floor next to the stairs and of the mezzanine floor and occupied the same. The plaintiff had acquired knowledge of the trespass and illegal occupation only through a suit for declaration and injunction filed by the defendant before this Court, which was eventually dismissed in default on 13th August, 2001. The witness also referred to the market rate of rent on similar property in the vicinity to justify the plaintiff’s claim for payment of mesne profits. He also proved the general power of attorney in his favor marked Ex. PW1/1. Gift deed Ex.PW-1/3, mutation letter Ex.PW-1/4, rent agreement Ex.PW-1/5, copy of the notice issued by the plaintiff Ex.PW-1/6, postal receipt and AD card marked Exs.PW-1/7 and 1/8 respectively, reply of the defendant marked Ex.PW-1/9, apart from other documents. In his cross-examination, the witness asserted that the erstwhile owner used to visit the disputed portion of the suit property and stay in the same for few hours and at times for a couple of nights.

6. In addition, the plaintiff examined PW-2, Ram Pershad, a Judicial Assistant from the record room of the High Court, who proved the certified copies of the plaint, written statement and the gift deed, marked Exs.PW-2/1, 2/2 and 2/3 respectively. The statement of PW-3, Sh.Ajay Kumar Ojha examined by the plaintiff also proved the gift deed executed in favor of the plaintiff-respondent.

7. In rebuttal the defendant examined himself as DW-1 and inter alia asserted that the entire house had been taken by him on a monthly rental of Rs.15,000/-. He also alleged that there was no privity of contract between the plaintiff and the defendant nor had he attorney in favor of the plaintiff. The defendant further asserted that Sardar Gian Singh was never in possession of any part of the property and that he was in occupation of the entire house w.e.f. 16.12.1981 and that Clause 12 of the deed had no meaning. He denied having broken the locks to take unauthorised occupation of the disputed property.

8. DW-2, Dharam Rao, who was examined by the defendant in support of his version that the entire house was in his occupation right from the beginning, claimed that he had joined the defendant’s household as a domestic cook-cum-servant on 22nd November, 1980 and ever since then he had been living in the mezzanine floor of the house and using the bathroom on the terrace. He placed on record copies of his passport and that of his wife and passbooks marked Ex.PW-2/1 & 2/3. In his cross-examination this witness stated that he had no documentary evidence to show that he was living in mezzanine floor nor did he have any proof of his employment with the defendant.

9. Based on the evidence adduced by the parties the trial court decided issued No. 1 in favor of the plaintiff and against defendant-appellant. He held, and in our view, rightly so that the observations made by the Rent Controller in the eviction case decided by him were in the nature of obiter which did not substantially conclude the issue as regards the extent of the premises leased to the defendant. The said observations did not, therefore, operate as res judicata. The court held on a reading of the terms of the lease agreement that the suit property was not rented out to the appellant and that the provisions of Section 50 of the Delhi Rent Control Act had no application to the facts of the case.

10. Issues No. 2 & 8 were also held in favor of the plaintiff by the court below and the gift deed executed in favor of the plaintiff held to be valid. Issue No. 3 was similarly decided against the defendant and the suit held to have been properly valued.

11. As regards issue No. 4, the court below held that the defendant had failed to prove that he had been in occupation of the disputed portion of the house from the very beginning despite Clause 12 of the lease agreement marked Ex.PW-1/5. The court noticed that the defendant had failed to discharge the onus to prove that the suit was barred by limitation as there was no averment in the written statement that he had occupied the suit property on any date subsequent to the execution of the lease deed. The court on the contrary, believed the version of the plaintiff that the defendant had unlawfully taken possession of the suit property in the beginning of 1995 which plea was probablised by the institution of the suit for declaration subsequently dismissed for non-appearance of the defendant.

12. Issues No. 5, 6 & 7 were also decided in favor of the plaintiff and the defendant held liable to deliver possession of the disputed portion of the property apart from payment of damages/mesne profit of a sum of Rs.72,000/- pendente lite and till delivery of the possession by him. The present appeal, as already indicated earlier, assails the correctness of the above judgment and decree.

13. Appearing for the appellant, Mr.Makhija, made a three-fold submission in support of the appeal. Firstly, he contended that the suit filed against the defendant-appellant was beyond the period of 12 years stipulated under Second Schedule of the Limitation Act. He argued that the plaintiff had failed to prove his dispossession within a period of 12 years from the date of institution of the suit.

14. Secondly, he contended that although Clause 12 of the lease agreement executed between the parties specifically excluded the suit property from the tenancy created in favor of the defendant-appellant, yet the defendant was entitled to adduce evidence to show that the said property was also included in what was let out to the appellant. In support of that submission, he placed reliance upon proviso (4) to Section 92 of the Evidence Act and contended that the same permitted production of evidence to prove that Clause 12 of the lease agreement was never acted upon by the parties. This would, according to Mr.Makhija, tantamount to proving a subsequent oral agreement within the meaning of proviso (4) to Section 92 of the Act.

15. Thirdly, he argued that evidence, contrary to the terms of a document, was admissible in case there was any ambiguity in the document. He referred to Section 93 in this regard and urged that the lease deed executed in favor of the defendant was ambiguous in nature as regard the description of the property demised thereby entitling the defendant to produce evidence relying upon Section 93 of the Evidence Act.

16. On behalf of the respondent, it was, on the other hand, contended that the trial court had correctly decided the issue relating to limitation framed by it and since the onus of proving the said issue lay upon the defendant-appellant, the same had been rightly held against him in the absence of any evidence to show that he had dispossessed the plaintiff more than 12 years from the date of institution of the suit. It was further contended that the defendant-appellant had not set up any subsequent oral agreement within the meaning of proviso to Section 92 of the Evidence Act nor was any such subsequent oral agreement proved at the trial. In the absence of any plea of a subsequent oral agreement and proof to make the same good, the defendant was not entitled to adduce any evidence or demand a finding in his favor that the contents of the lease deed did not correctly describe the terms of the contract entered into by the parties. Reliance upon Section 93 of the Evidence Act was also, according to the learned Counsel for the plaintiff mis-placed as there was no ambiguity in the document whatsoever, to permit any party to the same to let in evidence in the garb of removing any such ambiguity.

17. The primary question that fell for consideration before the trial court and that arises for our consideration in the present appeal also is whether any tenancy was created in favor of the defendant-appellant qua the suit property. The plaintiff’s case, as already noticed earlier, is that the terms of the contract between the parties were reduced to writing in the form of a lease deed which specifically executed the suit property from what was demised in favor of the defendant-appellant. The suit property was, according to the plaintiff, never let out to the defendant nor was the defendant put in possession thereof. Reliance in support of that version is placed not only on the oral testimony of the plaintiff’s witnesses but also on the terms of the lease deed, Clause 12 whereof reads thus:

12. That the Lesser has retained with himself one room on the ground floor and the mezzanine floor with him and he shall be at liberty to use it either himself let it out to any other tenant in which the second party shall have no objection.
18. The defendant’s version, on the other hand, is that the above Clause was not acted upon. This, according to the defendant, constitutes a subsequent oral agreement within the meaning of proviso to Section 92 of the Evidence Act and could, therefore, be proved by adducing oral evidence. The defendant has not, as rightly contended on behalf of the plaintiff, set up any agreement oral or written subsequent to the execution of the lease deed by which what was excluded under the lease agreement was let out to him by the plaintiff. Had the defendant raised a plea that subsequent to the execution of the lease deed between the parties, the plaintiff had let out even the excluded portion of the property to him he may have been entitled to adduce evidence to prove the same under proviso (4) to Section 92. No such plea was, however, raised by the defendant in his written statement, nor was any issue framed to that effect. The submission made by Mr.Makhija that oral evidence to prove a subsequent oral agreement between the parties is admissible under proviso to Section 92, therefore, does not help the appellant much. While any such subsequent oral agreement may be proved by evidence oral or documentary, the minimum which a party must do is to set up a plea regarding the existence of any such subsequent oral agreement. No amount of evidence, it is well settled, can help a party if an appropriate plea is not raised in the pleadings. That is the position in the present case also.

19. What then remains to be seen is whether the defendant can, contrary to Clause 12 extracted above, argue that the same does not reflect the real state of affairs. Our answer is in the negative. We say so because Sections 91 & 92 of the Evidence Act are a clear bar to the production of any evidence intended to prove the terms of a contract which have been reduced to the form of a document. The lease agreement executed between the parties is a contract, the terms whereof have been reduced to the form of a document. Any question relating to the terms of any such contract can, therefore, be answered only by reference to the document so executed and not by any oral evidence.

20. The question as to what property was leased out to the defendant must be, accordingly, answered by reference to the lease deed itself. Since Clause 12 of the lease deed excludes from the tenancy created in favor of the defendant the suit premises, no evidence can be adduced to show that a tenancy had in fact been created. Section 92 of the Evidence Act specifically excludes proof of any oral agreement between the parties to the suit, which may have the effect of contradicting, adding to, varying or subtracting from the terms of a written contract. It reads:

92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
21. No evidence could, therefore, be adduced nor could the proof of any such evidence help the defendant in contradicting, varying, adding or subtracting from the terms contained in the lease agreement between the parties. Such being the position, the tenancy in favor of the defendant must be deemed to have been created only qua the property that was demised in his favor, according to the terms of the lease agreement. Since the said agreement specifically excludes the suit property from the tenancy there was no question of the defendant proving that such a tenancy was created notwithstanding the terms of Clause 12 of the agreement to the contrary. As noticed above, the defendant had not set up any subsequent oral agreement under which the excluded portion of the house could be said to have been leased in his favor. Far from setting up a distinct subsequent oral agreement, the defendant appellant’s case was that the suit premises was demised to him from the very beginning which clearly contradicts the terms of written lease agreement and cannot, therefore, be countenanced.

22. That brings us to the question whether the suit was brought within the period of 12 years prescribed under Article 64 of the Limitation Act. The onus to prove that the suit was beyond the period of limitation was upon the defendant. No evidence was adduced by the defendant to show as to when was the plaintiff dispossessed and how the suit was beyond the period of limitation prescribed. According to the defendant, the plaintiff was never dispossessed as the defendant was put in possession of the suit property by the owner Lesser. That plea has been discussed by us above and repelled. If that be so, we are inclined to agree with the view taken by the trial court that the version given by the plaintiff regarding dispossession in the year 1995 deserves to be accepted. The oral and documentary evidence on record and especially the institution of the suit for declaration by the defendant in the year 1995 did, in our view, provide a sufficient basis for holding that the defendant had dispossessed the plaintiff by illegally trespassing in the suit property in the year 1995 which is within 12 years from the date of institution of the suit.

23. In the result, this appeal fails and is hereby dismissed with costs.