Delhi High Court
Shri Kishori Lal vs Shri Ram Singh on 17 May, 2004
Equivalent citations: 111(2004)DLT795, 2004(74)DRJ720
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT
Manmohan Sarin, J.
1. This Regular Second Appeal is filed against the judgment and decree dated 31st August, 2002, passed by the Civil Judge, Delhi and confirmed in appeal by the Additional Senior Civil Judge vide judgment dated 24th February, 2003.
2. The respondent had filed a suit for mandatory and permanent injunction seeking a direction to the appellant to handover premises as shown in the site plan ad measuring one Biswas i.e 50 sq.yards of the land in Khasra no. 408/2 Village Gokal Pur, Shahdara along with furnitures. An injunction was sought to restrain the appellant from carrying out any illegal construction in the premises. The said suit had been decreed by the learned Civil Judge and the appeal preferred by the appellant, as noted, was dismissed by the Additional Senior Civil Judge.
3. The facts in brief leading to the filing of the Regular Second Appeal may be noted.
(i) The respondent in his suit for mandatory and permanent injunction had averred that he was the owner having possessory title with regard to one Biswas measuring 50 sq. yds of the land in Khasra no. 408/2, Village Gokal Pur, Shahdara, Delhi. The respondent’s case is that he had constructed a temporary shop and was running a hotel/dhaba. As he was not keeping good health, he gave the said hotel on Theka to the appellant vide an agreement dated 17.1.1987 for a period of one year. The furniture, cooking utensils and Ors. items as mentioned in the list and signed by the appellant were allowed to be used for running the hotel.
(ii) The appellant had paid a sum of Rs. 3000/- as security deposit. The appellant was also to pay Rs. 40/- per day as the license fee charges. On the expiry of the license period of one year, the appellant did not vacate. On 14.8.1988, MCD had demolished partly the suit premises and it was not possible to run the hotel. As the appellant did not restore the possession and return the furnitures and utensils to the respondent, respondent filed the above suit for mandatory injunction for directing appellant to hand over demolished premises.
(iii) Upon completion of pleadings and recording evidence, the Civil Judge decreed the suit. The Appellate Court dismissed the appeal of the appellant. However, it directed the respondent to make up deficiency in court fee based on the market value of the suit premises as restoration of possession was sought.
(iv) Notice to show cause in the appeal was issued on 13.5.2003 and the trial court record was also called for and dispossession of the appellant had been stayed.
4. Learned counsel for the appellant and respondent were heard on 21.4.2004 and judgment reserved. Learned counsel for the appellant Mr.Jatan Singh submitted that initially the appellant had taken the tenanted premises on Theka terms on 17.1.1987 for a period of one year and appellant had paid Rs. 40/- per day as rent to the respondent for a period of 12 months. He submitted that due to criminal activities, the respondent remained in jail and during this period, rent was received by his wife and son. The respondent attempted to illegally and forcibly dispossess the appellant and filed a suit.
5. The main plank of the submission of the appellant’s counsel is that respondent itself through his lawyer’s notice had admitted the appellant to be a tenant. The relevant part of the said notice is as under:-
“That you are a tenant of my client with respect to 50 sq.yards of land of Khasra no. 408/2 of Village Gokalpur, Illaqa Shahdara, Delhi on monthly rent of Rs. 400/-The month of the tenancy is according to the English calender month.”
6. Mr.Jatan Singh submits that by this notice tenancy of the appellant was sought to be terminated w.e.f. 31st March, 1991. When this notice was issued, respondent had already filed the suit for mandatory and permanent injunction. Though notice was without prejudice to the rights and contentions of the parties, counsel submitted that once respondent admits the appellant as a tenant, appellant on this admission alone gets benefit of protection under the Delhi Rent Control Act and suit would thus be barred under Section 50 of the Delhi Rent Control Act. Learned counsel also lay emphasis on the rent receipts exhibits DW 1/1 to DW 1/9 issued by wife and son of the respondent to further buttress claim of tenancy.
7. The Trial Court and the Appellant Court have both considered the evidence in detail as recorded. The execution of the agreement dated 12.1.1987 between the parties is admitted by the respondent and the said document together with the list of furnitures and fittings items has even been admitted by the appellant. The payment @ Rs. 40/- per day is also admitted as per the license deed. The Trial court and the Appellate court have rightly noted that mere issuance of rent receipts by the son and wife of the respondent, while latter was in jail where the parties are described as land lord and tenant would not be determinative of the issue of tenancy inasmuch as it was the license deed duly executed in writing, which was implemented. Moreover the payments under the receipts also totalled up to Rs. 40/- per day. The Trial court and the Appellate court have also rightly disbelieved the version of the appellant that he was paying rent of Rs. 400/- per day after having spent Rs. 15,000/- for raising super structure. The Trial court and the Appellate court have also rightly disbelieved the appellant version that agreement dated 17.1.1987 was got executed by coercion subsequently. This defense as rightly observed by the trial court had been taken only at the time of filing of written statement. There was nothing to show that appellant ever made any complaint to any Authority by challenging the license agreement and alleging that he was a tenant. The defense appears to be an afterthought. It was, therefore, held that appellant had been given the premises on license and his plea of being inducted as tenant was incorrect.
8. As regards legal notice served on the appellant , the respondent in his evidence did not deny his signature and it was served by his counsel, but stated that he did not know the contents of the notice as it was best known to his counsel. This was the explanation of an innocent person who perhaps did not understand the legal niceties of a person being described as a tenant. It may also be noticed that the appellant had failed to produce any evidence whatsoever with regard to his contention of having spent Rs. 15,000/- on construction of super structure pursuant to which he claimed that he started paying Rs. 400/- per month. In any case, there is overwhelming evidence to the admitted execution of theka agreement/license deed, its implementation by the parties and the terms of the same cannot be varied on the basis of a statement in the notice. This would hardly be an admission to negate the overwhelming evidence otherwise.
9. Coming to the appellant’s contention that the suit was barred under section 50 of the Delhi Rent Control Act, the said plea is devoid of merit. The appellant himself in the written statement had taken the plea which is as under:-
” The land was given on rent by the plaintiff and the whole of the super structure was got constructed by the defendant at his own cost by spending a sum of Rs. 15,000, The goods of the hotel is owned by the defendant and the defendant is still running his hotel.”
10. It would thus be seen that as per his own defense what was allegedly let out was land. Letting out of land would not fall within the definition of premises under Section 2(i) of the Delhi Rent Control Act and the bar under Section 50 would not be applicable. Reference in this connection is invited to Ajit Singh v. Ram Saroopi Devi 1996 Rajdhani Law Reporter 299 and the judgment of the Supreme Court in reported at Kamala Devi v. Laxmi Devi 2000 Rajdhani Law Reporter (NSC) 90.
11. The Trial court and the Appellate court have duly considered and analysed the evidence and drawn inference warranted at law. No substantial question of law arises requiring consideration in Regular Second Appeal under Section 100 of CPC. Appeal has no merit and is dismissed.
12. Trial court record be returned.