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High Court Of Delhi
MAHAVIR PRASHAD - Appellant
Versus
SUKHDEV MONGIA - Respondent
REGULAR FIRST APPEAL 281 of 1986
Decided On : 08/25/1989
POSSESSION - UNAUTHORIZED OCCUPATION - DAMAGES - OWNERSHIP - CO-OWNERSHIP - TENANCY - RENT CONTROL ACT - SLUM AREAS ACT - VALUATION - EVIDENCE - RENT RECEIPT - SURRENDER LEASE DEED - INSPECTION REGISTER - BURDEN OF PROOF - ADMISSIBILITY OF EVIDENCE - CO-OWNER'S RIGHT TO FILE SUIT - JOINT HINDU FAMILY PROPERTY - SALE DEEDS - EXECUTION - ATTESTATION - CONTENTS - PROOF - RECITALS - ADMISSIONS - BURDEN OF PROOF - TRANSFER OF PROPERTY - PARTITION - CONSENT OF CO-OWNERS - PLEADINGS - MAINTAINABILITY OF SUIT - JURISDICTION - PECUNIARY JURISDICTION - COURT FEES - PRELIMINARY OBJECTIONS - JURISDICTIONAL ISSUES - FACTUAL ISSUES - LEGAL ISSUES - INTERPRETATION OF STATUTES - SECTIONS 50, 19 - DELHI RENT CONTROL ACT, 1958 - SLUM AREAS (IMPROVEMENT AND CLEARANCE) ACT, 1956 - SECTION 110 - EVIDENCE ACT - SECTION 32(3) - EVIDENCE ACT.
Fact of the Case:
Plaintiffs filed a suit for possession of a portion of a property, damages for unauthorized use and occupation, and future damages. The defendant claimed to be a tenant and raised various preliminary objections, including lack of jurisdiction, bar under the Delhi Rent Control Act and the Slum Areas Act, invalidity of sale deeds due to joint Hindu family property, and improper court fees. The trial court framed issues on ownership, tenancy, valuation, maintainability, and damages.
Finding of the Court:
1. Ownership: The plaintiffs proved their ownership of the property through five registered sale deeds executed by the previous owners, who were co-owners of the property. The defendant admitted that the property belonged to a Joint Hindu Family of which Jai Narain Prashad was the Karta. Jai Narain Prashad, being a co-owner, had a share in the property, and his conveyance was admissible in evidence under Section 32(3) of the Evidence Act. The plaintiffs, as co-owners, were entitled to file the suit for possession against the defendant, a trespasser. 2. Tenancy: The defendant failed to establish his tenancy. The rent receipt and Surrender Lease Deed relied upon by the defendant were not reliable due to various reasons, including lack of supporting evidence, absence of a draft, and inconsistencies. The defendant's possession prior to the alleged tenancy was established through the Inspection Register of the Municipal Corporation of Delhi. 3. Valuation: The court accepted the valuation of the property as provided by the plaintiffs' valuer. 4. Maintainability: The court held that the suit was maintainable as the defendant was an unauthorized occupant and not a tenant. Sections 50 of the Delhi Rent Control Act and 19 of the Slum Areas Act were not applicable. 5. Damages: The court awarded damages for unauthorized use and occupation at the rate of Rs. 30 per month from April 1, 1983, until recovery of possession, considering the rent paid by the previous tenant and the defendant's claim of paying Rs. 30 per month.
Issues: 1. Whether the plaintiffs are the owners of the property in dispute? 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? 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? 5. To What amount of damages, if any, is/are the plaintiff (s) entitled? 6. Whether the tuit as framed is not maintainble?
Ratio Decidendi: 1. Co-ownership: A co-owner can file a suit for possession against a trespasser without impleading the other co-owners. (Currimbhoy and Co. Ltd. v. L. A. Creet and others, AIR 1930 Calcutta 113; Ram Niranjan Das v. Loknath Mandal, AIR 1970 Patna 1; Ajmer Singh v. Shamsher Singh, AIR 1984 Pandh 58; Pal Singh v. Shri Sunder Singh, 37 (1989) DLT (SC) 305=jt 1989 (1) SC 67). 2. Tenancy: A rent receipt alone is not conclusive proof of tenancy. It must be supported by other evidence, such as a rent note, which is the usual practice at the time of the creation of the tenancy. (PW. 5, DW. 1, and DW. 4). 3. Burden of Proof: The burden of proving that a person is not the owner of something of which he is shown to be in possession lies on the person who affirms that he is not the owner. (Section 110 of the Evidence Act). 4. Admissibility of Evidence: A statement made by a deceased person in a conveyance is admissible in evidence against the interest of the deceased person's successors-in-interest. (Section 32(3) of the Evidence Act).
Final Decision: The appeal was dismissed. The decree for possession and damages was affirmed. The defendant was granted two months to vacate the property and was ordered to pay costs of the suit and the appeal.
( 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 ttis plaintiffs/respondents herein. The said decree was passed in favour of the plaititi fs/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 por- tion 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. Acording to the plaintiffs, the cause of action arose in their favour 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 jurisdic- tion; 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 favour 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 raisd in the written statement. It is reiterated that the defendant is a tres-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
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