RSA No.202/2016

Page 1 of 11

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

RSA No.202/2016

%

3^rd August, 2016

SHRI K.C. BHARGAVA

..... Appellant

Through:

Mr.

Diwan

Singh

Chauhan,

Advocate.

versus

SANATAN DHARAM SABHA LAKSHMI NARAIN TEMPLE TRUST

(REGD)

.....Respondent

Through:

Mr. Sanjay Aggarwal, Advocate.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Caveat No.673/2016

1.

Counsel appears for the caveator and thus the caveat stands

discharged.

C.M. No.27672/2016 (exemption)

2.

Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ RSA No.202/2016 and C.M. No.27671/2016 (stay)

RSA No.202/2016

Page 2 of 11

3.

This Regular Second Appeal under Section 100 of the Code of Civil

Procedure, 1908 (CPC) is filed by the legal heir of the original defendant in the

suit impugning the concurrent Judgments of the courts below; of the Trial Court

dated 17.4.2012 and the First Appellate Court dated 23.4.2016; by which

judgments

the

courts

below

have

decreed

the

suit

of

the

respondent/plaintiff/temple trust for possession of the suit premises viz quarter

no.9, Birla Mandir, Mandir Marg, New Delhi.

4.

The facts of the case are that the respondent/plaintiff/temple trust

filed the subject suit pleading that with respect to employees who are employed in

the temple, the respondent/plaintiff gave them quarters and the original defendant

in the suit on account of his services with the respondent/plaintiff was given the

subject quarter without charging any license fee. The original defendant had

executed an Undertaking dated 20.4.1966 (Ex.PW1/D) whereby it was agreed by

the defendant that he will remain in the quarter only till his services with the

temple trust/respondent/plaintiff continued. Defendant retired on 1.4.1995 and

therefore the respondent/plaintiff sent a Letter dated 5.6.1996 and the Legal

Notice dated 17.6.1996, but, defendant failed to vacate the subject quarter, and

hence the present suit for mandatory injunction, possession and mesne profits was

filed.

RSA No.202/2016

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5.

Suit was contested by the defendant. As already stated above,

defendant died during the pendency of the suit and his legal heir being the present

appellant was substituted for the original defendant. As per the written statement

filed the suit property being in the ownership of the respondent/plaintiff was

disputed. Suit was also prayed to be dismissed on the ground that though the suit

was filed for mandatory injunction really it was a suit for possession. It was

pleaded that the suit was barred under Section 50 of the Delhi Rent Control Act,

1958. It was also pleaded that deceased defendant was kept as a pujari and was

donated the suit quarter in the year 1942 on permanent basis and hence the

defendant and now his legal heir/appellant is entitled to own and possess the

same.

6(i)

Both the courts below have held that the deceased defendant was

only an employee of the respondent/plaintiff and during the course of his

employment, he had executed the Undertaking dated 20.4.1966 (Ex.PW1/D)

admitting that the suit property had been allotted to the deceased defendant only

till the time he remains under the employment of the respondent/plaintiff.

Though counsel for the appellant sought to argue that this undertaking Ex.PW1/D

is not proved, however, it is seen that this document was exhibited as per the

affidavit of evidence filed on behalf of the respondent/plaintiff of Sh. V.K. Mishra

as PW-1. As per para 5 of this affidavit, undertaking is proved and exhibited as

RSA No.202/2016

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Ex.PW1/D. Appellant before commencement of cross-examination did not object

to the mode of proof and exhibition of this document and therefore

appellant/defendant cannot claim that the undertaking is not duly exhibited in

view of the judgment of the Supreme Cou