Kishan Chand Dass & Ors. v. Kuoni Travel (India) Pvt. Ltd.

8. The Kuoni refused to hand over possession and claimed that by judgment dated 18th February, 2013 the plaintiff's prayer for putting them in physical possession of the portion that came to their share was rejected and it created three protected tenancies in favour of defendant for Rs.3,275; Rs.1,637.50; and Rs. 1,637.50 per month respectively over the area allotted to the plaintiffs.

9. In view of the defendant’s stance, plaintiffs filed l.A. 1660/2004 praying for clarification/rectification of judgment dated 18th December, 2003 by insertion of the words that each party shall be entitled to physical possession of the portion allotted to it from the other party or the like. l.A.1659/2004 was also filed. The application remained pending for ten years and was finally dismissed by the learned Single Judge on 09th July, 2014 by holding that the plaintiffs had sought a decree for partition of the suit property in equal shares with the sole defendant and had also sought the relief of being put in possession of the portion of the suit property. They consented to passing of the preliminary decree straightaway without asking for trial on any aspect. Preliminary Decree was accordingly passed by this Court. On receipt of the Report of the Local Commissioner, Final Decree was passed wherein specific portions were assigned to both the parties. No objection was raised by either party in respect of the different portion and this Court decreed the suit. It was held that it could not be stated that inadvertently the relief of possession has not been granted to the plaintiffs by final judgment Order dated 18th December, 2003 or that the error/ mistake is required to be rectified under Section 152 Cr.P.C. It was clarified that once the Court says the suit is decreed, it means it is decreed in entirety.

10. The plaintiff has contended that the intent of this Order dated 09th July, 2014 is that each party shall be entitled to physical possession allotted to it from the other party. After this clarification/ Order of 09th July, 2014, the defendant should have handed over the possession as well as the mesne profits with interest but it has failed to do so. Even after this Order, the cheques were sent by the defendant/ wholly owned Indian subsidiary of the billion dollar Swiss Company, purporting to be 'rent' for the claimed 'three tenancies'. Also, Defendant has been coercing the plaintiffs to continue to detain their property probably with an intention that the plaintiffs pay to the defendant for receiving the possession and also want defendant to be absolved of its liability to pay any mesne profits for 11 years for wrongful withholding of possession.

11. Plaintiffs filed FAO (OS) No.31/2015 challenging this Order 09th July, 2014. It is asserted that after the Judgment dated 18th December, 2003, plaintiffs are entitled to possession of the area that has come to their share which the defendant is duty bound to hand over to the plaintiff, but with an intent to unjustly enrich themselves, defendant has deprived the plaintiff and has raised frivolous defences. The defendant has therefore, become liable for restitution and also to pay mesne profits for the area withheld and utilized by them.

12. The defendants have made an offer in effect that they would continue to cause the plaintiff’s injury unless they give up their claim against it. They have been reiterating and continuing to threaten and put the plaintiff in fear of continued injury to coerce them to give up their claims.

13. It is submitted that it is for the Court which passes the decree to get it executed when called upon to do so with a view to see that the rights and obligations of the parties flowing from the decree gets finally complied with and translated into reality. Therefore, the present application has been filed under Order XX Rule 12 CPC to hold an inquiry into pendente lite mesne profits preferred by the parties.

14. The application is contested by the defendant, who has claimed that the application is misconceived, baseless and is not maintainable in as much as the suit filed by the plaintiff was simplicitor for partition and not for award of mesne profits; therefore, the plaintiff is precluded from claiming the same in the present suit. It is now not open to the plaintiff to revive the suit by moving an application under Order XX Rule 12 CPC for direction to hold an enquiry into grant of mesne profits.

15. It is admitted that a preliminary and final decree has been held by this Court. It is, however, asserted that the claim of the plaintiff for relief of possession was declined by this Court vide Order dated 09th July, 2014. The Order was challenged before the Division Bench which vide Order dated 02nd September, 2016 rejected the appeal, by holding that there being no prayer in the plaint that the tenancy right of the respondent be declared to have lapsed, it cannot be said that by implication it has to be read that the respondent (the defendant herein) agreed to partial surrender of its tenancy right. It is claimed that the stand taken by the defendant that the suit property has fallen to the share of the parties stands fortified.

16. The defendant has asserted that it has continued to claim its right under the Rent Agreement with the erstwhile owners and after the purchase of the rights of the erstwhile owners, it has devolved upon the plaintiff. The interpretation as put by the plaintiff is erroneous and unsustainable and is nothing but an attempt on the part of the plaintiff to somehow prejudice this Court against the defendant by making the Court believe that the defendant is illegally holding the possession, whereas it is contrary as is evident from the documents itself. The defendant is in possession of the property only as a tenant.

17. It is further denied that defendant has illegally assigned 140 Sq. Ft. to M/s Aditya Birla Nuvo Ltd. as claimed. It is explained that defendant has only sold that portion of the premises that had fallen to its share pursuant to the final decree. The defendant has not occupied even an inch of the suit premises illegally. To the best of the knowledge of the defendant, the portion that the plaintiff is speaking about, is lying locked as on date as it is in the occupation of the plaintiff. The defendant has no access to the said portion.

18. It is further explained that to the best of knowledge of the defendant, the open area of rear block is in possession of the plaintiff and no part of it is in occupation of the defendant. The garage block of 799.[5] sq.ft. to the best of knowledge of the Defendant, is also in possession and occupation of the plaintiff. In respect of the area of 350. 00 sq.ft. on the first and second floor, it has been explained that the defendant is in possession of the same as a tenant, a claim that has already been fortified by the Order dated 2nd September 2016.

19. It is further denied that the defendant sought to split the tenancy created in May, 1976 into three tenancies so as to keep each below Rs.3,500/- per month to claim protection under the Rent Control Act. It is clarified that the tenancy under the 1976 document was between Shamsher Singh and his legal heirs Rattan Lal Govind Ram and his wife Ms. Kalawati Gobindram (first party) and M/s Sita World Travel (India) Ltd. (second party). While the share of Shamsher Singh was purchased by M/s Sita World Travel (India) Ltd., the share of Rattan Lal Govind Ram and his wife Ms. Kalawati Gobindram was purchased by the plaintiff i.e. Kishan Chand Dass, his wife Saroj Dass and his son Rahul Dass. Accordingly, since the shares of Rattan Lal Govind Ram and his wife Kalawati Govbindram was taken over by three people, the defendant was left with no option but to split the amount of rent in three parts. It is further submitted that under the 1976 document, the rent was being paid separately to Rattan Lal Govind Ram and his family. Therefore, the claim of the plaintiff that he has split the tenancy in order to seek protection under Rent Control Act is a figment of his own imagination.

20. It is also stated that the FAO (OS) 31/2015 has been disposed of vide Order dated 05th October, 2016. It is submitted that the application is without merit and is liable to be dismissed.

21. Submissions heard.

22. The petitioner had filed a suit for Partition in respect of suit property bearing No.F-12 and 13, Connaught Place, New Delhi and for appointment of Local Commissioner to suggest the mode of partition. A Preliminary Decree for partition was made on 22nd May, 2003 and Final Decree for partition was made on 18th December, 2003. The claim of the petitioner in this application is that after the judgment/ Final Decree of partition dated 18th December, 2003 the plaintiffs are entitled to physical possession of the area that has come to their share and the defendant M/s Kuoni Travels which is in possession of its portion as a tenant, is bound to hand over the possession, but with an intent to unjustly enrich themselves, the defendant has deprived the plaintiff of the possession by raising frivolous defences.

23. It is the case of the plaintiff themselves that the suit properties were two adjoining properties in which the partition has been directed vide Final Decree of Partition dated 18th December, 2003. It is also the submission of the plaintiffs that defendant M/s Kuoni Travels was given the half share of the property in terms of the Final Decree. It is further not disputed that defendant is also wearing a hat of tenant in respect of a portion of property which has come to the share of the plaintiff. Now by way of this application, the plaintiff is seeking the possession from the defendant which is the tenant of the plaintiff.

24. It is a settled preposition of law that the owner whose property is in occupation of a tenant, is in legal possession of the said property through the tenant and is entitled to claim the possession from the tenant by instituting the eviction proceedings as per law. In the present case, while the defendant as a co-owner has been given 50% of the property, which has been already demarcated, the status of defendant M/s Kuoni Travels in respect of the portion of the property which has come to the share of the plaintiff is in the nature of a tenant. M/s Kuoni Travels thus, is in the dual capacity one as the owner of its own portion is regard to which there is no dispute. The other portion has come to the share of plaintiff but a portion is occupied by defendant as a tenant. The suit was for partition, whereby the plaintiff could have sought the possession of the portion which came to his share, from the defendant M/s Kuoni Travels, if it was in its occupation as a co-owner. But here there is a clear distinction of M/s Kuoni Travels being a tenant from whom the plaintiff can seek possession only by following due process of law by initiating the appropriate legal proceedings. In this suit for partition, the plaintiff cannot seek possession from M/s Kuoni Travels who is a tenant in the portion of the plaintiff.

25. It is pertinent to mention here that the plaintiff has admittedly initiated eviction proceedings against M/s Kuoni Travels, its tenant. The present application has been filed under Order XX Rule 12 CPC which deals with decree for possession and mesne profits. Order XX Rule 12 CPC reads as under:

12. Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree— (a) for the possession of the property; (b) for the rents which have accrued on the property during the period prior to the institution of the suit or direction an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until—

(i) the delivery of possession to the decree holder,

(ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs. [2] Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

26. The opening words of this provision is “in a suit for recovery of possession of immovable property and for rent/ mesne profits,” the Court may pass a decree for possession of suit property, rent/ mesne profits. The said Section is not applicable to the present proceeding which was for partition and not for possession against the tenant.

27. It is significant to note that after the Final Decree was made on 18th December, 2003. Immediately thereafter I.A.1659/2004 was filed under Section 151 CPC, wherein two prayers were made; one for directing the defendant to deposit its share of stamp duty for the decree to be drawn and the second was to direct the defendant to hand over the possession of such portion of the suit property which fell in the share of the plaintiffs upon partition.

28. Another application I.A.16660/2004 invoking the powers of the Court under Section 151, 152 and 153 of CPC was filed by asserting that there was an inadvertent omission in the Final Decree as it did not incorporate that the plaintiffs would be entitled to possession of the 50% of the property which fell to its share as a result of partition.

29. This Court vide its Order dated 18th December, 2003 held that defendant’s tenancy rights were not the subject matter of the suit and because the defendant was a tenant in respect of certain portion which has come to the share of the plaintiffs, the Court cannot direct the defendant to surrender its tenanted premises so as to put the plaintiff in actual physical possession of 50% of the area which has come to their share.

30. This Order was challenged before the Division Bench vide FAO (OS) 31/2015 which was decided on 02nd September, 2016. The plaintiff relied upon the judgments namely Atrabannessa Bibi vs. Safatullah Mia AIR 1916 Calcutta 645, Ramaprasada Rao vs. Subbaramaiah AIR 1958 Andhra Pradesh 647, Vasantiben Prahladji Nayak vs. Somnath Muljibhai Nayak 2004 3 SCC 376, Ghantesher Ghosh vs. Madan Mohan Ghosh 1996 11 SCC 446, Kapila Bai vs. H.S. Madhava Rao AIR 1957 Mysore 71, Y. Laxmi Prasannam vs. Y. Narasayya AIR 1975 Andhra Pradesh 81, Lakanam Venkata Raman Rao vs. Ponnamanda Alivelamma 2010 (3) ALT 233, Uma Devi vs. Shivraj Krishan Gupta 2015 (148) DRJ 455, K. Venkata Subbaiya vs. K. Veeraiyya AIR 1955 Andhra Pradesh 172, Girdhari Lal vs. Gaj Nand ILR 1974 Delhi 864 (DB), Govind Ram vs. Ganesh Ram AIR 1979 Allahabad 122, V.P. Hashumal vs. Sri Bombay Halwa House (1983) ILR 1 Madras 213, Neety Gupta vs. Usha Gupta 2019 (173) DRJ 646 (DB), K.P. Nalla Goundar vs. P. Ramaswamy 1979-2 ILR (Madras) 62, Mohhapti Nageswara Sastry vs. N.L. Narasimha Rao 1983 (1) APLJ 231, Sita Kashyap vs. Harbans Kashyap 2011 (123) DRJ 52.

31. The Division Bench considered all the aforementioned judgements and specifically turned down the prayer of the plaintiff for being put in possession of its 50% of the share portion which was in the possession of the defendant as a tenant. In a suit for partition, the plaintiff may be entitled to recovery of mesne profits from the defendant in respect of property in possession of the defendant but has come to the share of the plaintiff, but not when the defendant is occupying a portion of the share of plaintiff in the capacity of the tenant, as in the present case.

32. The judgements relied upon by the plaintiff were duly considered and it was held that in a suit for partition while effecting partition by metes and bounds, the fair market value of the property has to be ascertained and the partition must represent money value equivalent to the share in the property in proportion to the ownership rights of the parties. Had the property been in the possession of the co-owners alone, there would have been no problem in directing the co-owner possessing a portion of the property which fell into the share of other co-owner to deliver the possession thereof. But where the co-owner has a tenancy right in an area beyond its 50% of the share, the tenancy rights would be distinct and would not merge in the ownership interest of the co-owner. It was thus held that there was no merger of the tenancy rights with the ownership rights. It was further held that the tenancy rights of the defendant in respect of the property beyond its 50% of ownership would remain intact. There was no reference either in the pleadings or any of the Orders or in the Report of the Local Commissioner as to what would happen to the tenancy rights of the defendant. It was held that it was not a case of an unintentional omission to record that the possession of 50% of the share which has come to the share of plaintiffs, be delivered to the plaintiffs. The prayer of the plaintiffs for rectification of the Final Decree for directions to be handed over the portion in the tenancy of the defendant, was specifically denied.

33. The contentions raised by way of this application are essentially the same, which have been specifically turned down by this Court vide Order dated 09th July, 2014 which has been upheld by the Division Bench vide its Order dated 02nd September, 2016.

34. A plea had been taken by the plaintiff that the defendants have tried to split its tenancy into three in order to bring it in the protection of Rent Act. However, it has been explained by the defendant that it had been in a portion of the property which has come to the share of the plaintiff as tenant under three erstwhile owners vide three separate Rent Agreements. However, on subsequent purchase/ the property coming to the share of the plaintiff, they have become the tenants under the plaintiff.

35. It is held that in the light of above discussion, the present application seeking possession from M/s Kuoni Travels as the tenant in respect of the property which has come in the share of the plaintiff, is not maintainable.

36. The application is hereby dismissed. I.A.16071/2022

1. An application under Order XXII Rule 10 read with Section 151 CPC has been filed on behalf of the plaintiffs.

2. It is submitted in the application that the plaintiff is the owner of 50% of undivided share in property bearing No.F-12/13, Connaught Place, New Delhi in respect of which a preliminary decree was passed on 22nd May, 2003 and a final decree was passed on 18th December, 2003. It is asserted that in 2015 Thomas Cook (India) Ltd. [CIN-0717] took control of DF- Kuoni [CIN -0074]. On 5th March, 2016, Defendant-Kuoni Travel (India) Pvt. Ltd. changed its name to "SOTC Travel Services (P) Ltd. [CIN-0074], however, remained the same. Four months later, on 1st July, 2016, Defendant Kuoni Travel (India) Pvt. Ltd. [CIN-0074], then (upon name change) known as SOTC Travel Services (P) Ltd. [CIN-0074] -amalgamated into Travel Corporation (India) Ltd. [CIN-2067] - and thus has ceased to exist. Three years later, on 25th November, 2019, Travel Corporation (India) Ltd [CIN -2067], earlier a wholly owned subsidiary of Thomas Cook (India) Ltd., amalgamated with Thomas Cook (India) Ltd. [CIN -0717] and thus ceased to exist.

3. In view of the aforesaid Corporate merger/ amalgamation, original defendant Kuoni Travel (India) Private Ltd" [CIN -0074] is now part of Thomas Cook (India) Ltd. [CIN -0717]. To prevent misleading of this Court it is clarified that Kuoni Travel (India) Private Ltd [CIN-0074], though has renamed itself as SOTC Travel Services (P) Ltd. did not amalgamate with "SOTC Travel Ltd" [CIN-1691]. Accordingly, in place of Kuoni Travel (India) Private Ltd [CIN-0074], Thomas Cook (India) Ltd [CIN -0717] has to be substituted as Defendant. In case there is any dispute, Mr. M. K. Menon, Managing Director of Thomas Cook (India) Ltd. may be directed to appear under Section 30 CPC and Section 165 Indian Evidence Act and to clarify this on Oath. A prayer is, therefore, made that Thomas Cook (India) Ltd. [CIN-0717] may be substituted in place of the defendant.

4. No formal reply has been filed to the present application on behalf of the defendant.

5. Submissions heard.

6. The plaintiff has filed an application under Order XXII Rule 10 read with Section 151 CPC for substitution of Thomas Cook India Ltd. in place of the defendant by claiming that there has been corporate mergers and amalgamation of original defendant Kuoni Travel (India) Private Ltd. with Thomas Cook (India) Ltd. [CIN-0717].

7. The suit for the partition had been filed by the plaintiff which has been decreed vide Final Decree dated 18th December, 2003. An application I.A.25953/2015 under Order XX Rule 12 had been filed on behalf of the plaintiff but the same had also been dismissed vide separate Order. The suit for partition stands finally decreed and there are no subsequent proceedings pending in this Court warranting the substitution of the name of the defendant by Thomas Cook (India) Ltd. with whom it is claimed to have amalgamated or merged. The application is infructuous and is hereby dismissed.

JUDGE NOVEMBER 22, 2022