Full Text
RFA 138/2016
BAL GOVIND ROHTAGI ..... Appellant
Through: Mr. Ankit Jain, Adv.
Through: Mr. Rajeev Mehra, Adv. for R-1.
26.04.2016
JUDGMENT
1. This appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 7th December, 2015 of the Court of Additional District Judge (ADJ)-1, North East District, Karkardooma Courts, Delhi dismissing CS No.64/2011 filed by the appellant for recovery of possession of immovable property and for recovery of arrears of rent and mesne profits.
2. The appeal came up first before this Court on 9th March, 2016 when the same was admitted for hearing and notice issued to the two respondents and ordered to be listed in the category of ‘Regulars’. However, on the statement of the counsel for the appellant that “since the relief has been denied to the appellant for the reason of the of the appellant not having title 2016:DHC:3195 to the property and which the appellant did not prove owing to the nature of the suit being between landlord and tenant, the appellant was willing to withdraw the suit from dismissal whereof this appeal arises, with liberty to file a title suit, notice of the appeal was ordered to be issued for today including to the advocate appearing for the respondents before the Trial Court.
3. Though the report of service of notice through court process is of both the respondents being unserved but the notice issued to the advocate for the respondents i.e. Mr. Rajeev Mehra, Advocate has been served and Mr. Rajeev Mehra, Advocate appears. He however states that though he was representing both the respondents before the Trail Court but is representing the respondent No.1 only today.
4. The appellant has however filed an affidavit of service to the effect that notice of the appeal sent to both the respondents was refused by them.
5. I have no reason to disbelieve the said affidavit and hence treat both the respondents as having been served and since none appears for the respondent No.2, proceed ex-parte against him.
6. The counsel for the appellant and the counsel for the respondent No.1 have been heard on the limited aspect of whether the suit from which this appeal arises should be allowed to be withdrawn with liberty to the appellant to file a title suit.
7. Needless to state the counsel for the respondent No.1 opposes.
8. Though the Trial Court record has not been received as yet but the appellant along with the memorandum of appeal has filed the certified copies of the pleadings and the evidence recorded and for the limited question under consideration need to adjourn the hearing awaiting the Trial Court record is not felt.
9. It was the case of the appellant in the amended plaint filed in the suit
(i) that the respondent/defendant No.1 Mr. Vipin Kumar Jain had taken on rent the premises No.1/11459, Gali No.3, Subhash Park Extension, Naveen Shahdara, Delhi from the erstwhile owner; (ii) the appellant/plaintiff purchased the suit property vide Sale Deed dated 28th December, 2005 and had thus become the landlord of the respondent/defendant No.1; (iii) that the respondent/defendant No.1 was last paying rent @ Rs.10,000/- per month;
(iv) that the appellant/plaintiff determined the tenancy of the respondent/defendant No.1 but he failed to vacate the premises; (v) that the respondent/defendant No.1 who in the suit as originally instituted was the sole respondent/defendant in his written statement took a stand that he had no rights in the premises and the tenancy of the premises was of the respondent/defendant No.2 Mr. Ram Nath; (vi) that the appellant/plaintiff without prejudice to his plea of the respondent/defendant No.1 being a tenant in the premises, impleaded the respondent/defendant No.2, to have an effective decree for possession/ejectment.
10. The respondent/defendant No.2 contested the suit inter alia on the ground that he was a tenant at the rent of Rs.2,500/- per month and denying the ownership of the appellant/plaintiff of the property.
11. On the pleadings of the parties, the following issues were framed in the suit on 10th August, 2011: “1. Whether the plaintiff is entitled to possession and decree for permanent injunction in respect of property bearing no.1/11459, Gali No.3, Subhash Park Extn., Naveen Shahdara, Delhi-110032? (OPP)
2. Whether the plaintiff is entitled to decree for recovery of Rs.2,90,000/- alongwith pendentelite and future interest @ 18% per annum? (OPP)
3. Whether the plaintiff is entitled to preliminary decree in respect to mesne profits? (OPP)
4. Whether the suit is bad for non joinder of the plaintiff? (OPP)
5. Whether the suit of the plaintiff is barred under Section 50 of the Delhi Rent Control Act, 1950? (OPP)
6. Relief.”
12. The learned ADJ, under Issues No.1, 4 & 5 has held (a) that the appellant/plaintiff had failed to prove that the respondent/defendant No.1 was his tenant and that the respondent/defendant No.2 was occupying the property through respondent/defendant No.1; (b) that the appellant/plaintiff had failed to prove that he was the legal owner of the property and perfect legal title had passed over to him on the basis of sale deed Ex. PW1/1; (c) that the respondent/defendant No.2 had also failed to prove his tenancy at the rent of Rs.2,500/- per month.
13. It is the contention of the counsel for the appellant/plaintiff that since the suit as instituted was not as owner but as landlord against a tenant for ejectment after determination of tenancy, the appellant/plaintiff though proved the sale deed in his favour but did not prove that the person who had executed the sale deed in favour of the appellant/plaintiff also had title to the property and now intends to file a suit though for the same reliefs of recovery of possession and arrears of rent and mesne profits but on the basis of title and not on the basis of relationship of landlord and tenant alone. It is contended that in a suit between a landlord and tenant, it is only the relationship of landlord and tenant which is relevant and not the title to the property and thus the appellant/plaintiff remained to prove the title of his immediate predecessor-in-interest to the property.
14. Per contra, the counsel for the respondent/defendant No.1 though prefacing his argument with the plea of the respondent/defendant No.1 having no stake in the property contends that the respondent/defendant No.2 having denied the relationship of landlord and tenant with the appellant/plaintiff and having also denied the ownership of the appellant/plaintiff, the appellant/plaintiff was required to establish his ownership of the property to establish his claim of having become the landlord of the property upon purchase and though led evidence to the said effect but obviously the said evidence was not found sufficient by the learned ADJ and the appellant/plaintiff cannot have a second chance as he is now claiming. Attention in this regard is invited to the evidence led by the appellant/plaintiff, the cross-examination conducted and the discussion in the judgment qua the ownership.
15. The counsel for the respondent/defendant No.1, on enquiry as to how the appellant/plaintiff could be precluded from filing a title suit when admittedly no issue of ownership also had been framed in the suit from which this appeal arises, states that Issue No.1 framed in the suit encompasses the issue of ownership also and the parties and the counsels so understood the issue and led evidence and if the appellant/plaintiff did not succeed, he cannot now claim a second chance.
16. Though there is merit in the contention of the counsel for the respondent/defendant No.1 that the appellant/plaintiff did proceed to establish his ownership of the property by proving the sale deed in his favour and did not proceed with the suit as one between landlord and tenant only but I would hesitate to allow the question of title to the immovable property to be determined and attain finality, if there was some ambiguity in the said respect. In my view, the appellant/plaintiff has to be given the benefit of doubt, of having filed the suit as a landlord and no specific issue of ownership having been framed in the suit. The counsel for the appellant/plaintiff in this regard has rightly drawn attention to the passages in the impugned judgment where the learned ADJ also has held that the case of the appellant/plaintiff was based upon relationship of landlord and tenant. In my opinion, the title if any of the appellant/plaintiff to the property should not be allowed to be extinguished in such a manner. I have in Sanjay Singh Vs. M/s Corporate Warranties Pvt. Ltd. 204 (2013) DLT 12 citing the earlier case law held that in a suit between landlord and tenant, it is only the title as a landlord which is relevant and not the title as owner and that in such a suit the title to the leased property is irrelevant and that the relief of eviction of the tenant is not based on title of the landlord to the leased premises and even if an averment to the said effect i.e the landlord being an owner is made in the plaint, as long as no relief of declaration of title is claimed and only relief of eviction of tenant on the ground that lease has come to an end is claimed, the Court is not called upon to decide the question of title.
17. It cannot also be lost sight of that it was open to the appellant/plaintiff to in this appeal also file an application under Order 41 Rule 27 of CPC seeking opportunity to lead evidence on the aspect of title of his immediate predecessor-in-interest to the property. This court also on its own can allow further evidence on this aspect, if feels the need therefor to pronounce judgment or for substantial cause. I have already observed above that I would be loathe to allow title if any of the appellant/plaintiff to the property to be extinguished in a suit filed against an admitted tenant, whether it be respondent/defendant No.1 or respondent/defendant No.2 and whether at a rent ofRs.10,000/- per month or Rs.2500/- per month and specially when none else has come forward to claim adversely to the appellant/plaintiff. However, such applications in law are to be heard along with the appeal which has already been admitted and it is felt that rather than keeping this appeal pending and which as per the present workload often remain pending for more than ten years, the appellant/plaintiff should be granted permission sought to sue afresh.
18. The appeal is accordingly disposed of by permitting the appellant/plaintiff to withdraw the suit from which this appeal arises and as a consequence whereof the judgment and decree under appeal would automatically stand set aside and with a permission to the appellant/plaintiff to file a fresh suit for recovery of possession of the property and for recovery of rent and mesne profits on the basis of his title to the property, of course in accordance with law. No costs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J. APRIL 26, 2016 Bs..