Prathiba M. Singh, J.
1. The present appeal arises out of the Trial Court’s judgment dated 11th February, 2013 by which the suit of the Respondent/Plaintiff
(hereinafter, „Plaintiff‟) was decreed in the following terms:
“Keeping in view the decision on the various issues, the suit of the plaintiff is decreed for the possession of portion shown in red in Ex.PW1/2 i.e.
first floor. Plaintiff is also directed to take the charges @ Rs.3000/- per month with respect to the portion shown red on the site plan Ex. PW1/2 on the
first floor with 8% interest from the date of 30.09.2004 till delivery of possession with 10% increase per annum until compoundable.†Â
2. The Plaintiff â€" Sh. Gulshan Arora is the exclusive absolute owner of an industrial plot no.A-79, G.T. Karnal Road Industrial Area, Delhi-110033
admeasuring 453.33 sq. yds,. allotted by the DDA. The manner in which the Plaintiff acquired ownership is set out in paras 1 to 3 of the plaint. No
dispute as to the title of the Plaintiff in the suit property, has been raised in the present appeal.
3. According to the plaint, the Appellant/Defendant - M/s Pomey Plastic Works (hereinafter, „Defendant‟) took on rent a hall and one Miani on the
Ground Floor in the suit property vide written agreement dated 1st December, 1979 from the previous owner M/s Suraj Auto Industries. According to
the Plaintiff, the Defendant has no right in respect of any other portion of the property except the yellow portion as per the site plan attached with the
plaint. The Plaintiff claimed that the Defendants started making additional alterations in the property and built two stores in the empty area appurtenant
to hall which was rented to him. The Plaintiff then complained to the Municipal Authorities and they were demolished. It is further claimed that the
Defendant again illegally constructed the said demolished stores and the Plaintiff has filed a separate eviction petition in respected of the tenanted
property.
4. The Plaintiff’s father passed away on 21st November, 1993 and in 1998, the Defendant filed a suit for permanent injunction wherein a prayer
was sought that he should not be dispossessed from the rental premises. The Plaintiff herein claims that in the said suit no.308/1998, the Defendant
wrongly included an additional portion of the First Floor as part of the tenancy. That suit came to be decreed as ex-parte on 5th December, 1998. The
knowledge of the said decree was acquired by the Plaintiff only on 27th September, 2004, and it was only then that the Plaintiff realized that the
Defendant had unlawfully trespassed into the property of the First Floor comprising of one hall measuring 370 sq. ft., one room measuring 150 sq. ft.
and a toilet measuring 30 sq. ft. The Plaintiff averred that he protested against such trespass and called upon the Defendant to handover the vacant
and peaceful possession of the property. However, the Defendant did not accede. Thus, the Plaintiff filed subject suit in respect of the First Floor of
the property as shown in red in the site plan. The prayer sought is as under:
“(a) That a Decree for Possession be kindly passed in favour of the Plaintiff and against Defendant in respect of portion of the property No.A-79,
G.T. Karnal Road, Delhi, comprising of one Hall, one room and a Toilet on the First Floor of the above property as shown Red in the Site Plan
attached.
(b) That further a Decree for Recovery of Damages be also passed in favour of the Plaintiff and against the Defendant for illegal use and occupation
of the above suit property of the Plaintiff without any authority which total damages/mesne profits comes to Rs.3,60,000/-. (c) That the cost of the suit
be also awarded. (d) Any other relief deemed fit and proper be kindly granted to the Plaintiff.â€
5. In the written statement, the Defendant prayed that as per the agreement, he took on rent the office on the First Floor along with the toilet facility
and the same was taken in the name of his sister concern M/s Continental Containers from the earlier owner â€" Mr. Suraj Prakash. He then
submitted that when the Plaintiff tried to dispossess him from the First Floor, he was forced to file the suit for injunction against the Plaintiff herein and
Mr. Suraj Prakash. Interestingly, in the written statement, no date has mentioned as to when he took the First Floor on rent. Thereafter the Defendant
states in his written statement that the agreement dated 1st October, 1979 was entered into. He stated that one store was handed over by the Plaintiff
himself when he had increased the rent from Rs.2,000/- to Rs.2,500/-. On 19th July, 2007, the following issues were framed: -
“1. Whether the suit is bad for non-joinder of the parties? OPD
2. Whether the Plaintiff has no cause of action in filing the present suit? OPD
3. Whether the suit is barred by the principle of res-judicata? OPD
4. Whether the plaintiff is entitled for the possession of the property? OPP
5. Whether the plaintiff is also entitled for damages as claimed? OPP.
6. Relief.â€
6. On 23rd October, 2010 since none appeared for the Plaintiff, the evidence was closed. However, on 1st December, 2010 in FAO 70/2010, the said
order was set aside and the Plaintiff was permitted to produce his witnesses. An application under Order XXVI Rule 9 was filed by the Plaintiff on
5th September, 2011, however, since the site plan was on record, the Trial Court passed an order that there is no requirement to appoint a Local
Commissioner. Sh. Gulshan Arora appeared as PW-1. In his evidence, he exhibited the following documents:-
a) Exhibit PW1/1 â€" Original Rent agreement dated 1st October, 1979;
b) Exhibit PW1/D1 â€" Relinquishment Deed of Sh. Suraj Prakash;
c) Exhibit PW1/2 â€" Site Plan.
7. He denied the suggestion that the Miani, as per the Agreement, was on the first floor. He stated that the suit property was allotted to his father and
he denied that Sh. Suraj Prakash was owner of 50% share. He exhibited the original relinquishment deed executed by Sh. Suraj Prakash as
Ex.PW1/D1. The written statement in the suit for injunction filed by the Defendant herein was confronted to him and the same was exhibited as
Ex.PW-1/D2. He denied that the store was rented out to the Defendant in 1983 when the rent was enhanced. Â
8. Sh. Suraj Prakash appeared as PW-2. He stated that M/s. Suraj Auto Industries comprised of two partners, namely, Sh. Megh Raj who had 75%
and himself who had 25%. He stated that he was a nephew of late Sh. Megh Raj. He also confirmed that all the LRs of Sh. Megh Raj relinquished
their shares in favour of his son i.e. the Plaintiff. He also stated that he has received his share as part of the said firm and towards 25% of the suit
property. He also confirmed that he is left with no title or interest in the suit property. In his cross-examination, he was also confronted with the rent
receipts which are exhibited as Ex.PW-2/D1, D2 and D3. He also admitted his signatures on Ex.PW-2/D4 and Ex.PW-2/D5. The witness was also
shown the site plan Ex.PW-1/2 in which he confirmed that he had let out the store No.2 which was marked as A, B, C and D.
9. Sh. Yogesh Nayyar, the proprietor of the Defendant firm admitted the rent agreement dated 1st October, 1979. He also admitted the rent
agreement dated 21st September, 1993 entered into with M/s. Continental Containers. He claimed that since 1993 he was in possession of the entire
Ground Floor, open space in front, two stores at back and a Miani with an office on First Floor with a toilet facility. He thereafter exhibited the rent
receipts with M/s. Continental Containers. The plaint and written statement in CS No.308/1998 were exhibited as Ex.DW-1/3, Ex.PW-1/D1 and the
site plan was exhibited as Ex.DW-1/4. He exhibited the judgment and decree passed in his favour as Ex.DW-1/5. In his cross-examination he first
stated that he had not filed any civil suit against the Plaintiff and Sh. Suraj Prakash. He thereafter filed a suit for injunction as a tenant by virtue of the
two rent agreements. He confirmed that apart from these two agreements, no other agreement was entered into by him. He could not reply as to till
which date he had paid rent as per the two said agreements. He claimed that he paid the amount once to the MCD official but could not produce
anything to support the same. He could not confirm that he had not paid the rent for the premises since 1995. He thereafter said that he had given the
rent to Sh. Megh Raj. He claimed that he did not trespass on the First Floor of the property or he is liable to pay the damages.
10. The Trial Court, on the basis of the evidence, decreed the suit. Â
11. A perusal of the agreement dated 1st October, 1979 (Ex.PW-1/1) shows that the partners of the Defendant had approached the Plaintiff’s
predecessors for taking the premises on rent. The premises which were provided on rent are clearly contained in clause 1 of the agreement and the
same is extracted below: -
“1. That the 1st and 2nd party i.e. the owners of the Factory premises No. A-79, G.T. Kamal Road, Industrial Area, Delhi, shall provide the portion
in the said factory premises comprising of one Hall, at the ground floor, and one Miani (front side) and the 3rd party shall provide the machinery, tools,
Finance etc. for manufacturing/fabrication purposes at the said premises.â€
12. The monthly rent fixed was Rs.2,000/-. The agreement was only for a period of 11 months. The Defendant was also not allowed to use the main
passage of the factory premises. The Defendant was also not permitted to display his board. It was agreed that the agreement is on a collaboration
basis. The rent receipts issued by Sh. Suraj Prakash are on record but they do not show as to which part of the property it relates to. The document
exhibited by Sh. Suraj Prakash Ex.PW-2/D4 reads as under: -
“I, Suraj Parkash s/o Fateh Chand resident of B_108, Ashok Vihar, Delhi, do hereby state as under:-
1. That I am owner and in possession 1/4th share in the property A-79, G.T.K. Industrial Area, Delhi and I have given 288 sq. ft. (18x 16) to M/s
Continental Containers, on rent and I hereby given my absolute consent for getting the power connection in his portion and I shall supply the Photo
copy of the Partnership Deed of the firm in which I am one of the partners and the said company can get the power connection in the said portion in
which I have got no objection.
Deponent Verified at Delhi on this 21.9.93 that the contents of the above affidavit are true to my knowledge and nothing has been concealed therein.
Deponentâ€
13. As per this, Sh. Suraj Prakash had given 288 sq. ft to M/s. Continental Containers. The rent agreement Ex.PW-2/D5, dated 21st September 1993
entered into between M/s. Continental Containers and M/s. Suraj Auto Industries shows that the following portion of the property was given on rent: -
“...And whereas the second party given 288 Sq. ft. (18 x 16â€) out of my share (1/4th share, in the total property) along with one Gali 2-8 for using
Rasta to the first party on rent basis at the monthly rent of Rs.2000/- per month excluding all other charges for a limited period of three years with the
following terms and conditions:â€
14. This agreement also provides in clause 2 as under: -
“2. That in case any dispute arises between the other c-owners of the said property shall be settled at the risks and responsibility of the second
party alone., and it is submitted that this portion comes to my share is in the shape of a tin shed and the Rasta will be provided by the second part at
his own costs and the second party shall not charge anything extra in addition to the rent amount and the same shall be purely used by the first party
individually and NOC will be signed by the second party in favour of first party.â€
15. Thus as per this agreement dated 21st September 1993, it is only one tin shed i.e. Store No.2 as identified by the Defendant in his
crossexamination in the site plan, annexed to agreement Ex.P-1/2 which was given by Sh. Suraj Prakash to him. This tin shed is located on the ground
floor. The second agreement i.e. dated 21st September, 1993 entered into with Sh. Suraj Prakash has no relevance, insofar as the present suit is
concerned, which relates only to the First Floor of the suit property. The plaint in the earlier suit and the judgment passed therein is not disputed.
However, the said suit was a suit for permanent injunction in which the prayer was as under: -
“ It is therefore prayed that a decree of permanent injunction, with costs, may kindly be passed in favour of the plaintiff and against the defendants
thereby
Restraining the defendants, their agents, associates, representatives, assignees and/or anybody else on their behalf from dispossessing the plaintiff
from the suit premises no. A-79, G.T/Karnal ,Road, Delhi (as shown red in the site plan attached) and from interfering in any manner with the
peaceful use, occupation, enjoyment and possession of the plaintiff over the said premises.
Any further and/or such other reliefs deemed fit and proper in the facts and circumstances of the case, be also granted to the plaintiff.â€
16. The judgment passed by the Trial Court is also as under: -
“Relief.
I hereby passed a decree of permanent injunction in favour of pltff and against the deft thereby restraining the defts, their agents, associates,
representatives, assignee or any body else on their behalf from dispossessing the pltff from the suit premises No.A-79, G.T. Karnal Road, Delhi (as
shown red in the site plan attached with the plaint) and also from interfering in any manner with the peaceful use, occupation, enjoyment and
possession of the pltff over the suit premises. Costs of the suit are also awarded in favour of the pltff. Decree sheet be drawn accordingly. File be
consigned to record room.â€
17. In the written statement in the said suit, the Plaintiff herein clearly pleaded that the Defendant herein was forcibly trying to occupy the vacant
portion of the property and raised unauthorized construction. It is also clearly pleaded that stores No.1 & 2 are not included in the licensed
accommodation. Their clear plea is that the Defendant is a licensee and not of a tenant. The site plan which was filed by the Defendant herein, in the
said suit appears to have, albeit incorrectly, covered even the First Floor (Ex.D-1/4). However, what is to be borne in mind is that the court dealing
with the said suit for injunction was not seized with the dispute as to which portion of the property was tenanted nor any declaration was sought by the
Defendant herein in the said suit.
18. The question as to which is the portion of the property given on licence as per the agreement dated 1st October, 1979 is to be decided by this court
on the basis of the said agreement itself and not on the basis of any other documents. The description in the agreement dated 1st October, 1979 is
absolutely clear that it comprises of `one room on the Ground Floor and one Miani on the front side'. It does not mention any portion of the First Floor,
nor does it mention any open space or toilet facility. It is clear that the Defendant herein mischievously included the First Floor in the site plan which
he annexed with the suit for injunction. Neither in the agreement of 1st October, 1979 nor in the agreement with M/s. Continental Containers dated
21st September, 1993, there is any reference to the First Floor of the property. Even when the Defendant was shown Ex.PW-1/2, he marked store A,
B, C and D on the Ground Floor and not the First Floor. The Miani is not on the First Floor. It is clear that the Defendant has trespassed into the First
Floor of the property without any permission or licence of the Plaintiff or any other owner. The Defendant is also occupying the property without
making any payment for use and occupation. He has made extremely dilatory statements in his cross-examination.
19. The Defendant, who is a businessman, cannot be believed when he says that he does not remember as to when was the last time he had paid the
use and occupation charges. The agreement dated 1st October, 1979 in fact does not describe him as a tenant and is called a collaboration agreement
of 11 months. It is an agreement which at best can be treated as a permission to occupy the premises, which has also come to an end. However, in
the present suit, since this court is only concerned with the First Floor of the property, the Defendant has clearly trespassed into it. The affidavit in
evidence of the Defendant gives away the complete mischief which the Defendant has played in these litigations. Para 5 of his affidavit reads as
under:
“5. That I say that since 1993, the Defendant is in possession of the entire Ground Floor, open space in front, two stores at back and a Miani with
an office on First Floor with facility of toilet.â€
20. From this description, it is clear that the Defendant cleverly adds the word Miani with the office on the First Floor and the toilet facility. The
agreement does not use the words mentioned in his affidavit. The agreement clearly says `one hall on the Ground Floor and one Miani on the front
side‟. The contrast between the clause in the agreement and the affidavit is startling. The affidavit clearly expands the extent of the licensed
premises. One hall on the ground floor is expanded to Entire Ground Floor. One Miani on the front side is expanded to open space in front, two stores
at back and a Miani with an office on First Floor with facility of toilet. Thus, the licensed premises of the Defendant, if any, under the agreement was
only in respect of the Ground Floor and the Miani along with the store room A, B, C and D as identified by PW-2 which he took from Mr. Suraj
Prakash. He cannot claim to be in legal and lawful occupation of anything more. From a perusal of para 5 extracted hereinabove, it is clear that the
Defendant himself admits to have adopted “camel in the tent approach†by occupying one room after the other. This may have happened due to
the death of Sh. Megh Raj who was dealing with the Defendant and the lack of knowledge of the Plaintiff. The suit for injunction has been filed by the
Defendant with a false site plan showing the First Floor. In the said suit, the court was not dealing with the question as to the extent of the property
given to the Defendant as per agreement dated 1st October, 1979. The said judgment/decree cannot be used by the Defendant to continue to occupy
the First Floor. The Trial Court’s finding that the Plaintiff is the owner of the property and that the Defendant is a trespasser is liable to be upheld.
The earlier suit was a suit for injunction and does not operate as res judicata as rightly held by the Trial Court in answer to issue no.-3. Counsel for the
Defendant/Appellant relies upon Saroja v. Chinnusamy (Dead) by LRs [C.A. 3907/2009 decision dated 24th August, 2007] to argue that an ex-parte
decree is binding. On this, there can be no dispute. However, the scope of the judgment which was passed was only in respect to injunction and not in
a suit seeking declaratory title.
21. On issue no.-4, the Defendant himself has admitted in his crossexamination that there is no other agreement except the two agreements, PW-1/1
and PW-2/D5 as under:
“...It is correct that the tenancy premises were given to me by virtue of Ex.PW1/1. Thereafter, I had also taken a portion of the premises on rent
vide Ex.PW2/D-5. It is correct that besides these two agreements Ex.PW1/1 and Ex.PW2/D5, no other agreement was ever executed or terms
agreed upon.â€
22. In view of this, it is clear that the finding of the Trial Court in para 20 to the following effect is correct:
“20. Keeping in view the submissions and as discussed in issue no.2 where it has been discussed in length and it is observed that defendant has no
right to possess that portion as the tenancy was created only with respect to one hall at ground floor with miani on front side vide Ex.PWl/1 and vide
rent agreement Ex.PW2/D5 only one shed mark as ABCD in site plan Ex.PWl/2 was let out to him. There is not a single averment in the entire
written statement or during evidence by the defendant that any other oral tenancy was ever created, whereby any portion on the first floor was also
let out to him. Under the circumstances, in my opinion plaintiff has established that defendant is a tress passer, who has illegally occupied the first floor
portion owned by the plaintiff. As there is nothing on record to show that he has any legal right he can readily be termed as tress passer. Therefore, in
my opinion the plaintiff is entitled to take back this portion from the defendant.â€
23. The Trial Court has however awarded damages at Rs.3,000/- per month while the claim was for Rs.10,000/- per month. A perusal of the site plan
and the affidavit in evidence filed by Defendant himself shows that he is in occupation. He has illegally trespassed into half of the First Floor and had
also made out a false case of two stores being in his lawful possession on the Ground Floor. In Naeem Ahmad v. Yashpal Malhotra, a Division Bench
of this court has clearly held that if a tenant trespasses into any other portion of the property, the remedy of the owner is to file a civil suit to obtain
possession. Such a tenant would not be considered as a protected tenant and shall also not be entitled to any benefit under the Delhi Rent Control Act,
1958.
24. The Defendant’s conduct has been completely dishonest. The property is located in an industrial area on G.T. Karnal Road, which is a prime
location. The Defendant has been in illegal occupation of almost 500 sq. ft. on the First Floor. The Defendant himself states that he has not paid even
the admitted rent since 1995 and in any case, he has not paid a single penny for the First Floor. In his suit which was filed in 1994, he showed that he
was in occupation of the First Floor. Thus, the Defendant has been in illegal occupation of the First Floor for almost 25 years. The Plaintiff has had to
litigate with the Defendant for a long period.
25. The damages awarded by the Trial Court were Rs. 3,000/- per month on the terms contained in the operative portion which reads as under:
“Keeping in view the decision on the various issues, the suit of the plaintiff is decreed for the possession of portion shown in red in Ex.PW1/2 i.e.
first floor. Plaintiff is also directed to take the charges @ Rs.3000/- per month with respect to the portion shown red on the site plan Ex. PW1/2 on the
first floor with 8% interest from the date of 30.09.2004 till delivery of possession with 10% increase per annum until compoundable.†Â
26. As per order dated 24th July, 2013 passed by this court, the Defendant was to deposit the monthly use and occupation charges as per the Trial
Court’s judgment. In CM 12300/2018, it was claimed that there was a delay in the deposit. The Defendant shall ensure that the shortfall, if any, in
the deposit of the decretal amount till the date of pronouncement of judgment shall be made within a period of two weeks. The entire amount lying
deposited in this court along with interest which has accrued thereon shall be released by the Registrar to the Plaintiff on 22nd July 2018 by way of
demand draft.
27. The Defendant is also directed to remove all his belongings from the First Floor and handover vacant and peaceful possession. The possession
shall be handover on or before the date before the Registrar i.e., 22nd July 2018.
The Appeal is accordingly dismissed with costs of Rs. 25,000/-. The costs shall be handed over by the Appellant to the Respondent on the next date
before the Registrar. All miscellaneous applications stand disposed of.
