Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: July 07, 2015
+ RFA(OS) 63/2015
MUKESH KUMAR GUPTA ..... Appellant
Represented by: Mr.Vijay Sansawal and
Mr.Amitesh Gaurav,
Advocates.
versus
SURENDRA KUMAR GUPTA ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
CM Nos.11502/2015 (additional documents) & 11503/2015 (Directions)
1. By these applications under Order XLI Rule 27 CPC and Order XI
Rule 12 and 14 read with Section 151 CPC Mukesh Kumar Gupta, the
Appellant inter alia prays that he was granted No Objection Certificate for
installation of separate electricity connection and despite due diligence he
has now been able to find those documents and that he is also in possession
of the rent receipts deposited by him to the Rent Controller, South and they
be permitted to be placed on record.
2. In CM No.11503/2015 he further prays that the Respondent be
directed to produce all the documents relating to the sanction plan of the suit
property.
3. The fact that the electricity meter was in the name of the Appellant
and that Mukesh Kumar had deposited the rent after notice was given by the
RFA(OS) 63/2015 Page 1 of 8
Respondent have been duly noted by the learned Single Judge and thus no
case is made out for leading additional evidence or directing the Respondent
Surendra Kumar Gupta for discovery of the documents.
4. Applications are dismissed as such.
RFA(OS) 63/2015
1. The appeal is listed for preliminary hearing for admission. The record
of the suit in which the impugned decree has been passed has been sent
along with the appeal file by the Registry of this Court as per practice
directions issued. We have heard learned counsel for the Appellant without
fixing a date for hearing of the appeal as contemplated by Rule 11 of Order
XLI of the Code of Civil Procedure because learned counsel for the
Appellant desires that the Appellant be heard today itself.
2. The Respondent Surendra Kumar Gupta filed a suit against his brother
Mukesh Kumar Gupta, the Appellant herein seeking recovery of possession,
mesne profit/damages and injunction.
3. In the plaint Surendra Kumar Gupta pleaded that he had bought half
undivided share in the suit property, that is, House No.E-262, Greater
Kailash, Part-II, New Delhi (in short ‘the suit property’) from Smt.Kamla
Kundra vide sale deed dated December 12, 1974 and the property was his
self acquired property. The other half of the undivided share in the 250
sq.yards suit property which was built upto 1½ storey was bought by his half
brother Devinder Nath Gupta vide separate Sale Deed dated December 18,
1974 from Smt.Kamla Kundra. Both the sale deeds were duly registered.
Surendra Kumar Gupta and his brother Devinder Nath Gupta entered into a
registered Partition Deed dated January 18, 1980 whereby Devinder Nath
Gupta became the absolute owner of the ground floor of the suit property
RFA(OS) 63/2015 Page 2 of 8
and Surendra Kumar Gupta, absolute owner of the first floor and the terrace.
Since the ground floor was valued at higher rate Devinder Nath Gupta paid a
sum of ` 39,300/- to Surendra Kumar Gupta.
4. When the suit property was purchased, the first floor had only two
rooms, toilet, kitchen and a lounge. Surendra Kumar Gupta completed the
construction on the first floor and also constructed two rooms set on the
second floor at his own expenditure in the year 1988 and later in the year
1999 he completed the construction of the second floor and a Barsati floor
on the third floor. After the construction of the second floor and the Barsati
floor in the year 1999 Mukesh Kumar, the real brother of Surendra Kumar
Gupta, who was living at Naya Bans, Khari Baoli sought his permission to
reside on the second floor at the suit property since the accommodation at
Naya Bans, Khari Baoli was not suitable. Thus Surendra Kumar permitted
Mukesh Kumar and his family to occupy the second floor as a licensee in
view of the relationship. On the request of Mukesh Kumar Gupta, Surendra
Kumar permitted him to obtain a separate electricity meter. However, since
Surendra Kumar needed the accommodation he sent a notice dated February
23, 2010 revoking the license of Mukesh Kumar Gupta asking him to vacate
the second floor of the suit property and on failure to do so to pay damages
@ ` 50,000/- per month. Since Mukesh Kumar Gupta neither vacated the
premises nor paid the damages the suit was instituted.
5. In the written statement defence taken by Mukesh Kumar Gupta was
that the suit property was purchased from the joint family funds by the father
of the parties and secondly that Mukesh Kumar Gupta was a tenant in his
own right in the suit property and not a licensee. Mukesh Kumar pleaded
that he was staying in the suit property since 1985 being the younger brother
RFA(OS) 63/2015 Page 3 of 8
of Surendra Kumar and also his partner in the firm M/s Mega Enterprises.
He stated that he was paying a rent of ` 1,000/- per month.
6. The following issues were settled in the suit on December 09, 2010:
“(i) Whether the defendant is a tenant in the suit property
as alleged in the written statement? OPD
(ii) Whether the plaintiff is entitled to the decree of
possession in respect of the second floor of E-262, Greater
Kailash-II, New Delhi? OPP
(iii) Whether the plaintiff is entitled to any mesne
profits/damages from the defendant? If so, at what rate and
for what period? OPP
(iv) Whether the plaintiff is entitled to the decree of
injunction? OPP
(v) Relief.”
7. The learned Single Judge vide the impugned judgment held that
Mukesh Kumar has not been able to prove that he was a tenant on the
second floor of the suit property w.e.f 1985 at a monthly rent of 1,500/-
`
which he was paying regularly. The rent was deposited by Mukesh Kumar
Gupta with the Additional Rent Controller under Section 27 of the Delhi
Rent Control Act, 1958 (in short ‘the DRC Act’) only after the legal notice
dated February 23, 2010 was issued by Surendra Kumar Gupta.
8. During his cross-examination Mukesh Kumar Gupta admitted that his
ration card at the suit property was issued to him in the year 1999 and the
election card in the year 2004. Even in the passport renewed in the year
1999 the residential address was of Naya Bans. Mukesh Kumar Gupta
further admitted that half undivided share in the suit property was purchased
RFA(OS) 63/2015 Page 4 of 8
in the name of Surendra Kumar and that thereafter a Partition Deed was
entered into between the Devinder Nath Gupta and Surendra Kumar Gupta
in respect of the suit property. Surendra Kumar Gupta, the
Respondent/Plaintiff to prove his case had proved the duly registered Sale
Deed dated December 18, 1974 as Ex.PW-1/1, Partition Deed dated
February 29, 1980 Ex.PW-1/4, House Tax Assessment Order in the name of
Surendra Kumar Ex.PW-1/3. He also proved the Assessment Orders
Ex.PW-1/6 to Ex.PW-1/12 to show that the second floor and the Barsati
floor were constructed from his own expense in the year 1999. Surendra
Kumar Gupta denied that there was any joint family business though he
admitted that both Surendra Kumar Gupta and Mukesh Kumar Gupta were
carrying on partnership business. In view of this evidence on record and
Mukesh Kumar not being able to substantiate his defence that the suit
property was purchased from the joint family funds and that he was tenant in
his own rights it was held that Mukesh Kumar was only a licensee in the suit
property and not a tenant and thus Surendra Kumar was entitled to a decree
of possession. Noting the price of immovable property increasing steeply
the learned Single Judge fixed ` 20,000/- as rental value of the property as
mesne profit from the date of termination of the license, that is, March 12,
2010 upto the date of decree and thus awarded ` 9.40 lakhs in favour of
Surendra Kumar Gupta and against Mukesh Kumar Gupta with future
damages at the same rate till he vacates the suit property and that Surendra
Kumar Gupta would be entitled to interest at the rate of 9% per annum.
Thus the present appeal against the impugned judgment and decree dated
February 13, 2015.
9. Learned counsel for the Appellant refers to the Partnership Deed
RFA(OS) 63/2015 Page 5 of 8
between the two brothers Ex.DW-1/P4 which notices in Clause-12 that
Premises No.1137-A/1138, Chandni Chowk, Delhi-110006 which was in the
absolute ownership of Surendra Kumar Gupta was to be used for carrying on
partnership business during continuation thereof subject to payment of
nominal/token rent to Surendra Kumar. It was further agreed that at the time
of dissolution of the partnership business or winding thereof for any reason
whatsoever the said tenancy rights of the firm will come to an end and
Surendra Kumar Gupta will be free to use the same in the manner as he
deems fit without any obstruction from the other partners and the same will
remain in his possession being the owner thereof.
10. Referring to the decision reported as 1999 (4) SCC 545 Delta
International Ltd.vs. Shyam Sundar Ganeriwalla and another it is contended
that in the absence of a written document and when somebody is in
exclusive possession with no special evidence how he got in, the intention is
to be gathered from the other evidence which may be available on record,
and in such cases exclusive possession of the property would be the most
relevant circumstance to arrive at the conclusion that the intention of the
parties was to create a lease. Thus in the absence of any lease deed between
the parties and on the basis of the partnership deed as noted above both the
properties which was being used for business purpose and also the
residential purpose were on lease with Mukesh Kumar.
11. Learned counsel for the Appellant has also tried to assert from the
Assessment Order that Barsati floor had been constructed in the year 1988
and thus he started residing in the premises immediately thereafter. As
noted above in the written statement the stand of Mukesh Kumar is that he
has been residing in the property since the year 1985 which fact is belied by
RFA(OS) 63/2015 Page 6 of 8
his own documents, that is, ration card of Mukesh Kumar at the address of
the suit property being made in the year 1999, the telephone being installed
in the year 1999. Further even in the Partnership Deed executed in
September 1992 his address is of Naya Bans. The passport renewed
sometime in the year 1990 also reflected the address of Naya Bans which all
lead to the inference that Mukesh Kumar occupied the suit property only in
the year 1999 after Surendra Kumar constructed the second floor and rooms
on the third floor which then became the Barsati floor.
12. The contention of learned counsel for Mukesh Kumar relying upon
the Assessment Order that Surendra Kumar added first floor and extended
Barsati floor in the year 1988 ignores the fact that till the year 1988 only two
rooms were constructed on the first floor and thus only after completion of
the first floor, two rooms were added on the terrace as Barsati floor.
However, when in the year 1999 the earlier Barsati floor was extended and it
became the second floor. Barsati floor was shifted to the third floor and only
thereafter Surendra Kumar permitted Mukesh Kumar to reside in the
property as a licensee. No rent receipts have been produced prior to the
notice of revocation of license dated February 23, 2010 and even before this
Court vide the applications as noted above only the receipts of the rent
deposited before the learned Additional Rent Controller under Section 27 of
the DRC Act are sought to be produced.
13. Indubitably, as held by Supreme Court in Delta International (supra)
to find out whether the document creates lease or license, the real test is to
find out the intention of the parties. There is no written document in regard
to the suit property. The only written document is Partnership Deed which
states about the ownership of Surendra Kumar in the premises No.1137-
RFA(OS) 63/2015 Page 7 of 8
A/1138, Chandni Chowk in which the partnership business was to be
continued and on dissolution of the partnership business Surendra Kumar
being the owner of the same was free to use the same in the manner as he
deem fit. The partnership had no clause relating to the suit property, that is,
E-262, Greater Kailash, Part-II, New Delhi and the intention to create
tenancy for the premises at Chandni Chowk for the partnership business
cannot be attributed to have created a lease deed in respect of the suit
property as well.
14. In view of the facts noted above we find no merit in the appeal, the
same is dismissed in limine.
CM No.11501/2015 (Stay)
Application is dismissed as infructuous.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JULY 07, 2015
‘vn’
RFA(OS) 63/2015 Page 8 of 8
% Date of decision: July 07, 2015
+ RFA(OS) 63/2015
MUKESH KUMAR GUPTA ..... Appellant
Represented by: Mr.Vijay Sansawal and
Mr.Amitesh Gaurav,
Advocates.
versus
SURENDRA KUMAR GUPTA ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
CM Nos.11502/2015 (additional documents) & 11503/2015 (Directions)
1. By these applications under Order XLI Rule 27 CPC and Order XI
Rule 12 and 14 read with Section 151 CPC Mukesh Kumar Gupta, the
Appellant inter alia prays that he was granted No Objection Certificate for
installation of separate electricity connection and despite due diligence he
has now been able to find those documents and that he is also in possession
of the rent receipts deposited by him to the Rent Controller, South and they
be permitted to be placed on record.
2. In CM No.11503/2015 he further prays that the Respondent be
directed to produce all the documents relating to the sanction plan of the suit
property.
3. The fact that the electricity meter was in the name of the Appellant
and that Mukesh Kumar had deposited the rent after notice was given by the
RFA(OS) 63/2015 Page 1 of 8
Respondent have been duly noted by the learned Single Judge and thus no
case is made out for leading additional evidence or directing the Respondent
Surendra Kumar Gupta for discovery of the documents.
4. Applications are dismissed as such.
RFA(OS) 63/2015
1. The appeal is listed for preliminary hearing for admission. The record
of the suit in which the impugned decree has been passed has been sent
along with the appeal file by the Registry of this Court as per practice
directions issued. We have heard learned counsel for the Appellant without
fixing a date for hearing of the appeal as contemplated by Rule 11 of Order
XLI of the Code of Civil Procedure because learned counsel for the
Appellant desires that the Appellant be heard today itself.
2. The Respondent Surendra Kumar Gupta filed a suit against his brother
Mukesh Kumar Gupta, the Appellant herein seeking recovery of possession,
mesne profit/damages and injunction.
3. In the plaint Surendra Kumar Gupta pleaded that he had bought half
undivided share in the suit property, that is, House No.E-262, Greater
Kailash, Part-II, New Delhi (in short ‘the suit property’) from Smt.Kamla
Kundra vide sale deed dated December 12, 1974 and the property was his
self acquired property. The other half of the undivided share in the 250
sq.yards suit property which was built upto 1½ storey was bought by his half
brother Devinder Nath Gupta vide separate Sale Deed dated December 18,
1974 from Smt.Kamla Kundra. Both the sale deeds were duly registered.
Surendra Kumar Gupta and his brother Devinder Nath Gupta entered into a
registered Partition Deed dated January 18, 1980 whereby Devinder Nath
Gupta became the absolute owner of the ground floor of the suit property
RFA(OS) 63/2015 Page 2 of 8
and Surendra Kumar Gupta, absolute owner of the first floor and the terrace.
Since the ground floor was valued at higher rate Devinder Nath Gupta paid a
sum of ` 39,300/- to Surendra Kumar Gupta.
4. When the suit property was purchased, the first floor had only two
rooms, toilet, kitchen and a lounge. Surendra Kumar Gupta completed the
construction on the first floor and also constructed two rooms set on the
second floor at his own expenditure in the year 1988 and later in the year
1999 he completed the construction of the second floor and a Barsati floor
on the third floor. After the construction of the second floor and the Barsati
floor in the year 1999 Mukesh Kumar, the real brother of Surendra Kumar
Gupta, who was living at Naya Bans, Khari Baoli sought his permission to
reside on the second floor at the suit property since the accommodation at
Naya Bans, Khari Baoli was not suitable. Thus Surendra Kumar permitted
Mukesh Kumar and his family to occupy the second floor as a licensee in
view of the relationship. On the request of Mukesh Kumar Gupta, Surendra
Kumar permitted him to obtain a separate electricity meter. However, since
Surendra Kumar needed the accommodation he sent a notice dated February
23, 2010 revoking the license of Mukesh Kumar Gupta asking him to vacate
the second floor of the suit property and on failure to do so to pay damages
@ ` 50,000/- per month. Since Mukesh Kumar Gupta neither vacated the
premises nor paid the damages the suit was instituted.
5. In the written statement defence taken by Mukesh Kumar Gupta was
that the suit property was purchased from the joint family funds by the father
of the parties and secondly that Mukesh Kumar Gupta was a tenant in his
own right in the suit property and not a licensee. Mukesh Kumar pleaded
that he was staying in the suit property since 1985 being the younger brother
RFA(OS) 63/2015 Page 3 of 8
of Surendra Kumar and also his partner in the firm M/s Mega Enterprises.
He stated that he was paying a rent of ` 1,000/- per month.
6. The following issues were settled in the suit on December 09, 2010:
“(i) Whether the defendant is a tenant in the suit property
as alleged in the written statement? OPD
(ii) Whether the plaintiff is entitled to the decree of
possession in respect of the second floor of E-262, Greater
Kailash-II, New Delhi? OPP
(iii) Whether the plaintiff is entitled to any mesne
profits/damages from the defendant? If so, at what rate and
for what period? OPP
(iv) Whether the plaintiff is entitled to the decree of
injunction? OPP
(v) Relief.”
7. The learned Single Judge vide the impugned judgment held that
Mukesh Kumar has not been able to prove that he was a tenant on the
second floor of the suit property w.e.f 1985 at a monthly rent of 1,500/-
`
which he was paying regularly. The rent was deposited by Mukesh Kumar
Gupta with the Additional Rent Controller under Section 27 of the Delhi
Rent Control Act, 1958 (in short ‘the DRC Act’) only after the legal notice
dated February 23, 2010 was issued by Surendra Kumar Gupta.
8. During his cross-examination Mukesh Kumar Gupta admitted that his
ration card at the suit property was issued to him in the year 1999 and the
election card in the year 2004. Even in the passport renewed in the year
1999 the residential address was of Naya Bans. Mukesh Kumar Gupta
further admitted that half undivided share in the suit property was purchased
RFA(OS) 63/2015 Page 4 of 8
in the name of Surendra Kumar and that thereafter a Partition Deed was
entered into between the Devinder Nath Gupta and Surendra Kumar Gupta
in respect of the suit property. Surendra Kumar Gupta, the
Respondent/Plaintiff to prove his case had proved the duly registered Sale
Deed dated December 18, 1974 as Ex.PW-1/1, Partition Deed dated
February 29, 1980 Ex.PW-1/4, House Tax Assessment Order in the name of
Surendra Kumar Ex.PW-1/3. He also proved the Assessment Orders
Ex.PW-1/6 to Ex.PW-1/12 to show that the second floor and the Barsati
floor were constructed from his own expense in the year 1999. Surendra
Kumar Gupta denied that there was any joint family business though he
admitted that both Surendra Kumar Gupta and Mukesh Kumar Gupta were
carrying on partnership business. In view of this evidence on record and
Mukesh Kumar not being able to substantiate his defence that the suit
property was purchased from the joint family funds and that he was tenant in
his own rights it was held that Mukesh Kumar was only a licensee in the suit
property and not a tenant and thus Surendra Kumar was entitled to a decree
of possession. Noting the price of immovable property increasing steeply
the learned Single Judge fixed ` 20,000/- as rental value of the property as
mesne profit from the date of termination of the license, that is, March 12,
2010 upto the date of decree and thus awarded ` 9.40 lakhs in favour of
Surendra Kumar Gupta and against Mukesh Kumar Gupta with future
damages at the same rate till he vacates the suit property and that Surendra
Kumar Gupta would be entitled to interest at the rate of 9% per annum.
Thus the present appeal against the impugned judgment and decree dated
February 13, 2015.
9. Learned counsel for the Appellant refers to the Partnership Deed
RFA(OS) 63/2015 Page 5 of 8
between the two brothers Ex.DW-1/P4 which notices in Clause-12 that
Premises No.1137-A/1138, Chandni Chowk, Delhi-110006 which was in the
absolute ownership of Surendra Kumar Gupta was to be used for carrying on
partnership business during continuation thereof subject to payment of
nominal/token rent to Surendra Kumar. It was further agreed that at the time
of dissolution of the partnership business or winding thereof for any reason
whatsoever the said tenancy rights of the firm will come to an end and
Surendra Kumar Gupta will be free to use the same in the manner as he
deems fit without any obstruction from the other partners and the same will
remain in his possession being the owner thereof.
10. Referring to the decision reported as 1999 (4) SCC 545 Delta
International Ltd.vs. Shyam Sundar Ganeriwalla and another it is contended
that in the absence of a written document and when somebody is in
exclusive possession with no special evidence how he got in, the intention is
to be gathered from the other evidence which may be available on record,
and in such cases exclusive possession of the property would be the most
relevant circumstance to arrive at the conclusion that the intention of the
parties was to create a lease. Thus in the absence of any lease deed between
the parties and on the basis of the partnership deed as noted above both the
properties which was being used for business purpose and also the
residential purpose were on lease with Mukesh Kumar.
11. Learned counsel for the Appellant has also tried to assert from the
Assessment Order that Barsati floor had been constructed in the year 1988
and thus he started residing in the premises immediately thereafter. As
noted above in the written statement the stand of Mukesh Kumar is that he
has been residing in the property since the year 1985 which fact is belied by
RFA(OS) 63/2015 Page 6 of 8
his own documents, that is, ration card of Mukesh Kumar at the address of
the suit property being made in the year 1999, the telephone being installed
in the year 1999. Further even in the Partnership Deed executed in
September 1992 his address is of Naya Bans. The passport renewed
sometime in the year 1990 also reflected the address of Naya Bans which all
lead to the inference that Mukesh Kumar occupied the suit property only in
the year 1999 after Surendra Kumar constructed the second floor and rooms
on the third floor which then became the Barsati floor.
12. The contention of learned counsel for Mukesh Kumar relying upon
the Assessment Order that Surendra Kumar added first floor and extended
Barsati floor in the year 1988 ignores the fact that till the year 1988 only two
rooms were constructed on the first floor and thus only after completion of
the first floor, two rooms were added on the terrace as Barsati floor.
However, when in the year 1999 the earlier Barsati floor was extended and it
became the second floor. Barsati floor was shifted to the third floor and only
thereafter Surendra Kumar permitted Mukesh Kumar to reside in the
property as a licensee. No rent receipts have been produced prior to the
notice of revocation of license dated February 23, 2010 and even before this
Court vide the applications as noted above only the receipts of the rent
deposited before the learned Additional Rent Controller under Section 27 of
the DRC Act are sought to be produced.
13. Indubitably, as held by Supreme Court in Delta International (supra)
to find out whether the document creates lease or license, the real test is to
find out the intention of the parties. There is no written document in regard
to the suit property. The only written document is Partnership Deed which
states about the ownership of Surendra Kumar in the premises No.1137-
RFA(OS) 63/2015 Page 7 of 8
A/1138, Chandni Chowk in which the partnership business was to be
continued and on dissolution of the partnership business Surendra Kumar
being the owner of the same was free to use the same in the manner as he
deem fit. The partnership had no clause relating to the suit property, that is,
E-262, Greater Kailash, Part-II, New Delhi and the intention to create
tenancy for the premises at Chandni Chowk for the partnership business
cannot be attributed to have created a lease deed in respect of the suit
property as well.
14. In view of the facts noted above we find no merit in the appeal, the
same is dismissed in limine.
CM No.11501/2015 (Stay)
Application is dismissed as infructuous.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JULY 07, 2015
‘vn’
RFA(OS) 63/2015 Page 8 of 8