Sh. Girdhari Lal Dhara vs Sh. Amin Chand and others

K.S. GUPTA, J.—plaintiff filed this suit alleging that he is the owner of land measuring about 4000 sq. yds comprised in Khasra No. 742, situated in the revenue estate of Village Mandawali, Fazalpur, Shahdara. He got constructed a Cinema hall having an area of 450 sq. yds, two room of 24'' x 24'' each on North-west corner and three rooms on the back side thereon. On being approached on 15th November 1971, the plaintiff granted license to use the said land and cinema hall etc on license fee of Rs. 2000/- per month exclusive of all other charges to defendants 1 & 2. As these defendants were unable to obtain requisite license for running Cinema, they handed over possession of the said land and construction to the plaintiff in the month of February 1972. It is further alleged that in the last week of April 1972 the defendant 1 & 2 wanted to take forcible possession of the said land and construction. Therefore, plaintiff filed suit being No. 362/72 for permanent injunction against them on 3rd May 1972 which was made over to Sh. O.P. Dwivedi, Sub Judge 1st Class for disposal. In the suit a compromise was arrived at between the parties on 7th June 1972. The terms of the compromise as set ut in para No. 11 of the plaint, are reproduced below:-

"a) That the premises portion under the license shall be 450 sq. yds, tin shed, one room 24'' x 24'' by the side of the corner room on North West side and open land.

b) That the Licensor/pl Plaintiff shall also live in the portion and shall occupy one thousand and three hundred square yards on the back side and one room measuring 24'' x 24'' on the North West corner. The right of passage shall remain common for both the parties.

c) That the monthly license fee shall be Rs. 1500/- to be paid by the end of every English calendar month and in any case by 15th of every following month.

d) That the defendants shall use the premises for cinema purposes only and not for any other purpose.

e) That the defendants/licensee shall not make any alternation or new construction in the premises in dispute. The existing construction is shown in the report of the Local Commissioner.

f) That the Licensee shall not default the payment and in case of default the licensor shall be at liberty to counsel the license.

g) That the defendant have agreed that they will not enter or interfere in the premises in occupation of the plaintiff/licensor i.e. 1300 sq. yds on the back side and one room on North West corner.

h) That the licensees shall not part with the possession to any third party.

i) That the right granted under this license does not amount to an easement or interest in the site.

j) That the license is for a period of 5 months only and can be extended with the mutual consent of both the parties but the same will be in writing."

The license granted to defendants 1 & 2 in terms of compromise which was for a period of 5 months and not extended further, came to an end on 6th November 1972. plaintiff issued a notice in November 1972 requiring the said defendants to handover possession of the said land and construction but they refused to do so. Defendants 1 & 2 also unauthorisedly started using the portion of land and construction in possession of the plaintiff. It is further alleged that the plaintiff on receipt of summons of the suit filed by defendants came to know on or about the first week of December 1973 that the licensed land and construction were being used by the defendants as partners. plaintiff had not allowed defendants 3 and 4 to use the said land and construction. In the suit mesne profits amounting to Rs. 90,000/- has been claimed @ Rs. 2500/- per month for three years. It was prayed that decree for possession of the said land and construction as also Rs. 90,000/- towards arrears of mesne profits be passed in favor of plaintiff and against defendants.

Defendant No. 1 was proceeded ex parte on 16th November 1977 while defendant No. 2 on 12th April 1979.

Defendants 3 & 4 contested the suit by filing a joint written statement. By way of preliminary objections, it is alleged that suit against answering defendants is bad for mis-joinder both of parties and cause of action. On merits, it is alleged that plaintiff being unable to construct cinema hall due to lack of finance, asked the defendants to construct cinema hall and he under took to reimburse or pay the costs thereof. Defendants 1 & 2 who were let out the land and construction to be raised on a monthly rental of Rs. 15000/- per month joined the answering defendants for making investment on construction and running the cinema. It is emphatically denied that cinema etc were constructed by the plaintiff, as alleged. Construction of cinema hall was completed by October 1972 and cinema business startd on 2nd December 1973. plaintiff was not entitled to charge any rent from defendants 1 & 2 till construction of cinema hall was completed. Filing of Suit No. 362/72 by the plaintiff against defendants 1 & 2 and the compromise therein on 7th June 1972 on the terms set out in Para 11 of the suit are denied for want of knowledge. It is alleged that it was with the consent of plaintiff that answering defendants joined hands with defendants 1 & 2 in running cinema venture and spent the amount in construction of cinema hall. It is emphatically denied that answering defendants Along with defendants 1 & 2 are in unauthorised occupation of suit land and construction built thereon and liable to pay mesne profits as alleged. It is claimed that the relief of possession is barred by Order II Rule 2 CPC as in the previous suit the plaintiff had intentionally relinquished it. Suit is stated to be barred by Section 50 of Delhi Rent Control Act.

On the pleading of parties the following issues were framed on 4th December 1981:-

"1. Whether defendant No. 1 and 2 are licensee in respect of the property in dispute? OPD

Whether defendants No. 1 and 2 used the land over and above the land measuring 2700 sq. yards illegally and unauthorisedly? OPP

To what amount, if any, the plaintiff is entitled as damages? OPP

Whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure? OPD

Whether the suit is bad for mis-joinder of parties? OPD

Whether the suit is barred u/s 50 of the Delhi Rent Control Act? OPD.

Relief

ISSUE NO. 4

I propose to take up this issue for discussion first. In previously instituted Suit No. 386/74 the plaintiff had claimed license fee @ Rs. 1500/- per month for a period of 5 years and mesne profits @ 2450/- per month with effect from 7th November 1972 till the date of filing of suit, totalling Rs. 50,375/-. Relying on the decisions in AIR 1931 229 (Privy Council) , AIR 1949 78 (Privy Council) Mewa Kaur vs. Banarsi Prasad, (1895) 2nd 17 Allahabad 533; Ganeshi Lal Vs. Bansi Dhar and Others, Saghir Hassan Vs. Tayab Hasan, Hiromal and other vs. Faridkhan, AIR 1915 Sind 35 and Mohd. Yunas Fazal Mohamad vs. Mst. Jahan Sultan d/o Ahmad Din and another, AIR 1942 Pes 9, the submission advanced on behalf of contesting defendants was that as the relief of possession which was open to the plaintiff in said Suit No. 386/74, was not claimed therein, present suit for possession of property is barred by Order II Rule 2 CPC. On the contrary, it was contended on behalf of plaintiff that previous suit claiming only the mesne profits would not bar subsequent suit for possession of property. In support of submission, reliance was placed on the decisions in Sadhu Singh and Others Vs. Pritam Singh and Another, ; Shankarlal Laxminarayan Rathi and Others Vs. Gangabisen Maniklal Sikchi and Another, ; Abburi Rangamma Vs. Chitrapu Venupurnachandra Rao and Others, and Prem Nath Kapur vs. Gurdit Singh & Ors, 1971 RLR 126. There has been conflict of judicial opinion on the question whether claim for possession of property and claim for mesne profits arising there from are two distinct and separate causes of action or both these claims constitute a single indivisible cause of action. Decisions other than in Naba Kumar Hajra and Mohd. Khalil Khan''s cases (supra), relied on behalf of defendants, are by Allahabad, Sind and Peshawar High Courts. It may be noticed that Naba Kumar Hajra''s case had been brought to the notice of court on behalf of appellants in Sadhu Singh''s case (supra) and in Para No. 31 of the decision (on Page 46) it was observed that there was nothing to indicate that Privy Council intended to depart from the settled principle (both in Indian and English laws) that an action for mesne profits and an action for recovery of Immovable property were founded on distinct causes of action. Mohd. Khalil Khan''s case was taken note of by this court in Prem Nath Kapoor''s case (supra). In RFA No. 499/79 S. Santokh Singh & another vs. S. Gurbax Singh, decided on 16th July 2001 a Division Bench of this court taking note of the ratio of aforesaid two Full Bench decisions rendered by Punjab and Haryana and Bombay High Courts, has affirmed the judgment rendered by single Judge of this court in Prem Nath Kapoor''s case holding that suit for possession of Immovable property is based on a distinct cause of action and is thus note barred by Order II Rule 2 CPC. Following these two decisions the relief with respect to possession of suit land and construction raised thereon must be held to be not barred by Order II Rule 2 (3) CPC. Issue is answered against the defendants.

ISSUES 1, 2, 3, 5 & 6

These issues are interconnected and may be conveniently taken up for discussion together.

In support of these issues the plaintiff examined himself as PW-1. He deposed that he is the owner of land measuring about 400 sq. yds and construction consisting of one hall having an area of 450 sq. yds, two rooms measuring 24'' x 24'' each, 3 rooms and latrine etc built thereon. In November 1971 he gave it on license of Rs. 2,000/- per month to defendants 1 & 2 for the purpose of running cinema. As these defendants were unable to obtain license for running cinema, they handed over possession thereof back to him in February 1972. In April 1972 the defendants made an attempt to take forcible possession of the property. He was thus compelled to file suit for injunction against them. After recording statements of parties, the suit was decided in terms of settlement by a Sub Judge. Pursuant to settlement only the possession of an area of 2700 sq. yds was handed over to defendants 1 & 2 for a period of 5 months on license fee @ Rs. 1500/- per month. Through the notice received from defendants 1 to 4 in December 1973, he learnt that they were carrying business in partnership. NO permission was taken by defendants 1 & 2 for inducting defendants 3 and 4 in the property. Defendants unauthorisedly took possession of remaining area of about 1300 sq. yds and they are now in possession of entire suit property. Suit being No. 386/74 filed for recovery of damages has since been decreed. He further deposed that defendants 3 & 4 filed a case in revenue court declaring them to be Bhumidars of suit property which was decided in his favor. In cross-examination, he denied the suggestion that neither construction was raised by him nor was he having any bills / vouchers etc showing the expenses incurred on construction. It is further in his cross-examination that unauthorised possession of land, measuring about 1300 sq. yds etc was taken soon after license for 5 months was given. He admitted that he did not get the plan for cinema hall approved from the competent authorities. He categorically denied the suggestion that defendants were inducted as tenants and entire cinema building was constructed by defendants 3 & 4 with their funds; that defendants 3 & 4 are the owners of suit property and they have been in possession over it for the last about 50 years. On the contrary, Prem Singh (Defendant No. 3) DW-5 who is also the brother of defendant No. 4, stated that he had been in possession of suit land since 1965. Defendants 1 & 2 sought financial help for construction of a cinema hall and entire construction was raised by him and defendant No. 4 by incurring expenditure of about Rs. 1,95,000/-. Defendants 1 & 2 who were partners, separated from the management of cinema and now the license of cinema is in their names. In cross-examination, he admitted of having filed a suit for declaration of Bhumidari rights in respect of suit property in 1975-76 and the proceedings having been ultimately decided against him by the Financial Commissioner and the writ filed by him also being dismissed. It is further in his cross-examination that he cannot explain the averments made in Para No. 1 of the written statement to the effect that defendant 1 & 2 were the tenants in suit property and he and defendant No. 4 were joined for making investment in construction and for running cinema. He expressed his inability in saying that defendants 1 & 2 took the suit property on license of Rs. 2,000/- per month in the year 1971. He admitted, again said, that he did not know whether possession of suit property was given to defendants 1 & 2 pursuant to a settlement in the year 1972. He denied the suggestion that cinema hall was not constructed by him and defendant No. 4 and after the expiry of 5 months for which license was granted, he Along with defendants 1 & 2 took possession of entire suit property. He denied the suggestion that had the suit property been let out in 1974-75, it could have fetched atleast Rs. 3,000/- per month. Statements of Raj Bahadur, DW-3 and Laxmi Narain, DW-4 are confined to cinema hall having been constructd by defendant No. 3.

Ex. DW-5/12 dated 4th September 1978 is the copy of judgment in aforesaid previous suit being No. 386/74 filed for recovery of Rs. 50,375/- towards license fee / mesne profits against the defendants. Although against this judgment an appeal is pending before a Division Bench but to complete the sequence of events it may be noticed that it was held therein that defendants 1 & 2 were inducted as licensees and were thus liable to pay license fee @ Rs. 1500/- per month for the license period ending on 6th November 1972 in respect of licensed portion of property; all the defendants were liable to pay mesne profits with effect from 7th September 1972 up to the date the suit was filed @ Rs. 2,000/- per month with regard to entire suit property. It is pertinent to note that an issue by way of issue No. 5 to the effect whether defendants were entitled to any adjustment and, if so, to what amount, was also framed in the said suit and the defendants were not allowed adjustment of any amount whatsoever. There being no issue the alleged claim for Rs. 1,95,000/- being amount of expenditure incurred on construction and defendants 3 & 4 being owners of suit property as deposed to by DW-5, cannot be gone into in this suit. Coming to the controversy if defendants 1 & 2 were inducted as licensees or tenants, there is reference in the plaint of the filing of Suit No. 362/72 by the plaintiff against defendants 1 & 2 which came to be decided in terms of compromise on 7th June 1972. The terms of compromise have been set out in Para No. 11 of the plaint. Contesting defendants in their written statement have not offered any comments for want of knowledge about the filing of said suit; terms of settlement reached between the plaintiff and defendants 1 & 2 and the suit having been decided as compromised on 7 June 1972. As noticed above, the plaintiff (PW-1) has spoken about the filing of Suit No. 362/72 and disposal thereof in terms of settlement between the parties. A bare perusal of the terms of compromise set out in Para 11 of the plaint would reveal that defendants 1 & were inducted as licensees in cinema hall, one room 24'' x 24'' by the side of North-West corner and open land on license fee of Rs. 1500/- per month for a period of 5 months which could be extended with the mutual consent of both the parties in writing. From contesting defendants'' side it were defendants 1 & 2 only who could have thrown light as to in what capacity they were inducted in said portion of suit property by the plaintiff but they have failed to examine either of them. From aforesaid evidence the defendants 1 & 2 must be held to have been inducted as licensees in said portion of property by the plaintiff and the suit is, Therefore, not barred u/s 50 of the Delhi Rent Control Act as pleaded by contesting defendants. Further, it is even admitted by DW-5 that entire suit property is in his occupation and that of defendant No. 4. Also taking note of the statement of plaintiff (PW-1) that defendants unauthorisedly occupied the remaining portion of about 1300 sq. yds soon after license for 5 months was granted, all the defendants are liable to pay mesne profits for the entire suit property. It must follow that suit is not bad for mis-joinder either of parties or causes of action as pleaded by contesting defendants.

This brings me to the controversy as to the rate at which plaintiff is entitled to recover mesne profits from the defendants. Although mesne profits has been claimed @ Rs. 2500/- per month but the statement of plaintiff (PW-1) is conspicuously silent about the rate of mesne profits. Suggestion put on behalf of plaintiff in cross-examination that suit property could have fetched by way of rent atleast Rs. 3,000/- per month in the year 1974-75 was denied by Prem Singh Verma, DW-5. Looking at the extent of accommodation comprised in the suit property it would be reasonable that plaintiff is allowed mesne profits @ Rs. 2,000/- per month at which rate he was awarded in said Suit No. 386/72, for 3 years.

Issued are answered accordingly.

ISSUE NO. 7

In view of my findings on aforesaid issues, the suit is decreed with proportionate costs against the defendants for recovery of possession of suit property as shown in red in the site plan Ex. PW-2/A and Rs. 72,000/- towards mesne profits. Defendants are, however, allowed 4 weeks time to handover possession thereof to the plaintiff.