Shri Ravinder Pal Singh vs Shri Surender Pal Singh

Gita Mittal, J.

IA No. 4385/2006

By this judgment, I propose to dispose of an application filed by the plaintiff u/s 94 and 151 of the CPC praying for interim directions to the defendant to deposit arrears of mesne profits/damages for use and occupation of the plaintiffs property. In the alternative, the plaintiff prays for the appointment of a receiver in respect of the suit property bearing No. 15, Babar Road, Bengali Market, New Delhi-110001.

The application filed by the plaintiff in his suit for partition, possession, rendition of accounts and prohibitory and mandatory injunction was first listed as back as on 21st April, 2006 but has not been disposed of for one reason or another till date. The matter was passed over three times on 12th July, 2007 but the defendant failed to put in appearance. Consequently the application was heard and this Court is proceeding to judgment.

There is no material dispute to some of the essential facts. To the extent necessary for adjudication of the present case, the same are briefly noticed hereafter

(i) The plaintiff Shri Ravindra Pal Singh and the defendant Shri Surendra Pal Singh are real brothers, both being sons of late Shri Mahender Pal Singh.

(ii) Shri Mahendra Pal Singh was the owner of the perpetual leasehold rights and the property built on the plot bearing No. 15, Babar Road, New Delhi-110001 and certain other moveable properties.

(iii) Late Shri Mahendra Pal Singh executed his last Will and testament dated 16th May, 1970;

(iv) The parties to the present suit filed a probate case bearing No. 153/1994 (later given transfer case No. 622/1993) seeking probate of the Will and testament dated 16th May, 1970 of their father late Shri Mahendra Pal Singh in respect of his estate in the court of the District Judge, Delhi. The parties were granted probate of this Will and certificate of probate was issued on 17th February, 1996 by the court of the learned Additional District Judge. As per the probate granted to the parties, they were appointed joint executors of the Will of their deceased father and for the proper administration of the deceased''s property.

The parties are at variance as to the events which have occurred thereafter. According to the plaintiff, with his family, he has lived in the suit property 15, Babar Road, New Delhi for a period of five after the death of his father. He later shifted to Ghaziabad on account of insufficiency of accommodation in the suit property for his family and quarrels between the family members of the parties. At the time of leaving, he had locked two rooms in the accommodation in his possession which have been shown in red colour in the plan filed by the plaintiff. The plaintiff has submitted that he continued to visit and stay casually in the property under his occupation as he was working in Delhi. All efforts made by the plaintiff to enquire about the progress of the execution of the testamentary bequests were avoided by the defendant. The defendant also refused to partition the suit property or to hand over vacant possession of the half share of the plaintiff in terms of their father''s Will despite requests of the plaintiff. The defendant obstructed the plaintiffs entry into the suit property on 15th July, 1997 and threatened him with dire consequences if the plaintiff insisted on his share of the property. The plaintiff contends that on 10th February, 1998, he received the threat from the defendant that the plaintiff would not get a single penny and that the property would be demolished and a commercial multi-storey building would be raised by the defendant thereon. In these circumstances, the plaintiff filed the present suit seeking a prohibitory injunction against the defendant from dispossessing the plaintiff from the rooms shown in red colour which are stated to be in his possession and from transferring, alienating or demolishing the suit property in any manner. The plaintiff has also sought a mandatory injunction to enter and reside in the portion of the property shown in red colour apart from a decree for partition and possession of his half share of the property. There is also a prayer for mesne profits in the plaint.

In his written statement, the defendant set up a plea that he was the tenant under late Shri Mahendra Pal Singh in respect of the entire suit property till his death.

So far as possession is concerned, the defendant has claimed that "however, the defendant remains tenant in respect of half of the property". On these pleas, the defendant has sought to perpetuate his occupation of the suit property urging that he is in possession of half portion as owner and half portion as a tenant.

The defendant has however unequivocally made the following admissions in his written statements:

Late Shri Mahendra Pal Singh had executed a will in favour of the plaintiff and the defendant, probate of which has already been granted by the learned competent court. Thus, the defendant has become owner of half of the suit property after the death of his father.

In support of the plea of tenancy, the defendant has filed photocopy of receipts dated 4th August, 1955, 3rd February, 1956,10th November, 1964, 13th December, 1964, 12th February, 1965 and 6th September, 1975 on record. It is however an admitted position that apart from these receipts purportedly issued by Shir Mahendra Pal Singh, there is no an iota of evidence to show that the defendant has made payment of any amount as rent to either late Shri Mahendra Pal Singh or any other person.

In order to examine the claim of the plaintiff towards the mesne profits which have been claimed in the present suit, it becomes necessary to notice some of the documents which have been filed by the defendant. The defendant has placed reliance on a letter dated 14th February, 1958 issued by the Ministry of Commerce and Industry of the Government of India to the Accountant General, Central Revenue, New Delhi which is in respect of house rent allowance to Shri S.P. Singh, Section Officer in the Ministry. This letter notifies the Accountant General of the scale of accommodation which was purportedly occupied by Shri S.P. Singh, Section Officer in quarter No. 15, Babar Road, New Delhi with effect from 1st March, 1957. The accommodation which was stated to be occupied by him consisted of only "three bed rooms, one servant room, one store room kitchen, bath and front courtyard" at a "monthly rental of Rs. 70/-" Apart from the fact that this document does not evidence any tenancy between the defendant and deceased Shir Mahendra Pal Singh, it is noteworthy that the rate of rental mentioned therein is Rs. 70/- More importantly, this letter also specifically notices that the defendant was not in occupation of the entire suit property but of only a portion thereof. This is evidenced from the site plan which has been placed on record by the plaintiff.

Interestingly, while the letter dated 14th February, 1958 mentions rental @ Rs. 70/- the photocopy of the receipts dated 4th August, 1955 and 3rd February, which are claimed to have been executed by late Shri Mahendra Pal Singh, reflect a sum of Rs. 50/- as having been received from Mr. S.P. Singh as house rent. Against this, the defendant has placed reliance on photocopies of four documents dated 10th November, 1964, 13th December, 1964, 12th February, 1965 and 19th March, 1965 which reflect receipt of Rs. 70/-from Shri S.P. Singh by Shir Mahinder Pal Singh.

The written statement neither mentions any date on which the tenancy began nor the dates on which there was variation in the rent which the defendant claims to have paid to late Shri Mahendra Pal Singh.

In any case, whether the rate of rent was Rs. 50/- or Rs. 70/- as claimed by the defendant, substantial doubt is cast thereon from a document dated 5th November, 1974 has been filed on record purporting to be a letter from late Shri Mahendra Pal Singh to the Income Tax Officer. This letter appears to have been filed for the purposes of supporting the defendant''s contention that late Shri Mahendra Pal Singh was receiving rent from him. If, this letter is examined, it reflects the income of late Shri Mahendra Pal Singh from house property for the entire financial year 1973-74 as being only Rs. 301.91. Based on the rentals set up by the defendant, this is certainly not equivalent to the annual rent claimed to have been paid by the defendant to the deceased.

The defendant has set up a plea in the written statement that the entire suit property was under its tenancy and that he has been a tenant under the original owner late Shri Mahendra Pal Singh in respect of the entire suit property. On the other hand, the plaintiff has claimed that a portion of the premises is under his lock and key. Again, it becomes necessary to refer to document which has been filed by the defendant on record.

It appears that one Dr. Narinder Pal Singh, another son of late Shri Mahendra Pal Singh had filed a suit for declaration and permanent injunction entitled Dr. Narinder Pal Singh v. Shri Surendra Pal Singh (defendant herein), Shri Ravindra Pal Singh (plaintiff herein) and three Ors. seeking a decree for declaration and permanent injunction in claiming entitlement to one-fifth share in the property No. 15, Babar Road, Bengali Market, New Delhi. Shri Ravindra Pal Singh was arrayed as defendant No. 2 while Shri Surendra Pal Singh was arrayed as defendant No. 1 in this case. In this suit, Dr. Narinder Pal Singh had challenged the Will dated 16th May, 1970 set up by the parties to the present suit. This suit was listed before Shri Gurdeep Kumar, Sub-Judge, 1st Class, Delhi. Shri Surendra Pal Singh, the present defendant, Shri Ravindra Pal Singh, plaintiff, their brother Shri Rajinder Pal Singh and sister Smt. Shanti Devi as defendant Nos. 1, 2 and 5 respectively had filed a joint written statement dated 28th January, 1984. The defendant has filed the pleadings in this case on the record of the present case. The averments made by the parties to the present suit in para 3 and a part of para 4 of the written statement which have a bearing on the questions raised in the present application, deserve to be considered in extenso and read thus:

That para No. 3 of the plaint is absolutely wrong and is denied emphatically. It may be submitted that by virtue of the Will dated 16.5.1970, the property of the late Thakur Mahender Pal Singh came in the hands of the defendant No. 1 and 2 and that no other person, except defendant No. 1 and 2, have any right, title or interest in the property. It is wrong and denied emphatically that the other defendants and the plaintiff are the co-owners of the property. The plaintiff has no locus-standi in the matter and has no rights, title or interest thereon. The defendants No. 1 and 2 are in exclusive possession of the property under reference in their own rights as owners to the exclusion of any other person, including the plaintiff. Rest of the para is wrong and denied emphatically.

...It may also be submitted that the property under reference has been under the occupation and possession or answering defendant No. 1 for more than 2 decades and this fact is fully supported by the Government of India in the Ministry of Commerce & Industry. Letter No. 2-E-II(i)/58 dated the 14th February, 1958 recognising occupation of the answering defendant No. 1.

(Emphasis added)

From the above, the only inescapable conclusion is that, though the present defendant had been claiming occupation and possession of the property for more than two decades, however, as on the date of filing of the written statement on 28th January, 1984, Shri Surendra Pal Singh, who was defendant No. 1 and Shri Ravindra Pal Singh, who was defendant No. 2 in that suit, were in exclusive possession of the suit property in their own rights as owners to the exclusion of any other person.

Thus, prima facie the defendant''s plea that he was a tenant under the original owner in respect of the entire suit property is not borne out from the documents which have been filed by him.

It is an admitted position that despite this position, he has been prevented from use and occupation of even the portion of which he claims to be in possession. The present defendant has admitted the possession of the defendant in his written statement filed in 1984. The manner in which the defendant has proceeded with the litigation clearly shows his intention of only perpetuating his occupation of the entire suit property to the prejudice of the plaintiff.

In the present proceedings, by a judgment and decree dated 28th January, 2003, this Court had decreed the relief of partition and possession sought by the plaintiff. The defendant appears to have assailed this judgment and decree by way of RFA(OS) No. 17/2003. In the proceedings dated 22nd April, 2003, the Counsel for the appellant Shri Surender Pal Singh (defendant herein) had stated that the "suit property was joint between the parties and he has no objection in partitioning it by appropriate method." In these circumstances, by an order dated 16th July, 2003, passed by the Division Bench, a local commissioner was appointed to suggest mode of partition of the property. The local commissioner submitted a report dated 22nd October, 2003 before the Division Bench and a report dated 15th December, 2003 suggesting modes of partition. The defendant however filed objections to the report. The proceedings conducted before the local commissioner as well as the report and the objections have been placed before this Court by the present plaintiff. The judgment and decree was set aside by the Division Bench by an order dated 8th August, 2005. The matter is since then pending in this Court. Having regard to the nature of the suit, in these proceedings the parties had also been directed to explore the possibility of dispute redresssal by mediation in view of the admitted position. However, mediation efforts have also failed.

From the above, it is apparent it has never been the defendant''s case that he was ever in exclusive possession of the entire suit property. This is evidenced by the letter dated 14th February, 1958 issued by the Government of India as well as the written statement dated 28th January, 1984. The circumstances on record prima facie tend to support the plaintiffs case that the rent receipts relied upon by the defendant were for the purposes of house rent allowance which the defendant may have drawn from the government. The isolated documents relied upon by the defendant are only photocopies of six receipts. These receipts are not in seriatum and are for different periods spread over 20 years. None of these receipts sets out the portion occupied by the defendant. The rate of rent claimed therein is not commensurate either with the letter dated 14th February, 1958 of the Government of India or with the claim purportedly made by late Shri Mahendra Pal Singh before the income tax authorities. The last receipt relied upon by the defendant is dated September, 1975. Late Shri Mahendra Pal Singh, father of the parties and erstwhile owner of the suit property died on 15th May, 1978. His last Will and testament dated 16th of May, 1970 does not mention a tenancy of the defendant.

Even assuming that the defendant''s plea was to be accepted that he was a tenant under late Shri Mahendra Pal Singh of any portion of the property, the admitted position that he has not been able to place on record any evidence to show payment of rent month by month for the entire period to late Shri Mahendra Pal Singh or after his death to any person. The defendant does not even set up a plea as to under whom he is claiming tenancy at the time of filing the written statement or after the death of the father on 15th May, 1978. Even assuming that the plea of the defendant that he was a tenant under his father was accepted, then at best it would be that the defendant had become the owner after the father''s demise of the portion of the property which was occupied by him as a tenant. However in the light of the clear admission made by him in the written statement dated 28th January, 1984 which has been filed by him on record, there can be no manner of doubt that the plaintiff was also occupying the suit property and appears to have been prevented access thereto by the defendant.

The right of the plaintiff to the suit property and his title therein has been repeatedly admitted by the defendant in its pleadings as well as in the statements made on his behalf. He is being prevented from access to the suit property and the defendant has claimed a plea of occupation of the entire property. Certainly, he cannot be permitted to use, occupy and enjoy the suit property without making payment in respect of the portion in which he has no right, title or interest. Even in the reply filed by the defendant to the present application, he states that he is in possession, control and enjoyment of the entire suit property as a tenant. In this reply filed by the defendant in the year 2007, for the first time, he has set up an even more vague plea that he was inducted as a tenant in the year 1956-57. It is trite that such vague pleas unsupported by any particular or documentation do not deserve any credence. In any case, the defendant cannot even be permitted to set up any plea other than the case set up by him in the written statement.

The defendant in its reply has also stated that the valuation of half share of the property of the plaintiff is Rs. 1 crore and that at present the same would be Rs. 1.5 crores. He submits that the plaintiff would be entitled to half of the rent which was being paid by the defendant to his father. There is nothing on record to show what was the rent, if at all, which was being paid by the defendant to his father on 15th May, 1978 when the father died, even assuming that the plea of tenancy of the defendant was to be accepted. As noticed above there is nothing on record to prima facie establish or show that the defendant was a tenant of the entire property. In the light of the admissions made by the defendant in para 9 of the reply, certainly it has to be held that the prayer of the plaintiff to the extent that he is entitled to an amount of mesne profits in respect of 50% of the suit property has to be granted.

The question then comes as to what would be a fair assessment of mesne profits of the share of the plaintiff. Based on the valuation of the 50% of the suit property being Rs. 1 crore, the plaintiff has claimed an amount equivalent to 12% of this valuation towards the mesne profits that is an amount of Rs. 1 lakh per month with effect from 1st March, 1995 that is three years proceeding the filing of the suit in this Court. On this basis, for the period from 1st March, 1995 to 31st March, 1996, the plaintiff has prayed for deposit of Rs. 1 crore 33 lakh and a similar order for the defendant to pay the amount month by month in future.

In its reply the defendant has submitted that the order if made on the terms demanded by the plaintiff would not be in the interest of justice.

On a consideration of the matter, even though the defendant has not disputed the manner in which the mesne profits have been calculated by the plaintiff, I am also not inclined to direct payment of mesne profits at the claimed rate to the defendant. However it is to be noticed that the suit property is located in the Bengali Market area and has been constructed on a plot of land ad measuring 289 square yards. Judicial notice can be taken of the fact that rentals in Delhi are spiralling upwards.

In a Division Bench pronouncement rendered on 31st May, 2005 in RFA No. 441/2000 in The National Radio & Electronic Co. Ltd. v. Motion Pictures Association, this Court held thus:

Judicial notice is taken of only such facts of which there can be only one view. In the light of the aforestated position in law, there can be no manner of doubt that so far as the increase of rent is concerned, judicial notice can be taken of a fact that over a certain period rents generally have arisen. However, so far as quantification of the rate at which the increase has actually taken place, a finding can be arrived at only on the basis of legal evidence and material establishing the actual rates at which properties have been let over the period and comparison of such properties with the property which is the subject matter of the lis. Rents may vary based on location of properties, nature of construction, period of construction, purpose/user for which the premises are let, variation between demand for tenanted premises and availability of premises and even factors relating to the position of the economy. Therefore, while a learned trial judge may be justified in taking judicial notice of the fact that rents have risen over a certain period of time in the area in question, it would be incumbent upon a person laying a claim of entitlement to mesne profits to prove the same by cogent and reliable evidence in accordance with law.

As has been noticed in the judicial pronouncements noticed here-in-above, the evidence may include documentary evidence relating to tenancies of properties in the area which can be summoned from the office of the sub-Registrar or by examination of property dealers, oral testimony of the parties to the litigation and persons in the trade of real estate, other property owners.

The defendant/tenant is entitled to know not only the landlord''s claim but also the extent to which the same stands established. The defendant has a legal right to an opportunity to prove the contrary.

This Court has been called upon to examine the prayer for grant of mesne profit at an interim stage. Certainly, the parties would have an opportunity to lead evidence on this issue in the light of the settled provisions of law. But interest of justice and equity mandate that a person though admittedly an owner, cannot be deprived of benefits of a property as in the instant case, more so, in facts of the present case noticed above. The plaintiff has indicated the value of the property and prayed that this Court make an order of mesne profits equivalent to a percentage thereof. The defendant has stated that fifty percent of the rental which was being paid by him be given to the plaintiff.

Mesne profits are the award in favour of a person who is wrongfully deprived of use and occupation of his property. Mesne profits have normally been equated to the market rate of rental which such property would fetch in the open market on the date of consideration of the issue. In the absence of information of the prevalent market rate of rent, the formula and basis for fair assessment of rental may be drawn from the methodology for fixation of standard rent under the provisions of the Delhi Rent Control Act, 1958. As per this statute, in respect of the properties to which this Act applies, the standard rent of the property to which this statute applies is equivalent to 10% per annum of the aggregate amount of the actual cost of construction and the market price of the land comprised in the premises on the date of commencement of the construction.

Today the rate of land is notified by the authorities in what are termed as circle rates. The Land and Development Office also notifies rates for its properties. Land rates are to be found specified by several land owning authorities as the Land & Development Office, Delhi Development Authority etc. for the purposes of permitting conversion of properties from lease hold to free hold. Cost of construction is also to be found in CPWD notified rates and for property tax purposes in Nabhi''s publication for the purpose. Land rates of adjacent colonies would provide a reasonable indication of the land rates in Bengali Market. From the foregoing, it would appear that the cost of construction in this area would not be less than Rs. 500/- per sq. foot and the land rate would in any case be not less than Rs. 18,000/- per sq. yards.

Bengali Market is bounded by Connaught Place on one side and is in close proximity to major roads going to other areas. There is undisputedly tremendous demand for property in this area.

Taking all factors into consideration and calculating on a conservative basis, the suit property which measures 289 sq. yards would not be valued at less than Rupees Two Crores. Its rental would not be less than Rs. 60,000/- per month. Therefore, assessed at this rate, the defendant would be liable to pay mesne profits equivalent to 50% of this rental which would be a sum of Rs. 30,000/- per month.

I am not inclined to accept the prayers of the plaintiff for an order directing the defendant to pay mesne profits for a period of three years before the filing of the suit. Such an order would be considered at the time of final decree in the suit.

Accordingly, the defendant is directed to pay mesne profits for use and occupation of the plaintiffs half share of the suit property at the rate of Rs. 30,000/- per month for the period commencing on 18th April, 2006 when the present application was filed.

The plaintiff shall file an undertaking in this Court within seven days from the passing of the order that in the event of ultimately there being finding in favour of the defendant on the pleas taken by the defendant, the plaintiff shall effect restitution of the amount which he has received from the defendant under the orders passed today.

Subject to the filing of this undertaking, the defendant shall pay arrears on this basis within a period of four weeks from today. The month by month mesne profits on this basis shall be paid by the defendant to the plaintiff by a cheque/demand draft in the name of the plaintiff on or before the 7th day of each English calender month.

It is made clear that the present order is passed on a prima facie view of the matter subject to final adjudication in the suit.

Needless to say, the amounts paid by the defendant to the plaintiff under this order shall be subject to orders of adjustment/restitution at the time of passing of judgment in the suit.