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2007 DIGILAW 1074 (DEL)

VED PRAKASH GUPTA v. DARSHAN MALA JAIN

2007-05-18

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.-Having lost the case before the two Courts below which decreed the plaintiff suit for possession and mesne profits, the legal representatives of the appellant/ defendant have filed this second appeal. The plaintiff/respondent No.1 Smt. Darshan Mala inducted one late Mulkh Raj as a tenant in respect of the suit property at monthly rental of Rs. 50.73. Respondent No.1 terminated the above said tenancy vide notice dated 1.8.1971. As Mulkh Raj did not vacate the premises, therefore, his possession continued as a statutory tenant. Mulkh Raj died in November 1979 leaving behind two daughters viz. Leela, respondent No.2 (since deceased) and Sheela, respondent No.3. Since both the daughters were married and were not dependent upon Mulkh Raj, therefore, they had no right to occupy the suit property. In January, 1980 both of them sublet the case property in favour of Ved Prakash Gupta, appellant/ defendant No.3. Respondent No.1 filed a suit for possession and also claimed damages in the sum of Rs. 1,623.36 for use and occupation for a period of 32 months ending on 31st March, 1982 from respondent Nos. 2 and 3 at the rate of Rs. 50.73 per month, the same rate which was paid by late Mulkh Raj during his lifetime. 2. Smt. Leela (since deceased) listed the following defences in her written statement. The possession of suit premises was given to Sh. Chakresh Kumar, son and attorney of the plaintiff in January 1980 after the Kriya ceremony of Sh. Mulkh Raj after settling all dues as full and final settlement. The service of notice upon her father has been denied. She explained that Mulkh Raj died on 5.1.1980. Smt. Sheela was proceeded against ex parte. 3. Defendant No. 3/appellant set ut1nhe following defences in his written statement. He took a preliminary objection that appellant Ved Prakash Gupta was inducted as a tenant by Smt. Darshan Mala through her son Sh. Chakresh Kumar, after the vacant possession of the same was delivered by Smt. Leela to him after the Kriya ceremony of Shri Mulkh Raj. Consequently, Ved Prakash Gupta became direct tenant under the respondent. However, on merits the appellant took a wee bit incongruous stand. He explained that after the death of Sh. Mulkh Raj, possession of the quarter in question was handed over by Smt. Leela to respondent No.1 through her son Sh. Consequently, Ved Prakash Gupta became direct tenant under the respondent. However, on merits the appellant took a wee bit incongruous stand. He explained that after the death of Sh. Mulkh Raj, possession of the quarter in question was handed over by Smt. Leela to respondent No.1 through her son Sh. Chakresh Kumar, who always acted for and on behalf of the respondent in respect of the entire suit property with all the occupants of the said property and who later on in June 1981 inducted the appellant as a tenant in the suit property a tthe rental of Rs. 50.73. He further averred that he was inducted in another premises of the said property on the ground floor at a monthly rental ofRs. 50/ - only and the rent stands paid upto May, 1982. Both the said premises are in possession of the appellant. It is contended that the rent upto May 1982 stands paid. 4. The learned Counsel for the appellant argued that two material points go to establish that he is a tenant under Smt. Darshan Mala. First of all, he had filed a receipt Ex. PW1/D1 before the trial Court which goes to reveal that the appellant had paid consolidated rent in the sum of Rs. 1,175.18 for the period 11.6.1981 to 31.5.1982. 5. The second contention raised by the learned Counsel for the appellant was that the respondent herself did not appear in the witness box. He vehemently argued that a presumption should be drawn against the appellant for withholding best evidence. 6. Mukesh Gupta, son and legal representative of Ved Prakash Gupta, in his affidavit stated that on 11.6.1981 the vacant possession of the said flat was given to his father on the said date in his presence and in the presence of his brother Anil Gupta. He further stated in the affidavit that in their presence the store godown bearing No. 1045-A, Darshan Bhawan, Railway Road was also let out to his father by said 5h. Chakresh Kumar at the monthly rental of Rs. 50/ -. He further stated that a consolidated receipt for the above two premises in the sum of Rs. 50.73 and Rs. 50/- were issued in favour of M/s. Janak Enterprises against payment for the period from 11.6.1981 to 31.5.1982. He further stated in his affidavit that the rent receipt dated 11.6.1981 was signed by 5mt. 50/ -. He further stated that a consolidated receipt for the above two premises in the sum of Rs. 50.73 and Rs. 50/- were issued in favour of M/s. Janak Enterprises against payment for the period from 11.6.1981 to 31.5.1982. He further stated in his affidavit that the rent receipt dated 11.6.1981 was signed by 5mt. Darshan Mala and was given to his father by Chakresh Kumar in his presence. He stated that he was able to identify the signature of 5mt. Darshan Mala, plaintiff on the said receipt which is Ex. PW1/D1. He further stated that after issuing the receipt Ex. PW1/D1 in favour of his father, 5h. Chakresh Kumar demanded a premium for the suit premises No. 1069 and other premises No. 10458 in the same property, which his father refused and the plaintiff/respondent No. 1 filed a false suit for possession against his father in respect of premises in dispute. He also stated that rent was paid on 11.6.1981 in respect of suit premises which was duly shown in his ledger book at page No. 36 under Rent Account and the same is also shown in Profit and Loss account at page No. 82 under Rent Account. He filed the copies of Rent Account and Profit and Loss Account for the year 1981-82 which were marked as Ex. D-3W1/ 2 and Ex. D-3W /3. He stated that all these accounts books were prepared in the due course of business by his father. In his cross-examination he stated that his father was a tenant in property No. 1064, Darshan Bhawan and 1053, Darshan Bhawan prior to 1981. He admitted that 5mt. Darshan Mala never signed any receipt in his presence. 7. The case of the appellants is riddled with flaws. It does not stand proved that there was relationship of landlord and tenant between Ved Prakash Gupta and Darshan Mala. A dichotomy is clearly visible in his written statement itself. It is difficult to fathom whether Ved Prakash Gupta was inducted as a tenant on 5.1.1980 or in June 1981. His stand during his preliminary objection and para 5 of his written statement does not disclose the fact as to who occupied the suit property from 5.1.1980 to June 1981 and this fact remains shrouded in mystery. 8. Now, I turn to the receipt produced by the appellant. His stand during his preliminary objection and para 5 of his written statement does not disclose the fact as to who occupied the suit property from 5.1.1980 to June 1981 and this fact remains shrouded in mystery. 8. Now, I turn to the receipt produced by the appellant. This receipt is executed on 11.6.1981 and rent upto 31.5.1982 was paid in the sum of Rs. 1,175.18. It is surprising to note that this receipt which is a document of infinite importance finds no mention in the written statement. It is not understandable as to why the written statement is conspicuously silent about the same. There is no whisper, word or syllable regarding this most important document. Most importantly the rent receipt does not stand proved. Mukesh Gupta stated that Smt. Darshan Mala signed the above said rent receipt but in cross-examination he stated that Darshan Mala never signed any receipt in his presence. The but-and-ben stand taken by this witness leads the Court nowhere. Mukesh Gupta could not say who had filled in the receipt Ex. PW1/D1 and that Chakresh Kumar must be knowing about it. In case the receipt was filled in his presence he must be aware of the fact as to who had filled in the receipt. 9. In the written statement it was not mentioned on which date the tenancy in question was created. It was vaguely contended that he was inducted as a tenant in June 1981. It was also stated that another premises was also given to him on rent which was situated on the ground floor at the rental of Rs. 50/-. No reason is forthcoming as to why two tenancies were created. Can there be two separate tenancies of the same building at the same time? It gives rise to misgivings. The aura of unreality increases with every step. Mukesh Gupta in his cross examination stated that talks for tenancy took place on 9th and 10th June in the house of Smt. Darshan Mala in presence of Chakresh Kumar. On the other hand, in the written statement it was stated that the tenancy was created through the son of the plaintiff. 10. It must be borne in mind that in the written statement Ved Prakash Gupta never asserted that his sons Anil Gupta and Mukesh Gupta were present at the time of creation of tenancy. On the other hand, in the written statement it was stated that the tenancy was created through the son of the plaintiff. 10. It must be borne in mind that in the written statement Ved Prakash Gupta never asserted that his sons Anil Gupta and Mukesh Gupta were present at the time of creation of tenancy. The further stand set up by Mukesh as a witness that he was also present with his brother throws a cloud of doubt about the entire story. Again, it was never suggested to Chakresh Kumar that the tenancy talks took place in presence of Smt. Darshan Mala in her house and in the presence of sons of Ved Prakash Gupta. 11. The trial Court compared rent receipt Ex. PW1 /D1 with other rent receipts Exs. PW1/D2 and PW1/D3 issued to other tenants by Smt. Oarshan Mala. Trial Court also compared the disputed signatures of Smt. Oarshan Mala with her signatures on plaint, Vakalatnama, affidavit. The trial Court came to the conclusion that the rent receipt was not signed by the respondent. No argument was raised in this context. No effort was made by the appellant to get these signatures compared from any handwriting expert. The trial Court rightly held that the appellant had manipulated it and it was forged one. Again, the appellant produced ledger account Ex. D3W-1/2 in the Court on 17.2.2003. There was no mention of ledger in the written statement. 12. Above all, it is surprising to note that the premises which were let out in the year 1940 at the rate of Rs. 50.73 would be let out again at the same rate in the year 1981. The rents had gone very high as compared to the year 1940, in the year 1980. This very fact has pushed the appellants case to the edge of a cliff. This mere fact is significant and puts the case of the respondent in an impregnable position. 13. The non-production of Smt. Darshan Mala in the dock is not fatal. The written statement itself mentions that all the dealings regarding tenancy were done by her son Sh. Chakresh Kumar. The appellant has failed to show that non-production of Smt. Darshan Mala in the dock has caused prejudice to him. The appeal has no merits. No substantial question of law arises. The same is, therefore, dismissed at admission stage. SA dismissed.