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Kusum Saxena Vs. I.N. Khanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 2 of 1979
Judge
Reported in20(1981)DLT65; ILR1981Delhi136
ActsCode of Civil Procedure (CPC), 1908 - Sections 100
AppellantKusum Saxena
Respondenti.N. Khanna and ors.
Advocates: B.J. Nayyar,; V.B. Andley,; Rajinder Mathur and;
Cases ReferredParas Nath Thakur vs. Smt. Mohani Dasi (deceased) and
Excerpt:
.....no. 1 as a witness by the plaintiff in order to prove the license.; both parties have led evidence and the question of onus loses all importance. the plaintiff has proved the license and no evidence in rebuttal has been given by the defendant. the first appellate court has taken into consideration the entire evidence on record and no part of the evidence has been ignored by it in coming to its conclusion.; the defendant no. 2 has failed to prove the contract of tenancy with the plaintiff and on the other hand, the plaintiff has proved the creation of a license in favor of the defendant no. 1. the defendant no. 1 was a party to the suit and it was for her to appear and defend the suit of the plaintiff who was not bound to produce her as witness because the plaintiff can prove the..........the various allegations contained in the plaint and pleaded that defendant no. 2 had taken the suit premises with amenity of w.c./bath from the plaintiff at a monthly rent of rs. 82.50 and that the plaintiff and defendant no. 1 had colluded to oust them. the plaintiff in his replications controverter the pleas raised by the defendants and reiterated that defendant no. i was a licensee and that defendant no. 2 was never a tenant under him. the trial court framed the following issues : '1.was the defendant no. 1 permitted the use of the suit premises as a licensee by the plaintiff 2.was the licensee granted to the defendant no. 1 revoked by the plaintiff 3.is the plaintiff entitled to damages for the use and occupation of the suit premises if so, from whom and to what extent 4.is.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 100 of the Code of Civil Procedure (hereinafter called 'the code') by Miss Kusam Saxena, defendant No. 2 in a suit for possession and for recovery of damages for use and occupation filed by I.N. Khanna, plaintiff respondent No. 1, is directed against the judgment and decree dated 4th November, 1978 of the Additional District Judge, Delhi whereby a decree for possession and recovery of Rs. 1,237.50 was passed in favor of the plaintiff against the defendants i.e. appellant and respondents 2 and 3. The plaintiff is the owner of the building at 9, Babar Road, New Dpihi. Miss Shakuntala Rulhao, defendant No. 1/respondent No, 2 was a tenant under him in the rear portion of the ground floor of the said property on a monthly rent of Rs. 600. On 2nd January, 1971 she wrote a letter to the plaintiff to permit her the use of the room above the garage and the loft attached thereto in the said building temporarily as a licensee for her guests which portion was then lying vacant. The plaintiff permitted ber to use the said room and the loft as his licensee on temporary basis for the residence other guests i.e. defendants 2 and 3. Defendant No. 1 vacated the demised premises on or about 10th February, 1972 but she did not hand over the possession of the said room and the loft given to her as a licensee. The plaintiff served a notice dated 1st February, 1973 upon defendant No. 1 revoking her license and calling upon her to deliver possession. Finding no response, the plaintiff on 6th June, 1973 filed the suit out of which this appeal arises. Defendant No. 1 in her written statement dated 28th March, 1974 submitted that she was the tenant in a portion of the ground floor of the said building and vacant possession whereof was handed over to the plaintiff. As regards the premises in suit she stated that Miss Kusum Saxena, defendant No. 2 had occupied the same as a tenant under the plaintiff. She also denied that she was over a licensee of the premises in suit. Defendants 2 and 3 in their separate written statement dated 25th February, 1974 denied the various allegations contained in the plaint and pleaded that defendant No. 2 had taken the suit premises With amenity of W.C./bath from the plaintiff at a monthly rent of Rs. 82.50 and that the plaintiff and defendant No. 1 had colluded to oust them. The plaintiff in his replications controverter the pleas raised by the defendants and reiterated that defendant No. I was a licensee and that defendant No. 2 was never a tenant under him. The trial court framed the following issues :

'1.Was the defendant No. 1 permitted the use of the suit premises as a licensee by the plaintiff

2.Was the licensee granted to the defendant No. 1 revoked by the plaintiff

3.Is the plaintiff entitled to damages for the use and occupation of the suit premises If so, from whom and to what extent

4.Is the defendant No. 2 a tenant of the plaintiff as alleged by the defendant No. 2 If so to what effect

5.Relief.'

(2) The trial court dismissed the suit. On appeal, the Additional District Judge by judgment and decree dated 4th November, 1978, as already stated, granted a decree for possession and recovery of damages to the plaintiff against the defendants. Hence this second appeal by Miss Kusum Saxena, defendant No. 2 only.

(3) The first appellate court after reviewing' the entire oral and documentary evidence on record concluded that defendant No. I was a licensee under the plaintiff which was revoked and that defendant No. 2 is not a tenant under the plaintiff as alleged by her. The plaintiff was also held entitled to damages for use and occupation. The two findings by the first appellate court to the effect that defendant No. 1 is a licensee and that defendant No. 2 is not a tenant and findings of fact not liable to be reversed under section 100 of the Code as amended by Act 104 of 1976. This section reads as under :

'S. 100(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2)An appeal may lie under this section from an appellate. decree passed ex parte.

(3)In an appeal under this section, the memorandum of , appeal shall precisely state the substantial question of law involved in the appeal.

(4)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5)The appeal shall be heard on the question so formulated and the respondent shall, at the hearings of the appeal, be allowed to argue that the case does not involve such question:

PROVIDED that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that case involves such question.'

(4) Learned counsel for the appellant argues that the appeal raises substantial questions of law. The appellant did not state the alleged substantial questions of law involved in the appeal in memo of appeal as required by sub-section (3) of section 100 of the Code. During the course of arguments, the appellant, however, filed an application, (C.N. No. 230 of 1981) staling the alleged substantial questions of law arising in this appeal. These questions as worded by the appellant in the said application are as under:

'(A)When there is no concurrent finding of fact

(B)When there is defect in procedure in proving P. 1 which is basis of the suit.

(C)When the judgment is based on document, which prima facie does not relate to the appellant and when defendant No. 1 in pleading states that he never got the license from the appellant, then whether defendant No. 1 was not necessary to be produced under Sections 67 and 47 of the indian Evidence Act.

(D)When facts are in dispute and legal inferences are to be drawn.

(E)When onus for proving P. 1 was wrongly placed on the appellant.

(F)When there is wrong appreciation of inconsequential evidence.

(G)When the primary evidence was available, could the secondary evidence be produced as required in Sections 61 to 65 of die Indian Evidence Act when writer of P. 1 was available, could P. 1 be proved by secondary evidence '?

(H)Whether the proof of P. I as adopted by the court meet the requirement of Section 47 of Indian Evidence

(I)Whether the defendant is required in civil law to put names of his witnesses In cross-examination of the plaintiff or he was required only to put his defense pleas only

(J)When the person has first taken some portion as tenant and subsequently another portion on license, can the same be deemed as bifurcated at law when the tenant in her notice does not state that she will be vacating partially and when the landlord does not agitate that he is taking part of the preemies given to the tenant.'

(5) To appreciate the contention of the learned counsel, for the appellant it is necessary to reproduce the letter dated 2nd January, 1971 by defendant No. 1 to the plaintiff (Ex, P. 1) : 'From: (Miss) Shakuntla Sulhan,. (Alderman) Municipal Corporation of Delhi, 9A,Babar Road, New Delhi-1. Dated: 1971. To : Shri I. N. Khanna, Retd. D. D. G. (S & D) 'Mangal-Dwar' 9, Babar Road, New Delhi-1. Sub. : Temporary use of room above the garage. Dear Sir, In this house the room above the garage which has not been let out is lying unoccupied. I require the said room for my gaest(s) as my sisters are here temporarily for a short stay with me. I am thereforee writing to seek your permission to use the aforesaid accommodation on a purely temporary basis for a couple of months or possibly less but not more. I hope you will agree. Thanking you, Yours faithfully, sd/- Shakuntia Sulhan. Received today sd/- Y. N.. 2-1-71' The plaintiff alone examined himself as a witness in the case. He reposes, 'The defendant No. 1 was my tenant in respect of the back portion of 9A, Babar Road in the ground floor. She was a tenant at a rent of Rs. 600.00 per month. The premises in suit was not in her tenancy. On 2-1-1971 the defendant No. 1 came to me and requested for permission to use the premises in suit for a short time as her sisters were coming to stay with her. The defendant No. 1 was my tenant since November, 1970 to 10th February, 1972. I can identify her handwriting and signature. Ex. P. I is a letter delivered by the defendant No. 1. This is signed by defendant No. 1. I identify her signatures. The defendant No. I wrote another letter. Ex. P. 2 is the second letter. She did not vacate the portion in suit which she had taken on request. But she assured that the same would be vacated by her guests very soon. I had allowed her to use the room as a licenses as I did not want to rent out the same although it was lying vacant. The defendant No. 1 inducted the defendants 2 and 3 in the premises in question. No charge was agreed to be paid for the said premises. When the premises were not vacated, I served her with a notice dated 1st February, 1973, terminating the licensee. This is the copy of the notice signed by Shri M.L. Vachar, Ex. P. 3. It was sent by registered post. Ex. P.4 and P.5 are the postal receipts and Ex. P. 6 is the acknowledgment card. I got the plan of premises in dispute prepared from Shri 0. P. Goel. Ex. P. 7 is the plan of the suit property. There is no facility of latrine and kitchen connected with the room. The defendants 2 and 3 were using the toilet in the tenanted premises of the defendant No. 1. The room in suit can fetch a rent of Rs. 6.00 or 7.00 per day. Ex. P. 8 is the order of Shri Mohd. Shamim, Additional Rent Controller. The defendants 2 and 3 are trespassers in the premises as I had no dealings with them.

(6) CROSS-EXAMINATION: It is wrong to suggest that the defendant No. 1 vacated the portion on 12-2-1976. For some portion of my house in the ground floor Shakuntla Devi was my tenant. Shakuntla Devi vacated the premises which were originally in her tenancy. The original tenancy was created on 1-11-70. On 2-1-71 the defendant took one room above the garage for the use of her guest without any rent. (Any other term) Apart from the terms mentioned in her letter dated 2-1-71 no other term for the use of the room above the garage was settled. The defendant did not take any receipt from me when she vacated the tenancy premises. She however wrote to me that she would vacate the premises on 10th of February, 1972. It is also wrong to suggest that the defendant No. 2 had taken the room above the garage in the suit premises at the rate Rs. 82.50. I do not know if the defendant No. 2isnot relative of the defendant No. 1 whether the defendant No. 2 belong to the same community. I issued notice of the deposit of rent in the Rent Controller Court by the defendant No. 2. In the same building the other occupants are S. K. Govil and they were at the time defendant No. 1 vacated, and also at the time when the defendant No. 1 had taken the suit premises from me. It is correct that the exclusive possession of the suit premises is with the defendants No. 2 and 3. I do not have regular receipt book on the printed form. I issued receipt on plain papers. I kept the copies but there is not Seriall number. I get the rent deed executed from every tenant. If I do not rent any portion then I do not get executed any rent deed for the user of such portion. It is wrong to suggest that I had friendly relation with the defendant No. 1.1 however had relations of landlord and tenant, and the relationship is cordial. It is wrong to suggest that I have colluded with the defendant No. 1 and obtained writing from her in my favor just to oust the tenant defendant No. 2. I did not serve any notice to defendant No. 3 and 2 and as I had. nothing to do with them and still I have nothing to do with them except they are intruder. I am an Engineer and Valuer. However, I am not doing any renting business except for the building No. 9 and 9A Babar Road, Delhi. It is wrong to suggest that I am not the Karta of any H. U. F. I have not brought the documents to show the ownership of the property. I can produce. I have no idea as to how many times defendant deposited the rent in the court of the Rent Controller. The defendant No. 2 was not known to me before she occupied the premises in suit and thereforee I do not know whether she was residing in the same locality earlier. I do not. know whether they occupied the room in presence of Mr. Govil. No terms of tenancy was settled in presence of Mr. Govil. It is wrong to suggest that the defendant No. 1 had allowed the defendants to entry to use her bath room at my request'. No. 1. Her witness Vijay Kumar D. W. 2 deposes that defendant No. 2 had taken the promises in suit at Rs. 82.50 per month in April, 1971 in his presence, that it was all oral that the possession of defendant No. 2 is exclusive and there is no interference by anybody. In cross examination he asserts that he accompanied defendant No. 2 for getting the premises in suit but admits that he had not known the plaintiff (I. N. Khanna) before that date, that the information about the availability was given by one Gupta where defendant No. 2 was previously residing, that amount of Rs. 82.50 was paid in his presence by defendant No. 2 to the plaintiff as rent and no rent receipt was issued. He further says that issuing of rent receipts was infused by the landlord. He could not tell why the plaintiff refused to issue the receipt. He also says that the plaintiff had arranged bath and latrine with the lady living on the ground floor, for the time being till alternative arrangement is made. Other portion of the cross-examination does not appear to be relevant. Rajinder Singh, D. W. 3 deposes that he has seen the suit premises, that his sister Miss Veena, journalist, used to reside with Kusum (defendant No. 2) at the said place and that she used to visit her, that defendant No. 2 was residing at 32, Babar Road, New Delhi as a tenant of Kailash Grupta. that she shifted in suit premises in April, 1971 and occupied the said premises as a tenant under the plaintiff, that he was present at the time when rent was paid in his presence, that no receipt was issued, that the landlord had got arranged the latrine and bath facility through the tenant on the ground floor who left in February, 1972 and thereafter those facilities were arranged with Mr. Govil. In cross-examination he states that his sister is alive and shifted to the suit premises along with defendant No. 2 in April, 1971, he denies the suggestion that Miss Kusum lived alone in the premises. He admits that he had not known the plaintiff before the occupation of the premises by defendant No. 2.

(7) This is all the evidence on behalf of the defendants. The plaintiff in rebuttal states that defendant No. 1 inducted defendant No. 2 in the premises, that he had no concern with her directly, that she is a trespasser and not a tenant, that Kailash Gupta, Vijay Kumar and Rajinder Kumar are not known to him, that he never made any arrangement for toilet and bath facility with defendant No. 1 or Mr. .Govil, that his relations with Mr. Govil are not good. The plaintiff was asked whether he received Rs. 82.50 in April, 1971 or any other date. But this question was disallowed by the trial court. The plaintiff further says that he gets rent notes executed from his tenants, that there is a rent note executed by defendant No. I which is marked 'X'. He admits that a notice of proceedings for deposit of rent was received by him from the Controller which he contested and filed objections.

(8) In her application for deposit of rent Ex. D.2 Miss Kusum Saxena, defendant No. 2 described the premises as one room and one left at 9A, Babar Road, New Delhi but in her written statement she pleads that she is also tenant with respect to bath and W. C. besides the suit premises. The deposit application is dated 4th August, 1972 while the written statement is dated 25th February 1974. This shows a change in her case.

(9) The first appellate court in its elaborate judgment discussed the entire evidence and concluded that defendant No. 1 was a licensee and defendant No. 2 is not a tenant under the plaintiff. The evidence on the question of 'licensee on behalf of the plaintiff is unrebutted. No question was put on behalf of the defendants to the plaintiff regarding the license in favor of defendant No. 1 or regarding the letter Ex. P. 1 dated 2nd January, 1971. The plaintiff in his statement proves this fetter. The unrebutted oral statement of the plaintiff also establishes that defendant No. 1 was a license in the suit premises and defendants 2 and 3 were inducted by her. Defendant No. 1 in her written statement did not specifically deny her letter dated 2nd January, 1971 (Ex. P.1) referred to in the plaint.

(10) According to defendant No. 2 she was introduced to the plaintiff by one Ka.ilash Gupta, that the tenancy was created in the presence of Vijay Kumar, but Kailash Gupta has not been produced by her for the reasons known to her. Vijay Kumar who is alleged to be present at the time of negotiations appears to be an interested witness having business dealings with her. After going through the evidence on. record the first appellate court case to the conclusion that defendant No. 2 was not inducted as a tenant by the plaintiff. The learned counsel for the appellant referred to the entire evidence on record but I do not find any ground to disagree with the conclusion arrived at by the first appellate court on the two questions of fact.

(11) Learned counsel for the appellant submits that there is no concurrent finding of fact and thereforee it becomes a question of law. It does not appear to be correct. In second appeal the finding of fact reached by the first appellant court cannot be interfered with unless it is shown 'that in reaching the said finding a mistake of law is committed by the first appellate court or it is based on no evidence or is such as no reasonable man can reach. Further if the first appellate court has ignored, overlooked or has not taken into consideration any important evidence on record, the finding given by it is not binding in second appeal. This proposition of law is not disputed by the learned counsel for the parties. Thus if there is no concurrent finding of fact it cannot be said that a substantial question of law arises in second appeal.

(12) The counsel for the appella.nt next argues that the letter dated 2-1-1971 (Ex. P. 1) has not been proved in accordance with law. The execution of this letter is not denied specifically by defendant No. 1 in her written atatement. She has not chosen to appear as a witness or to contest the suit since after the filing of the written statement. The plaintiff has also deposed orally that the license was created. He also said that he was in a position to identify the writing and signature of defendant No. 1. There is no cross-examination on the question of license In M/s. Chuni Lal Dwarka Nath Ys. Hartford Fire Insurance Co. Ltd. and another Air 1958 Punjab 4400) Tek Chand, J. observes as under :

'IT is a well established rule of evidence that a party should put to each of his opponent's witnesses so much or his case as concerns that particular witness. If no such questions are put, the courts presume that witness account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed, to the fact by cross-examination so that he may have an opportunity of giving an Explanationn',

ADMITTEDLY the plaintiff has not been asked any question relating to the giving of the suit premises o.n license to defendant No. 1 or the letter Ex. P. 1 written by her to him. In view of the unrebutted evidences it must be held that defendant No. 1 is a licensee in the suit premises. The objection of the learned counsel for the appellant however is that proof of signatures is not the proof of the contents of the letter. This may be correct. But , ill the present case the contents of the letter are also proved by the oral testimony of the plaintiff. His further contention is that the plaintiff ought to have produced defendant No. 1 as his witness with a view to prove the license. 1 do not agree. Defendant No. 1 contented the suit by filing the written statement wherein she denied the allegations made by the plaintiff. Defendant No. 1 does not appear as a witness to contest the suit. It means that she accepts the allegations made by the plaintiff. The plaintiff is entitled to prove his case by whatever evidence available to him. No provision of law has been brought to my notice to the effect that the production of defendant No. 1 as a witness by the plaintiff was essential to prove the license.

(13) Learned counsel further submits that the onus to prove Ex. P.I was wrongly placed upon her. The evidence has been led by both the parties and the question of onus loses all importance. The plaintiff has proved the license but no evidence in rebuttal has been given by the defendants. Learned counsel further says that the first appellate court has wrongly appreciated inconsequential evidence. There is no substance in this objection. The first appellate court has taken into consideration the entire evidence on record and I have gone through the entire evidence and have come to the conclusion that the findings returned by the first appellate court are based on evidence, that no part of evidence was ignored by the first appellate court in arriving at the said conclusion.

(14) The next argument of the learned counsel for the appellant is that the letter Ex. P.I does not concern defendant No. 2 and that She is not bound by this license. The real question in the present dispute is whether defendant No. 2 is a tenant. If she proves the contract of tenancy with the plaintiff the plaintiff would be out of court. But it seems to me that she had miserably failed to prove the same. On the other hand, the plaintiff has proved the creation of license in favor of defendant No. 1 Admittedly, no suggestion was given to the plaintiff in cross-examination that Kai-lash Gupta introduced the appellant to the plaintiff or that Vijay Kumar was present at the time of negotiations for oration of tenancy. As already stated, if this suggestion is not given, it means the appellant does not seek any Explanationn from the plaintiff on this point. It seems that it was necessary for the appellant to put the suggestions to the plaintiff but she has failed to do.

(15) Counsel further says that the primary evidence to prove the letter Ex. P. 1 was the production of defendant No. 1 as a witness. When defendant No. 1 is a party to the Suit, it was for her to appear and defend. The plaintiff is not. bound to produce her as a witness. The plaintiff can prove the document by oral or documentary evidence. In this case he has proved the same. Learned counsel for the appellant relies upon Smt. Sona-wati and others vs . Sri Ram and another : [1968]1SCR617 , Radha Nath Seal (dead) by his legal representatives vs . Hari-pada Jana and others. : AIR1971SC1049 (3), Danladilial & others vs . Parashram and others, : AIR1976SC2229 and Madan Lal vs . Mst. Gopi and another, : [1981]1SCR594 in support of his submission that the first appellate court has overlooked or has not taken into consideration the entire evidence on record and thereforee the finding of the first appellate court is liable to be reversed in second appeal. There is no dispute about the proposition of law as already stated. But the question is : what evidence has not been taken into consideration by the appellate court which can turn the scales in favor of the appellant on the disputed two questions of fact. No such evidence has been pointed out by the learned counsel for the appellant. He also contends that the interpretation of Ex. P.1 is a question of law. The letter Ex. P.1 is by defendant No. 1 to take the premises as a licensee for accommodating her guests/sisters. The letter is simple as reproduced above. Learned counsel relies upon Nedunuri Kamaswaramma vs . Sampati Subba Rao, : [1963]2SCR208 wherein it has been observed that a construction of documents (unless they are 'documents of title) produced by parties to prove a question of fact does not involve an issue of law, unless it can be shown that the material evidence contained in them was misunderstood by the court of fact. Learned counsel also refers to Rimmalapudi Subba Rao vs . Noomy Veeraju and others, : AIR1951Mad969 (F. B.) (7), Messrs, Hooghly Jute Mills, vs . Their Employees, : (1957)ILLJ485SC , Deity Pattabhiramaswamy vs. S. Hanumayya and others, Air 1959 S.C. 57, Paras Nath Thakur vs. Smt. Mohani Dasi (deceased) and others, Air 1959 S.C. 1204, V. Ramachandra Ayyar and another vs. Ramalinga Chettiar and another, : [1963]3SCR604 and Madamanchi Ramappa and another vs. Muthaluru Bojiappa, : [1964]2SCR673 in support of his various proposition of law alleged to be involved in the present appeal and set out above. No substantial question of law arises in the present appeal. The two findings of fact returned by the first appellate court are based on evidence and are not liable to be reversed.

(16) There is no merit in the appeal and the same is thereforee dismissed with costs. Counsel-fee Rs 300.00 .


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