Full Judgement
Delhi High Court
Amonchit Suriya Kiran & Anr. vs National Restaurant & Ors. on 6 March, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th December, 2018
Date of decision:6th March, 2019
+ CS(OS) 349/2018, I.As. 9394/2018 & 12795/2018
AMONCHIT SURIYA KIRAN & ANR. ..... Plaintiffs
Through: Ms. Vibha Mahajan Seth and Ms.
Ritu, Advocates. (M:9810702410)
versus
NATIONAL RESTAURANT & ORS. ..... Defendants
Through: Mr. Vivek Tandon and Mr. Ajay
Fatyal, Advocates. (M:9212193958)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The Plaintiffs, Shri Amonchit Suryakiran and Smt. Suraj Mohini Suriyakiran have filed the present suit for possession, mesne profits and damages against the Defendant - Shri Baldev Behl - the sole surviving partner of the firm M/s National Restaurant.
2. The case of the Plaintiffs is that property bearing no.10184, Arya Samaj Road, Karol Bagh, New Delhi (hereinafter, „suit property‟) was owned by Shri. Amar Singh who had three sons, namely, Shri Tarjit Singh, Shri Harsaran Pal Singh and Shri Pritpal Singh.
3. Shri Amar Singh had a registered lease deed in his favour from the DDA dated 17th August 1966. A civil suit no.534/1996 for declaration of title in respect of the suit property was filed by Shri Tarjit Singh against his father - Shri Amar Singh, which was finally decreed vide order dated 25th
CS(OS) 349/2018 Page 1 of 19 April, 1967. The said decree was thereafter challenged in suit no.714/1976 by the other sons of Shri Amar Singh which was finally withdrawn on 20th December, 1976. Thus, the sole and absolute ownership of the suit property vested in Shri Tarjit Singh.
4. Shri Tarjit Singh passed away on 22nd April, 1998 and was survived by his wife, two sons and one daughter. The Plaintiffs are the wife and son of Late Shri Tarjit Singh. The daughter - Smt. Natasha Chona and the other son - Shri Suchit Suriyakiran, have relinquished their shares in the suit property in favour of the Plaintiffs, vide relinquishment deed dated 28th April, 2016.
5. During the lifetime of Shri Tarjit Singh, he had leased out the front portion of the basement of the suit property to M/s National Restaurant which was a partnership firm comprising of two partners, namely, Shri Baldev Behl and Shri M.L. Behl on 1st April, 1970. The partnership firm was running a restaurant by the said name - `National Restaurant', since inception. As the said restaurant was running without a licence, in proceedings filed by the State, it was directed to be closed. This order passed by the Ld. Metropolitan Magistrate dated 6th March, 1998 was confirmed in the review petition vide order dated 28th March, 1998 passed by the Additional Sessions Judge, Delhi. After the said order, the restaurant remained closed and even the payment of rent was stopped. However, a tea and coffee stall was set up by the Defendant.
6. Vide legal notice dated 22nd October, 1981, Shri Tarjit Singh issued a notice of termination of lease and since the lease amount was Rs.500/- per month, the tenancy was governed by the Delhi Rent Control Act, 1958 (hereinafter, „Delhi Rent Control Act‟). After the restaurant was closed, no CS(OS) 349/2018 Page 2 of 19 rent was paid by the tenant and the tea/coffee stall was operated from the premises. After the demise of Shri Tarjit Singh, one of his sons - Shri Suchit Suriyakiran, filed an eviction petition being Eviction Petition no. E-07/2013 seeking eviction. The said petition was dismissed in default due to the fact that the said son had relinquished his share in favour of the Plaintiffs herein. Thereafter, the Plaintiffs filed an eviction petition before the Ld. Additional Rent Controller. The eviction petition was, however, dismissed. At that stage, the Plaintiffs acquired knowledge of the fact that the Defendant had, in the earlier eviction petition denied the landlord-tenant relationship and had also taken up the plea of adverse possession.
7. Thereafter, on 4th July, 2018, the Plaintiffs acquired knowledge of the demise of one of the partners, Shri M.L. Behl, sometime in November, 2017. Thus, out of the two partners, one partner has passed away. Only the Defendant - Shri Baldev Behl is in possession of the premises.
8. Accordingly, the decree for possession of the front basement and mesne profits is sought in the following terms:
"(i) decree of Possession in favour of the Plaintiffs and against the Defendant in respect to the Front Basement admeasuring 41.3 ft. X 34 feet along with its entrance at the Ground Floor of the premises bearing No. 10184, Arya Samaj Road, Karol Bagh, New Delhi, more specifically marked in "Red" in the Site Plans of the said property attached along with the present Suit;
(ii) decree of Mesne Profits and Damages for the sum of 54,00,000/- in favour of the Plaintiffs and against the Defendant;
(iii) decree of Mesne Profits and Damages in favour of the Plaintiffs and against the Defendant at the rate of Rs.1,50,000/- per month with effect from filing of the present Suit till the date of handing over the actual
CS(OS) 349/2018 Page 3 of 19 physical possession of the Suit property;
(iv) decree of payment of Rs.1,98,151/- towards the electricity dues in respect to the Suit property;
(v) decree for costs be also awarded in favour of the Plaintiffs and against the Defendants;
(vi) any other or further order(s) that this Hon'ble Court may deem fit in the facts &circumstances of the present case."
9. In the written statement, the following facts have been pleaded:
i) that the suit property was owned by Shri Amar Singh;
ii) that the property was let out by Shri Tarjit Singh to the Defendant's firm- M/s National Restaurant;
iii) that the Plaintiffs are not the sole surviving legal heirs of Shri Tarjit Singh and that there are other legal heirs;
iv) that the eviction petition under Section 14(1)(a), Section 14(1)(j) & Section 14(1)(k) of the Delhi Rent Control Act was dismissed on 20th March 1995. Even the appeal against the said order was dismissed;
v) that the Plaintiffs are foreigners and hence cannot maintain the present suit;
vi) that the Plaintiffs are not the owners of the property;
vii) that since the past 20 years no one had demanded rent from the Defendant and hence there is no landlord-tenant relationship between the parties;
viii) that since both the execution petitions had been dismissed, the Plaintiffs have no right;
ix) that the share of Shri M.L. Behl in the partnership firm devolves on his two sons, namely, Shri Yogesh Behl and Shri Arun
CS(OS) 349/2018 Page 4 of 19 Behl;
x) that the suit is barred under Section 50 of the Delhi Rent Control Act, and under Order VII Rule 11 of CPC;
xi) that the suit property is a multi-storied building consisting of a basement which is partially under the tenancy of the Union Bank of India. From the first floor and second floor Landmark Inn is running. The third floor is under the tenancy of two other companies i.e. M/s Oriental Insurance Corporation and M/s Vexil Business Process Services Private Limited. The fourth floor is occupied by a company which is promoted by the Plaintiff No.1;
xii) that the suit is barred by non-joinder of parties, as the sons of Shri M.L. Behl have not been impleaded;
xiii) that the Defendant was not inducted as a tenant by the Plaintiffs and hence cannot seek possession;
xiv) that the Defendant has paid the house tax and property tax of Rs.1.97 lakhs and Rs.6,534/- for the year 2018-19;
xv) that the Defendant had taken steps to replace the electricity meters.
10. Ld. Counsel for the Plaintiffs submits that this is a case where the suit is liable to be decreed under Order XII Rule 6 CPC as the Defendant has admitted the legal notice terminating the tenancy dated 4th February, 1997, as also the leave to defend application dated 29th July, 2013 and the order dated 20th March, 1995 passed in E-07/2013 and E-46/1977 respectively. It is the submission of Ms. Vibha Mahajan Seth Ld. Counsel, that the Defendant has denied the relationship of landlord and tenant and hence is not entitled to the benefit of Section 50 of the Delhi Rent Control Act. Since CS(OS) 349/2018 Page 5 of 19 there is no landlord-tenant relationship, the Defendant is merely an unauthorized occupant and in illegal possession of the property. She further submits that partnership cannot be inherited and upon the death of Shri M.L. Behl, on 18th November, 2017, the partnership automatically came to an end. The subsequent partnership deed, which is pleaded by the Defendant between Shri Baldev Behl, Shri Yogesh Behl, Shri Arun Behl and Shri Ankit Behl is a new partnership by the same name, but has come into effect only on 18th November, 2017. Thus, this is not the same partnership firm which was given the premises by Shri Tarjit Singh, under an oral tenancy. She further submits that the present suit is only maintainable against Shri Baldev Behl who has possession of the property. Since the ownership of Shri Tarjit Singh stands settled in case no. E-46/1977, the Plaintiffs are entitled to file the present suit.
11. On the other hand, it is submitted by Mr. Vivek Kumar Tandon, Ld. Counsel for the Defendant that after the death of the second partner, the partnership has been reconstituted and hence the tenancy continues. The DDA records do not show ownership in the name of the Plaintiffs. Since the Plaintiffs never demanded any amounts, they are not entitled to maintain the suit for possession. It is further submitted that the Defendant had paid the house tax and electricity bills and has a vested interest in the property.
12. The Court has heard the counsels for the parties. Initially, when the present suit for possession was filed, an ad-interim order dated 20th July 2018 was granted which reads as under:
"The Plaintiffs are the owners of the Front Basement admeasuring 41.3 ft. x 34 feet along with its entrance at the Ground Floor of the premises bearing no.10184, Arya Samaj Road, Karol Bagh, New Delhi („suit CS(OS) 349/2018 Page 6 of 19 property‟). The suit property was rented to one M/s. National Restaurant, which was a partnership firm. The partnership has, according to the Plaintiff, been dissolved as there is only one surviving partner. The tenancy is also disputed by the Defendants as they have now set up a case of adverse possession. In view thereof, prima facie, the present suit for possession is maintainable. Till the next date of hearing, the Defendants are restrained from parting with possession or creating any third party interest in the suit property."
13. An application came to be filed by the Defendant under Order VII Rule 11 CPC being I.A. No.12795/2018 that the suit is barred under the Delhi Rent Control Act. Owing to the contradictory statements made by the Defendant in the application under Order VII Rule 11, the statement of Shri Baldev Behl was recorded on 1st November, 2018. The statement reads as under:
"Statement of Mr. Baldev Behl aged about 73 years S/o late Shri Sita Ram, R/o J-8, Kirti Nagar, New Delhi On SA The National Restaurant partnership was constituted in 1970. This was a registered partnership firm. Mr. M.L. Behl, Mr. Baldev Behl and Mr. Prakash Chander Behl were the original partners. We used to run a restaurant from the suit property. In the year 1998, the restaurant was closed. Mr. Prakash Chander Behl had exited the partnership. The other partner had passed away in November, 2017. The old partnership firm came to an end. Presently, we are running a small coffee stall in the premises. We have not paid the rent from the year 2000. We have not paid any rent, however, I have paid the property tax for this premises to the tune of approx Rs.2.03 lakhs. The property is admeasuring 1800 sq.ft. The CS(OS) 349/2018 Page 7 of 19 remaining property has six floors only the basement and some small portion of the entrance of the property are under my possession and a small coffee stall is running on this portion. I do not know to whom the rent is being paid by other tenants. I do not know what is the prevalent market rate for rent of a basement. At the time when we had taken the premises on rent, we had given a pagdi amount."
Thus, the Defendant admits that the old partnership firm has come to an end. He also admits that no rent has been paid by him since the year 2000.
14. Thereafter, arguments were heard on all the pending applications. There are two applications which are pending being I.A. 9394/2018 (under Order XXXIX Rule 1 and 2 CPC) and I.A. 12795/2018 (under Order VII Rule 11 CPC). In addition, the Plaintiffs have prayed for a decree being passed under Order XII Rule 6 CPC, which is opposed by the Defendant.
15. From the pleadings and documents it is clear that M/s National Restaurant was being run from the suit premises. The Defendant has admitted in the written statement that Shri Amar Singh was the owner of the property. The extract from paragraph 2 of the reply on merits reads as under:
"2. ....Admittedly, the property bearing no. Amra Palace, Municipal No. XVI/10184, Arya Samaj Road, Karol Bagh, New Delhi - 110005 was absolute owned by Shri Amar Singh S/o Late S. Nihal Singh then Resident of 12A/12, W.E.A., Karol Bagh, New Delhi - 110005 as perpetual lease deed was/is in his name."
16. The Defendant also admits in the written statement that National Restaurant, a partnership firm had taken the premises on rent from Shri Tarjit Singh. The relevant extract of the written statement reads as under:
"....
1. (ii) That M/s National Restaurant, a Partnership
CS(OS) 349/2018 Page 8 of 19 Firm through its partners was let out the premises in question by Mr. Tarjit Singh on 01.04.1970, subject to payment of Rs 500/- towards monthly rent excluding electricity and water consumption charges, for running a restaurant for serving meals to the public at large and the rent receipts were issued in favour of partnership firm M/s National Restaurant."
17. It is further the admitted position that M/s National Restaurant was a partnership firm consisting of Shri Baldev Behl and Shri M.L. Behl and that Shri M.L. Behl passed away on 18th November, 2017. One of the admitted documents is the leave to defend application filed by the Defendant in the eviction proceedings, wherein the Defendant pleads as under:
"...
4. (x) Admittedly, for the last 15 years, neither Tarjeet Singh or any other person had demanded rent from the answering Respondents. There is no landlord-tenant relationship between the parties hereto. That the answering Respondents are in adverse possession of the property in dispute with respect to Petitioner who has no right, title, interest or lien over the property in question."
18. In Case No. E-46/1977, as recorded in order dated 20th March, 1995, the landlord-tenant relationship between M/s National Restaurant and Shri Tarjit Singh was denied. The relevant part of order dated 20th March, 1995, where the Defendant took the stand that there is no relationship of landlord- tenant reads as under:
"2) The respondent has contested the case by filing a WS. It has raised preliminary objections that there is no relationship of landlord and tenant between the parties. It has received notices from Amar Singh- father of the petitioner and Harcharan Pal Singh and Prithi Pal Singh - brothers of the petitioner to the effect CS(OS) 349/2018 Page 9 of 19 that petitioner is not the owner. The petitioner is estopped from filing this case as earlier he filed a similar suit which was dismissed. The premises have been declared in a commercial area and have been regularised and the petitioner, his father, brothers have rented out other portions to bank and other commercial establishments. On merits it has stated that petitioner allowed it to make additions and alterations in accordance with need for running a restaurant. It has not caused any damage."
19. From the documents which have been admitted and the pleadings, it is clear that the firm M/s National Restaurant no longer exists. On the death of Shri M.L. Behl, only Shri Baldev Behl survives and due to the operation of Section 42 of the Indian Partnership Act, 1932 upon the death of one of the partners in a partnership firm comprising of only two partners, the partnership firm automatically dissolves. This is the settled position as held in Commissioner of Income Tax v. Seth Govindram Sugar Mills (1965) 3 SCR 488. The Supreme Court in the above judgment clearly holds that the heirs of a partner cannot be jettisoned into the position of partners immediately upon the death of a partner. The relevant portion of the Supreme Court judgment reads as under:
"7. There is a fallacy in this argument. Partnership, under Section 4 of the Partnership Act, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Section 5 of the said Act says that the relation of partnership arises from contract and not from status. The fundamental principle of partnership, therefore, is that the relation of partnership arises out of contract and not out of status. To accept the argument of the learned counsel is to negative the basic principle of law of partnership. Section 42 can be
CS(OS) 349/2018 Page 10 of 19 interpreted without doing violence either to the language used or to the said basic principle. Section 42(c) of the Partnership Act can appropriately be applied to a partnership where there are more than two partners. If one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partners will continue the firm. On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and, thereafter, there is no partnership for a third party to be introduced therein and, therefore, there is no scope for applying cl. (c) of Section 42 to such a situation. It may be that pursuant to the wishes of the directions of the deceased partner the surviving partner may enter into a new partnership with the heir of the deceased partner, but that would constitute a new partnership. In this light Section 31 of the Partnership Act falls in line with Section 42 thereof. That section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing partners: it presupposes the subsistence of a partnership: it does not apply to a partnership of two partners which is dissolved by the death of one of them, for in that event there is no partnership at all for any new partner to be inducted into it without the consent of others.
8. There is conflict of judicial decisions in this question. The decision of the Allahabad High Court in Lal Ram Kumar v. Kishori Lal is not of any practical help to decide the present case. There, from the conduct of the surviving partner and the heirs of the deceased partner after the death of the said partner, the contract between the original partners that the partnership should not be dissolved on the death of any of them was inferred. Though the partnership there was only between two partners, the question of the inapplicability of section 42(c) of the Partnership Act to such a partnership was neither raised nor decided
CS(OS) 349/2018 Page 11 of 19 therein. The same criticism applies to the decision of the Nagpur High Court in Chinkaram Sidhakaram Oswal v. Radhakishan Vishwanath Dixit. This question was directly raised and clearly answered by a Division Bench of the Allahabad High Court in Mt. Sughra v. Babu against the legality of such a term of contract of partnership consisting of only two partners. Agarwala J. neatly stated the principle thus:
"In the case of a partnership consisting of only two partners, no partnership remains on the death of one of them and, therefore, it is a contradiction in terms to say that there can be a contract between two partners to the effect that on the death of one of them the partnership will not be dissolved but will continue... Partnership is not a matter of status, it is a matter of contract. No heir can be said to become a partner with another person without his own consent, express or implied."
This view accords with that expressed by us earlier. In Narayanan v. Umayal, Ramachandra Iyer J., as he then was, said much to the same effect when he observed thus:
"... If one of the partners died, there will not be any partnership existing to which the legal representatives of the deceased partner could be taken in. In such a case the partnership would come to an end by the death of one of the two partners, and if the legal representatives of the deceased partner joins in the business later, it should be referable to a new partnership between them."
But Chatterjee J. in Hansraj Monot v. Gorak Nath Pandey struck a different note. His reasons for the contrary view are expressed thus:
"Here the contract that has been referred to
CS(OS) 349/2018 Page 12 of 19 is the contract between the two partners Gorak Nath and Chanpala... Therefore, it cannot be said that the contract ceased to have effect because a partner died. The contract was there. There was no new contract with the heirs and there was no question of a new contract with the heirs because of the original contract, and by virtue of the original contract the heirs become partners as soon as one of the partners died... As soon as there is the death, the heirs become the partners automatically without any agreement between the original partners by virtue of the original agreement between the partners while they were surviving. There is no question of interregnum. As soon as the death occurs the right of somebody else occurs. The question of interregnum does not arise. The heirs become partners not because of a contract between the heirs on the one hand and the other partners on the other by because of the contract between the original partners of firm."
With great respect to the learned judge, we find it difficult to: appreciate the said reasons. The learned judge seems to suggest that by reason of the contract between the original partners, the heirs of the deceased partner enter the field simultaneously with the removal by death of the other partners from the partnership. This implies that personality of the deceased partner projects into that of his heirs, with the result that there is a continuity of the partnership without any interregnum. There is no support either on authority or on principle for such a legal position. In law and in fact there is an interregnum between the death of one and the succession to him. We accept the view of the Allahabad and Madras High Courts and reject the
CS(OS) 349/2018 Page 13 of 19 view expressed by the Nagpur and Calcutta High Courts.
9. The result of the discussion is that the partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on December 9, 1945."
The Supreme Court upheld the view of the Allahabad and Madras High Courts to the effect that in the case of a firm consisting of two partners, upon the death of a partner, the partnership firm comes to an end. Thus, the firm - M/s National Restaurant stood dissolved upon the death of Shri M.L. Behl.
20. The Defendant has repeatedly, in the leave to defend application filed in the eviction proceedings and also before this Court denied the relationship of landlord and tenant. One such pleading in the written statement reads as under:
"(xiii)Admittedly, for the last 20 years, neither Tarjit Singh nor any other person had demanded any rent from partnership firm M/s National Restaurant and/or its partner including the answering Defendant. There is no landlord-tenant relationship between the parties hereto, considering the debar notice dated 19.08.1976 issued by the Lessee of the property in question as well as verdict dated 20.03.1995 pronounced by the Hon'ble O.P. Chopra, Addl. Rent Controller, Tis Hazari Courts, Delhi."
21. In the absence of the relationship of landlord and tenant, protection under the Delhi Rent Control Act cannot be extended to the Defendant. This is settled by the Division Bench judgment of this Court in Naeem Ahmed v. Yashpal Malhotra 188 (2012) DLT 579 (DB). The Court in this case observed as under:
"11. From the above, it is observed that the decision in V. Dhanapal Chettiar case(supra) is not an authority for the proposition that even if a tenant denies the title CS(OS) 349/2018 Page 14 of 19 of the landlord and claims himself to be owner, he continues to be a tenant in the eyes of law and the protection of the Delhi Rent Control Act is still available to him.
12. As aforesaid, in Kurella's case (supra) and Abdulla Bin Ali's case (supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent no.1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent No.1. Consequently, the respondent No.1 had repudiated and renounced the relationship of landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil Court since the occupation of the respondent no.1 had become unauthorized and that of a trespasser.
13. In view of the above we hold that the ratio of the decision in S. Makhan Singh case (supra) does not warrant reconsideration. We are, therefore, of the considered opinion that in the facts and circumstances of the case the suit was cognizable by the civil Court and the impugned order was erroneous, inasmuch as it held that the same was barred by provisions of Section 50(4) of the Delhi Rent Control Act. The appeal is allowed accordingly."
Thus, the Defendant is not entitled to protection under the provisions of the Delhi Rent Control Act.
22. In the judgment passed in the eviction proceeding on 20th March, 1995, which is a document admitted between the parties, the ownership of Shri Tarjit Singh is admitted. Further, this question stands settled as per CS(OS) 349/2018 Page 15 of 19 decree dated 25th April 1967 passed in Case no. 534/1966. This is clear from an extract of order dated 25th April, 1967:
"The suit coming on this day for final disposal before me in the presence of Sh. H.S Sethi Advocate for the with plaintiff and Sh. Amar Singh deft. Self for the defendant, it is ordered that the per statement of the parties the suit is decreed for declaration that the plaintiff is the sole owner of the property bearing municipal house no. XVI 10184, situated on Arya Samaj Road, Karol Bagh, Delhi. Parties shall bear their own costs."
23. Moreover, the Defendant has also repeatedly pleaded adverse possession and is therefore attempting to set up a conflicting title with the Plaintiffs. The law on adverse possession is settled. Recently, the Supreme Court in Ram Nagina Rai & Anr. Vs. Deo Kumar Rai (Deceased) by LRs. & Anr. 2018 (10) Scale 630 observed as under:
"6..........Adverse possession means a hostile assertions, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another‟s title. Simply put, one who holds possession on behalf of another, does not by
CS(OS) 349/2018 Page 16 of 19 mere denial of the other‟s title, make his possession adverse so as to give himself the benefit of the statute of limitation.
........................
9. Until the Defendants‟ possession becomes adverse to that of the real owner, the Defendants continue in permissive possession of the property. Only if the Defendants‟ possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed Under Article 65 of the Limitation Act, from the point of time the possession by the Defendants becomes adverse to the Plaintiffs, the real owner loses his title over the property."
24. The Defendant has taken contradictory pleas all along. First, he admits that Shri Tarjit Singh gave the possession on an oral tenancy and the rent was Rs. 500/-. He then denies the relationship of landlord-tenant on the ground that rent has not been paid for more than 20 years. Curiously, he then pleads that he is protected under the provisions of the Delhi Rent Control Act. To obfuscate matters further, he pleads adverse possession. When admittedly, various eviction petitions have been filed by the owner and his son, the plea of adverse possession is untenable as the possession is not hostile. There being no tenancy in favour of the Defendant, the rent having not been paid for more than 20 years and the Plaintiffs having always asserted ownership against the Defendant, both pleas i.e., the protection under the Delhi Rent Control Act and the plea of adverse possession fail.
25. A feeble attempt is made by the Defendant to challenge the ownership of the Plaintiffs. The ownership of Shri Tarjit Singh is admitted. His wife and son are the Plaintiffs in the present suit. The Defendant is estopped from challenging their title inasmuch as they have established on record, that they
CS(OS) 349/2018 Page 17 of 19 are the legal heirs of Shri Tarjit Singh. None of the legal heirs have come forward challenging the rights of the Plaintiffs.
26. The death of one of the partners - Shri M.L. Behl in November, 2017 results in automatic dissolution of the partnership firm - M/s National Restaurant. Upon the dissolution of the firm, the possession of the suit property is with Shri Baldev Behl, who is nothing but an unauthorized occupant. The ground taken by the Defendant in the application under Order VII Rule 11 CPC, that the suit is barred under Section 50 of the Delhi Rent Control Act fails. Under Order XII Rule 6 CPC, admissions could be in any form, pleadings, documents or otherwise. The pleadings filed in the eviction proceedings are admitted. The orders passed therein are admitted. Ownership of Shri Tarjit Singh is admitted. Factum of Shri Tarjit Singh having permitted M/s National Restaurant to occupy the premises is admitted. Death of one of the partners, i.e., Shri M. L. Behl is admitted. Absence of landlord-tenant relationship is admitted. Filing of the eviction proceedings by Shri Tarjit Singh and his son stands admitted. Thus, there is no possession which is hostile to the owners. The Defendant has been in occupation of a very valuable commercial premises without any valid and legally tenable ground. The Defendant is nothing but an unauthorised occupant. Since the Defendant has denied the relationship of landlord and tenant, there is no valid defense available to the Defendant in law. No protection can be extended under the Delhi Rent Control Act to the Defendant. In the absence of any protection and any valid title in favour of the Defendant, in respect of the suit property, the decree for possession is liable to be granted in favour of the Plaintiffs.
27. Accordingly, the suit is decreed in favour of the Plaintiffs in the CS(OS) 349/2018 Page 18 of 19 following terms:
"decree of Possession in favour of the Plaintiffs and against the Defendant in respect to the Front Basement admeasuring 41.3 ft. X 34 feet along with its entrance at the Ground Floor of the premises bearing No.10184 Arya Samaj Road, Karol Bagh, New Delhi, more specifically marked in "Red" in the Site Plan of the said property attached along with the present suit."
28. The Defendant is directed to hand over possession of the suit property to the Plaintiff within a period of four weeks. Until possession is handed over, the interim order passed on 20th July, 2018 shall continue. The application under Order VII Rule 11 CPC is dismissed. I.A. 9394/2018 is also disposed of, in the above terms.
29. The suit would proceed to trial in respect of the relief of mesne profits and other reliefs. List for framing of issues on 15th April, 2019.
PRATHIBA M. SINGH JUDGE MARCH 06, 2019 Rahul
CS(OS) 349/2018 Page 19 of 19
