LAWS(DLH)-2001-4-113

ARTI BHARGAVA Vs. KAVI KUMAR BHARGAVA

Decided On April 20, 2001
ARTI BHARGAVA Appellant
V/S
KAVI KUMAR BHARGAVA( DECEASED ) Respondents

JUDGEMENT

(1.) This order will govern the disposal of I.A.8035/90 under Order 39 Rules 1 & 2 read with section 151 Civil Procedure Code filed by the plaintiff and I.A.No.1160/94 filed under Order 39 Rule 4 read with section 151 Civil Procedure Code for vacation of ex parte ad interim injunction order dated 24/09/1990. by the defendants.

(2.) Suit was filed on 22/09/1990 alleging that Kavi Kumar Bhargava, defendant is the brother of the plaintiff. Dularey Lal Bhargava, father of plaintiff, Bharti Bhargava and husband of Smt.Savitri Devi Bhargava expired in September 1975. Smt.Savitri Devi Bhargava too died on 7/03/1990. Defendant herein had instituted suit being Suit No.477/74 against Smt.Savitri Devi Bhargava who was defendant No.l, Bharti Bhargava who was defendant No.2 and plaintiff herein who was defendant No.3, for partition of two properties bearing Nos.3/13-8, Asaf Ali Road and E-15 &16, Nizamuddin West, New Delhi. During the pendency of suit with the consent of parties the disputes were referred to the sole arbitration of Sh.B.P.Sinha, Ex-Chief Justice of India. Arbitrator made the award on 28/03/1975 and pursuant thereto a decree was passed on 1 5/05/1975 after recording the statements of parties. In terms of said award and decree it was,interalia, held that Smt.Savitri Devi Bhargava shall continue to possess and realise the rent during her lifetime of said property No.E-15 &16, Nizamuddin west. It is further alleged that plaintiff has been in possession of first and second floors of property No.E-15 & 16, Nizamuddin west for the last over 20 years. Tenancy on a monthly rental of Rs.500.00 in respect of both the floors of property was created in her favour with effect from 1/08/1984 by Smt.Savitri Devi Bhargava with the knowledge and consent of defendant. Thereafter a lease deed was reduced into writing. Plaintiff has been paying rent since 1/08/1984. She also handed over a cheque towards rent for the month of March 1990 to the defendant as desired by him after the death of Smt.Savitri Devi Bhargava on 7/03/1990. It is stated that the defendant had been pressurising the plaintiff to vacate the tenanted premises. On 1 6/09/1990 the defendant threatened and attempted to dispossess the plaintiff from tenanted premises by having recourse to physical violence and illegal means. It was prayed that decree of permanent injunction be passed in favour of the plaintiff and against defendant restraining the later from dispossessing the former from the tenanted premises except in due course of law. Decree of permanent injunction restraining the defendant from interfering with and/or obstructing the plaintiff's enjoyment of tenanted premises is further sought to be passed by the plaintiff.

(3.) In the suit aforesaid I.A.8035/90 on the grounds identical to those taken in plaint, was filed and by the order dated 24/09/1990 by means of an ex parte ad interim injunction the defendant was restrained from dispossessing the plaintiff from 1st and 2nd floors of property No.E-15 & 16, Nizamuddin west in addition to his either personally or through his servants obstructing the plaintiff's ingress to and egress from the said property. Defendant contested the suit by filing written statement. By way of preliminary objections, it is alleged that original lease deed which was required to be filed alongwith plaint, was not filed with it and a false stand was taken that the same was with answering defendant. Answering defendant controverted this false allegation in the reply to I.A.8035/90. In the rejoinder filed on 2/12/1990 the plaintiff did not stick to said false allegation .and the court directed the plaintiff to produce alleged original lease deed within a week by the order dated 3/12/1990. Same was still not produced. In reply to I .A.. 11391/90 under Order 11 Rule 21 Civil Procedure Code filed by answering defendant, during the course of hearing counsel of plaintiff admitted that original lease deed was with the plaintiff and she undertook to produce it in court on 7/01/1991 and allow inspection thereof to the counsel of defendant in the meantime. It is further alleged that on 1 6/09/1990 answering defendant was at Shimla. In the rejoinder filed to the reply in I.A.8035/90 the plaintiff changed her stand that threat was given on telephone from Shimla which assertion is again false to the knowledge of plaintiff. On merits, it is admitted that answering defendant filed Suit No.477/74 against Smt.Savitri Devi Bhargava and others seeking partition of two properties and with the consent of parties disputes were referred for adjudication to Sh.B.P.Sinha, arbitrator. The arbitrator made the award dated 28/03/1975 and after recording parties' statements said suit was disposed of in terms of the award by the order dated 15/05/1975, as ' alleged. However, it is pleaded that as per judgment and decree dated 1 5/05/1975 the plaintiff got the basement while Ms.Bharti Bhargava the ground floor of property No.3/13-B, Asaf Ali Road. Answering defendant got the first and second floors of said property in addition to property No. 15 & 16-E, Nizammudin west as absolute owner subject,however, to the life interest of Smt.Savitri Devi Bhargava in second floor of property No.3/13-B, Asaf Ali Road and property No.15-16, Nizamudin west. Possession and enjoyment of properties by Smt.Savitri Devi Bhargava was that of a licence which licence stood terminated with her demise on 7/03/1990. It is further alleged that parties to the suit alongwith Smt.Savitri Devi Bhargava and Ms.Bharti Bhargava started living in the first and' second floors of property No.E- 15 & 16, Nizammudin west in July/August 1964. First floor comprises of a living room connected with two bed rooms in a row with two bath rooms and a kitchen and a third bed room opening in the corridor. First bed room was being used by answering defendant before and after his marriage which took place in the year 1969. Second bed room and the store were used by Smt.Savitri Devi Bhargava. Third bed room was used by the plaintiff and Ms.Bharti Bhargava till the marriage of later in 1977. It is stated that in October 1979 the ground floor of said property was vacated by Punjab National Bank, tenant for 17 or 18 years and it was occupied by answering defendant, his wife and children. Thereafter Smt.Savitri Devi Bhargava started using first .bed room as a dinning room. It is claimed that plaintiff was living in the first floor of property as a daughter with mother till her demise on 7/03/1990. Smt.Savitri Devi Bhargava continued to remain in possession of the first and second floors as also mezzanine floor in between the two floors continuously with a pack of servants without any break till her death. It is emphatically denied that tenancy in respect of first and second floors of said property was created in favour of plaintiff as alleged. It is asserted that alleged tenancy could not have been created by Smt.Savitri Devi Bhargava with effect from 1/08/1984 or any subsequent date. Smt.Savitri Devi Bhargava had been paying house tax by claiming 25% rebate on account of self occupation of both the floors and she never divested herself of possession of any of these floors. It is alleged that for the purpose of claiming income tax benefit or house rent allowance from the employer, the plaintiff seem to have procured what may ostensibly appear to be rent receipts issued by Smt.Savtri Devi Bhargava or made some token payments in the sum of Rs.500.00 per month by cheques and such a manipulation, even if established, would not amount to creation of relationship of landlady and tenant. It is denied that any cheque towards rent for the month of March 1990 was handed over to answering defendant as alleged. Plaintiff had blank cheques, blank rent receipts bearing the signatures of Smt.Savitri Devi Bhargava. It is alleged that dispute between the parties was in connection with unauthorised construction made by plaintiff and Ms.Bharti Bhargava on the top of second floor of property No-3/13-B, Asaf Ali Road, New Delhi.