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TMI Blog2022 (9) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of Plot No. 4/4. The Respondent is entitled to possession of Plot No. 4/4. The Respondent is also entitled to mesne profits at the rate of Rs.50,000/- per month from 1st March 2006, as directed by the High Court to make over, till the date on which the Appellant offered possession of Plot No. 4/4 to the Respondent. Order 7 Rule 3 of the Code of Civil Procedure mandates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers - There could be no doubt that a decree should not to the extent practicable be allowed to be defeated. At the same time, a decree can only be executed in respect of the suit property if the suit property is easily identifiable. The extent of the suit property would have to be determined by the Executing Court, as a question relating to execution, discharge or satisfaction of the decree. This Court cannot shut its eyes to the fact that part of the land belongs to the Delhi Government for which Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Station. 7. By a letter No.3542/5 AG/2001 dated 20th January 2001, the Municipal Corporation of Delhi informed the Respondent that the property was being mutated in his name on the basis of documents furnished by him. 8. Plot No. 4/5 was initially let out to Standard Vacuum Oil Company which later became M/s ESSO Standard Eastern Inc, hereinafter referred to as ESSO . By a deed of lease dated 9th February 1961, one Sahabzada Nasirddin Ahmed Khan, son of Nawabzada Mirza Bashiruddin Ahmed Khan, resident of H. No. 2205/VI, Qasamjan Street, Delhi, leased out 6,106 sq. ft. land fully described in the Schedule to the said deed of lease, that is, Plot No. 4/5 to Standard Vacuum Oil Company, predecessor in interest of ESSO. ESSO and/or its predecessor in interest Standard Vacuum Oil Company set up a retail outlet/petrol pump at plot No. 4/5 under the name and style of M/s Tej Service Station. 9. By a letter No. F21 (21)-68-L B dated April 1969, the Delhi Administration, Land and Building Department informed the District Manager of ESSO that ESSO was in occupation of land measuring 958 sq. yards belonging to the Delhi Administration, and demanded rent assessed at Rs.12,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Will and the land situated at 4/4 Azadpur G.T. Road, Delhi measuring 9700 sq. yds. fell to the exclusive share of the plaintiff and the Plaintiff has therefore, become the absolute owner of the said piece of land. It is pertinent to mention that even the adjoining land bearing No.4/5 Azadpur G.T. Road, Delhi fell to the share of the other legal representatives namely Shri Anil Bhatia, Smt. Renu Bhatia and Smt. Anuradha Kapoor, which is also under the unauthorised occupation of the Defendants No.1 and 2. The photocopy of the letter of probate issued in favour of the Plaintiff is also attached as Annexure P-3. ... 15. That the cause of action arose in favour of the Plaintiff and against the Defendants when the lease deed expired in June, 2003. 13. In the said suit, the Respondent prayed for the following relief: a) a decree for recovery of possession in respect of plot measuring 9,700. sq.ft. situated at 4/4 Azadpur, G.T. Road, Delhi as shown in red in the plan may be passed in favour of the Appellant and against the defendants as shown red in the plan attached. b) the decree for recovery of Rs. 1965000/- being the damages @ Rs. 50000 per month fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- per month which was not accepted to the Plaintiff. That the tenancy of the Defendant was governed by English calendar. It started on the 1st day of month and it ends on the last day of the month. That the Defendants are liable to pay damages by way of mesne profits after the expiry of the lease i.e. from June 2003 @ Rs.50,000/- per month to the Plaintiff till they vacate the land. 13. That in order to avoid any technical objection the Plaintiff has also terminated the tenancy by serving a legal notice dated 31.01.06. The copy of the notice sent by the Plaintiff is annexed as Annexure P-4. That the defendants have failed to vacate the premises 15. That the cause of action arose in favour of the Plaintiff and against the Defendants when the lease deed expired in June, 2003 and the Defendants were called upon to handover the vacant possession and also pay the arrears of damages @ Rs. 50000/- per month with effect from July 2003 upto date. The Defendants have also failed to deliver the possession the cause of action arose firstly in the month of July 2003 and in any case it has finally arisen when the period of one month expired after the service of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. During her lifetime she executed a Will dated 5th June 1989 bequeathing the land in question to the Plaintiff. The Plaintiff has also obtained probate/letter of administration of the said Will. This fact was also admitted by the Defendant in its written statement. The probate certificate has been placed on record. Defendant No.1 started remitting the rent to the Plaintiff separately through his attorney Mr. Vipin Arora. The rent in respect of adjoining land was being paid by Defendant No.1 separately to the other legal heirs of the deceased Smt. Rajeshwari Bhatia. 5. Considering that Defendant No.1 has accepted the relationship of landlord and tenant and has been paying rent for the plot under its occupation to the Plaintiff, it is now not open to Defendant No.1 to deny the identity of plot which belongs to the Plaintiff. 6. In the Written Statement, Defendant No.1 claims that the lease is renewable for a period of 40 years beyond 31st March 2009. It appears that there is no automatic renewal of the lease. Defendant No.1 has not exercised any such right by issuing a notice to the Plaintiff. On the other hand, the Plaintiff has terminated the lease and filed the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with effect from 28th February 2006. The Appellant s occupation thus became illegal only from 1st March 2006 and not from any earlier period. 24. The High Court partially allowed the Regular First Appeal being RFA No.13 of 2019 and modified the impugned judgment and decree by holding that mesne profits would be payable not from July 2003 but from 1st March 2006. 25. The Respondent filed an application in the Court of Additional District Judge, North Rohini Court, Delhi for execution of the decree of mesne profits as modified by the High Court. 26. The Appellant contends that the Respondent had filed an inaccurate site plan along with its plaint, based on which judgment and decree dated 21st November 2013 has been passed. There was, thus, an error apparent on the face of the said judgment and decree. The Appellant, therefore, filed an application on or about 1st May 2015, under Order 41 Rule 33 read with Section 151 of the CPC for clarification/rectification of the decree dated 21st November 2013. The said application was dismissed by an order dated 15th May 2015 on the ground of the same being barred by limitation. 27. Since the Respondent had wrongfully taken posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed the subsequent applications filed by the Appellant, that is, the application for dismissal of the execution application on the ground of the decree not being executable and the application seeking restoration of possession of Plot No. 4/5, possession whereof had been taken in part execution of the decree. 33. On or about 29th March 2019, the Appellant filed Execution First Appeal No. 13 of 2019 challenging the order dated 15th March 2019 in the Delhi High Court. On 19th July 2019, the Appellant filed its objections as well as the application under Order 21 Rule 26 CPC for stay of the proceedings for execution of the decree for mesne profits. The applications were dismissed by a judgment and order dated 19th July 2019. 34. Being aggrieved, the Appellant filed Execution First Appeal 30 of 2019. Various interim orders were, from time to time, passed. Ultimately, by an order dated 24th November 2021 impugned in this appeal, the High Court of Delhi dismissed Execution First Appeal No. 13 of 2019 and Execution First Appeal No. 30 of 2019 filed by the Appellant. 35. Mr. Vishwanathan, learned counsel appearing on behalf of the Appellant submitted that the suit had been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Debtor on 15.09.2014, hence the calculation for mesne profit for complete area of 9700 sq. ft. after 15.09.2014 is flawed and unlawful. The copy of the report of the bailiff is annexed herewith . 41. Mr. Viswanathan argued that the Respondent has claimed mesne profits for entire decretal area of 9700 sq. ft. after 15th September 2014. The Respondent Decree Holder cannot claim the entire amount when he has taken part possession of land admeasuring 7076 sq. ft. out of which 240 sq. ft. area belong to the Land and Building Department, Delhi Administration. 42. On behalf of Respondent, Mr. Kalra submitted that the decree of possession obtained by the Respondent had assumed finality. The execution proceedings were initiated for recovery of possession. The Respondent could take possession of 7075 sq. ft. out of the 9700 sq. ft. on 15th September 2014. The Appellant was directed to remove the dispensing units, underground tanks, CNG compressor, overhead tanks, which the Appellant has not yet done. The land cannot be used by the Respondent as there are explosives stored and the sale of fuel is still going on. 43. Mr. Kalra emphasised on the fact that there was a site plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 50. In Pratibha Singh (supra), this Court held that when a suit for immovable property had been decreed but the property not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 could be cured. The Court which passed the decree could supply the omission. Alternatively, exact description of the decretal property might be ascertained by the Executing Court, as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47. 51. There could be no doubt that a decree should not to the extent practicable be allowed to be defeated. At the same time, a decree can only be executed in respect of the suit property if the suit property is easily identifiable. The extent of the suit property would have to be determined by the Executing Court, as a question relating to execution, discharge or satisfaction of the decree. 52. The Respondent is undoubtedly entitled to mesne profits. Order 20 Rule 12 provides:- 12. Decree for pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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