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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 ..... reinafter referred to as "Plot No. 4/4" and M/s Tej Service Station on two plots of land admeasuring 15336 sq. ft. located at 4/5, Azadpur, G.T. Road, Delhi hereinafter referred to as "Plot No.4/5". 5. By an indenture of lease dated 15th October 1970, Shadi Lal Bhatia, since deceased, son of Late Chaman Lal Bhatia, resident of 39, Security Police Flats, near Ashoka Hotel, New Delhi, leased out land situated at Mile 4/4, G.T. Karnal Road, Azadpur, Delhi more specifically described in the Schedule to the said indenture of lease, that is, Plot No.4/4 to M/s CALTEX (India) Ltd., hereinafter referred to as "CALTEX", for a period of ten years, to operate the retail outlet/petrol pump Azadpur Service Station. CALTEX has since merged with the Appellant, Hindustan Petroleum Corporation Limited. After the death of Shadi Lal Bhatia, Plot No. 4/4 was inherited by Mrs. Rajeshwari Devi, widow of the said Shadi Lal Bhatia. Mrs. Rajeshwari Devi extended the said lease for a period of ten years. 6. Plot No. 4/4 later devolved on the Respondent No, Shri Ajay Bhatia, son of Shri Anil Bhatia, who is the owner thereof. On or about 18th January 2001, the Respondent applied for mutation of Plot No. 4/4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et out to M/s CALTEX (India) Ltd., which has since merged into Defendant No.1 wherein a retail outlet is being carried out in the name and style of M/s Tej Service Station. The said plot of land was let out by Late Shri Shadi Lal Bhatia by means of an indenture of lease dated 15th October 1970, which was duly registered with the Sub- Registrar dist. No.1, Delhi. The copy of the lease deed dated 15.10.1970 is annexed as Annexure P-1. The land let out has been shown in the site plan as red. A copy of the site plan is annexed with the plaint as Annexure P-2. ... 5. That Shri Shadi Lal Bhatia died and after his death his widow Smt. Rajeswari Bhatia inherited and estate and property was under the tenancy of Defendants Nos. 1 and 2. 6. The Defendant No.1 and 2 started paying the rent of the land to Smt. Rajeswari Bhatia and the lease was further extended as per the terms and conditions of the indenture of lease dated 15.10.1970 referred to above. ... 9. That during the lifetime of Smt. Rajeswari Bhatia she had executed a will 5.6.89 and under the said Will the land in suit i.e. 4/4 Azadpur G.T. Road, Delhi fell to the share of the Plaintiff and the Plaintiff was also grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cause of action has arisen and not otherwise. Any future event does not constitute cause of action. The cause of action is the fact or bundle of facts which would be necessary for the plaintiff to plead and prove, in order to get a judgment of the Court in his favour. 16. The cause of action for the suit, in this case, is pleaded in paragraphs 11, 12, 13 and 15 which are set out hereinbelow for convenience:- "11. That the period of the lease has expired and after the expiry of the lease period the Plaintiff has been making repeated request to the Defendants to handover the vacant possession of the said piece of land. Instead of vacating the said plot the Defendants have been sending the rent cheques in favour of Plaintiff by means of courier. The Plaintiff has never accepted the said cheques and has only received the damages upto June, 2003. 12. After the expiry of the lease, the Defendants were liable to pay damages by way of mesne profits to the Plaintiff for being in unauthorized occupation of the piece of land since the tenancy had come to an end. That instead of making the payment of mesne profits the Defendants with some ulterior motive started sending the cheques @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired in June 2003. 19. Soon after the trial of the suit commenced, the Respondent filed an application in the suit under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking a summary judgment and order/decree for eviction of the Appellant from the suit property. 20. By a judgment and decree of the Delhi High Court in C.S.(O.S.) No. 1828 of 2006 dated 21st November 2013, the Appellant was directed to restore the suit property to the Respondent within a period of 12 weeks from the date of the order. 21. The relevant excerpts from the judgment and decree dated 21st November 2013 are set out hereinbelow:- "4. Admittedly, the suit property was given on lease to the erstwhile M/s. CALTEX (India) Limited and has been duly exhibited as Ex.P-1. Defendant No.1 is the successor of M/s CALTEX (India) Limited and accepted the relationship of landlord and tenant vis-àvis the Plaintiff and itself. The land in question was owned by the Plaintiff's grandfather, Mr. Shadi Lal Bhatia and after his death Smt. Rajeshwari Bhatia became the landlady. The lease was extended by a lease deed dated 15th October 1970. Smt. Bhatia died on 22nd November 1993. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendant No.1, within a period of twelve weeks from today." 22. The Respondent (plaintiff in the suit) was claiming mesne profits at the rate of Rs.50,000/- per month from July 2003 in respect of 9,700 sq. ft. of land being Plot No.4/4. The Court proceeded to decide the issue of "Whether the plaintiff was entitled to mesne profits from the defendants and if so to what extent? ". Trial commenced in respect of the claim of the Plaintiff (Respondent) for mesne profits. The Court found that the lease of Plot No. 4/4, came to an end, by efflux of time in June 2003. On examination of an approved valuer, the Respondent was granted mesne profit at the rate of Rs.50,000/- per month with effect from July 2003 till the vacation of the suit property, by a judgment and order and decree dated 20th August 2018. 23. The Appellant filed Regular First Appeal being RFA No. 13 of 2019 in the High Court of Delhi. By a judgment and order dated 9th January 2019, the Delhi High Court found that the tenancy of the Appellant in respect of the suit property, stood terminated after the Respondent sent the legal notice dated 31st January 2006 terminating the tenancy of the Appellant with effect from 28th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the attachment done under the process of execution of the decree on Plot No. 4/5 where the Appellant had been running the petrolpump/ retail outlet, M/s Tej Service Station, be removed and the said plot be restored to the Appellant. 30. The Managing Partner of M/s Tej Service Station, Shri Ramesh Kumar Yadav, made an application for intervention being IA No. 39324 of 2022 in this Court. Pursuant to an order dated 15th March 2022 passed in the said application, the intervener, being the Managing Partner of M/s. Tej Service Station has been added as party-Respondent in the Special Leave Petition. 31. By judgment and order dated 9th January 2019, the said Regular First Appeal No. 13 of 2019 filed by the Appellant was partly allowed and the judgment and decree dated 20th August 2018 for mesne profits was modified by directing that mesne profits would be payable from 1st March 2006 and not from July 2003 as directed by the Trial Court. 32. By an order dated 15th March 2019, the Additional District Judge, North District, Rohini Court, allowed Execution Application No. 799 of 2014 filed by the Respondent for possession of the suit premises and dismissed the subsequent applications fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the Respondent was wrongfully claiming possession of Plot No.4/5 of which he was not even owner. Part of the Plot is owned by Mr. Anil Bhatia and the others and the other part by the Delhi Government. 39. In respect of SLP (C) No. 20737 of 2021, Mr. Vishwanathan submitted that the Appellant had paid mesne profit as determined by the Court till 30th September 2014. The Appellant had all along indicated its willingness to handover possession of plot No. 4/4. The decree dated 20th August 2018 for payment of mesne profit also referred to Plot No.4/4 admeasuring 9700 sq. ft. The Appellant contends that the Appellant is, therefore, not liable to pay mesne profit post September, 2014. 40. The Appellant contended: "11. The Decree Holder had the chance of executing the decree of possession against 4/4 Azadpur, Delhi, willingly he did not do so and instead took possession of wrong property i.e. 4/5, causing loss to judgment debtor and thus his entitlement to mesne profits does not survive. ... 13. Further, it is submitted that the Decree Holder has taken the possession of land admeasuring 116* 61 from the judgment Debtor on 15.09.2014, hence the calculation for mesne prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, in appeal before us. Suffice it to mention that the suit was in respect of Plot No. 4/4. The mesne profits and/or damages were awarded in respect of wrongful occupation of Plot No. 4/4. 47. There can be no doubt that the verdict of the Trial Court has assumed finality in 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. 48. The question is whether the Respondent can take possession of any part of Plot No. 4/5 or any other plot in execution of the decree in suit being C.S.(O.S.) No.1828 of 2006 which is only in respect of Plot No. 4/4. The answer to the aforesaid question is obviously in the negative. 49. 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 surve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12x60 sq. ft. being part of Khasra No. 403/90 leased by Smt. Rajeshwari Bhatia and another plot admeasuring 142x60 sq. ft. being part of Khasra No. 66 of Village Azadpur belonging to the Delhi Government requires consideration. 55. This Court cannot shut its eyes to the fact that part of the land belongs to the Delhi Government for which Appellant is paying Revenue to the Delhi Government. 56. The Appeal relating to the SLP (C) No.20718 of 2021 and the Appeal relating to SLP (C) No.20737 of 2021 are allowed. The impugned judgment and order is set aside. The Executing Court shall decide the Execution Applications and all related applications afresh, in the light of the observations made above by appointing a Revenue Officer as Local Commissioner to demarcate Plot No. 4/4 and make over possession of the said plot to the Respondent. Any excess land of which possession may have been taken, whether of Plot No.4/5 or any land belonging to the Delhi Government shall be restored to the Appellant. The mesne profits as directed by the Trial Court shall be computed in terms of the decree of the Trial Court, as modified by the High Court, i.e., with effect from 1st March 2006 till relinquish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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