Delhi District Court
Mamta vs Kavita on 21 December, 2024
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IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 8553/2016
SMT. MAMTA
W/o Shri Laxmi Narayan,
R/o 104, Village Kilokari
New Delhi - 110014. .....Plaintiff
VERSUS
SMT. KAVITA
W/o Late Shri Ramesh Chand,
R/o 109-C, Ground Floor, Village Kilokari,
New Delhi - 110014. ....Defendant
Date of Institution : 12.02.2016
Date reserved for judgement : 18.12.2024
Date of judgement : 21.12.2024
DECISION : DECREED
SUIT FOR POSSESSION, DAMAGES & MESNE
PROFITS
JUDGMENT
1. By this judgement, I shall decide the present suit for possession, damages and mesne profits filed by the plaintiff against the defendant with respect to the 3 rd floor (without terrace rights) of property bearing number 109-C admeasuring 30.73 square yards, khasra number 732, khewat no. 5, Khata number- 42 situated at Village Kilokari, New Delhi-110014 (herein after MAMA VS. KAVITA CS DJ 8553/2016 -2- referred to as the suit property).
2. Facts of the case :
Brief facts of the case as culled out from the plaint are as under:-
2.1 Plaintiff purchased the suit property along with undivided proportionate ownership rights in the land underneath with fittings and fixtures, one separate water tank on terrace with right to use stair case and common passage etc. from one Sh.
Ramesh Chand, S/o Late Sh. Nathi vide a registered sale deed dated 18.05.2012 registered on 23.05.2012 and obtained the vacant and physical possession of the suit property at the same time.
2.2). The vendor Sh. Ramesh Chand was residing with his family at the ground floor of the same building in which the suit property was located. In the month of July 2012, the plaintiff was approached by the seller Sh. Ramesh Chand to induct tenants in the suit property assuring him that the tenants would vacate the suit property as and when desired. On the assurance of the said Sh. Ramesh Chand, the plaintiff inducted the tenants in the suit property with effect from August 2012 who also started paying rent to him and promised to vacate the property within two to three years. Sh. Ramesh Chand expired on July 2014.
2.3). The tenants vacated the suit property on 31st of January 2016. On 01.02.2016, the defendant broke open the locks of the suit property and also removed the furniture and beddings belonging to the plaintiff and put her own locks on the suit MAMA VS. KAVITA CS DJ 8553/2016 -3- property and since then is in unauthorized and illegal possession of the same. The defendant threatened the plaintiff that she will not remove her locks from the suit property until the plaintiff pays her Rs. 5 lakhs. The Plaintiff also called the PCR. When the PCR reached the property, the police advised them to go to the police station. Thereafter the plaintiff tried to get the FIR registered against the defendant. However the police did not support him and advised the plaintiff and defendant to settle the matter and even threatened them that if they do not settle the matter, both the parties would be arrested, due to which the plaintiff signed certain documents in the police station.
2.4). The plaintiff on 4th February 2016 and also on 5th February 2016, requested the defendant to vacate the suit property and hand over the vacant peaceful possession of the same to him. However on both the occasions the defendant refused to vacate the same and demanded Rs.5 lakhs from the plaintiff and even threatened him to sell the suit property by making forged documents.
2.5). The defendant is in possession of the suit property illegally and without any right, title or interest and is a trespasser in the suit property.
2.6). Hence the plaintiff has filed the present suit for recovery of possession of the suit property along with damages and mesne profits @ Rs. 9000 per month along with interest at the rate of 18% per annum, from the date of filing of the suit till the handing over of the vacant possession of the suit property alleging MAMA VS. KAVITA CS DJ 8553/2016 -4- that the same is the rent prevailing in the market.
3. Written Statement of the defendant :
The defendant filed her WS denying the avertments in the plaint and stating as under :
3.1). The plaintiff is neither the owner nor in possession of the suit property. The plaintiff has no right, title or interest in the suit property as the same is a joint family property and the husband of the defendant had no right to sell the same without the permission of the co-sharers. It is averred that the husband of the defendant was a drunkard and the plaintiff obtained the sale deed in a fraudulent manner by taking advantage of the said fact and her close relations with him. It is averred that the plaintiff never paid even a single penny for purchase of the suit property.
3.2). It is averred that the plaintiff was not given the possession of the suit property and is not in possession of the same. It is stated that the possession of the property is with the defendant only.
3.3). It is averred that the plaintiff never inducted any tenant in the suit property and the suit property was being used by the defendant for her residential purposes and the plaintiff was never in possession of the suit property. It is stated that the defendant has been paying the electricity and water charges of the suit property till the date of filing of the suit, however the plaintiff has in connivance with the electricity department got the electricity connection transferred in her name without obtaining the no objection from the defendant.
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4. Replication of the plaintiff :
4.1). The plaintiff filed her replication denying the averments in the WS and reiterating the contents of the plaint. It is stated that the sale deed with respect to the suit property was duly executed and registered and the sale consideration was paid. It is stated that no fraudulent means were practised on the husband of the defendant to obtain the sale deed and the sale deed was executed in a lawful manner. Further admitting the possession of the defendant of the suit property it has been stated that the same is illegal possession as stated in the plaint itself.
5. I ssues :
On the basis of pleadings and documents on record, following issues were framed by Ld. Predecessor of this Court vide order dt 17.09.2016:-
(i) Whether the plaintiff is entitled to a decree of possession against the defendant directing the defendant to remove her locks and hand over vacant physical possession of the entire third floor of property bearing no. 109C admeasuring 30.73 sq. yards (part of property no. 109 khasra no. 732, Kevat no. 5, Khatta no. 42 Village Kilokari, New Delhi)? OPP
(ii) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from alienating or parting with possession or creating in any manner whatsoever third party interest in property described as bearing no. 109C admeasuring 30.73 square yards (part of property no. 109, Khasra no. 732, Kevat no. 5, Khatta no. 42 Village Kolokari, New Delhi) ? OPP
(iii) Whether the plaintiff is entitled to recover mesne MAMA VS. KAVITA CS DJ 8553/2016 -6- profits from the defendant @ Rs. 9,000/- or at any other rate along with interest @ 18% or at any other rate from the date of filing of the suit till the handing over of the vacant physical possession of the property described as bearing no. 109C admeasuring 30.73 square yards (part of property no. 109 Khasra no. 732, Kevat no. 5, Khatta no. 42, Village Kilokari, New Delhi)? OPP
(iv) Whether the suit for recovery of possession, permanent injunction and mesne profits is filed against the defendant is filed without any cause of action ? OPD
(v) Relief
6. Plaintiff Evidence Plaintiff in support of her case examined herself as PW-1.
She tendered her evidence by way of affidavit EX.PW1/1 and relied upon the following documents:
1. Sale deed dated 18.05.2012 Ex. PW1/1(OSR).
2. Original Electricity bills Ex. PW1/2 (colly.).
3. Rent Agreement dated 26.09.2015 Ex. PW1/3 (OSR).
Vide order dated 12.09.2018 plaintiff evidence was closed on statement made by the plaintiff in this regard.
7. Defendant Evidence 7.1. The defendant in support of her case examined herself as DW-1. She tendered her evidence by way of affidavit Ex. DW1/1.
7.2. Defendant also examined Sh. Chandrakesh (her father) as DW-2 who tendered his evidence by way of affidavit Ex. DW2/1.
Vide order dated 04.07.2019, defendant evidence was closed on statement made by Ld. Counsel for defendant in this regard.
Thereafter, the matter was posted for final arguments.
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8. Arguments of Ld. Counsel for the plaintiff - Sh. Shalabh Gupta 8.1). It is argued by the Ld. Counsel for the plaintiff that the plaintiff is the owner of the suit property by purchase vide registered sale deed dated 18th of May 2012 exhibit PW1/1 and also came into the possession of the suit property on the same date on which the sale deed was executed. It is argued that the plaintiff continued in the possession of the suit property till 01.02.2016 i.e. the date on which the defendant illegally took the possession of the suit property by breaking open the locks of the suit property and putting her own locks thereupon. It is argued that the plaintiff has proved his possession of the suit property by way of exhibit PW1/2 which is the electricity bill of the suit property showing the electricity connection in the name of the plaintiff.
8.2). The Ld. Counsel argued that a registered document has a presumption attached with it that the transaction that it records is a genuine one. In support of his contention the Ld. counsel has placed reliance upon the judgement of the Hon'ble Supreme Court in Vimal Chand Ghevar Chand Jain and Ors. versus Ramakant Eknath Jajju, Civil Appeal no. 1784/2009 decided on 23.03.2009 and the judgement passed by the Hon'ble High Court of Delhi in Aas Mohammed vs Sabiha Akhtar RSA 45/2019 decided on 15.07.2019.
8.3). It is further argued that the plaintiff appearing as MAMA VS. KAVITA CS DJ 8553/2016 -8- PW1 supported her case in her testimony and stood firm in the cross examination and her testimony stood unshaken.
8.4). Ld. counsel also argued that the defendant has not led any evidence in support of her case. It is argued that the defendant has alleged that no sale consideration was paid by the plaintiff for purchase of the suit property however the said fact of payment of sale consideration is recorded in the sale deed itself which is a registered document and therefore the same cannot be disputed. It is further submitted that the relations of the defendant with his husband since 2012 were such that she was not aware of the acts of her husband and the transactions done by him. It is submitted that in the cross examination it has come out that she was not even aware of the salary of her husband. The counsel argues that the defendant in her cross examination has stated that she came to know about the sale of the suit property in the year 2018 and therefore, it is clear that she was not even aware of the fact of sale then how can she be aware whether the consideration was paid or not.
8.5). The counsel further argued that the defendant has alleged in her defence that the electricity connection was in the name of her husband but has failed to prove the same by placing any such document on record. It is submitted that contradictory pleas have been taken by the defendant in her written statement wherein she has stated that she was paying the electricity bill till the date of the filing of the suit and to the contrary pleaded that the plaintiff has got the electricity meter transferred in her name MAMA VS. KAVITA CS DJ 8553/2016 -9- fraudulently. He argues that if the electricity meter was got transferred in the name of the plaintiff then how is it possible that the defendant was paying the electricity bills and further she has not proved the said contention.
8.6). The counsel argued that though it has been alleged by the defendant that she filed the police complaint about the sale of the third floor that is the suit property however she has not placed any record of complaint on record.
8.7). It is further submitted that the defendant in this suit has taken a defence that the plaintiff is not the owner because the sale deed was not a valid sale deed and was obtained by fraudulent means and undue influence however the defendant have admitted in her cross examination that till date she has not filed any suit for the declaration of the sale deed being null and void. Therefore the plaintiff being the registered owner is entitled to the possession of the suit property as the defendant has failed to show any right to possession of the same as against the plaintiff.
8.8). The counsel argued that the defendant examined DW2 i.e. her father as a witness however the testimony of the said witness cannot be looked into as the same is a hearsay evidence. It is argued that the said witness has testified only on the basis of the information given to him by his daughter i.e. the defendant and he has stated so in his cross examination.
8.9). The counsel argues that the evidence of the defendants witnesses are contradictory to each other and therefore cannot be relied upon. It is submitted that DW2 stated in his cross-
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examination that he came to know about the execution of the sale deed in the year 2016 through his daughter, whereas, it was stated by DW1 i.e. the defendant that she came to know about the execution of the sale deed in the year 2018. It is submitted that DW2 has stated in his evidence that no police complaint was filed by him or by his daughter whereas DW1 has stated that she had filed a police complaint. It is submitted that DW2 also stated that he cannot say anything if any sale consideration was paid in respect of the sale of the suit property.
8.10). The Ld. Counsel further argues that even if the contention of the defendant, that no sale consideration was paid, is presumed to be true, still the plaintiff is entitled to the possession of the suit property being a registered owner and the only remedy with the defendant is to file a suit for recovery. It is argued that non-payment of sale consideration does not mean that transfer of title will not take place. In support of his contention, Ld. Counsel has placed reliance upon the judgment in Man Mohan Batra Vs. Bharat Bhushan Batra & Ors. RFA No. 865/2003 of Hon'ble High Court of Delhi decided on 08.05.2012 .
8.11). The Ld. Counsel further argues that the defendant has neither filed the suit for recovery nor for declaration of sale deed as null and void and thus she is not entitled to retain the possession of the suit property. In support of his contention, Ld. Counsel has placed reliance upon the judgment in Ranganayakamma & Ors. vs. K.S. Prakash (D) by LRs. & Ors. of Hon'ble supreme Court of India in Civil Appeal No. MAMA VS. KAVITA CS DJ 8553/2016
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3635 of 2008 decided on 16.05.2008.
9. Arguments of Ld. Counsel for Defendant - Shri Pradeep Kar 9.1). It is argued by Ld. Counsel for defendant that the sale deed in question does not transfer any title to the plaintiff as the same is obtained by exercising undue influence upon the husband of the defendant as he was the driver of the plaintiff and was a drunkard. It is argued that both these facts have been admitted by the plaintiff / PW1 in her cross-examination dated 06.01.2018. It is further argued that as per section 16 r/w section 19A of The Indian Contract Act 1872, a contract executed under undue influence is voidable and no presumption of genuineness of registered sale deed can be raised if section 16 is found to be applicable. The counsel has relied upon the cross-examination of DW1 dated 04.07.2019 to state the defendant has proved that the sale deed was got executed by exercising undue influence. Ld. Counsel submits that defendant has stated in her cross- examination that her husband used to always say that plaintiff would throw him out of job if he would not sell the property to her.
9.2). It is further argued that further no sale consideration has passed in lieu of transfer of title and therefore the sale deed is also void as per section 25 of the The Indian Contract Act 1872. The Ld. Counsel argues that a specific question was put to the plaintiff/PW1 in her cross-examination dated 12.09.2018 as to MAMA VS. KAVITA CS DJ 8553/2016
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whether she has shown the suit property as asset in her IT Return and whether she has got the property mutated in her name in the MCD records. However, the witness pleaded ignorance as to the same. It is further argued that the plaintiff also did not file her IT Returns despite a specific question being asked. The counsel also argues that the plaintiff has maintained a conspicuous silence as to the date of payment of sale consideration and also there is no witness to the payment of the same. The counsel argues that the plaintiff has not produced any documents to show the payment of sale consideration.
9.3). It is further argued that merely because it has been admitted in cross-examination that defendant was not aware of the amount of salary of her husband, the same does not lead to a conclusion that the defendant was not having any knowledge about payment/non-payment of consideration.
9.4). It is further argued that the case of the plaintiff does not inspire confidence as no details of the tenancy have been disclosed in the plaint and when specific questions were put to PW1 in the cross-examination dated 06.01.2018, the witness merely stated that she does not remember. It is further argued that it is hard to believe that a person would not remember the details of a tenant who has occupied the property for a long period of more than 3 years.
9.5). It is further argued that to show his possession the plaintiff has merely provided two electricity bills of the year 2015 in her name whereas she claims to have purchased the property in MAMA VS. KAVITA CS DJ 8553/2016
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2012.
9.6). It is further argued that plaintiff has not come to the court with clean hands as she has deliberately filed the present suit in 2016 after the demise of the husband of the defendant.
9.7). It is submitted that judgments relied upon by the Ld. Counsel for plaintiff are not applicable to the facts of the case as the judgments in Vimal Chand Ghevar Chand Jain and Ors. (supra) the defendant did not enter the witness box whereas in the present case the defendant has contested the entire matter. It is submitted that even the judgment in Aas Mohammed vs Sabiha Akhtar (supra) supports the case of the defendant as it was held that if section 16 of The Indian Contract Act is applicable, no presumption of genuineness can be attached to a registered documents.
10. Issue wise findings:
Issue no. (i): Whether the plaintiff is entitled to a decree of possession against the defendant directing the defendant to remove her locks and hand over vacant physical possession of the entire third floor of property bearing no. 109C admeasuring 30.73 sq. yards (part of property no. 109 khasra no. 732, Kevat no. 5, Khatta no. 42 Village Kilokari, New Delhi)? OPP Issue no. (ii) :Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from alienating or parting with possession or creating in any manner whatsoever third party interest in property described as bearing no. 109C admeasuring 30.73 square yards (part of property no. 109, Khasra no. 732, Kevat no. 5, Khatta no. 42 Village Kilokari, New Delhi) ? OPP MAMA VS. KAVITA CS DJ 8553/2016
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Issue no. (iv): Whether the suit for recovery of possession, permanent injunction and mesne profits is filed against the defendant is filed without any cause of action ? OPD Since all the above issues are interconnected and the same can be decided by a common discussion, the same are dealt with together hereunder:-
10.1). The plaintiff has filed the present suit for possession on the basis of title of ownership claiming herself to be the owner of the suit property vide a registered sale deed dated 18.05.2012 which was registered on 23.05.2012 in the office of Sub Registrar-V, New Delhi Ex.PW1/1 (OSR).
Since the sale deed Ex.PW1/1 is a registered document, the transaction of sale is to be presumed to be a genuine one and even otherwise, the defendant has not disputed the factum of execution and registration of the said sale deed. Also it is to be presumed as per section 119(e) of BSA 2023 that all the official acts were regularly performed.
The sale deed stipulated that the sale consideration is fixed at Rs.4,80,000/-. The payment of the same in cash and acknowledgment of receipt of the same has been clearly stated in the said sale deed. It is no where stated in Ex.PW1/1 that the payment of the sale consideration was a condition precedent to the transfer of the title rather the sale deed stipulates that the title has been transferred to the vendee who has become the owner of the property. It also stipulates the handing over of the possession of MAMA VS. KAVITA CS DJ 8553/2016
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the property and the documents to the vendee.
The sale deed has been signed by the vendor and the vendee and the signatures of 2 witnesses have also been taken namely Sh. Sunil Kumar and Sh. Bhagat Ram. It has been certified by the Registrar that parties have been identified by two witnesses (above named) and the thumb impression of the executants have been taken in his presence and the vendor has admitted the receipt of consideration.
The presence of the parties as well as witnesses before the Registrar is also further confirmed by their photographs, on the certificate of registration, taken at the time of registration.
Thus a presumption is raised as to the valid execution of the sale deed and of the happening of the act recorded therein and the plaintiff has discharged his burden of proof u/s 104 of BSA 2023 to prove her title/ ownership of suit property. For the sake of repetition, it is mentioned here that the defendant has not denied the execution or registration of the sale deed.
10.2). It is a settled law that if a person disputes a genuineness of a registered document, the burden to prove the facts to displace the presumption lies upon him. Also once the plaintiff has discharged his burden of proof u/s 104 of BSA 2023, the onus of proof shifted upon the defendant to prove her defence.
10.3). The defence of the defendant is that the sale deed does not transfer ownership to the plaintiff as -
(i) the same has been obtained by undue influence,
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(ii) suit property was a joint Hindu Family Property, and
(iii) no sale consideration has passed.
However, the defendant has not led any evidence to prove her contentions. This court shall deal with each of the contention of the defendant separately as follows -
(i) Whether the sale deed has been obtained by undue influence - it is the case of the defendant that her husband was a drunkard and also he was under the undue influence of the plaintiff as he was working as a driver for her. Both the facts as to his drinking habits and his employment as driver are admitted by the plaintiff. However, merely this admission is not sufficient to show that the contract was obtained by undue influence. It has not been shown/proved that the signatures of Sh. Ramesh Chand were obtained at a time when Sh. Ramesh Chand was drunk or excessively drunk so as not to understand the nature of the transaction. It is also not the case of the defendant that due to his drinking habits the medical condition of Ramesh Chand had become so worse that he was not capable of understanding nature of documents being executed by him. It cannot be said that a person having excessive drinking habits could not have executed any document of his own free will or was not capable to execute the same.
Further even if it presumed that Sh. Ramesh Chand had executed documents under the influence of alcohol, yet it cannot be lost sight of that Sh. Ramesh Chand had on a subsequent date even appeared before the Registrar for the purpose of registration MAMA VS. KAVITA CS DJ 8553/2016
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and it has been clearly stated in the sale deed that he is executing the same in sound condition and his free will.
Thus the defendant has failed to prove that the sale deed was executed by Sh. Ramesh Chand under the influence of alcohol and that the same is invalid merely because of this reason.
As to the contention of undue influence due to his being a driver of plaintiff is concerned, the same also remains unproved. No circumstances have been pointed out by the defendant to show that how plaintiff was using her position to exercise influence over him. It has been merely stated in cross-examination dated 04.07.2019 that Ramesh Chand used to tell the defendant in his inebriated condition that he will be thrown out of his job if he does not transfer the property. The said statement of defendant does not come to her rescue as firstly, admittedly the statement was made in an inebriated condition, secondly, because it is not believable that a person would transfer his property without receiving any money merely because of his fear of being thrown out of job and thirdly it has been admitted by the defendant in her cross-examination that since 2012 there was marital discard between her and Ramesh Chand and he used to hide things from her and he did not tell her about the sale of the suit property and she came to know in 2018. Further it is also beyond human behavior that a wife, who has a knowledge of pressure being exerted upon her husband by someone to sell the suit property, would not be alert and cautious enough to ensure that no such transaction happens. Also the defendant has not given a truthful MAMA VS. KAVITA CS DJ 8553/2016
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testimony as she states that she came to know of the sale deed in the year 2018 whereas the suit itself was filed in 2016 on the basis of the sale deed.
(ii) Whether the suit property was HUF property - The contention of the defendant that the property was a HUF property and could not have been sold by Ramesh Chand, has no legs to stand as it has been admitted by the defendant in her cross- examination dated 04.07.2019 that Sh. Ramesh Chand was the only legal heir of Sh. Nathi and he had no siblings at the time of sale. Further, it has also been mentioned in the sale deed that Sh. Ramesh Chand is sole and exclusive owner of suit property after death of Sh. Nathi (his father) and the property is not HUF property. Even no evidence has been led by the defendant to prove her contention.
(iii) Whether no sale consideration was paid by the plaintiff - It has been admitted by defendant no.1 in her cross- examination dated 06.04.2019 that after some time of marriage, dispute arose with her husband in the year 2012-13 and he used to hide things from her. From a reading of her testimony, it is clear that the defendant was not aware about the basic things like salary of her husband and even the mode of payment of the same and therefore, it is not essential that she would have been aware of the payment of the sale consideration as well. It has been stated by the defendant in her cross-examination that she was not aware of the execution of sale deed, then, how can she be aware of the payment or non-payment of sale consideration. There are no MAMA VS. KAVITA CS DJ 8553/2016
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circumstances disclosed in the written statement to show grounds of her belief that sale consideration was not paid. The factum of receipt of sale consideration has been clearly mentioned in the registered sale deed, which has been witnessed by two witnesses. No evidence has been led by defendant to displace the presumption that sale consideration was paid or to independently show by leading evidence that no consideration was paid. The burden to prove her contention was on the defendant which she has failed to discharge.
Further even if it is presumed that the sale consideration was not paid, the contention of Ld. Counsel for plaintiff has force and merit that in such a case the only remedy with the defendant is to file suit for recovery. In this regard, the relevant part of the judgment in Man Mohan Batra Vs. Bharat Bhushan Batra & Ors. is reproduced hereunder:-
" 9. xxxxx
(d). If the case of the appellant/plaintiff is that the documents are void on account of lack of consideration, then, in law under Section 55(4) (b) of the Transfer of Property Act, 1882 the remedy by the buyer, who has not received consideration is not for cancellation of the transfer documents but only for seeking payment of the balance sale consideration. The Supreme Court in the case of Kaliaperumal Vs. Rajagopal & Anr. AIR 2009 SC 2122 has held that unless and until the passing of consideration is a sine qua non to transfer of title and it is so pleaded, merely because consideration does not pass, cannot mean that the transfer of title will not take place. Where the payment of consideration is not a pre-
condition to the transfer of title, the seller can only ask for payment of the sale consideration or balance sale consideration in terms of Section 55(4) (b) of the Transfer of Property Act, 1882. The relevant MAMA VS. KAVITA CS DJ 8553/2016
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observations of the Supreme Court are contained in para 8 of this judgment and which reads as under:-
******* In the present case, it is not the case of the appellant/plaintiff that the passing of the sale consideration was a condition precedent and therefore, the documents dated 26.5.1995 must fall. It is only pleaded that the documents must fall because the consideration has not passed, and therefore, it is not a case of the appellant/plaintiff that payment of consideration is a pre-condition sine qua non for transfer of title of property and payment of consideration as a pre condition for transfer is also not so mentioned in the documents. Therefore, in my opinion, at best, the appellant/plaintiff could have sued to receive the consideration payable under the documents dated 26.5.1995".
Thus from the above discussion, it is clear that the defendant has failed to discharge her burden to prove her contentions and the plaintiff has duly discharged her burden u/s 104 of BSA, 2023. It is a settled law that a person in possession of an immovable property is entitled to retain the same except the lawful and true owner of the property. Since the plaintiff has established her ownership of suit property and the defendant has failed to show any right to possess the same, the plaintiff is entitled to the possession of the suit property.
10.4). It is also important to mention that the plaintiff has also proved by Ex.PW1/2 that the electricity meter was installed in her name and she was paying the electricity bills, however, no evidence has been led by the defendant to show that she was paying the same and the meter was in name of Ramesh MAMA VS. KAVITA CS DJ 8553/2016
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Chand. Since the plaintiff was paying the bills, it can be concluded that defendant was aware of the same and yet she never objected though she claims in her cross-examination that she was residing in the suit property since the date of her marriage.
10.5). It also deserves to be mentioned here that till date the defendant has neither filed any suit for declaration of the sale deed as null and void nor for recovery of the amount of the sale consideration and has even miserably failed to lead any evidence to show any right to possess the suit property. Thus the sale deed remains operative and valid.
10.6). Nothing material has evolved in the testimony of DW2 and same is merely hearsay evidence and is of no support to the case of the defendant.
10.7). Before parting with these issues, this court deems it important to mention that the story of the plaintiff regarding renting out the suit premises does not inspire confidence and the plaintiff has also not proved the same. The plaintiff has not mentioned any details of the tenant and rent paid and even in the cross-examination dated 06.01.2018, it has been stated that she does not remember the details. However, in the considered opinion of this court, the same does not come to rescue of defendant as it has already been stated above that plaintiff has proved his ownership of the suit property and by this mere fact is entitled to possession of the same.
10.8). For the reasons and discussions above, issue no.(i), (ii) & (iv) are decided in favour of plaintiff and against the MAMA VS. KAVITA CS DJ 8553/2016
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defendant.
Issue No.(iii): Whether the plaintiff is entitled to recover mesne profits from the defendant @ Rs. 9,000/- or at any other rate along with interest @ 18% or at any other rate from the date of filing of the suit till the handing over of the vacant physical possession of the property described as bearing no. 109C admeasuring 30.73 square yards (part of property no. 109 Khasra no. 732, Kevat no. 5, Khatta no. 42, Village Kilokari, New Delhi)? OPP 10.9). In the prayer clause (c) of the plaint, the plaintiff has claimed mesne profits from the date of filing of the suit till handing over of the vacant possession of the suit property @ Rs.9,000/- per month with interest @ 18% per annum.
10.10). The plaintiff has relied upon Ex.PW1/3 i.e. the rent agreement dated 26.09.2015 with respect to 3 rd floor of property bearing no. 104 Khilokri, New Delhi, to claim the mesne profits @ Rs.9,000/- per month. In the cross-examination dated 04.07.2019 DW1 has stated that the rent of the property should be around Rs.3000 to 4000/- per month. The rent agreement Ex.PW1/3 is of the same property which is mentioned as residential address of the plaintiff and no evidence has been led to prove the same except the rent deed itself and the same does not inspire confidence of this court. However, in view of the testimony of DW1 and considering the market trends, the plaintiff is held entitled to recover Rs.5,000/- per month from the date of the filing of the suit with an increase of 10% in each succeeding year till the date of handing over of possession.
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10.11). The plaintiff has claimed interest @18% per
annum, however, the plaintiff has not led any evidence to show as to how he is entitled to such an exorbitant rate of interest. Thus, in view of the law settled by Hon'ble Supreme Court of India in The Central Bank of India Vs. Ravindra & Ors. Decided on 18.10.2001 and in view of the provisions of Section 34 CPC, the plaintiff is held entitled to interest @ 7.5% per annum from the date of filing of the suit till realization.
The issue is accordingly decided in favour of the plaintiff and against the defendant.
10.12). RELIEF :
The plaintiff is held entitled to recover the possession of the suit property from the defendant and the defendant is directed to hand over the same to the plaintiff within 2 weeks. The defendant is also restrained from creating any third party rights in the suit property in any manner whatsoever. Further the plaintiff is held entitled to recover mesne profits @ Rs.5,000/- per month from the date of the filing of the suit with an increase of 10% in each succeeding year till the date of handing over of possession.
The suit is accordingly decreed. Costs of the suit is also awarded in favour of the plaintiff.
Perusal of the record shows that an application u/o. 39 Rule 1 and 2 CPC is also pending on record, however, since the suit has now been decreed, the same has become infructuous and is disposed off accordingly.
MAMA VS. KAVITA CS DJ 8553/2016
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Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in open Court GUNJAN by
Digitally signed
GUNJAN
GUPTA
GUPTA Date: 2024.12.23
On 21.12.2024 17:24:57 +0530
(GUNJAN GUPTA)
District Judge-04
South-East, Saket Courts,
New Delhi
MAMA VS. KAVITA CS DJ 8553/2016