Delhi District Court
Smt. Jasvinder Kaur vs Sh. Sunil Bhatia on 16 March, 2020
IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
SOUTH WEST, DWARKA COURTS, NEW DELHI
IN THE MATTERS OF:
Civil Suit No. 296/17
Smt. Jasvinder Kaur
W/o S. Harvinder Pal Singh Chhatwal
R/o G7, Vikaspuri,
New Delhi 110018.
.......... Plaintiff
versus
1. Sh. Sunil Bhatia
S/o late Sh. B.L. Bhatia
R/o H472, First Floor, Vikaspuri,
New Delhi 110018.
Also at :
M/s Bhatia Properties
JGIII/4A, Shop at Ground Floor,
Vikaspuri, New Delhi 110018.
2. Smt. Vijay Rani
W/o Sh. Ashok Kumar
R/o JGIII/4A, First Floor,
Vikaspuri, New Delhi 110018.
Also at :
M/s Riwaz Designer and Boutique,
JGIII/4A, Shop at Ground Floor,
Vikaspuri, New Delhi 110018.
.......... Defendants
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
&
CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 1/ 110
SUIT FOR RECOVERY OF POSSESSION OF IMMOVABLE
PROPERTY ALONGWITH RENT AND MESNE PROFITS
Date of institution : 22.03.2017
Date of hearing final arguments : 19.02.2020
Date of pronouncement of judgment: 16.03.2020
And
Civil Suit No: 951/2017
1. Sh. Sunil Bhatia
S/o late Sh. B.L. Bhatia.
R/o G89, 3rd Floor,
Vikaspuri, New Delhi 110018.
2. Smt. Vijay Rani
W/o Sh. Ashok Kumar
R/o JGIII/4A, First Floor,
Vikaspuri, New Delhi 110018..
Also at :
M/s Riwaz Designer and Boutique
JGIII/4A, Shop at Ground Floor,
Vikaspuri, New Delhi.
.......... Plaintiffs
versus
1. S. Harvinder Pal Singh Chhatwal
S/o Sh. Narender Singh
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
&
CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 2/ 110
2. Smt. Jasvinder Kaur
W/o S. Harvinder Pal Singh Chhatwal
Both R/o G7, Vikaspuri,
New Delhi 110018.
.......... Defendants
SUIT FOR DECLARATION, CANCELLATION AND
PERMANENT INJUNCTION
Date of institution : 21.09.2017
Date when judgment reserved : 19.02.2020
Date of Judgment : 16.03.2020
COMMON JUDGMENT: In Civil Suit No. 296/17 and 951/2017
1. Vide this common judgment, I shall decide both the above suits as the parties and property in question i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket - JGIII, Ground Floor situated at Vikaspuri, New Delhi (except one room on back side measuring 9.21/2' x 9.7') (hereinafter referred to as "suit property") are the same. Moreover, the documents which are being sought by plaintiffs Sh. Sunil Bhatia and Smt.Vijay Rani (in suit No. 951/2017) to be cancelled being fraudulently got executed from them are the same documents on the basis of which CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 3/ 110 plaintiff Smt. Jasvinder Kaur (in suit No. 296/17) is seeking recovery of possession of the suit property.
2. First the suit bearing No. 296/17 titled as "Jasvinder Kaur vs. Sunil Bhatia & Anr." (hereinafter referred to as "suit for possession & damages") has been instituted by Smt. Jasvinder Kaur against Sh. Sunil Bhatia and Smt. Vijay Rani seeking decree of possession of the suit property and mesne profits. Thereafter, another suit No. 951/17, titled as "Sunil Bhatia & Anr. vs. Harvinder Pal Singh Chhatwal & Anr" (hereinafter referred to as "suit for declaration and injunction") has been instituted by Sh. Sunil Bhatia and Smt. Vijay Rani against S. Harvinder Pal Singh Chhatwal and Smt. Jasvinder Kaur seeking decree of declaration thereby declaring the plaintiff no. 1 (Sh. Sunil Bhatia) as owner of the suit property and cancellation of documents which were illegally got executed by defendant no. 2 (Smt. Jasvinder Kaur) from the plaintiff no. 1 (Sh.Sunil Bhatia).
3. The parties, for the sake of convenience, are being referred hereinafter according to their litigation status and ranking in 'suit for CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 4/ 110 possession and damages") instituted by Smt. Jasvinder Kaur against Sh.Sunil Bhatia and Smt.Vijay Rani. As such, Smt. Jasvinder Kaur hereinafter shall be referred to as "plaintiff" and Sh. Sunil Bhatia and Smt. Vijay Rani shall be referred to as "defendant no. 1" and "defendant no. 2" respectively.
Case of plaintiff Smt. Jasvinder Kaur in 'suit for possession and mesne profits' and as defendant no. 2 alongwith her husband who is defendant no. 1 in 'suit for declaration and injunction'
4. The case of plaintiff Smt. Jasvinder Kaur as set out in the plaint in 'suit for possession and mesne profits' and as a defendant no. 2 in the written statement in 'suit for declaration and injunction' may be summarized as under: 4.1. Plaintiff (Smt. Jasvinder Kaur) purchased the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi - 110018 from defendant no. 1 (Sh. Sunil Bhatia) for a sum of Rs.13,20,000/ vide sale documents dated 08.09.2015 viz. Registered General Power of Attorney and a registered Agreement to Sell, both executed on 08.09.2015 and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 5/ 110 registered on 21.09.2015 alongwith Special Power of Attorney, Affidavit, Receipt, Possession Letter and Will, all executed on 08.09.2015 by defendant no. 1 (Sh. Sunil Bhatia) in favour of plaintiff (Smt. Jasvinder Kaur). In this way, the plaintiff became the lawful owner of the suit property. At the time of selling the above said property, the defendant no. 1 (Sh. Sunil Bhatia) was carrying on his business of sale/purchase of properties in the name of M/s Bhatia Properties in one shop of the said property and similarly defendant no. 2 (Smt.Vijay Rani) who is real sister of defendant no. 1 was also carrying on her shop of boutique under the name and style of M/s Riwaz Designer and Boutique in another shop of the said property.
4.2. After selling the above said property, the defendants no. 1 and 2 did not have any place to carry on their respective business, hence after about one week of selling the above said property, both the defendants requested the plaintiff to give said property on rent to them on monthly rent of Rs. 25,000/ to which the plaintiff agreed. The plaintiff retained one room on backside measuring 9.21/2' x9.7' in the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 6/ 110 said property with her and rest of the property was given to the defendants on a monthly rent of Rs.25,000/ vide a registered lease deed executed and registered on 30.09.2015 under which the tenancy commenced from 01.10.2015 to 31.08.2016.
4.3. The defendants have not paid the accrued rent @ Rs.25,000/ per month to the plaintiff from 01.11.2015. The defendants time and again assured the plaintiff to pay the entire accrued rent with interest shortly and they made the plaintiff to renew their tenancy in respect of suit property for another 11 months w.e.f. 01.09.2016 to 31.07.2017 by way of another registered rent agreement executed and registered on 22.08.2016.
4.4. Inspite of bald assurances to pay the accrued rent with interest, the defendants have failed to pay the monthly rent w.e.f. 01.11.2015 and they are in arrears of rent since 01.11.2015. The plaintiff requested the defendants many times to vacate and hand over the suit property to her and also to pay the accrued rent with interest but the defendants avoided to do so on one pretext or the other and thereafter CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 7/ 110 on 10.01.2017 refused to vacate the suit property and also to pay the accrued rent with interest to the plaintiff.
4.5. The plaintiff was left with no option but to issue a legal notice dated 16.01.2017 thereby terminating the tenancy of both the defendants and calling upon them to vacate and hand over the possession of the suit property and to pay the entire arrears of rent w.e.f. 01.11.2015 but the defendants did not comply the said legal notice despite due service. Hence, the present suit.
4.6. The plaintiff prayed for (i) a decree of possession of the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi (except one room on back side measuring 9.21/2' x9.7') in her favour and against the defendants; (ii) a decree of Rs.4,00,000/ against the defendants as rent/mesne profits from 01.11.2015 to 28.02.2017; and a decree of mesne profits @ Rs.25,000/ per month w.e.f. 01.03.2017 till handing over the possession of the suit property alongwith interest @ 18% per annum and cost of the suit.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 8/ 110
5. It is pertinent to note here that on the aforesaid lines, plaintiff Smt. Jasvinder Kaur and her husband S. Harvinder Pal Singh Chhatwal as defendants have filed their written statement in 'suit for declaration and injunction instituted by Sh. Sunil Bhatia and Smt. Vijay Rani and prayed for dismissal of the said suit.
Case of defendants Sh. Sunil Bhatia and Smt. Vijay Rani in their written statement filed in 'suit for possession and mesne profits' and as plaintiffs in 'suit for declaration and injunction'
6. Defendants Sh. Sunil Bhatia and Smt. Vijay Rani have filed joint written statement in 'suit for possession and mesne profits' contending that : 6.1. There is no relationship of landlord and tenant between the plaintiff and the defendants and the plaintiff has no concern or any right, title or interest in the suit property in any manner. 6.2. Defendant no. 1 (Sh. Sunil Bhatia) had mortgaged the suit property with the husband of plaintiff when he was in dire need of money and he in good faith and to the satisfaction of plaintiff's husband had also executed the transfer documents of the said property in the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 9/ 110 name of the plaintiff (Smt. Jasvinder Kaur) and told her that after transferring the documents in her favour, she would get the suit property freehold within three months and thereafter he (defendant no. 1) shall take a loan on the said property and shall return the loan taken from the plaintiff, however the plaintiff did not get the suit property freehold. 6.3. A Memorandum of Understanding (MoU) was also executed between defendant no. 1 (Sh. Sunil Bhatia) and plaintiff (Smt. Jasvinder Kaur) on 21.09.2015 which was duly signed by plaintiff, defendant no. 1 and husband of plaintiff wherein it is mentioned that Rs. 25,000/ shall be paid after three months by the first party i.e. the defendant no. 1, however the plaintiff is now trying to show the said amount as a rent. 6.4. Defendant no. 1 has also executed a formal rent agreement in good faith showing himself to be tenant of the plaintiff in the said premises and now the plaintiff with a sole motive and malafide intention to grab the property of defendant no. 1 is trying to misuse those documents executed by defendant no. 1 at the time of taking financial help from the plaintiff. The plaintiff has also sent a legal notice on false CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 10/ 110 and frivolous averments which was duly replied by the defendants vide their reply dated 01.03.2017, but the plaintiff intentionally did not file copy of said reply alongwith the present suit.
6.5. The legal notice sent by the plaintiff is dated 16.01.2017 but the defendants sent their reply on 01.03.2017 because after receiving the said legal notice the defendant no. 1 approached the husband of the plaintiff with whom he was having business terms since 2010 and asked as to why he had sent the legal notice upon which the husband of the plaintiff told the defendant no. 1 that there is nothing to worry about anything as his wife was taking the information regarding the money invested by him and assured that they would not take any legal action against the defendants.
6.6. Thereafter, husband of the plaintiff approached the defendants and asked the defendant no. 1 to return his entire money with interest @ 3% per month on which he would return the entire original documents of the defendant's property.
6.7. The defendant no. 1 has received a loan of Rs. 25,00,000/ CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 11/ 110 which was payable with interest @ 1% per month and at that time husband of plaintiff assured the defendant no. 1 to get his property i.e. suit property freehold from leasehold within three months and asked the defendant no. 1 to return the loan amount after taking loan on the suit property from some bank and till that time to pay Rs. 25,000/ as monthly interest on the loan amount. However, the husband of the plaintiff failed to get the suit property freehold from the leasehold as agreed by him and he pressurized the defendant no. 1 to execute a registered lease deed in favour of the plaintiff. 6.8. The plaintiff paid an amount of Rs. 13,20,000/ vide cheque No. 000135 dated 08.09.2015 of Andhra Bank and she further issued a cheque of Rs.5,80,000/ of her husband's account, however she put the signature on the said cheque herself and when defendant no. 1 approached his bank to encash the said cheque, the bank official refused to encash the said cheque stating that the signature of the account holder does not match. After that when defendant no. 1 approached the husband of plaintiff and narrated the facts, the husband of the plaintiff and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 12/ 110 plaintiff put a condition that till the time the defendants will not execute a registered lease deed in the name of plaintiff, they will not pay remaining amount of Rs.5,80,000/ upon which the defendants no. 1 and 2 agreed to execute a registered lease deed under compelling circumstances and asked the plaintiff to hand over a DD of the said amount of Rs. 5,80,000/. The plaintiff on the day of execution of rent agreement issued a DD of Rs. 5,80,000/ in favour of the defendants and paid a sum of Rs. 3,00,000/ in cash on the same day and kept Rs. 3,00,000/ with her for the purpose of getting the suit propriety freehold. The renewal of the rent agreement for another 11 months is only due to the instructions and pressure created by the plaintiff and her husband.
6.9. The defendant no. 1 had also taken a loan of Rs. 40,00,000/ from the husband of the plaintiff prior to this transaction in the year 2012 against his other property but he had returned the same to the husband of the plaintiff within time. At that time also, the husband of the plaintiff had taken three cheques as well as some other blank signed CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 13/ 110 papers for security purpose and the said cheques as well as the documents are still lying with the plaintiff and her husband and the defendant have no liability whatsoever except Rs. 25,00,000/ . 6.10. The defendants have never taken suit property on rent and there was no relationship of landlord and tenant. Their belongings are lying in the room at the back side measuring 9.21/2' x9.7'. 6.11. The defendants denied other averments made in the plaint and prayed for dismissal of the suit filed by plaintiff Smt. Jasvinder Kaur for possession & mesne profits.
7. Defendants Sh. Sunil Bhatia and Smt. Vijay Rani as plaintiffs in their suit i.e. 'suit for declaration and injunction' have averred almost on the similar lines as averred by them in their written statement filed in 'suit for possession and mesne profits' and have prayed for (i) a decree of declaration thereby declaring the defendant no. 1 (Sh. Sunil Bhaita) to be owner of the suit property; (ii) a decree of cancellation thereby cancelling the registered GPA and Will executed on 08.09.2015 and registered on 30.09.2015 executed by defendant no. 1 CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 14/ 110 (Sh.Sunil Bhatia) in favour of plaintiff (Smt. Jasvinder Kaur) alongwith Agreement to Sell & Purchase, SPA, Affidavit, Receipt, all dated 30.09.2015 including registered lease deed/rent agreement dated 30.09.2015 and 22.08.2016 which were illegally and unlawfully got executed by plaintiff from the defendant no. 1; and (iii) a decree of permanent injunction thereby directing the plaintiff and her husband not to alienate, transfer, sell or create third party interest in the suit property.
8. Defendants Sh. Sunil Bhatia and Smt. Vijay Rani have filed replication to the written statement filed by the plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal jointly in 'suit for declaration & injunction' reiterating the averments made in their plaint and denying the averments made in the written statement filed by plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal.
Issues in 'suit for possession and mesne profits' filed by Smt. Jasvinder Kaur bearing CS No. 296/17 titled "Jasvinder Kaur vs. Sunil Bhatia & Anr."
9. Following issues were framed in this case vide order dated CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 15/ 110 15.04.2017 for adjudication: i. Whether the defendant no. 1 mortgaged the suit property with the husband of the plaintiff for an amount of Rs. 25,00,000/? OPD.
ii. Whether the plaintiff has executed a Memorandum of Understanding dated 21.09.2015 showing Rs.25,000/ to be paid after three months by defendant no. 1? OPD.
iii. Whether the defendants are tenants of the plaintiff on the basis of rent agreement dated 22.08.2016? OPP.
iv. Whether the plaintiff is entitled to a decree of recovery of the suit property, as prayed for? OPP. v. Whether the room on the back side measuring 9.2 1/2' x 9.7' in the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi is still in the possession of the plaintiff? OPP. vi. Whether the plaintiff is entitled for a decree of mesne profits from 01.11.2015 to 28.02.2017 in respect of the suit property against the defendants, as prayed for ? OPP.
vii.Whether the plaintiff is entitled for future and pendentelite mesne profits @ Rs.25000/ w.e.f. 01.03.2017 till handing over the possession of the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 16/ 110 suit property to the plaintiff alongwith simple interest @ 18% per annum and accrued rent/mesne profits w.e.f. 01.11.2015 till possession, as prayed for? OPP.
viii. Relief Issues in 'suit for declaration and injunction' filed by Sh. Sunil Bhaita and Smt. Vijay Rani bearing CS No. 951/17 titled "Sunil Bhaita vs. Harvinder Pal Singh Chatwal & Anr"
10. Following issues were framed in this case vide order dated 21.11.2017: i. Whether the present suit is barred under Order II Rule 2 read with Order VIII Rule 6A and 9 of the CPC? OPD.
ii. Whether the defendant no. 2 is in possession of one room on the back side measuring 9.21/2' x9.7' in the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi and if so, whether the suit of the plaintiff is barred under Section 34 of the Specific Relief Act ? OPD.
iii. Whether the suit is bad for misjoinder of the parties as the defendant no. 1 is not necessary and proper party ? OPD.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 17/ 110 iv. Whether the present suit has been undervalued for the purpose of court fee and jurisdiction and the proper court fee has not been paid by the plaintiff ? OPD.
v. Whether the defendant no. 1 has paid an amount of Rs.25,00,000/ to the plaintiffs as loan and plaintiff no. 1 mortgaged the suit property in the name of defendant no. 2 ? OPP.
vi. Whether the plaintiff is entitled to decree of cancelleation of registered GPA and Agreement to Sell executed on 08.09.2015 and registered on 30.09.2015 and SPA, Receipt, Registered Lease Deed, all dated 30.09.2015 in favour of defendant no. 2 ? OPP.
vii. Whether the plaintiff is entitled to decree of declaration declaring himself to be the owner of the suit property ? OPP.
viii. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP.
ix. Relief.
Evidence led by the parties in 'suit for possession and mesne profits'
11. In this suit, Smt. Jasvinder Kaur (plaintiff in this suit) has examined four witnesses including herself as PW1. She as PW1 filed CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 18/ 110 her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the plaint filed by her in 'suit for possession and mesne profits'. She also relied upon and exhibited the following documents during her deposition: Ex. PW1/1 (Colly) : Copy of Sale documents i.e. sale agreement, GPA, SPA, Affidavit, Receipt, Possession letter and Will, all dated 08.09.2015 Ex. PW1/2 (Colly) : Copy of previous chain of ownership documents Ex. PW1/3 : Registered lease deed dated 30.09.2015 Ex. PW1/4 : Site plan Ex. PW1/5 : Copy of Rent Agreement dated 22.08.2016 Ex. PW1/6 : Office copy of Legal notice dated 16.01.2017 Ex. PW1/7 : Postal receipts showing dispatch of to legal notice dated 16.01.2017 Ex.PW1/10
12. The other witnesses examined by the plaintiff are PW2 Sh. Manmeet Singh (son of the plaintiff), PW3 Sh. Babu Lal (attesting witness to the rent agreement dated 22.08.2016) and PW4 CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 19/ 110 Sh. Deshbandhu Gosain (UDC from the office of Sub RegistrarIIB, Janakpuri, New Delhi) whose testimonies shall be discussed at the later stage of the judgment.
13. On the other hand, defendant no. 1 (Sh. Sunil Bhatia) has examined himself as DW1 and filed his evidence by way of affidavit which is Ex.DW1/A wherein he reiterated the averments made in the written statement filed in 'suit for possession and mesne profits'. During his deposition, he also relied upon the following documents: Ex.DW1/1 : MoU dated 21.09.2015 Ex.DW1/2 : Copy of reply dated 01.03.2017 and & postal receipts thereof Ex.DW1/3 Ex.DW1/4 : Original cheque bearing No. 353985 dated 21.09.2015 Ex.DW1/5 : Copy of his passbook (Colly)
14. The defendants have also examined Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) as DW2 in support of their defence, whose testimony shall be discussed later on.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 20/ 110 Evidence led by parties in 'suit for declaration and permanent injunction'
15. Defendant Sh. Sunil Bhatia (plaintiff no. 1 in this case) has examined himself as PW1 and filed his evidence by way of affidavit in which he has reiterated the avements made in the plaint filed by him alongwith his sister in this case. He has also relied upon and exhibited the following documents during his deposition: PW1/1 (Colly) Certified copy of GPA, Agreement to Sell & Purchase, Receipt, SPA, Affidavit, Will dated 17.07.2004 Ex.PW1/2 (Colly) Certified copy of MoU.
Ex.PW1/3 Certified copy of lease deed dated
30.09.2015
Ex.PW1/4 Certified copy of rent agreement dated
22.08.2016
Ex.PW1/5 Legal notice dated 16.01.2017.
Ex.PW1/6 Certified copy of reply to legal notice
dated 01.03.2017.
Mark A (Colly) Copy of the summons of the suit No.
296/2017
16. Defendant Smt. Vijay Rani (plaintiff no. 2 in this case) has also examined herself as PW2 and filed her affidavit towards CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 21/ 110 examinationinchief which is Ex.PW2/A.
17. Next witness examined by defendants Sh. Sunil Bhatia and Smt. Vijay Rani (plaintiffs in this case) is PW3 Ms. Anuradha, (Senior Branch Manager, Andhra Bank, Vikas Puri Branch, New Delhi) who brought the account opening form filled by Ms.Jasvinder Kaur and her statement of account w.e.f. 02.09.2015 to 30.09.2015 and exhibited the same as Ex.PW3/A and Ex.PW3/B respectively. She also brought the attested copy of account opening form filled up by Sh. Harvinder Pal Singh Chhatwal which is Ex.PW3/C and his statement of account w.e.f. 05.09.2015 to 30.09.2015 which is Ex PW3/D. She has also placed on record the certificate under Section 65B of Indian Evidence Act which is Ex.PW3/E.
18. Another witness is PW4 Sh. Sanjay Batra, Proprietor of Batra Documentation, UG22, Suneja TowerI, District Centre, Janakpuri, New Delhi who deposed that he runs a documentation centre under license no. DL 711403 issued by Stock Holding Corporation India Ltd. He deposed that the MoU already Ex.PW1/2 was drafted by his CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 22/ 110 adjacent shop.
19. Last witness examined by defendants Sh. Sunil Bhatia and Smt. Vijay Rani (plaintiffs in this case) is PW5 Shiv Dutt Atri (the Notary Public) to prove the attestation of documents i.e. SPA, Affidavit, Receipt and Possession Letter Ex. PW1/D3 on 21.09.2015.
20. On the other hand, plaintiff Jasvinder Kaur (defendant no. 2 in this case) examined herself in this case as DW1 and filed her evidence by way of affidavit in consonance of averments made in the written statement filed by her alongwith her husband in this case. She has relied upon the sale documents executed by defendant no. 1 (Sh. Sunil Bhatia) in her favour, all dated 08.09.2015 which are Ex.DW1/1 (Colly).
21. Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff and defendant no. 1 in this case) has also examined himself as DW2 and filed his evidence by way of affidavit wherein he has deposed as per the averments made in the written statement filed in this case.
22. Plaintiff Smt. Jasvinder Kaur and her husband Sh. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 23/ 110 Harvinder Pal Singh Chhatwal (defendants in this case) have also examined their son Sh. Manmeet Singh as DW3 who is witness to the Agreement to sell and GPA dated 08.09.2015 and Sh. Babu Lal as DW4, who is witness to the rent agreement dated 22.08.2016. They both filed their affidavits towards their examinationinchief and their testimonies shall be evaluated in the later part of the judgment.
23. The last witness examined by plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal in this case is DW5 Ajay Kumar (Junior Assistant from the Office of Sub Registrar IIB, Janakpuri, New Delhi) who brought the original records Ex.PW5/1 (Colly) and proved the registration of Lease Deed 30.09.2015, Rent Agreement executed on 22.08.2016, Agreement to Sell and GPA dated 08.09.2015 with the Sub Registrar.
Final arguments in both suits
24. I have heard the final arguments advanced on behalf of both the parties in both the suits and perused the material on record carefully. I have also gone through the written arguments filed on behalf of the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 24/ 110 parties in both the cases.
Findings
25. On the basis of material available on record, my issuewise findings are as under: Issue No. (i) to (iii) (in 'suit for possession and mesne profits') Whether the defendant no. 1 (Sh. Sunil Bhatia) mortgaged the suit property with the husband of the plaintiff for an amount of Rs. 25,00,000/ ?
& Whether the plaintiff (Smt. Jasvinder Kaur) has executed a Memorandum of Understanding dated 21.09.2015 showing Rs.25,000/ to be paid after three months by defendant no. 1 (Sh. Sunil Bhatia)?
& Whether the defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) are tenants of the plaintiff (Smt. Jasvinder Kaur) on the basis of rent agreement dated 22.08.2016 ?
And Issue No. (v) (in 'suit for declaration and injunction') Whether the defendant no. 1 (Sh. Harvinder Pal Singh Chhatwal, husband of plaintiff) has paid an amount of CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 25/ 110 Rs.25,00,000/ to the plaintiff (Sh. Sunil Bhatia) as loan and plaintiff no. 1 (Sh. Sunil Bhatia) mortgaged the suit property in the name of defendant no. 2 (Smt. Jasvinder Kaur) ?
26. These issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. The onus to prove Issue No. (i), (ii) in 'suit for possession and mense profits' and issue no. (v) in 'suit for declaration and injunction' is on the defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) and onus to prove issue no. (iii) in 'suit for possession and mesne profits' is on plaintiff (Smt. Jasvinder Kaur).
27. The case of plaintiff (Smt. Jasvinder Kaur) is that she is the lawful owner of the suit property having purchased the same from defendant no. 1 (Sh. Sunil Bhatia) vide sale documents i.e. GPA, Agreement to sell both executed on 08.09.2015 and registered on 21.09.2019 alongwith Special Power of Attorney, Affidavit, Receipt, Possession Letter and Will, all dated 08.09.2015 for a sale consideration of Rs.13,20,000/. After sale of suit property, defendant no. 1 (Sh. Sunil Bhatia) who at the time of sale of suit property to plaintiff was running CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 26/ 110 his business of property dealing in one shop and his sister Smt. Vijay Rani (defendant no. 2) who was running her boutique shop in another shop in the suit property approached the plaintiff to rent out the suit property to them on monthly rent of Rs. 25,000/ so that they could continue to run their respective business. The plaintiff agreed for the same and after retaining one room on the back side measuring 9.2 ½ ' x 9.7' let out rest of the property i.e. the suit property to the defendants for a period of eleven months from 01.10.2015 to 31.08.2016 at monthly rent of Rs. 25,000/ vide a registered Lease Deed dated 30.09.2015. The plaintiff has further claimed that the defendants paid the rentals for one month only i.e. for October 2015 and thereafter they failed to pay the rent but since the plaintiff had good relations with the defendants and they also assured to pay the accrued rent with interest to her shortly, she agreed to renew the tenancy of the defendants for another eleven months from 01.09.2016 to 31.07.2017 by way of another registered rent agreement dated 22.08.2016 but inspite of assurances and renewal of lease, the defendants did not pay the monthly rent which resulted into CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 27/ 110 termination of tenancy by the plaintiff by serving a legal notice dated 16.01.2017 by which the defendants were asked to pay the arrears of rent w.e.f. 01.11.2015 and to vacate the suit property but the defendants did not comply the said legal notice.
28. Defendants (Sh. Sunil Bhatia) and Smt. Vijay Rani in their joint written statement filed in 'suit for possession and mesne profits' and in their plaint filed in 'suit for declaration and injunction' have not denied the execution of sale documents relied upon by plaintiff (Smt. Jasvinder Kaur) but they have denied sale of suit property to plaintiff by defendant no. 1 (Sh. Sunil Bhatia). They have contended that the sale documents relied upon by the plaintiff are sham documents and defendant no. 1 (Sh. Sunil Bhatia) has never sold the suit property to plaintiff Smt. Jasvinder Kaur by virtue of said documents. In fact, defendant no. 1 (Sh. Sunil Bhatia) had availed a loan of Rs.25,00,000/ (Rupees Twenty Five Lacs) on interest @ 1% per annum from Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) and at that time he had mortgaged the suit property with husband of plaintiff and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 28/ 110 also executed the transfer/sale documents in favour of plaintiff (Smt. Jasvinder Kaur) at the instance of husband of plaintiff who assured that after transfer of property in the name of plaintiff, she would get the suit property freehold within three months and thereafter the defendant no. 1 after taking a loan on the suit property might return the loan amount of Rs. 25,00,000/ taken from the husband of plaintiff and till then the defendants were required to pay Rs.25,000/ as monthly interest on the loan amount of Rs. 25 lacs. The defendants have also contended that a Memorandum of Understanding dated 21.09.2015 was also executed between plaintiff (Smt. Jasvinder Kaur) and defendant no. 1 (Sh. Sunil Bhatia) in this regard. The defendants have also denied the relationship of landlord and tenant between plaintiff and them and contended that the lease deeds dated 30.09.2015 and 22.08.2016 were got executed by the plaintiff from the defendants in her favour under pressure and actually no tenancy came into being. The defendants have claimed that the plaintiff is misusing the documents executed by defendant no. 1 at the time of availing loan from her husband Sh. Harvinder Pal Singh CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 29/ 110 Chhatwal which were meant only for security against the loan, with a sole motive to grab the suit property owned by defendant no. 1.
29. Defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) in their written statement filed in 'suit for possession and mesne profits' and in their plaint filed in 'suit for declaration and injunction' have also disclosed the mode of payment of loan amount by Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) to defendant no. 1 Sh. Sunil Bhatia by averring that loan of Rs. 25,00,000/ was given by husband of the plaintiff in the from of Rs.13,20,000/ by way of a cheque (as sale consideration of suit property), Rs.3,00,000/ in cash, Rs.5,80,000/ by way of Demand Draft (DD) and Rs.3,00,000/ was kept by plaintiff with her for the purpose of getting the suit property freehold.
30. Plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal in their written statement filed in 'suit for declaration and injunction' have denied the advancement of any loan of Rs.25,00,000/ to defendant no. 1 (Sh. Sunil Bhatia) and mortgage of suit property by defendant no. 1 with Sh. Harvinder Pal Singh Chhatwal CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 30/ 110 (husband of plaintiff) and they have reiterated that the defendant no. 1 (Sh. Sunil Bhatia) has sold the suit property to plaintiff Smt. Jasvinder Kaur.
31. In view of aforesaid rival claims of the parties, plaintiff (Smt. Jasvinder Kaur) is required to prove that the sale/transfer documents all dated 08.09.2015 as Ex. PW1/1 (Colly) (in 'suit for possession and mesne profits') and Ex.DW1/1 (Colly) (in 'suit for declaration and injunction') were duly executed by defendant no. 1 (Sh. Sunil Bhatia) in her favour thereby selling the suit property to her and further that the defendants were her tenants in the suit property vide registered lease deeds dated 30.09.2015 and 22.08.2016 duly executed by defendants in her favour and the said documents are not sham documents as alleged by the defendants.
32. Plaintiff (Smt. Jasvinder Kaur) in order to discharge the onus herself appeared in the witness box as PW1 (in 'suit for possession and mesne profits') and reiterated the averments made in the plaint filed by her in her examinationinchief. In her crossexamination, PW1 CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 31/ 110 (plaintiff Smt. Jasvinder Kaur) stated that she is a housewife and Income tax payee. She stated that she has mentioned the purchase of suit property in her ITR. Though she has not brought the record of her income tax return but she voluntarily stated that she can bring the same if required and directed. It is pertinent to mention here that the Ld. Counsel for defendants did not seek any such directions from the Court to ask the plaintiff to produce her Income Tax return and for this reason an adverse inference is liable to be drawn against the defendants. Plaintiff (Smt. Jasvinder Kaur) further stated in her crossexamination that the negotiation for purchasing the suit property started about one and half months prior to the execution of documents Ex.PW1/1 (Colly). She stated that she visited and inspected the suit property prior to its purchase. She further stated that at the time of negotiations for purchase of the suit property, she herself, her husband and Mr. Sunil Bhatia (defendant no. 1) were present outside the house of the defendant on the road. She stated that she inspected the title documents in respect to suit property and the documents were GPA, Agreement to Sell etc. in the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 32/ 110 name of defendant no. 1. She stated that no document in writing was prepared between the parties prior of execution of documents Ex.PW1/1 (Colly). Electricity and water connections were transferred in her name after the purchase of suit property. She admitted that no negotiations between her and defendant no. 1 took place to purchase the suit property. She voluntarily stated that the same took place between her husband and defendant no. 1. She stated that Ex. PW1/1 (Colly) were prepared at District Centre, Janakpuri though she could not recollect who were the witnesses to Ex.PW1/1 (Colly). She denied the suggestion that she is unable to tell the name of the witnesses to the said documents as she visited the Sub Registrar office, District Centre Jankpuri only to sign the said documents.
33. With regard to her claim to rent out the suit property to defendants Sh. Sunil Bhatia and Smt. Vijay Rani vide lease deeds dated 30.09.2015 and 22.08.2016 Ex.PW1/3 and Ex.PW1/5 respectively (in 'suit for possession and mesne profits') , PW1 (plaintiff Smt. Jasvinder Kaur) stated in her crossexamination that the front portion of the suit CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 33/ 110 property was given on rent to the defendants on the same day when the documents Ex. PW1/1 (Colly) were executed. She could not recollect the exact date of the payment of the first monthly rent given by the defendant to her, however she stated that it was given after one month. She stated that she has not issued any receipt in lieu of rent given by the defendants. She further stated that the rent was paid in cash by defendant no. 1 and the said rent was paid only for one month and thereafter no rent was paid. She stated that no notice asking the defendant no. 1 to pay the rent was given. She volunteered that defendant no. 1 requested her to pay the rent later on. She executed the second rent agreement in favour of defendant no. 1 at his request. She denied the suggestion that the second rent agreement was executed to fill the lacuna in the first rent agreement. This suggestion put to the witness is misplaced as it was never the case of defendants that the second lease agreement dated 22.08.2016 Ex.PW1/5 was executed to fill up the lacuna in the first rent agreement dated 30.09.2015 Ex.PW1/3. She stated that she does not know about service of legal notice Ex.PW1/6 and voluntarily stated that CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 34/ 110 the same might have been got issued by her husband.
34. Plaintiff Smt. Jasvinder Kaur when appeared in the witness box as DW1 in 'suit for declaration and injunction' filed by defendants, categorically stated in her crossexamination that it was about 12 months back from the sale of suit property to her, the talks of sale purchase of the suit property took place. She further stated that there was no mediator for the salepurchase of the suit property and they talked in this respect at their own and that the talks of the said salepurchase took plae at the Gali on the road corroborating her statement made during crossexamination in 'suit for possession and mesne profits'. She further stated that there was no bayana agreement executed in respect of sale purchase of the suit property. She denied the suggestion that bayana agreement was not executed since there was no transaction of sale purchase between her and plaintiff no. 1 (Sh. Sunil Bhatia in this suit). She categorically stated that she has taken the vacant possession of the suit property on 21.09.2015 and thereafter has given the suit propriety on rent on 30.09.2015 to plaintiff no. 1 (Sh. Sunil Bhatia in this suit). She CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 35/ 110 was suggested that lease agreement Ex. PW1/3 was executed between her and plaintiffs no. 1 and 2 as a security for repayment of loan of Rs. 25 lacs from her husband. She further stated that she has mentioned in her ITR regarding purchase of the suit property but she has not brought the copy of the ITR. She stated that she can bring the same if so directed. As noted above, Ld. Counsel for defendants did not seek directions to direct plaintiff Smt. Jasvinder Kaur to bring her ITR to show mentioning of purchase of suit property in the ITR.
35. The aforesaid crossexamination of plaintiff (Smt. Jasvinder Kaur) as PW1 in 'suit for possession and mesne profits' and as DW1 in 'suit for declaration and injunction' would reveal that nothing material could be extracted by Ld. Counsel for defendants to shake or demolish her version made in her examination in chief in both the cases regarding purchase of suit property by her from defendant no. 1 (Sh. Sunil Bhatia) and subsequently letting of suit property to defendants. Rather it is apparent that Ld. Counsel for defendants did not put questions or suggestions to plaintiff (Smt. Jasvinder Kaur) with regard to claim of CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 36/ 110 the defendants in their pleadings in both the cases regarding mortgage of suit property and execution of MoU dated 21.09.2015. She was not suggested that the defendant no. 1 (Sh. Sunil Bhatia) had mortgaged the suit property with her husband at the time of availing loan of Rs.25,00,000/ from him or that at that time her husband Harvinder Pal Singh Chhatwal asked the defendant no. 1 to transfer the suit property in her name so that she could get the property freehold from leasehold within three months thereby enabling the defendant no. 1 to get a loan from any bank and might refund the loan amount to her husband. She was also not suggested that a MoU dated 21.09.2015 was executed between her and defendant no. 1 by which it was agreed that the defendants shall pay Rs. 25,000/ per month after three months towards interest of the loan amount of Rs.25,00,000/. Plaintiff was also not suggested that loan of Rs. 25,00,000/ was disbursed to defendant no. 1 in the form of Rs.13,20,000/ by way of cheque (as sale consideration of suit property), Rs. 5,80,000/ by way of DD, Rs. 3,00,000/ in cash and Rs. 3,00,000/ was kept by her for getting the suit property freehold. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 37/ 110
36. Plaintiff (Smt. Jasvinder Kaur) has also examined her son Sh. Manmeet Singh as PW2 in suit filed by her who filed his evidence by way of affidavit Ex.PW2/A and has placed on record copy of his Aadhar card as Ex.PW2/1. He has also relied upon the documents already Ex.PW1/1 (Colly) and Ex.PW1/3 and identified his signatures at point X on GPA and Agreement to Sell Ex.PW1/1 (Colly) and on Lease Deed Ex.PW1/3. He deposed that he is a witness to the Agreement to Sell for sum of Rs.13,20,000/ and General Power of Attorney, both executed by defendant no. 1 (Sh. Sunil Bhatia) in favour of his mother (Smt. Jasvinder Kaur) in respect of suit property which are registered with the Registrar/SubRegistrar SUB DIVIIB, Janakapuri, New Delhi on 21.09.2015 and are part of documents Ex.PW1/1 (Colly). He further deposed that he is also witness to the Lease Deed executed on 30.09.2015 Ex.PW1/3 executed by his mother (Smt. Jasvinder Kaur) in favour of defendants no. 1 and 2, namely, Sh. Sunil Bhatia and Smt. Vijay Rani in respect of suit property except one room on back side measuring 9.21/2 ft. x 9.7 ft. The above said documents are signed, CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 38/ 110 executed and got registered by the concerned parties in his presence and in the presence of second witness, namely, S. Harvinder Pal Singh . He also deposed that the salepurchase transaction of suit property between defendant Sh. Sunil Bhatia and his mother Smt. Jasvinder Kaur is bonafide one and defendant Sh. Sunil Bhatia has sold the suit property to his mother Smt. Jasvinder Kaur for a sum of Rs.13,20,000/ which amount has already been paid to him by his mother through a cheque.
37. In his crossexamination, PW2 (Sh. Manmeet Singh) stated that he is aware of the dispute between the parties. He is income tax payee. He stated that his mother is a housewife and she is having rental income. He categorically stated that he has witnessed the documents i.e. Agreement to sell, General Power of Attorney and one Lease Deed. He denied the suggestion that he has not witnessed the aforesaid documents. However, the said suggestion is misplaced in the wake of documents Ex.PW1/1 (Colly) and Lease Deed Ex.PW1/3 in which Sh.Manmeet Singh is one of the attesting witnesses. He further stated that his mother has purchased the property in question by giving one cheque to the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 39/ 110 defendant no. 1. He denied the suggestion that the suit property has not been sold by defendant no. 1 to plaintiff. He further denied the suggestion that suit property is mortgaged to the plaintiff for a sum of Rs. 25 lacs. This suggestion would show that the defendants are not sure whether the suit property was mortgaged with plaintiff (Smt. Jasvinder Kaur) or with her husband Sh. Harvinder Pal Singh Chhatwal because in the pleadings their case is that the suit property was mortgaged with the husband of plaintiff Sh. Harvinder Pal Singh Chhatwal, while in the crossexamination of this witness, they suggested that the suit property was mortgaged with plaintiff which suggestion was denied by the witness.
38. PW2 (Sh. Manmeet Singh) further stated in his cross examination that the Lease Deed was for eleven months. He categorically stated that he had read the lease deed before witnessing the same. He further stated that the negotiations for sale and purchase of the suit property were going on between the defendant and his mother for last around 1 ½ months prior to the execution of the documents and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 40/ 110 these documents were prepared at Janakpuri District Centre before a document writer thus corroborating the testimony of his mother to this effect. He further stated that he does not recollect whether plaintiff gave a DD for a sum of Rs. 5,80,000/ and Rs. 3 lacs in cash to the defendant and she further held a sum of Rs. 3 lacs with her for getting freehold the property in dispute. He does not know whether any DD of Rs. 5,80,000/ was given by him at the time of execution of lease deed. However, this question put to the witness was misplaced because it was never the case of defendants in their written statement that DD of Rs. 5,80,000/ was given by Sh. Manmeet Singh (son of plaintiff) to defendant no. 1 (Sh. Sunil Bhatia).
39. Sh. Manmeet Singh when appeared as DW3 in 'suit for declaration and injunction' filed by defendants, deposed on the similar lines as deposed by him as PW2 in 'suit for possession and mesne profits'. In his crossexamination, DW3 (Sh. Manmeet Singh) categorically stated that his mother has given a cheque of Rs.13,20,000/ to the plaintiff no. 1 (Sh. Sunil Bhatia) for the purchase of suit property. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 41/ 110 He admitted that on the day of purchase of suit property, no other amount was paid by his mother or father to plaintiff no. 1. He denied the suggestion that signatures of plaintiff no. 1 and 2 (Sh. Sunil Bhatia and Smt. Vijay Rani) were obtained by his mother by misrepresenting that the said documents are only for security for repayment of Rs. 25 lacs taken by the plaintiff. Again this suggestion put by Ld. Counsel for defendants is misplaced as it was never the case of the defendants Sh. Sunil Bhatia and Smt. Vijay Rani in their pleadings either in 'suit for possession and mesne profits' or in 'suit for declaration and injunction' that the sale documents Ex.PW1/1 (Colly) and lease deeds Ex.PW1/3 and Ex.PW1/5 were got executed from them by plaintiff Smt. Jasvinder Kaur by misrepresenting them. Rather their case was that the said documents were executed by them in good faith as security against the loan availed by defendant no. 1 Sh. Sunil Bhatia from Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff).
40. The aforesaid crossexamination of Sh. Manmeet Singh (son of plaintiff) as PW2 in 'suit for possession and mesne profits' and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 42/ 110 DW3 in 'suit for declaration and injunction' would reveal that the defendants again have not been able to extract anything material to their benefit. Rather the testimony of this witness has gone unrebutted and uncontroverted on material aspects. In his examinationinchief, PW2 (Sh. Manmeet Singh) in para no. 3 of his affidavit Ex.PW2/A in 'suit for possession and mesne profits' as well as in para no. 3 of his affidavit Ex.PW3/A in 'suit for declaration and injunction' as DW3 has deposed that the defendants no. 1 and 2 and his mother have signed the above said documents out of their free will and accord in a harmonious manner without any undue influence or pressure from any side after having understood the contents of the said documents in Hindi. There is no crossexamination on these assertions made by the witness in his examinationinchief in both the cases. In the absence of any cross examination to this effect, this part of his testimony is deemed to be admitted by the defendants and it stands proved that the defendants had signed the documents i.e. the sale documents Ex.PW1/1 (Colly) and the Lease Deed Ex.PW1/3 (in 'suit for possession and mesne profits') out of CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 43/ 110 their free will and accord and without any kind of influence and pressure after understanding the contents of the same in Hindi.
41. Another witness examined by plaintiff Smt. Jasvinder Kaur in suit filed by her for 'possession and mesne profits' is PW3 Sh. Babu Lal who deposed that he is a witness to the rent agreement dated 22.08.2016 Ex.PW1/5 executed by Smt. Jasvinder Kaur in favour of defendants no. 1 and 2, namely, Sunil Bhatia and Smt. Vijay Rani in respect of the suit property except one room on back side measuring 9.2
- ½ ft x 9.7 ft. He further deposed that the said rent agreement Ex.PW1/5 was executed and got registered by parties to it in his presence and in presence of second witness, namely, Sh. Harvinder Pal Singh Chhatwal and he signed the said rent agreement as witness. He has identified his signature at point A on the rent agreement.
42. In his crossexamination, PW3 (Sh. Babu Lal) categorically stated that he is deposing in a matter where the suit property was taken on rent by defendant no. 1 on 22.08.2016 from the plaintiff. At the time of taking the suit property on rent by the defendant, CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 44/ 110 the suit property was lying vacant. He does not know when the keys of the suit property was handed over by the plaintiff to the defendants. Though he stated that he does not know what is written in the affidavit Ex.PW3/A however he categorically stated that he is aware of the rent agreement executed between the plaintiff and defendants.
43. Likewise PW2 (Sh. Manmeet Singh), this witness PW3 (Sh. Babu Lal) has not been crossexamined on his deposition as made by him in para no. 3 of his affidavit where he has deposed that Sh. Sunil Bhatia and Smt. Vijay Rani and Smt. Jasvinder Kaur have signed the rent agreement out of their free will and accord in a harmonious manner without any undue influence or pressure from any side after having understood the contents of the same in Hindi and this part of his testimony has gone unrebutted and uncontroverted.
44. Sh. Babu Lal when appeared in the witness box as DW4 in 'suit for declaration and injunctionp deposed on the similar lines as deposed by him as PW3 in in 'suit for possession and mesne profits'. In his crossexamination, nothing important could be extracted by Ld. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 45/ 110 Counsel for defendants to impeach his deposition that rent agreement Ex.PW1/5 (in 'suit for possession and mesne profits') to which he is one of the attesting witnesses, has been duly executed between plaintiff Smt. Jasvinder Kaur as landlady and defendants Sh. Sunil Bhatia and Smt. Vijay Rani as tenants.
45. Plaintiff Smt. Jasvinder Kaur though has also examined Sh. Desh Bandhu Gosai, (UDC from the office of Sub Registrar II Janakpuri) as PW4 in suit filed by her in 'possession and mesne profits' and Sh. Ajay Kumar (Jr. Assistant from the aforesaid office of Sub Registrar) as DW5 in 'suit for declaration and injunction' filed by defendants Sh. Sunil Bhatia and Smt. Vijay Rani to prove the registration of the Lease Deed executed on 30.09.2015, Rent Agreement executed on 22.08.2016, Agreement to Sell executed on 08.09.2015, GPA executed on 08.09.2015, but registration of these documents is not in dispute as evident from the pleadings of the defendants in both the suits. Therefore, testimony of these witnesses are not of much relevance and need not to be discussed.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 46/ 110
46. From the aforesaid evidence adduced by plaintiff Smt. Jasvinder Kaur in both the cases, it is apparent that she has been able to prove the purchase of suit property vide registered GPA, Agreement to Sell both dated 08.09.2015 and registered on 21.09.2015 alongwith SPA, Affidavit, Possession Letter, Will etc. all dated 08.09.2015 Ex.PW1/1 (Colly) from defendant no. 1 (Sh. Sunil Bhatia) for a sum of Rs.13,20,000/ and thereafter letting out the suit property to defendants vide lease deeds dated 30.09.2015 Ex.PW1/3 and 22.08.2016 Ex.PW1/5.
47. Now, let us discuss the evidence led by defendants to find out as to whether they have been able to prove their claim that the documents Ex.PW1/1 (Colly) and lease deeds Ex.PW1/3 and Ex.PW1/5 (in 'suit for possession and mesne profits') are sham documents and have been executed just to secure the repayment of loan of Rs.25,00,000/ advanced by the husband of plaintiff to defendant no. 1.
48. At the outset, it may be noted that in the written statement filed by defendants in 'suit for possession and mesne profits' , they have taken a plea that at the time of taking loan of Rs. 25 lacs by defendant CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 47/ 110 no. 1, the husband of plaintiff (Sh. Harvinder Pal Singh Chhatwal) had asked defendant no. 1 to execute the transfer documents in favour of plaintiff in order to get the suit property freehold within three months thereby enabling the defendant no. 1 to take a loan by mortgaging the suit property with a bank so that he could return the loan taken from husband of the plaintiff. One fails to understand that once the defendant no. 1 (Sh. Sunil Bhatia) has transferred the suit property in favour of plaintiff, then how he could have availed a loan from the bank by mortgaging the suit property when he will be no more owner of the suit property.
49. It is noteworthy that when this anomaly came to the knowledge of the defendants, they took entirely a new stand in their plaint filed in 'suit for declaration and injunction' and pleaded that it was agreed between Sh. Sunil Bhatia and defendant no. 1 (Sh. Harvinder Pal Singh Chhatwal) that Sh. Sunil Bhatia shall transfer the suit property in the name of defendant no. 2 (Smt. Jasvinder Kaur) who is wife of defendant no. 1 Sh. Harvinder Pal Singh Chhatwal and the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 48/ 110 defendants i.e. plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal shall get the suit property freehold within a period of three months and after that defendant no. 2 shall take a loan from any financial institute/bank on the said property and the plaintiff no.1 i.e. Sh. Sunil Bhatia shall pay the loan installments.
50. As such, the defendants Sh. Sunil Bhatia and Smt. Vijay Rani in their suit contradicted their version made in 'suit for possession and mesne profits' and claimed that it is plaintiff Smt. Jasvinder Kaur who was required to take a loan on suit property after getting the suit property freehold within three months, installments of which shall be paid by defendant no. 1 (Sh. Sunil Bhatia),which was not their case in 'suit for possession and mesne profits' and it shows that the defendants are taking contradictory stand in their pleadings itself.
51. It is also apparent from the pleadings of the defendants that they themselves are not sure from whom, whether plaintiff or her husband, the loan was allegedly taken or with whom the suit property was allegedly mortgaged by defendant no. 1.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 49/ 110
52. Now coming to the evidence led by the defendants in both the suits.
53. Defendant no. 1 (Sh. Sunil Bhatia) has examined himself as DW1 in 'suit for possession and mesne profits' and reiterated the averments made in the written statement filed in the said suit. He also examined himself as PW1 in 'suit for declaration and injunction' and reiterated the averments made in the plaint filed by him alongwith defendant no. 2 in the said suit in his examinationinchief.
54. As DW1, defendant no. 1 (Sh. Sunil Bhatia) stated in his crossexamination that he borrowed Rs. 25 lacs from the husband of plaintiff in October 2015, though he has no document or material to show in this regard. He further stated that he mortgaged the suit property to the husband of the plaintiff in October 2015 itself when Rs. 25 lacs were borrowed from the husband of the plaintiff, but he has no document to show in this regard. It is noteworthy that no such transaction took place in the month of October 2015 and whatever transaction took place between the parties, the same had taken place in CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 50/ 110 the month of September 2015 which is evident from the pleadings of the parties. Furthermore, in the absence of any document, the plea of defendant no. 1 (Sh. Sunil Bhatia) that he had availed a loan of Rs.25,00,000/ from husband of plaintiff and mortgaged the suit property with husband of plaintiff as security against the said loan has remained unproved. It is highly improbable that the defendant no. 1 who is mortgaging his immovable property with the husband of the plaintiff as a security against the loan of Rs. 25,00,000/ would not reduce the said fact into writing. A man of ordinary prudence would not transfer his immovable property in favour of other person without any writing to this effect. Further, if the plaintiff has misused the sale documents which were only meant for security as alleged by the defendants, then it was not expected from the defendants that they will not take any legal action against the plaintiff. However, during his crossexamination, DW1 (Sh. Sunil Bhatia) has categorically stated that he has not made any complaint to the police or DDA to the effect that the plaintiff is not the owner of the suit property or that she is trying to grab the suit property CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 51/ 110 or that he is the owner of the suit property. He further stated that he has also not made any complaint to police or Sub Registrar pertaining to his allegation in para 13 of his affidavit of examinationinchief where he has deposed that as he had taken loan on interest from the husband of the plaintiff, so he had to follow all the instructions given by the husband of the plaintiff or by the plaintiff and the renewal of the rent agreement for another 11 months is only due to the instruction and pressure created by the husband of the plaintiff and the plaintiff and he and his sister have never been the tenants in the suit property.
55. This deposition of defendant no. 1 (Sh. Sunil Bhatia) that he signed the lease deeds under pressure created by plaintiff and her husband as he had taken a loan of Rs. 25,00,000/ from the husband of the plaintiff is falsified when he as DW1 in his crossexamination categorically admitted that he and defendant no. 2 have signed the lease deed and the rent agreement in respect of the suit property out of their free will and accord. This fact has also been proved by plaintiff Smt. Jasvinder Kaur by examining her son Sh. Manmeet Singh as PW2 and CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 52/ 110 Sh. Babu Lal as PW3 in suit filed by her who in their examination in chief have deposed that the rent agreements Ex.PW1/3 and Ex.PW1/5 have been signed by the defendants out of their free will and accord and without any pressure on which there is no crossexamination at all.
56. It is pertinent to note here that in the written statement filed in 'suit for possession and mesne profits' the defendants did not allege that the transfer documents and lease deeds were obtained under compulsion but in the replication to written statement filed by plaintiff and her husband in 'suit for declaration and injunction', they have taken a plea that the entire set of documents i.e. registered GPA, Will executed on 08.09.2015 and registered on 30.09.2015 alongwith Agreement to Sell and purchase, SPA, receipt, lease deed, rent deed dated 22.08.2016 were got signed by the plaintiff Smt. Jasvinder Kaur and her husband under compulsion as a loan of Rs.25,00,000/ was needed and taken from the defendant no. 1 (Sh. Harvinder Pal Singh Chhatwal). However, with the categorical admission of defendant no. 1 (Sh. Sunil Bhatia) in his crossexamination that he and his sister i.e. defendant no. 2 (Smt. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 53/ 110 Vijay Rani) have signed the lease deeds Ex.PW1/3 and Ex. PW1/5 out of their free will and accord which fact also duly stands proved by plaintiff (Smt. Jasvinder Kaur), this contention of the defendants in their replication that the entire set of documents including the lease deeds were got executed from them by plaintiff under pressure and they signed the said documents under compelling circumstances and in fact no sale was effected nor any tenancy came into being, is falsified and liable to be rejected.
57. Defendant no. 1 (Sh. Sunil Bhatia) has also claimed that previously also he had availed a loan of Rs. 40 lacs from Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) which he had returned and at that time also the husband of the plaintiff had taken three cheques as well as some other blank signed papers for security purpose and the said cheques as well as the documents are still lying with the plaintiff and her husband. However, defendant no. 1 (Sh. Sunil Bhatia) as DW1 in his crossexamination has categorically stated that he has no document to show that he had repaid the loan of Rs. 40 lacs and Rs. 10 lacs CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 54/ 110 respectively to the husband of the plaintiff as stated in para no. 11 of his affidavit in evidence. He has also not lodged any police complaint against the plaintiff regarding taking over of the above said blank signed cheques and blank signed papers from him by the plaintiff.
58. Defendant no. 1 (Sh. Sunil Bhatia) as DW1 further categorically stated in his crossexamination that all the transfer documents, lease deed and rent agreement, photocopies of which have been filed by the plaintiff in the present case, in relation to the suit property in favour of plaintiff have been executed by him. Otherwise also, the defendants in their pleadings have not disputed the execution of sale documents and lease deeds. He further stated that the cheque of Rs.13,20,000/ as consideration amount of above said sale and purchase of the suit property which had been handed over by the plaintiff to him has already been encashed by him. He further stated that he has no document to show that the plaintiff told him to get the suit property freehold within three months of the purchase of the suit property. He though denied the suggestion that plaintiff is the lawful owner of the suit CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 55/ 110 property and she is having every right, title or interest over the suit property, but he voluntarily stated that as per the documents, plaintiff is the owner of the suit property.
59. With regard to disbursement of loan amount of Rs.25 lacs to him, defendant no. 1 (Sh. Sunil Bhatia) as DW1 stated in his cross examination that he has no document to show that the plaintiff has ever paid him a sum of Rs. 3 lacs in cash or retained another sum of Rs. 3 lacs with her. He further stated that he has not deposited any sum of Rs. 3 lacs in his bank account. As such, this contention of defendants that the plaintiff retained Rs. 3 lacs with her for getting the suit property freehold and paid Rs. 3 lacs in cash to the defendant no. 1 which as per the defendants are part of loan of Rs.25,00,000/ has also not been substantiated and the same remained only a bald and vague plea.
60. So far as payment of Rs.5,80,000/ received by defendant no. 1 by way of DD which as per defendants is also a part of loan of Rs.25,00,000/ is concerned, the defendants have placed on record the cheque of Rs.5,80,000/ issued by husband of plaintiff in the name of CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 56/ 110 defendant no. 1 (Sh. Sunil Bhatia) as Ex.DW1/4, though the same has been signed by plaintiff (Smt. Jasvinder Kaur) and due to said reason, the said cheque got dishonoured and later on Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) issued a DD of Rs.5,80,000/ in the name of defendant no. 1, which fact is not in dispute. The said DD of Rs. 5,80,000/ has been duly encashed by defendant no. 1 as per own admission of defendant no. 1 during his crossexamination. Defendant no. 1 (Sh. Sunil Bhatia) has claimed that he has received Rs.5,80,000/ from the husband of plaintiff as part of loan amount of Rs.25,00,000/.
61. In this regard, plaintiff (Smt. Jasvinder Kaur) as PW1 stated in her crossexamination that she does not know about Rs.5,80,000/ shown to have been given to defendant no. 1 by her husband. She voluntarily stated that there may be some loan transaction between her husband and defendant no. 1. She further stated that no demand draft in the sum of Rs. 5,80,000/ was issued by her in favour of defendant no. 1. She volunteered that the same may be between the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 57/ 110 defendant no. 1 and her husband.
62. Defendants Sh. Sunil Bhatia and Smt. Vijay Rani in 'suit for possession and mesne profits' have also examined Sh. Harvinder Pal Singh Chhatwal, (husband of plaintiff) as DW2 in order to prove their case regarding availing of loan of Rs. 25 lacs from him. During his examinationinchief, DW2 (Sh. Harvinder Pal Singh Chhatwal) has admitted that he has issued the cheque Ex.DW1/4 in favour of defendant no. 1. He voluntarily stated that however the said cheque was issued by him to defendant no. 1 as he had sought a loan of Rs. 5,80,000/ from him on 21.09.2015 on interest @ 2% per month which was sought by defendant no. 1 from him in the office of Sub Registrar, Janakpuri District Centre where he alongwith plaintiff and defendant no. 1 had gone to register the sale documents in regard to suit property. He further volunteered that since there was heavy rush in the Sub Registrar office, hence by mistake the said cheque was signed by the plaintiff in lieu of himself which subsequently came to his knowledge and upon that he in lieu of that cheque issued a bank draft of Rs.5,80,000/ on 30.09.2015 to CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 58/ 110 defendant no. 1 as loan amount. He denied the suggestion that he is deposing falsely what he has voluntarily stated. He stated that he can produce his income tax records for the assessment year from 201516 and 201617. He was asked to produce the said record.
63. On the next date, the witness DW2 (Sh. Harvinder Pal Singh Chhatwal) produced his ITR for the financial year 201516 and 201617 and placed the copies of same as Ex.DW2/2 (Colly). He has also brought his original passbook of Andhra Bank and placed the copy of same as Ex.DW2/1.
64. The aforesaid chief examination of this witness DW2 (Sh. Harvinder Pal Singh Chhatwal) examined by the defendants themselves disprove their claim that Rs.5,80,000/ given to him by DW2 was a part of loan of Rs. 25 lacs. In his voluntarily statement, the witness has clarified that cheque of Rs.5,80,000/ issued by him to defendant no. 1 was in respect of separate loan demanded by defendant no. 1 from him in the office of Sub Registrar, Janakpuri, District centre where he had gone alongwith plaintiff for registration of sale documents of suit CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 59/ 110 property. He has also stated that mistakenly the said cheque was signed by his wife and when this fact came to his knowledge, he issued a bank draft of Rs.5,80,000/ to defendant no. 1 on 30.09.2015 as loan amount.
65. The Ld. Counsel for defendants except putting a suggestion that he is deposing falsely what he has voluntarily stated which was denied by the witness could not extract anything material to demolish voluntary statement given by the witness.
66. Sh. Harvinder Pal Singh Chhatwal who is defendant no. 1 in 'suit for declaration and injunction' filed by defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) also appeared as a witness in the said case as DW2 and during his crossexamination he categorically stated that he has handed over the DD of Rs.5,80,000/ on 30.09.2015 to the plaintiff no. 1 (Sh. Sunil Bhatia in this case) which was a friendly loan given to plaintiff no. 1 by him. He further stated that the said loan is not repaid by plaintiff no. 1 despite his repeated requests. He stated that he has not given any legal notice qua repayment of the said loan. He further stated that the legal notice for the recovery of Rs.5,80,000/ is CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 60/ 110 almost ready with his Advocate.
67. From the testimony of DW2 (Sh. Harvinder Pal Singh Chhatwal), the plea of the defendants that Rs.5,80,000/ was part of loan amount of Rs. 25,00,000/ is not proved. Rather, it stands proved that it was a separate loan transaction between him and defendant no. 1 (Sh. Sunil Bhatia).
68. During course of arguments, Ld. Counsel for defendants has heavily relied upon the MoU dated 21.09.2015 Ex. DW1/1 and contended that the said document clearly shows that the defendant no. 1 (Sh. Sunil Bhatia) had not sold the suit property to plaintiff (Smt. Jasvinder Kaur) but in fact the said transaction is a sham transaction just to secure the repayment of loan amount taken by Sh. Sunil Bhatia from husband of plaintiff. He further contended that the plaintiff has admitted the execution of said MoU Ex.DW1/1 and if as per the case of plaintiff, defendant no. 1 (Sh. Sunil Bhatia) had already sold the suit property to the plaintiff (Smt. Jasvinder Kaur) on 08.09.2015 and also executed the documents and handed over the possession of the suit property to her, CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 61/ 110 then there was no need and necessity of execution of MoU dated 21.09.2015 and it is not understandable that for what purpose MoU dated 21.09.2015 was executed.
69. In the light of aforesaid arguments, Memorandum of Understanding (MoU) dated 21.09.2015 Ex.DW1/1 (in 'suit for possession and mesne profits') assumes significance. MoU dated 21.09.2015 Ex.DW1/1 is reproduced herein under: This Memorandum of Understanding is executed at New Delhi, on this 21st day of September, 2015, between - Shri Sunil Bhatia son of Late Shri B.L. Bhatia resident of JGIII/4A, Ground Floor, Vikas Puri, new Delhi - 110018 (hereinafter called the first party) And Smt. Jasvinder Kaur wife of Shri H.P. Singh resident of G7, Vikas Puri, New Delhi - 110018, (hereinafter referred to as second party) Whereas the expression of the first party and second party shall means and include their heirs, successors, executors and assigns etc. of the respective parties. Whereas the first party is the absolute owner and in possession of DDA Built up Janta Flat bearing No. JGIII/4A on Ground Floor, situated at Vikas Puri, New Delhi - 110018, (hereinafter called the premises in question).
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 62/ 110 Whereas the first party has executed a transfer documents by virtue of Sale Agreement with the office of Sub RegistrarIIB, Janak Puri, New Delhi on 21 st day of September 2015, handover the possession of the said property in favour of the Second Party. Whereas the first party has agreed that he shall pay after three months Rs.25,000/ (Rs. Twenty five thousand only) per month to the Second Party.
Whereas the contents of the MOU have been explained to both the parties in their vernacular language, which have understood both the parties, then both the parties have signed this MOU with their free will sound mind and without any pressure from any corner.
This Memorandum of Understanding will remain irrevocable and binding on both the parties themselves their heirs, successors, executors and assigns etc. as well".
70. It is apparent that the MoU Ex.DW1/1 does not support the contention of the defendants regarding availing of loan of Rs. 25 lacs by defendant no. 1 from husband of plaintiff or mortgage of suit property with Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff). Had that been so, the said MoU would have been between defendant no. 1 (Sh. Sunil Bhatia) and Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff), however the said MoU has been executed between Sh. Sunil CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 63/ 110 Bhatia as First Party and plaintiff (Smt. Jasvinder Kaur) as Second Party. Rather the said MoU shows that defendant no. 1 (Sh. Sunil Bhatia) has executed the transfer documents by virtue of sale agreement with the office of Sub RegistrarIIB, Janakpuri, New Delhi on 21.09.2015 and handed over the possession of suit property to second party i.e. Smt. Jasvinder Kaur. The covenants made in MoU do not support the plea taken by defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) and the argument of Ld. Counsel for defendants that suit property was mortgaged with the husband of the plaintiff against the loan availed by defendant no. 1.
71. Perusal of MoU further shows that there is not a single averment that defendant no. 1 (Sh. Sunil Bhatia) shall pay Rs. 25,000/ per month as interest on the loan amount of Rs. 25,00,000/ taken from the husband of plaintiff. Rather the entire MoU is conspicuously silent about any loan of Rs.25,00,000/ availed by defendant no. 1 and advanced by Sh. Harvinder Pal Singh Chhatwal, husband of plaintiff. Therefore, Ld. Counsel for defendants cannot take any benefit from the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 64/ 110 MoU dated 21.09.2015 Ex.DW1/1 to support his contention that the defendant no. 1 had mortgaged the suit property with husband of the plaintiff and no sale was effected.
72. Admittedly, the MoU Ex.DW1/1 has been signed by plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal. Now, question arises that for what purpose the said MoU Ex.DW1/1 was signed by plaintiff and her husband, when she has already purchased the suit property from defendant no. 1, as also vehemently argued by Ld. Counsel for defendants during course of arguments.
73. The reason for execution of MoU dated 21.09.2015 Ex.DW1/1 has been explained by the plaintiff Smt. Jasvinder Kaur in written statement filed by her alongwith her husband in 'suit for declaration and injunction', wherein it is averred that at the time of sale of suit property, the defendants were carrying on their business in the suit property and they had no other space to carry on their respective business, hence on the day of sale of suit property, the defendant no. 1 CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 65/ 110 (Sh. Sunil Bhatia) approached her and requested to let out the suit property on rent to them on a monthly rent of Rs. 25,000/. She agreed for the same and asked the defendant no. 1 to get prepared a rent agreement in this regard. The defendant no. 1 got prepared a MOU instead of Rent agreement which was signed by her and her husband without reading the same due to paucity of time but after going through the contents of the said MoU, they found the same incorrect and not as per agreed terms and conditions of giving the suit property on rent and they instructed the defendant no. 1 to dispose of the said MoU and to get prepared afresh rent agreement as the MoU requires a lot of corrections, but the defendant no. 1 instead of disposing of the said MoU took the same with him and misused the same.
74. The aforesaid explanation given by plaintiff Smt. Jasvinder Kaur for execution of MoU shows that the said MoU was not acted upon by her and her husband, though she and her husband signed the same. The said MoU was executed on 21.09.02015 and thereafter registered lease deed dated 30.09.2015 Ex.PW1/3 was executed by defendants in CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 66/ 110 favour of plaintiff, execution of which is not disputed by the defendants. In these facts, the explanation given by plaintiff Smt. Jasvinder Kaur for execution of MoU Ex.DW1/1 appears to be logical and justifiable.
75. Apart from this, defendant no. 1 (Sh. Sunil Bhatia) as PW1 has categorically admitted in his crossexamination that in MoU Ex.PW1/2 (Ex.DW1/1 in 'suit for possession and mesne profits'), it is not mentioned that the defendant no. 2 (Smt. Jasvinder Kaur) would get freehold of the suit property within three months. He denied the suggestion that the stamp paper for MoU was purchased by him. However, the said denial is malafide because perusal of stamp paper on which MoU Ex.DW1/1 has been prepared shows that the same was purchased by Sh. Sunil Bhatia himself. Though later on, defendant no. 1 Sh. Sunil Bhatia himself admitted that the stamp paper on which MoU was prepared is in his name. He further stated that the MoU is neither notarized nor registered for the reason that the husband of the plaintiff told him that the MoU is required to be corrected at some place. This statement of defendant no. 1 (Sh. Sunil Bhatia) corroborates the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 67/ 110 stand taken by plaintiff in written statement filed in 'suit for declaration and injunction' where she has explained the reason for which MoU was prepared but not acted upon and later on lease deed Ex.PW1/3 was executed between the parties containing the terms and conditions of the tenancy.
76. It is also noteworthy that in the said MoU Ex.DW1/1 heavily relied upon by defendants, not only the factum of payment of Rs. 25,000/ as interest on the alleged loan amount of Rs.25 lacs is missing, but the defendants have also not been able to prove that any such amount of Rs.25,000/ towards monthly interest was ever paid by defendant no. 1 to plaintiff (Smt. Jasvinder Kaur) or to her husband (Sh. Harvinder Pal Singh Chhatwal).
77. Though the defendants did not take any such plea that they have paid interest @ Rs.25,000/ per month on loan amount of Rs. 25,00,000/ in the suit filed by plaintiff in 'suit for possession and mesne profits' but in their plaint filed in 'suit for declaration and injunction', in para no. 8, the defendants have pleaded that the defendant CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 68/ 110 no. 2 i.e. plaintiff Smt. Jasvinder Kaur failed to get the suit property freehold within the agreed time and even after expiry of three months of execution of MOU, though after expiry of three months, the defendant no. 1 ( Sh. Harvinder Pal Singh Chhatwal, husband of plaintiff) started taking interest of Rs. 25,000/ per month on the loan amount of Rs. 25 lacs. In para no. 9 of the plaint, it was again pleaded by defendants (plaintiffs in this case i.e. 'suit for declaration & injunction') that the plaintiff no. 1 i.e. Sh. Sunil Bhatia kept on paying interest amount to the defendant no. 2 i.e. Smt. Jasvinder Kaur.
78. First of all, the defendants are not sure to whom, whether plaintiff or her husband, the interest of Rs. 25,000/ per month on loan amount of Rs. 25,00,000/ was paid. Moreover, the said contention made by defendants in their plaint filed in 'suit for declaration and injunction' is falsified when during his crossexamination, defendant no. 1 (Sh. Sunil Bhatia) as PW1 categorically stated that he had never paid Rs. 25,000/ per month to the defendants no. 1 & 2 (Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal). It shows that the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 69/ 110 defendants are making false and incorrect statement in their pleadings and during their evidence and for this reason their version is not reliable and trustworthy.
79. Not only this, the defendant no. 1 (Sh. Sunil Bhatia) during his crossexamination as PW1 in 'suit for declaration and injunction' has stated that he or plaintiff no. 2 have never paid rent of Rs. 25,000/ per month to the defendant no. 2 i.e. Smt. Jaswinder Kaur. While the case of plaintiff Smt. Jasvinder Kaur is that the defendants paid rentals only for one month consequent to lease deed dated 30.09.2015 and they are in arrears of rent since 01.11.2015. The said plea is substantiated by none other than defendant no. 2 Smt. Vijay Rani who when appeared in the witness box as DW2 in 'suit for declaration and injunction' categorically stated in her crossexamination that she and plaintiff no. 1 i.e. Sh. Sunil Bhatia have never paid rent to defendant no. 2 i.e. Smt. Jasvinder Kaur except for first month. This categorical admission of defendant no. 2 Smt. Vijay Rani substantiates the stand of the plaintiff Smt. Jasvinder Kaur that the defendants have paid rent only CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 70/ 110 for one month and with this admission, it also stands proved that relationship of landlord and tenant came into being between plaintiff Smt. Jasvinder Kaur and defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) consequent to execution of registered lease dated 30.09.2015 Ex.PW1/3.
80. Ld. Counsel for defendants during course of arguments has vehemently argued that it is not understandable as to why the defendants would sell the suit property for a sum of Rs.13,20,000/ market value of which was more than Rs. 1 crore at the time of execution of sale documents Ex.PW1/1 (Colly) on 08.09.2015. Thus he argued that the sale transaction was only a sham transaction. The Ld. Counsel for defendants has heavily relied upon the statement of DW2 (Sh. Harvinder Pal Singh Chhatwal) in this regard who in his examination inchief has deposed that market value of the suit property in 2015 was more than Rs. 1 crore.
81. I do not find any merit in this contention of Ld. Counsel for defendants for two reasons. Firstly, it was never the case of the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 71/ 110 defendants in their pleadings that at the time of execution of sale documents Ex.PW1/1 (Colly) on 08.09.2015, the market value of the suit property was more than Rs. 1 crore and not Rs.13,20,000/. Therefore, question of selling the suit property at Rs.13,20,000/ which was worth Rs. 1 Crore does not arise. It is also a settled law that evidence beyond pleadings cannot be looked into and only on this sole count, the contention of Ld. Counsel for defendants is liable to be rejected.
82. Secondly, though in his examinationinchief, DW2 (Sh. Harvinder Pal Singh Chhatwal) when he was summoned by defendants as a witness in support of case of their case in 'suit for possession and mesne profits' has admitted that the market value of the suit property in 2015 to be more than Rs. 1 crore, but during his crossexamination he categorically stated that the market price of the property bearing No. G7 Vikaspuri, New Delhi in which he was residing was about Rs. 1 crore, which is of 388 sq. yards and a built up kothi. He further categorically stated that the suit property i.e. JGIII/4A, Ground Floor, Vikaspuri, New Delhi is a janta flat. A question was put to the witness that what CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 72/ 110 was the market price of the property i.e. JGIII/4A, Gound Floor, Vikaspuri, New Delhi in the year 2015 to which he replied that the said property was purchased by plaintiff for a sum of Rs.13,20,000/ in the year 2015 and hence the market price of the said property was Rs.13,20,000/ on which the defendant no. 1 has sold the said property to the plaintiff in the year 2015.
83. Hence, during crossexamination, the witness DW2 has clarified that the market value of the property wherein he was residing which is a kothi measuring 388 sq. yards was more than Rs. 1 crore in 2015and the suit property which is only a Janta Flat was purchased by his wife for Rs.13,20,000/ which was the market value of the said flat.
84. It is interesting to note that this witness was not re examined by Ld. Counsel for defendants regarding his explanation to the statement made during examinationinchief that market value of suit property was more than Rs. 1 crore and contradictory statement in cross examination where he stated that market value of property which he was referring was in respect of property No G7 wherein he is residing. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 73/ 110 Therefore, for this reason, the defendants cannot take any mileage on the statement of DW2 made in chief examination and argument of Ld. Counsel for defendants does not hold water that as to why the defendants would sell the property of Rs. 1 crore for Rs. 13,20,000/ or that it shows that it was only a sham transaction.
85. Furthermore, the defendants did not lead any other evidence to prove that the market value of the suit property at the time of execution of documents Ex.PW1/1 (Colly) was more than Rs.1 crore and the property which was worth Rs. 1 crore could not have been sold for Rs.13,20,000/ and it shows that the sale transaction was a sham transaction.
86. Sh. Harvinder Pal Singh Chhatwal (husband of plaintiff) who is defendant no. 1 in 'suit for declaration and injunction' when appeared in the witness box as DW2 in the said case, he was suggested that he purchased the suit property in the name of his wife which suggestion was denied by him. He voluntarily stated that the same has been purchased by his wife and she herself has given the sale CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 74/ 110 consideration. No further suggestion was put to the witness that the suit property was not purchased by plaintiff. Rather the suggestion put to the witness shows that the defendants have admitted the sale of suit property to husband of plaintiff.
87. It is also to be noted that before institution of 'suit for possession and mesne profits', plaintiff Smt. Jasvinder Kaur issued a legal notice dated 16.01.2017 to defendants Sh. Sunil Bhatia and Smt. Vijay Rani which was duly served upon the defendants which fact has not been disputed by the defendants. The defendants have claimed that the legal notice was duly replied vide reply dated 01.03.2017 Ex.DW1/2. Perusal of said reply shows that in the entire reply, defendants have not disclosed that what was the loan amount which was allegedly taken by defendant no. 1 Sh. Sunil Bhatia from husband of plaintiff. Though it was pleaded that the defendant no. 1 had mortgaged the suit property with husband of plaintiff against a loan but the entire reply is conspicuously silent what was the loan amount. It was only after the suit filed by plaintiff Smt. Jasvinder Kaur, the defendants in their written CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 75/ 110 statement took a plea that a loan of Rs. 25 lacs was taken by defendant no. 1 from husband of plaintiff which stand of the defendants appears to be an afterthought.
88. Not only this, the defendants have given different version for delay caused in replying the legal notice dated 16.01.2017 vide reply dated 01.03.2017. In written statement filed in 'suit for possession and mesne profits', the defendants have explained the reason for delay caused in replying the legal notice. They contended in para no. 7 of their written statement that after receiving the said legal notice the defendant no. 1 Sh. Sunil Bhatia approached the husband of the plaintiff and asked the reason as to why he had sent the legal notice upon which the husband of the plaintiff assured him not to worry and the legal notice was sent only due to the reason that his wife was taking the information regarding the money invested by him.
89. However, the defendants completely changed their version and explanation of delay in replying the legal notice in their 'suit for declaration and injunction' wherein it was averred that there was a little CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 76/ 110 bit delay in sending the reply of the notice by the plaintiffs because just after receiving the legal notice, the plaintiff no. 1 (Sh. Sunil Bhatia) contacted the defendants and asked them as to why they had sent such type of legal notice to them upon which the defendants i.e. Smt. Jasvinder Kaur and Sh. Harvinder Pal Singh Chatwal told the plaintiff no. 1 nothing to worry as they had sent the said legal notice because the plaintiffs have delayed the payment of interest of Rs. 25,000/.
90. The aforesaid two different versions in the pleadings of the defendants again show that the defendants are taking contradictory stand and changing their version rapidly and it renders their version uncreditworthy and unreliable.
91. It is also to be noted that after receiving the legal notice dated 16.1.2017 Ex.PW1/6, the defendants had come to know that plaintiff (Smt. Jasvinder Kaur) was claiming the ownership over the suit property by virtue of sale documents Ex.PW1/1(Colly) executed by defendant no. 1 (Sh. Sunil Bhatia). While the case of the defendants is that defendant no. 1 (Sh. Sunil Bhatia) has never sold the suit property CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 77/ 110 to plaintiff Smt. Jasvinder Kaur and he had only mortgaged the suit property against the loan taken from husband of plaintiff and as per them the plaintiff has misused the property documents which were handed over to her husband only as security. If it was so, then after coming to know the claim of the plaintiff through legal notice, it was required from a man of ordinary prudence to initiate legal proceedings but it is not understandable as to why the defendants kept silent and did not file any police complaint or took any legal action for cancellation of said sale documents Ex.PW1/1(Colly).
92. It was only when during crossexamination conducted on 30.05.2017 a question was put to DW1 (Sh. Sunil Bhatia) in 'suit for possession and mesne profits' that whether he has instituted any suit for cancellation or for declaration of the documents as null and void to which he replied that he has not instituted any such suit, thereafter he filed the 'suit for declaration and injunction' on 21.09.2015 as a counter blast to the suit filed by the plaintiff for possession and mesne profits.
93. The defendant no. 2 (Smt. Vijay Rani) did not examine CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 78/ 110 herself in suit filed by plaintiff Smt. Jasvinder Kaur for 'possession and mesne profits' though she filed her evidence by way of affidavit but she did not enter into the witness box. However, in 'suit for declaration and injunction', defendant no. 2 (Smt. Vijay Rani) wherein she is plaintiff no. 2 has examined herself as PW2 and filed her evidence by way of affidavit.
94. She deposed that she is well conversant with the facts and circumstances of the case. She deposed that her brother had purchased the property in the year 2004 and since then he is running his office of a property dealer and she is running a boutique in the property. She further deposed that since her brother is owner of the said property, on the request of her brother she had put her signatures on the lease deed dated 30.09.2015 and rent deed dated 22.08.2016 as one of the executants alongwith her brother.
95. The aforesaid examinationinchief of defendant no. 2 (smt. Vijay Rani) clearly shows that she has admitted the entire case of plaintiff (Smt. Jasvinder Kaur) regarding execution of lease agreement CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 79/ 110 dated 30.09.2015 Ex.PW1/3 and subsequent rent agreement dated 22.08.2016 Ex.PW1/6 and relationship of landlord and tenant and payment of rent only for one month. In her entire examinationinchief there is not a single assertion as made in written statement filed in 'suit for possession and mesne profits' or in the plaint in 'suit for declaration and injunction'. She has not led the evidence in support of averments made in the plaint filed by her alongwith Sh. Sunil Bhatia in 'suit for declaration and injunction'. Rather testimony of PW2 Smt. Vijay Rani shows that she has admitted the case of plaintiff Smt. Jasvinder Kaur in toto. Even during her crossexamination, she admitted that Ex.PW2/A i.e. her chief examination affidavit bears her signatures at points A and B however she does not know the contents of the same. She denied the suggestion that she is the tenant of defendant no. 2 in respect of suit property excluding one room measuring 9.2 ½ feet x 9.7 feet in backside jointly with plaintiff no. 1. She categorically stated that she and plaintiff no. 1 have never paid rent to defendant no. 2 (Smt. Jasvinder Kaur) except for first month. This statement of defendant no. 2 substantiates CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 80/ 110 the claim of plaintiff that the defendants have paid the rent of the suit property only for one month.
96. There is another aspect of the matter. The defendants have not disputed the execution of sale documents by which the suit property was sold to the plaintiff on 08.09.2015 for consideration of Rs. 13,20,000/. It is also not in dispute that amount of Rs. 13,20,000/ was credited in the account of defendant no. 1. Vide possession letter, possession of suit property was also delivered to the plaintiff. Thereafter, the plaintiff has let out the suit property to defendants vide lease deed dated 30.09.2015 Ex.PW1/3 for 11 months which was renewed by way of another lease deed dated 22.08.2016 Ex.PW1/5. The defendants did not dispute the execution of lease deeds. It has also come on record that the aforesaid documents were executed by defendants out of their free will and accord.
97. In view of above admitted facts, Section 91 and 92 of Indian Evidence Act comes into play.
98. Section 91 of Indian Evidence Act, 1972 reads as under: CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 81/ 110 Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents
- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1 - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2 Wills (admitted to probate in India) may be proved by the probate.
Explanation 1. This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
Explanation 2 - Where there are more originals than one, one original only need be proved.
Explanation 3 The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 82/ 110
99. Section 92 of Indian Evidence Act reads as under: Exclusion of evidence of oral agreement - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1) - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, (want or failure) of consideration, or mistake in fact or law:
Proviso (2) - The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the decree of formality of the document:
Proviso (3) - The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4) - The existence of any distinct subsequent oral agreement to rescind or modify any such CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 83/ 110 contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5) - Any usage or custom of such incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6) - Any fact may be proved which shows in what manner the language of a document is related to existing facts.
100. Ld. Counsel for defendants has relied upon the judgment of Hon'ble Supreme Court in Ganga Bai vs. Chhabubai" wherein it was held that: "The bar imposed by subsection (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that even, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of an oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The subsection CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 84/ 110 is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recoded in the document was entered into between the parties."
101. Ld. Counsel for defendants contended that the facts of the said judgment squarely applies to the case of Sh. Sunil Bhatia. He contended that the documents which were executed were never intended for the purpose of sale but same were executed only to secure the loan amount and as such the transaction was merely a nominal transaction and the documents executed are sham documents and were never intended to be the documents regarding the sale of the suit property.
102. There can be no dispute so far the preposition of law in the aforesaid judgment of the Hon'ble Supreme Court is concerned but in the present case in view of discussions herein above, the defendants have miserably failed to prove that the documents which were executed were CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 85/ 110 never intended for the purpose of sale but it was only to secure the loan amount. Hence, the said judgment is not applicable to the facts and circumstances of the case. Section 91 and 92 of Indian Evidence Act bars the defendants from raising any contradictory pleas to the sale documents.
103. During course of arguments, Ld. Counsel for defendants also argued that admittedly the plaintiff did not receive the rent except for one month and despite that she entered into the second rent agreement dated 22.08.2016 Ex.PW1/5 and it is not believable that any landlord would further agree to rent out the property if the tenant has not paid the rent for more than 11 months and that too without giving any notice for the arrears of rent.
104. Of course, in this case, admittedly the defendants have paid the rent for a period of one month only and despite that the plaintiff has entered into second lease agreement for a period of another 11 months. Though it sounds somewhat strange that the plaintiff who was not getting the rentals of the suit property except for one month still she CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 86/ 110 entered into the second rent agreement for another 11 months. But the facts and circumstances of the case has to be seen in its entirety. The plaintiff (Smt. Jaswinder Kaur) in the plaint has explained the reason for entering into the second lease deed with the defendants. She has averred that since she had good relations with the defendants and the defendants time and again had been assuring her to pay the accrued rent with interest, she agreed for renewal of tenancy. It is not in dispute that the parties to the suit were known to each other for long and they were also having good friendly relations. The defendant no. 1 (Sh. Sunil Bhata) has also stated that previously also he had taken loan from the husband of the plaintiff and they had good business relations. In these circumstances, the explanation of plaintiff for entering into the second lease despite arrears of rentals seems to be justified. It was not the case of the parties that the defendants were strangers to the plaintiff. Had that been the position, the argument of Ld. Counsel for defendants would have some merit.
105. In the written argument, it is also submitted by the Ld. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 87/ 110 Counsel for defendants that in MoU nowhere it is mentioned that the suit property has been let out to defendants Sh. Sunil Bhatia and Smt. Vijay Rani and had the suit property or any of its part been rented out on or about 08.09.2015 it should have been mentioned in MoU. I do not find any merit in this contention. As already discussed hereinabove, the said MoU was not acted upon by the plaintiff and justification and explanation for not acting upon the same is found to be logical in view of the fact that after execution of MoU dated 21.09.2015, the parties shortly entered into a registered lease agreement dated 30.09.2015 as explained by the plaintiff. Had the MoU been acted upon, the defendants would not have entered into the lease deed dated 30.09.2015 ExPW1/3. Furthermore, the MoU dated 21.09.2015 Ex.DW1/1 also does not mention that the defendant no. 1 had mortgaged the suit property in favour of plaintiff or that he had taken a loan of Rs. 25 lacs from the husband of the plaintiff.
106. It is also contended in the written arguments by the defendants that it is not understood that when Sh. Sunil Bhatia sold his CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 88/ 110 property as per the plaintiff Smt. Jasvinder Kaur then why he was taking further loan of Rs.5,80,000/. It is further contended that if Sh. Sunil Bhatia has taken actual amount of more than Rs. 1 crore for sale of suit property and sale consideration has been shown as undervalued in the sale documents, then certainly there was no need to take any further loan.
107. Again this contention is without any merit. The reason for availing the further loan by defendant no. 1 from husband of plaintiff after selling the suit property can be well explained by defendant no. 1. It is not so unusual that if one person has sold the property for Rs. 13,20,000/, then there cannot be any further need of the loan amount. So far as the contention of defendants that actual amount for sale of suit property was more than Rs. 1 crore and same has been shown undervalued in the documents and therefore there was no need to take any further loan. Again this contention is without any merit because it is not the case of either of the parties that the actual sale consideration was more than Rs. 1 core and sale consideration was under valued in the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 89/ 110 documents.
108. The defendants have also contended in the written arguments that in the statement of account of Sh. Harvinder Pal Singh Chhatwal, a sum of Rs. 15 lacs was transferred by cheque in the account of his wife on 21.09.2015 and a pay order of Rs. 5,80,000/ was also got prepared by him in the name of Sh. Sunil Bhatia on 30.09.2015. This document as per the defendants belies the version of Smt. Jasvinder Kaur and her husband that Smt. Jasvinder Kaur has dealt with Sh. Sunil Bhatia independently and her husband has no role to play in any alleged transaction of the suit property.
109. Again the aforesaid argument would have no bearing to the fate of the present case because even if Sh. Harvinder Pal Singh Chhatwal had transferred Rs. 15 lacs in the account of his wife, still it is none of the business of the defendants to question the said money transfer between husband and wife. Even if plaintiff has purchased the suit property out of amount transferred by her husband in her account that will not make a case of sham transaction.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 90/ 110
110. It is also contended that there are contradictions in the testimony of plaintiff, her husband and her son and Babu Lal regarding the dates when the possession of the suit property was given by defendant no. 1 to Smt. Jasvinder Kaur.
111. Of course, there are some minor contradictions but that will not go to the root of the matter. A civil case is decided on the preponderance of the probabilities and in the entirety of the facts and circumstances of the case, the minor contradictions in the testimony of PWs regarding dates of handing over possession of suit property by defendant no. 1 to the plaintiff will not have any material bearing on the fate of the present case.
112. In view of aforesaid discussions, I have no hesitation to hold that the defendants have miserably failed to prove that defendant no. 1 had availed a loan of Rs. 25 lacs from husband of plaintiff and at that time he had mortgaged the suit property with the husband of plaintiff as security against the loan and a memorandum of understanding dated 21.09.2015 was executed between the parties which CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 91/ 110 was acted upon by the plaintiff. On the other hand, plaintiff has successfully proved the execution of sale documents Ex.PW1/1 (Colly) by defendant no. 1 in her favour thereby selling the suit property to her. Thus the plaintiff is held owner of the suit property. The plaintiff has also been able to prove that the defendants have duly executed the lease deeds in her favour and as such it stands proved that the defendants were tenants under the tenancy of plaintiff in the suit property . Accordingly, issue no. (i) to (iii) in 'suit for possession and mesne profits' and issue no. (v) in 'suit for declaration and injunction' are decided in favour of plaintiff Smt. Jasvinder Kaur and against defendants Sh. Sunil Bhatia and Smt. Vijay Rani.
Issue No. (v) (in suit for possession and mesne profits) (Whether the room on the back side measuring 9.21/2' x 9.7' in the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi is still in the possession of the plaintiff?) And CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 92/ 110 Issue no. (ii) (in 'suit for declaration and injunction') (Whether the defendant no. 2 is in possession of one room on the back side measuring 9.21/2' x9.7' in the suit property i.e. DDA Built up Janta Flat bearing No. 4A in Block/Pocket JGIII on Ground Floor situated at Vikaspuri, New Delhi and if so, whether the suit of the plaintiff is barred under Section 34 of the Specific Relief Act ?)
113. As per the plaintiff, after purchase of the suit property from defendant no. 1, the same was let out to defendants except one room measuring 9.2 ½ ' x9.7' which was retained by her.
114. The plaintiff in her examinationinchief has reiterated that vide lease deed dated 30.09.2015 Ex.PW1/3, the defendants became joint tenants in the suit property under her ownership and are in possession of the suit property in the capacity of tenants. The defendants have not disputed the execution of lease deed dated 30.09.2015. Perusal of the said lease deed clearly show the portion let out to defendants Sh. Sunil Bhatia and Smt. Vijay Rani i.e. entire suit property except one room on the back side measuring 9.2 ½' x 9.7' which the plaintiff has CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 93/ 110 shown in green colour in site plan Ex.PW1/4. As per section 91 and 92 of Indian Evidence Act, the defendants cannot take a contrary stand once they admitted that the said lease deed were executed by them out of their free will and accord and also already held in the foregoing discussions. By virtue of lease deed Ex.Pw1/3 the plaintiff has been able to prove that one room measuring 9.2 ½ ' x 9.7' was retained by her before letting out the rest of the property to the defendants.
115. Even otherwise, in her examination in chief, the plaintiff Smt. Jasvinder Kaur as PW1 in 'suit for possession and mesne profits' has deposed that after purchase of suit property from defendant no. 1, she retained one room on the back side measuring 9.2 ½' x 9.7' and let out rest of the property i.e. the suit property to the defendants who are in joint possession of the suit property except the aforesaid room which is in her possession. In her crossexamination, she stated that only front portion of the suit property was given on rent to defendant no. 1. She voluntarily stated that the back portion of the suit property consisting of one room remained with her. The said room still has her belongings such CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 94/ 110 as iron, heaters and fans. She stated that she kept the said belongings in the said room after 46 days of the execution of the aforesaid documents. The belongings were kept from the front side of the house. She denied the suggestion that she never took the possession of the suit property and no belongings of her were kept in the said room.
116. Similarly, PW2 Sh. Manmeet Singh has deposed in para no. 4 of his affidavit in evidence that he is a businessman having the business of whole sale of electrical items and some of his business stock and articles are lying in one room on back side measuring 9.21/2 ft. x 9.7 ft. in the suit property as shown in green colour in the site plan Ex.PW1/4 filed by his mother Smt. Jasvinder Kaur. There is no cross examination on the said assertions made by Pw2 in his examination in chief. Only a suggestion was put to the witness that contents of para no. 4 of his affidavit are false which was denied by the witness. Except this suggestion, Ld. Counsel for defendants could not extract from the witness that the said room is not in possession of plaintiff and his business stocks are not lying there.
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 95/ 110
117. Another witness to prove that the room on the backside was retained by plaintiff is PW3 Sh. Babu Lal who deposed that the plaintiff let out the suit property to defendants vide rent agreement dated 22.08.2016 except one room on the back side measuring 9.2 ½ ' x 9.7'. During his crossexamination, he categorically stated that he does not recollect the date when he visited the suit property for keeping the goods belonging to Manmeet Singh, son of the plaintiff. The goods kept there are chord wire, wall fan, exhaust fan and other electric appliances. He was not further crossexamined and suggested that no such goods are kept in the said room or that he never visited the suit property for keeping the belongings of Manmeet Singh.
118. The aforesaid witness PW3 Sh. Babu Lal when appeared in the witness box in 'suit for declaration and injunction' as DW4 during his crossexamination stated that plaintiff was given possession of entire suit property at the time of execution of rent agreement. He volunteered that in one room of the suit property, articles of the son of the defendants were lying. He could not recollect the exact day when the aforesaid CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 96/ 110 articles were kept by the son of the defendants however it might be around 22.08.2016 at about 10.30 am. He stated that he signed the rent agreement in the office of the Sub Registrar at around 1112 AM. He denied the suggestion that articles were not kept before the execution of the rent agreement. He voluntarily stated that it was a renewal of the previous rent agreement and the articles were already lying there.
119. In view of above, it is apparent that there is sufficient evidence on record which go to show that the plaintiff is in possession of one room on the back side measuring 9.2 ½ ' x 9.7' in the suit property and the same was not let out to the defendants.
120. As such it stands proved that the plaintiff Smt. Jasvinder Kaur is in possession of one room of the suit property. The defendants in their suit for declaration and injunction have only sought declaration thereby declaring the defendant no. 1 Sh. Sunil Bhatia to be owner of the suit property but they have omitted to seek relief of possession in respect of the aforesaid room which is in possession of the plaintiff. Hence, the suit filed by defendants for declaration and injunction is barred under CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 97/ 110 Section 34 of Specific Relief Act. Accordingly, issue no. (v) in 'suit for possession and mesne profits' and issue no. (ii) in 'suit for declaration and injunction' are decided in favour of plaintiff Smt. Jasvinder Kaur and against defendants Sh. Sunil Bhatia and Smt. Vijay Rani.
Issue No. (iv) in 'suit for possession and mesne profits' (Whether the plaintiff (Smt. Jasvinder Kaur) is entitled for a decree of recovery of possession of the suit property, as prayed for?
121. The onus to prove this issue is on plaintiff Smt. Jasvinder Kaur. I have already held that the defendant no 1 Sh. Sunil Bhatia has sold the suit property to plaintiff Smt. Jasvinder Kaur vide documents Ex.PW1/1 (Colly) for a sale consideration of Rs.13,20,000/. It has also been held that the plaintiff Smt. Jasvinder Kaur after purchasing the suit property let out the same to defendants vide lease deed dated 30.09.2015 Ex.PW1/3 which tenancy was renewed by way of another rent agreement dated 22.08.2016 Ex. PW1/5. It has also come on record that CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 98/ 110 the plaintiff Smt. Jasvinder Kaur had terminated the tenancy of defendants vide legal notice dated 16.01.2017 Ex. PW1/6 because they have failed to pay the rentals of the suit property w.e.f. November 2015 in breach of terms of the rent agreement. The said legal notice was duly served upon defendants Sh. Sunil Bhatia and Smt. Vijay Rani and the same was also replied vide reply dated 01.03.2017 Ex.DW1/2.
122. Since the plaintiff Smt. Jasvinder Kaur has terminated the tenancy of defendants vide legal notice Ex.PW1/6 which has not been complied with by the defendants, the plaintiff being owner of the suit property is entitled to decree of possession of the suit property. This issue is, therefore, decided in favour of plaintiff Smt. Jasvinder Kaur and against defendants Sh. Sunil Bhatia and Smt. Vijay Rani.
Issue no. (vi) and (vii) (in 'suit for possession and mesne profits') (Whether the plaintiff is entitled for a decree of mesne profits from 01.11.2015 to 28.02.2017 in respect of the suit property against the defendants, as prayed for ?
& Whether the plaintiff is entitled for future and pendentelite mesne profits @ Rs.25000/ w.e.f. 01.03.2017 till handing CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 99/ 110 over the possession of the suit property to the plaintiff alongwith simple interest @ 18% per annum and accrued rent/mesne profits w.e.f. 01.11.2015 till possession, as prayed for?
123. Since I have already held that there exists relationship of landlord and tenant between the parties as the plaintiff had let out the suit property to defendants vide lease deed dated 30.09.2015 Ex.PW1/3 which tenancy was further extended by way of another rent agreement dated 22.08.2016 Ex.PW1/5. As per the case of the plaintiff Smt. Jasvinder Kaur, the defendants have not paid the rentals except for one month consequent to first lease deed dated 30.09.2015 and thereafter no rent was paid by the defendants and they are in arrears of rent since 01.11.2015. This fact is substantiated none other than by defendant no. 2 Smt. Vijay Rani who in her crossexamination has admitted that he and his brother have not paid the rent to plaintiff Smt. Jasvinder Kaur except for one month.
124. The contentions of defendants that they are not tenants and had not sold the suit property to the plaintiff and property documents were kept by defendant no. 1 (Sh. Sunil Bhatia) with plaintiff (Smt. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 100/ 110 Jaswinder Kaur) as security have already been rejected by me under foregoing discussions.
125. Therefore, it is held that the defendants were tenants under the tenancy of plaintiff Smt. Jasvinder Kaur and they are in arrears of rent since 01.11.2015 and plaintiff Smt. Jasvinder Kaur is entitled to recover the same. The plaintiff has terminated the tenancy of the defendants vide legal notice dated 16.01.2017 Ex.PW1/6 whereby she has demanded the arrears of rent w.e.f. 01.11.2015 and vacation of the suit property by the defendants within a period of one month from the date of receipt of said legal notice. The service of legal notice is not in dispute and the defendants have also replied the said legal notice vide reply dated 01.03.2017 Ex.DW1/2. Admittedly, the defendants despite service of legal notice have not paid the arrears of rent since 01.11.2015 and therefore the plaintiff being owner/landlady is entitled to recover the arrears of rent w.e.f 01.11.2015 to 28.02.2017 as prayed by her at the agreed rate of rent of Rs. 25,000/ per month.
126. As tenancy of defendants was terminated vide legal notice CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 101/ 110 dated 16.01.2017 Ex.PW1/6 and one month time was granted to them to vacate the suit property, but they failed to do so. Hence, after expiry of notice period, the status of the defendants in the suit property is of an unauthorized occupants and they are liable to pay unauthorized occupation charges to plaintiff Smt. Jasvinder Kaur. Plaintiff Smt. Jasvinder Kaur has claimed damages and mesne profits at the agreed rate of rent i.e. Rs.25,000/ per month, which does not appear to be on higher side. Therefore, the plaintiff Smt. Jasvinder Kaur is entitled to recover mesne profits towards unauthorized occupation charges from the defendants Sh. Sunil Bhatia and Smt. Vijay Rani @ Rs. 25,000/ per month w.e.f. 01.03.2017 till they vacate the suit property. However, plaintiff Smt. Jasvinder Kaur is required to file court fee on the mesne profits so awarded to her. These issues are accordingly decided in favour of plaintiff Smt. Jasvinder Kaur and agianst defendants Sh. Sunil Bhatia and Smt. Vijay Rani.
Issue No. (i) (in suit for declaration and injunction) (Whether the present suit is barred under Order II CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 102/ 110 Rule 2 read with Order VIII Rule 6A and 9 of the CPC?
127. The onus to prove this issue is on plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal who as defendants in their written statement filed in 'suit for declaration and injunction' have taken an objection that the suit filed by defendants Sh. Sunil Bhatia and Smt. Vijay Rani is barred under Order II Rule 2 read with Order VIII Rule 6A and 9 of the CPC. The said objection is based on the premise that the defendants (plaintiffs in this suit) have failed to file any counter claim in the suit filed by plaintiff Smt. Jasvinder Kaur for 'possession and mesne profits' against them.
128. However, provisions of Order II Rule 2 CPC are not attracted because as per Order 8 Rule 6A CPC, the defendant may set up counter claim in the suit or may file separate suit. There is nothing which prohibits the defendant from filing a separate suit instead of raising a counter claim in the suit filed by the plaintiff.
129. Order 8 Rule 9 CPC has also no applicability which talks about the subsequent pleadings which cannot be filed without leave of CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 103/ 110 the Court. Question of applicability of order II Rule 2 does not arise as there was no previously instituted suit by the defendants in which they have omitted to seek any relief as sought in their 'suit for declaration and injunction'. Hence, the suit filed by defendants for 'declaration and injunction' cannot be said to be barred under Order II Rule 2 CPC. Accordingly, this issue is decided against plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal who are defendants in the said suit.
Issue No. (iii) (in suit for declaration and injunction) Whether the suit is bad for misjoinder of the parties as the defendant no. 1 is not necessary and proper party ?
130. The onus to prove this issue is on plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal who as defendants in 'suit for declaration and injunction' have taken a plea defendant no. 1 in the said suit i.e. Sh. Harvinder Pal Singh Chhatwal has no concern with the suit property and he is not necessary party to the suit and hence CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 104/ 110 suit is bad for misjoinder of parties.
131. During course of the arguments, Ld. Counsel for plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal has not pressed this issue and did not make any submission on the same.
132. Admittedly, Sh. Harvinder Pal Singh Chhatwal is also one of the attesting witnesses to the Agreement to Sell Ex.PW1/1 (Colly) and lease deeds Ex. PW1/3 and Ex.PW1/5 and from the entire material on record it cannot be said that Sh. Harvinder Pal Singh Chhatwal, defendant no. 1 in this suit is not a necessary party. Hence, this issue is decided against plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal (defendants in this case).
Issue No. (iv) (in suit for declaration and injunction) (Whether the present suit has been undervalued for the purpose of court fee and jurisdiction and the property court fee has not been paid by the plaintiff ?)
133. First of all, this issue has not been pressed by the Ld. Counsel for plaintiff Smt. Jasvinder Kaur and her husband Sh. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 105/ 110 Harvinder Pal Singh Chhatwal during course of the arguments nor any submissions were made by him in the written arguments.
134. The onus to prove this issue is on the plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal who in their joint written statement have taken a plea that the suit has not been properly valued for the purposes of jurisdiction and the court fees which is payable on the market value of the suit property. However, plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal have not disclosed in their written statement as to how the suit is undervalued for the purposes of jurisdiction and court fees and what was the market value of the suit property at the time of institution of the suit by defendants on which they ought to have paid the court fees.
135. Perusal of record shows that the defendants Sh. Sunil Bhatia and Smt. Vijay Rani have valued their suit (for declaration and injunction) at Rs. 13,20,000/ and for the relief of declaration, they have valued the suit at Rs. 200/ and for injunction they have valued the suit at Rs. 130/ upon which requisite court fee of Rs. 15,345/ has been CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 106/ 110 affixed.
136. Plaintiff Smt. Jasvinder Kaur and her husband have neither disclosed in their written statement nor led any evidence to show that the court fee filed by the defendants was deficient at the time of filing the present suit qua each relief sought and in the absence of any evidence, it cannot be said that the suit filed by defendants has not been properly valued for the purposes of court fees and jurisdiction. Hence, this issue is decided against plaintiff Smt. Jasvinder Kaur and her husband Sh. Harvinder Pal Singh Chhatwal.
Issue no. vi and (vii) (In 'suit for declaration and injunction') (Whether the plaintiff (Sh. Sunil Bhatia in this case) is entitled to decree of cancellation of registered GPA and Agreement to Sell executed on 08.09.2015 and registered on 30.09.2015 and SPA, Receipt, Registered Lease Deed, all dated 30.09.2015 in favour of defendant no. 2 ?) & Whether the plaintiff (Sh. Sunil Bhatia in this case) is entitled to decree of declaration declaring himself to be the owner of the suit property ?
CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 107/ 110
137. These issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common, onus to prove of which is upon defendants Sh. Sunil Bhatia and Smt. Vijay Rani.
138. Since the defendants have miserably failed to prove their case that the defendant no. 1 Sh. Sunil Bhatia is owner of the suit property and he executed the documents Ex.PW1/1 (Colly) only for security purposes and further since plaintiff (Smt. Jasvinder Kaur) has already been held owner of the suit property and entitled to decree of possession of the suit property, the defendant no. 1 Sh. Sunil Bhatia cannot claim himself to be owner of the suit property and he cannot be declared as owner of the suit property nor the documents Ex.PW1/1 on the basis of which the plaintiff is held owner of the suit property can be cancelled. The defendants cannot be said to be entitled to decree of cancellation as well as decree of permanent injunction as prayed for. Hence, these issues are decided against defendants Sh. Sunil Bhatia and Smt. Vijay Rani and in favour of plaintiff Smt. Jasvinder Kaur. CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 108/ 110 RELIEF
139. In view of my above issue wise findings in both the suits, the 'suit for declaration and injunction' filed by defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) against plaintiff (Smt. Jasvinder Kaur) and her husband (Sh. Harvinder Pal Singh Chhatwal) bearing Civil Suit No. 951/17 is dismissed and the 'suit for possession and mesne profits' filed by the plaintiff (Smt. Jasvinder Kaur) bearing Civil Suit No. 296/17 is decreed. Consequently, a decree of possession is passed in favour of plaintiff (Smt. Smt. Jasvinder Kaur) and against defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) in respect of the suit property i.e. . DDA Built up Janta Flat bearing No. 4A in Block/Pocket - JGIII, Ground Floor situated at Vikaspuri, New Delhi as shown in red colour in site plan Ex.PW1/4 filed in suit for possession and mesne profits (except one room on back side measuring 9.21/2' x 9.7') as shown in green colour in the site plan.
140. Plaintiff (Smt. Jasvinder Kaur) is also entitled to recover the CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 109/ 110 arrears of rent from defendants (Sh. Sunil Bhatia and Smt. Vijay Rani) w.e.f. 01.11.2015 till 28.02.2017 @ Rs.25,000/ per month and thereafter unauthorized occupational charges/mesne profits at the same rate i.e. @ Rs. 25,000/ per month w.e.f 01.03.2017 till the vacation of suit property by the defendants. However, plaintiff (Smt. Jasvinder Kaur) is required to pay court fees on the mesne profits so awarded to her w.e.f. 01.03.2017 till the date of this judgment. She is also awarded cost of the suit filed by her against the defendants.
141. Decree sheet be prepared accordingly on deposit of court fees by plaintiff (Smt. Jasvinder Kaur) on the mesne profits so awarded to her.
142. File be consigned to Record Room after necessary compliance.
Announced in the open Court (Balwant Rai Bansal) th on 16 March, 2020 Addl. District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 296/17 Jasvinder Kaur vs. Sunil Bhatia & Anr.
& CS No. 951/17 Sunil Bhatia & Anr vs. Harvinder Pal Singh Chhatwal & Anr. Page 110/ 110