Ravinder Parkash Punj vs Neeraj Aggarwal on 31 October, 2022

[Cites 30, Cited by 0]

Delhi District Court

Ravinder Parkash Punj vs Neeraj Aggarwal on 31 October, 2022

                   In the Court of Shri Sanjiv Jain,
 District Judge (Commercial Court)03, Patiala House Courts
                         New Delhi
CS (Comm)No. 42/2021

Ravinder Parkash Punj
S/o Late Sh. Kanahyalal Punj
R/o 10, Prithvi Raj Road,
New Delhi-110001
                                                             ... Plaintiff

                                 Versus

1.

Neeraj Aggarwal S/o Sh. Niranjan Lal Aggarwal R/o G-454, Preet Vihar, New Delhi-110092

2. Pramod Aggarwal S/o Sh. Niranjan Lal Aggarwal R/o G-454, Preet Vihar, New Delhi-110092 .... Defendants Date of institution : 05.02.2021 Date of reserving of judgment : 17.10.2022 Date of decision : 31.10.2022 JUDGME NT

1. The plaintiff Ravinder Prakash Punj has filed the suit, (filed on 04.02.2021) for permanent & mandatory injunction and recovery of arrears of rent against the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.1 of 92 defendant no. 1 Neeraj Aggarwal and defendant no. 2 Pramod Aggarwal for restraining them from entering into or possessing / occupying the premises admeasuring 832 sq. ft in the basement area of Punj House Annexe, at Plot No. 4 & 5 (backside portion), M-13, Middle Circle, Connaught Place, New Delhi, directing them to remove their goods / articles lying in a portion of the property and for recovery of Rs. 16,63,200/- towards arrears of rent of past three years from January 2018 to December 2020 @ Rs. 30,000/- per month along with interest. The plaintiff amended the suit (amended plaint filed on 15.03.2021) incorporating the relief of recovery of possession alleging that area in the occupation of the defendants is 530 sq. ft. and not 832 sq. ft. and the defendants are not the lessee (s) but the licensee (s).

2. It is averred that the plaintiff is the owner of the property, which was till recently in the occupation of the defendants in the capacity of a licensee being used as a godown for storing mineral water and cold drink bottles etc. The entire property was owned by 'Punj Family' amongst whom, there was dispute with respect to possession as well as ownership. The dispute was finally settled by Memorandum of Family (mediation) settlement, which was formally approved by the Supreme Court vide order dated 17.08.2016. By virtue of the settlement, the aforesaid property fell to the share of the plaintiff. It is stated that as per the knowledge of the plaintiff, defendants were paying Rs. 25,000/- per month initially to CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.2 of 92 'Punj Sons Pvt Ltd' of whom, plaintiff is a Director with 33% share holding but they stopped paying the rent / license fee to the company even long before the family members settled their disputes, since the year 2010-11. It is stated that the nature of occupation factually shows that the defendants are not in exclusive occupation / possession of the portion of the basement area, so they were not the tenant (s) but the licensee (s). In the notice issued by the company, nature of occupation of the defendants was also described as that of the licensee. It is stated that there is a door at the ground floor of the basement which was maintained by the Punj Family and presently by the security of the plaintiff, who had put a lock on the main door. However, on many a occasions, defendants were permitted to put their lock on the door for the convenience of their entry but overall control of the basement was of the Punj Family or the plaintiff. It is stated that it has to be adjudicated by the Court whether nature of occupancy of the defendants in the portion of the basement area is of license or lease, since, the Predecessor owner in some of the correspondence has loosely referred the defendants as tenant (s).

3. It is stated that the plaintiff, after becoming the sole owner, on many a times asked the defendants to pay the market rate of rent / license fee or vacate the property but the defendants did not pay any heed as they neither tendered nor paid the rent / license fee and continued to occupy the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.3 of 92 portion, free of charge.

4. It is stated that on 12.01.2021, CBI conducted a raid at the portion of the property in occupation of the defendants and removed the locks of the defendants to conduct the search operation in connection with an FIR registered against the defendant no. 1, which culminated into his arrest relating to an offence under PC Act. It also came to the knowledge of plaintiff that the defendants have been conducting some illegal activities from the suit property. Although, he was at great unease at the conduct of the defendants but he did not interfere and confined himself to ask them to make the payment of market rate of rent / license fee to him. Since, after removing the locks by CBI and arrest of defendant no. 1, there was a breach to the security of other portions of the property, he put his own lock at the entrance of the basement portion of the property, which was being occupied by the defendants.

5. It is stated that after releasing on bail, defendant no. 1 made several attempts to break open the lock to which he told him to remove all his goods and take them away as he is no longer interested in the defendants continuing with the occupation of the property but the defendants time & again came with a team of bad elements and threatened the security staff with dire consequences. They, instead discharging their liability to the plaintiff by making payment of all the arrears of rent / license fee, indulged in such CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.4 of 92 practice and tried to gain forcible entry into the suit property. They also approached the local police with a complaint to whom he apprised that defendants are the trespassers and they have no right to occupy the suit property since they have not paid the rent / license fee for 9-10 years. It is stated that although, the plaintiff is entitled to arrears of rent / license fee since 17.08.2016, the day, the property fell to his share but in view of limitation, he is claiming arrears of rent / license fee @ Rs. 30,000/- per month from January 2018 to December 2020.

6. On getting summons of the suit, defendant no. 1 filed his written statement cum counter claim (filed on 20.02.2021) wherein he denied the averments made in the plaint and alleged that defendant no. 2 has no concern with the tenanted premises. It is he, who is the tenant in the premises. It is alleged that the plaintiff has put locks in the tenanted premises illegally, though, his goods are lying in the premises. He has wrongly alleged that CBI had removed the locks with a view to conduct search operation. It is stated that FIR in fact was against a police personnel, who had demanded bribe from a person. He had reported the matter to CBI and handed over the bribe at his shop. CBI immediately recovered the bribe money, thus CBI had no concern with his premises nor had occasion to raid his godown. Rather, he has lodged an FIR No. 19/21 against the plaintiff for illegal locking of the tenanted premises under his occupation under CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.5 of 92 Section 448 IPC.

7. It is stated that suit is barred under Section 50 of Delhi Rent Control Act, 1958 (DRCA) as the rate of rent of godown is neither Rs. 18,000/- nor Rs. 25,000/- but Rs. 2000/- per month. The tenancy is about 40 years old. The premises was taken on rent by his father Sh. Niranjan Lal Aggarwal. It is stated that the plaintiff has no right to demand market rate of rent or ask him to vacate the suit property as the defendant is a bonafide tenant under DRCA and no ground of eviction exists in his favour. Defendant no. 1 also denied having not tendered / paid the rent of the suit property or that he has been occupying the tenanted premises free of charge. It is stated that there are two gates at the tenanted premises. The lock on wooden door of the basement is of still of defendant no. 1. In his absence, plaintiff removed the locks on the main gate of jali darwaja and put his lock illegally while he was in custody. After release, when he went to the premises and enquired as to who removed the lock, he came to know that it was the plaintiff, who removed the lock and put his own lock. He was also threatened with dire consequences by one Chand Khan, man of the plaintiff. It is stated that the defendant is not in arrears of rent, rather, plaintiff is liable to remove the lock, which he has illegally put at the entrance of the tenanted premises. It is stated that defendant has already paid rent upto December 2020 but he has not been issued the rent receipts. It is stated CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.6 of 92 that the suit is without any cause of action.

8. In the counter claim, defendant no. 1 stated that plaintiff is liable to restore the possession of the suit property to him under Section 6 of the Specific Relief Act, 1963.

9. Defendant no. 1 in the amended written statement (filed on 02.08.2021) to the amended plaint / amended counter claim (filed on 05.04.2021) reiterated as alleged in the WS. It is stated that he never remained as licensee in the property in question. He was using and occupying the premises as tenant which has also been shown in the documents filed by the plaintiff. He has been running business under the name of Aggarwal Store from there. It is stated that his father used to make ice cubes in the basement. He had installed machine which is still in the basement. He denied having received any notice allegedly sent by Punj Sons Pvt Ltd or that he is not in exclusive control and occupation of the entire basement area but only in occupation of a small portion or that the overall control lies with the 'Punj Family' and presently the plaintiff or that the door at the ground floor of the basement is maintained by the Punj family / security of the plaintiff or that sometimes, he was permitted to put his lock on the door at the ground floor for convenience of entry or that nature of occupation is that of licensee. It is stated that entire basement measuring 1800 sq. ft. is exclusively under his tenancy and its overall control CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.7 of 92 exclusively remained with him. It is stated that the predecessor of the plaintiff never remained in any portion of the basement since the day it was let out to his father. It is stated that Punj Family was in possession of a separate portion of basement in which electricity meters have been installed. The passage for going to that place is from the other side i.e. front side of the building. It is stated that the passage from the ground floor to the basement under his use is entirely different. It is stated that the plaintiff has no right to demand market rate of rent from him or ask him to vacate the property since, he is a bonafide tenant under DRCA. It is stated that he has paid rent upto December 2020 but no rent receipt has been issued to him.

10. The plaintiff in the replication, (filed on 17.03.2021) to the written statement and amended replication to the amended written statement (filed on 12.08.2021) and reply to the counter claim (filed on 05.06.2021) denied the averments made in the written statement and reiterated the facts as stated in the plaint. It is alleged that initially, defendant no. 2 was given permission to use the portion of basement of the building known as 'Punj House' located at the rear portion of plot no. 4 & 5, Connaught Place. New Delhi but later defendant no. 1 started using the basement portion. To avoid any confusion, he has sued both the defendants, who are brothers. It is stated that the actual area of the portion of basement under occupation of defendant is CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.8 of 92 530 sq. ft. not 832 sq. ft. as alleged in the original plaint. It is stated that there was an error with respect to describing the nature of occupancy right of the defendants, who were given only a license to use the premises. It is stated that the defendants were operating from middle circle of the Connaught Place just adjacent to the Annexe building and they were permitted to use the portion of the basement area to store / stock mineral water bottles etc, which they were selling from the stall. There is a door at the ground floor of the building from where staircase goes to the basement in use of the defendants. There is a small store which is under the lock and key of the defendants. It is stated that defendants have never been in exclusive control, use and occupation or possession of the portion of the basement area.

11. It is stated that after filing of suit, plaintiff recovered from the record of the office of the company that the defendants were the licensee. Punj Sons Pvt Ltd had sent two letters, one dated 25.03.2009 for demand of license fee at Rs. 18,000/- per month for the months of February and March 2009 which defendant no. 2 had refused to receive and the second dated 23.04.2009 to defendant no. 2 qua demand of license fee for the months of March - April 2009 @ Rs. 18,000/- per month which was duly received by defendant no. 2 but he did not send any reply. It is stated that since defendant no. 2 stopped paying the license fee, notice dated 17.02.2012 was sent through registered post terminating the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.9 of 92 license and demanding the license fee @ Rs. 18,000/- per month for the months of December 2011 to January 2012, which notice was also refused by defendant no. 2. Again a letter dated 14.03.2017 was sent by his younger brother namely Nilender Prakash Punj informing defendant no. 2 about the family settlement, demanding the license fee at Rs. 18,000/- per month w.e.f. December 2011 and terminating the license, which the counsel for the defendant no. 1 had replied vide dated 30.03.2017 stating that it is defendant no. 1 who is the licensee and not the defendant no. 2, asking for proof of the family settlement. It is stated that there was no specific denial of the contents of letter nor it is mentioned who has paid the rent / license fee upto February 2017. It is stated that on 12.06.2017, a communication was sent by 'Punj Sons Private Limited' whereby, relevant record relating to family settlement was supplied to the defendants which the defendants never replied. It is stated that even if, it is a case of tenancy, the same has already been terminated. It is stated that the company used to maintain a regular ledger account of payment of license fee by the defendant no. 1 as per which last payment of Rs. 18,000/- was made till November 2011. After November 2011, defendant no. 2 stopped paying the license fee. He denied that the rent is Rs. 2000/- per month or defendant no. 1 is a protected tenant under DRCA. It is stated that defendant has not placed any document about the payment of monthly license fee / rent till December 2020 as claimed.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.10 of 92

12. It is stated that the plaintiff has not dispossessed the defendants from the portion of the property in their occupation. The main door from where the staircase goes to the basement has only been locked by him which used to be under the lock of the plaintiff since the defendants were occupying only a portion of basement and other area of the basement was in the occupation of the plaintiff. It is stated that the defendant no. 1 has not been dispossessed but denied access to the area by putting lock at the door at the ground floor at the beginning of the staircase leading to the basement.

13. It is stated that the relief under Section 6 of the Specific Relief Act is an equitable relief. A person who has not been making payment of license fee since December 2011 has no right to approach the Court to claim this equitable relief. Moreso, when he is in occupation of the portion of the basement. It is stated that counter claim of defendant no. 1 is not maintainable in view of Section 108 (c) r/w Section 111

(g) of the Transfer of Property Act since payment of monthly rent is a pre-condition.

The defendant filed the rejoinder to the amended reply to the counter claim (filed on 02.08.2021).

14. Despite service, defendant no.2 did not appear and he was proceeded against ex-parte vide order dated 06.04.2021.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.11 of 92

15. During the course of proceedings, the court after hearing the counsel for the parties vide order dated 06.09.2021, appointed Ms. Samvartika Pathak as the Local Commissioner to visit the place, prepare plan of the area and get the area photographed and videographed. The Local Commissioner pursuant thereto filed the report vide dated 13.09.2021, which was neither challenged by the parties.

16. I may mention that this court vide detailed order dated 29.01.2022, dismissed the application of the plaintiff under Order 12 Rule 6 CPC holding that since, in the present case, triable issues have been raised and there is no clear and unequivocal admission on the part of defendant no. 1 and that the objections raised by the defendant go to the root of the matter, it would not be in the fitness of things to exercise discretion under Order 12 Rule 6 CPC giving relief to the plaintiff as prayed for at this stage. The court vide the same order, also disposed of the application of defendant no.1 under Order 39 Rule 1 and 2 CPC holding as under:-

32. Now coming to the relief prayed for by defendant no. 1 in the application under Order 39 Rule 1 & 2 CPC in the counter claim filed under Section 6 of the Specific Relief Act, it is an admitted case of the parties that the suit premises was in possession and occupation of the defendants before January 2021. After the CBI raid on 12.01.2021 and arrest of the defendant no. 1, the plaintiff had put his locks at the entrance of the basement portion of the property for which, the defendant no. 1 has lodged an FIR No. 19/2021 at the PS Connaught Place under Section 448 IPC. In this case, local commissioner was appointed by the Court after recording the submissions of the parties on 06.09.2021. She has submitted the report CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.12 of 92 with site plan as Annexure-2, video-graphy and photograph as Annexure-3 interalia that two gates are installed at entry 1 as shown in Annexure-2. The first gate has two locks, one was opened by the caretaker of the plaintiff and other was broken by the caretaker. The second gate has one lock, which was opened by the defendant. A staircase goes to the basement. Towards the left, a room is locked, which was opened by the defendant.

There is an open hall with office having aluminum partition, where old machinery is found. The hall has two doors, which is locked. A shutter is installed at entry 2 of the property, which was locked and the lock was opened by the caretaker of the plaintiff. A staircase goes to the basement, where there are two gates as door 3 & door 4, which were not opened during the inspection.

33. The averments made in the plaint show that it was the plaintiff, who has put the locks after the CBI raid and the arrest of defendant no. 1. After his release, the plaintiff has not opened / removed the locks. It is an admitted case of the parties that the goods / machinery have been lying in the basement area. It is true that the plaintiff has restricted the entry of the defendants in the basement area but it is also to be noted that the defendant no. 1 has not paying the rent / license fee. The plaintiff has stated to have not received the rent / license fee since 2011. Although, the defendant no. 1 has stated that the rent upto December 2020 has been paid but he has not produced any receipt or document of the same. Since, triable issues exist whether the premises was on lease or license, no finding at this stage can be given that the license of the defendants was terminated by the plaintiff or not. It is well settled as per Section 108 (c) of the Transfer of Property Act that obligation of the lessee to pay the rent is a pre condition to enjoy continuous possession as held by the Supreme Court in Raghuram Rao And Others vs Eric P. Mathias And Others AIR 2002 SC 797 and the case of Anil Suri & Ors Vs. Vikrant Khan & Ors (supra). It is an obligation of a tenant to regularly pay the rent / license fee. In the instant case, the defendant has not produced any document as to paying of rent to the plaintiff or his predecessor. Only a bald assertion has been made that no receipt has been issued. The contention of the plaintiff has some logic since in the instant case, there was already a dispute as apparent from the exchange of notices previously. The defendant no. 1 in these circumstances would have taken abundant precaution to make the landlord issue a receipt or he would have made the payment through cheque. The relief CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.13 of 92 of injunction is an equitable relief. It is well settled that a lessee / licensee even a trespasser cannot be dispossessed except by due process of law. Equity demands that the defendant no. 1 should pay the arrears of rent / license fee first for the period from January 2018 till date and thereafter, seek the relief qua directing the plaintiff to remove the lock, which he has put in the premises after the CBI raid.

34. As regards the contention that the plaintiff has loosely used the word 'lease or license', it is a matter of trial and it is too early to say whether the premises was given on rent / license or it was in exclusive possession of the defendants as claimed by the defendant no. 1 or the plaintiff also had access in the basement area.

17. Vide the same order, the court directed the plaintiff to remove the locks, which he had put at the entrance of the basement subject to the defendant paying the arrears of rent / license fee w.e.f. January 2018 till date within 15 days from today and giving an undertaking that till disposal of the suit, he will continue paying the rent / license fee @ Rs. 2000/- per month. This was subject to the final outcome of the suit. The defendant paid the arrears in terms of the order and he was restored the possession.

18. From the pleadings of the parties, following issues were framed vide order dated 18.02.2022:-

1. Whether the plaintiff is entitled to equitable relief of permanent injunction as prayed for in prayer para (a)?

OPP.

2. Whether the plaintiff is entitled to a relief of mandatory injunction, whereby, directing the defendant to remove their goods / articles lying in the portion of the property in question ? OPP.

3. Whether the plaintiff is entitled to recovery of possession CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.14 of 92 in respect of the property measuring 530 sq.ft in the basement area of Punj House Annexe on plot no. 4 & 5 (back side portion), M-13, Middle Circle, Connaught Place, New Delhi as prayed for? OPP

4. Whether the plaintiff is entitled to recovery of a sum of Rs. 16,63,200/- towards arrears of rent of the period from January 2018 to December 2020? OPP

5. Whether the plaintiff is entitled to interest, if so, at what rate? OPP

6. Whether the suit is bad for misjoinder of defendant no. 2? OPD

7. Whether the defendants are lessee or the licensee of the premises in question? OPP/OPD

8. Whether the suit is barred under Section 50 of the Delhi Rent & Control Act? OPD

9. Whether the rate of rent was Rs. 18,000/- per month or Rs. 25,000/- per month or @ Rs. 2000/- per month? OPP/OPD

10. Whether the counter claimant / defendant no. 1 is entitled to restoration of possession as prayed for in the amended counter claim by the counter claimant / defendant no. 1? OPD

11. Whether the defendant no. 1 is in possession of the area measuring 530 sq.ft or 832 sq.ft or 1770 sq.ft of the premises in question? OPP/OPD

12. Relief.

19. Services of Sh. Inderjeet Singh, Additional District and Sessions Judge (Retd.) were taken for recording the evidence of the parties vide order dated 25.04.2022.

20. In order to substantiate his case against the defendants, plaintiff examined Sh. Sunil Kumar Jain, Manager CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.15 of 92 (Accounts) his Attorney as PW-1, Sh. Anil Chand Sharma (A.C Sharma), Director in Punj Sons Private Limited as PW- 2 and Sh. Chand Khan, Real Estate Manager of the plaintiff as PW-3.

21. To rebut the claim of the plaintiff and to substantiate his counter claim, defendant no.1 examined himself as D1W1 and Sh. Pramod Aggarwal, his brother as D1W2.

22. PW-2 tendered his affidavit Ex.A-2 in evidence. He stated that he has been the Director in Punj Sons Private Limited since 2000. He admitted that he never met the defendants at any point of time and what he stated in the affidavit was on the basis of the input provided by his office and on the basis of initial correspondences made by him in the form of letters. He stated that the terms of tenancy was settled between the Chairman of Punj Sons Private Ltd (Sh. V.P Punj and Sh. Pramod Aggarwal) and not in his presence. He denied that the terms were settled between Sh. V.P Punj and Sh. Niranjan Lal Aggarwal. He stated that the permission to use the premises was given in around 2000 for stocking of materials in the part of the property i.e. basement annexe but he denied that at the time of settling the tenancy, Sh. V.P Punj was paid a pagri of Rs. 5.0 lakh by Sh. Niranjan Lal Aggarwal or that it happened about 40 years ago. He admitted that personally, he never received rent from any of the defendants but stated that one Pandita, who used to work with Sh. V.P Punj used to CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.16 of 92 receive the rent. He stated that the lease agreement was never reduced into writing in respect of the basement. He stated that he had not physically visited the basement after 2000. As to the extent of area in the occupation of defendants, he stated that when the letter Ex.PW-2/12 was written, the addressee were in occupation of the area admeasuring 1770 sq.ft. approximately. He gave similar answer in respect of letter Ex.PW-2/9, where the area in occupation of defendant Pramod Aggarwal is stated to be 1770 sq.ft. He stated that total area of the basement is 2500 sq.ft. He stated that electric meters are installed on the wall under the staircase and it is not in his notice whether there was any other tenant in the remaining portion of the basement other than 1770 sq.ft. He stated that he had issued the letter Ex.PW-2/12 in the capacity of the Director. He admitted that counter foils of the rent receipt do not bear the signature/acknowledgment of the defendants. He denied that Pandita used to collect the rent at Rs. 2000/- per month and he never issued the rent receipt. He admitted that Pramod Aggarwal used to operate a shop at M-1/3, Middle Circle, Connaught Place since 2000 but he stated that he does not know if Niranjan Lal Aggarwal was operating the shop in 1973. He stated that CBI raid was not conducted in his presence.

He stated that there was no electricity in the basement. He denied that there was electric supply to the basement and Niranjan Lal and Neeraj Aggarwal used to pay electricity CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.17 of 92 charges as per the sub meter reading besides rent and their electricity was disconnected illegally.

23. PW-3 Sh. Chand Khan is the Real Estate Manager of the plaintiff since 21.08.2017. He tendered his affidavit Ex.A-3 in evidence and stated that he used to look after and manage the affairs relating to the immovable properties of the plaintiff including the portion in occupation of the defendants. He stated that the plaintiff never visited the basement area after acquiring the ownership including the area in occupation of the defendants and he used to convey the instructions to him. On his instructions, he had asked the defendants to pay monthly rent at Rs. 25000/- which was never paid. He stated that except a hall admeasuring 530 sq.ft., rest of the area of the basement is completely vacant and there has never been any electricity connection in the basement area. He stated that entry to the area is from the Middle Circle of Connaught Place and there is no other entry to that area. One key used to be with the defendants and second key used to be with him but since the major part of the basement was lying vacant, there was hardly any necessity to access the basement area. He stated that after the CBI raid, the doors were opened and he put the lock on the door. He stated that he has been working with the plaintiff since 2017 but prior thereto, since 2003-2004, he used to work at his residence. He saw the defendant operating in the basement when he joined the job i.e. in August, 2017. He CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.18 of 92 stated that no two ice cube machines were lying in the basement during the inspection of the Local Commissioner. He however admitted that photographs of the spot were taken and crates of mineral water and cold drinks were lying in large quantity in the room. He did not give any definite answer about the two machines installed in the room but stated that 'kuch rakha hua hai' but he later admitted that machines were there. He stated that in a separate room, electricity meters are installed but these meters have nothing to do with the basement and the door towards electricity meter is from the front side of the building. He admitted that rate of rent was not settled in his presence. He stated that he does not know when the basement was given to the defendants.

24. PW-1, Sunil Kumar Jain is the Special Power of Attorney of the plaintiff. He tendered his affidavit in evidence Ex. A-1 and stated that the plaintiff is more than 86 years of age. He has not moved out from his residence for about 3-4 years except for getting medical treatment. He being the Accounts Manager of the plaintiff for about 32 years, is aware of the facts of the case. He stated that the suit property measures 832 sq.ft. but later he said that the property measuring 530 sq.ft. has fallen to the share of plaintiff as per the settlement. He stated that he was present during the inspection conducted by the Local Commissioner appointed by the court. In para 19, he stated that the lock on CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.19 of 92 the left side was opened by defendant no.1 which had access to a hall admeasuring 530 sq.ft. where defendant no.1 had stocked his material and the remaining part of the basement was empty. However, there was some scrap material lying in a very small portion of the basement say, 25-30 sq.ft. and the rest of the basement area measures 1700 sq.ft. which was completely vacant and there was no electricity supply to the basement. From the portion of the basement, there was no access to the other side. He proved the family memorandum settlement Ex.PW1/1 and stated that prior to 2016, he never visited the suit property and it was only in 2016, he came to know about the basement. He stated that he does not know Niranjan Lal Aggarwal. He stated that defendant may be tenant since 2004. He stated that portion measuring 832 sq.ft. of basement is owned by Ravinder Prakash Punj and other portion belongs to his brother Nilender Prakash Punj and total area of the basement is 1800-1900 sq.ft. He denied that entire basement was under the occupation of the defendant. He stated that he has no idea if any site plan of specific area of 530 sq.ft. was filed in the court. He stated that he was not present when CBI conducted the raid. He stated that though the premises was given on rent to Pramod Aggarwal in 2000 by Punj Sons Private Limited but now, Neeraj Aggarwal has been continuing in the suit property.

25. D1W1 Neeraj Aggarwal is defendant no.1 himself. He tendered his affidavit in evidence Ex.DA-1 in evidence and CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.20 of 92 deposed that his father N.L Aggarwal was inducted as tenant by Sh. V.P Punj in the entire basement except the electric room as shown red in the site plan Ex.DW-1/1/PW-3/D1. At that time, Sh. V.P Punj had taken huge pagri amount of Rs. 5.0 lakh and the rate of rent was settled at Rs. 2000/- per month excluding electricity charges. His father was carrying on the business of cold drinks, mineral water, ice cubes etc in the name of Aggarwal Store. His father used to make ice cubes in the basement in one room and for that purpose, he had installed two ice cubes machines which are still lying in one of the room of the basement which the Local Commissioner during inspection also noticed. In the basement, he has a stall, gallery cum office and godown. He stated that for about 6-7 years, he has not been making ice cubes as his brother has installed a plant at Noida from where he purchases ice cubes. He stated that keys of the door at the ground floor to the basement always remained with him and his father was never the licensee in the suit property. He regularly paid the rent at Rs. 2000/- per month besides electricity charges to Sh. V.P Punj but he did not issue any rent receipt. He stated that it is an admission on the part of the plaintiff/his predecessor that he is tenant in respect of an area 1770 sq.ft. but later the plaintiff falsely pleaded that he is licensee not the tenant though overall control over the entire basement shown red in the site plan Ex.DW-1/1 exclusively remained with him as tenant since the day it was let out. He stated that he was falsely arrested by CBI and CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.21 of 92 when he was released from custody, he found that plaintiff's representative/PW-3 illegally broken open the lock of the entrance gate and put his lock. Although he requested him to open the lock but he threatened him with dire consequences for which he lodged the complaint. In the Police Station Connaught Place, he was called. IO made an enquiry from the neighbours and thereafter, FIR 19/21 was registered on his complaint against the plaintiff under Section 448 IPC. He stated that he has a shop at M-1/3, Connaught Place. He stated that he has paid rent upto December, 2020 at Rs. 2000/- per month. He stated that no notice dated 17.02.2012 was served on defendant no.2 nor any letter dated 14.03.2017 was sent by the brother of the plaintiff. It was sent by A.K Srivastava who had no authority to send the letter which he had responded vide reply dated 30.03.2017 Ex.PW-2/11. He never dealt with the plaintiff or Nilender Prakash Punj. He stated that since the plaintiff agreed to take rent at Rs. 2000/- per month, he started paying the rent in cash to Chand Khan but he did not issue any receipt. He denied that rate of rent was Rs. 18000/-, Rs. 25000/- or Rs. 30,000/- per month at any time.

He stated that he has been sitting in the shop when he was 15 years of age. His father expired in 2011. His father started using the basement since 1980. Before pandemic, he used to earn Rs. 2.0-2.5 lakhs and file income tax returns. Pramod Aggarwal has Coca Cola Agency at Haily Lane, Connaught Place, New Delhi. He never met/saw Sh. V.P Punj. After CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.22 of 92 death of his father in 2011, he started sitting at the shop. His father had not executed any deed or will in his favour and there was an oral understanding that shop and the basement area will be used by him and not by his other brothers. He admitted that no such permission in this regard was obtained from Sh. V.P Punj. He stated that Pandita/Rakesh used to collect rent. His father was 70-75 years old at the time of his death and before his death, he stopped coming to the shop. He stated that Pramod Aggarwal used to come to the shop to assist his father but stated that he never sat at the shop regularly though he used to assist him. He stated that he does not know A.K Srivastava or A.C Sharma. He stated that he did not approach anyone in the Punj Family when Pandita and Rakesh refused to issue rent receipts nor he went to the residence of the plaintiff. He stated that there was sub meter for the electricity in the basement and the electricity charges were Rs. 10/- per unit. He stated that Pramod Aggarwal is 12 years elder to him. He denied that in 1985, market rate of rent of the basement area was around Rs. 15000/- or Rs. 20000/- per month. He was confronted with the lease agreements with Indian Overseas Bank Mark A/D1W1/P, Mark B/D1W1/P and Mark C/D1W1/P. He stated that after having talks with the plaintiff and on his demand, he started paying rent to Chand Khan. He denied that he was in occupation of an area admeasuring 530 sq.ft. only.

26. D1W2 is defendant no.2/Pramod Aggarwal, elder CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.23 of 92 brother of D1W1 and son of Sh. Niranjan Lal Aggarwal. He tendered his affidavit in evidence Ex.DA-2 and stated that his father was inducted as tenant by Sh. V.P Punj in the entire basement except the electric room in the backside of the property. Sh. V.P Punj had taken Rs. 5.0 lakh as pagri from his father for letting out the premises and rate of rent was fixed at Rs. 2000/- per month excluding electricity charges. His father had paid Rs. 5.0 lakh in cash to him. He proved the site plan Ex.DW-1/1 of the property. He stated that his father was never the licensee and Sh. V.P Punj never put any lock at the gate of ground floor to the basement being used by the defendant and the rate of rent never remained as Rs. 18000/- or Rs. 25000/- or Rs. 30,000/- per month. He stated that the rent receipts produced by the plaintiff dated 25.03.2009, 23.04.2009 are the false receipts and no letters dated 17.02.2012, 14.03.2017 and 22.06.2017 were received by him and on the letters, wrong address has been mentioned. He stated that electricity connection was given at the basement by Sh.V.P Punj and a sub meter was installed.

He stated that he stopped coming at the shop/basement area after 1986, however, he used to come occasionally on the call of his father. His father had stopped coming to the shop in 2007/2008/2010 and Neeraj Aggarwal started sitting at the shop thereafter. He stated that ice cube machine was purchased by his father. He stated that office was being used for billing purposes only and they had employed some CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.24 of 92 persons who used to keep the accounts in the basement. Neeraj Aggarwal was also using the office. There were 2-3 employees apart from the accountant who used to sit in the shop/basement area. He stated that no permission was required for keeping the icecube machines from the landlord. He stated that sometimes, he used to tender rent and sometimes, his father used to go and tender rent and sometimes, persons of Sh. V.P Punj used to come and collect the rent. Sh. V.P Punj had office either at the second / third floor and he used to go in the office to tender the rent. He stated that he had face to face talk with Sh. V.P Punj 4- 5 times. He stated that his father had told him that he had talked to Sh. V.P Punj on taking the basement area on rent on payment of pagri of Rs. 5.0 lakh and rent at Rs. 2000/- per month. He stated that there was no dispute between him and Neeraj Aggarwal nor with the landlord. He stated that he separated his business in 1985-1986 and prior thereto, he used to sit with his father. He stated that area of the shop is about 100 sq.ft and it is at a distance of 25 ft. from the basement. He admitted that there is no witness to confirm payment of pagri of Rs. 5.0 lakh to Sh. V.P Punj.

27. I have heard ld. Counsel Sh. Raman Gandhi for the plaintiff and Sh. Pramod Singhal, ld. Counsel for the defendants.

28. Ld. Counsel for the plaintiff reiterated what has been CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.25 of 92 stated in the plaint and the replication. Ld. Counsel stated that D1W1 has stated that he started coming to the shop at M-1/3, Middle Circle, Connaught Place, New Delhi adjacent to the basement area when he was 15 years of age but he could not precisely state the year. D1W2 on the other hand, has stated that he had stopped coming to the shop in 1986 and D1W1 started coming to the shop around the year 2007- 2008 and his visits (D1W2) were almost nil after 2007-2008. Ld. Counsel stated that from their testimony, it is clear that statement of D1W1 about his father paying the security deposit and entering into the alleged oral agreement or tenancy with Sh. V.P Punj is hearsay and inadmissible in evidence. He referred the case of Kalyan Kumar Gogoi v/s Ashutosh Agnihotri, AIR 2011 SC 760.

29. Ld. Counsel further argued that at one corner, there is a shop and on the other side, there is entrance to the basement area. The distance between the two is about 25 feet with a road in between. Ld. Counsel stated that contradictory version has come in the testimony of D1W2 about the location of office of Sh. V.P Punj whether at the second floor or the third floor. D1W1 has stated that he has never been to the office of Sh. V.P Punj, however his office is at the second floor of the building which he has seen from outside and he never met Sh. V.P Punj. He has stated that the license fee/rent used to be paid to the agents of Sh. V.P Punj. D1W2 on the other hand has stated that his father and he used to CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.26 of 92 pay/tender the license fee/rent to Sh. V.P Punj directly at his office and he had tendered the same on 4-5 occasions in the hand of Sh. V.P Punj. Ld. Counsel stated that the deposition of D1W2 regarding giving security/pagdi of Rs. 5.0 lakh to Sh. V.P Punj and rent/license fee at Rs. 2000/- per month is unbelievable in view of contradictions coming in their testimony.

30. Ld. Counsel stated that both the witnesses have deposed that their occupation of the basement area is for about 40 years but D1W1 in his complaint/FIR had stated that he has been in the occupation of the basement area for 20-22 years which fact has also been stated by his neighbours to the police. He did not make any whisper in the complaint about the tenancy being 40 years old or that it is a protected/secured tenancy as huge amount of security deposit/pagdi has been paid by his father. Case of the plaintiff is that basement area was given for use only about 20 years back which fact has also been stated by the plaintiff's witnesses. Ld. Counsel stated that deposition of D1W2 is completely false with respect to the terms of tenancy having been settled in his presence which fact in his cross examination dated 20.07.2022 was denied by him but subsequently, on 16.08.2022, he made improvement and deposed that terms of tenancy were finally settled when the payment of security was made in his presence after Sh. V.P Punj denied to give any concession. Ld. Counsel stated that CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.27 of 92 in a case which is based only on oral agreement, this constitutes a substantial discrepancy in the deposition of the witness.

31. Ld. Counsel further argued that amount of Rs. 5.0 lakh which defendant no.1 has claimed to have been paid to Sh. V.P Punj as security deposit/pagdi was a huge sum in the year 1980 and if, considering the inflation over the period of years, the value of Rs. 5.0 lakh as on date comes to an amount of Rs. 20.0 crores. Ld. Counsel referred the case of Kavita Moin Jakhmola v/s Anil Sethi 2016 (1) RCR (Rent) 349 to contend that rates of rental occurring in Delhi around the year 2000 was hardly less than Rs. 3500/- per month (Posh South Delhi Colony). Ld. Counsel contended that no evidence has been placed on record about possession of such an amount in hand. No income tax return has been placed showing the availability of so much of cash/amount though D1W-1 has stated that his father used to file income tax return. He has rather stated that he has been concealing income in his income tax returns. He showed his ignorance about the earnings of his father, his own earnings and all the affairs concerning their business but admitted that he and his father were only having this business. He stated that shop of defendant at M-1/3 measures about 90 to 100 sq. ft. from where they used to sell cold drinks, mineral water etc and his deposition as to his income as Rs. 2.0 to 2.5 lakhs annually and paying Rs. 12000/- per month to his two employees is CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.28 of 92 blatantly false. Ld. Counsel stated that depositions of D1W1 and D1W2 are completely lacking and do not inspire any confidence. D1W2 has stated that he does not have any idea about the income of his father during the period 1980-85.

32. About payment/tendering of rent/amount of rent/rent receipt, ld. Counsel contended that D1W1 did not reveal the name/details of the agents deputed by Sh. V.P Punj for collecting the rent but in his cross examination, he named two persons without giving their designation. D1W2 has given a contradictory version and stated that his father and on 4-5 occasions, he himself had tendered the monthly rent to Sh. V.P Punj in his hand. Regarding issuance of rent receipt, D1W1 has blamed Sh. V.P Punj directly, stating that he refused to issue rent receipt but in his cross examination, he admitted that he never saw or met Sh. V.P Punj. He is not even aware that Sh. V.P Punj died in 2006. He also blamed the agents of Sh. V.P Punj for not issuing the rent receipts. Ld. Counsel stated that when the agents refused to give the rent receipts, what made the defendants not contact Sh. V.P Punj and ask for the rent receipts or complain that his agents were not issuing the rent receipts. Ld. Counsel stated that falsity of the case is apparent; once legal notice had been issued to the defendants, to which, a reply was sent in 2017 by defendant no.1 but still, defendants did not insist for the issuance of rent receipts. Ld. Counsel stated that D1W2 initially blurred out that an exact amount of Rs. 2000/- per CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.29 of 92 month was being tendered in the hand of Sh. V.P Punj who used to count personally and not even through his any staff or accountant but in his examination in chief, he has stated that rent as well as electricity charges used to paid to the agents of Sh. V.P Punj per month but later, in his cross examination dated 22.08.2022, he stated that he does not remember to whom the electricity charges used to be paid whether to Sh. V.P Punj or his agent. Ld. Counsel stated that this has to be seen in the light of correspondences/exchange of notices where in the reply dated 30.03.2017 given by defendant no.1 to the legal notice dated 14.03.2017, there is absolute silence on what was the amount of monthly rent/license fee.

33. Ld. Counsel stated that D1W1 has stated that the plaintiff had contacted him after he received the copy of mediation family settlement along with letter dated 22.06.2017 and asked to pay rent but in the written statement, he has denied the ownership of the plaintiff. In his cross examination dated 13.07.2022, he has stated that he never spoke to the plaintiff but later, he retracted and stated that he had spoken to the plaintiff through Chand Khan who had facilitated talk with him. Ld. Counsel stated that D1W1 has admitted that he had received the copy of mediation family settlement along with the letter dated 22.06.2017 but in his cross examination dated 14.07.2022, he has stated that he was not aware and put blame on his counsel for the error in the pleading in the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.30 of 92 written statement but later, he stated that he got knowledge of the family settlement during the course of talk with the plaintiff.

34. As regards extent of area of the basement portion in occupation, ld. Counsel contended that in the first written statement/counter claim, defendant no.1 did not mention as to what is the area under his occupation. He has only reaffirmed that he is in the occupation of 832 sq. ft. area in the basement but in the written statement to the amended plaint, he has claimed that he is in occupation of the entire area of the basement. He did not make any prayer for being put into possession of entire area and has only prayed to be put in possession of the suit property which in the amended plaint is 530 sq. ft. only. It is also apparent from the report of the Local Commissioner that defendant no.1 is in occupation of about 530 sq. ft. of area out of total area of basement admeasuring about 2400 sq. ft. Ld. Counsel stated that defendant no.1 used to store his materials only in one room and outside this room, in a very small area say 25 sq. ft. some scrap is lying which defendant no.1 claims as ice cube making machine which is not in operation for about 6-7 years. He did not furnish anything as to his occupation of the basement area for about 40 years as claimed. Ld. Counsel stated that when there are instances of sending reminders regarding payment of license fee and termination of license in the years 2009, 2010 and 2012 followed by exchange of CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.31 of 92 legal notice and reply in the year 2017, it is hard to digest that a person will not tender rent against receipt or attempt to retain proof of the same. Ld. Counsel stated that D1W1 has stated that electricity charges were settled between his father and Sh. V.P Punj at Rs. 10/- per unit. His father died in 2011 and had stopped coming to the shop 3-4 years before his death. He has stated that he continued the practice of paying charges at Rs. 10/- per unit but looking into the above versions, the case of the plaintiff is correct to the extent that there was never ever any electricity supply to the basement area of the property. D1W2 has shown complete ignorance about the electricity consumption/rate. The case of plaintiff is that since only one room was given as godown and no amenity of electricity supply was given.

35. Ld. Counsel further argued that first floor, second floor, third floor and forth floor of the Annexe building were initially let out to Indian Overseas Bank in the year 1987 vide lease deed dated 17.11.1987 Mark A/D1W1/P at Rs. 20,000/- per month per floor which was revised vide lease deed dated 18.08.1993 Mark B/D1W1/P with rent as Rs. 1.50 lakhs per month for all the floors which was again revised vide lease deed dated 28.08.2004 Mark C/D1W1/P at Rs. 1.00 lakh per month for each floor. Ld. Counsel stated that rate of rent in the area had arisen steeply and the rent last paid by the bank till April, 2019 before it vacated the third and forth floor of the property was Rs. 5.06 lakhs per CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.32 of 92 month per floor apart from Rs. 94,000/- per month per floor towards maintenance beside taxes etc. Ld. Counsel stated that third floor of the property was let out to United India Insurance Company on 16.11.2019 on a rent of Rs. 2.72 lakhs per month beside taxes. Ld. Counsel stated that market rate of license fee of entire basement area might be slightly less than what was being fetched for the upper floors but would be in that range only. Ld. Counsel stated that defendant no.1 had been using only one room admeasuring 530 sq. ft., so there was mention of license fee of Rs. 18,000/- per month in the correspondences exchanged in the year 2009, 2010 and 2012.

36. Ld. Counsel stated that witnesses of the plaintiff have given consistent statements to support the case of the plaintiff and there is nothing transpiring from their statements that would cast any doubt on the case of the plaintiff. Ld. Counsel stated that the plaintiff became the owner of the area after the memorandum of family mediation settlement executed between Punj Family and approved by the Supreme Court on 17.08.2016. Ld. Counsel stated that the plaintiff's witnesses have deposed on the basis of documentary evidence placed by the plaintiff and with respect to events after the plaintiff became the owner of the property and there is no inconsistency in their statements.

37. Ld. Counsel contended that there is no specific denial to CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.33 of 92 the notice dated 14.03.2017 as to the rate of rent/license fee at Rs. 18000/- per month.

38. Ld. counsel submitted that a decree for possession be passed in favour of the plaintiff with respect to the rate of rent being Rs. 18,000/- per month i.e. above Rs. 3500/-, which makes DRCA inapplicable to the case and that the plaintiff is the owner / landlord of the property. Ld. Counsel stated that as per the Transfer of Property Act, in case, there is an admission on the part of the defendant on these two aspects, the plaintiff is forthwith entitled to a decree of possession. Ld. Counsel referred the memorandum of family mediation settlement and the correspondences between the parties wherein, the predecessor landlord i.e. Punj Sons Pvt Ltd had issued a legal notice / statutory notice dated 17.02.2012 containing all the necessary facts with respect to the occupation of the tenanted property / licensed property by the defendant no. 1 alleging that the rate of rent / license of the property was Rs. 18,000/- per month, which notice was sent by the registered post at the address of defendant no. 2, which received back with the report "refused". Ld. Counsel stated that as per Section 27 of General Clauses Act, the notice is deemed served on defendant no. 2. Ld. Counsel stated that no reply to the said notice was received by the predecessor landlord. Ld. Counsel stated that a legal notice was sent by the co-owner of the property i.e. younger brother of plaintiff on 14.03.2017 containing all the materials as CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.34 of 92 above including the rate of rent being Rs. 18,000/- per month, non payment of rent by defendant no.1 since December 2011 and assertion of ownership of the entire basement area of the property, which defendant no. 1 had replied through his counsel, wherein, he denied the averments on account of lack of knowledge but this denial as per the law amounts to an admission. Ld. Counsel stated that subsequent letter dated 22.06.2017 was sent to defendant no. 1 & 2 through registered post along with the family settlement and postal acknowledgment of the same shows that it was served on defendant no. 1 but he did not bother to reply the same. Ld. Counsel further submitted that in the reply dated 30.03.2017, the defendant neither asserted nor claimed that rate of rent of the portion of the basement area was less then Rs. 3500/- per month or the tenancy was protected under DRCA. Ld. Counsel stated that vide notice dated 14.03.2017, the tenancy / license of defendant no. 1 was terminated on account of non payment of monthly rent / license fee by defendant no. 1 since December 2011. What was disputed by defendant no. 1 in the reply was lack of title of Sh. Nilender Prakash Punj over the basement portion of the property. Ld. Counsel stated that defendant no. 1 through the same lawyer had sent the reply dated 30.03.2017. Ld. Counsel stated that a bald defence of payment of rent at Rs. 2000/- per month till December 2020 has been taken by defendant no. 1 and this denial amounts to admission in terms of Order 8 Rule 3A CPC. Ld. Counsel CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.35 of 92 stated that issue with respect to initial denials came before the High Court in the case of Ishpinder Kochhar Vs. Delux Dentellers Pvt Ltd, (2014) 207 DLT 689, Deepak Bhardwaj Vs. Usha Rai, 2010 (115) DRJ 296, Ratan Mehta Vs. Gayatri Shah, CM (Maiin) No. 1738/2019 decided on 06.12.2019, Hajra Parveen Vs. Saeed Ahmed 236 (2017) DLT 679, Jahuri Shah Vs. Dwarka Prasad AIR 1967 SC 109 and Silicon Graphics System Ind Pvt Ltd Vs. NIDAS Estates Pvt Ltd 182 (2011) DLT 753, where it was held that reply of defendant denying of pleading for want of knowledge with respect to institution of the plaint amounts to an admission, which also includes evasive denial. Even failure of defendant to reply to a statutory notice / legal notice is sufficient to draw an adverse inference or treating the same as amounting to an admission as held in the case of Krishan Kumar Aggarwal Vs. LIC, RFA (OS) No. 93/2010, Kalu Ram Vs. Sita Ram 1980 RLR (Note) 44, Dinesh Bharwaj Vs. Janardhan Singh RSA No. 31/2007 decided on 22.08.2016.

39. Ld. Counsel for the defendant per contra argued that PW-1 is the attorney of the plaintiff. He is not conversant with the facts of the case. His evidence is admissible to the extent the facts/events happened in his presence. He referred the case of Janki Vashdeo Bhojwani and Anr v/s Indusind Bank Ltd & Ors, Appeal (Civil) No. 6790 of 2003, decided on 06.12.2004. Ld. Counsel stated that PW-1 was not present when the premises was let out to the defendants nor he at any CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.36 of 92 time, collected the rent nor he knew what was the area in possession of defendant no.1 or what was the rate of rent. Ld. Counsel stated that the premises was let out to the father of defendant no.1 in 1980 by Sh. V.P Punj who was managing the property.

Ld. Counsel stated that PW-2 is director of Punj Sons Private Limited. The terms of tenancy were not settled in his presence. He never received rent of the tenanted property. Employees/karindas of Sh. V.P Punj namely Pandita and Rakesh used to receive the rent. Ld. Counsel referred the letters Ex.PW-2/9 and Ex.PW-2/12 to state that an area admeasuring 1770 sq. ft was given on rent to the defendants which fact has also been stated by the plaintiff witness in his cross examination dated 10.05.2022. Ld. Counsel stated that father of defendant no.1 had given pagdi/security deposit of Rs. 5.0 lakhs and at that time, rate of rent was settled as Rs. 2000/- per month. Ld. Counsel stated that the plaintiff never visited the suit property nor appeared in the witness box. Ld. Counsel stated that in the original plaint, the area in occupation of the defendant was alleged to be 832 sq. ft. but in the amended plaint, it is stated to be 530 sq. ft. though in the legal notice, area of the suit premises was stated as 1770 sq. ft. Ld. Counsel stated that plaintiff's employee namely Chand Khan illegally broke open the lock of the tenanted premises in the absence of the defendant and disconnected the electricity. Ld. Counsel stated that the defendant had installed ice cube making machine in the basement and the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.37 of 92 machine could not run without the electricity. Further, in the family settlement, installation of sub meter in the basement has been recorded meaning thereby that there used to be electricity in the basement and the defendant used to pay Rs. 10/- per unit towards the electricity consumption to Sh. V.P Punj. Ld. Counsel stated that except the defendant, there was no other tenant in the basement area. Ld. Counsel stated that tenancy was oral and it was never reduced into writing. Ld. Counsel stated that the alleged rent receipts placed by the plaintiff do not have the signatures of the defendants.

40. Ld. Counsel stated that the defendant has a shop near the basement and he used the basement for storage. Ld. Counsel stated that defendant was tenant and not the licensee which fact has also been stated in the notice and the family settlement. Ld. Counsel stated that earlier, father of the defendant no.1 was tenant but after the family settlement, defendant no.1 became the tenant. Ld. Counsel stated that PW-3 was appointed in the year 2017. He has admitted that there was no other tenant in the basement and two ice cube machines were installed in the basement. Ld. Counsel stated that rate of rent is Rs. 2000/- and the tenancy of defendant is protected under the Delhi Rent Control Act and the suit for possession and mandatory injunction is not maintainable under Section 50 of Delhi Rent Control Act. Ld. Counsel stated that defendant had paid rent upto December, 2020 but servants/employees of plaintiff had not issued the rent CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.38 of 92 receipts.

41. Ld. Counsel further argued that there is no admission on the part of the defendant as alleged. Ld. Counsel stated that the plaintiff illegally dispossessed the defendant from the suit property by breaking open the lock of the property and putting his own lock and illegally restrained the defendant from using the tenanted premises. Rather, there was an admission in the plaint that defendant is tenant in the entire basement i.e. the suit property as shown red in the site plan filed by defendant no. 1. Ld. Counsel submitted that the plaintiff has misused the process of law. Ld. Counsel stated that the plaintiff because of malafide intention did not file the site plan along with the suit. Ld. Counsel stated that defendant in his written statement has stated the rate of rent as Rs. 2000/- per month, which he has paid till December 2020. Ld. Counsel stated that for about 6-7 years, defendant has not been making ice cubes on the machine installed in the basement as his brother has installed a plant at Noida, from where, defendant no. 1 has been purchasing the ice cubes. Ld. Counsel submitted that Sh. V. P. Punj had taken pagri of Rs. 5.0 lakhs from the father of the defendant at the time of letting out the premises and the documents filed by the plaintiff subsequent to filing of suit are false and fabricated. Ld. Counsel submitted that no notice dated 17.02.2012 was served on defendant no. 2, so there was no question of his refusal. Ld. Counsel stated that letter dated CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.39 of 92 14.03.2017 was not sent by the brother of the plaintiff rather it was sent by Arun Kumar Srivastava, who had no authority to send this letter. Defendant no. 1 had clearly stated in the reply that he is a tenant and in use and occupation of the premises and he never dealt with Nilender Prakash Punj and Ravinder Prakash Punj in respect of the tenanted premises. Ld. Counsel submitted that after sending the letter dated 22.06.2017, plaintiff had contacted defendant no. 1, whom defendant no. 1 had apprised that agreed rate of rent was Rs. 2000/- per month and he is ready to pay further rent @ Rs. 2000/- per month in case he is ready to accept the same, which he agreed and he paid the same to his man Chand Khan, however, no receipt was issued by him.

42. Ld. Counsel stated that though a case was registered against the defendant by CBI and he was taken in custody but CBI had no concern with the property in question. It never broke open / removed the lock at the entrance of the basement portion of the property, which made the plaintiff put his own lock. Ld. Counsel stated that the plaintiff illegally put his lock on the tenanted premises under the occupation of the defendant, for this defendant had lodged an FIR No. 19/21 under Section 448 IPC.

43. Ld. Counsel for the plaintiff in rebuttal submitted that the defendant has made a bald averment that he has paid rent upto December 2020 without telling, whom and in what manner, he had made the payment of the monthly rent / CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.40 of 92 license fee. There is no supporting document in respect of the same and only bald assertions have been made that no receipt was issued. This is unbelievable because if there was already a dispute as apparent from the exchange of notices previously, defendant no. 1 would have taken abundant precaution to make the landlord issue a receipt or would have made the payment through cheque. Ld. Counsel stated that reply dated 30.03.2017 sent by defendant no. 1 was through an advocate and he cannot claim to be unaware of these intricacies. As per Section 108 (c) of the Transfer of Property Act, obligation of the lessee to pay rent is a pre condition to enjoy continuous possession and if there is a breach, it gives option to the lessor to determine the lease and re-enter the property let out. There is a precedent, where, in the facts of the case, the parties had loosely used the word 'lease' or 'license'. It is a question of interpretation irrespective what the parties might have referred to it as a 'lease' or 'license' in their previous correspondences. Ld. Counsel stated that the possession is in the nature of license. Ld. Counsel submitted that from the reply to the notice, it is crystal clear that the license fee was Rs. 18,000/- per month and the license of the defendant no. 1 has already been terminated.

44. I have given my thoughtful consideration to the rival contentions, perused the pleadings, documents and the case laws supra.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.41 of 92

45. Before recording any findings on the issues, it is relevant to reproduce some of the letters/correspondences exchanged between the parties and the relevant terms of memorandum of family (mediation) settlement Ex.PW-1/1 which includes the layout plan of the basement area Ex.PW-3/D2 and the Local Commissioner's report.

Letter dated 25.03.2009 by Punj Sons Private Limited Ex.PW-2/1 (colly).

                                Regd.AD                                   Date: 25.03.09

              To,
              Mr. Pramod Aggarwal
              At Basement Floor Punj House Annexe
              M-Block Inner Circle
              New Delhi

Sub: Demand for rent for the months of February and March, 2009 Dear Mr. Aggarwal, We have not received the rent for the months of February and March 2009. We request you to send us immediately an amount of Rs. 36,000/- (Rs. Thirty Six Thousand only) in this regard.

We have already handed over to you a rent receipt of Rs. 18,000/- dtd. 16.02.09 for the month of December, 2008. Find enclosed hereto the rent receipt no 02/2008-09 dtd. 23/03/2009 of Rs. 18,000/- for the month of January, 2009.

Thanking you in anticipation.

For Punj Sons Pvt. Ltd.

AC Sharma Director Encl: Receipt No 02/2008-09 dtd. 23/03/09 for the rent of January 09.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.42 of 92 Letter dated 23.04.2009 by Punj Sons Private Limited Ex.PW-2/4 (colly).

                             Regd.AD                                        Date: 23.04.09

              To,
              Mr. Pramod Aggarwal
              At Basement Floor Punj House Annexe
              M-Block Inner Circle
              New Delhi

Sub: Demand for rent for the months of March and April, 2009 Dear Mr. Aggarwal, We have not received the rent for the months of March and April 2009. We request you to send us immediately an amount of Rs. 36,000/- (Rs. Thirty Six Thousand only) in this regard.

Find enclosed hereto the rent receipt no 03/2008-09 dtd. 20.04.09 against the payment of Rs. 18,000/- for the month of February, 2009.

Thanking you in anticipation.

For Punj Sons Pvt. Ltd.

AC Sharma Director Encl: a/a CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.43 of 92 Notice dated 17.02.2012 by Punj Sons Private Limited Ex.PW-2/6.

                     Regd.AD/Courier/by hand                                 February 17, 2012


              Mr. Promod Aggarwal
              At Basement Floor Punj House Annexe
              M-Block Inner Circle
              Connaught Place
              New Delhi-110001

              Also at:

              Aggarwal Stores,
              M-1/3, M-Block Inner Circle
              Connaught Place,
              New Delhi-01

              Sir,

You were allowed to use the premises /part of basement admeasuring 1770 sq. ft of the building known as Punj House Annexe situated on the rear of plots No. 4 and 5, M Block, Connaught Place, New Delhi which is owned by M/s Punj Sons Private Limited. Consequent to your request, you were allowed to use the said premises as licensee against license fee of Rs. 18,000/- per month payable in advance on or before 7th day of each English Calendar month.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.44 of 92 You, for the reasons best known, have failed to tender the license charges for the months of December, 2011 and January, 2012. Even otherwise, Punj Sons Private Limited requires premises for its use and is no longer interested in an arrangement with you. Hence, this notice.

Kindly take notice that the license to use the above mentioned premises in your favour is hereby terminated with immediate effect. You are called upon to clear the arrears and/or to pay license charges for the period you continued to use the premises including arrears for the months of December, 2011 and January, 2012 within three days from receipt of this notice.

In case, you fail to comply with the aforesaid, perforce we may have to initiate legal proceedings so as to stop you from using the above premises and also from recovering the arrears. Kindly note that in such an event, you shall be liable to pay license fee/usage charges at the rate prevailing in the market which is Rs. 200/- per sq. ft. per month in addition to the cost of the said proceedings.

Yours Sincerely, For Punj Sons Pvt. Ltd.

(A.C. Sharma) Director Letter dated 14.03.2017 by Sh. Nilender Prakash Punj Ex.PW-2/9.

                              Speed Post                                  March 14, 2017

              Shri Pramod Aggarwal
              c/o Aggarwal Stores,
              M-1/3, M Block, Inner Circle,
              Connaught Place,
              New Delhi

              Also at
              Shri Pramod Agrawal
              S/o Mr. Niranjan Lal Agrawal
              F-72, Shakarpur,
              New Delhi-92


CS (Comm) No. 42/2021   Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr       Page No.45 of 92
               Sir,

You are in occupation of basement admeasuring 1770 sq. ft. of the building known as Punj House Annexe constructed on plot nos. 4 and 5, M-Block, Connaught Place, New Delhi. You were allowed to use the aforesaid premises for storing bottles and other goods being sold by you in the adjoining shop in the name and style of "Aggarwal Stores" by Late Shri VP Punj, who was the Chairman of M/s Punj Sons Pvt Ltd at the relevant time. You had been paying a sum of Rs. 18,000/- per month as rent for use and occupation of the basement as aforesaid.

Kindly note that in settlements amongst Punj brothers, i.e. legal heirs of Late Pt. Kanhaiya Lal Punj by way of Awards and before Learned Mediator whereby various businesses, assets etc. were divided amongst them, Punj House Annexe of which the portion under your possession forms part, has fallen to the share of undersigned jointly with Mr. Ravinder Prakash Punj.

As per books of accounts of Punj Sons Pvt Ltd maintained in regular course of business, a sum of Rs. 18,000/- only had been paid for the period December, 2009 till November, 2011. Thereafter, no amount has been received either by Punj Sons Pvt Ltd or anyone else. Record further reveals that notice dated 17 th February, 2012 was sent by Punj Sons Pvt Ltd, interalia, calling upon you to clear the arrears, however, you refused to receive the same.

In these circumstances, you are hereby called upon to clear the arrears at the rate of Rs. 18,000/- per month w.e.f. December, 2011 till date within one week from receipt of this letter/notice jointly to the undersigned and Shri RP Punj by issuing two separate cheques of equal amount. Also note that we do not wish to continue with you as user/tenant. The arrangement/tenancy is hereby terminated and you are further called upon to remove all your stocks and vacate the premises and hand over vacant, physical and peaceful possession to the undersigned on or before 31st March, 2017.

Kindly note that in case the requisite is not done, besides claiming possession, we shall be claiming damages at the rate prevailing in the market. The premises in your occupation if let out in the market would fetch Rs. 225/- per sq. ft. per month. Besides damages, you shall also be liable to pay cost of proceedings which we may initiate for recovery of possession and damages agaisnt you.

Be advised accordingly.

Nilender Prakash Punj S/o Late Pt. Kanahiya Lal Punj, R/o 10, Prithviraj Road, New Delhi through Shri Arun Krishna Srivastava CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.46 of 92 duly constituted Attorney Reply by defendant no.1 Neeraj Aggarwal dated 30.03.2017 Ex.PW-2/11.

Speed post/Regd. AD Dated- 30th March, 2017 Sh. Nilender Prakash Punj, S/o Late Sh. Pt. Kanahiya Lal Punj, R/o 10, Prithvi Raj Road, New Delhi Dear Sir, My client Sh. Neeraj Aggarwal S/o Late Sh. Niranjan Lal Aggarwal C/o Aggarwal Store, M-1/3, M Block, Middle Circle, Connaught Place, New Delhi, has placed your letter dated 14 th March, 2017 into my hands with the instructions to reply the same as under.

That the content of your letter is false and frivolous. It seems that you have not been apprised with the true and correct facts and you have been kept into dark.

That you have wrongly issued the letter dated 14.03.2017 in the name of Sh. Parmod Aggarwal C/o Aggarwal Store, M-1/3, M Block, Middle Circle, Connaught Place, New Delhi. Infact my client is the tenant and in use and occupation of the aforesaid tenanted premises and he is carrying the business therein. My client had never dealt with you in respect of the aforesaid tenanted premises at any time. You are completely unknown to my client. In the said letter you have stated regarding the award whereby various businesses, assets etc. were divided amongst the legal heirs and you have further stated that the portion under possession of my client falls to the share of Sh. Nilender Prakash Punj jointly with Mr. Ravinder Prakash Punj. In the reply to this para, it is stated that you have not sent the copy of the award and the documents pertaining to the fact that the tenanted premises under the possession of my client falls under your and Sh. Ravinder Prakash Punj's share. That the person who sent this letter i.e. Sh. Arun Kumar Srivastav has not sent any copy of the attorney on your behalf and hence he has no authority to issue the said letter. You are firstly requested to send the above mentioned papers so that my client can peruse the same before answering to your letter. My client is regularly paying the rent of the abovesaid premises to the concerned persons and no rent is due on my client upto February, 2017. My client reserves his right to reply the letter dated 14.03.2017 in detail as and when my client will receive the required aforesaid CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.47 of 92 documents. You have no right to issue this letter to Sh. Parmod Aggarwal who is not a tenant in the above said premises. Also, you do not have right to terminate the tenancy and to ask to handover the possession of the above said premises and you have wrongly mentioned the rate of rent per month.

Under the circumstances, I hereby call upon you on behalf of my client and request you to send the required documents mentioned in your letter and other relevant papers if any of the alleged tenancy of Sh. Parmod Aggarwal within 15 days from the date of receipt of this reply so that my client can reply to your letter in detail.

Please note that the copy of the aforesaid reply is being retained in my office for further reference.

Rahul Singhal (Advocate) Letter dated 22.06.2017 by Punj Sons Private Limited Ex.PW-2/12.

Registered post June 22, 2017

1. Shri Pramod Aggarwal, C/o Aggarwal Stores, M-1/3, M Block, Inner Circle, Connaught Place, New Delhi

2. Shri Neeraj Aggarwal C/o Aggarwal Stores, M-1/3, M Block, Inner Circle, Connaught Place, New Delhi Subject: Attornment In Ref : Basement Floor of Punj House Annexe, CP.

Sir,

1. That you are in occupation of basement admeasuring 1770 sq. ft. (approx) of the building known as Punj House Annexe constructed on CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.48 of 92 plot nos. 4 and 5, M-Block, Connaught Place, New Delhi. You were allowed to use the aforesaid premises for storing bottles and other goods being sold by you in the adjoining shop in the name and style of "Aggarwal Stores" by Late Shri VP Punj, who was the Chairman of M/s Punj Sons Pvt Ltd at the relevant time. You had been paying a sum of Rs. 18,000/- per month as rent for use and occupation of the basement as aforesaid.

2. As per books of accounts of Punj Sons Pvt Ltd, maintained in regular course of business, a sum of Rs. 18,000/- only had been paid the period December, 2009 till November, 2011. Thereafter, no amount has been received either by Punj Sons Pvt. Ltd., interalia, calling upon you to clear the arrears, however, you refused to receive the same.

3. In these circumstances, you are hereby called upon to clear the arrears at the rate of Rs. 18,000/- per month w.e.f. December, 2011 till date alongwith interest @24% per annum, within one week from receipt of this letter, jointly to Shri RP Punj and Shri NP Punj by issuing two separate cheques of equal amount.

4. That the Hon'ble Supreme Court of India in the SLP (C) No. 20958/2008 out of disputes amongst Punj family members and their entities referred the parties to the Mediator to resolve various disputes. With the assistance of Hon'ble Mr. Justice A.K Mathur (Retd.), Mediator appointed by the Hon'ble Supreme Court, parties resolved disputes with regard to various properties executed Memorandum of Family (Mediation) settlement. The Memorandum of Family (Mediation) Settlement has been accepted by the Hon'ble Supreme Court vide its order dated 17th August, 2016 passed in SLP (C) No. 20958/2008.

5. In terms of settlement the basement admeasuring 1770 sq. ft (approx) of the building known as Punj House Annexe constructed on plot nos. 4 and 5, M-Block, Connaught Place, New Delhi has been allocated to party of fifth part, Shri RP Punj and party of sixth part Shri N.P Punj.

6. The party of fifth part Shri RP Punj and party of sixth part Shri N.P Punj have become the landlords and acquired all the rights in the aforesaid basement including the right to collect rent from you the addressee. Therefore, you are hereby called upon to attorn and deal with the above named for all intents and purposes including payment of arrears of rent and rent for the future period.

Sincerely, For Punj Sons Pvt Ltd.

A.C. Sharma, Director CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.49 of 92

46. A perusal of record/documents reveals that the entire property was owned by "Punj Family' amongst whom there was dispute with respect to possession as well as ownership. The dispute was finally settled by Memorandum of Family (mediation) Settlement in C.A No. 8462-8466 of 2016 Ex. PW1/1 which was approved by the Supreme Court vide order dated 17.08.2016 whereby vide para 25, plaintiff (Ravinder Prakash Punj), party of fifth part and Nilender Prakash Punj (party of sixth part), both sons of Late Pandit Kanhaiya Lal Punj had agreed and confirmed that the rent fetched from the tenants in occupation of building no.3 shall be shared equally between them as also the charges towards maintenance of building no.3 from the date of order. It was also agreed upon that till such time, Indian Overseas Bank, Deez restaurant and Aggarwal Cold Storage occupants as tenants of building no.3 attorn and pay separately to the parties aforesaid and till such attornment, sixth part shall pay half of the rent received and maintenance charges received from Indian Overseas Bank, half of rent received from Deez restaurant and half of rent received from Aggarwal Cold Storage to the party of fifth part. Any expense/maintenance/property tax/statutory dues etc incurred on the building no.3 shall be borne equally by them. The memorandum contains layout Annexure-2 page 8 of 8 Ex.PW3/D2 showing the areas allotted to the party of fifth part and party of the sixth part as per memorandum of family CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.50 of 92 settlement and the common areas. In the said layout, the quantum of area has not been mentioned. For convenience, document Ex. Ex.PW3/D2 is reproduced as under.

47. The settlement Ex. PW1/1 also contains Annexure 2A showing Annexee, GF Deez, Annexee Basement Aggarwal, Annexee Basement shown as NGP Store Room, Annexe Basement shown as NGP Service Room, Electrical/Machine room shown as parking which is reproduced as under:-

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.51 of 92

48. As per Annexure 2 A, the area in occupation of Aggarwal Cold Storage measures 832 sq. ft. and it belongs to Ravinder Prakash Punj. NGP store room and service room measuring 240 and 280 sq. ft. respectively belong in equal proportion to Ravinder Prakash Punj and his brother Nilender Prakash Punj. The electrical/machine room shown as parking measuring 1186 sq. ft. belong in equal proportion to the Ravinder Prakash Punj and Nilender Prakash Punj. CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.52 of 92

49. In the original plaint for permanent and mandatory injunction and recovery of arrears of rent (filed on 04.02.2021), plaintiff had claimed to be the owner of property measuring 832 sq. ft. in the basement area of Punj House Annexee located at Plot no. 4 and 5 (backside portion) M-13, Middle Circle, Connaught Place, New Delhi which was in occupation of the defendants being accepted in the capacity of tenant and used as a godown for storing mineral water and cold storage bottles etc. It was averred that after the family settlement, vide Memorandum of Family (mediation) Settlement which was approved by the Supreme Court vide order dated 17.08.2016, the said property fell to the share of the plaintiff and he is the sole and exclusive owner of the area. (With this plaint, the plaintiff did not file the site plan describing the area in occupation of the defendants).

50. In the amended plaint (filed on 15.03.2021), plaintiff claimed the relief of permanent injunction, mandatory injunction, recovery of possession and recovery of arrears of rent/license fee where in para 3, he claimed that the property admeasuring 530 sq. ft. in the basement area of Punj House Annexee located at Plot no.4 and 5 had fallen to the share of the plaintiff as per the Memorandum of Family Settlement and accordingly, he is the sole and exclusive owner of the particular area which was under the occupation of the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.53 of 92 defendants in the capacity of a licensee who had been previously occupying this portion of the property since the time much before the plaintiff became the owner of the portion of the property. As per his knowledge, defendants have been making payment of Rs. 25000/- per month initially to Punj Sons Private Limited, a Punj Family Company, of whom the plaintiff is a Director with 33% shareholding, who was previously the landlord but had stopped making payment of rent/license fee to the company even before the settlement somewhere since the year 2010-

11. It is stated that the nature of occupation of the defendants of the area in the basement which had been described as the tenancy is a wrong description since the defendants were not in exclusive occupation/possession of the portion of the basement area and they cannot claim to be a tenant but only a licensee. They are in occupation of small portion of the basement which is a large area consisting of service room, store room, machine room and other open areas of which, overall control has always been with the Punj Family and presently, the plaintiff. There is a door at the ground floor of the basement area which has been maintained by the Punj Family and presently by the security of the plaintiff who has put a lock on the main door at the ground floor. On many a occasion, defendants were permitted to put their lock on the door at the ground floor for the purpose of convenience of entry but that was only an aberration and not a norm. The overall control of the whole basement has always been with CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.54 of 92 either the predecessor owner of Punj family or presently the plaintiff. If law governing this nature of occupation is applied, then the same only amounts to a license and it is not a case of lease being given to the defendants. The plaintiff added the relief of possession and paid the court fee in the amended plaint. (With the amended plaint also, the plaintiff did not file the site plan describing the area in occupation of the defendants).

51. In the written statement cum counter claim filed by defendant no.1 to the original plaint ( filed on 20.02.2021), defendant no.1 had alleged that defendant no.2 i.e. Pramod Aggarwal has no concern with the tenanted premises and it is the defendant no.1 who is the tenant in the premises. He did not say what was the area of basement in his occupation but stated that the rate of rent was Rs. 2000/- per month and it was neither Rs. 18,000/- nor Rs. 25000/- per month. It was stated that tenancy is about 40 years old and the premises was taken on rent by his father. Although he denied that plaintiff is the owner of the property admeasuring 832 sq. ft. but he stated that he is in occupation and possession of the premises in the capacity of a tenant and was using as a godown for storing mineral water, cold storage bottles etc. It was stated that there are two gates over the tenanted premises under his tenancy. The locks on the wooden doors of the basement are still of defendant no.1. The plaintiff in his absence through Chand Khan removed the lock of the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.55 of 92 main door of Jali darwaza and put his own lock illegally in respect of which, he has lodged the FIR. It was stated that in the statement to the police, he and his neighbours had told the I.O that he is in possession and has been carrying on his business for the last 20-22 years.

In the counter claim, he claimed the relief for restoration of possession. (With the written statement and the counter claim, defendant no.1 did not file the site plan describing the area in his occupation).

52. In the written statement (filed on 02.8.21) and counter claim to the amended plaint (filed on 05.04.2021), defendant no.1 alleged that he never remained as licensee in the property and was using and occupying the premises as tenant and his tenancy has also been shown in the documents filed by the plaintiff. He has been running his business under the name of 'Aggarwal Store'. His father was making ice cubes in the basement and for that purpose, he had installed machine which are still lying in the basement and the entire basement was under the exclusive possession of defendant no.1. He denied that plaintiff is the owner of property admeasuring 530 sq. ft. He also denied that he is not in exclusive control and occupation of the entire basement area or that only in occupation of small portion of basement which is a large area consisting of service room, store room, machine room and other open areas of which overall control has always been with the Punj family or that the door at the ground floor CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.56 of 92 of the basement area has been maintained by the Punj family or the security of the plaintiff or that on many occasions he was permitted to put his lock on the door at the ground floor for the purpose of convenience of entry. He stated that the entire basement admeasuring 1800 sq.ft. is exclusively under his tenancy and overall control always exclusively remained with him. The predecessor of the plaintiff never remained in possession of any portion of basement since the day it was let out to the father of the defendant and the defendant always remained in actual physical possession of the entire basement. It was stated that Punj family was only in possession of a separate portion of basement in which electricity meters were installed and passage for going to the said place in the basement is from the other side i.e. from the front side of the building. It was stated that passage leading from ground floor to basement which was under his occupation was entirely different and it always remained under his exclusive use and occupation. He stated that in the basement, defendant was having a store, office and godown, there is one wooden gate in the basement which is closed by hinging from inside, ice boxes of the defendant are lying in the basement and in one room, cold drinks, mineral water and other goods of the defendant are still lying. (With the amended written statement and the counter claim also, defendant no.1 did not file any site plan describing the area in his occupation).

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.57 of 92

53. The plaintiff in his replication (filed on 05.06.2021) to the written statement and counter claim filed by defendant no.1 stated on the lines of the amended plaint and placed the record the correspondences with the defendants by Punj Sons Private Limited. He stated that the defendant has not paid the rent/license fee for the last 10 years. (With the replication, the plaintiff did not file any site plan describing the area in the occupation of the defendants).

In the written statement to the counter claim, the plaintiff remained silent on the area under occupation with the defendants. He has stated that the occupation of defendant no.1 of area of basement is not exclusive as the basement is a much larger area with the plaintiff in possession and plaintiff is in possession of remaining portion of basement area comprising of service room, store room, machine room and other open areas on account of which, he maintains total/overall control over the entire basement area by locking the main door of the ground floor leading to the basement.

54. The plaintiff in the replication (filed on 12.08.2021) to the amended written statement filed by defendant no.1, stated on the lines of the replication. (With the replication, the plaintiff did not file any site plan describing the area in the occupation of the defendants).

55. Defendant no.1 filed the rejoinder to the reply filed by the plaintiff to the counter claim filed by the defendant no.1 CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.58 of 92 (filed on 02.08.2021) wherein he stated that the entire basement admeasuring about 1800 sq.ft. was under the tenancy and use and occupation of defendant no.1. He denied that he is only in occupation of one room/hall admeasuring 530 sq.ft. approximately. He stated that the plaintiff/his predecessor have admitted that defendant is tenant in respect of 1770 sq.ft. in the documents filed by them. He referred Order VII Rule 3 and Order IV Rule 1 (2) CPC which interalia provide that where a subject matter of the suit is a immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. He alleged that in this case, plaintiff failed to file the site plan along with the plaint. (He, however, with the rejoinder, filed the site plan Ex. PW-3/D-1).

56. It is thus manifest from the record that the plaintiff never filed the site plan showing the portion in occupation and possession of the defendants. Defendant no.1 at a later stage i.e. in the replication/rejoinder to the counter claim filed the site plan Ex.PW-3/D1 showing the extent of area in his possession without giving the measurements/area details. It is pertinent to mention that with the family settlement Ex.PW-1/1, layout of the basement area Ex.PW-3/D2 was prepared, copy of which was sent to the defendants vide CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.59 of 92 letter dated 22.06.2017 Ex.PW-2/12 in response to the query raised by defendant no.1 in his letter dated 30.03.2017 Ex.PW-2/11.

57. In this case, Local Commissioner was appointed who in her report dated 13.09.2021 after inspecting the premises on 11.09.2021, filed the layout of the basement area / property along with photographs and videos giving the measurements. As per this layout, rooms which are marked as A, B and C, measure the carpet area as under :-

i) Room Mark A(where machines/scrap were lying)-

(36' 3'' + 36' 4'') / 2 X (16'5'' + 13' 11'') /2 = 550.88 sq. ft.

ii) Office cum Open space Mark B - 36'6'' X 10'9'' = 392.38 sq. ft.

iii) Room Mark C (where mineral bottles etc were lying)- (10'11'' + 15'4'') / 2 X 31'3'' = 410.16 sq. ft.

iv) Area of the stair case from main road/lane:-

17'1'' X 4'6'' = 76.86 sq. ft.

v) Stair case and lift area from the building:-

36'7'' X 8'5'' = 308.37 sq.ft.

Total Area of three rooms = 1353.42 sq. ft., Area of stair case and common area = 385.23 sq. ft. Total area = 1738.65 sq. ft.

58. Adding the wall area with the carpet area as calculated above, the area of the basement comes to 1770 sq. ft.

approximately.

59. In the notice dated 17.02.2012 Ex.PW-2/6, letter dated 14.03.2017 Ex.PW-2/9 and the letter dated 22.06.2017 CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.60 of 92 Ex.PW-2/12, the area of basement in occupation of the defendants has been mentioned as 1770 sq. ft.

60. On comparing all the three plans/layouts, I do not find much difference.

61. As per the report of the Local Commissioner, two gates are installed at Entry 1 of the property. First gate has two locks installed, one was opened with the help of a key by the care taker of the plaintiff and other one was broken by the care taker. The second gate has one lock installed which was opened with the help of a key by the defendant. From that entry, a stair case passage goes to the basement. Towards left, a room was locked which was opened by the defendant with the help of a key. After going straight to the basement staircase towards the left, there is an open hall with an office with aluminum partition at the end and towards right, there is a hall with some old machinery. There are two doors, which are locked.

At entry 2, a shutter is installed which was locked and the lock was opened by the care taker of the plaintiff. It leads to a passage staircase to the other side of the basement which has two gates i.e. Door no.3 and Door no.4 which are locked. Towards end of the same, there is an electric room.

62. From the report of the Local Commissioner and the layout / site plan forming part of the report, the Memorandum of Family (mediation) settlement Ex.PW-1/1 CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.61 of 92 and the site plan Ex.PW-3/D2 forming part of the settlement and the site plan filed by the defendant Ex.PW-3/D1, it is apparent that defendant is in possession of a room on the left of entry no. 1 in the basement, where he had kept mineral bottles/goods, a hall having entry from an open area on the right side, where, he had kept ice cube machine and an open space which has a office with aluminum partition, where office furniture was lying.

63. In the layout Ex. PW3/D2 filed with the settlement Ex.

PW1/1, the room (brinjal in colour) adjacent to entry no.1 in possession of defendant has been shown to have been allotted to Nilender Prakash Punj while the hall, open space and office (orange in colour) have been shown to have been allotted to the plaintiff i.e. Ravinder Prakash Punj. Para 25 of the family settlement records that the rent fetched from the tenants in occupation of building no. 3 shall be shared equally between them as also the charges. Indian Overseas Bank, Deez Restaurant and Aggarwal Cold Storage occupants as tenants of building no. 3 shall pay separately to the parties aforesaid and till such attornment, sixth part shall pay half of the rent received and maintenance charges so received to the party of the fifth part. All the expenses / taxes shall be borne equally by them. In the letter Ex. PW2/12 dated 22.06.2017 on behalf of Nilender Prakash Punj, the defendants were called upon to clear the arrears along with interest jointly to Ravinder Prakash Punj, plaintiff herein and CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.62 of 92 Nilender Prakash Punj by issuing two separate cheques of equal amount. In para 5 & 6 of the letter, it is mentioned that in terms of settlement, the basement admeasuring 1717 sq. ft has been allocated to both of them and they have become the landlord and acquired all the rights in the aforesaid basement including the right to collect rent. This memorandum clearly shows that the plaintiff was not made the exclusive owner of the portion of the basement in occupation of the defendant. Nevertheless, the plaintiff in the plaint has claimed that the area under the occupation / tenancy of the defendants has fallen to the share of the plaintiff. There is no document to show that Nilender Prakash Punj at any time had attorned the plaintiff or given right to the plaintiff to collect rent / arrears or relinquished his share in favour of the plaintiff.

64. In the instant case, the plaintiff did not examine any witness in whose presence, father of the defendants or defendant no.1 or defendant no. 2 were allowed occupation and possession of the basement for keeping bottles and ice cube machine. There is no denial to the fact that the defendants are in use and occupation of the premises for more than 20 years. Though, defendant no.1 has claimed that the premises was let out to his father Sh. Niranjan Lal Aggarwal by Sh. V. P. Punj, of Punj Sons Private Limited about 40 years ago but in the complaint to the police, he had claimed the occupation of the premises for about 20-22 years. Though there is inconsistency as to when the premises CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.63 of 92 was let out or whether the tenancy was 40 years old or 20-22 years old but it does not carry much significance since the plaintiff has not disputed the occupation and possession of the defendants in the basement. He has stated to the extent that they were allowed occupation in 2000. It is also an admitted case of the parties that there was no written agreement between the parties when the occupation/possession/use of the said premises was permitted to the defendants/their father. In this case, as evident from the record, father of defendant no. 1 died in 2011. PW-2 has stated that his father had stopped coming to the shop / premises 4-5 years before his death and it was defendant no.1 who used to look after the affairs of the shop/basement. Nevertheless, defendants have not filed any document to show that after death of their father, the alleged tenancy devolved on defendant no.1 and the correspondences made on behalf of Punj Sons Private Limited or Nilender Prakash Punj Ex.PW-2/1 to Ex.PW-2/13 show that the same were addressed to the defendant no.2. No correspondence was addressed to the father of the defendants but it was only on receipt of letter/reply from the counsel for defendant no.1 Ex.PW-2/11 dated 30.03.2017, vide letter dated 22.06.2017 Ex. PW-2/12, the correspondence was made to both the defendants on behalf of Punj Sons Private Limited with copy to the plaintiff and Nilender Prakash Punj. Be that it may, the plaintiff in whole of the pleadings never disputed the occupation/possession of defendant no.1 in the said premises CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.64 of 92 rather, he made both Neeraj Aggarwal and Pramod Aggarwal as defendants. It has come in the testimony of Pramod Aggarwal D1W2 that after death of his father, he has no concern with the premises in question and overall management/control of the said premises/shop lies with the defendant no.1.

65. It is pertinent to mention that all initial correspondences pertaining to the suit property were made by PW-2 A.C Sharma, Director of Punj Sons Private Limited i.e. Ex.PW- 2/1, Ex.PW-2/4, Ex.PW-2/6. The correspondence dated 14.03.2017 Ex.PW-2/9 after the family settlement was made by A.K Srivastava, constituted attorney of Nilender Prakash Punj. The next correspondence Ex.PW-2/12 dated 22.06.2017 was again made by A.C Sharma. He has stated that he has been the Director in Punj Sons Private Limited since 2000. He never met the defendants at any point of time and what he stated in the affidavit was on the basis of the input provided by his office and on the basis of initial correspondences made by him in the form of letters. He has admitted that personally, he never received rent from any of the defendants. He has stated that no lease agreement was reduced into writing in respect of the basement. He stated that he had not physically visited the basement after 2000. As to the extent of area in occupation of defendants, he has stated that when letter Ex.PW-2/12 was written, the addressee were in occupation of an area admeasuring 1770 CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.65 of 92 sq.ft. approximately. He gave similar answer in respect of the letter Ex.PW-2/9, where the area in occupation of defendant no.2 Pramod Aggarwal is stated to be 1770 sq.ft. He stated that total area of the basement is 2500 sq.ft. He has stated that electric meters are installed on the wall under the staircase and it is not in his notice whether there was any other tenant in the remaining portion of the basement other than 1770 sq.ft. He has stated that he had issued the letter Ex.PW-2/12 in the capacity of the Director. He stated that CBI raid was not conducted in his presence.

66. PW-3 has stated that the plaintiff never visited the basement area after he became the owner and on his instructions, he had asked the defendant to pay rent at Rs. 25000/- per month. He had put the lock after CBI raid. He had seen the defendant operating from the basement for the first time in August, 2017. He has given inconsistent reply as to the existence of ice cube machines in the basement during his visit with the Local Commissioner. PW-1 has stated that the area measuring 530 sq.ft had fallen in the share of plaintiff as per the settlement. He was present during inspection by the Local Commissioner. He stated that total basement area 1800-1900 sq.ft. and that the portion of basement was given on rent to Pramod Aggarwal in 2000 by Punj Sons Private Limited and now, Neeraj Aggarwal has been continuing in the suit property.

67. From the testimonies of PW-1, PW-2 and PW-3, it is clear CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.66 of 92 that the tenancy/occupation of the basement area was not created/allowed by Sh. V.P Punj to the defendants in their presence. There is however inconsistency as to the extent of area in occupation of the defendant. The report of the Local Commissioner rather shows the extent of occupation by the defendant i.e. one room on the left of the stair case leading to the basement Mark C, open area with office Mark B and a hall Mark A. Entry to the said portion is from entry no.1. The area in possession of the plaintiff is merely the area from entry no.2 i.e. lift shaft and some portion where electricity meters have been installed. The report of the Local Commissioner belies the contention of the plaintiff that the defendant is in occupation of an area 832 sq.ft. or 530 sq. ft. as alleged in the plaint/evidence. The report rather supports the claim of the defendant that he is in occupation of whole of the basement except the area which has a separate Entry i.e. Entry no.2 where electricity meters have been installed. The layout filed with the report also shows that the defendant is in occupation/possession of an area much more than what has been alleged in the plaint.

A. Regarding area, extent and occupation of the premises-

68. While considering the oral testimony along with the documentary record, particularly the notice dated 22.06.2017 (Ex. PW-2/12) sent by the plaintiff's attorney A.C Sharma (PW-2), the area of premises is described as 1770 sq.ft. approximately (which PW-2 has clarified that it was wrongly CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.67 of 92 stated), stated to be in possession of the addressee, as well as by virtue of the said letter, the addressees were informed that there was a memorandum of settlement between Nilender Prakash Punj and the plaintiff Ravinder Prakash Punj. The document Ex.PW-3/D2 describes (which is Annexure 2 page 8 of 8 to the MOU) that certain portion came to Nilender Prakash Punj and other portion came to the plaintiff Ravinder Prakash Punj. However, area has not been specified in Ex.PW-3/D2. Simultaneously defendant no.1 during cross examination of PW-3, had tendered his site plan Ex.PW- 3/D1 to show the extent of area in his possession, which includes portion D being office and open area which corresponds to an area about 392.38 sq.ft in Annexure 2 being the site plan filed by the Local Commissioner with her report which also depicts as portion H of Annexure 2 page 8 of 8 Ex.PW-3/D2. Thus, it needs to ascertain the extent of area by keeping into other material on record particularly the report of the Local Commissioner which is also accompanied with the site plan prepared as per spot. Now, the record available is the layout plan/site plan Ex.PW-3/D2, site plan part and parcel of the report of the Local Commissioner, which remained unchallenged and the notice dated 22.06.2017 apart from the oral testimony of the witnesses. Onus to prove issue with regard to the area and the extent of area of the premises in question was on both the parties, however, no specific site plan has been filed by the plaintiff, consequently, the facts emerging from the memorandum of CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.68 of 92 settlement, site plan of the Local Commissioner with measurements, site plan appended with the memorandum of settlement and defendant no.1's site plan Ex.PW-3/D1 are to be seen after taking them together, in the light of oral evidence, as referred in para 57 of this judgment.

69. Before proceeding further, a natural question arises in view of the fact that the total area stated in the letter dated 22.06.2017 was 1770 sq.ft. but the suit was filed in respect of an area of 530 sq.ft. (being prayer in the amended plaint), whether the plea for partial possession is tenable? The answer is simple, to be traced in the memorandum of settlement coupled with the letter dated 22.06.2017 as in its paragraph 5 and 6, it has been specifically mentioned that the addresses were attorned to deal with Ravinder Prakash Punj (being fifth party in the memorandum of settlement) and his area is specifically shown orange in colour in Annexure 2 page 2 of 8, coupled with Annexure 2A, showing area of 832 sq.ft. and the other portion shown in brinjal colour is of sixth party Nilender Prakash Punj, in the Annexure 2A and his area is shown as 120 sq.ft + 140 sq.ft = 260 sq.ft in the basement which has been shown as annexe basement NGP Store Room and annexe basement NGP Service Room; the name of NGP Industries also finds mention in para 6 of the memorandum of settlement.

70. The other record is of the Local Commissioner. The Local Commissioner had also prepared the site plan being CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.69 of 92 Annexure 2 to the report (page no.7) and each portion of the premises is shown with measurements and the site plan prepared by the Local Commissioner tally with the Annexure 2, page 8 of 8 of Ex.PW-3/D2. The total area comes to 1738.65 sq.ft., out of which, the area in brinjal colour is of 410.16 sq.ft. + 308.37 sq.ft. = 718.53 sq.ft and the area in orange colour of Ravinder Prakash Punj is of 392.38 sq.ft. + 550.88 sq.ft.= 943.26 sq.ft. As per the Local Commissioner's report and other evidences, cartons of cold drink were found in the portion of 410.16 sq.ft. Area (of Nilender Prakash Punj) and ice cube machines were found installed/lying in portion shown in orange colour having area of 550.88 sq.ft. (of Ravinder Prakash Punj). The common staircase is shown as Entry no.1 and area of stair case is 76.86 sq.ft. which leads to the basement.

71. During oral submissions, it was supplemented and explained on behalf of the plaintiff that area of 530 sq.ft. was computed by super imposing on the area belonging to the plaintiff Ravinder Prakash Punj and it also included the area of 410.18 sq.ft. where cartons of cold drink were lying. On the other side, defendant no.1 claims that the entire area is in occupation of defendant no.1. Now, by this analytical assessment, the picture emerged is that as per the memorandum of settlement, portion of premises came to Nilender Prakash Punj and the plaintiff Ravinder Prakash Punj as per Annexure 2, page 8 of 8, being part of the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.70 of 92 memorandum of settlement, however, the plaintiff is claiming the portion in brinjal colour of 410.18 sq.ft., being addressed as superimposed area, in the plaint. By reading all these circumstances together, when the area in brinjal colour of 410.18 sq.ft belongs to Nilender Prakash Punj, being their final and approved memorandum of settlement, the plaintiff Ravinder Prakash Punj cannot seek possession of that area in his individual plaint against defendant no.1. It is not only a case of partial extent of area but also a case of seeking partial eviction of 530 sq.ft. area out of the area about 943.26 sq.ft. It is again reiterated that total area is of 1738.65 sq.ft. out of which, 718.53 sq.ft belongs to Nilender Prakash Punj as per the memorandum of settlement and the area which came to the plaintiff Ravinder Prakash Punj was 943.26 sq.ft and remaining was the common staircase measuring 76.86 sq.ft. It is settled principle that there cannot be suit for partial eviction of the premises. It is pertinent to mention that Nilender Prakash Punj, had sent the notice/letter dated 14.03.2017 Ex.PW-2/9 after the memorandum of family settlement claiming owner/landlord of the premises of basement area in occupation of defendant no.2 and to pay rent and clear the arrears at Rs. 18000/- per month w.e.f. December, 2011 terminating his tenancy and calling upon him to remove the stocks and vacate the premises and handover the same on or before 31.03.2017. This very letter shows that the area under tenancy of the defendants was not exclusively to the plaintiff but it was also with Nilender CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.71 of 92 Prakash Punj which fact has also been mentioned in the memorandum of settlement. It is also to note that in the said letter, defendant had been called upon to pay the amount/arrears jointly to him (Nilender Prakash Punj and Ravinder Prakash Punj, plaintiff herein) by issuing two separate cheques of equal amount. However, Nilender Prakash Punj has not filed the suit for any relief and present suit is exclusively filed by Ravinder Prakash Punj in his individual capacity.

B. Regarding lease and license:-

72. The plaintiff had originally filed suit for mandatory and permanent injunction, arrears of rent, however, subsequently, the plaint was amended while incorporating prayer for possession of the premises and correspondingly, the suit was valued for the purposes of court fee and jurisdiction as per Section 7 (ix) (cc) of the Court Fees Act, 1870. To say, there is twin and parallel pleading by the plaintiff as if the defendant was a licensee as well as a tenant, while emphasizing that in some of the record, a loose expression of 'lease' or 'license' or 'license fee' or 'rent' has been mentioned, however, for the following reasons, based on the material on record, there existed the relationship of the landlord and the tenant between the plaintiff and defendant no.1:

i) It is settled law that intention of the parties and surrounding circumstances lay down the relationship of the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.72 of 92 parties and in case, there are documentary written record, it also reflects the intention of the parties (reliance is placed on Delta International Ltd v/s Shyam Sundr Ganeriwala, 1999 III AD SC 521).

ii) The plaintiff has brought on record counter foil of receipts Ex.PW-2/1 and Ex.PW-2/4 (colly) annexed with Ex.PW-

2/D1, although the same were not bearing the acknowledgment of the defendants, however, it is the documentary record of the plaintiff and in these counter foils, it has been specifically mentioned that the same are the rent receipts and not the amount received against the license fee.

iii) The Local Commissioner had visited the premises after her appointment and the report has also been furnished which remained unchallenged that after entering the premises, the lock of internal door was opened by the defendant, which was reflecting the exclusive possession of the defendants.

iv) From the evidence of the parties coupled with the report of the Local Commissioner, it is also apparent that the ice cube machines were lying and installed in the premises, which were also functional at one point of time, therefore, lying of the key with the defendant and using the installed ice cube machines at one point of time reflect the surrounding circumstances that the defendants had interest in CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.73 of 92 the premises. Whereas in case of license, it is a permissible use vis.a.vis, license is a right purely personal between the grantor and the licensee, however, the circumstances of the present case are not suggesting such purely personal rights between the grantor and the licensee.

(v) The plaintiff in the notices dated 30.03.2017 and 22.06.2017 specifically refers the addressee as tenant, the later letter also attorns after approval of memorandum of understanding to the addresees being tenant as well as to deal for rent or future rent respectively with Nilender Prakash Punj and Ravinder Prakash Punj, and,

vi) Last but not the least, paragraph 25 and paragraph 9 of memorandum of settlement also reflect names of tenants in the building, inclusive of Aggarwal Store as tenant apart from the tenants who were paying electricity and water charges. This also corroborates the testimony of defendants that electricity charges were also being paid to the landlord as arranged between them.

73. In the case of Associated Hotels v/s R.N Kapoor, AIR 1962 SC 1262, it was held that there is a marked distinction between 'lease' and 'license'. Section 105 of the Transfer of Property Act defines lease of immovable property as a transfer of right to enjoy such property made for a certain time in consideration for a price promised. Under Section 108 of the Act, lessee is entitled to be put in possession of CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.74 of 92 the property. A Lease is therefore, a transfer of an interest in land. Section 52 of the Indian Easement Act, defines a license thus, where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of a guarantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or only an interest in the property, the right is called as 'license'. When a document gives only a right to the property in a particular way or under certain terms while it remains in possession and control of the owner, it will be a 'license'. The real test to ascertain whether it is a 'lease' or 'license', the intention of the parties is to be seen and if it relates to interest in the property, it is a 'lease' but if it relates to permit another to make use of the property of which, legal possession continues, it is a 'license'.

74. It is also seen in the testimony of DW-2 that the office at the basement was being used for billing purposes and they had kept one person who had been keeping the accounts in the basement. The defendant no.1 was also using/maintaining this office and at that time, Neeraj Aggarwal used to sit regularly at the shop and the basement area but thereafter, on account of there being decline in business, the account persons started to work on part time basis. He has stated that at the time his father was sitting in the shop and the basement area, there were 2-3 employees CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.75 of 92 apart from the accountant.

75. Further, looking at the videographs and the photographs, I do not find substance in the evidence of PW-3 that the machines/so called scrap had occupied only 30 sq.ft of space in another hall/room. The photographs and videograph clearly demonstrate that whole of the space of the hall has been occupied by the machines/so called scrap.

76. It is thus concluded that there is relationship of the landlord and tenant between the plaintiff and the defendant no.1 in respect of the portions specified in Annexure A, page 2 of page 8 being part of memorandum of settlement read with site plan Ex.PW-3/D2.

C. Regarding rate of rent-

77. The suit has been filed for arrears of rent too, apart from other reliefs. The plaintiff has claimed the arrears from January, 2018 to December, 2020 at the rate of Rs. 30,000/- per month, whereas on the other side, defendant no.1 has opposed the plea stating that the rent is Rs. 2000/- per month. Thus, it needs to peep into the evidence and to analyze the same.

78. At the outset, I say that there is no written agreement or contract between the parties with regard to rate of CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.76 of 92 rent,consequently, the surrounding circumstances are to be seen to come to the conclusion of rate of rent. The plaintiff has filed the counterfoil of rent receipt, claiming that the rate of rent was Rs. 18000/- per month but when it was challenged by defendant no.1, there was no production of books of account to authenticate the rate of rent. Simultaneously, the defendant no.1 also asserts the rate of rent as Rs. 2000/- per month and when defendant no.1 was confronted about documentary record, defendant no.1 admitted that he never tendered the rent by way of cheque or other such mode nor there is any contemporary record of notice or depositing in the court of Additional Rent Controller. The premises is located in the commercial and premium place of Connaught Place and keeping in view the rival oral testimony of both the sides, it appears that the rent of Rs. 18000/- as claimed by the plaintiff is carrying weight particularly, defendant no.2 was sent legal demand notice dated 14.03.2017 calling upon him to clear the arrears of rent at Rs. 18000/- per month w.e.f. December, 2011 (i.e. prior to memorandum of settlement) for an area admeasuring 1770 sq.ft. in occupation of the defendants. In Kalu Ram v/s Sita Ram (supra), it was held that when serious allegations are made in the legal notice and in case, the same are not opposed or responded, the same shall be treated to be admitted by the addressee. Accordingly, this ratio of law applies to the situation in hand in respect of rate of rent of Rs. 18000/- as defendants had not made any response to the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.77 of 92 said notice served on them.

79. It is also manifest from the record that the said notice was served on both the defendants as evident from the reply of the defendant no.1 dated 30.03.2017 (i.e. after memorandum of settlement) addressed to Nilender Prakash Punj where he never disputed the rate of rent as Rs. 18000/- per month as claimed in the letter/notice dated 14.03.2017. He had only demanded the documents/relevant papers of the tenancy of defendant no.1 which the plaintiff had supplied with the letter dated 22.06.2017. There is no correspondence thereafter on behalf of defendant no.1 denying the rental at Rs. 18000/- per month as claimed in the letter dated 14.03.2017. Moreover, plaintiff has not led any evidence to establish rate of rent as Rs. 25000/- or Rs. 30,000/- per month. The rate of rent has been disputed by the defendant no.1 for the first time in his written statement to the plaint filed by the plaintiff for mandatory injunction and arrears of rent. Even payment of pagri amounting to Rs. 5.0 lakh to Sh. V.P Punj was claimed only in the rejoinder to the counter claim and not in the main pleadings of the case filed by the plaintiff. No document has been placed in this regard as to the payment of the said amount which cannot be said to be a small amount when the basement was allegedly taken on rent by the father of defendant no.1. It appears that the concept of payment of pagri has been introduced by the defendant no.1 to bring this suit within the purview of Delhi Rent Control CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.78 of 92 Act barring the jurisdiction of the civil court by virtue of Section 50 of the Delhi Rent Control Act. Facts and circumstances rather show that prevalent rate of rent at that time even before the memorandum of settlement was Rs. 18000/- per month which the defendant is liable to pay to the plaintiff for the use and occupation of the premises in question.

80. Since it has been determined on the basis of plaintiff's own record of memorandum of settlement that the premises has been halved in two parts, the portion shown in orange colour came to Ravinder Prakash Punj/plaintiff and other portion in brinjal colour came to Nilender Prakash Punj, the total area was claimed to be 1770 sq.ft. (or on the basis of Local Commissioner's report, the area comes to 1738.65 sq.ft.). When the rent of Rs. 18,000/- per month in the said notice was for an area of 1770 sq.ft, then this rate of rent cannot be for an area of 832 sq.ft. or for modified claimed area of 530 sq.ft. as claimed in the amended plaint. The memorandum of settlement also depicts Clause no. 25 that half of the rent in respect of Aggarwal Cold Storage will go to fifth party/Ravinder Prakash Punj. Therefore, the claim of rent of Rs. 18,000/- per month cannot go to the plaintiff as per his own document. Half of the rent comes to Rs. 9000/- per month in respect of the portion falling to the share of the plaintiff, Ravinder Prakash Punj; although the plaintiff has not sought possession of the entire area as shown in the CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.79 of 92 memorandum of settlement but has confined to 530 sq.ft. area, which is partial area of the area coming to the plaintiff Ravinder Prakash Punj.

D. Service of Notice:-

81. As regards service of notice Ex.PW-2/1, with which rent receipt dated 23.03.2009 for Rs. 18000/- for the month of January, 2009 was enclosed, on perusal, I find that it was sent through registered post vide Ex.PW-2/2. There is an endorsement on the envelope 'refused' vide Ex.PW-2/3. The letter/notice was addressed to Pramod Aggarwal at address i.e. basement floor which was taken by the defendants. It has come in the testimony of D1W2 that the accountant/his staff used to sit in the office/cabin of the basement. Similar is the report on the notice Ex.PW-2/4 dated 23.04.2009 which enclosed a rent receipt dated 20.04.2009 for Rs. 18000/- for the month of February, 2009. As per the report, it was duly served and it was also addressed at the same address. Letter/notice Ex.PW-2/6 dated 17.02.2012 was addressed to Pramod Aggarwal at the address of the basement and the shop in the name of Aggarwal Stores at M-1/3, M Block Connaught Place, Inner Circle New Delhi which is the address of the shop of the defendant. It was sent through DTDC courier Ex.PW-2/7 and registered post vide Ex.PW- 2/8 and it received back with the refusal report. D1W1 has admitted to have received the letter dated 14.03.2017 CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.80 of 92 Ex.PW-2/9 which was received through registered post Ex.PW-2/10. There is tracking report to this effect which is also evident from the reply sent on behalf of Neeraj Aggarwal D1W1 Ex.PW-2/11 dated 30.03.2017. Pursuant thereto, the documents were supplied vide letter dated 22.06.2017 Ex.PW-2/12 which was acknowledged by both the defendants and the said letter also bears the address of the shop. Since there was a refusal report on the letter dated 25.03.2009 and 17.02.2012, so in view of section 27 of the General Clauses Act, the notice shall be deemed as served on the defendants since the letters were addressed at the correct address of the defendants which addresses have not been disputed. Further, at the said address, the defendants had received the letter Ex.PW-2/9.

82. In view of the detailed observations made in the preceeding paragraphs along with reasons, the issues framed formally by the court vide order dated 18.02.2022 are being disposed of in the following manner:-

Issue no.6- Whether the suit is bad for misjoinder of defendant no. 2? OPD.

83. Onus to prove this issue was on defendant no.1 that there was misjoinder of defendant no.2. It is apparent from the record itself that the defendant no.2 had opted to abstain CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.81 of 92 from joining the proceeding and he was proceeded exparte, however, at the stage of leading evidence, defendant no.1 got examined defendant no.2 as a witness (D1W2). Otherwise, there is no iota of material suggested either in evidence or otherwise as to how defendant no.2 was not a proper party for the suit. It has also come in the testimony of D1W1 that his father had taken the premises on rent. Initially, his father and defendant no.2 used to sit in the shop. After mutual agreement, defendant no.2 stopped coming to the shop and the affairs of the shop and basement came with the defendant no.1. PW-2 had also sent notices/legal notices to defendant no.2 only and it was only after the letter dated 30.03.2017 from the defendant no.1, the documents vide letter dated 30.06.2017 were sent to both the defendants. I am of the view that suit is not bad for misjoinder of defendant no.2.

84. Issue no.6 is accordingly decided against the defendant no.1.

Issue no. 7- Whether defendants are lessee or the licensee of the premises in question? OPP/OPD

85. Onus to prove this issue was on the plaintiff and the defendant no.1. Their respective evidence, in the form of oral testimony as well as documentary record, has been discussed in detail in paragraph no.22 to 26, paragraph no. 45 and point B (para 72-76) above. It has been specifically CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.82 of 92 concluded that the plaintiff and the defendant are the landlord and tenants, in respect of the portion described in orange colour in the site plan Annexure 2 page 8 of 8 of memorandum of settlement Ex.PW-1/1 to be read with the memorandum of settlement particularly in para 25. Thus, the defendant has succeeded to establish that he is a 'lessee' in respect of that portion and he is not the licensee in the said premises. Similarly, the plaintiff has failed to establish that defendant was a 'licensee' in respect of that premises.

86. Accordingly, issue no.7 stands disposed of.

Issues no. 8 and 9-

8. Whether the suit is barred under Section 50 of the Delhi Rent & Control Act? OPD

9. Whether the rate of rent was Rs. 18,000/- per month or Rs. 25,000/- per month or @ Rs. 2000/- per month? OPP/OPD

87. Both the issues are taken together since a common discussion was involved and made. The onus to prove issue no.8 was on defendant no.1, however, the onus to prove issue no.9 was on the plaintiff and the defendant no.1. The evidence of the parties have been discussed in detail in paragraph no. 22 to 26, B (para 72-76) and C (para 77-80), wherein it has been specifically held that there exists the relationship of the landlord and the tenant respectively between the plaintiff and the defendant. It has also been CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.83 of 92 concluded in that discussions that the rent was Rs. 18000/- per month for the entire premises of 1770 sq.ft. ( or 1738.65 sq.ft). The rent has to be halved equally on the basis of sharing of area as per the memorandum of settlement in respect of the premises. The half of the rent comes to Rs. 9000/- per month which is more than Rs. 2000/- per month. Consequently, the defendant could not establish that the suit is barred by Section 50 of Delhi Rent Control Act.

88. Accordingly, issue no.8 is decided against the defendant.

Moreover, it has also been discussed and held that plaintiff could not prove the monthly rent at Rs. 25000/-. Therefore, issue no.9 is partly decided in favour of plaintiff interalia that the rent was Rs. 18000/- per month and not Rs. 25000/- per month. Simultaneously, the other part of issue no.9 is decided against the defendant interalia that he could not establish that the monthly rent was Rs. 2000/- per month. Accordingly, issue no.9 is disposed of.

Issue no. 11- Whether the defendant no. 1 is in possession of the area measuring 530 sq.ft or 832 sq.ft or 1770 sq.ft of the premises in question? OPP/OPD

89. The parties were burdened to prove this issue whether the defendant is in possession of area of 530 sq.ft. or 832 sq.ft or 1770 sq.ft in the premises in question. In order to appreciate the rival contention, the paragraphs 46 to 67 and para (A) CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.84 of 92 (68-71) are being referred, which are admixture of oral testimony, documentary record particularly plaintiff's own record of memorandum of settlement coupled with Annexure 2 along with Annexure 2 A, which depicts the portions in occupation of defendant no.1. The Local Commissioner has also reflected the facts discovered by her during physical inspection of the spot. The culminate result is that an area of 550.88 sq.ft + 392.38 + 410.16 = 1353.42 sq.ft. + staircase area from entry no.1 i.e. 76.86 Sq.ft is in occupation/possession of defendant no.1 which the defendant has been exclusively using for keeping the mineral bottles/storage, materials including ice cube making machines, offices and the passage. Out of the area of 1353.42 sq.ft., an area of 943.26 sq.ft.+ common stair case fell to the ownership of the plaintiff by virtue of the family settlement and, an area of 410.16 sq.ft. fell to the ownership of plaintiff's brother Nilender Prakash Punj + common stair case.

90. From the record and the report of the Local Commissioner coupled with the evidence on record, the area in occupation of defendant no.1 is 1353.42 sq.ft. + staircase area from Entry no.1 i.e. 76.86 Sq.ft. The parties could not establish that the area was 530 sq.ft. or 832 sq.ft. or 1770 sq.ft of the premises as claimed.

91. Accordingly, issue no.11 is disposed of.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.85 of 92 Issue no.4- Whether the plaintiff is entitled to recovery of a sum of Rs. 16,63,200/- towards arrears of rent of the period from January 2018 to December 2020? OPP

92. The onus to prove this issue was on the plaintiff. The plaintiff has claimed arrears from January, 2018 to December, 2020 at Rs. 30,000/- per month, amounting to Rs. 16,63,200/- adding the interest of Rs. 5,63,200/- on the amount of Rs. 10,80,000/- at 18% per annum.

93. As discussed in detail in paragraph 80, (A) (68-71) and (C) (para 77-80), it is crystal clear that plaintiff is entitled for rent at the rate of Rs. 9000/- per month, consequently for want of rate of rent at the rate of Rs. 2000/- per month by the defendant as well as payment of rent for the period from January, 2018 to December, 2020, the plaintiff has succeeded to prove arrears of three years from January, 2018 to December, 2020 at the rate of Rs. 9000/- per month which comes to Rs. 3,24,000/-. In such circumstances, the plaintiff has not succeeded to establish of his entitlement of interest of Rs. 5,63,200/-, which request is not tenable under the law. The issue no.4 is partly allowed in favour of plaintiff and against the defendant no.1 with regard to recovery of arrears of Rs. 3,24,000/-. It is however made clear that the amount which has been directed vide order dated 29.01.2022 and deposited by the defendant no.1 shall be adjusted.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.86 of 92

94. Accordingly, issue no.4 is disposed of.

Issue no.5- Whether the plaintiff is entitled to interest, if so, at what rate? OPP

95. The onus to prove issue no.5 is on the plaintiff. Since the defendant no.1 has used the premises and issue no.4 has been partly decided against the defendant no.1, consequently, in terms of Section 34 of the CPC, 1908, interest @ 9% per annum, being commercial transaction will meet both ends of justice and interest will be calculated from the date of filing of suit till realization of the balance amount, subject to adjustment of amount already deposited as held in issue no.4.

Issues no. 2 and 3-

2. Whether the plaintiff is entitled to a relief of mandatory injunction, whereby, directing the defendant to remove their goods / articles lying in the portion of the property in question ? OPP.

3. Whether the plaintiff is entitled to recovery of possession in respect of the property measuring 530 sq.ft in the basement area of Punj House Annexe on plot no. 4 & 5 (back side portion), M-13, Middle Circle, Connaught Place, New Delhi as prayed for? OPP

96.The onus to prove issue no.2 and 3 lies on the plaintiff. In paragraph 46 to 67 + para (B) (para 72-76), it has already been discussed in detail about the area and extent of area of CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.87 of 92 the premises apart from the fact that an area of 550.88 sq.ft + 392.38 + 410.16 = 1353.42 sq.ft. + staircase area from Entry no.1 i.e. 76.86 Sq.ft is in occupation/possession of defendant no.1 which the defendant has been exclusively using for keeping the mineral bottles/storage, materials including ice cube making machines, offices and the passage. Out of the area of 1353.42 sq.ft., an area of 943.26 sq.ft.+ common stair case fell to the ownership of the plaintiff by virtue of family settlement and an area of 410.16 sq.ft. fell to the ownership of plaintiff's brother Nilender Prakash Punj + common stair case.

97. However, despite all these circumstances and evidence on record, the plaintiff is seeking possession of 530 sq.ft. area, being a part eviction, vis. a. vis. for the purposes of 530 sq.ft. area, he is seeking part area belonging to and falling in the share of Nilender Prakash Punj. To say firstly, he is seeking partial eviction of defendant no.1, which is not tenable under the law and secondly, for the purposes of 530 sq.ft. area, he is including the area falling in the share of Nilender Prakash Punj. The plaintiff Ravinder Prakash Punj cannot seek possession in his plaint partly of his own share and partly the share of his brother Nilender Prakash Punj. At the cost of repetition, it is reiterated that present plaint was filed by Ravinder Prakash Punj and his brother Nilender Prakash Punj is not a party to the suit.

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.88 of 92

98. In this manner, the plaintiff failed to establish issue no.3 in his favour. It is also not out of context to repeat that when suit for mandatory injunction was filed, the plaintiff pleaded the defendants as tenant but the prayer was like of a licensee to mandate the defendants to remove their belongings and articles lying in the premises in question. Later on, the plaint was amended, it was valued for the purposes of court fees and jurisdiction in terms of Section 7 (ix) (cc) of the Court Fees Act, 1870. The suit was valued on the basis that there was termination of tenancy by notice in respect of the landlord and the tenant. When the suit was filed, there was existence of the landlord and the tenant relationship, consequently, it does not remain a case of licensee as prayed in the original suit. Therefore, issue no.2 infact does not survive in view of the finding given on issue no.3, consequently issue no.2 is decided against the plaintiff.

Issue no.10 and Issue no.1:-

10. Whether the counter claimant / defendant no. 1 is entitled to restoration of possession as prayed for in the amended counter claim by the counter claimant / defendant no. 1? OPD

1. Whether the plaintiff is entitled to equitable relief of permanent injunction as prayed for in prayer para (a)?

OPP.

99. Both the issues are taken together because of its nature. The onus to prove issue no.10 lies on the defendant and onus to CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.89 of 92 prove issue no.1 lies on the plaintiff.

100. In order to appreciate the rival contentions, the evidence on record is speaking itself, which was also touched upon while discussing the case in the preceeding paragraphs and the para B (72-76). It is matter of evidence that the defendant no.1 had been in possession of the premises. Even when the Local Commissioner had visited the spot and the premises was inspected, the key of internal door was produced by the defendant, however, the key of the external door was produced by PW-3 Chand Khan, Real Estate Manager of the plaintiff. There was one more lock on the external door which was broken open. The said premises was locked from outside by the plaintiff which fact has also been admitted by the plaintiff in his plaint and the plaintiff's witness in his testimony. When the defendant no.1 was released from custody, he was denied entry to the basement as PW-3 did not open the lock which he had put on the external door on the instructions of the plaintiff for which he lodged an FIR under Section 448 IPC in the concerned police station against the plaintiff. Moreover, by conditional order dated 29.01.2022, the defendant no.1's request was allowed to access and enter the premises being plea in the counter claim. The defendant no.1 has established his possession as well as his dispossession by the side of the plaintiff. Consequently, the defendant has established issue no.10 of his counter claim for restoration of the possession, which CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.90 of 92 defendant no.1 has reoccupied consequent to conditional order dated 29.01.2022.

101. Accordingly, issue no.10 is decided in favour of defendant no.1 and against the plaintiff.

102. So far issue no.1 is concerned, it is to be looked into and disposed of in terms of decision on other issues as well as on the basis of evidence. As issue no.2 and 3 have been decided against the plaintiff and issue no.10 has been decided in favour of defendant no.1 on the basis of evidence on record, consequently, plaintiff is not entitled to relief of permanent injunction as prayed for in prayer clause (a) of the amended plaint to restrain the defendant from entering into or possessing or occupying the premises admeasuring 530 sq.ft. This issue is decided against the plaintiff.

Issue no.12- Relief.

103. In view of my detailed discussions on all the issues as well as issue wise findings, the suit is decreed as follows:-

i) The suit of the plaintiff is decreed for Rs. 3,24,000/- as arrears of rent @ Rs. 9000/- per month for the period from January, 2018 to December, 2020 along with interest @9% from the date of institution of the suit till realization of the amount in favour of the plaintiff and against the defendant CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.91 of 92 no.1. The amount paid by the defendant no.1 pursuant to the order dated 29.01.2022 be adjusted from the said amount,

ii) the plaintiff's suit for possession is dismissed,

iii) the plaintiff's suit for mandatory injunction is dismissed,

iv) the plaintiff's suit for permanent injunction is dismissed,

v) the defendant's counter claim is decreed for restoration of possession in favour of defendant no.1 and against the plaintiff.

104. Since, the suit was filed by the plaintiff and defendant no.1 has filed the counter claim, on the principal of equity, no order as to costs and both the parties shall bear their own cost.

105. Decree sheet be prepared accordingly.

106. File be consigned to record room.

Announced in open court                                       (Sanjiv Jain)
today i.e. 31.10.2022                                         District Judge
                                                           (Commercial Court)-03
                                                                 New Delhi

CS (Comm) No. 42/2021 Ravinder Prakash Punj v/s Neeraj Aggarwal & Anr Page No.92 of 92

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Ravinder Parkash Punj vs Neeraj Aggarwal on 31 October, 2022