Delhi District Court
Manjeet Kaur vs . Gian Singh &Anr. on 15 July, 2023
1
MANJEET KAUR VS. GIAN SINGH &ANR.
IN THE COURT OF VIVEK KUMAR AGARWAL,
CIVIL JUDGE 03, Shahdara DISTT.,
KKD COURTS, DELHI
Civil Suit No: 1083/17
Date of Institution: 04.02.2017
Date of Decision: 15.07.2023
1. Smt. Manjeet Kaur
W/o Sh. Harjinder Singh
D/o Sh. Hari Singh
R/o RZ441F, Gali No. 22
Sadh Nagar IT
Delhi110045.
...................Plaintiff.
Versus
1. Sh. Gian Singh
S/o Sh. Hari Singh.
2. Sh. Amarpal Singh
S/o Sh. Gian Singh.
Both R/o F13, Dilshad Colony, Delhi110095.
............Defendants.
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF
RENT AND RECOVERY OF DAMAGES/MESNE PROFITS
AND PERMANENT INJUNCTION
Present: None.
Civil Suit No: 1083/17 (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
2
MANJEET KAUR VS. GIAN SINGH &ANR.
JUDGMENT:
1. The present suit has been filed by the plaintiff seeking possession/ejectment in respect of one shop No. G3 in premises no. F13, Dilshad Colony Delhi (hereinafter called as suit property/shop) as shown in red colour in the site plan, for recovery of Rs.21,242/ as arrears of rent for the period of November, December 2016 and January 2017 alongwith interest pendente lite and future @ 18% p.a. and as damages/use and occupation charges/mesne profits from 01.01.2017 till date i.e. 31.01.2017 for Rs.15,500/ @ of Rs.500/ per day and future and pendent lite damages till the recovery of possession of suit property and seeking relief of permanent injunction, restraining the defendant, his agents, associates, etc. from creating any third party interest in the suit property and to award the cost of suit in favour of plaintiff.
PLAINTIFF'S VERSION :
2. Succinctly, case of plaintiff is that mother of the plaintiff was the absolute owner of the suit shop by virtue of the sale deed dated 17.03.2005. That the mother of the plaintiff sold the said property to the plaintiff and executed the sale deed dated 18.03.2016 in favour of the plaintiff. That by virtue of the said sale deed, the plaintiff became the owner and in possession of the said shop in the said property. At request of defendants on 07.04.2016, the plaintiff let out the said shop to the defendants at a monthly rent of Rs.6,000/ exclusive of electricity and water charges and other taxes. Thereafter, the defendants jointly started running the business under Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 3 MANJEET KAUR VS. GIAN SINGH &ANR.
the name and style of M/s Prince Photo Frame Shop. That the defendants had stopped making payment of rent after October 2016. That plaintiff had requested the defendants for arrears of rent for the month of November and December 2016, but the defendants failed to do so and threatened the plaintiff to face dire consequences. Thereafter, plaintiff made a complaint to police on 25.12.2016. Thereafter, defendant again threatened the plaintiff and another police complaint was lodged by the plaintiff. That plaintiff informed the defendants to terminate the tenancy and asked them to vacate the suit premises on 31.12.2016 and thereafter a legal notice dated 26.12.2016 was also sent asking the defendant for examination of tenancy and demanding the arrears of rent but to no avail and hence the present suit.
WS OF DEFENDANTS':
3. Defendants appeared before the court on being summoned and contested the suit by filing their joint WS. In the preliminary objections, it is stated that late Sh. Hari Singh, father of defendant no. 1 and grandfather of defendant no. 2, had purchased property bearing no. 483/5, Plot no. 13, Block F, Dilshad Garden Shahdara, through registered sale deed on 28.01.1984 and defendant no. 1 had contributed his total earnings/income in the joint family and also in the construction/repair of the said property. That on 21.10.2004 late Sh. Hari Singh had conveyed the entire property in favour of one builder namely, M/s Laxmi Balani Constructions Pvt. Ltd through his director Sh. R.C. Balani for construction of the said property with Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 4 MANJEET KAUR VS. GIAN SINGH &ANR.
mutual understanding among the legal heirs of the said premises and thereafter on 16.03.2005, the property/shop in question was purchased/repurchased by the deceased in the name of his wife namely, Smt. Joginder Kaur and the consideration amount was paid from the joint family funds and the income of the defendant no. 1 and therefore the property in question became the ancestral and joint family property of the answering defendants and they are the coparcenars in the suit property. That plaintiff has no cause of action to file the present suit and have concealed the material facts. In reply on merits, relationship between both the parties is admitted stating that plaintiff and defendant no.1 are brother and sister. It is stated that mother of plaintiff and the defendant no. 1 was a housewife from beginning without having any source of income and that property in question i.e. bearing no F13, Dilshad Colony, Delhi95 total measuring about 216 sq. feets has been made by investing the contributed earnings of the defendants. In para no. 2, the execution of sale deed in question in favour of the plaintiff is stated to be the matter of record, however, it is alleged that said sale deed was executed between the parties by concealing the material facts and without knowledge and consent of other legal heirs. The ownership of the plaintiff is denied and it is further denied that the defendants are tenant in the suit property and rather they are claimed as the owner of the suit property. It is further stated that deceased late Sh. Hari Singh wished that if any dispute arose in respect of suit shop, then consideration amount/cost shall be paid by the defendants to Smt. Joginder Kaur through FD in the bank with her name and Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 5 MANJEET KAUR VS. GIAN SINGH &ANR.
answering defendants were ready for the same, however, plaintiff was inducing Smt. Joginder Kaur to grab the suit property. It is further stated that the answering defendants came to know about the said fraud when they had filed suit against the plaintiff. All other averments of the plaint are denied with a request to dismiss the suit.
ISSUES:
4. From the pleading of the parties following issues were framed vide order dt. 11.07.2018 :-
1. Whether there is a relationship of landlord and tenant between plaintiff and defendant? OPP
2. Whether the plaintiff is entitled to a decree of possession of the suit property? OPP
3. Whether the plaintiff is entitled to a decree for recovery of arrears of rent of Rs.21,242/- along with interest? OPP
4. Whether the plaintiff is entitled to a decree of damages/mesne profit and if yes, at what rate and for which period? OPP
5. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
6. Relief.
Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 6 MANJEET KAUR VS. GIAN SINGH &ANR.
PLAINTIFF EVIDENCE:
5. To prove her case, plaintiff herself stepped into the witness box as PW1 by tendering her affidavit Ex. PW1/A and also tendered some documents as Ex. PW1/1 to Ex. PW1/11 including the sale deed dated 17.03.2005, sale deed dated 18.03.2016, site plan, copy of complaint given to police, copy of CCTV camera recording, copy of notice and postal receipt. One more witness namely, Sh. Sarabjeet Singh was examined, cross examined as PW2. Cross Examination of PW1 on behalf of defendant was previously made nil, however, on the application of defendants, same was allowed and thereafter, evidence on behalf of plaintiff was closed vide separate statement of plaintiff.
DEFENDANTS' EVIDENCE:
6. Defendant no. 1 failed to step into the witness box despite filing his affidavit on record. Defendant no. 2 was examined as DW1 and wife of defendant no. 1, namely, Daljeet Kaur was examined as DW2. Both the witnesses were cross examined on behalf of plaintiff. Thereafter, DE was closed vide the separate statement of the counsel dated 09.02.2023.
7. Final arguments advanced on behalf of plaintiff have been heard. Counsel for defendants did not advance any oral arguments and filed written submissions only. File including written Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 7 MANJEET KAUR VS. GIAN SINGH &ANR.
submissions on behalf of defendants have been minutely and carefully perused and my issue wise findings are as under: ISSUE NO.1
8. The burden to prove this issue was upon the plaintiff. It has been submitted by ld. Counsel for plaintiff that the agreement of tenancy was an oral agreement and to prove the said relationship, plaintiff has herself stepped into the witness box and has also examined one witness as PW2 to corroborate her version. It is argued that defendants have challenged the ownership of the plaintiff in the suit property, however, the said plea has been raised by the defendant without any grounds. That admittedly, father of plaintiff and defendant no.1 namely Sh. Hari Singh was the owner of the property F13 vide sale deed Ex.AD1 and he had transferred the said property in favor of the builder M/s Laxmi Balani Constructions Pvt. Ltd. vide sale deed Ex.DW3/A, which has been placed on record by the defendants only. That thereafter, the mother of plaintiff and defendant no.1 namely Smt. Joginder Kaur had purchased the suit shop vide sale deed Ex.PW1/1 and subsequently, she had transferred the same to the plaintiff vide sale deed Ex.PW1/2. That in para no.2 of the WS, defendants have duly admitted the execution of the said sale deed Ex.PW1/2 stating the same as matter of record and DW1 as well as DW2 have also admitted the same in their cross examination. That the sale deed in favor of plaintiff is a registered document and it carried the presumption that it was validly executed. In this regard reliance is placed upon the judgment of Hon'ble Apex Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 8 MANJEET KAUR VS. GIAN SINGH &ANR.
Court titled as 'Jamila Begum (D) Through Lrs Vs. Shami Mohammad (D) Through LRs & Anr II (2019) SLT 86.' It is further argued that the defendants have raised the allegation with respect to the genuineness of the sale deed in favor of the plaintiff, however, no specific pleadings as per Order VI Rule 4 CPC or any evidence has been given on behalf of defendants. It is argued that even otherwise as per Section 91/92 of IEA, no oral evidence can be given with respect to the terms of the said contract. It is further contended that as admitted by DW2, who is the wife of defendant no.1 and mother of defendant no.2, defendants became aware of the sale deed in question Ex.PW1/2 after sixseven months of the execution of same, however, same was never challenged by the defendants and now, same cannot be challenged by the defendants as being barred by limitation. Lastly, it is contended that the defendants have taken a hollow plea to challenge the ownership of the plaintiff in the suit property, whereas on the other hand, the plaintiff has duly proved the relationship of landlord and tenant between both the parties.
9. On the other hand, in the written submissions filed on behalf of defendants, the averments of WS have been reiterated. It is stated that plaintiff has admitted that suit property was purchased in the name of Late Sh. Hari Singh and therefore, it is established that property was ancestral property. Raising the question on the validity of the sale deed on favor of plaintiff, plea is taken regarding violation of the provision of IT Act and regarding the source of Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 9 MANJEET KAUR VS. GIAN SINGH &ANR.
funds of the plaintiff to purchase the said shop and also regarding the ability of Late Smt. Joginder Kaur to execute the said sale deed. It is further stated that plaintiff has not submitted any evidence in form of rent agreement or rent receipt to prove the bonafide of a landlord.
10. Heard. It is to observe that as per the case of plaintiff, there was oral tenancy between the parties and no document was ever executed as defendant no.1 is her brother only. Accordingly, the plaintiff has sought reliance on the oral evidence to prove the said relationship of landlord and tenant. To discharge her burden, the plaintiff has stepped herself into the witness box to depose the said version on oath and nothing has been recorded in her cross examination to impeach the veracity of the witness in this regard and plaintiff/PW1 has categorically stated in para no.5 of the affidavit that it was on 07.04.2016 that suit shop was let out to the defendants. In her crossexamination she has maintained her stand that defendant no.1 had orally requested to her for her shop on rent basis and thereafter, being agreed she had given the shop on rent and the rent was paid at the rate of Rs.6000/ p.m. for 56 months. The version of plaintiff is duly corroborated by PW2, who is an independent witness as having no blood relations with either of the parties. He has supported the case of plaintiff in all material particulars and has specifically stated in para 5 of his affidavit that defendants had requested the plaintiff on 07.04.2016 to let out the suit shop and on their request, plaintiff had let out the same on monthly rent of Rs.6000/. He had further stated in para no.7 that rent was paid by Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 10 MANJEET KAUR VS. GIAN SINGH &ANR.
the defendant upto October 2016. In his crossexamination, nothing has been extracted on behalf of defendants to discredit the testimony of said witness. Accordingly, I am satisfied that plaintiff has duly proved, to the standard of preponderance of probability, that there was oral tenancy between both the parties with respect to suit shop at the monthly rent of Rs.6000/ and therefore, the onus had shifted upon the defendants only to rebut the case of plaintiff.
11. On the other hand, the defendants have failed to lead any evidence to rebut the case of plaintiff. As discussed above, nothing could be extracted during the cross examination of either of the witnesses of the plaintiff to support the version of the defendants. Defendants had even failed to specifically deny the factum of tenancy as pleaded in para no.4 of the plaint. In the para 4 of reply on merits of the WS, an evasive denial has been made, which is not as per the provision of Order VIII Rule 3 CPC. The defendants have also failed to mention any particulars regarding the date/month/year and to mention any fact regarding the manner in which they came in possession of the suit shop. A vague plea has been taken that they were in possession from very beginning.
12. It is further observed that as per Section 116 of IEA, tenant cannot be permitted to deny that the landlord of the tenant had no title to the immovable property in question. Again, law is very well settled that a suit for eviction of tenant filed by a landlord cannot be converted into a title suit, however, at the same time, it is observed Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 11 MANJEET KAUR VS. GIAN SINGH &ANR.
that as defendant has taken the said plea time and again throughout their WS, evidence and the final arguments, I find it apposite to give specific findings in this regard. After appreciation of evidence on record including documentary as well as oral, I am of the considered and confirmed view that the plea raised by the defendant with respect to the question on ownership of the plaintiff in the suit property and rather suit property being an ancestral property, is baseless. I come to this conclusion for several reasons discussed hereinafter.
13. The ownership of plaintiff in the suit property is established on the basis of registered sale deed i.e. Ex.PW1/2, execution of which is duly admitted by the defendants in the WS as well as in the cross examination of DW1 and DW2. The registered document certainly carries the presumption of its validity as argued by Ld. Counsel for plaintiff and as laid down in the judgment of Jamila (supra). The said presumption is rebuttable, however the defendants have failed to lead any evidence to rebut the said presumption, except making the bald averments. In the written arguments, plea is taken with respect to the ability of the mother of plaintiff and defendant no.1 Late Smt. Joginder Kaur to execute the said sale deed, however, no such pleadings have been made in the entire WS. As per Order VI Rule 4 CPC, if any party relies on the misrepresentation, fraud, breach of trust, willful default or undue influence, the particulars (with dates and items if necessary) have to be stated in the pleadings. Accordingly, said plea in the written arguments cannot be taken into Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 12 MANJEET KAUR VS. GIAN SINGH &ANR.
consideration at this stage for want of pleadings. Even otherwise, no evidence has been led on behalf of defendants in any manner to prove the said plea with respect to the mental ability of Smt. Joginder Kaur to execute the said sale deed. The argument with respect to violation of provision of IT Act also does not hold any water as a sale deed validly executed and registered as per Section 54 of TPA cannot be rendered invalid for violation of any provision of IT Act and it is the matter between the IT Authorities and the tax payer only. Again, the plea with respect to the ability of the plaintiff to pay the sale consideration is also vague as discussed above in terms of Section 91/92 of IEA, even otherwise, oral evidence with respect to the terms of a document cannot be given except as provided U/s 92 CPC. Not only this but as per Section 25 of Indian Contract Act, an agreement without consideration cannot be void if it is expressed in writing and registered and is made on account of natural love and affection between the parties standing in a near relation to each other. In the present case, the seller was the mother of the buyer/plaintiff and therefore, even if there would have been no sale consideration, sale deed could not be rendered void. Again, the plea taken on behalf of defendants that suit property was ancestral property as being purchased by the father of plaintiff and defendant no.1, is also misconceived. Admittedly, the suit property was a self acquired property of Late Sh. Hari Singh and therefore, property acquired by a father could not be the ancestral property of the son. The plea taken in WS regarding the contribution made by defendant no.1 in purchase of the suit property from his own earning is also Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 13 MANJEET KAUR VS. GIAN SINGH &ANR.
falsified by the statement of his wife during her crossexamination as DW2 wherein she stated that her husband would be only 12 years old in the year 1984. Nothing has been placed on record to satisfy the court that defendant no.1 was earning even being a child of 12 years. Going one step further it is observed that even if the plea of defendants in the WS is believed that late Sh. Hari Singh had purchased property vide sale deed Ex.DW3/A in the name of his wife, even then the ownership of Late Smt. Joginder Kaur cannot be challenged as she had become the absolute owner of the said property as per Section 14 of Hindu Succession Act. Said sale transaction was never challenged by late Sh. Hari Singh in his lifetime, if it was a case of benami property. Moreover, the said sale deeds Ex.DW3/A and ExPW1/2 were never challenged by the defendants during the life time of late Smt. Joginder kaur, though being duly aware about the same, as stated by DW2 in her cross examination. It is also pertinent to mention that as on date, said sale deeds cannot be challenged by the defendants in the court of law as being barred by limitation. Accordingly, the whole premise of the defendants with respect to the ownership of property is baseless and ownership of plaintiff in the suit property is duly proved.
14. In view of the aforesaid discussion, Issue no.1 is decided on favor of plaintiff and against the defendants.
Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 14 MANJEET KAUR VS. GIAN SINGH &ANR.
ISSUE NO.2:
15. It is to observe that the present case is filed by the plaintiff for eviction of the tenant and to obtain the said relief, plaintiff is required to prove three things ; (1) relationship of landlord and tenant between both the parties, (2) suit is not covered within the scope of DRC Act and (3) that tenancy of the defendant has been terminated.
16. As observed above in the findings of Issue no.1, plaintiff has duly proved the relationship of landlord and tenant between both the parties. Again, the rate of rent being Rs.6000/, the suit is not covered within the scope of DRC Act. It is further observed that as per the case of plaintiff, no notice was given by her for termination of tenancy of the defendants under Section 106 of TP Act and she had orally intimated the defendants for vacating the suit shop w.e.f. 31.12.2016. At the same time, it is further pertinent to mention that mere filing of the suit and service of the summons of the suit amounts to termination of tenancy. In this regard reliance is also placed upon the judgment of Nopani Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728. In the present case, the summons of the present suit were served for the first time on the defendants on 21.04.2017 and therefore, the tenancy of the defendants stood terminated on the said date itself and subsequently, the defendants became the unauthorized occupants in the suit property and therefore they are certainly liable to vacate the suit premises and to handover the possession of the same to the plaintiff.
Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 15 MANJEET KAUR VS. GIAN SINGH &ANR.
Consequently, Issue no.2 is decided against the defendants and in favor of plaintiff.
ISSUE NO.3:
17. In view of the findings of Issue no.1, it is clear that plaintiff has proved that rent was not paid by the defendants from November 2016 to January 2017 and rate of rent was Rs.6000/ per month. Now, it is a matter of legal trite that the onus to prove the rate of rent lies upon the landlord and the onus to prove the payment of rent lies upon the tenant only. In the present case, no evidence has been led on behalf of defendants if they had made the payment of rent as claimed by the plaintiff. Accordingly, case of plaintiff is duly established that plaintiff is entitled for recovery of Rs.18,000/ from the defendants towards the arrears of rent for the period of November, December 2016 and January 2017. However, I do not find any ground to award the interest on the said amount. Accordingly, Issue no.3 is also decided in favor of plaintiff and against the defendants.
ISSUE NO.4:
18. Regarding the relief of damages / mesne profits, it is to observe that the plaintiff has claimed the same at the rate of Rs.15,000/ per month w.e.f January 2017 and pendente lite and future damages till date of delivery of vacant possession of the suit property.
Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 16 MANJEET KAUR VS. GIAN SINGH &ANR.
19. It is to observe that the plaintiff has failed to lead any substantial evidence that the prevailing rate of rent for suit premises is about Rs. 15,000/, however at the same time judicial notice can be taken of the fact that the amount of rent for various properties in and around Delhi has been rising staggeringly. In this regard, I also seek reliance from the authority of Hon'ble High Court of Delhi titled as "Vinod Khanna & Ors. vs. Bakshi Sachdev (deceased) through LRs & Ors." AIR 1996 (Delhi) 32, wherein it was observed that the judicial notice can be taken of the fact about increase of rents in the premises in and around Delhi, which is a city of growing importance being the capital of the country, which is a matter of public history. Again, in case of "Sh. M.R. Sahni vs. Mrs. Doris Randhawa" 2008 (104) DRJ 246, Hon'ble High Court of Delhi while reiterating the steep increase in the rentals in Delhi, again emphasized that in relation to determination of mesne profits, there is always some element of guess work.
20. Accordingly, in view of this legal settled position, let me advert to appreciation of the facts in the present case. As discussed above, the rate of rent for the suit property was Rs.6000/ per month in the year 2016 and therefore, I am duly satisfied that suit premises being a commercial property could easily fetch the amount of Rs. 10,000/ per month as rental value to the plaintiff during the period of unauthorized occupancy by the defendant and therefore, I am of the view that plaintiff is entitled for mesne profits @ Rs. 10,000/ per month. As discussed above in the findings of Issue no.2, the tenancy Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 17 MANJEET KAUR VS. GIAN SINGH &ANR.
of the defendants stood terminated w.e.f. 21.04.2017 and consequently, the plaintiff is entitled for damages/mesne profits from the defendants w.e.f. 22.04.2017 till the date of vacant possession of the suit property. Accordingly, Issue no.4 is also decided in favor of plaintiff and against the defendants.
ISSUE NO.5:
21. As observed in the findings of Issue no.1, plaintiff is the land lady as well as the owner of the suit shop and on the other hand, defendants have no right in the suit property and therefore, have no right to create any third party interest or to part with possession of the suit shop to any other person except the plaintiff. Issue no.5 is accordingly also decided in favor of plaintiff and against the defendants.
ISSUE NO.6 RELIEF:
22. In view of aforesaid discussion, suit of the plaintiff is hereby decreed and following reliefs are granted to the plaintiff:
(i) That both the defendants shall vacate the suit shop and will handover the vacant and peaceful possession of the same to the plaintiff within one month from date of decree;
Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi 18 MANJEET KAUR VS. GIAN SINGH &ANR.
(ii) That both the defendants in their joint and several liability will pay the amount of Rs.18,000/ towards arrears of rent to the plaintiff in one month from date of decree;
(iii) That both the defendants in their joint and several liability will pay the mesne profits/damages @ Rs.10,000/ per month to be calculated from22.04.2017 till date of handing over of the possession of the suit premises to the plaintiff;
(iv) That both the defendants or their agents/servants/associates etc. are hereby permanently restrained to create any third party interest in the suit property in any manner or to handover the possession of the same to any other person except the plaintiff.
23. Suit is hereby decreed, however, the plaintiff is directed to file the court fees payable for aggregate amount of mesne profits as per Sec. 11 of Court Fees Act. Decree sheet be prepared thereafter only. File be consigned to Record Room after due compliance.
Pronounced in open court: (Vivek Kumar Agarwal) Dated: 15.07.2023 Civil Judge03, Shahdara, KKD Courts, Delhi Note : This Judgment contains 18 pages and all the pages have been checked and signed by me.
(Vivek Kumar Agarwal) Civil Judge03, Shahdara, KKD Courts, Delhi Civil Suit No: 1083/17 (Vivek Kumar Agarwal) CJ03/KKD/Delhi