Delhi District Court
Cs No. 118/14 Harinder Pal Singh vs . Krishak Bharti Cooperative on 2 May, 2015
CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative
IN THE COURT OF SH. NAVEEN ARORA
ADJ06: SOUTH DISTRICT: NEW DELHI
Suit No : 118/14
Sh. Harinder Pal Singh
S/o Sh. Harmohinder Singh
R/o J9/17D, Rajouri Garden
New Delhi110027 ..........PLAINTIFF
V E R S U S
Krishak Bharti Cooperative Ltd.
A10, Sector1, Noida
District Gautam Budh Nagar (U.P.)
Also at:
49,50, Nehru Palace,
New Delhi110019 .....................Defendant
Date of institution of Suit : 22.08.2009
Date on which order was reserved : 06.04.2015
Date of Judgment : 02.05.2015
SUIT FOR POSSESSION, DAMAGES AND RECOVERY OF ARREARS
OF RENT OF RS.15,84,395/ ALONGWITH PENDENTILITE AND
FUTURE INTEREST
JUDGMENT
1 As per the case of the plaintiff, he is the owner of premises Flat No.303, Red Rose House, 4950, Nehru Place, New Delhi i.e. the suit property, which he purchased from Sh. Satpal 1 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative Singh i.e the original allottee of the builder M/s Sky Way Construction Company on 23.03.1996. At the time of its purchase by the plaintiff, the defendant was occupying the same as tenant under Sh. Satpal Singh vide Lease Deed dated 12.01.1982. The plaintiff after purchasing the property got it mutated in his name through the above mentioned builder after paying all the transfer charges, maintenance charges etc. Thereafter plaintiff approached the tenant seeking the payment of rent in his name after showing all the paper of transfer but defendant did not bother to pay the rent. Finally, the plaintiff got issued a legal notice dated 27.11.2007 but of no consequence. As the lease had already expired and was continuing on month to month basis by holding over, the plaintiff vide legal notice dated 20.09.2008 terminated the tenancy and demanded the arrears of rent from the date of change of ownership and the defendant was asked to vacate the premises with 15 days or to pay damages @ Rs.80,000/ per month. The notice was duly served upon the defendant but same was not complied with. Accordingly a suit was filed but the same was to be withdrawn on account of a technical objection and liberty was given to the plaintiff to file the fresh suit on the same cause of action. After withdrawal of said suit, the plaintiff again served a statutory notice dated 01.04.2009 U/Sec. 106,111 of Transfer of Property Act and U/Sec.115 of Multi State Cooperative Societies Act 2002 upon the defendant and the Registrar of Society but the same was not complied with by the defendant. In the previous suit the defendant in their WS had taken a plea that they are paying the rent to the owner namely Sh. Satpal Singh by depositing 2 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative the same @ Rs.5,911/ per month in his bank i.e PNB, hence this suit for decree of Possession, Damages and recovery of arrears of rent of Rs.15,84,395/ alongwith pendentilite and future interest @ 18% p.a. with cost.
2 Suit was contested by the defendant by filing the WS taking the objection of locus of the plaintiff as he has not placed on record the Registered Sale Deed in his favour as the documents filed by him do not inspire confidence in the eyes of law. It is submitted that the plaintiff was asked vide letter dated 04.08.2008 to furnish certain documents i.e. The Registered Sale Deed, the payment receipt of consideration, Registered GPA (if any), transfer of right to recover the rent w.e.f. 16.08.2006, copy of property tax deposited with MCD, Mutation Certificate of MCD which the plaintiff failed to furnish and the document which was furnished by the plaintiff i.e. Agreement to Sell do not confer any right or authority upon the plaintiff to claim ownership of the suit property. As the tenancy was not terminated by the original owner, the plaintiff has no locus to file the present suit. It is submitted that suit deserve to be dismissal. It is submitted that the mutation with the builder is irrelevant and on the basis of which the plaintiff cannot file a suit as no right is created in favour of plaintiff. The plaintiff raised his claim for the first date vide communication dated 27.11.2007 against which letter dated 04.08.2008 was written to the plaintiff for demanding the document. On the above mentioned ground, defendant prayed for dismissal of the suit. 3 Replication to WS was filed by the plaintiff wherein the 3 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative plaintiff reaffirmed the contents of the plaint and denied the contents of the WS. It is submitted that even Sh. Satpal Singh was not having the Registered Sale Deed in his favour and the documents sought by the defendant have got no relevance as builder has duly transfer the property in favour of plaintiff and necessary records in this regard were duly furnished to the defendant. It is stated that in the year 1996 the transfer of property used to take place by execution of GPA, agreement to Sell which are sufficient to convey the title. Plaintiff admitted that he did not claim right prior to 27.11.2007 and stated that defendant is liable to pay rent from December 2007.
4 Vide order dated 02.12.2010 the application of the plaintiff U/o 39 Rule 10 CPC was dismissed and the issues were framed :
1. Whether the plaintiff is the owner of the suit premises ?
2. Whether the plaintiff is entitled to possession of the suit premises or not?
3. Whether the plaintiff is entitled to recovery of rent, mesne profit. If so, at what r ate and for which period ?
4. Whether the plaintiff is entitled to interest on the amount as due and at what rate ?
5. Whether the suit as filed by the plaintiff is not maintainable for want of notice U/Sec.111 of Multi Cooperative Societies Act? If so, its effect?
6. Relief.
4 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative IT IS PERTINENT TO MENTION HERE THAT DEFENDANT VACATED THE SUIT PREMISE AND DEPOSITED THE KEYS OF THE SUIT PROPERTY IN THE COURT ON 26.10.2013. 5 In Plaintiff evidence, plaintiff examined himself as PW1 who filed his affidavit in his examination in chief reiterating the contents of the plaint and relying upon the following documents : Sl.No Documents Exhibits Inference 1 Site plan PW1/1 Even otherwise the property is identifiable from its number so no site plan is required.
2. GPA(notorized), PW1/2 Vide these documents agreement to sell (neither to the property was notorized nor registered), PW1/5 allegedly sold by Satpal possession letter , letter Singh to the plaintiff. dated 23.03.1996 by earlier owner
3. Agreement dated PW1/6 Vide this documents 16.08.06 executed by the to these property was builder, receipts dated PW1/9 mutated in favour of 14.08.06 & 16.08.06 plaintiff in the records of issued and no due builder(these documents certificate were executed on the basis of documents EX.PW/1 to EX.PW1/5
4. Copy of Legal notice P1/10 Vide this notice the dated 27.11.2007 and its & plaintiff claimed for reply PW1/11 arrears of rent for the (admittedly, this was for first time after the the first time after the purchase of the property alleged purchase of and vide reply the property on 23.03.1996 defendant sought i.e. after more than 11 furnishing of title years, the plaintiff documents.
5 of 22
CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative
contacted the
defendant.
5. Copy of Statutory notice PW1/12 Service of this legal
dated 01.04.2009 U/Sec. to notice is not disputed by
106, 111 of TP Act r/w PW1/17 the defendant in WS,
Section of 115 of MSCS though it has been
Act 2002 with postal mentioned it was not
receipt, UPC and AD properly served but not
cards explained what is the
meaning of proper
service.
6. Copy of notice U/o 12 PW1/18
Rule 8 CPC with postal &
receipt PW1/19
6 During his cross examination, the witness stated that
property is not a free hold property, therefore the Sale Deed cannot be executed. He admitted that property is not mutated in his name in the Municipal Records and he cannot say whether he pay property tax to MCD or not. He also stated that Sh. Satpal Singh was residing at Bangkok in the year 1996 who is plaintiff's father's cousin sister's husband. Sh. Satpal Singh had two sons and five daughters and name of his wife is Smt.Trilochan Kaur and all of them are residing in Bangkok. He stated that Sh. Satpal Singh is not alive and his wife visit India after every 1 1½ years and his children had come to India 23 months ago. He stated that he cannot say in which year Sh. Satpal Singh expired but he came to know about his death through his wife on telephone. He denied that Sh. Satpal Singh had not expired and that is why his death certificate has not been filed on record. He stated that he cannot say whether he received letter dated 11.11.2008 6 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative or reply to the same and he is not aware of bank details of Sh. Satpal Singh. He stated that he cannot say if he informed the defendant about the death of Sh. Satpal Singh. He stated that he also cannot say whether rent has been attached by MCD and payment of rent was tendered by the defendant to MCD. He denied that EX.PW1/1 to EX.PW1/9 are forged and fabricated document and notice EX.PW1/12 were never served upon the defendant. He denied that no such documents were executed by Sh. Satpal Singh in his favour and that is why he never informed the defendant about any such transaction.
7 Plaintiff examined Sh. Rajesh Kumar, Reader to Sub Registrar Office of Sub RegistrarV, Mehrauli, New Delhi as PW2 (to prove on record the existing rate of rents in the locality in order to prove the mesne profits) who proved on record on Lease Deed executed between Hospital Equipment Manufacturing Company and Supreme Industries Ltd on 26.12.2007 with respect to premises No.26, Deepak Building, 13 Nehru Place, New Delhi which was registered on 04.01.2008 wherein it is mentioned that property leased out was leased out @ Rs.61,000/ per month and the area of the premises was 609 sq.ft. Same is EX.PW2/A. 8 Plaintiff also examined Sh. Kali Charan, Manager Administration of M/s Sky Way Construction Company as PW3 who deposed as per the case of the plaintiff and placed on record the following documents : Sl.No Documents Exhibits Inference 7 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative 1 The allotment letter PW3/A Vide this letter the dated 27.01.1973 & property was alloted to PW3/B Sh. Satpal Singh and possession was given to him on 11.07.1978
2. The possession letters PW3/C & PW3/D
3. Agreement executed PW3/E For interest fee security between plaintiff and the in respect of storage builder on 16.08.2006 place, towards installment.
4. The letter of substitution PW3/F It is dated 23.03.96 in favour of plaintiff
5. The documents PW3/G submitted by the plaintiff & seeking substitution in PW3/H his favour
6. The receipt of deposit of PW1/7 It is dated 16.08.06 security amount of Rs.
14,700/ 7 The receipt for payment PW1/8 It is dated 14.08.06 of ground rent and fire maintenance charge During his cross examination, he stated that he last met Sh. Satpal Singh in 1996 when he came alongwith plaintiff and where he signed the transfer form. He stated that no prior permission was taken from DDA for recording transfer. He denied all the suggestions given by counsel for the defendant. Thereafter plaintiff evidence was closed.
In defence evidence, defendant examined Sh. Sunil Kumar Sharma, Manager(HRLegal) of defendant society as DW1 8 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative who filed his affidavit in his examination in chief reiterating the contents of WS and relied upon the following documents:
Sl. Documents Exhibits Inference
No. no.
1 Noticecumattachment DW1/1 Vide this order the rent
order dated 01.03.1990 of was attached
MCD on account of non
payment of property tax
2. Letter dated 05.04.2001 of DW1/2
defendant to the banker
of Sh. Satpal Singh for
tendering the rent with
postal receipt
3. Payment receipts of DW1/3
property tax issued by (colly)
MCD to the defendant (6 in no.)
Letter dated 11.11.2008 of DW1/4
defendant to plaintiff and
4 Sh. Satpal Singh
Details of monthly rent DW1/5 The amounts were
tendered to Sh. Satpal deposited in account
Singh through various No.2870 PNB, N46,
cheques from August 2006 Connaught Circus, New
5 to November 2009 Delhi
Registration Certificate of DW1/6
defendant society
6 alongwith byelaws
Copy of power of attorney DW1/7
7 dated 29.08.2006
Copy of relevant page of DW1/8
dispatch register wrt letter
dated 04.08.2008 and
8 11.11.2008
9 of 22
CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative
Details of monthly rent DW1/9 The amounts were
tendered to Sh. Satpal deposited in account
Singh through various No.2870 PNB, N46,
cheques from April 2009 Connaught Circus, New
9 to March 2010 Delhi
Statement of account of DW1/10 Showing payment of
defendant's account in monthly rent @ Rs.
Indian Overseas Bank 5,911/ in the bank
(01.04.2009 to 25.03.2010) account of Sh. Satpal
10 Singh
Letter dated 04.08.2008 Already Admitted document issued to the plaintiff by EX.PW1/ 11 the defendant 11 Noticecum attachment DW1/11 order dt.26.10.2010 of 12 MCD Copy of covering letters DW1/12 issued monthly from (colly) November 2010 to October 2013 depositing the monthly rent with MCD under the 13 attachment order During his cross examination, he admitted that no lease deed was executed between Sh. Satpal Singh and defendant company after execution of initial lease deed dated 12.01.1982. He stated that no landlord in the said building has given to them any registered sale deed in support of their title and they only given builder buyer agreement. He stated that he cannot say that on receipt of letter of atornment they made any correspondence with original owner Sh. Satpal and the builder, or not, to inquire about transfer of property. He admitted that plaintiff had supplied all the 10 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative transfer documents to them. He stated that he cannot say if Satpal Singh had given anything in writing to deposit the rent in his PNB account. He admitted that they have not placed on record anything to show that they were ever instructed by Sh. Satpal Singh to do so. He stated that after receiving Replication mentioning about the death of Sh. Satpal Singh they did not contact the LR's of Satpal Singh about the transfer of property. He also admitted that LR's of Satpal Singh never contacted them and they did not inform the LR's of Satpal Singh about the vacation of property.
I have heard the arguments and perused the record. Plaintiff argued his case as per his pleadings and evidence and he relied upon the following judgments :
1. FGP Ltd. Vs. Saleh Hooseini Doctor & Anr. 2009(4) RCR wherein it is held that : In the present case also in case the defendant had been seeking various documents which were not necessary to decide about the ownership of the plaintiff.
2. Swaroop Devi & Anr Vs. Murti Bhagwan Satya Narainji Temple of Satya Narainji, Purani Tonk, Tonk 208(1)RCT 430 wherein it was held that : In case of landlord selling the premises attorment by tenant is automatic without any notice to him.
3. Hardeep Kaur Vs. Kailash & Anr. RFA No.648/2006 decided on 18.05.2012 by our own Hon'ble High Court of Delhi wherein while relying upon various judgments of Hon'ble Supreme Court on the legal position of Transfer of Properties under 11 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative GPA, Agreement to Sell on the basis of provision of Sec. 53A of Transfer of Property Act( prior to the amendment), Sec. 202 Indian Contract Act, like documents held that : A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/ right to the possession of the property qua the person who is in actual, physical possession thereof.
The agreement to sell 'of itself' may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable GPA create "an interest in the property" within the meaning of Section 202 of the Indian Contract Act.
That work "an interest" in property iwhcih forms the subject matter of the agency" in Section 202 of the Indian Contract Act 1872 are of wider amplitude than the words " an interest in or charge of such property" in Sectiion 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of Indian Contract Act.
The power of attorney has been conferred not for the 12 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The Power of attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject matter of the agency, namely, the suit property. If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
The agreement to sell, GPA, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property and the purchaser would though not be the classical owner of the property i.e. under registered Sale Deed but he would have better right/ entitlement of possession of the suit property than the seller.
4. Tagore Eduction Vs. Kamla Tandon,RCR 31/2009 decided on 10.07.2009, Delhi High Court wherein it was held that : That a person having the better title can always file a suit for possession such as on the basis of agreement to sell, GPA, Will etc and he need not always possess a registered 13 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative sale deed.
On the other hand, defendant relied upon the following judgments :
1. Sunil Kapoor Singh Vs. Himat Singh, 2010(115) DRJ, 229
2. Jayshree Oza Vs. Rakesh Mohan, 74 (1998) DLT 11
3. Ripu Daman Haryal Vs. Ms.Geeta Chopra 2011(5)ILR(DEL) 406
4. M.L. Aggarwal Vs. Oriental Bank of Commerce, 2006(128) DLT 407
5. Suraj Lamp & Industries Pvt. Ltd Vs. State of Haryana & Ors (2012) 1 SCC 656 wherein it was held that : Mere agreement to sell (unregistered) of immovable property does not create any right in the property except the right to enforce the said agreement. Defendant has no right to occupy that property as an agreement purchaser
6. Manju Nath Anandappa Vs Tammanasa & Ors AIR 2003 SC1391 (para relied upon 15). Perusal of the judgment shows that it is irrelevant to the context in which it is used.
7. K.V. Saha & Sons Pvt. Ltd Vs. Development Consultant Ltd wherein it was held that : From the principles laid down in the various decisions of the Supreme Court and the High Courts, it is evident that :(i) a document required to be registered, if unregistered, is not admissible in evidence under Section 49 of the Registration Act, (ii) such as unregistered document can however,be used as an evidence for collateral purpose as provided in Section 49 proviso of the Registration Act, (iii) a collateral transaction 14 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative must be independent of, or divisible from, the transaction of effect which the law required registration, (iv) a collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards, if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would no be using it as a collateral purpose.
8. Kurella Naga Druva Vudaya Bhasakara Rao Vs. Galla Jani Kamma @ Nacharamma, Civil Appeal No.4788 of 2008(para
14) wherein it was held that : Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
I have heard the argument and perused the record. My issueswise findings are as follows : 15 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative Issue No.1: Whether the plaintiff is the owner of the suit premises ?
It was the objection of the defendant that on the basis of GPA and agreement to sell the plaintiff cannot be said to be the owner of the suit property but in view of the judgment relied upon by the plaintiff it the settled law that for seeking the relief of possession the plaintiff is not required to prove his ownership on the basis of registered Sale Deed only and he can prove his better title to that of defendant on the basis of GPA( irrevocable GPA), agreement to Sell, Will which creates right in the property but the burden is upon the plaintiff to prove that these documents were executed in his favour by Sh. Satpal Singh.
The plaintiff in order to prove his ownership has proved on record the documents allegedly executed by the Sh. Satpal Singh in his favour i.e. Notorized GPA, Agreement to Sell( neither notorized nor registered), possession letter dated 23.03.1996. The plaintiff is claiming his right to possess the property on the basis of Section 53A of Transfer of Property Act as the documents were allegedly executed prior to the amendment of Transfer of Property Act in the year 2001. He is also claiming his interest in the suit property on the basis of irrevocable GPA. There is one attesting witness on the documents GPA and agreement to sell namely Malvinder Singh. It is also surprising that the address of Sh. Satpal Singh, Plaintiff/ second party and the witness is same i.e. J9/17D Rajouri Garden, New Delhi It is also pertinent to mention here that plaintiff filed some original documents on record for perusal of court i.e. original of EX.PW1/2 to EX.PW1/5 in addition to these documents, he also placed on record 16 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative two more documents i.e. GPA and Will allegedly executed by Sh. Satpal Singh in his favour on 10.07.1996 i.e. after about four months of execution of above mentioned documents. It is also pertinent to mention here that on those documents there is stamp of Embassy of Bangkok ( India) certifying/ attesting that these documents were signed by Sh. Satpal Singh. If we perused the signature of Sh. Satpal Singh on these documents they are almost identical.
There is no explanation tendered by the plaintiff as to why he remained silent for 11 years after purchase of the property. It is also pertinent to mention here that plaintiff has not examined even the attesting witness of the documents on which he is relying. In my opinion, no person after purchase of the property would wait for 11 years for claiming his right to recover the rent. It is also surprising that plaintiff obtained no due certificate from the builder on 16.08.2006 i.e. after more than 10 years of its purchase and the arrears were cleared towards ground rent and security deposit on 14.08.2006 and 16.08.2006 and the installments towards the price of the property was paid on 30.04.2011 and the agreement with the builder was also executed on 16.08.2006.
It is alleged by the plaintiff that Sh. Satpal Singh had gone with him to the builder's office on 23.03.2006 and had given his letter for substitution of name of plaintiff with respect to suit property i.e. letter dated 23.03.2006 i.e. EX.PW1/5 and the same things was deposed by PW2 i.e. an employee of the builder. Plaintiff has not placed on record any receipt of any payment from the builder of the period between 23.03.2006 and 14.08.2006. He has also not explained that if the documents were executed in his favour 17 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative on 23.03.1996 then what was the need of executing GPA and Will in his favour by Sh. Satpal Singh again on 10.07.1996 and if the matter was being pursued by the plaintiff with Sh. Satpal Singh for which the documents were sought to be executed again, then why it was not taken up with the tenant or the builder at that time. All the the above mentioned facts raises a serious doubt against the case of the plaintiff. Plaintiff in his own testimony informed the court that the Legal heir of Sh. Satpal Singh keep on visiting India and they had visited in between also but he did not think it proper to examine them as plaintiff witnesses.
But on the other hand, it is equally important to note that Sh. Satpal Singh never approached the defendant for demanding the rent or never approached the MCD authority for setting aside of the attachment order as if he had left with no interest in the suit property. It is also pertinent to mention here that none of his legal heir ever approached the defendant or MCD for the above mentioned purposes. Needless to say that it can be safely assumed that Satpal Singh and after his death his legal heir were aware about the facts that the suit property belongs to them but despite this there is no communication from their side for the last 20 years to the defendant or any other authority or there banker etc., which prima facie shows that they have most probably sold this property and except plaintiff no one else has come forward to lay his claim over the suit property. It is also an admitted fact that property stands mutated in plaintiff's favour by the builder on being satisfied about the transfer of the title from Satpal Singh to plaintiff and with regard to the suit property mutation with the builder in itself proves the title 18 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative in favour of plaintiff as the agreement with the builder are the only title documents with respect to the suit property. Even other wise the defendant being a tenant has no right to challange the said mutation. If we peruse the documents relied upon by the plaintiff i.e. GPA (Agreement to Sell) and compare the signature of Satpal Singh from his signature on his specimen card brought from his bank, certainly there are some minor variations which could be considered as natural variations also, when these documents were sent for expert analysis to CFSL, Rohini no concrete opinion could be given on this in the absence of more standard signatures. Prima facie the signatures shows major similarities and in the absence of any claim from the side of Satpal Singh or his legal heirs despite all weaknesses in the case of plaintiff as mentioned above, I am inclined to hold him as owner of the suit property on the basis of the principles of pre preponderance of probabilities. Hence, in view of all the above mentioned discussion I am of the opinion that plaintiff has proved himself to have the better title over the suit property. Hence this issue is decided in favour of plaintiff.
Issues no.2 to 5 are interconnected to each other, hence being decided together.
ISSUE NO.2: Whether the plaintiff is entitled to possession of the suit premises or not?
In view of decision of issue no.1 he is entitled for the possession of the suit premises. Possession of suit property has already been handed over by defendant in October 2013 before court.
ISSUE NO.3: Whether the plaintiff is entitled to recovery of rent, mesne profit. If so, at what rate and for which period 19 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative ?
In view of decision of issued no.1 this issue is also decided in favour of plaintiff and it is held that plaintiff is entitled for the recovery of the rent, and mesne profit.
The plaintiff is entitled for recovery of rent from the date 01.12.2007 onwards till 30.04.2009 i.e. termination of the tenancy (for 17 months) at the rate of Rs.5,911/P.M. The plaintiff is entitled for recovery of mesne profit from 01.05.2009 till the handing over of possession of suit property i.e. till 26.10.2013 (for 54 months).
It is an admitted position that defendant has deposited the rent till the handing over of possession of the suit property with MCD under the attachment order, therefore, the plaintiff shall not be entitled to recover anything towards the arrear of rent. As per the documents proved on record the defendant deposited rent of the property with MCD in following manner : Sr. No Period Rate of Rent 1 Till August 2011 Rs. 5,911/ 2 From September 2011 to October Rs. 6,502/ 2013 In order to prove the rate of mesne profit plaintiff proved on record one lease deed with respect to property no.26 Deepak Building, 13 Nehru Palace, New Delhi19 which is measuring 609 sq. feet which was let out on 01.01.2008 at the rate of Rs.61,000/pm for two years with an escalation clause of 20% increase but other details of the condition of the property were not furnished and in my 20 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative opinion this lease deed cannot be used for determining the rate of mesne profit in the present case merely on the basis that both the properties are located in the same area. In my opinion, the defendant in the absence of any evidence can be made liable to pay mesne profit by giving 15% increase on the last paid rent every year from 01.05.2009 till October 2013 as follows: Sr. No. Last Paid Rent Period Rate of Mesne Profit 1 Rs. 5,911/ 01.05.2009 to 30.04.2010 Rs. 6,800/x 12 2 Rs. 6,800/ 01.05.2010 to 30.04.2011 Rs. 7,820/x 12 3 Rs. 7,820/ 01.05.2011 to 30.04.2012 Rs. 9,000/x 12 4 Rs. 9,000/ 01.05.2012 to 30.04.2013 Rs. 10,350/x 12 5 Rs. 10,350/ 01.05.2013 to 30.10.2013 Rs. 11,900/x 6 Hence, the total mesne profit as per above mentioned table comes to Rs. 4,79,040/ from which an adjustment of payment of rent is to be made i.e. at the rate of Rs.5,911/ from 01.05.2009 to August 2011 (28 months) i.e. Rs. 1,65,508/ and at the rate of Rs. 6,502/ from 01.09.2011 to 30.10.2013 (26 months) i.e. Rs. 1,69,052/. Therefore, the total amount to be paid by the defendant to the plaintiff comes to Rs. 4,79,040 1,65,508 1,69,052 = Rs.144,480/.
ISSUE NO.4: Whether the plaintiff is entitled to interest on the amount as due and at what rate ? No interest is liable to be paid on damages by the defendant as already 15% increase has already been given while calculating damages.
ISSUE NO.5: Whether the suit as filed by the 21 of 22 CS No. 118/14 Harinder Pal Singh Vs. Krishak Bharti Cooperative plaintiff is not maintainable for want of notice U/Sec.111 of Multi Cooperative Societies Act? If so, its effect? Plaintiff has successfully proved that he serve a notice under section 111 of Multi Cooperative Societies Act and there is no denial of this fact as the relvant document have alredy been proved on record as stated above, hence this issue is also decided in favour of plaintiff RELIEF In view of decisions of above mentioned issues, suit of the plaintiff is decreed for the relief of possession and mesne profits. Possession of the property had already been given by the defendant to the court, therefore, the keys of the property be handed over to the plaintiff. The plaintiff shall be liable to recover Rs. 1,44,480/ towards the balance of mesne profit from the defendant. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in Open Court (NAVEEN ARORA)
on 2nd May, 2015 ADJ06: SOUTH: SAKET
NEW DELHI
22 of 22