Delhi District Court
Satish Kumar Yadav vs Purkh Raj on 24 December, 2025
IN THE COURT OF SH. VAIBHAV CHAURASIA, LD. ASCJ-CUM-
JSCC-CUM GUARDIAN JUDGE, SOUTH WEST DISTRICT,
DWARKA, NEW DELHI
Suit No. 484/19
CNR No. DLSW03-000794-2019
In the matter of :-
Shri Satish Kumar Yadav
s/o Late Shri Suraj Mal Yadav
r/o 193, Hastsal,
Uttam Nagar, New Delhi.
........Plaintiff
VERSUS
1. Shri Purkh Raj
s/o Shri Ram Chander
r/o Plot No.78/3
Upper Ground floor,
Om Vihar, Phase-V,
Uttam Nagar, New Delhi.
2. Shri Hemant Thakural
s/o Shri Dalu Ram
r/o Plot No.78/3,
Upper Ground floor,
Om Vihar, Phase-V,
Uttam Nagar, New Delhi.
.....Defendants
Date of institution : 18.04.2019
Reserved for Judgment : 18.11.2025
Date of decision : 24.12.2025
Suit for Possession, Recovery of Rs.2,10,000/- Towards The Arrears of
Rent and Electricity Dues and Permanent Injunction
CS No. 484/19 Page no. 1 of 37
JUDGMENT
1. This is a suit for Possession, Permanent Injunction and recovery of arrears of rent of Rs. 2,10,000/- filed by plaintiff against defendant no. 1 and defendant no.2 thereby directing the defendants to handover the peaceful and vacation possession of the suit property bearing Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 (hereinafter referred as suit property), restraining them from subletting, transferring or creating any third party interest in the suit property and for directions to the defendants to pay the arrears of rent of Rs. 2,10,000/- and Rs. 30,000/- towards the electricity dues.
2. Plaintiffs' Case The case of plaintiff is that the plaintiff is the owner of the above mentioned suit property bearing Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 and on 19.07.2014, the defendant no.1 entered into a rent agreement with the plaintiff in respect of suit property for a monthly rent of Rs.5,000/- exclusive of electricity charges and the said rent agreement was subsequently renewed by the parties in June 2015 and the rent was enhanced to Rs.6,000/- p.m. and the rent agreement was for a period of 11 months. It is stated that since September 2016, the defendant no.1 has not paid the rent of the suit property and has also not paid the electricity charges. It is further stated that despite various requests made by the plaintiff, the defendant no.1 did not make the payment of arrears of rent as well as of CS No. 484/19 Page no. 2 of 37 electricity charges and arrears of rent for 30 months is outstanding against the defendant no.1. It is averred that an amount of Rs.2,10,000/- as arrears of rent and Rs.30,000/- towards the electricity charges are due against the defendants who have failed to make the full and final payment. It is stated that the plaintiff does not wish to keep the defendants as his tenants and the tenancy with respect to the suit property was terminated through a legal notice dated 05.03.2019 which was sent to the defendant no.1 thereby requesting the defendants to vacate and hand over the peaceful possession of the suit property to the plaintiff and to pay the outstanding arrears of rent and electricity charges, but all in vain. Hence the present suit.
3. Defendants' Case
(i) Written statements have been filed on behalf of defendant no. 1 and 2. It is stated that the suit of the plaintiff has become infructuous as the defendant no.1 was never the tenant of plaintiff and he has already evicted the rented premises on 20.06.2017 and since then he is not residing at the Upper ground floor. It is stated that the suit of plaintiff is not maintainable in the eyes of law as the plaintiff has filed the present suit without any cause of action. It is stated that the plaintiff has not approached to this court with clean hands and have concealed the true and material facts from this court. It is stated that the defendant no.2 is a builder/property dealer and the suit property belongs to defendant no.2 Sh. Hemant Thakural. It is stated that defendant no.2 suffered great loss in his business and plaintiff being good friend of defendant no.2 helped him by booking a floor at Hastsal Vihar and paid Rs.5,70,000/- as booking amount for the floor which was later on converted into loan. It is stated that in June 2014, plaintiff became suspicious CS No. 484/19 Page no. 3 of 37 and put pressure on defendant no.2 and asked him to give the suit property i.e. Flat No.78/3, Upper ground floor as security of his money, hence defendant executed GPA/documents of the said floor as security for Rs.5,70,000/- where as the cost of same is more than Rs.23 lakhs. It is stated that defendant no.1 never remained the tenant of the plaintiff and defendant no.2 has also paid the interest on booking-cum-loan amount. It is stated that there was never any direct dealing between the plaintiff and defendant no.1 as owner and tenant. The defendant no.1 only signed the rent agreement on the request of defendant no.2. It is stated that the plaintiff is not entitled for any rent even from defendant no.2 because the plaintiff used to charge interest on the booking-cum-loan amount of Rs.5,70,000/- from the defendant no.2. It is stated that defendant no.2 only took the booking-cum- loan amount for the floor only for Rs.5,70,000/- from the plaintiff and defendant no.2 has already paid more than Rs.6,50,000/- to the plaintiff alongwith the interest and thereafter, settlement to pay Rs.1,80,000/- was made between the plaintiff and defendant no.2 in the presence of defendant no.1 and Sh. Pawan, the partner of defendant no.2 and the said amount has also been paid by the defendant no.2. Hence, the suit of the plaintiff is liable to be dismissed.
4. Replication has been filed by the plaintiff to the written statement of the defendant no. 1 and 2 wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
5. Issues After completion of pleadings, vide order dated 04.01.2023, the CS No. 484/19 Page no. 4 of 37 following issues were framed :
1 Whether the plaintiff has not come to Court with clean hands? OPD-1 & 2.
2 Whether the plaintiff is entitled for decree of possession as prayed for? OPP 3 Whether the plaintiff is entitled for decree of arrears of rent as prayed for? OPP 4 Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP 5 Relief.
6. Plaintiff's Evidence
(i) Plaintiff Sh. Satish Kumar Yadav examined himself as PW-1, who tendered his affidavit in evidence Ex. PW1/A has stated and deposed on lines of plaint in his affidavit of examination in chief. He has relied upon the documents the following documents:
a. Copy of rent agreement Ex. PW-1/1 b. Legal notice dated 05.03.2019 Ex. PW-1/2 c. Copies of postal receipt and tracking report Ex. PW-1/3 d. Site plan Ex. PW-1/4 e. Copy of handwritten complaint to SHO PS Uttam Nagar Ex. PW-1/6. f. Copy of GPA, Agreement to Sell & purchase, affidavit, will, receipt & possession Letter all duly notarized dated 22.05.2014 Ex. PW-1/7. g. Copy of Agreement to sell & purchase, affidavit, will, receipt & possession letter all duly notarized dated 12.05.2012 Ex. PW-1/8. h. Copy of agreement to sell, affidavit, will, receipt & possession letter & affidavit/NOC ally duly notarized dated 17.12.2008 Ex. PW-1/9. i. Copy of death certificate of Anita Gaur issued by MCD Ex. PW-1/10.
CS No. 484/19 Page no. 5 of 37 j. Copy of registered GPA dated 06.01.2007 Ex. PW-1/11 k. Copy of agreement to sell, affidavit, Will, receipt & possession letter all duly notarized dated 17.10.2006 Ex. PW-1/12 l. Copy of agreement to sell, affidavit, Will, receipt & possession letter all duly notarized dated 23.12.2005 Ex. PW-1/13.
m. Copy of GPA, agreement to sell, affidavit, will, receipt & possession letter all duly notarized dated 03.12.2004 Ex. PW-1/14 n. Copy of Khatoni Ex. PW-1/16 o. Copy of voter card of Hitesh Makkar Ex. PW-1/17 During his cross examination by Ld counsel for defendant no. 2 he deposed that he was 9th class pass. Sh. Hemant Thukral was residing at his property as a tresspasser and not as his tenant. He do not remember since when Hemant was residing at his property. His tenant Pukhraj resided in the suit property for about 6-7 years from period of 2014 and he do not remember when defendant vacated. He admitted that he had not mentioned in his pleadings that defendant no. 2 was residing at his suit property.
Earlier the electricity meter was installed in the name of defendant no.2 Hemant Thukral, however, he was not aware about the present status as he had last time visited the property in the year 2019.
He denied that electricity meter was installed in the name of defendant no.2 Hemant Thukral. He admitted that no electricity meter ever installed in his name in the suit property. He further admitted that water meter was also not installed ever in his name in the suit property. When he filed the present case, after issuance of summons to defendant no.1 vacated the suit property. When he visited the property in the year 2019, he found the CS No. 484/19 Page no. 6 of 37 family of defendant no.2 residing in the suit property. He admitted that there was no averment in his pleadings regarding defendant no.2 that he was residing illegally in the suit property. He never sent any legal demand notice to Defendant no.2/Hemant for vacating the suit property. The document Ex. PW-1/7 was notarized. He voluntarily deposed that at that point of time no registration of document happened in that area. He does not remember who all are witnesses at the time of execution of document by defendant no.2 in his favour as mentioned in the property documents. He admitted that he was not having the previous chain in original pertaining to Hitesh and Hemant Thukral. He voluntarily deposed that Hemant Thukral gave him photocopy by giving his thumb impression and signatures on it. He was not aware as to the exact value of suit property as on date but he purchased the same in the year 2014 for a sum of Rs. 9 lacs. The suit property is 55 sq. yards and is a upper ground floor. He had not filed any case against defendant no.2 Hemant Thukral for eviction or possession till date. He denied that he was not aware with the facts of the case. He denied that he led his evidence beyond pleading. He denied that defendant no.2 is the rightful owner of the suit property and beside having the knowledge that he was residing in the suit property since 2019 he had not filed any suit for eviction or possession against him. He denied that he was deposing falsely.
During cross examination by Ld. Counsel for defendant no.1 he admitted that Pukhraj was his tenant and not defendant no. 2 Hemant. He denied that he was deposing falsely.
7. Plaintiff's evidence was closed on 31.07.2025 and the matter was adjourned for defendant's evidence.
CS No. 484/19 Page no. 7 of 37 8. Defendant's Evidence
On 22.08.2025, Defendant no.2 gave his statement in the court and his evidence was closed. Vide order dated 15.09.2025, right of the defendant no. 1 to lead evidence was closed and matter was fixed for final arguments.
9. Final arguments have been heard and judicial record perused.
10. It is submitted by Ld counsel for plaintiff that he was the owner of the suit property which he had purchased from defendant no.2 and GPA, agreement to sell and purchase, affidavit, will, receipt, possession letter all dated 22.05.2024 were executed by defendant no.2 and handed over the peaceful, vacant and physical possession of the suit property. After two months, plaintiff let out the suit property to defendant no.1 on the basis of rent agreement dated 19.07.2014 at monthly rent of Rs. 5,000/- exclusive of electricity charges and agreement was subsequently renewed on June, 2015 and rent was enhanced to Rs. 6,000/- per month. Since, September, 2016, defendant no.1 stopped paying electricity charges as well as rent despite many requests and Rs. 2,10,000/- was due as arrears of rent and Rs. 30,000/-
towards electricity charges. Hence, plaintiff terminated the tenancy and demanded the due amount and sent legal notice dated 05.03.2019 which was served on the suit property itself upon defendant no.1.
11. It is further argued that defendant no.1 admitted in his written submissions that he had executed rent agreement with plaintiff and defendant no.2 signed as witness and that the said rent agreement was executed for satisfaction of plaintiff and he had never paid any rent to plaintiff. Hence, the relationship between plaintiff and defendant no.1 was proved by way of documentary evidence. It is further argued that plaintiff had received the rent CS No. 484/19 Page no. 8 of 37 directly from defendant no.2. The defendant no.1 never disputed the rent agreement.
12. It is further argued that the legal notice was served upon the address of the suit property, hence, the contention of the defendant no.1 that he had vacated the suit property on 19.06.2017 and vacated the suit property on 20.06.2017 is false.
13. It is further argued that defendant no.2 has been impleaded as necessary party. The defendant no.2 in his written statement has admitted the execution of GPA in favour of plaintiff, however, it was towards repayment of the loan of Rs. 5,70,000/- received from plaintiff. Defendant no.2 also admitted execution of rent agreement, however, for security purpose only. The story concocted by defendant no.2 qua the loan was false. It is further argued that the defendant no.1 in conspiracy with defendant no.2 had handed over the possession of the suit property to defendant no.2 and defendant no.2 is illegal and unauthorized occupant, hence, defendant no.1 and defendant no.2 were jointly and severally liable to clear the arrears of rent as well as damages. Plaintiff had also filed complaint to the SHO PS Uttam Nagar, however, no action was taken. It is further argued that no documentary evidence was relied upon by the plaintiff. They both are trying to grab the suit property which absolutely belong to plaintiff. The admission by defendant no.1 and defendant no.2 qua execution of GPA, rent agreement, receipt of legal demand notice, the plaintiff has successfully proved its case. Hence, it is prayed to decree the suit as prayed for.
14. It is argued on behalf of the Ld. Counsel for defendant no.1 that present suit was filed against defendant no.1 in the year 19.04.2019, however, CS No. 484/19 Page no. 9 of 37 defendant no.2 with whom the plaintiff was dealing was only impleaded as party on 16.02.2022. It is further argued that Defendant no.1 and Defendant no.2 are best friends. Defendant no.2 was in need of money and requested defendant no.1 to give friendly loan of Rs. 2,00,000/- to defendant no.2 in lieu of which defendant no.2 allowed him to reside on the upper ground floor till 19.06.2017. Hence, upper ground floor was not on monthly rent to defendant no.1. Defendant no.1 had left the upper ground floor on 20.06.2017 and shifted to 2nd floor, but no rent etc. were paid by defendant no.1 or by defendant no.2.
15. It is further argued that there was no dealing between plaintiff and defendant no1. as owner and tenant. The plaintiff was directly dealing with defendant no.2 qua payment of rent, defendant no.1 only paid friendly loan of Rs. 2 lacs to defendant no.2 and was tenant of defendant no.2 and residing on upper ground floor till 19.06.2017 and thereafter on 2 nd floor but never paid any rent to plaintiff. Rent and electricity bills were paid by defendant no.2 only.
16. It is further argued that plaintiff and defendant no.2 were also friends. Defendant no.2 was a builder from 2008-2013. Defendant no.2 suffered loss in business, hence, took Rs. 5,70,000/- as friendly loan from plaintiff without executing any papers in his favour. Afterwards, in June, 2014 when plaintiff became suspicious and required proof of his loan amount. Defendant no.2 gave to the plaintiff the upper ground floor to use temporarily till the time he returns the friendly loan amount, hence, defendant no.2 requested defendant no.1 to sign the rent agreement prepared by the plaintiff only for the sake of security and satisfaction of the plaintiff otherwise, defendant no.1 never had any direct dealing with the plaintiff.
CS No. 484/19 Page no. 10 of 37
17. It is further argued that defendant no.1 resided in upper ground floor till 19.06.2017 and vacated on 20.06.2017 and gave vacant possession to Sh. Hemant Thukral/ defendant no.2 and as per request of defendant no.2 shifted to 2nd floor and defendant no.2 started residing at upper ground floor.
18. It is further argued that plaintiff served the legal notice on 05.03.2019 and the suit was filed on 16.04.2019 whereas, defendant no.1 vacated the suit property on 20.06.2017 itself, hence the suit is infructous an initio and not maintainable against the defendant no.1.
19. It is further argued that suit is maintainable against defendant no.2, who had direct dealing with plaintiff but plaintiff did not make him party/ defendant and substituted Hemant Thukral as defendant only on 16.02.2022. It is further argued that no decree of eviction and possession can be prayed/claimed against defendant no.1 when he already evicted the suit property on 20.06.2017 and gave the vacant possession to defendant no.2. No decree of arrears can be claimed from defendant no.1, if there is any due, the same can be recovered/ claimed from defendant no.2 as he was residing in upper ground floor since 20.06.2017.
20. It is further argued that decree of permanent injunction regarding not subletting, transferring or creating 3rd party interest in the suit property does not arise when the defendant no.1 had already vacated the suit premises on 20.06.2017 itself about 2 years before filing the present suit.
21. It is further argued that present suit is based on completely false, fabricated and wrong facts which are concocted and plaintiff has levied CS No. 484/19 Page no. 11 of 37 wrong and false allegations on the defendant no.1 whereas he has no direct dealing with plaintiff and vacated the suit property before serving the legal notice and filing of present suit.
22. It is further argued that as per last para on page no.2 of cross- examination dated 31.07.2025 the plaintiff has stated falsely. Therefore, it is prayed that present suit be dismissed with heavy cost, being false and fabricated suit against defendant no.1 which was infructous ab initio.
23. I have gone through the record and considered the submissions of Ld. Counsel for plaintiff.
24. ISSUE WISE FINDINGS ARE AS FOLLOWS:-
Issue no. 2: Whether the plaintiff is entitled for decree of possession as prayed for? OPP 24.1 It has been argued by Ld. Counsel for plaintiff that the suit property of plot no. 78/3, Upper Ground Floor, Om Vihar, Phase-V, Uttam Nagar, Delhi-59 is owned by him. Defendant entered into rent agreement with plaintiff on 19.07.2024 with monthly rent of Rs. 5,000/- and subsequently rent agreement was renewed in June, 2015 and enhanced the rent to Rs.
6,000/- per month. That since September, 2016, defendant no.1 has not paid rent, nor the electricity bill which amount to Rs. 30,000/-. Since, defendant no.1 did not pay the rent, hence, arrears of 30 months amounting to Rs. 2,10,000/- and electricity charges of Rs. 30,000/- were due.
24.2 Per Contra, it is the case of Defendant no.1 that he was never the tenant of plaintiff, rather the tenant of the owner, who according to him is defendant no. 2. The plaintiff has advanced loan to defendant no.2 and CS No. 484/19 Page no. 12 of 37 pursuant thereof, defendant no.2 had executed certain set of documents in favour of plaintiff and defendant no.1 on behest/request of defendant no.2, had signed rent agreement (Ex. PW-1/1(OSR)) only for the sake of the satisfaction of plaintiff. That he has already vacated and have handed over the suit property to defendant no. 2 on 20.06.2017, therefore there is no occasion for plaintiff to get the suit premises vacated from him. That no rent was ever paid to defendant no. 2, lest the plaintiff, who, as per defendant no. 1 was never the owner, nor the landlord, nor have handed over or have received any rent from defendant no. 1, nor defendant no. 1 have ever tendered the rent. It is also submitted that defendant no. 1 have left the building itself on 01.10.2019.
24.3 Defendant no. 2 have stated that the defendant no.1 was tenant of defendant no. 2, that the suit property was never on monthly rent, that the booking cum loan amount was paid by plaintiff to defendant no. 2 through Sh. Pawan i.e partner of defendant no. 2, that in June 2014, the plaintiff became suspicious and put pressure upon defendant no. 2 to give him flat as security and pursuant thereof GPA was executed as towards security of Rs. 5,70,000/- which was advance by plaintiff to defendant no. 2, whereas the cost of the suit property is more than Rs. 23 lacs.
25. Analysis and conclusion:
Plaintiff has claimed that he is the owner of the tenanted premises by virtue of Ex. PW-1/7(OSR) which is GPA, agreement to sell, purchase, affidavit, Will, receipt and possession letter. These set of documents were assumed to be document of better title in view of judgment of Ramesh Chand vs Suresh Chand in RFA No. 358/2000 decided by Hon'ble High Court of Delhi on 09.04.2012.
CS No. 484/19 Page no. 13 of 37 Against the aforesaid judgment an appeal was preferred before Hon'ble Supreme Court of India which was decided on 01.09.2025, vide Civil Appeal No. 6377 of 2012 in Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879, wherein such ways of interpretation and conclusion was not preferred and different set of document was interpreted separately with legal consequence thereof and same shall be followed in the present case as well.
26. AGREEMENT TO SELL, 26.1 Relying upon Section 5 and Section 54 of Transfer of Property Act 1882, Hon'ble Supreme Court has held that sale deed must be in writing, attested and registered. Unless the sale deed is in writing, attested and registered, the transaction cannot be construed as sale, or in other words, the property will not be transferred.
26.2 Distinction was drawn between sale deed and agreement to sale or sale holding that agreement to sell is only document which creates right to obtain another document. It neither confers any proprietary rights in favour of the transferee, nor by itself create any interest or charge in the property. It gives only right to file suit for specific performance. As has been observed in Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879, it is reproduced here in i.e. "15. There is a difference between a sale deed and an agreement for sale, or a contract for sale. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. While a sale is a transfer of ownership; a contract for sale is merely a document creating a right to obtain another document, namely a registered sale deed to complete the transaction of sale of an immovable property. Section 54 in its definition of sale does not include an agreement CS No. 484/19 Page no. 14 of 37 of sale and neither confers any proprietary rights in favour of the transferee nor by itself create any interest or charge in the property. If after entering into a contract for sale of property, the seller without any reasonable excuse avoids executing a sale deed, the buyer can proceed to file a suit for specific performance of the contract."
26.3 It was also observed that Agreement to sell neither create any interest nor charge upon suit property". As has been observed in Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879, which is reproduced herein i.e. "16. The scope of an agreement for sale has been highlighted by this court in the case of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and Another, (2012) 1 SCC 656 , wherein this Court observed that:-
"16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed:
"32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744]). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held:
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the CS No. 484/19 Page no. 15 of 37 proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
26.4 The fiduciary character and personal obligation as provided for in Section 3 of Specific Relief Act, 1963, Section 91 of Indian Trust Act and Section 40 of Transfer of Property Act is outlined respectively. It was further emphasized that protection provided under Section 53-A of Transfer of Property Act to proposed transferee in shield only against transferor. Such right can only be pressed against proposed vendor and not against third party. The impact of non registration has also been emphasized qua Section 54, 55 of Transfer of Property Act 1882 vis a vis, Section 54 A of Transfer of Property Act 1882.
26.5. It was concluded by Hon'ble Supreme Court in para 17 of Ramesh Chand (Supra) as ''17. In the instant matter, undisputedly plaintiff claims that there is only an agreement to sell, and there is no sale deed executed in his CS No. 484/19 Page no. 16 of 37 favour by the father. As per the settled position of law, this document does not confer a valid title on the plaintiff as it is not a deed of conveyance as per Section 54 of the TP Act. At best, it only enables the plaintiff to seek for specific performance for the execution of a sale deed and does not create an interest or charge on the suit property."
27. GENERAL POWER OF ATTORNEY 27.1 As has been observed in Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879, emphasizing upon the definition of GPA, which is binding upon grantor and being not a conveyance deed, which as observed is being reproduced herein i.e. "18. A power of attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. A General Power of Attorney does not ipso facto constitute an instrument of transfer of an immovable property even where some clauses are introduced in it, holding it to be irrevocable or authorizing the attorney holder to effect sale of the immovable property on behalf of the grantor. It would not ipso facto change the character of the document transforming it into a conveyance deed."
27.2 It was also explained in the paragraph 18 of the aforesaid Judgment Ramesh Chand (Supra) how the GPA was different from Sale and which can include authority to sell, which as observed is being reproduced herein i.e.
19. A power of attorney is not a sale. A sale involves transfer of all the rights in the property in favour of the transferee but a power of attorney simply authorises the grantee to do certain acts with respect to the property including if the grantor permits to do certain acts with respect to the property including an authority to sell the property. (Ref: Dr Poonam Pradhan Saxena, Property Law, Third Edition 2017 (Lexis Nexis), p. 301) CS No. 484/19 Page no. 17 of 37 27.3 The law on Power of Attorney has been well outlined in case of State of Rajasthan and Others v. Basant Nahata,(2005) 12 SCC 17. It was held that:
"13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
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52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
27.4 It was further held in case of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and Another(supra), the position of a power of attorney with respect to conferment of title was explained and it was held:-
"20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
CS No. 484/19 Page no. 18 of 37 27.5. Having discussed the position of law, it was concluded in para 22 of Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879 that "XXXX ........ The said GPA merely authorises the grantee to manage the affairs of the suit property, which includes the power to let out the property on rent, and create a mortgage of the same, etc. However, it is silent on the aspect of conveyance. Be that as it may. The recitals of the power of attorney would indicate the intent of the grantor is to limit the powers of the grantee to only manage the suit property, and not to create any interest in his favour, which is in consonance with the settled position of law as discussed above that a power of attorney is an agency by which the agent derives the authority or the right to enter into transactions on."
27.6 However for the adjudication of the present case,it is essential to discuss Section 202 of Indian Contract Act, 1872, which runs as:-
Section 202 Termination of agency, where agent has an interest in subject-matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.
27.7 In the well-known case of Smart v Sanders, (1848) 5 CB 895 WILDE CJ stated the rule thus:
"Where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donne of the authority, such an authority is irrevocable. This is what is usually meant by an authority coupled with an interest, and which is commonly said to be irrevocable."
CS No. 484/19 Page no. 19 of 37 27.8 The simplest case of such agency occurs when the principal owes something to the agent and authorises him to sell the principal's goods and pay himself out of the sale proceeds.(Ref: Pestonji v. Matchett, (1870) 7 BHC App Cas 10) 27.9 But an authority to pay debts which the principal owes to some third person does not make the agency irrevocable (Ref:Clerk v. Laurie,(1857) 2 H & N 199) 27.10 In a case before the Madras High Court, a person was entitled to be maintained out of the income of a property, known as tarwad property. He was subsequently given the authority to collect rents of the property. The authority was held to be not revocable (Ref: Paliyankotan Kuruvan v. Kundan Appa, AIR 1932 Mad 70) 27.11 In another case before the same High Court, in consideration of advances made by the plaintiff, all the properties of a devason were giver over to him on lease for 18 years with authority to receive rents. That was held to be an authority coupled with interest and, therefore, irrevocable. (Ref:
Chathu Kutti v. Kundan Appa AIR 1932 Mad 70) 27.12 Thus the essence of the matter is that "[t]he agent has, as it were, bought his authority in order to ensure the payment of a debt due from the principal"( Ref: Powell, The Law of Agency, 392 (2 nd Edition, 1961) as quoted in Contract and Specific Relief Act by Avatar Singh, Eastern Book Company, Tenth Edition, Reprinted, 2010 at page no. 824) 27.13 Where an agent was authorised to do all acts in connection CS No. 484/19 Page no. 20 of 37 with the performance of a contract and to receive running payments, it was held to be an equitable assignment of the contract for a consideration making the arrangement irreversible. (Ref: Joseph George v. Cochin Sanitary Wares, (1991) 2 Ker LT 447) 27.14 An agency of this kind is not even terminated by the principal's death.(Ref: Maharani Shantadevi v. Savjibhai H. Patel, (1999) 2 Guj CD 3190(Guj)).(See Contract and Specific Relief Act by Avatar Singh, Eastern Book Company, Tenth Edition, Reprinted, 2010 at page no. 824) 27.15 A principal owed a sum of money to his agent and gave him an accepted bill of exchange with an authority to fill in the drawer's name. The principal died before the agent could complete the bill. His authority to fill in the drawer's name was held to be not terminated.(Ref: Carter v. White, (1883) 2 Ch. D 666).
27.16 There should be Interest Existing at the Time of Creation of Agency and Protection of Existing Interest must be Primary Purpose of Agency as has been observed under commentary of Section 202 in Contract and Specific Relief Act by Avatar Singh, Eastern Book Company, Tenth Edition, Reprinted, 2010 at page no. 825 and 826 and the relevant part is being reproduced herein.
"But the doctrine of agency coupled with interest is not without qualification. In the first place, the interest of the agent must exist at the time of the creation of the agency. (Ref: Kondayya v. Narasimhalu, 20 Mad 97(1893)......."
" xxxxxxxx Secondly, "the test to be applied for finding out whether a power of attorney given to an agent is irrevocable or not is to see CS No. 484/19 Page no. 21 of 37 whether the primary object in giving the power was for the purpose of protecting or securing any interest of the agent. If the primary object was to recover on behalf of the principal the fruits of his decree and, in doing so, the agent's rights were also incidentally protected, then the power is revocable" (Ref:Palani Vannan v. Krishnaswami, (1946) ILR Mad 191) Similarly, the prospect of earning a commission is not an interest for this purpose.(Ref: Laxmi Chand v.
Chotooram,(1900) ILR 24 Bom 403) Again, a "mere arrangement that the plaintiff's salary should be paid out of the rents could not be regarded as giving to the agent an interest in the property, the subject- matter of the agency, within the meaning of Section 202.(Ref:
Vishnucharya v. Ramchandra, ILR (1881) 5 Bom 253) A mere mention that agency is irrevocable does not make it so.(Ref: Barses JA D'souza v. Municipal Corpn of Greater Bombay, (2003) 6 Bom CR 846) The concept of irrevocable power of attorney is not known to jurisprudence unless the power is coupled with interest."
27.17 This Court is also compelled to quote from Mulla on The Indian Contract Act by Sir Dinshaw Fardunji Mulla, 13th Edition 2011, Lexis Nexis, Page 322 and in particular commentary under Section 202 of the Indian Contract Act, 1872 as follows:-
"If authority coupled with interest. In these cases the current phrase is that the agent's authority is "coupled with an interest". The principle is thus stated: "that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the done of the authority, such an authority is irrevocable."(Ref: Smart v Sanders, (1848) 5 CB 895) In fact, the circumstances must be such that revocation of the authority would be a breach of faith against the agent. Illustration (b) is a variation of the facts of an English case i.e. Smart v Sanders, (1848) 5 CB 895 where, however, the authority was held to be revocable as it was not given as security for the advances. In the same English case the advances were made after the authority had been given, and so the agent's interest arose afterwards and was incidental. In the illustration the advances are made first and then the authority is given for the purpose of being a security."
"The expression " has an interest in the property" would include cases where authority, is given, by deed or otherwise, giving an interest in the property such as a security or a lien or a special right CS No. 484/19 Page no. 22 of 37 in respect of advances upon the subject matte-matter of agency. This interest may include continuation of the subsistence of such security or interest thereon. Mere right to earn commission is not such as interest.(Ref:Smart v Sanders, (1848) 5 CB 895 ) Irrevocable power of attorney in favour of a purchaser for valuable consideration would be such an interest."
28. WILLS 28.1 The Judgment of Ramesh Chand vs Suresh Chand, 2025 SCC Online SC 1879 have quoted the judgment of H. Ventacharya vs B.N. Thimmajamma AIR 1959 SC 443 regarding the proof of Will which is being reproduced here."
25. This Court on the issue of the proof of Wills in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and Others(supra) has succinctly defined the contours as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 CS No. 484/19 Page no. 23 of 37 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
28.2 It is essential to note that nothing in form of such proof has been led by the parties and hence no such discussion is required in adjudicating present matter in view of H. Venkatachala Iyengar(supra) judgment.
29. Relying upon above judgments and law as expounded, defendant no. 1 has admitted in his written statement to have signed the two rent agreement Ex. PW1/1(OSR) and were admitted that it was prepared by plaintiff and only upon the request of his previous owner(defendant no.2), the same was executed and signed as it was for the satisfaction of the plaintiff. His contention that it was towards the security qua amount taken by defendant no.2 and there was no dealing of defendant no.1 with plaintiff.
30. Way back in 1934, it was held that a person will be bound by written document he has signed, whether or not he has read or understood it in 'L CS No. 484/19 Page no. 24 of 37 Estrange v. F Graucob Ltd [1934] 2 KB 394'. The plea of non est factum (i.e. this is not my deed) has to be proved by stepping into witness box and proving the same on preponderance of probability, though in law there is no requirement that landlord has to take consent of his tenant with respect to any such assignment to new landlord/having the trappings of owner, but signing of rent agreement, that too even on the behest of defendant no.2 when defendant no. 1 considered D-2 to be owner has further fortified the case of plaintiff. Since, defendant no.1 has himself admitted the execution of rent agreement with plaintiff and that too twice, and admitting the execution and signature, to prove his contention otherwise (that he was not aware of the contents and that it was not his deed), neither he has stepped into witness box, nor have proved otherwise, therefore, this court has no other inference to draw than to hold that by virtue of execution of two rent agreement dated 19.07.2024 and 01.07.2015 i.e. Ex. PW-1/1(OSR) and admission as made by defendant no.1 in para 1 and 4 of preliminary objections and para 2 on reply on merits of his written statement, no any other conclusion can be arrived at but that D-1 is the tenant of the plaintiff.
31. The only defence that have been taken on part of defendant no.1 is that Hemant Thukral(D-2) is owner and D-2 only had bundle of rights to allow or let out to defendant no.1. However, the documents speaks otherwise (Ex. PW-1/7(OSR) and Ex. PW-1/1(OSR), defendant no.2 has admitted in his written statement (para 1 preliminary objection) that the plaintiff has paid the booking-cum loan amount to the tune of Rs. 5,70,000/ to defendant no.2, through Sh. Pawan, i.e. partner of defendant no.2.
32. It is clearly admitted by defendant no. 2 in his written statement (para 2 of preliminary objection) that in June, 2014, defendant no.2 executed CS No. 484/19 Page no. 25 of 37 GPA i.e. Ex. PW-1/7 (OSR)/papers of flat no. 73/3, Upper Ground floor, New Delhi as a security for Rs. 5,70,000/-, whereas the cost of same is more than Rs. 23 lakh. It is pertinent to note that Ld. Counsel for defendant no.2 had not even given suggestion in the cross examination of plaintiff that Ex. PW-1/7(OSR) was not executed by defendant no.2 in favour of plaintiff. Thereupon as per Section 58 of Indian Evidence Act, 1872, the facts admitted by parties in a legal case don't need formal proof, streamlining proceedings, but the court retains discretion to demand independent evidence for these admitted facts, especially if circumstances warrants it.
33. One of the other set of argument have been advanced regarding adequacy of consideration wherein defendant no.2 claims the suit property to be of more than Rs. 23 lacs, while documents(Ex. PW1/7(OSR)) reveals it to be Rs. 9 lacs and cross-examination of plaintiff reveals as Rs. 9 lacs was the purchase price and it is well admitted by defendant no.2 that set of documents were executed (Ex. PW1/7(OSR)) pursuant to security/booking cum loan amount to the the tune of Rs. 5,70,000/- (para 2 of preliminary objection of defendant no. 2 of his written statement). Be that as it may, Section 25 Explanation 2 of the Contract Act provides for "An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.", therefore have bearing upon consent. Nothing has been led on behalf of defendant no. 2 to declare such documents(Ex. PW1/7(OSR) as null and void, if there was issue with respect to consent. There is no effort on part of defendant no.2 to step into witness box to prove otherwise, therefore, in view of judgment of Ramesh Chand vs CS No. 484/19 Page no. 26 of 37 Suresh Chand, 2025 SCC Online SC 1879, and law as discussed earlier with respect to GPA, the execution of GPA is coupled with interest wherein plaintiff has claimed to have paid Rs. 9 lakh and D-2 has claimed to the tune of Rs. 5,70,000/- qua Booking-cum-loan amount, which though D-2 has claimed to have paid but same has not been proved. Therefore, GPA is coupled with interest and same is irrevocable.
34. Even otherwise, this court is bound to follow the judgment of Division Bench of Hon'ble High Court of Delhi in Nageshwar Pandey vs Karan Madaan 2016 SCC Online Delhi 816. The facts of the case of Nageshwar Pandey (supra) and qua the contentions of the plaintiff is well illustrated in Para 2 of the Judgment which is being reproduced:-
"Three plaintiffs filed the suit; first two are businessmen and the third plaintiff is the mother of the second plaintiff. They alleged that the defendant was sole and exclusive owner of built-up property, No. EC-5, Inderpuri, New Delhi - 110 012 admeasuring 500 sq. yds. situated in village Naraina, Delhi ("the suit property"). Through a registered sale deed dated 01.11.2011, the defendant transferred it to the plaintiffs for a total consideration of Rs. 1,65,00,000/-. The plaintiffs described their respective shares in the suit property. The sale deed was registered on 02.12.2011 in the office of the Sub- Registrar No. IX, New Delhi. The plaintiffs stated that their right of possession was recognized in the sale deed, which acknowledged that vacant and physical possession of the suit property under sale has been given to the Vendees by the Vendor, "who have occupied the same." They complained that despite receipt of the entire consideration and execution of the sale deed, the defendant failed to handover vacant and physical possession of the suit property to them, citing several diverse reasons such as his wife's ill health, urgent work commitments etc. The plaintiffs stated that they did not press for immediate possession of the suit property, believing the defendant's excuses. Subsequently the plaintiffs exerted pressure on the defendant to handover possession of the suit property. The suit alleged that the defendant threatened and intimidated the plaintiffs with dire consequences every time he CS No. 484/19 Page no. 27 of 37 was asked to hand over the possession."
34.1. The Contention of the defendants in Nageshwar Pandey (supra) well illustrated in Para 4 of the Judgment which is being reproduced herein:-
"....defense in the written statement was that the plaintiffs proposed to advance a loan to him, and in lieu of the loan amount, the defendant executed a sale deed of the suit property in their favour, and handed over the original chain of documents to them. The defendant stated that the loan was interest bearing @ 2% per month, payable in cash every month, against which he could not claim any receipt. The defendant alleged that in terms of this loan transaction, the plaintiffs also agreed to execute a fresh Sale deed in his favour as and when the entire money was repaid along with interest @ 2% per month; expenses incurred while registering the sale deeds; court fees, etc. to the plaintiffs by him."
34.2 Relying upon Section 91 and Section 92 of Indian Evidence Act 1872, the contentions of the defendants were not found to be tenable. Section 91 and Section 92 of Indian Evidence Act 1872 runs as:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. -- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.-- Wills 3[admitted to probate in 4[India]] may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2.-- Where there are more originals than one, one original only need be proved.
Explanation 3. -- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
CS No. 484/19 Page no. 28 of 37
Illustrations
(a) If a contract be contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms.
The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.
Section 92. Exclusion of evidence of oral agreement. -- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or stat ement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law. Proviso (2). --The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). --The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). --The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5). -- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts."
34.3 Now oral evidence is not precluded but there should be welter of evidence to support that. It is essential to reproduce para 36 to base the present judgment:
CS No. 484/19 Page no. 29 of 37 "36. What then is the correct position? It appears to be that firstly, where the law compels a document to be in writing, that and that alone will be determinative of what the parties intend. It is where the terms are ambiguous that extrinsic evidence is permitted. The exception to this rule is the one carved out in Tyagaraja Mudaliyar (supra) and subsequently affirmed in Gangabai (supra), i.e where the document's professed identity is impeached as a sham or that it is a façade, the real intention of the parties being something else, oral evidence is not precluded. However, in each of those decided exceptions, there was a welter of evidence to support the claim that the document impeached was sham."
34.4 Referring to Gangabai W/o Rambilas Gilda v. Chhabubai, AIR 1982 SC 20 and Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70, Hon'ble High Court of Delhi explained the exception in para 30 as:-
"Likewise, in Gangabai (supra), there were circumstances to support the plaintiff's claim that the sale deed was not meant to convey property, but was a sham; the trial court and the High Court permitted parol evidence and the Supreme Court affirmed the decree. Tyagaraja Mudaliar (supra) was a case where the plaintiff, a widow with separate maintenance rights in view of the factual partition between her late husband and his brother, agreed to execute a document signifying undivided status on the assurance that her pre-existing maintenance rights would be maintained. She, however, was forced to leave the joint family matrimonial home and as a result of the previous partition, took back the jewels which fell to her share. Upon the death of her husband's brother, she sued his widows, for arrears of maintenance. The evidence overwhelmingly pointed out to a partition between her late husband in his life time; the courts, including the High Court upheld her contention and disregarded the document. The Privy Council affirmed the concurrent decree, holding that Section 92 did not operate to exclude evidence presented by the plaintiff."
35. The defendant no. 1 had entered into a rent agreement with the plaintiff on 19.07.2014 regarding above mentioned tenanted premises on a monthly rent of Rs. 5,000/- exclusive of electricity charges and the said agreement subsequently was renewed between the defendant no. 1 and plaintiff in June, 2015 and the rent was enhanced to Rs. 6,000/- per month and the agreement was for a period of 11 months.
CS No. 484/19 Page no. 30 of 37
36. It is contended by Defendant no.2 that the suit of the plaintiff is not maintainable in the eyes of law as the plaintiff has filed the present suit on the basis of false, frivolous, baseless, malafide and fictitious grounds against the defendants. Hence, the suit of the plaintiff is liable to be dismissed on this ground itself.
37. In the present case, apart from contention of defendant no.2, that Ex. PW-1/7 (OSR) though executed was an ostensible document and was only executed qua security of Rs. 5,70,000/- (para 2 of Preliminary Objection of WS of Defendant no.2), only upon pressure, however no oral evidence have been led by either of the defendants, thus this court is bound to comply Section 91 of IEA read with Nageshwar Pandey judgement(supra) in event that no iota of evidence have been led to prove the defence of defendant no.2.
38. On the same corollary, the contention of defendant no.1 that he is not the tenant of plaintiff despite the execution of rent agreement i.e. Ex. PW-1/1 (OSR) dated 19.07.2014 and 01.07.2015 and it was only done on the behest of Defendant no.2 (para 4 of Preliminary Objection of WS of defendant no.1) coupled with admission of friendly loan of Rs. 5,70,000/- advanced by plaintiff to defendant no.2, and defendant no.2 executing paper of Upper Ground Floor in favour of plaintiff is not sustainable. No evidence have been led as per Section 92 of Indian Evidence Act, 1872 to prove otherwise.
39. It is interesting that defendant no.1 is not even ignorant of execution of papers in favour of plaintiff by defendant no.2 and therefore, defendant no. 1 is bound by Ex. PW-1/1 as per section 91 of Indian Evidence Act, 1872. If defendant no.1 was to prove his defence and assertions, he was supposed CS No. 484/19 Page no. 31 of 37 to step into witness box subjecting, himself to cross-examination and prove in terms of Section 92 of Indian Evidence Act, 1872, which defendant no. 1 has miserably failed.
40. This court is left with no other option than to rely upon Ex. PW-1/1(OSR), wherein it stands proved that defendant no. 1 is tenant of plaintiff since 18.06.2014 as per rent agreement dated 19.06.2014 where rent was fixed as Rs. 5,000/-. Subsequent thereof, the case of plaintiff is further fortified in view of subsequent rent agreement executed between defendant no. 1 and per qua rent agreement dated 01.07.2015 commencing from 18.06.2015 with rent agreement Rs. 6000/- per month. In view of fact that GPA is irrevocable as this court has come to such conclusion in aforesaid paragraph which is coupled with interest and GPA containing clause qua collection of rent and even authority to sell (para 4 deals with collection of rent from tenant and para 5 with authority to sell qua GPA) in Ex. PW-1/7 (OSR) and GPA dated 21.05.2014 which is coupled with interest i.e. contemporaneous document of receipt of Rs. 9 lacs (Ex. PW-1/7)(OSR) and possession letter Ex. PW-1/7(OSR) dated 21.05.2014, the defendant no.1 herein is liable to vacate the suit property i.e. Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 as shown in red colour in Ex. PW1/4.
41. The contention of defendant no. 1 that suit property was handed over to defendant no.2 on 20.06.2017, though admitted by defendant no.2, the defendant no.2 in such case is sub-tenant whose rights flows from the D-1 in the eyes of law and when the property is let out by tenant, then sub tenant is liable (as defendant no.2 is liable to same clauses as have been applicable on defendant no.1. No one can provide better bundle of rights or liability one CS No. 484/19 Page no. 32 of 37 already has and law will not allow such act to perpetuate and be remedy less), and therefore, defendant no.2 stands liable.
42. The argument of defendant that plaintiff does not know when defendant no.1 has vacated the suit property in his cross-examination and therefore he cannot be assumed to be owner or atleast the carelessness is writ large is not sustainable and beneficial to defendants as one cannot benefit from one's own wrong and it was upon defendant no. 1 to honour the contract and rent agreement and nor to accelerate the breach of rent agreement qua Ex. PW1/1(OSR).
43. The argument qua electricity meter in suit property cannot be of any help to defendant and at most it stands not in the name of the plaintiff is of no help to the arguments of the defendant as for the reason that electricity meter is no proof of ownership. Atmost it can be qua occupation and electricity charges and due, which are qua building and not upon the name of the user.
44. The argument on behalf of defendant that plaintiff do not have previous chain of documents in original is not supportive of contention of defendant and that adverse interference should be drawn by this court is not sustainable as it is nowhere the stand of defendant no.1 and defendant no.2 that they have never executed document like Ex. PW-1/1 (OSR) and Ex. PW-1/7 (OSR) respectively. Even copy of the same in original will suffice in view of Section 58 of Indian Evidence Act 1872. The only contention qua defendant is that it was for ostensible purpose of securing the booking cum loan amount to the tune of Rs. 5,70,000/- or that rent agreement was for sake of satisfaction of plaintiff, though signed and admitted by defendant no. 1 on CS No. 484/19 Page no. 33 of 37 request of defendant no.2. The onus was upon defendant no.1 and defendant no.2 to prove it, which they have failed to do so to, to lead evidence in term of Section 92 of Indian Evidence Act. Therefore, this leg of argument is also not sustainable.
45. Henceforth, defendant no.1 and thereupon defendant no.2, who has been proved is in the possession of suit property are liable to vacate the suit property i.e. i.e. Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 as shown in red colour in Ex. PW1/4 and plaintiff herein is entitled to decree of possession qua suit property i.e. Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 as shown in red colour in Ex. PW1/4 and defendants are herein are directed to handover the vacant peaceful possession of the suit property. Issue no. 2 is decided in favour of plaintiff and against the defendants.
46. Issue no. 4: Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP 46.1 Even unauthorized occupant will be bound by the act of lessee, however in the present case, defendant no. 2 is in the possession of the suit property. The factum of sub-lease has already been arrived by this Court by defendant no. 1 in favour of defendant no. 2. It is pertinent to mention herein that the act of sub-lease is generally proceeded behind the closed doors secretly and several unsustainable defence are taken to frustrate the eviction of the landlord. The defendant no. 2 having executed GPA coupled with consideration is bound by the act and cannot avoid the ramification of the clauses of such GPA i.e. Ex. PW-1/7(OSR) which is coupled with interest CS No. 484/19 Page no. 34 of 37 and have clauses to the effect of even authority to sell.
46.2 In view of conclusion being arrived by this Court qua issue no.2, defendants herein are restrained from creating any third party interest in the suit property and in particular, defendant no. 2 and his Lrs, agents, associates, attorney is hereby permanently restrained from subletting, transferring or creating any third party interest interest in the suit property i.e. Plot No.78/3, Upper Ground Floor, out of Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 as shown in red colour in Ex. PW1/4. Issue no. 4 is decided in favour of plaintiff and against the defendants.
47. Issue no. 3:Whether the plaintiff is entitled for decree of arrears of rent as prayed for? OPP 47.1 It is averred by plaintiff that defendant no.1 has not paid rent from September, 2016. This court has already held that defendant no.1 to be tenant of plaintiff and onus is upon tenant i.e. defendant no.1 to prove that he has paid the rent @ Rs. 6,000/- per month from September, 2016 qua 30 months (i.e. September 2016-February, 2019). Nothing has been led by defendant no.1 to prove that such rent has been paid.
47.2 The argument on behalf of defendant no.1 that he was not paying rent to his landlord i.e. defendant no.2 as security amount was deposited with defendant no. 2 and suit property was handed over to the defendant no. 2 on 19.06.2017 is not sustainable as there is no privity of contract between plaintiff and defendant no.2 and rent agreement Ex. PW-1/1(OSR) was executed between plaintiff and defendant no. 1. No evidence has been led that property was handed over on 19.06.2017. Even otherwise, defendant no.1 is bound to pay the rent to plaintiff till the handing over of the suit CS No. 484/19 Page no. 35 of 37 property to plaintiff. It is his own admission that he has handed over the suit property to defendant no.2 on 19.06.2017. This doesn't allow D-1 to escape from his liability qua rent agreement that he has executed qua Ex. PW1/1(OSR). Therefore, plaintiff is entitled to decree of recovery of sum of Rs. 2,10,000/- from defendant no.1 with pendent lite interest and future interest @ 8% pa till the realization of amount.
47.3 No evidence have been led qua electricity charges by plaintiff due upon defendants henceforth, same stands denied. The defendant no. 1 will be at liberty to initiate any suit/proceedings against defendant no.2 as per law subject to limitation. The issue no. 3 is partly decided in favour of plaintiff and against the defendant no. 1 wherein defendant no. 1 is liable to pay the arrears of rent to the tune of Rs. 2,10,000/- to the plaintiff for September 2016 to February 2019 (30 months as sought) with interest as adjudicated as aforesaid. The relief of plaintiff qua electricity charges is denied and is decided against plaintiff and in favour of defendants.
48. Issue no. 1:Whether the plaintiff has not come to Court with clean hands? OPD-1 & 2.
48.1 Onus was upon defendants to prove that plaintiff has not come to the Court with clean hand. Nothing has been led on behalf of the defendants. Henceforth issue no.1 is decided in favour of plaintiff and against the defendants.
49. Relief The plaintiff herein is entitled to decree of eviction and possession with respect to the suit property i.e. Plot No.78/3, Upper Ground Floor, out of CS No. 484/19 Page no. 36 of 37 Khasra No.67/8 & 9, Om Vihar, Phase-V, Uttam Nagar, New Delhi-110059 as shown in red colour in Ex. PW1/4 against the defendants and defendants herein are permanently restrained and in particular the defendant no. 2 from creating any third party interest, subletting transfer or assignment qua suit property. The plaintiff is also entitled to recover the arrears of rent of amount of Rs. 2,10,000/- which pertains to 30 months alongwith with pendent lite interest and future interest @ 8% pa till the realization of amount from defendant no. 1. The recovery of Rs. 30,000/- by the plaintiff qua electricity charges stands denied. Cost of the suit is decided in favour of plaintiff.
50. Decree sheet be prepared.
File be consigned to the record room after due compliance.
Digitally signed by VAIBHAV VAIBHAV CHAURASIA
CHAURASIA Date:
2025.12.24
Announced in the Open Court 17:43:21 +0530
on 24.12.2025 (Vaibhav Chaurasia)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS No. 484/19 Page no. 37 of 37