Delhi District Court
Ruksana Badar vs Shaan Mohammad on 23 August, 2025
IN THE COURT OF SH. SUNIL KHATRI, CIVIL JUDGE-06,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS SCJ No. 863/2023
CNR No. DLCT03-002337-2023
IN THE MATTER OF:-
Mst. Rukhsana Badar
W/o Mohd. Arif
R/o 7006, 1st Floor, Gali Karkhane Wali,
Beri Wala Bagh, Azad Market,
Delhi-110006. ......... Plaintiff
Versus
1. Mr. Shaan Mohammad
S/o Mr. Mohammad Ibrahim
R/o Property No. 313/105H,
Second Floor, Gali No.13,
Tulsi Nagar, Inderlok,
Delhi-110035.
2. Mrs. Nazmeen
W/o Mr. Shaan Mohammad
R/o Property No. 313/105H,
Second Floor, Gali No.13,
Tulsi Nagar, Inderlok,
Delhi-110035. ......... Defendants
SUIT FOR RECOVERY OF POSSESSION, EJECTMENT
AND RECOVERY OF ARREARS OF RENT AMOUNTING
TO Rs.1,32,000/- ALONGWITH DAMAGES TILL DELIVERY
OF POSSESSION.
Date of Institution : 24.04.2023
Date of Reserving for Judgment : 14.08.2025
Date of Judgment : 23.08.2025
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 1/27
Digitally
signed by
SUNIL
SUNIL KHATRI
KHATRI Date:
2025.08.23
17:53:53
+0530
JUDGMENT
1. The plaintiff has filed the present suit claiming the relief of possession of the property bearing no. 313/105H, admeasuring 59 sq. yards, built on plot no.2 situated in the abadi known as Tulsi Nagar, Inderlok, Delhi-110035, area of Village Chowkari Mubarakabad, Delhi (hereinafter referred to as "suit property") and seeking recovery of arrears of rent Rs.1,32,000/-, mesne profit @ Rs.12,000/- per month alongwith unauthorized occupation charges @ Rs.10,000/- per month alongwith pendente-lite and future interest @ 24% per annum from the date of the filing of the suit till the defendants handover the peaceful ad vacant possession of the tenanted premises to the plaintiff alongwith cost of the suit.
2. The relevant facts of the case as culled out from the plaint are as follows:-
2.1 It is submitted by the plaintiff that plaintiff is working as an Assistant Primary Teacher in SBV Qutub Road, Delhi-110006 in Government School and the plaintiff's younger brother Sh. Azhar Ali had purchased the suit property from Mohd. Yahya on 22.01.2018.
2.2 It is submitted by the plaintiff that she is the absolute owner of the suit property by virtue of gift deed dated 21.03.2018 by Mr. Azhar Ali, who is younger brother of the plaintiff, in favour of the plaintiff vide registration no. 2988 in Book No. I, Volume No. 6982 on page 178 to 183 before Sub-Registrar-I, CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 2/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:00 +0530 New Delhi. The plaintiff take over the suit property on the same date.
2.3 After taking over the possession of the above said property, the defendant no.1 and 2 approached the plaintiff to take the above said property on rent. On the oral request of the defendant no.1 and 2, the plaintiff had given the suit property on rent on 01.07.2018 at a monthly rent of Rs.12,000/-. The defendant no.1 and 2 had given the rent till May, 2022 and thereafter, the defendant no.1 and 2 failed to pay the rent since June, 2022. The plaintiff demanded the rent several times and meet the defendants but the defendants did not pay any heed and neither vacate the tenanted premises nor pay any rent.
2.4 It is further submitted that the plaintiff requested both the defendants for execution of rent agreement between landlady and tenant for the abovesaid property and also the police verification of the defendants but the defendants kept lingering the matter on one pretext to the other and the defendants further saying that they were busy in their tailoring work and she did not have to worry since she was regularly getting the rent from them.
Despite several requests of the plaintiff, the defendants were ignoring on one pretext or another and paid no heed to any legitimate requests of the plaintiff.
2.5 It is further submitted that in the month of June, 2022 when the defendants did not act upon legitimate requests of the plaintiff to execute the rent agreement between the plaintiff and the defendants, the plaintiff visited to the rented premises to meet CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 3/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:07 +0530 both of the defendants and requested to execute the rent agreement or otherwise vacate the premises. According to act and conduct of the defendants the tenancy shall be terminated from June, 2022. It was further conveyed to the plaintiff that the defendant is the unauthorized occupant and shall also be liable to pay unauthorized occupation charges.
2.6 It is further submitted that though the tenancy of the defendant had already been terminated, through legal notice dated 21.03.2023 which was served upon defendants on 21.03.2023, thereby determined and terminated the tenancy of defendants by giving them a 30 days clear notice and further called upon the defendants to handover the vacant and physical possession of the premises after the expiry of statuary period of 30 days, expiring with the end of tenancy month.
2.7 It is further submitted that the plaintiff also brought to the knowledge of defendants through the aforesaid legal notice that in case the defendants failed to handover the physical and vacant possession of the suit property to plaintiff within the stipulated period then plaintiff shall be entitled for charges at the rate of Rs. 10,000/- per month as unauthorized occupation charges besides Rs. 12,000/- per month, together with up to date interest @24% per annum with effect from June, 2022.
3. Defendant no.1 and 2 have filed written statement wherein they have made the following averments:
3.1 It was denied by the defendants that plaintiff is CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 4/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:14 +0530 absolute owner of the suit property by virtue of Gift Deed dated 21.03.2018 executed in her favour by Mr. Azhar Ali or that plaintiff took the physical possession of the suit property from Mr. Azhar Ali who is also her younger brother. It was further denied that plaintiff's younger brother Mr. Azhar Ali had purchased the said property from Mr. Mohd. Yahya on 22.01.2018 as alleged.
3.2 It is averred that the present suit is liable to be dismissed as legal notice dated 21.03.2023 was never served upon the defendants at any point of time and by any mode. It is submitted that plaintiff has no right to demand the rent from the defendants because the plaintiff is not entitled to receive the rent from the defendants. It is submitted that without prejudice to the rights and contentions of the parties, the defendant no.1 occupied the suit property in the year 2017 and in this regard documents were executed between defendant no.1 and Mr. Azhar Ali i.e. brother of the plaintiff. The said documents are in the possession of Mr. Azhar Ali. The defendant no.1 will file the said documents as and when the same will be available to him. Defendant no.1 is occupying the suit property in his own independent capacity as an amount of Rs.35,00,000/- approximately is due upon Mr. Azhar Ali as on today and defendant no.1 reserves his right to file civil as well as criminal case against Mr. Azhar Ali and his associates for recovery of the aforesaid amount.
3.3 The present suit is a gross abuse of process of law and court and is liable to be dismissed as the plaintiff has not come with clean hands rather suppressed material facts from the CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 5/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:20 +0530 knowledge of this court. It is submitted that plaintiff has filed the suit for recovery of possession, ejectment and recovery of arrears of rent without any legal right and basis and same is liable to be dismissed with heavy cost.
3.4 The suit of the plaintiff is not maintainable and is liable to be dismissed as the same is barred under Section 34 and 41(h) of Specific Relief Act as plaintiff has deliberately and intentionally not sought the relief of declaration as such the suit is not maintainable in view of the judgment of the Hon'ble Supreme Court of India as laid down in 'Anathulla Sudhakar Vs P. Buchi Reddy' case in A.I.R. 2008, page 2033.
3.5 It is further averred that the present suit filed by the plaintiff is liable to be dismissed as the same has not been properly valued and proper court fees has not been fixed on the market value of the suit property. It is submitted that this court has no pecuniary jurisdiction to try and entertain the present suit.
3.6 It is further averred that the present suit is liable to be dismissed as plaintiff has concealed the fact and the same is not maintainable as the plaintiff neither owner nor landlord of the suit property and plaintiff has no right, title and interest in the suit at any point of time in any manner whatsoever. It is further submitted that plaintiff or his predecessor in interest/brother have no ownership documents in respect of suit property and as such plaintiff has no concern with the same in any manner whatsoever.
3.7 It is further averred that there was/is no relationship of CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 6/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:26 +0530 landlord and tenant between the parties herein at any point of time. It is further submitted that the defendants never paid any rent to the plaintiff qua the suit property at any point of time.
3.8 It is further averred that the suit filed by the plaintiff is not only liable to be dismissed but the plaintiff is also liable to be prosecuted under Section 340 as well as under various provisions of Criminal Law as the plaintiff has claimed that he had acquired the right in the suit property by virtue of Gift Deed dated 21.03.2018. It is submitted that Azhar Ali brother of the plaintiff was having no right, title and interest in any manner whatsoever in the suit property at any point of time. It is submitted that if the plaintiff files any document after filing of the present plaint, the same may be treated as forged, fabricated, sham, manipulated and doctored documents as the plaintiff wants to illegally usurp the property in possession of the defendants. It is further submitted that defendants are occupying the suit property in their own independent capacity.
3.9 It is further averred that present plaint is not maintainable as the present case is a case on dispute of title as such present suit is barred U/S 41(h) of Specific Relief Act.
3.10 It is further averred that present suit is barred under Order VII Rule 3 CPC as the suit property has not been properly identified and the plaintiff deliberately and intentionally has not filed the true and correct site plan of the suit property showing the existing structure at the site as such on this ground alone, the suit is not maintainable and is liable to be dismissed.
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 7/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:31 +0530 3.11 It is further averred that the present suit of the plaintiff is liable to be dismissed as the same is bad for non-joinder and mis-Joinder of necessary parties.
3.12 Rest of the contents of the plaint was also denied by the defendants and the same are not reproduced here for the sake of brevity. Lastly, it was prayed by the defendants that plaintiff is not entitled to any relief and her suit may be dismissed with exemplary cost.
4. Replication filed on behalf of the plaintiff to the written statement of the defendants wherein plaintiff reiterates the averments of the plaint and denied the contents of the written statement.
5. On the basis of the pleadings of the parties and admission/denial of documents, followings issues were framed:
i. Whether the plaintiff is entitled to a decree of possession as prayed for in prayer (a) of the plaint? OPP ii. Whether the plaintiff is entitled to a decree of recovery of sum of Rs.1,32,000/- with future and pendente-lite interest @ 24% per annum as prayed for in prayer (b) of the plaint? OPP iii. Whether the plaintiff is entitled to decree of mesne profit as prayed for in prayer (c) of the plaint? OPP iv. Whether the suit of the plaintiff is barred under Section 34 and Section 41 of SRA? OPD CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 8/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:38 +0530 v. Whether the suit has not been valued properly and appropriate court fees has not been paid? OPD vi. Whether plaintiff is not the owner or landlord of the suit property? OPD vii. Relief.
6. To prove his case, plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit which is Ex. PW-
A/1. She has relied upon following documents:-
i. Ex. PW1/A is site plan.
ii. Ex. PW1/B is legal notice dated 21.03.2023.
iii. Ex. PW1/C (colly) are receipt and tracking report.
iv. Ex. PW1/D (OSR) is copy of Gift Deed dated
21.03.2018.
v. Ex. PW1/E (OSR) is bank statement of Syndicate
Bank w.e.f. 31.03.2017 to 31.10.2018. vi. Ex. PW1/F (OSR) is copy of GPF passbook. vii. Ex. PW1/G (OSR) is copy of Aadhar Card of the plaintiff.
7. PW-1 was cross examined by Ld. Counsel for the defendants. PW-1 has admitted in his cross examination that she has not filed the entire chain of the suit property which was given by her brother Mr. Azhar Ali. She further admitted that she does not have the original copy of Partition Deed registered at document no. 1273 in Book No. I, Vol. No. 4868, pages 107 to 112 registered on 09.03.1988 with the concerned Registrar of Delhi and another document i.e. Registered Sale Deed at document no. 2399, Book No.I, Vol. No. 585 on pages 315 to 320 CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 9/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:44 +0530 dated 19.04.1961. She volunteered that she has brought the photocopy of the same (no such photocopy was ever filed on record on behalf of the plaintiff). She stated that property in question was in possession of her brother when Gift Deed dated 21.03.2018 was executed. However, she admitted that there is no documentary proof to show that she was in possession of the suit property at any point of time after execution of aforesaid Gift Deed. She volunteered that after execution of Gift Deed by her brother, she gave the suit property on rent to the defendant. She admitted that there is not rent agreement/ rent receipt executed/issued by and between plaintiff and defendants. She volunteered that property was given on rent to the defendants orally. She further stated that she never met any architect for preparation of site plan and no architect visited the suit property for preparation of the site plan. She admitted that site plan was executed in the office of her Advocate. She admitted that she never met Mr. Bir Sain. When it was asked as to whether there is any Partition Deed between Mr. Azhar Ali, Mr. Bhim Singh and Mr. Bir Sain, she replied that she do not know about the same.
She denied the suggestion that Gift Deed dated 21.03.2018 does not confer any right upon her to file the present suit and that she has no concern with the suit property in any manner.
8. Thereafter, plaintiff evidence was closed by the Ld. Counsel for the plaintiff on 03.02.2025 and the matter was put up for defendant's evidence.
9. Sh. Shaan Mohammad defendant no.1 has examined himself as DW-1 and tendered his evidence by way of affidavit CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 10/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:54:55 +0530 which is Ex. DW1/A.
10. DW-1 was cross examined by Ld. Counsel for the plaintiff. DW-1 i.e. Sh. Shaan Mohammad stated that he is running boutique since the childhood and earns about Rs.20,000/-. He further stated that he has not filed any ITR. He admitted that he has not filed a single document related to transaction between him and Mr. Azhar Ali. He also admitted that he has neither filed any complaint/ case nor any legal notice against Mr. Azhar Ali since 2017. It was admitted by him that he has not filed any document in the court regarding the amount for handing over of possession of the suit property. He denied the suggestion that the suit property was taken on rent at Rs.12,000/- per month by him from the plaintiff commencing from July, 2018 and that he had paid rent to the plaintiff. He volunteered that he had never paid any rent to the plaintiff at any point of time. He admitted that he has not filed any ownership document before the court. He stated that he is paying amount as mentioned in his WS as well as his evidence affidavit to Mr. Azhar Ali since the year 2014. He stated that he has not seen any document of ownership when he has paid the amount to Mr. Azhar Ali. He denied the suggestion that he want to grab the suit property or that he is using the name of Mr. Azhar Ali for the said purpose.
11. Vide separate statement of Ld. Counsel for defendants, DE was closed on 26.05.2025.
12. Thereafter, Ld. Counsel for the parties addressed final arguments on behalf of the parties. I have heard the arguments CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 11/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:03 +0530 put forth by both Ld. Counsel and perused the record of the case minutely.
13. Arguments were advanced on behalf of both the parties.
14. It is argued by the Ld. Counsel for the plaintiff that plaintiff has become owner of the suit property as there is registered Gift Deed in her favour which is executed none other than her own brother. It is argued that though there is no rent agreement, rent receipt or any other document to show transaction of rent between the plaintiff and defendants, plaintiff has proved her case through her own testimony. It is argued that plaintiff has terminated the tenancy of the defendants w.e.f June, 2022 through legal notice dated 21.03.2023 and therefore, defendants are merely unauthorized occupants in the suit property who have no documents in their favour in respect of suit property. Therefore, they have no right to remain on the suit property. The defendants have not placed any documents on record regarding the alleged transaction of Rs.35,00,000/- done with the brother of the plaintiff. Moreover, the defendant no.1 is merely a tailor with monthly income of Rs.20,000/- which has been admitted in his cross examination. Therefore, by no stretch of imagination, they can pay such a huge amount, due to lack of their financial incapacity. Lastly, it is argued that plaintiff is the rightful owner of the suit property and therefore, decree may be passed in her favour by evicting the defendants from the suit property.
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 12/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:10 +0530
15. Ld. Counsel for the defendants have argued that application U/O 39 Rule 10 CPC filed by the plaintiff was dismissed by the court on 01.11.2023 and it should be taken into consideration for deciding that there is no relationship of tenant and landlord between the parties. Further, it was argued that plaintiff has admittedly not filed any rent agreement, rent receipt or any other document showing monetary transaction between the parties therefore, it cannot be presumed that plaintiff is the landlord of the defendants merely on the basis of Gift Deed dated 21.03.2018 Ex.PW1/D executed in her favour by her brother. It is submitted that said Gift Deed has been executed in collusion between the plaintiff and her brother. He argued that bare perusal of the Ex. PW1/D would show that same is a forged and fabricated document.
16. Ld. Counsel for the defendants argued that in the aforesaid Gift Deed, there is no mentioned as to when and how Mr. Azhar Ali became the owner of the suit property. It was argued by him that plaintiff in her testimony has submitted that Mr. Azhar Ali purchased the said property from Mr. Mohd. Yahya on 22.01.2018. However, there is no mention of the said transaction between Mr. Azhar Ali and Mr. Mohd. Yahya. Further, no details has been given as to how Mr. Mohd. Yahya became the owner of the suit property and transferred ownership rights to Mr. Azhar Ali. Moreover, no details regarding the consideration amount has been given in the plaint by the plaintiff regarding aforesaid transactions. Plaintiff has failed to bring on record the purported Sale Deed dated 22.01.2018 executed between Mr. Azhar Ali and Mr. Mohd. Yahya and Partition Deed CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 13/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:22 +0530 and Sale Deed dated 09.03.1988 and 19.04.1961 respectively as mentioned in the Gift Deed Ex. PW1/D. Aforesaid discrepancies and non production of the relevant document on record creates suspicion about the authenticity of the Ex. PW1/D and therefore, same cannot be relied to decree the suit in the favour of the plaintiff. Apart from the aforesaid Gift Deed, there is absolutely no evidence which can help the plaintiff in the present case. It was argued that bank statements, GPF documents filed by the plaintiff are not enough to prove the Gift Deed Ex.PW1/D on record. Therefore, Ld. Counsel for the defendants argued that the plaintiff's case may be dismissed with heavy cost. Ld. Counsel for the defendants relied upon the judgments of cases titled as Sait Tarajee Khimchand and Ors. Vs. Yelamarti Satyam Alias Satteyya and Ors., (1972) SCC 562, Rajdhani Films Vs. Rajesh Arora, 1995 RLR 205 and Brahma Nand Puri Vs. Neki Puri, AIR 1965 SC 1506.
17. In rebuttal, Ld. Counsel for the plaintiff argued that admittedly, sale deed dated 22.01.2018 executed between Mr. Azhar Ali and Mr. Mohd. Yahya and partition deed, sale deed as mentioned in Ex.PW1/2 i.e. Gift Deed, were not filed on behalf of the plaintiff, as there was no requirement to file the same. He argued that registered gift deed in favour of the plaintiff is sufficient in itself to show that she is the owner of the suit property. Further, it is submitted that defendant has filed no documents regarding the transaction of Rs.35,00,000/- between the defendant no.1 and Mr. Azhar Ali in the year 2017. Therefore, there is no document in possession of the defendants which can show how they come into the possession of the suit property. It CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 14/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:35 +0530 was argued that on the basis of preponderance of probabilities, plaintiff has a better case than the defendants. It was argued that plaintiff is a primary school teacher and has paid the stamp duty of the Gift Deed through her own salary which can be seen from her bank statement and GPF passbook. He argued that registered documents are presumed to be authentic under the provisions of law and they cannot be discarded merely on the basis of vague objections of the defendants without any proof of forgery/fabrication regarding the same.
18. I have heard the arguments on behalf of the plaintiff and defendants.
19. It would be relevant here to mention the applicable case laws as follows:
20. It was held in case titled as Sait Tarajee Khimchand and Ors. Vs. Yelamarti Satyam Alias Satteyya and Ors., (1972) SCC 562 by Hon'ble Supreme Court that-
"15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgment. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs."
21. It was held in case titled as Rajdhani Films Vs. Rajesh Arora, 1995 RLR 205 by Hon'ble Supreme Court that-
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 15/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:43 +0530 "Document not produced with pladings give rise to suspicion of their genuineness and malafide intention to conceal from opponent their existence."
22. It was held in case titled as Brahma Nand Puri Vs. Neki Puri, AIR 1965 SC 1506 (v 52 C 253) by Hon'ble Supreme Court that-
"In a suit for ejectment the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that defendant in possession has no title to the property."
23. Further, in the case of Abdul Rahim & Ors. Vs. SK. Abdul Zabar & Ors., AIR 2010 Supreme Court 211, it is held that-
"10. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan Law it is a contract which takes effect through offer and acceptance.
The conditions to make a valid and complete gift under the Mohammadan Law are as under:
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor."
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 16/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:50 +0530 My Issue-wise findings
24. Issue No.1,2 and 3 are take up together for disposal as common issues of fact and law are involved and they being interconnected finding on one issue shall have bearing own others.
Issue no.1 "Whether the plaintiff is entitled to a decree of possession as prayed for in prayer (a) of the plaint? OPP", Issue no.2 "Whether the plaintiff is entitled to a decree of recovery of sum of Rs.1,32,000/- with future and pendente-lite interest @ 24% per annum as prayed for in prayer (b) of the plaint? OPP"
and Issue no.3 "Whether the plaintiff is entitled to decree of mesne profit as prayed for in prayer (c) of the plaint? OPP"
25. The onus to prove these issues were on the plaintiff. It is the case of the plaintiff is that she has become absolute owner of the suit property by virtue of Gift Deed dated 21.03.2018 i.e. Ex. PW1/D executed in her favour by his younger brother Mr. Azhar Ali. She submitted that she took the physical possession of the property on the same date from Mr. Azhar Ali. Defendant no.1 and 2 approached the plaintiff to take the aforesaid suit property on rent and on oral request of the defendants, plaintiff gave the suit property on rent to the defendants w.e.f 01.07.2018 for a sum of Rs.12,000/-. However, defendants gave rent only till May, 2022 and had failed to pay the rent of the suit property since 2022. Despite several reminders, defendants are neither paying the rent nor vacating the suit property. His brother Mr. CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 17/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:55:56 +0530 Azhar Ali had purchased the said property from Mr. Mohd. Yahya on 22.01.2018. Neither the rent agreement could be executed nor police verification of the defendants could be done as the defendants remained busy in tailoring work and linger on the matter on one pretext or another. Finally, the plaintiff sent a legal notice dated 21.03.2023 through his counsel to the defendants for vacation of the suit property as they are continuing as unauthorized occupant in the same after termination of their tenancy by the plaintiff on June, 2022. Despite the service of notice, defendants have failed to hand over the possession of the premises after expiry of statutory period of 30 days and therefore, they are liable to pay unauthorized occupation charges of Rs.10,000/- besides rent of Rs.12,000/- per month with effect from June, 2022.
26. Per contra, defendants have completely challenged the right and title of the plaintiff not only for demand of rent but also for filing the present suit for possession and recovery of user/ occupation charges. Defendant no.1 submitted that defendants came in the possession of the suit property in the year 2017 and in this regard documents were executed between him and Mr. Azhar Ali. The said documents are in possession of Mr. Azhar Ali. An amount of Rs.35,00,000/- approximately is also due upon Mr. Azhar Ali. However, defendants have no knowledge about the whereabouts of him despite best efforts. It is the case of the defendants is that plaintiff is neither the owner nor landlady of the suit property and she has no right, title and interest in the suit property at any point of time in any manner whatsoever. It is also submitted that plaintiff or his predecessor/ brother have no CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 18/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:03 +0530 ownership documents in respect of suit property and therefore, she has no concerned with the same in any manner. It is also stated that there is no relationship of landlord-tenant between the parties at any point of time and defendants never paid any rent to the plaintiff qua the suit property. It is submitted that defendants are occupying the suit property in their own independent capacity.
27. The plaintiff through the present suit has sought a decree of possession of the suit property from the defendant alongwith recovery of arrears of rent and mesne profit. Therefore, it is essential for the plaintiff to prove by cogent evidence that she is the owner of the suit property to claim the possession and rent/mesne profit. It is admitted fact that there were no rent agreement executed between the parties. Further, it also admitted by the plaintiff that there are no rent receipts, bank statement etc. which can show the payment of rent by the defendants to her. It is her case that oral tenancy was created between the parties and all the rent at monthly intervals were given in cash by the defendants to the plaintiff. She has not produced any witness apart from herself to prove the factum of oral tenancy or payment of rent by the defendants to plaintiff. Further, she has failed to prove on record any document like tenant verification by police or electricity, water bill to show that at any point of time, she was in the possession of the suit property. During the cross examination of DW-1, Ld. Counsel for plaintiff confronted the witness with a receipt dated 24.06.2023 which was stated to be receipt for electricity bill of the suit property. However, even the same was not proved as per the rules CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 19/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:10 +0530 of the evidence and hence simply marked as Mark DW1/P1. Even if the aforesaid receipt is taken into consideration, it does not bear the name of the plaintiff and merely payment of electricity bill, which can be done by any third person, would not help the case of the plaintiff in any manner. Therefore, plaintiff has miserably failed to prove that she is the landlord of the defendants and hence entitled to arrears of rent/ mesne profit from them.
28. As far as the issue of recovery of possession is concerned plaintiff has stated that she has become owner of the suit property by virtue of Gift Deed date 21.03.2018 that is Ex.PW1/D executed in her favour by her younger brother Mr. Azhar Ali. To prove the aforesaid Gift Deed, plaintiff has examined only herself as PW-1. The relevant part of the Ex. PW1/D is reproduced as under:
"This GIFT DEED is made at Delhi, on this 21-03-2018, by SH. AZHAR ALI, SON OF SH. BADRUDDIN, resident of A-17/133-C, DDA Flats, Inder Lok, Delhi-110035, hereinafter called the DONOR.
IN FAVOUR OF:-
SMT. RUKHSANA BADAR WIFE OF SH. MOHD. ARIF, DAUGHTER OF SH. BADRUDDIN, resident of 10580, Quila Kadam Sharif, Nabi Karim, Swami Ram Tirth Nagr, Delhi-110055, hereinafter called the DONEE.
The expressions of the Donor and the Donee shall mean and include their respective heirs, successors, executors, legal representatives, administrators and assigns.
WHEREAS the DONOR is the lawful owner and in possession of Second Floor, without its roof/terrace rights, Part of Property Bearing Municipal No. 313/105-H, area measuring 59 square.yards, build on Plot No.2, situated in the Abadi Known as Tulsi Nagar, Inder Lok, Delhi-110035, area of Village chowkari Mubarakabad Delhi, with common rights in main Gate, entrance, staircase and passages, by virtue of Partition deed, vide registered as document No.1,273, in Book No.1, Volume No.4,868, on pages 107 to 112, CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 20/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:16 +0530 registered on 09-03-1988, with the office of Sub- Registrar, Delhi, executed between Sh. Bhim Singh and Sh. Bir Sain, read with Sale deed, vide registered as document No.2,399, in Book No.1, Volume No. 585, on pages 315 to 320, registered on 19-04-1961, with the office of Sub-Registrar, Delhi, which is bounded as under:-
East Others Property
West Others Property
North Gali
South Others Property"
29. For proving Gift Deed Ex.PW1/D on record, the plaintiff has to prove that donor was the owner of the property which was gifted among other conditions as laid down by Hon'ble Supreme Court in Abdul Rahim & Ors. Vs. SK. Abdul Zabar & Ors. (Supra). From bare perusal of the Gift Deed Ex.
PW1/D as reproduced above, it can be seen that suit property was purportedly registered in favour of one Sh. Bhim Singh and Sh. Bir Sain vide Partition Deed registered at document no. 1273 in Book No. I, Vol. No. 4868, pages 107 to 112 registered on 09.03.1988 with the concerned Registrar of Delhi and another document i.e. Registered Sale Deed at document no. 2399, Book No.I, Vol. No. 585 on pages 315 to 320 dated 19.04.1961.
30. It is the case of the plaintiff that aforesaid property was purchased by Mr. Azhar Ali from Mr. Mohd. Yahya on 22.01.2018. However, in the Gift Deed Ex.PW1/D no mention has been made about any Mr. Mohd. Yahya or any such sale of property dated 22.01.2018. Plaintiff has failed to explain as to why the aforesaid facts i.e. complete chain of suit property in favour of the donor of the Gift Deed were not mentioned in the Gift Deed Ex. PW1/D. Plaintiff has also failed to bring on record alleged sale deed executed in favour of her brother by Mr. Mohd.
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 21/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:22 +0530 Yahya on 22.01.2018, though it is strange that at the time of her cross examination, she has volunteered that she has brought the entire chain of the suit property. No details of the aforesaid transaction regarding purported sale deed dated 22.01.2018 like consideration amount, register number, book number and registration authority etc. have been mentioned in her testimony by the plaintiff apart from the stray statement that aforesaid sale deed was executed on 22.01.2018. The said discrepancies alongwith non production of the complete chain of documents regarding the suit property raises doubt about its genuineness. Further, plaintiff has not examined her brother i.e. donor of the suit property without assigning any reason for his non examination. Therefore, the court can make the presumption under Section 119 (g) of Bharatiya Sakashya Adhinyam, 2023 that evidence which could be produced but was not produced by the plaintiff is unfavorable to her case.
31. Moreover, no one can give but he himself does not have as per the legal maxim Nemo dat quod non habet. In the instant case when the plaintiff has failed to prove that his donor was the owner of the suit property, she cannot rely on the Ex.PW1/D for the purpose of showing her own ownership. She cannot acquire a valid title when the title of his donor is itself defective.
32. Further, there is another aspect of the matter. Any gift deed has to be proved as per the provisions of law. It would be relevant to mention here the provisions of law governing the proof of gift deed.
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 22/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:29 +0530
33. Section 123 of Transfer of Property Act, 1977 provides as follows:
123. Transfer how effected.
- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. Explanation. - The word "attest" has the same meaning in this section as in section 59.
34. Section 67 of Bharatiya Sakshya Adhiniyam, 2023 provides as as follows:
"67. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
35. In the case of Brij Raj Singh Vs. Sewak Ram, it was held that-
"It is common ground that the defendants have not raised any objection, leave alone specific objection as to the validity of execution/attestation of/in gift deed. Naturally, there was no issue on this aspect. Even the witness (PW
6) was not cross-examined from this angle. Hence we are unable to sustain the contention of Mr. Verma that this being a pure question of law can be raised at the appellate stage. This is a mixed question of fact and law. Proviso to section 68 of the Evidence Act dispenses with the necessity of calling an attesting witness in proof of any CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 23/27 SUNIL KHATRI Digitally signed by SUNIL KHATRI Date: 2025.08.23 17:56:35 +0530 document, except a will, which has been registered in accordance with the provision of the Indian Registration Act when there is no specific denial by the party against whom the document is relied upon."
36. From the aforesaid legal provisions and case law, it is clear that there is no necessity to call an attesting witness in proof of execution of Gift Deed which has been registered in accordance with the provisions with the Indian Registration Act, 1908. However, in case execution of the gift deed is specifically denied by the party against whom the document is relied upon, then the gift deed has to be proved by examining at least one attesting witness in the court. The defendants have specifically denied in their written statement that Gift Deed Ex. PW1/D was executed in plaintiff's favour by her brother. Therefore, the plaintiff had to prove the said gift deed by examining at least one attesting witness of the Gift Deed, even if the same is a registered document. Plaintiff has failed to do so. It was not her case that no attesting witness is alive or the witness is not subject to the jurisdiction of this court. Given the suspicious circumstances surrounding the Gift Deed Ex. PW1/D, it was all the more necessary for the plaintiff to examine the donor/ attesting witness on record to prove the same. Nor reason has been mentioned as to why the donor who is the younger brother of the plaintiff has not come forward for examination in court. From the aforesaid discussion, it can be safely concluded that plaintiff has failed to prove the Gift Deed Ex. PW1/D, and hence it cannot be proved that she is the owner of the suit property.
37. Plaintiff has argued that defendants are merely unauthorized occupants and they have no right to remain on the CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 24/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:41 +0530 suit property as they have also not filed any document in their favour. Therefore, on preponderance of probabilities, the plaintiff has a better case than the defendants.
38. The aforesaid arguments is without any basis either in law or facts. The plaintiff has herself failed to prove any document on the court to show that she is the owner of the suit property or that she has any right to claim possession of the suit property from the defendants. It is trite law that the plaintiff has to stands on her own legs and she cannot take the benefit of weakness of defendant's case. It was held in case of Brahma Nand Puri Vs. Neki Puri (Supra) by Hon'ble Supreme Court as far as that in the year 1965 that in a suit for ejectment, plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title, his suit must fail notwithstanding that the defendant in possession has no title to the suit property. Resultantly, plaintiff has failed to prove that she is entitled to possession of the suit property alogwith rent and mesne profits.
Accordingly, issue no. 1, 2 and 3 are decided in favour of the defendants and against the plaintiff.
Issue No.4 "Whether the suit of the plaintiff is barred under Section 34 and Section 41 of SRA? OPD"
and Issue No.5 "Whether the suit has not been valued properly and appropriate court fees has not been paid? OPD"
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 25/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:48 +0530
39. The onus to prove these issues were on the defendants. However, the defendants have not led any evidence to prove the aforesaid issues. Accordingly, issue no. 4 and 5 are decided in favour of the plaintiff and against the defendants.
Issue No.6 "Whether plaintiff is not the owner or landlord of the suit property? OPD".
40. The onus to prove aforesaid issue was on the defendants. The defendants have admittedly not file any document which can prove that plaintiff is not the owner or landlord of the suit property. However, defendants through the testimony of defendant no.1, cross-examination of PW-1/plaintiff has raised suspicion about the authenticity of Gift Deed Ex. PW1/D through which plaintiff is claiming ownership or landlord rights over the suit property. In view of the facts and circumstances and the discussion held in the issue no. 1, 2 and 3 it can be said that defendants have discharged the onus placed upon them to show that plaintiff is not the owner or landlord of the suit property. Accordingly, issue no.6 is decided in favour of the defendants and against the plaintiff.
Relief:
41. In view of the findings arrived on issue no. 1, 2 and 3, suit of the plaintiff is dismissed. Parties to bear their own cost.
42. Decree sheet be prepared accordingly.
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 26/27 Digitally signed by SUNIL SUNIL KHATRI KHATRI Date:
2025.08.23 17:56:55 +0530
43. File be consigned to record room after due compliance as per rules.
Digitally
signed by
Announced in the court SUNIL
SUNIL KHATRI
on 23.08.2025. KHATRI Date:
2025.08.23
17:57:01
+0530
(SUNIL KHATRI)
Civil Judge-06/Central
Tis Hazari Courts/Delhi
Present judgment consists of 27 pages and each page is signed by Digitally
me.
signed by
SUNIL
SUNIL KHATRI
KHATRI Date:
2025.08.23
17:57:08
+0530
(SUNIL KHATRI)
Civil Judge-06/Central
Tis Hazari Courts/Delhi
CS SCJ 863/2023 Rukhsana Badar Vs. Shaan Mohammad & Anr. pg. no. 27/27