Delhi District Court
Ms. Jawinder Kaur vs Sh. Harpreet Singh on 24 November, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
SCJ No. 610320/16
Date of Institution : 15.02.2014
Date of reservation of judgment : 22.11.2016
Date of pronouncement of Judgment : 24.11.2016
Ms. Jawinder Kaur
W/o Sh. Ranjeet Singh
R/o Plot No.3, Shiv Shankar Road,
Om Vihar, PhaseI A, Uttam Nagar
New Delhi.
.................Plaintiff
vs
Sh. Harpreet Singh
S/o Late Sh. Pritam Singh
R/o WZ44/2, Gali No. 13, Krishna Park Extension
New Delhi110018.
..............Defendant
SUIT FOR RECOVERY OF POSSESSION,
DAMAGES/MESNE PROFITS AND PERPETUAL
INJUNCTION
Judgment
1.Brief facts of the present case are that plaintiff is the owner of property bearing no.WZ44/2, Gali No.13, Krishna Park Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 Extension, New Delhi18, vide sale deed dated 22.11.2013 ( hereinafter referred to as the 'suit property'). The suit property was let out by her husband to defendant through broker Sh. Joginder Singh of M/s Dadwal Properties, on a monthly rent of Rs. 6,000/ excluding electricity and water charges w.e.f 02.08.2012 for a period of 11 months and the said period expired on 30.06.2013.
2. It is further stated that the rent was paid by defendant only uptill June, 2013 and in June, 2013, defendant approached her husband for extending the tenancy period for about two months. Further states that the defendant had agreed to pay rent for the months of July and August, 2013 and in the last week of August 2013, he was reminded to pay the rent and arrears, however he passed threats not to vacate the property or to handover the possession.
3. On 24.09.2013, when plaintiff went to collect rent from defendant, she was abused and thrashed and defendant threatened that he was having a false and fabricated document on the basis of which he would file a case of Rs. 5,00,000/ against her husband. Defendant also declined to vacate the tenanted premises. As per plaintiff, she being the owner of suit property, had a right to have access to her property at reasonable time after informing the defendant, however defendant was not permitting her to inspect the suit property, thereby violating the terms of tenancy and also threatened to implicate her in false cases.
4. Further states that a legal notice dated 03.12.2013 was served upon defendant by her whereby his tenancy was terminated and he was called upon to pay damages @ Rs. 10,000/ p.m after the termination of tenancy alongwith the previous arrears. However instead of vacating the premises and paying the arrears of rent and damages, Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 defendant sent a false and frivolous reply dated 27.12.2013.
5. Plaintiff further states that the suit property was transferred in her name by her husband on 22.11.2013 and a legal notice to this effect was served on defendant by her as well as her husband on 02.01.2014. However defendant did not comply with the notices and gave a false and frivolous reply dated 11.01.2014 thereby denying the facts of notice and claiming a refund of Rs. 5,00,000/ allegedly paid by him to the husband of plaintiff vide Agreement dated 31.10.2012. Plaintiff denies that any such agreement was executed by her husband with defendant and also contends that no such amount was received by her husband and that the entire story was totally false, baseless and concocted, with malafide intention to grab the property of plaintiff.
6. Through this suit, plaintiff has prayed for decree of possession in respect of suit property. She further prays for recovery of Rs. 30,000/ as damages/mesne profits with pendente lite and future damages @ Rs. 10,000/ p.m in her favour. She has also prayed for a decree of perpetual injunction thereby restraining defendant from parting with possession or creating any third party interest in the suit property and also restraining him from making any addition/alteration in the suit property by raising construction on the first floor of the same.
7. Written statement was filed by defendant wherein it is alleged that in order to seek undue gain, plaintiff has purposely concealed and twisted material facts in respect of lease deed / Agreement dated 31.10.2012 executed between him (defendant) and plaintiff's husband, for a period of one year. As per the terms and conditions of that agreement, plaintiff's husband had handed over the vacant possession of suit property, including one room, kitchen and Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 toilet on the ground floor, alongwith one room with terrace on first floor to defendant and took a sum of Rs. 5,00,000/ in cash with the condition that he (defendant) shall not pay a single penny to plaintiff's husband. However the expenses of electricity bill and water bill were to be borne by defendant for a period of one year or till the time, he remained in possession of suit property.
8. Defendant further states that the said agreement was executed on 31.10.2012 between him and plaintiff's husband and was also notarized on the same day. However plaintiff's husband kept the original copy with him and only gave the photocopy to him. Defendant further states that plaintiff's husband is bound to return the advance payment of Rs. 5,00,000/ received by him, at the time of taking vacant possession of suit property from defendant.
9. Defendant further states that after entering into the said agreement, he regularly paid electricity bills and water bills. Suddenly on 03.07.2013, plaintiff's husband visited suit property and asked him (defendant) to vacate it even before completion of tenancy period of one year. When he refused, plaintiff's husband gave him threats of taking forcible possession. Thereafter on 10.08.2013 and 03.09.2013, plaintiff and her husband again extended similar threats.
10. On 06.09.2013, plaintiff's husband suddenly changed his stand and insisted defendant to pay a monthly rent of Rs. 6,000/ which was against the terms of lease deed/agreement dated 31.10.2012. Therefore he filed a civil suit for permanent and mandatory injunction against plaintiff's husband and got a favourable order dated 09.10.2013 whereby plaintiff's husband gave a statement that he will not dispossess him (defendant) forcibly or without due process of law.
Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 11,. Further states that on 03.12.2013, plaintiff's husband sent a false notice and claimed Rs.10,000/ rent per month from him which was duly replied by him vide reply dated 27.12.2013 denying all the allegations. Further in the said notice, plaintiff's husband referred to himself as owner/landlord though at that relevant time, admittedly he had already transferred the suit property in the name of his wife i.e. the plaintiff herein. This fact came to his knowledge when he was served with the two notices both dated 12.01.2014 sent by plaintiff and her husband. On 11.01.2014, he had also replied to both the notices and denied all the frivolous allegations stated therein by plaintiff and her husband.
12. Defendant further states that he is in possession of suit property and is still having a valid licence to enjoy the same, until and unless he gets back his advance sum of Rs. 5,00,000/ from plaintiff as well as her husband, as per the terms of Agreement dated 31.10.2012.
13. Defendant further contends that plaintiff does not have any locus standi to file the suit and there was no privity of contract between him and plaintiff. Further states that at no point of time, the tenancy between him and plaintiff or her husband had existed and admitted. The suit was also not maintainable as the court does not have pecuniary jurisdiction as the value of suit property was more than Rs. 20 lacs. Other averments of plaint were denied and prayer was made for dismissal of the suit.
14. Replication was also filed by plaintiff wherein the contentions raised in written statement were denied.
15. Vide Order dated 12.05.2014, following issues were framed by the Ld. Predecessor of this court :
Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16
1. Whether the plaintiff is entitled to the relief of possession as prayed for in first para of prayer clause ? OPP.
2 Whether the plaintiff is entitled to the relief of damages/mesne profits as prayed for in second para of prayer clause ? OPP.
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in third para of prayer clause ? OPP.
4. Any other relief.
16. In order to prove her case, plaintiff examined herself as PW1, Sh. Ranjit Singh, her husband as PW2, Sh. Joginder Singh, property dealer as PW3 and Sh. Nikhlesh Kumar, friend of plaintiff's son as PW4. In their testimony, following documents were exhibited :
" Affidavit of PW1 is Ex. PW1/A wherein the averments of plaint have been reproduced, Sale deed dated 22.11.2013 is Ex. PW1/1, site plan is Ex. PW1/2, legal notice dated 03.12.2013 is Ex. PW1/3, reply dated 27.12.2013 is Ex. PW1/4, legal notice dated 02.01.2014 is Ex. PW1/5, copy of reply dated 11.01.2014 is Ex. PW1/6, the Agreement dated 31.10.2012 is Mark X, the affidavit of PW2 is Ex. PW2/A, the legal notice dated 02.01.2014 is Ex. PW 2/1, certified copy of proceedings in CS No. 171/13 is Ex. PW2/D1, the affidavit of PW3 is Ex. PW3/A, police verification form is Ex. PW3/D1 and the affidavit of PW4 is Ex. PW 4/A."
All the plaintiff witnesses were cross Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 examined and discharged and thereafter PE was closed.
17. On the other hand, defendant examined three witnesses. DW1 is defendant himself, Sh. Navneet Singh as DW2 and Sh. Harinder Singh as DW3. In their testimony, the following documents were exhibited: "The affidavit in evidence of DW1 is Ex. DW1/A, the affidavit of DW2 is Ex. DW2/A and the affidavit of DW3 is Ex. DW 3/A."
18. The witnesses were duly crossexamined on behalf of plaintiff and DE was closed. Final arguments were also addressed on behalf of both parties.
19. I have heard the arguments advanced by Ld. counsels for parties as well as perused the evidence on record. My issuewise findings are as under :
20. ISSUE No.1
1. Whether the plaintiff is entitled to the relief of possession as prayed for in first para of prayer clause ? OPP. The onus to prove this issue was upon the plaintiff. Since this is a suit between landlord and tenant for eviction on the ground of termination of tenancy, in order to succeed, the plaintiff is required to prove three things :
1. Landlord tenant relationship between parties.
2. The tenancy is not covered under Delhi Rent Control Act i.e. rent amount must exceed Rs. 3,500/ p.m.
3. Service of notice U/s 106 of Transfer of Property Act.
Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16
21. As regards the first requirement of existence of landlord tenant relationship is concerned, the defendant has nowhere specifically admitted that he was tenant of plaintiff or her husband contending that he had given Rs. 5 lakhs to plaintiff's husband in order to reside in the suit property and it was refundable upon vacation of suit property. However Agreement Mark X (document though not proved) being relied by defendant itself shows that the description of document is mentioned as "LeaseRent Deed for one year". As per the contents of this document, defendant was not required to pay rent to plaintiff's husband in lieu of payment of said amount. This fact itself proves that defendant had taken suit property on rent from husband of plaintiff in the year 2012 but only the means of payment of rent was different as it was to be impliedly adjusted from the interest accruing on said amount of Rs.5 lakhs.
22. As regards plaintiff becoming landlord later on, the husband of plaintiff had sold the suit property to plaintiff vide sale deed Ex. PW1/1. This fact was also brought to the notice of defendant through legal notice Ex. PW1/3 and it has been admitted by defendant in his written statement. Though defendant has crossexamined plaintiff's husband on the aspect of execution of sale deed Ex. PW 1/1, however it is settled law that once the tenanted property stands sold to some other person, the subsequent purchaser steps into the shoes of original landlord by way of attornment and a new landlordtenant relationship is automatically created between buyer and tenant.
23. In a very recent judgment in case titled as Dr. Ambica Prasad Vs Md. Alam and another in Civil Appeal No.3391 of 2015 (arising out of S.L.P.(C) NO.19487 of 2014) which was decided on date Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 08.08.2015 by Hon'ble Supreme Court, it was held that :
"From perusal of the aforesaid Section (section 109 of the Transfer of Property Act), it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment."
24. Hence it is not open for a tenant to dispute the title of subsequent purchaser or to deny the factum of his being tenant under the new landlord, until and unless the original owner/landlord himself comes forward to question the legality of sale deed allegedly executed by him. There is no such dispute between plaintiff and her husband regarding execution of sale deed in favour of plaintiff. Hence defendant cannot question the same and it is established that landlord tenant relationship exists between plaintiff and defendant herein.
25. As regards second requirement of rate of rent is concerned, the contention of plaintiff is that the rate of rent was Rs.6,000/ p.m. Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 when the suit property was let out to defendant on 02.08.2012, by her husband. On the other hand, defendant contends that as he had paid refundable amount of Rs. 5 lacs to plaintiff's husband, he was not required to pay any rent for the suit property.
26. Perusal of evidence shows that there is no documentary proof filed on record by plaintiff to prove the rate of rent. As per plaintiff, though a rent agreement was executed between the parties, however the same was not returned back to her by the defendant after signing the same. Infact even copy of any such rent agreement is not filed on record. Further plaintiff and her husband have admittedly never issued any rent receipt to the defendant. So there is no documentary evidence of rent.
27. However it is pertinent to mention that plaintiff has also examined one Sh. Joginder Singh as PW3, who was the property agent as in the year 2012, having his office in the name of 'M/s Dadwal Properties'. The suit property was let out to defendant through PW3. Defendant as DW1 has admitted in his crossexamination that he had contacted M/s Dadwal Properties for taking the suit property and it was taken through one Sh. Jagga (which appears to be nick name of PW3, Sh. Joginder Singh). Infact, in the entire crossexamination, there is no suggestion given by defendant's counsel to PW3 that he was not the same property dealer who brokered the deal between plaintiff and defendant. Infact DW2 also admits in his crossexamination that suit property was taken on rent through Sh. Joginder Singh. This proves that property was infact let out by plaintiff's husband to defendant through PW3 himself and hence his evidence becomes fully applicable against defendant and has to be read as testimony of an independent witness.
Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16
28. Perusal of testimony of PW3 reflects that in his examinationinchief, he has stated that the monthly rent of suit property was Rs. 6,000/ and the tenancy was created for a period of 11 months excluding electricity and water charges w.e.f. 02.08.2012. Infact even the police verification form Ex. PW3/D1 regarding verification of tenant, was filled by PW3 himself. Nothing material has been elicited from the crossexamination of this witness so as to affect its veracity. Under such circumstances, the testimony of this witness is credible and is binding on defendant.
29. At this stage, I shall deal with the contention of defendant regarding having paid a sum of Rs. 5 lacs to plaintiff's husband as refundable security in lieu of taking the suit property on lease. In order to prove his contention, defendant has filed photo copy of one Agreement which is Mark X. The said document has not been proved as per law since its original has not been filed by either of the parties and its execution is also denied by plaintiff. The defendant claims that the original of the said agreement was lying with plaintiff's husband and he was only provided with the photocopy. However this contention is difficult to believe in view of the fact that since payment of money had been made by defendant and this agreement was also in the nature of a receipt, the original of the same ought to have remained with the defendant himself. It is not plausible that an original document which evidences the payment of money, would remain with the person who has himself received the money rather than with the person who had paid the money. In case the person who is making payment of money does not retain the original document as proof of payment, he will be left with no remedy incase the other party refuses having received any Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 such payment from him.
30. Even otherwise, besides the copy of said agreement, no other evidence whether oral or documentary, has been produced by defendant to prove the payment having been made by him to plaintiff's husband. Though defendant did examine one Sh. Navneet Singh, who is shown as a witness of Agreement Mark X but surprisingly, despite the agreement Mark X bearing his signatures, the affidavit of this witness is completely silent that he had also signed the said agreement as witness. The witness has merely stated that the said deed of Rs. five lakhs between defendant and plaintiff's husband, was signed in his presence. This witness was even not aware when the said agreement Mark X was executed between the parties.
31. Another witness DW2, Sh. Harinder Singh also claims that he was present at the time when agreement Mark X was signed between defendant and plaintiff's husband. However this witness further admits in his crossexamination that he himself did not sign any document as a witness. He also does not know the name of property dealer through whom the defendant had taken the suit property on lease. He also does not remember where he was, on 31.10.2012 when aforesaid agreement was allegedly executed between the parties. His testimony is not credible.
32. Lastly even otherwise, defendant as DW1 has failed to disclose the source of the sum of Rs. 5 lacs which he allegedly paid to plaintiff's husband. There is no document on record to prove that defendant was in possession of Rs. 5 lakhs on 31.10.2012 or any separate receipt qua payment of the said amount to plaintiff's husband. Hence it is not proved that defendant paid any such amount to plaintiff's Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 husband. At the same time, I would add that defendant can institute a separate suit to recover the said amount from plaintiff's husband since this court cannot grant any such relief, being beyond the scope of this suit. Even otherwise the plaintiff is not liable to pay any such amount to defendant which can only be claimed from her husband, if at all.
33. Under such circumstances and especially in view of testimony of PW3, Sh. Joginder Singh, it stands proved that the rate of rent was Rs. 6,000/ p.m. and the tenancy was not covered under Delhi Rent Control Act.
34. As regards the third requirement regarding termination of tenancy is concerned, defendant has admitted having received legal notice Ex. PW 1/5 from plaintiff. Infact defendant has also sent reply Ex. PW1/6 to the aforesaid notice. Plaintiff's husband had also sent two legal notices Ex. PW1/3 and Ex. PW2/1 to the defendant, however they are not valid notice for terminating tenancy since husband of plaintiff cannot terminate the tenancy of defendant after having already sold the suit property to plaintiff, even before sending the said notices. Hence all the three requirements for eviction of tenant stands proved in the present case.
This issue is decided in favour of plaintiff and against the defendant.
35. ISSUE NO.2.
2 Whether the plaintiff is entitled to the relief of damages/mesne profits as prayed for in second para of prayer clause ?
The onus to prove this issue was upon plaintiff.
The plaintiff has claimed recovery of Rs. 30,000/ as Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 damages with future damages @ Rs. 10,000/ p.m. Though plaintiff has not specified the period from which she is claiming arrears of rent, however as per plaint, defendant had paid rent only till June, 2013 and is in arrears of rent since July, 2013. Hence it appears that for the period from July, 2013 onwards, plaintiff is seeking damages/mesne profit for an amount of Rs. 30,000/. It can be seen that defendant has himself admitted in his crossexamination that he had not paid any amount as rent to plaintiff, till today. In view of the same, the claim of plaintiff regarding period of default remains uncontested. Infact if one calculates the rent for the period between July 2013 till January 2014 (before filing of suit as future damages have been claimed separately), the arrears of rent/damages would be in excess of Rs.30,000/ However since plaintiff has herself confined her relief to Rs.30,000/ towards mesne profits/damages, the same is awarded to her. Even otherwise plaintiff can claim arrears of rent only from November 2013 onwards i.e. the month when she became owner and she cannot claim those arrears which were payable to her husband as her husband is not a plaintiff herein.
36. As regards future damages is concerned, plaintiff has not produced any evidence on record to suggest that the rate of rent of a similar property was about Rs. 10,000/ p.m., so she cannot be awarded damages @ Rs.10,000/. However in view of my aforesaid findings since the tenancy stands terminated with the service of legal notice Ex. PW1/5, the continued possession of defendant as tenant/lessee in the suit property was unauthorized, hence plaintiff is entitled to recover an amount in excess of the rent amount for the period during which defendant remained in unauthorized occupation.
Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16
37. In my considered opinion, it would be appropriate if damages are awarded to plaintiff with an increase of 20 % over the rent amount. Hence plaintiff is awarded damages @ Rs. 7,200/ with effect from February 2014 (the date of filing of suit is 15.02.2014) till the recovery of possession from defendant. It is also clarified that incase defendant fails to vacate the suit property even by January 2017, future damages shall continue to increase @ 20 % p.m every three years in a similar manner.
This issue is accordingly disposed off in favour of plaintiff and against defendant.
38. ISSUE No. 33. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in third para of prayer clause ?
The onus to prove this issue was upon plaintiff.
Plaintiff has alleged that defendant intended to part with possession or create third party interest in the suit property and was also planning to raise construction on the first floor of the suit property. However no evidence has been produced by plaintiff to prove the said allegations. Infact, the relief to restrain the defendant from creating any third party interest or parting with possession of suit property becomes infructuous in view of the fact that the relief of possession has already been granted to plaintiff.
39. As regards restraining defendant from making any alteration or addition in the suit property by raising construction in the first floor is concerned, the husband of plaintiff as PW2, admits that he does not know about any construction raised by defendant in the last 1 Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16 and 1/2 years and/or even prior to that. So there is no cause of action in favour of plaintiff qua the above relief.
This issue is decided in favour of defendant and against the plaintiff.
40. Relief.
In view of my above mentioned observations and findings, the suit of plaintiff stands decreed and defendant is directed to hand over possession of suit property bearing no.WZ44/2, Gali No.13, Krishna Park Extension, New Delhi18, within one month from the date of passing of decree. The plaintiff is also awarded a sum of Rs.30,000/ as arrears of rent and future damages are also awarded to her @ Rs. 7,200/ w.e.f from February 2014 till the recovery of possession from defendant. It is also clarified that incase defendant fails to vacate the suit property by January 2017, future damages shall continue to increase @ 20 % p.m every three years in a similar manner. Costs of the suit is also awarded to plaintiff.
Decree sheet shall be prepared only after payment of additional court fees which now becomes payable on the amount decreed in favour of plaintiff, as above.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 24.11.2016 Civil Judge 01 ( West)/Delhi Suit No 610320 Jawinder Kaur vs. Harpreet Singh 16/16