Delhi District Court
Anju Sharma vs Deepak Oberoi on 13 May, 2024
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02
WEST DISTRICT: TIS HAZARI COURTS, DELHI.
Civ DJ no. 419/14, 607671/16 & 7671/16
CNR No. DLWT01-000014-2012
DLWT010000142012
Anju Sharma,
W/o Sh. Rajesh Gandhi,
R/o 602, Victory Cooperative Housing
Society Ltd.
Off. Subhash Road,
Near 1, Flex Building,
Victory Parley (East)
Mumbai-400047.
. . . Plaintiff
Versus
Deepak Oberoi
S/o Late Sh. G.R. Oberoi
R/o 4/19, first floor,
West Patel Nagar,
New Delhi-110008.
. . . Defendant
Date of institution of the case : 06.11.2012
Date on which reserved for judgment : 16.04.2024
Date of pronouncement of Judgment: : 13.05.2024
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 1 of 66
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF
RENT, DAMAGES AND MESNE PROFITS FILED BY THE
PLAINTIFF.
JUDGMENT
1. Vide this judgment, I shall decide the suit for possession, recovery and arrears of rent, damages and mesne profits filed by the plaintiff.
CASE OF THE PLAINTIFF AS PER HIS PLAINT
2. According to the plaint, the case of the plaintiff in nutshell is that the plaintiff is the owner /landlady of the property i.e. 4/19, West Patel Nagar, New Delhi (hereinafter referred to as property in question). It is further averred that the property in question consists of ground floor, first floor and second floor. It is further averred that the defendant is in unauthorised possession of first floor of the property no. 41/19, West Patel Nagar, New Delhi(hereinafter referred to as suit property).
3. It is further averred that the property in question had been leased by the L&DO in favour of Sh. Ram Nath Nijhawan vide registered lease deed dated 29.04.1960, who died on 13.03.1965, and his wife also expired on 09.02.1992.
4. It is further averred by the plaintiff that Late Sh. Ram Nath Nijhawan & Late Smt Basanti Nijhawan had the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 2 of 66 followings legal heirs.
(I) Sh. Yogesh Kumar Nijhawan (son).
(II) Mrs. Suraksha Malik (Daughter).
(III) Mrs. Sanjokta Vij. (Daughter).
(IV)Sh. Ashok Kumar Nijhawan, the other son of Late Sh. Ram Nath Nijhawan & Late Smt Basanti Nijhawan had been missing and not traceable since 1972 and there is no information about him, therefore, he was treated to have expired.
5. It is further averred that after the demise of Sh. R.N Nijhawan and his wife, their son namely, Yogesh Kumar Nijhawan had become the land lord with respect to first floor of property in question (hereinafter referred to as 'rented property').
6. It is further averred that the defendant had entered into lease agreement with late Sh. Yogesh Kumar Nijahwan and he had been paying the rent, of first floor of the property in question to late Sh. Yogesh Kumar Nijhawan.
7. It is further averred that the last payment of rent paid by the defendant to Late Sh. Yogesh Kumar Nijhawan was Rs. 3,000/-per month as per agreement to lease dated 01.11.1994 & 01.10.1996.
8. It is further averred that Sh. Yogesh Kumar Nijhawan, son of the deceased, expired on 17.12.1998.
9. It is further averred that one of the daughters of Late Sh.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 3 of 66Ram Nath Nijhawan & Late Smt Basanti Nijhawan i.e. Smt Sanjokta Vij relinquished her share to her sister, Smt Suraksha Malik vide registered relinquishment deed dated 26.03.2002 and thereafter, Smt Suraksha Mailik alone had become the owner of the property in question & property in question was mutated in the name of Smt Suraksha Malik in the record of L&DO Department. Thereafter, the plaintiff purchased the property in question from Smt Suraksha Malik for a sum of Rs. 10,50,000/- by virtue of registered agreement to sell dated 21.03.2005. It is further averred that Smt Suraksha Malik has executed registered Will dated 21.03.2005, registered Special Power of Attorney dated 21.03.2005, receipts regarding receiving amount of Rs. 10,50,000/- and registered General Power of Attorney dated 21.03.2005. It is further averred that Smt Suraksha Malik had also handed over proprietory possession of the property in question to the plaintiff.
10. It is further averred that the plaintiff through her counsel served upon the defendant a notice dated 27.07.2009 inter alia, indicating the circumstances and manner in which plaintiff became the owner and landlady of the premises in question.
11. It is further averred that the plaintiff had demanded arrears of rent for the last three years within two months from date of receipts of said notice dated 27.07.2009 and the tenancy of defendant was also determined by way of said legal notice dated 27.07.2009. It is further averred that the plaintiff had also demanded 10% enhancement in the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 4 of 66 rent, which was due after every three years under Section 6A of DRC Act. However, defendant failed to pay any rent to the plaintiff.
12. It is further averred that the plaintiff again served a notice dated 31.07.2012 to the defendant claiming that after expiry of three years from earlier notice dated 29.07.2009, defendant became liable to pay rent @ Rs. 3,300/- per month. By way of present notice dated 31.07.2012, plaintiff claimed further enhancement of 10 % over the last payable rent which amounted to Rs. 3,630/- after expiry of one month from the date of receipt of the said notice but the defendant did not pay either any rent or any arrears of rent to the plaintiff. It is further averred that the defendant has also not deposited the rent in any court of law.
13. It is further averred in the plaint that both the legal notices dated 27.07.2009 and 31.07.2012 were duly served upon the defendant and the defendant also gave reply to said both legal notices vide replies dated 10.08.2009 and 18.08.2012.
14. It is further averred that the defendant is no longer protected under the provisions of Delhi Rent Control Act 1988 and is under legal obligation to pay arrears of rent for the last over three years and further rent @ 3630 per month w.e.f 4th September, 2012.
15. It is further averred that after expiry of one month from the date of receipt of notice dated 31.07.2012, Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 5 of 66 defendant became liable to pay enhanced rent @ Rs 3630/- w.e.f 04.09.2012. It is further avered that since rent of the rented premises had gone upto Rs. 3630/- w.e.f 04.09.2012, the tenacy of the defendant had been again determined by giving notice dated 31.07.2012. It is further averred that the defendant has no legal right to continue to remain in possession of the suit property and the defendant should hand over peaceful & vacant possession of the premises to the plaintiff.
16. It is further averred that the defendant is liable to pay occupation charges @ Rs. 3,300/- w.e.f. 01.09.2009 to 03.09.2012, the total of which comes to Rs. 1,18,800/- and @ Rs. 3,630 per month w.e.f 04.09.2012 to a month prior to the filing of the present case which comes to Rs 3,630/-. The total occupation charges works out to Rs. 1,22,430/- for the last three years from the date of filing the present suit. It is further averred that the defendant is also liable to pay interest @ 15 % on the arrears of rent from the date of institution of the suit. It is further averred that the defendant is also liable to pay damages/mesne profits w.e.f 04.10.2012.
CASE OF THE DEFENDANT AS PER HIS WRITTEN STATEMENT:
17. The defendant has contented in the written statement that the suit of the plaintiff is mala fide, devoid of any merit and is without any cause of action.Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 6 of 66
18. It is further contended that the plaintiff has filed the present suit on the basis of false and concocted documents purportedly claiming herself to be owner of the property in question. It is further contended that the plaintiff is a stranger qua the defendant and the defendant does not recognize the plaintiff as the lawful/legal purchaser/owner of the property in question and all the documents filed by the plaintiff to substantiate her claim are false and fabricated.
19. It is further contended that the present suit is barred by Limitation Act since under section 111 (a) of the Transfer of Property Act, 1882, the lease of the defendant was determined by the efflux of time limited in the lease dated 01.10.1996, which was for duration of 11 months. It is further contended that from September, 1997 till December,1998 while the owner of the property late Sh.
Yogesh Kumar Nijhawan was alive, he made no attempts to get the property vacated from the defendant. It is further contended that after his death, his sisters Smt Suraksha Malik and Smt Sanjokta Vij claimed themselves to the owner of the suit property in equal shares, however, neither of the above-said sisters took any steps for taking over the possession of the suit property from the defendant and slept over their proprietary right, which led to the expiry of statutory period of 12 years i.e. the period within which the sisters could legally claim their rights over the suit property in terms of Section 27 of the Limitation Act, read with Article 67 of the Limitation Act, 1963.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 7 of 6620. It is further contended that pursuant of efflux of period of 12 years, the sisters and the plaintiff have lost their rights to claim the possession of suit property from the defendant. It is further averred that Smt Surkasha Malik had filed a suit for partition and rendition of accounts vide suit no. 125 of 1995 against her brother late Sh. Yogesh Kumar Nijhawan and her sister, Smt Sanjokta Vij had vested motive of taking over the suit property since then.
21. It is further contended by the defendant that even pursuant to her brother Late Sh. Yogesh Kumar Nijhawan's death and the property having been devolved on the sisters, neither of them took an steps to seek the possession of the suit property back from the defendant, therefore, the present suit is liable to be dismissed on the ground mentioned above as per Section 111 (a) of Transfer of Property Act, 1882.
22. It is furher contended by the defendant that the entire basis of the present suit is the acquisition of ownership of the suit property by the two legal heirs of late Sh. Yogesh Kumar Nijhawan namely Sh. Surkasha Malik and Smt Sanjokta Vij in 1998 upon his death.
23. It is further contended that the plaintiff is claiming rights over the suit property by virtue of purported agreement to sell, GPA and Will executed by Smt Suraksha Malik in her favour, hence, the plaintiff ought to have impleaded Smt Suraksha Malik as a necessary party in the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 8 of 66 suit. Thus, the present suit is liable to be dismissed for non- joinder of necessary parties. It is further contended that sisters of late Sh. Yogesh Kumar Nijhawan i.e. Smt Suraksha Malik and Smt Sanjotia Vij ought to have been impleaded as proper and necessary parties in the present suit.
24. It is further contented that the present suit is liable to be dismissed as the same has been filed on the basis of forged and fabricated document. It is further contended by the defendant that the plaintiff has stated false facts and has relied upon forged and fabricated document for which proceedings under section 340 of CrPC must be initiated against the plaintiff.
25. It is further contended by the defendant that the falsity of the claim of the plaintiff can be demonstrated by the fact that the letter of Attornment, purportedly executed by Smt Suraksha Malik for the defendant bears the date of 21.03.2003 wherein she has stated to have sold the suit property to the plaintiff vide registered agreement to sell dated 21.03.2003. It is further contended that the said Attornment letter was never received by the defendant. It is further contended that the purported registered agreement to sell filed by the plaintiff bears the date of 21.03.2005 which clearly nullifies the letter of Attornment dated 21.03.2003 and legal notice dated 27.07.2009.
26. It is further contended by the defendant that the purported legal notice dated 27.07.2009 sent by plaintiff's Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 9 of 66 advocate to the defendant that the suit property has been sold to the plaintiff by way of registered agreement to sell, GPA and registered Will dated 21.03.2003 whereas the copy filed along with the plaint of the ownership documents are all dated 21.03.2005. It is further contended that as per plaintiff' own addmission, the plaintiff allegedly purchased the said property on 21.03.2005, hence, it is crystal clear that the letter of Attornment purportedly issued by Smt Suraksha Malik on 21.03.2003 ie. Two years prior to the date, when the plaintiff allegedly purchased the suit property, is a false and fabricated document. It is further contended that the relevant details like date, address, residence etc. mentioned in the letter, prima facie appears to have been inserted at a later stage and the impression of the ink does not seem to be uniformed in the whole letter which shows that the said letter is forged and fabricated.
27. It is further contended that the extent of conspiracy between plaintiff and Smt Suraksha Malik can be understood from the very fact that even the relinquishment deed executed between the sisters, has been signed by the purported, power of Attorney holder of Smt Sanjokta Vij, while no copy of the power of attorney has been filed in the plaint and with relinquishment deed.
28. It is further contended that the reliquishment deed is void and has no legal consequences since no copy of power of attorney has been filed and it is not clear whether the said attorney, Sh. P.K. Mullick had any authority to sign Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 10 of 66 any such relinquishment deed on behalf of Smt Sanjokta Vij at all.
29. It is further contended that the relinquishment deed filed along with the plaint is a forged and fabricated document.
30. It is further contended that the substitution letter purportedly issued by the Land and Development office, annexed with the plaint, is just an unsigned typed copy of letter dated 13.10.2004. The original letter, if any, has not been placed on record by the plaintiff. It is further contended that the abovesaid conduct of the plaintiff is patently illegal and the present suit has been filed at the behest of Smt Suraksha Malik and is clearly a surrogate litigation and therefore, makes it liable to be dismissed on the ground of fraud.
31. It is further contended by the defendant that the defendnat has also claimed title over the suit property by way of separate counter suit, however, the said counter suit was duly returned by the Hon'ble court vide order dated 10.09.2013 as it exceeded the precuniary jurisidiction of this court.
32. It is further contended by the defendnat that the defendant has acquired title over the suit property by way of adverse possession, as per the article 65 of the Limitation Act, 1963.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 11 of 6633. It is further contended by the defendant that the tenancy of the defendant was determined in Sept, 1997 and thereafter, the defendant has been in continuous possession of the suit property, even during the life time of late Sh. Yogesh Kumar Nijhawan in December, 1998 and thereafter, even, when the said sisters acquired their right, title and interest on the suit property. It is further contended that neither Late Sh. Yogesh Kumar Nijhawan nor his sisters took any step to acquire the possession of the suit property back from the defendant upon expiring of 12 years as provided under the lease agreement and thus, this is how the defendant claims his right over the suit property.
34. It is further contended by the defendant that this suit is barred by law of limitation since the defendnat is claiming his tittle over the suit property by way of adverse possession in terms of Section 27 of Limitation Act, 1963 r/w Article 65 of the said Act.
35. It is further contended that the defendant has been in contionuous and uninterrupted possession of the suit property since 1997 and continued to remain in possession of the suit property. It is further contended that Smt Suraksha Malik upon faling to get possession of the suit property from the defendnat and knowing that her claim was barred by limitation Act, 1963 and also that she never had cordial relation with her brother, late Mr. Yogesh Kumar Nijhawan, she has hatched this ploy of setting up a fabricated agreement to sell and has set up a third person i.e. Plaintiff to get the possession of the suit property from Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 12 of 66 the defendant.
36. It is further contended by the defendant that the plaintiff has hugely placed reliance on the fact of documents being registered, however, the effect of registration of documents is merely the acknowledgment of the execution of document before the registrar. It is further contended that since, Smt Suraksha Malik herself never had a proper title in the suit property, her signing the agreement to sell before the registrar would not confer any title on the plaintiff than what Smt Suraksha Malik herself had. It is further contended that only by producing the registered documents, the plaintiff cannot claim that there was a valid transfer of title in her favour with respect to the suit property.
37. It is further contended by the defendant that even, if it is presumed that Smt Suraksha Malik is the real owner of the suit property, in absence of a valid sale deed, the transaction entered into between plaintiff and Smt Suraksha Malik is void.
38. It is further contended that the plaintiff in the present case, is just a name giver and has nothing to do with the suit property.
39. It is further contended that it is the defendnat who has been duly paying all the taxes with respect to the suit property and has been duly fulfulling all the obligation with respect to the suit property. It is further contended that Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 13 of 66 the defendnat has been paying for the maintenance and up keep of the suit property from his own pocket and the said fact of payment of taxes prove that the defendant was in occupation of the suit property, in his own right and the same has matured into a plaint or adverse possession.
40. It is further contended that the defendnat has no privty of contract with the plaintiff, therefore, the plaintiff has no locus to file the present suit.
41. It is further contended that under the last lease executed by late Sh. Yogesh Kumar Nijhawan dated 01.10.1996, the amount of lease provided was Rs. 3,000/- per month and there was no suo moto escalation either provided for in the lease deed nor is the same contemplated under the act mandatorily. It is further contended as per Section 6 (a) of Rent Act, it only provide for an option on the landlord to increase the rent of the lease premises @ 10 % every three years, however, the term used in the act is may be increased, whereby giving an option on the landlord without making the provision mandatory. It is further contended that under the rent act the court ought not to have jurisdiction to try an adjudicate the present suit.
42. It is further contended that the present suit is an abuse of the due process of law and the same has been filed with ulterior motive to any how grab the suit property and resell the same at a higher price for making exhorbitant gain by depriving the defendant of the same.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 14 of 6643. It is further contended that the plaintiff herein has acted in collusion and in conspiracy with Smt Suraksha Malik with a view to deprive the right of the defendant in relation to the suit propery.
44. It is further contended that the defendant has been in- occupation of the first floor of the property in question since year, 1989 pursuant to a lease/licence deed entered into between the defendant and late Sh. Yogesh Kumar Nijhawan, which was renewed from time to time after the period of 11 months. It is further contended that lease/licence deed was executed on 01.10.1996. and the same was valid for the period of 11 months i.e. till 31.08.1997.
45. It is further contended that after the expiry of 11 months from the date of lease/licence deed, the tenaccy automatically came to end by virtue of Clause IV of the said deed in Sept, 1997. It is further contended that even after the determination of the tenancy of the defendant since Sept, 1997, the defendant continued to remain in possession of the suit property without renewal of the lease/licence deed and without paying any rent in lieu of his being in possession of the suit premises and thus, the defendant manage to set up a hostile title against the owner of the suit property during his life-time.
46. It is further contended by the defendant that before the expiry of late Sh. Yogesh Kumar Nijhawan, his sister Smt Suraksha Malik was contesting a case against Late Sh.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 15 of 66Yogesh Kumar Nijhawan by filing a suit for partition of property and rendition of accounts. It is further contended that during the course of the suit, Smt Suraksha Malika was well aware about the possession of the defendant over the suit property. It is further contended that after determination of lease/licence deed dated 01.10.1996, late Sh. Yogesh Kumar Nijhawan despite asking the defendant to vacate the suit property, failed to take any legal action agains the defendant for dispossessing him from the suit propety which amounted to the possession of the defendant becoming adverse to that of Sh. Yogesh Kumar Nijhawan. It is further contended that during the pendency of the abovesaid suit, late Sh. Yogesh kumar Nijhawan expired on 07.12.1998. It is further contended that he was presumably succeeded by his sisters Smt Suraksha Malik and Smt Sanjotia Vij, who were least bothered to take any effective step to approach the defendant for handing over peaceful possession of the suit property to them.
47. It is further contended that the plaintiff sent her first legal notice in the year, 2009 ie after four years from the purported date of purchase of suit property and six years from the date of letter of Attornment. It is further contended that upon receiving response from the defendant's advocate to the said legal notice, the plaintiff failed to take any effective step to take over the possession of the suit property, even after, she had purportedly invested almost Rs. 10.5 lacs in purchasing the suit property. It is further contended that the defendant through his advocate has again sent response to the legal notice Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 16 of 66 dated 21.07.2012 sent by plaintiff' advocate.
48. It is further contended that the sale of the suit property by virtue of registered deed dated 21.03.2005 for total consideration of Rs. 10.5 lacs was never brought to the knowledge of the defendant. It is further contended that the plaintiff has not even bothered to visit or inquire about the suit properrty in which the defendant was and is currently residing and all this creates serious and reasonable doubts even with regard to the plaintiff' existence and seems to be a surrogate litigation being instigated at the behest of Smt Suraksha Malik.
49. It is further contended that the present suit is devoid of any merit and has been instituted by the plaintiff with the intention of harassing, blackmailing and extracting undue sums of money from the defendant at the behest of Smt Suraksha Malik and in order to illegaly grab the premises by hook or by the crook.
50. On merits, all the contents of the plaint has been denied by the defendant as false and frivolous and he reiterated his defence and prayed that the suit of the plaintiff may please be dismissed with costs.
51. The plaintiff has filed replication to the written statement, filed by the defendant and reiterated the contents of his plaint & denied all the objections taken by the defendant, the plaintiff has further submitted that it is immaterial whether the defendant recognize the plaintiff as Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 17 of 66 owner or not as the law recognize the plaintiff as the lawful/legal purchaser/owner of the suit property, having stepped into the shoes of the erstwhile owner from whom she purchased the property for due consideration after the same was mutated in the name of erstwhile owner by the L&DO.
52. It is further averred in the replication that under law the defendant is bound to accept the plaintiff as lawful/legal purchaser/owner and her title is far better than the title of the defendant, who was the tenant and remained the tenant, till the plaintiff determined his tenancy and thereafter, he became an unauthorized occupant and continues the same. It is denied that all the documents filed by the plaintiff are false, fabricated and her claim is liable to be rejected in limine.
53. It is further contended by the plaintiff that after determination of tenancy by efflux of time in the year 1997, defendant became statutory tenant and his tenancy remained on month to month basis till his tenancy was determined legally by the plaintiff, by serving of legal notice dated 27.07.2009, which came to an end on 31.08.2009 and thereafter, he became an unauthorized occupant.
54. It is further contended that Smt Suraksha Malik transferred the property in favour of the plaintiff vide registered documents dated 21.03.2005. Defendant was called upon to pay enhanced rent under Section 6A of Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 18 of 66 DRC Act, 1958 vide letter dated 27.07.2009. Till 04.09.2012, defendant was protected under DRC Act, 1958 and suit for possession could be filed, after provision of DRC Act, 1958 ceased to apply and that is how suit was filed immediately after DRC Act, 1958 ceased to apply.
55. Vide order dated 17.11.2015 following issues were framed.
1. Whether the defendant is entitled to raise the defence of ownership by way of adverse possession? OPD.
2. Whether the suit filed by the plaintiff is based upon false, fabricated and manipulated documents? IPD.
3. Whether the plaintiff has not properly valued the suit for the purpose of court fees and jurisdiction? OPD.
4. Whether the suit filed by the plaintiff is bad for non- joinder of necessary parties? OPD.
5. Whether the suit filed by the plaintiff is barred by Delhi Rent Control Act? OPD.
6. Whether the plaintiff is entitled for recovery of possession of the suit premises as prayed for ? OPP.
7. Whether the plaintiff is entitled for decree for a sum of Rs. 1,22,430/- along with interest @ 15 % p.a. as prayed for ? OPP.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 19 of 668. Whether the plaintiff is entitled for money decree for damages/mesne profits @ Rs. 40,000/- per month w.e.f. 04.09.2012. OPP.
9. Relief.
56. After framing of above-said issues, the parties were directed to adduce evidence.
EVIDENCE ON BEHALF OF PETITIONER
57. In order to prove his case, petitioner has examined following two witnesses:
1. Sh. Rakesh Sharma/PW-1
2. Ms Anju Sharma/petitioner/PW-2.
58. PW-1: Sh. Rakesh Sharma, has brought the original summoned record pertaining to file no. L&DO/PS/III/1443 dated 13.10.2004 addressed to Smt Suraksha Malik for substitution/mutation of her name in respect fo property no. 4/19, West Patel nagar, New Delhi. PW-1 has compared the typed copy of this document from the original record brought by him and the letter for mutation/substitution of Smt Suraksha Malik is Ex PW-1/1 (OSR).
59. PW-1 further deposed that he has also brought the summoned record pertaining to lease of the property no. 4/19, West Patel Nagar, New Delhi. The lease deed dated Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 20 of 66 29.04.1960 is in favour of the Sh. Ram Nath Nijhawan S/o Sh. Jessa Ram .
60. PW-1 has deposed in his cross examination that the application dated 28.07.2004 moved by Smt Suraksha Malik is in record brought by him which pertains to substitution of the lease hold rights in respect of property no. 4/19, West patel nagar, New Delhi in favour of Smt Suraksha Malik.
61. PW-2: Ms Anju Sharma/petitioner has appeared in witness box and has tendered her affidavit as PW-2/A and rely upon following documents
1. Ex PW-2/1 : Site plan.
2. Ex PW-2/2: Relinquishment deed dated 26.03.2002 executed by Smt Sanjokta Vij in favour of Smt Suraksha Malik
3. Ex PW-2/3 (colly): Agreement to Sell, registered GPA, registered SPA & registered Will dated 21.03.2005.
4. Ex PW-2/4: letter of Attornment.
5. Ex PW-2/5: License deed.
6. Ex PW-2/6: Legal notice dated 27.07.2009.
7. Ex PW-2/7: Reply of legal noticed dated 10.08.2010.
8. Ex PW-2/8: legal noticed dated 31.07.2012.
9. Ex PW-2/9: reply of legal notice dated 18.08.2012.
62. PW-2 has deposed in her cross examination that there exists relationship of tenant and landlord between defendant and plaintiff. PW-2 further deposed that no lease deed has been filed before this court which states that Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 21 of 66 plaintiff has entered into lease deed with the defendant. She further deposed that it is not required as the tenant is in illegal possession.
63. PW-2 denied the suggestion that she is not landlady of the suit property or that the defendant is not in authorized occupation. PW-2 further denied that relinquishment deed is not a valid document. PW-2 further deposed that the relinquishment deed has been signed by Mrs. Sanjokta Vij through her attorney Mr. P.K. Mullick (advocate). PW-2 further deposed that The POA in favour of Sh. P.K. Mullick has not been filed by her before the court. PW-2 further deposed that she has relied on the L&DO records by which the ownership of the property was transferred in favour of Mrs. Suraksha Mailik. PW-2 further deposed that she has not conducted any search for the POA in the Sub-registrar records. PW-2 further deposed that the date mentioned in Ex PW-2/4 is 21.03.2003 which is incorrect and is a typographical error & the correct dated is 21.03.2005. PW-2 further deposed that Ex PW-2/6 at para 2, the date mentioned regarding the date of letter of Attornment is not a typographical error. She further deposed that this reference had been given in the legal notice to maintain a link in the document Ex PW-2/4.
64. PW-2 further deposed that the date of agreement to sell is 21.03.2005.
65. PW-2 further deposed that there is no sale deed executed in terms of clause 6 of agreement to sell Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 22 of 66 regarding the suit property. She further deposed that the agreement to sell itself is the documentary proof to show that PW-2 has made payments to Suraksha Malik. PW-2 denied that no possession of the suit property was handed over to her by Smt Surakhsha Malik.
66. PW-2 further deposed that she was residing in Mumbai since 30.09.2006. She is lawyer by profession and practicing in Mumbai. She admitted that name of her father is Sh. Rampal Sharma, who is advocate by profession. She admitted that before marriage, she resided in the same vicinity where the defendant was residing. She further admitted that she never met the defendant before 30.03.2016 while appearing in the court. She further admitted that her deposition in para 2,3 and 6 of affidavit Ex PW-2/A is based upon documentary evidence and she has no personal knowledge for the same. She further admitted that no steps has been taken by her to trace Mr. Ashok Nijhawan, who is missing since 1972. PW-2 further deposed that she had met Ms. Suraksha Malik at registrar office when the documents were executed. She had met Suraksha Malik on 13.05.2005 and she again said, she does not remember the date. She further deposed that she had never met Ms. Surkasha Malik before the date of registration of the document.
67. PW-2 further deposed that the letter of appointment is dated 21.03.2003 but it is typographical error. PW-2 further deposed that the same date 21.03.2003 was mentioned in the legal notice Ex PW-2/6. He, voluntarily, Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 23 of 66 deposed that it was typographical error. PW-2 further deposed that SPA was executed by her wherein the registered documents GPA, agreement to sell and Will was mentioned to be taken on 21.03.2003 again it was typographical error. She further admitted that in SPA dated 19.08.2011, the date of agreement to sell, GPA and Will is mentioned as 21.03.2003.
68. PW-2 admitted that for the first time, in the year,2012 vide legal notice dated 31.07.2012, she mentioned the date of agreement to sell as 2005. PW-2 further deposed that the tenant was in possession when she purchased the property.
69. PW-2 further deposed that she is not aware since when the defendant is in possession of the property. She admitted that the first legal notice was sent in 2009. PW-2 further deposed that she did not take any steps from 2005 to 2009 either to meet the defendant to seek rent or for eviction as she got married in 2006 and was settling in new home. PW-2 admitted that no steps has been taken by her father from 2005 to 2009 either to meet the defendant to seek rent or for eviction. PW-2 further deposed that the second legal notice was sent after expiry of three years period after first legal notice. She denied that she had never visited the suit property. She had visited the suit property in last year also.
70. PW-2 admitted that she had not paid the house tax for the suit property. She, voluntarily, deposed that her father Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 24 of 66 might have paid. She had not filed on record any document to show that her father had paid the house tax. She admitted that she had never paid the electricity and water charges rgarding the suit property. She had not obtained the 'no objection certificate' from electricity, water and house tax department at the time of purchase of the suit property from Ms.. Suraksha Malik.
71. PW-2 admitted that date of registration of agreement to sell is 13.05.2005 and she had met Suraksha Malik on 13.05.2005 for the first time at Registrars' office. She admitted that the date 21.03.2005 is not the date of execution of agreement to sell.
72. PW-2 further deposed that she had never met Ms. Sanjokta Vij. And She has not examined the relinquishment deed executed by Ms. Sanjokta Vij. PW-2 further deposed that she has not in contact with Ms. Suraksha Malik now a days and She was not aware about the last known address of Ms. Suraksha malik and She had not taken any steps to get the water and electricity meter transferred in her name. She had never met Sh. Yogesh Kumar Nihawan personally.
73. In response to specific question PW-2 deposed that the relationship between Sh. Yogesh Kumar Nijhawan (before his death) and the defendant was of landlord and tenant. PW-2 was not aware whether Ms. Suraksha Malik took any steps for eviction of the defendant from the premises. PW-2 also not aware the defendant received various Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 25 of 66 threats from Ms. Suraksha Malik seeking eviction from the premises. PW-2 denied that defendant did not owe rent or damages as claimed by her. PW-2 further deposed that the defendant has not signed any lease deed in her favour. The defendant continues to be a tenant even after purchase of the suit property by her.
74. PW-2 further deposed that she has not presented any lease deed to the defendnat for the suit property. She did not have any knowledge if there was any lease deed between the defendant and Ms. Suraksha Malik. She, Voluntarily, deposed that she was aware about a lease deed execution between Yogesh Nijhawan (brother of Suraksha Malik) and defendant. PW2 was not aware about the date when the lease deed was executed between Yogesh Nijhawan and the defendant. She was also not aware whether the lease deed had expired during the life time of Sh. Yogesh Nijhawan. She also not aware about the steps taken by Yogesh Nijhawan for the eviction of the defendant and whether defendant is residing in the suit premises since 1988. She further deposed that she had not made any payment from her account to Ms. Suraksha Malik for ther purchase of the suit property. She, voluntarily, deposed that my father had made the payment.
EVIDENCE ON BEHALF OF THE DEFENDANT
75. In order to prove his case, defendant has examined following five witnesses:
1. Sh. Rabi Shanker, Data Processing Assistant/DW-1.Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 26 of 66
2. Sh. Kishor Kumar/DW-2
3. Sh. Rakesh Sharma, Superintendent, L& DO office/DW-3
4. Sh. Deepak Oberoi/Defendant/DW-4.
5. Sh. Sushil Kapoor/DW-5
76. DW-1: Sh. Rabi Shanker, Data Processing Assistant, office of Registrar General, Census Commissioner, has brought the certified copy of notification dated 07.09.2000 Ex DW-1/1 and notification dated 26.09.2012 Ex DW-1/2 and notification dated 26.09.2012 Ex PW-1/3.
77. In his cross examination, DW-1 deposed that the defendant has not contacted him regarding the case. DW-1, voluntarily, deposed that he had received summons to appear in this case.
78. DW-2 : Sh. Kishor Kumar from the office of Sub- registrar has brought the death record register pertaining to year, 1990, Karol Bagh Zone, NGR, Rajinder Nagar, SI no. 17. DW-2 further deposed that the death record of Sh. Ashok Kumar Nijhawan, vide registration no 4 dated 29.02.1990 is not in our record and he was filing the revelant extracts of this register Ex DW-2/A (OSR).
79. In his cross examination, DW-1 admitted that he had received a special certificate of death bearing SI no. 195507 along with summons. DW-2 further deposed that as per Ex DW-2/A, the first date of death recorded as Per SI no. 1 is 25.02.1990 and as per the SI no. 2 is Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 27 of 66 18.03.1990.
80. DW-2 further deposed that he does not know if there were death between 25.02.1990 to 18.03.1990 and whether they were recorded or not. DW-2 admitted that the death happened between w.e.f 25.02.1990 to 09.09.1990 but reported later, might not be recorded in Ex DW-2/A. He further deposed that Mark A is a death certificate issued by Karol Bagh Zone.
81. DW-3:Sh. Rakesh Sharma has brought the property record bearing no. 4/19, West Patel Nagar, New Delhi. The record consists of six files, all of which bear the no. 4/19 West Patel Nagar which refers the number of the property Ex DW-3/1 (colly).
82. DW-3 also brought the certified copy of the legal opinion issued by L&DO office in respect of different properties under L&DO office i.e. described under chapter 34, "legal opinion on property matters and lease administration" Ex DW-3/2 (colly). DW-3 further deposed that the relevant extract in respect of property no. 4/19, West Patel Nagar, is described as opinion no. 26 at Page no. 14 of Ex DW-3/2. DW-1 further deposed that there is no court decree or judgment pronounced in respect of this legal opinion in the L&DO record. DW-1 affirmed that Ex PW-1/1 is a part of L&DO records and is the last and latest substitution, is in the name of Smt Suraksha Malik. DW-1 further deposed that there is no application received for the transfer of the property in the name of Ms. Anju Sharma Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 28 of 66 i.e. Permission to sale & Purchase.
83. In his cross examination, DW-3 deposed that he got the charge as Superintendent dealing assistant of L&DO on 01.05.2023 itself. Ex DW-3/P1 is the authority issued to him by the department to bring the record to the court. DW-3 admitted that his name is not mentioned in Ex DW- 3/P1. Ex DW-3/2 is a printed document from website and has not annexed any certificate U/s 65B of Indian Evidence Act. In response to specific question, DW-3 deposed that vide letter dated 29.07.2011 Ex DW-3/P2 the representation seeking conversion of the suit property from lease hold to free hold, of Mr. R. P. Sharma were rejected. DW-3 further deposed that the property in question was never converted to freehold and no conveyance deed in respect of the property in question was issued to Smt Suraksha Malik because said application submitted by R.P. Sharma on behalf of Suraksha Malik was rejected.
84. DW-3 further deposed that substitution in the name of Suraksha Malik was carried out in 2024 but the subsequent application for conversion was rejected in 2011.
85. DW-3 further deposed that the reasons are mentioned in the notesheet dated 12.04.2016 at Page no. 45 and 46 Ex DW-3/P3 for rejection of conversion of the suit property from lease hold to free hold in favour of Suraksha Malik as per the record brought by him.
86. DW-4 : Sh. Deepak Oberoi has tendered his affidavit Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 29 of 66 by way of evidence as DW-4/A.
87. In his cross examination, DW-4 has admitted that he had received legal notice dated 27.07.2009, Ex PW-2/6. He, Voluntarily, deposed that this notice was replied by him but no letter of Attornment was received with Ex PW- 2/6. He further deposed that the reply sent by him to Ex PW-2/6, is the reply dated 10.08.2009 and is Ex PW-2/7. DW-4 admitted that he had received legal notice dated 31.07.2012, Ex PW-2/8 and he, voluntarily, deposed that this notice was replied by him but no letter of Attornment was received with Ex PW-2/8. He further deposed that the reply sent by him to Ex PW-2/8, is the reply dated 18.08.2012 and is Ex PW-2/9.
88. DW-4 further deposed that he has done Masters in Management studies. He can read, write and understand English Language. DW-4 further deposed that he has read the suit documents I.e Ex PW-2/2, Ex PW-2/3 (colly) & Ex PW-2/4. DW-4 further deposed that he is residing on the first floor of the property in question i.e. 4/19, West Patel Nagar. He admitted that the title documents purported by plaintiff is in respect of the entire property bearing no. 4/19, West Patel Nagar are not floorwise. He, voluntarily, deposed that the said documents are not title documents.
89. DW-4 further deposed that he has been residing on the first floor of the property in question since 1988 by virtue of a license deed executed between him and Sh. Yogesh Nijhawan. However, he does not remember the license fee Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 30 of 66 but it could be in the range of between Rs. 1500/- to Rs. 2000/- per month. DW-1 further deposed that he entered in the first floor of the property in question with the permission of Sh. Yogesh Nijhawan and according to him, Sh. Yogesh Nijhwan was the true owner of the property.
90. DW-4 further deposed that Mr. Parmanand paul was residing on the second floor of the property in question. DW-4 admitted that one Dr. B.S. Sirohi was residing on the ground floor of the property and Dr. B.S. Sirohi or his legal heirs have vacated the ground floor of the suit property. DW-4 further deposed that somewhere around 2013 or 2014, the family of Dr. B.S. Sirohi had vacated the ground floor of the property in question. He again deposed that he was not sure if Yogesh Nijhawan or his mother namely Bsanti Nijhawan was the owner of the suit property.
91. DW-4 further deposed that he had not read the copy of judgment dated 21.12.2023 of eviction, passed against Dr. B.S. Sarohi, in favour of the plaintiff Mark A. DW-4 further deposed that Orders Mark A, B & C are the legal documents and he needs time to go through the same and further deposed that these documents do not pertain to first floor in dispute and these documents have no concern with him. He does not know if Dr. B.S. Sirohi had vacated the ground floor due to the orders passed by above said orders.
92. DW-4 further deposed that he had filed property tax for the suit property and he had filed the property tax to the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 31 of 66 assessment years2006-2007 and 2009-2010,on record Mark D. DW-4 admitted that the name of the owner of the suit property is Basanti Devi in the document Mark D. He, Voluntarily, deposed that when he filed this property tax, Smt Basanti Devi had already expired and her name was on record in the MCD, and he was not permitted to change her name. DW-4 further deposed that this property tax was filed on receipt of notice from the MCD. He admitted that he has not placed on record any notice received from the MCD for deposit of property tax.
93. DW-4 further deposed that the contents of para no. 5 of his Written statement is correct. He admitted that the first notice sent by plaintiff to him is dated 27.07.2009. DW-5 had seen the documents relied by the plaintiff claiming her title . He, Voluntarily, deposed that these are forged documents. DW-4 further deposed that he first entered the premises in 1988 with the permission of Mr. Y.K. Nijhawan. Mr. Y.K. Nijhawan was the owner of the property when he entered the suit property. He further deposed that he had good relations with Mr. Y.K. Nijhawan. He further deposed that Mr. Y.K. Nijhawan and he had license deed for 11 months. DW-4 further deposed that he told the owner Mr. Y.K. Nijhawan that he will vacate the property after 11 months when he entered the property. He voluntarily deposed that this was the term of license deed. When he entered the premises for the first time.
94. DW-5 further deposed that when he entered the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 32 of 66 premises for the first time, he was engaged in the business of manufacturing. He further deposed that he had paid Rs. 1500/- per month to Mr. Y.K. Nijhawan. He further deposed that it was license fee and not rent. DW-4 further deposed that this amount was paid sometime in cash and sometime by way of cheque. The last money paid by him to Mr. YK Nijhawan was in September, 1997 which was Rs. 3000/-. He further deposed that until September, 1997, he had cordial relations with Mr. YK Nijhawan. DW-4 further deposed that his relations were not cordial with Mr. YK Nijhawan before he passed away in December, 1998. He voluntarily deposed that the relations were not cordial since October, 1997. He further deposed that he knows the meaning of term "adverse possession". He admitted that he received a notice dated 27.07.2009 to evict the property before lapse of 12 years for me claiming 'adverse possession'
95. DW-4 further deposed that he has not given any objections before L&DO raising objections for issuance of conveyance deed in favour of Suraksha Malik. He further deposed that he had seen the L&DO documents. He further deposed that the statement made by me in para 7 of his affidavit in evidence is based on the L&DO records which are already exhibited on record.
96. DW-5: Sh. Sushil Kapoor has tendered his affidavit in evidence as Ex. DW-5/A.
97. In his cross examination, DW-5 has admitted that his Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 33 of 66 age mentioned in the affidavit Ex DW-5/A is incorrect. DW-5 further deposed that he had read the affidavit before signing it. He does not remember when he had perused the suit. DW-5 further deposed that he was the tenant of Flat no 4/20, West Patel Nagar and Mr Harish Chander Batra was the landlord and owner of the property of which, he was the tenant and he moved in 4/20, West Patel Nagar in the year 1998. He again said that as far as he remembers, he stayed in West Patel Nagar for 9-10 years. DW-5 further deposed that he has not deposed as a witness in any of the cases ever. DW-5 further deposed that the suit property 4/19 comprises of ground, first and second floor. DW-5 further deposed that one Mr Nijhavan was the owner of the property. DW-5 did not know the full name of Mr. Nijhavan. DW-5 further deposed that he does not know who was residing on the ground floor of the property as well as on the second floor.
98. DW-5 further deposed that the first floor was occupied by Sh. Deepak Oberio. DW-5 further deposed that he does not know, if the defendant was tenant of the property and the relations between the defendant and Mr. Nijhavan were cordial. DW-5 denied the suggestion that the relations between defendant and Mr Nijhavan were cordial all throughout. DW-5 Voluntarily, deposed that once the relation between them were sour. He cannot tell the date, when the relation became sour. DW-5 further deposed that he is not the friends of defendant, however, they were acquainted with each other. DW-5 further deposed that he has come to depose at the behest of the defendant. He does Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 34 of 66 not remember the date, month and year when the defendant requested him to depose in the present suit. DW-5 further deposed that he was not the friend of Mr Nijhavan, the owner of the property. Mr Nijhavan did not tell any name of a lawyer for purpose of filing suit for Eviction. DW-5 admitted that he had stated in his affidavit that his memory post-covid-19 pandemic has reduced and the same also because of his age factor. His memory is not as sharp as it was pre-covid-19 phase. He replied to court question that he started living in 4/20, West patel Nagar in the year, 1998.
FINAL ARGUMENTS
99. I have heard ld. Counsel for the plaintiff and ld. counsel for defendant and have perused the entire record including pleadings, documents, testimony of the witnesses examined in the court from the both sides and have also perused judgments filed on behalf of both parties.
100. Contentions on behalf of the plaintiff.
1. It is argued by ld counsel for the plaintiff that the property in question was leased to late Sh. Ram Nijhawan by L&DO vide lease deed 29.04.1960 and Sh. Ram Nijhawan expired on 13.03.1965 and thereafter, his wife Smt Basanti Nijhawan also expired on 09.02.1992.
2. It is further argued by ld counsel for the plaintiff that Late Sh. Ram Nijhawan and Smt Basanti Nijhawan had Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 35 of 66 died and leaving behind their legal heirs, namely, Sh. Yogesh Kumar Nijhawan (son), Mrs. Surkasha Malik (daughter), Mrs Sanjokita Vij (daughter) and Sh. Ashok Kumar Nijhawan (son). It is further argued that Sh. Ashok Kumar Nijhawan had been missing since 1972, therefore, he was deemed expired. He further argued that the Sh Ashok Kumar Nijhawan was unmarried and issueless. He further argued that Sh. Yogesh Kumar Nijhawan expired on 17.12.1998 and hence, their remains only two legal heirs alive i.e. Mrs. Surkasha Malik (daughter) and Mrs Sanjokita Vij (daughter)
3. It is further argued by ld counsel for the plaintiff that Mrs Sanjokita Vij had executed relinquishment deed dated 26.03.2002 in favour of Mrs. Surkasha Malik and after execution of relinquishment deed, Mrs. Surkasha Malik had become the sole owner of the property in question.
4. It is further argued by ld counsel for the plaintiff that Smt Surkasha Malik has sold the property in question to the petitioner by way of registered agreement to sell dated 21.03.2005. It is further argued that by way of abovesaid registered agreement to sell, the plaintiff has become the absolute owner of the property in question. It is further argued that the property in question consists of ground floor, first floor and second floor and the entire property has been sold to the plaintiff by Smt Suraksha Malik for a consideration of Rs. 10,50,000/-. It is further argued that Smt Surkasha Malik has also executed a registered Will dated 21.03.2005, registered special Power of attorney Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 36 of 66 dated 21.03.2005, receipt admitting payment of Rs. 10,39500/- another receipt admitting payment of Rs. 10,500/- and GPA dated 21.03.2005.
5. It is further argued by ld counsel for the plaintiff that Smt Suraksha Malik had also handed over the proprietary possession in favour of the plaintiff. So, plaintiff is the owner & landlady of the suit property and has proprietary possession of the suit property.
6. It is further argued by ld counsel for the plaintiff that Sh. Yogesh Kumar Nijhawan had rented the first floor of the property in question to the defendant and defendant had been paying rent to Sh. Yogesh Kumar Nijhawan and the last rent was paid by the defendant to Sh. Yogesh Kumar Nijhawan was Rs. 3000/- per month.
7. It is further argued by ld counsel for the plaintiff that the plaintiff has sent notice dated 27.07.2009 through her counsel to the defendant and demanded rent for the last three years and the said notice was duly received by the defendant, who sent reply dated 10.08.2009 to the plaintiff. It is further argued that by way of said legal notice, the tendency of the defendant was terminated and rent was also enhanced by 10 %, as per provision of Section 6A of DRC Act.
8. It is further argued by ld counsel for the plaintiff that the plaintiff again sent legal notice dated 31.07.2012 to the defendant and claimed further enhancement of rent @ 10% Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 37 of 66 and the rent became 3630/- per month, after expiry of one month, from the date of receipt of said notice. It is further argued that by way of legal notice, the defendant has become liable to pay rent @ 3630/- per month. It is further argued that the said notice was duly received by the defendant and the defendant also sent reply of the said legal notice. It is further argued that the defendant is liable to pay rent Rs 3630/- per month which w.e.f 04 sept, 2012 and the tenancy of the defendant was again terminated by the above said legal notice.
9. It is further argued by ld counsel for the plaintiff that the defendant has no right to remain in possession of the suit premises. It is further argued that the defendant is liable to pay occupation charges @ Rs. 3300/- per month w.e.f 01.09.2009 to 03.09.2012 and @ Rs. 3630/- per month from 04.09.2012 till one month before filing the present suit.
10. It is further argued by ld counsel for the plaintiff that from 04.10.2012, the defendant is liable to pay damages/mesne profits @ Rs 40,000/- per month. It is further argued that the ground floor of the property in question was given on rent to Sh. B.S. Sarohi and second floor was given on rent to Sh. Parmanand. It is further argued that eviction orders against both tenants were passed by the court in the cases, filed by the plaintiff and the decisions of the said eviction cases have been upheld up to the level of Hon'ble Supreme court of India.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 38 of 6611. It is further argued by ld counsel for the plaintiff that he has put copies of orders passed by Hon'ble High Court of Delhi and by Hon'ble Supreme court of India relating to the eviction order of Dr. B.S. Sarohi, Mark A, B & C to the defendant but the defendant did not give any proper reply to the said order.
12. It is further argued by ld counsel for the plaintiff that the case of earlier tenant Sh. B.S. Sarohi is identical with the case of the defendant. He further argued that Sh. B.S. Sarohi had also disputed the ownership of the plaintiff but the court did not accept his defence and had passed eviction order against him.
13. It is further argued by ld counsel for the plaintiff that during cross examination, the defendant/DW-1 has replied that he is not sure, if Sh. Yogesh Nijhawan or his mother was the owner of the suit property. He further argued that the defendant has not denied the abovesaid facts.
14. It is further argued by ld counsel for the plaintiff that the erstwhile owner Smt Surkasha Malik has sent letter of Attornment Ex PW-2/4 to the defendant. He further argued that the defendant had disputed the said letter in his cross examination but has not disputed the said letter in his written statement.
15. It is further argued by ld counsel for the plaintiff that the defendant has admitted that Sh. Y.K. Nijhawan was the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 39 of 66 owner of the property and he entered the suit property with the permission of Sh. Y.K. Nijhawan and the said property was given to him for 11 months. He further argued that the said property was given on rent to the defendant but the defendant is claiming that it was given on licence and not on rent. He further argued that the document executed between defendant and Sh Y.K Nijhawan clearly proves that the property was given on rent basis and not as a licensee. He further argued merely by mentioning license word in the agreement does not take it from the purview of lease deed as the possession was given to the defendant and the defendant was having exclusive possession of the property in question.
16. It is further argued by ld counsel for the plaintiff that the defendant has not taken the defence of adverse possession in the replies given by him. He further argued that the defendant is in permissive possession. So, he cannot take the defence of adverse possession.
101. Contentions on behalf of the defendant.
1. It is argued by ld counsel for the defendant that the plaintiff is neither owner of the suit property nor land lady of the defendant. He further argued that the plaintiff has not proved that she is the owner of the suit property and the documents relied upon by the plaintiff do not give right, title and interest in the suit property to the plaintiff. He further argued that the plaintiff has not examined any witness to prove the documents relied by the plaintiff. He Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 40 of 66 further argued that the plaintiff has not even examined Smt Surkasha Malik for proving that she has authroized plaintiff to recover rent or obtain possession of the suit property from the defendant.
2. It is further argued by ld counsel for the defendant that the defendant was only licensee of Sh. Y.K. Nijhawan, as per licence deed Ex PW-2/5. He further argued that there was no landlord, tenant relationship between Sh. Y.K. Nijhawan and defendant. He further argued that he has taken the property as a licensee for 11 months vide license deed dated 01.10.1996. He further argued that from Sept, 1997 till December, 1998, Late Sh. Y.K. Nijhawan was alive but he did not make any attempt to get the property vacated from the defendant and after his death, his both sisters also did not take any steps for taking over the possession of the suit property from him. He further argued that the right of legal heirs of Sh. Y.K. Nijhawan to take possession of suit property from him has barred by the provision of Section 27 of Limitation Act due to lapse of statutory period of 12 years.
3. It is further argued by ld counsel for the defendant that Sh. P.K. Malik was not having any authority to execute relinquishment deed in favour of Smt Surkasha Malik on behalf of Smt Sanjokta Vij. He further argued that the GPA executed by Smt Sanjokta Vij in favour of Sh. P.K. Malik has not been filed by the plaintiff.
4. It is further argued by ld counsel for the defendant that Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 41 of 66 without having order from any order declaring Sh. Ashok Kumar as dead, Sh. Ashok Kumar cannot be presumed to be dead. He further argued that in the L&DO office record, it is mentioned that Sh. Ashok Kumar is missing from year, 1973 whereas in the relinquishment deed, it is mentioned that Sh. Ashok Jumar is missing from year, 1972.
5. It is further argued by ld counsel for the defendant that the eviction suit filed against the tenant Dr. B.S. Sarohi was a collusive suit.
6. It is further argued by ld counsel for the defendant that the Attornment letter dated 21.03.2003 alleged to be sent by Smt Surkasha Malik is a forged and fabricated document and the said letter was never received by the defendant. He further argued that the defendant has not examined Smt Surkasha Malik to prove the said Attornment letter. He further argued that the rate of rent mentioned in the letter is also different i.e 3993 per month. He further argument that the said Attornment letter cannot be relied upon by the plaintiff as the said letter has not been proved by the plaintiff.
7. It is further argued by ld counsel for the defendant that there is contradiction in the year of missing of Sh. Ashok Kumar Nijhawan in the various documents. He further argued that Sh. Ashok Kumar Nijhawan cannot presume to be dead until court order has been obtained to this respect.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 42 of 668. It is further argued by ld counsel for the defendant that as per Section 91 & 92 of Indian Evidence Act, no oral evidence can be given which is contrary to the documents. He further argued that the document executed between the defendant and Late Sh. Y.K. Nijhawan is a licence deed and not a lease deed.
Issue wise findings Findings on Issue no. 1
1. Whether the defendant is entitled to raise the defence of ownership by way of adverse possession. OPD.
102. The onus to prove issue no. 1 is upon the defendant. In order to prove the said issue, the defendant has examined five witnesses.
103. DW4/defendant has deposed in court that he entered into the suit property in 1988 with the permission of Late Sh. Y.K. Nijhawan and Late Sh. Y.K. Nijhawan was the owner of the suit property. The defendant further deposed that he and Late Sh. Y.K. Nijahawan had entered into license deed for 11 months & he had told to Late Sh. Y.K. Nijhawan that he would vacate the property after 11 months. Defendant/DW4 further deposed that the last money paid by him to Late Sh. Y.K. Nijhawan was Rs. 3,000/- and it was paid in September, 1997.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 43 of 66104. The defendant/DW-4 further deposed that he had good relations with Late Sh. Y.K. Nijahawan till Sept, 1997 and thereafter since 1997 their relations were not cordial.
105. The defendant has deposed that his tenancy was determined in Sept, 1997 but despite that he has been in continuous possession of suit property, even during the life- time of Sh. Yogesh Kumar Nijhawan and no steps has been taken either by Late Sh. Yogesh Kumar Nijhawan or by his both sisters to take possession of the suit property from him. Defendant has deposed that the last payment made by him is Rs. 3,000/- p.m and it was made in Sept. 1997.
106. Defendant/DW-4 further deposed that after determination of license deed dated 01.10.1995, he set up his own title as owner over the said licensed property by virtue of his hostile possession expressly denying the title of Late Sh. Yogesh Kumar Nijhawan over the suit property. As per defendant he has been in adverse possession of suit property since October, 1997 and 12 years have been passed since October, 1997 but no body has taken possession from him, so he has become owner of suit property by way of adverse possession and the present suit is barred by law of Limitation in view of Section 27 Limitation Act read with Article 65 of the Limitation Act .
107. It is also contended on behalf of defendant that he was licensee of late Sh. Y.K. Nijhawan and not his tenant & License Deed was entered between them. This defense of defendant is not tenable. In his written statement, the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 44 of 66 defendant has claimed himself as tenant and also stated that his tenancy had been determined in Sept, 1997.
108. In the replies of legal notice, dated 10.08.2009 Ex PW-2/7, the defendant has replied that he has been residing at the said premises since 1989 i.e. for the last 20 years and has always duly paid the rent to the landlord and has been in peaceful possession of the said premises and he had always cordial relations with the landlord in the past years.
109. In the reply of legal notice, dated 18.08.2012 Ex PW-2/9, the defendant has replied that he has been residing at the said premises for the past 23 years since 22.04.1989 by virtue of lease deed entered into between him and Late Sh. Y.K. Nijhawan and he was given first floor on rent and he has been duly paying the required monthly rent to the landlord. The defendant has admitted sending of above said replies dated 10.08.2009 & 18.08.2012. The above said replies establish that there was landlord tenant relationship between Sh. Y.K. Nijhawan and defendant and the property was taken on rent. Merely using the terminology of license in the agreement entered between the defendant and Late Sh. Y.K. Nijhawan does not change the status of the defendant. The defendant has also used word "lease" in his written statement. The defendant has contended in his Written statement that the lease of the defendant was determined by efflux of time limited in the lease dated 01.10.1995. It is admitted case of the defendant that he is in exclusive possession of suit property & has full control over the suit property. Mere use of terms License Deed, Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 45 of 66 Licensor and licensee in agreement executed between defendant & Sh. Y.K. Nijhawan on 1.10.1995, does not make any difference regarding status of defendant. Even if the defendant is presumed to be licensee, the owner/landlord/landlady of the defendant has the right to get the possession of the property back from the defendant. Reliance is placed upon the judgment titled as C.M. Beena & Ors Vs P.N. Ramachandra Rao Civil Appeal no. 1548 of 1999 decided on 22.03.2004 in which Hon'ble Supreme Court of India has held as follows:
"8. The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the Rent Control Legislation, 'Lease' is defined in Section 105 of the Transfer of Property Act 1882 while licence' is defined in Section 52 of the Indian Easements Act 1882. Generally speaking the difference between a 'lease' and 'licence' is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (See Associated Hotels of India Ltd. v. R.N. Kapoor, MANU/SC/0168/1959: [1960]1SCR368). The decided cases on the point are legion. For our purpose it would suffice to refer to a recent decision of this Court in Corporation of Calicut v. K. Sreenivasan, MANU/SC/0420/2002: [2002]3SCR783.
9. A few principles are well settled. User of the terms like 'lease' or licence', 'lessor' or 'licensor', 'rent' or 'licence fee' are not by themselves decisive of the nature of the right created by the document. An effort should be Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 46 of 66 made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intension."
110. It is admitted by the defendant that he entered into suit property with the permission of Sh. Y.K. Nijhawan. The defendant has contended that his tenancy was determined in September, 1997 thereafter since October, 1997 he has been in adverse possession. It is settled law that after determination of tenancy by efflux of time or by way of determination by the landlord, the status of the tenant is of statutory tenant in case, Delhi Rent Control Act applies and in other case, he is tenant at sufferance. Merely, due to expiry of term of licence or lease, the tenant cannot claim adverse possession, unless he has asserted hostile title as well as done some overt act to assert his claim. Mere continuance of unauthorized possession by licensee after termination of license for more than 12 years did not enable a licensee to claim title by adverse possession. The defendant has not led any evidence to prove that on such date, he did overt act to assert his hostile title over the suit property. No letter/notice has ever been given by the defendant to any of the legal heirs of Late Sh. Y.K. Nijhawan to claim adverse possession. No document has been placed on record by the defendant that proves assertion of hostile title by the defendant at any time. Rather, the defendant has not claimed right of adverse possession in the replies of legal notices sent by him to Ld counsel of plaintiff.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 47 of 66111. It is settled law that the person, who is in permissive possession cannot claim plea of adverse possession against the person with whose permission he has come into possession. Reliance is placed upon the judgment titled Brij Narayan Shukla (D) Through Lrs Vs Sudesh Kumar Alias Suresh Kumar (D) through LRs & Ors. Crl. Appeal no. 7502 of 2012 decided on 03.01.2024.
"9.4 The suit of the year 1944 was for the arrears of rent and not relating to any dispute of possession. The defendant respondents were tenants and therefore their possession was permissive as against the then landlords. There was no question of them claiming any adverse possession from 1944."
"9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new."
112. In a judgment titled as SMT. URMILA DEVI & ANR. versus LAXMAN SINGH & ANR, RFA(OS)No.85/2014 decided on 20.03.2015, Hon'ble High Court of Delhi has held as follows:
"66. It is well settled that continuous occupation of a licensee (even after its termination) does not enable him to claim title by adverse possession. In this regard, in a ivision bench Pronouncement report at MANU/DE/0546/2005, Shahabuddin Vs State of U.P., it was held thus:
"26. A person claiming title by adverse possession has to show that he has asserted hostile title as well as done some overt act to assert such claim. Even mere continuance of unauthorized possession by licensee after termination of license for more than 12 years does not enable a licensee to claim title by adverse possession. Ouster of the real owner Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 48 of 66 does not mean actual driving out of the co- sharers from the property. In any case, it will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession.
"28.A claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the real owner, the burden is always on the person ho asserts such a claim to plead and prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such a case the court must have regard to the animus of the person doing such.
"59. Person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. In this behalf, reference may be made to the judgment report at AIR 1996 SC 869 entitled Dr. Mahesh Chand Sharma V. Smt Raj Kumari Sharma."
113. In the reply of legal notice, dated 10.08.2009 Ex PW- 2/7, the defendant has replied that he has been residing at the said premises since 1989 i.e for the last 20 years and has always duly paid the rent to the landlord and has been in peaceful possession of the said premises and he had always cordial relations with the landlord in the past years.
114. In reply of legal notice, dated 18.08.2012 Ex PW-2/9, the defendant has replied that he has been residing at the said premises for the past 23 years since 22.04.1989 by virtue of lease deed entered into between him and Late Sh. Y.K. Nijhawan and he was given first floor on rent and he has been duly paying the required monthly rent to the landlord.
115. The both replies sent on behalf of the defendant Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 49 of 66 proves that the defendant was in permissive possession of suit property and he has the possession of suit property with the permission of Late Sh. Y.K. Nijhawan and of other legal heirs of Late Sh. Y.K.Nijhawan. During cross examination of PW-2, Ld counsel for defendant has also put suggestion to PW-2 that the defendant is not in unauthorized possession of suit property.
116. The defendant has also tried to prove that in Oct/Nov. 1997, there was verbal tiff between the defendant and Sh. Y.K. Nijhawan & the defendant left the house keys on the table and went away. Thereafter, the defendant re-occupied the suit premises. The defendant has attempted to prove this fact by examining DW-5 in court.
117. During cross-examination, DW-5 deposed that he was tenant of 4/20, West Patel Nagar and he moved in above said house in year 1998. On Court question also, he replied that he started living in above said house in the year 1998.
118. During arguments, ld. counsel for defendant submits that the mental condition of DW5 was not good at the time of his deposition & his testimony should be discarded.
119. This arguments has been made by ld. counsel for defendant as DW-5 has failed to prove the case of defendant. In examination-in-chief, DW5 deposed that the verbal tiff between defendant and late Sh. Y.K. Nijhawan took place in his presence in Oct./Nov. 1997. DW-5 Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 50 of 66 deposed that he resided next to suit property & had known the defendant through acquaintance being his neighbour. But in cross-examination DW5 deposed that he started residing in house no. 4/20, West Patel Nagar in year 1998. So when he was not residing in house no. 4/20, West Patel Nagar in year 1997, there is no question of acquaintance & neighbour of late Sh. Y.K. Nijhawan. This deposition of DW5 proves that No such verbal tiff occurred between defendant and Sh. Y.K. Nijhawan in Oct/Nov. 1997 in the presence of DW-5. Moreover the defendant has not taken the defense of verbal tiff between him and late Sh. Y.K. Nijhawan in his written statement as well as in both replies of legal notices sent on his behalf. The abovesaid defence has been taken by the defendant after thought in order to support his plea of adverse possession. Moreover, it is settled law that evidence beyond pleadings cannot be read in evidence. Even if, this court discard the testimony of DW5, there is no evidence on record to prove that there were strained relations between defendant and Late Sh. Y.K. Nijhawan and the possession of defendant had become hostile to the title of Late Sh. Y.K. Nijhawan. Reliance is placed upon judgment titled Bhagwati Prasad Vs Chandramaul Civil Appeal No. 5 964 & 965 of 1964 decided on 19.10.1965.
"The same principle was laid down by this Court is Sheodhar Rai & Others v. Suraj Prasad Singh & Others MANU/SC/0058/1950, AIR1954SC758. In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only made in the written statement, but which is wholly Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 51 of 66 inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings."
120. It is settled law that plea of adverse possession can be taken against the true owner of property. The defendant is not admitting plaintiff as owner of property, so defense of adverse possession to the defendant, is not available against plaintiff. In view of the abovesaid discussions, it is held that defendant has failed to prove issue no. 1. Accordingly, issue no. 1 is decided against the defendant and in favour of the plaintiff.
Finding on Issue no. 2 Issue no 2: Whether the suit filed by the plaintiff is based upon false, fabricated and manipulated documents? OPD.
121. Burden to prove this issue no 2 is upon the defendant. But the defendant has not led any evidence to prove that the documents relied upon by the plaintiff are false, fabricated and manipulated. Agreement to sell, Will, GPA & SPA relied upon by the plaintiff are registered documents, so presumption of truth of the proceedings Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 52 of 66 conducted before the Sub-Registrar are also attached with the above documents. Accordingly, issue no. 2 is decided against the defendant and in favour of the plaintiff.
Findings on issue no. 3.
Issue No. 3:Whether the plaintiff has not properly valued the suit for the purpose of court fees and jurisdiction? OPD.
122. Burden to prove issue no 3 is upon the defendant. This issue is not pressed during arguments by the ld counsel for the defendant. Ld. counsel for the defendant has not made any arguments as to what is the correct value of the property for the purpose of court fees and jurisdiction & no evidence has been led on behalf of the defendant to prove this issue. Accordingly, issue no. 3 is decided against the defendant and in favour of the plaintiff.
Findings on Issue No. 4Issue no 4: Whether the suit filed by the plaintiff is bad for non-joinder of necessary parties? OPD.
123. Burden to prove issue no 4 is upon the defendant. The plaintiff has filed the present suit in her independent capacity being owner/landlady of suit property. If the plaintiff succeeds in proving that she is owner or landlady of suit property, she is entitled to recover possession of suit property from the defendant. There is no legal requirement Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 53 of 66 for the plaintiff to make Smt. Suraksha Malik and Smt. Sanjokta Vij as parties in the present suit. Smt. Suraksha Malik and Smt. Sanjokta are not necessary parties in the present suit as the plaintiff has alleged that Smt Sanjokta Vij has relinquished her share in favour of Smt Suraksha Malik and thereafter, Smt Suraksha Malik had become the sole owner of the suit property and thereafter, Smt Suraksha Malik sold the suit property to the plaintiff. In view of the abovesaid discussions issue no. 4 is decided against the defendant and in favour of the plaintiff.
Findings on issues no. 6, 7 & 8.
6. Whether the plaintiff is entitled for recovery of possession of the suit premises as prayed for ? OPP.
7. Whether the plaintiff is entitled for decree for a sum of Rs. 1,22,430/- alongwith interest @ 15 % p.a. as prayed for ? OPP.
8. Whether the plaintiff is entitled for money decree for damages/mesne profits @ Rs. 40,000/- per month w.e.f. 04.09.2012. OPP.
124. The onus to prove issue no. 6, 7 & 8 is upon the plaintiff and all the abovesaid three issues are taken together being interconnected.
125. Plaintiff/PW-2 has deposed that the property in question was leased to late Sh. Ram Nijhawan by L&DO Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 54 of 66 vide lease deed 29.04.1960 and Sh. Ram Nijhawan expired on 13.03.1965 and thereafter, his wife Smt Basanti Nijhawan also expired on 09.02.1992.
126. Plaintiff/PW-2 has deposed that Sh. Ram Nath Nijhawan and Smt Basanti Nijhawan had two sons and two daughters, namely, Sh. Yogesh Kumar Nijhawan and Sh. Ashok Kumar Nijhawan, sons and Mrs. Suraksha Malik and Mrs. Sanjokta Vij, daughters. PW-2 further deposed that Sh. Ashok Kumar Nijhawan had been missing and not traceable since 1972 and there is no information about him and therefore was treated to have expired. PW-2 further deposed that Sh. Yogesh Kumar Nijhawan expired on 17.12.1998 and was unmarried.
127. Plaintiff/PW-2 has further deposed that Mrs Sanjokita Vij had executed relinquishment deed dated 26.03.2002 in favour of Mrs. Surkasha Malik and after execution of relinquishment deed, Mrs. Surkasha Malik had become the sole owner of the property in question.
128. Plaintiff/PW-2 has further deposed that Smt Surkasha Malik has sold the property in question to the plaintiff by way of registered agreement to sell dated 21.03.2005. She further deposed that the property in question consists of ground floor, first floor and second floor and the entire property has been sold to the plaintiff by Smt Suraksha Malik for a consideration of Rs. 10,50,000/-. She further deposed that Smt Surkasha Malik has also executed a registered Will dated 21.03.2005, Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 55 of 66 registered special Power of attorney dated 21.03.2005, receipt admitting payment of Rs. 10,39500/- another receipt admitting payment of Rs. 10,500/- and GPA dated 21.03.2005. She further deposed that as such, she became the owner/landlady of the property in question.
129. Plaintiff/PW-2 has deposed that Smt Suraksha Malik had also handed over the proprietary possession of the property in question to her.
130. It is the case of the plaintiff that the property in question has been sold to her by Smt Suraksha Malik, who are sole owner of the property in question. Plaintiff has relied upon agreement to sell dated 21.03.2005 and registered Will dated 21.05.2005 and Attornment letter dated 21.03.2003.
131. It is admitted case of the plaintiff that no sale deed/conveyance deed has been executed in favour of the plaintiff by Smt Suraksha Malik and her name has not been substituted in the record of L&DO Department. The plaintiff has not filed any suit for specific performance against Smt Suraksha Malik for the performance of agreement to sell till date.
132. Ld counsel for the plaintiff has relied upon judgments passed against the other tenant of the property in question, namely, Sh. B.S. Sarohi, & argued that the eviction order against the other tenant has been upheld up to the level of Hon'ble Supreme Court of India.
Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 56 of 66133. I have perused the said judgments, those judgments are not between plaintiff and defendant. The defendant is not the party in the said case. Therefore, the finding in the said case has no binding force upon the defendant. The said judgments are not relevant to the present suit as per Section 43 of Indian Evidence Act.
134. The plaintiff has relied upon Judgment titled "Rajindra Properties (Delhi) Pvt. Ltd & Ors. Vs Ashok Bansal & Ors, Manu /DE/5302/2023 passed by Hon'ble High Court of Delhi. In the said judgment the Hon'ble High Court of Delhi has observed as follows:
"20. This Court finds that the original landlord, M/s Ved Prakash Aggarwal & Sons (HUF) who had put appellant no.1 in possession of the suit property, had attorned the appellants' tenancy and declared that respondents No. 1 to 5 had become landlords for all practical purposes in respect of the rented accommodation, specifically detailed in the Lease Deed i.e. IInd floor and mezzanine of the property по.М-116, (М-116A) Connaught Place, New Delhi-01.
21. Further, it is also to be noted that appellant no 1 had various suits in the of Senior Civil Judge, Delhi being Suit Nos.
664/2003 72/2004 73/2004, 454/200 4 455/2004 456/2004 & 374/2004 to deposit rent in court. In the said suits, the original owner M/s Ved Prakash Aggarwal & Sons (HUF) along with respondents No. 1 to 5 herein were arrayed as respondents. In the said suits, original owner M/s Ved Prakash Aggarwal & Sons (HUF) filed its written statement whereby it categorically pleaded and reiterated its submission of having attorned the tenancy in favour of respondents No. 1 to 5 herein. Herein."
135. In the present case, the defendant has denied the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 57 of 66 receiving of the Attornment letter Ex PW-2/5. No postal receipts/courier receipts has been filed by the plaintiff to prove that the said Attornment letter has ever been sent to the defendant. Moreover, the Attornment letter is of dated 21.03.2003 whereas the plaintiff has deposed in court that she first time met with Smt Suraksha Malik at the registrar's office on 13.05.2005. When the plaintiff had not met with Smt Suraksha Malik before 13.05.2005, there does not arise any occasion for Smt Suraksha Malik to issue Attornment letter dated 21.03.2003 in favour of plaintiff, which is two years prior to the meeting of plaintiff with Smt Suraksha Malik. This fact also raises doubt on the genuineness of the Attornment letter Ex PW-2/5. The defendant has raised doubt on the said Attornment letter since the date of receiving of legal notice from the plaintiff. The plaintiff has not explained when the documents of the property in question, has been executed in his favour by Suraksha Malik on 21.03.2005, then how & why and on what basis, the Attornment letter dated 21.03.2003, which is two years prior to the execution of the said documents, has been issued & sent to the defendant by Smt Suraksha Malik, the defendant has denied the receiving of said Attornment letter in his both replies of legal notices but despite the denial of the defendant of receiving Attornment letter, no further attempt has been made by the plaintiff to again got sent Attornment letter by Smt Suraksha Malik to the defendant. The plaintiff has not examined Smt Suraksha Malik to prove the issuance and sending of Attornment letter to the defendant. The plaintiff has failed to prove that Smt Surkasha Malik has issued & sent Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 58 of 66 Attornment letter to the defendant.
136. The Judgment relied upon the plaintiff titled "Rajindra Properties (Delhi) Pvt. Ltd & Ors. Vs Ashok Bansal & Ors, Manu /DE/5302/2023 passed by Hon'ble High Court of Delhi is distinguishable on facts and is not applicable on the fact of present case. In the above case, it has been proved on record that the owner/landlord has informed the tenant regarding creation of rights in respect of property, in favour of respondent no. 1 to 5. The appellant no. 1, in that case, filed various suit to deposit rent in cash, in which respondent no. 1 to 5 and original owner/landlord were made parties & respondent no. 1 to 5 were allowed to withdraw the rent. But, in this case, it has not been proved that Smt Suraksha Malik has issued & sent Attornment letter to the defendant or Smt Suraksha Malik has created rights in favour of plaintiff to receive rent or possession from defendant. Smt Suraksha Malik has not been examined in court.
137. The plaintiff has also relied upon Will executed by Smt Suraksha Malik in his favour. It is settled law that Will comes into operation, after the death of the testatrix and during the life-time of testatrix, no right, in the property, can be claimed by the plaintiff on the basis of Will.
138. In a judgment titled Shakeel Ahmad Vs Sayed Akhlaq Hussain Civil Appeal No 1898 of 2023, Hon'ble Supreme Court has held as follows.
"10. Having considered the submissions at the Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 59 of 66 outset, it is to be emphasized that of irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.) "14.In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order."
139. In a judgment titled Suraj Lamp & Industries Pvt Ltd Vs State of Haryana & Anr Special Leave Petition (CE) no. 13917 of 2009, Hon'ble Supreme Court has held as follows:
"Scope of an Agreement of sale"
"11.Section 54 of TP Act makes it clear that a contract of sale, that is, 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 and Anr (1977) 3 SCC 247, observed:
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 Transfer of property Act. See Rambaran Prosad v. Ram Mohit Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 60 of 66 Hazra [1967]1 SCR 293 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."
"In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
11. Section 54 of TP Act makes it clear that a contract of sale, that is, 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 and Anr (1977) 3 SCC 247, observed:
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 Transfer of property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293 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." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (2004 (8) SCC 614 )this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the 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 Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 61 of 66 favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
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.
12. 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 TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
140. In a judgment titled as Smriti Debbarma (dead) through Legal representative Vs Prabha Ranjan Debbarma and Ors. Civil Appeal no. 878 of 2009 decided on 04.01.2023 Hon'ble Supreme Court of India has held as follows:
"30 In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule 'A' property, and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule 'A' property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule 'A' property. The defendants, being in Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 62 of 66 possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession."
141. In a judgment titled as "Ghanshyam Vs Yoginder Rathi, 2023 livelaw (SC) 479, Hon'ble Supreme Court of India has held as follows:
"14. In connection with the general power of attorney and the Will so executed, the practice, if any, prevalent in any state or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property at over Rs. 100/- in value. The decisions of the Delhi High court in the case of Veer Bala Gulati Vs Municipal Corporation of Delhi and Anr following the earlier decision of the Delhi High Court itslef in the case of Asha M. Jain Vs. Canara Bank and Ors holding that the agreement to sell with payment of full consideration and possession along with irrevocable power of attorney and other ancillary documents is a transaction to sell even though there may not be a sale deed, are of no help to the plaintiff- respondent inasmuch as the view taken by the Delhi High Court is not in consonance with the legal position which emanates from the plain reading of Section 54 of the Transfer of property Act, 1882. In this regard, reference may be had to two other decisions of the Delhi High Court in Imtiaz Ali Vs Nasim Ahmed and G. Ram Vs. Delhi Development Authority which inter-alia that an agreement to sell or the power of attorney are not documents of transfer and as such the right title and interest of an immovable property do not stand transferred by mere execution of the same unless and document as contemplated under Section 54 of the Transfer of Property Act, 1882, is executed and is got registered under Section 17 of the Indian Registration Act, 1908. The decision of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana & Anr." also deprecates the transfer of immovable property through sale agreement, general power of attoreny and will instead of registered conveyance deed."
"15. Legally an agreement to sell may not be regarded as a transaction of sale or a document Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 63 of 66 transferring the proprietary rights in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferer or any person claiming under him."
142. In in view of abovesaid judgments, it is settled position that GPA, Agreement to Sell, affidavit and Receipt do not confer any right, title or interest to plaintiff, in the suit property. The SPA Ex PW-2/3 (colly) dated 21.03.2005 has been executed in favour of Sh. Pawan Kumar by the plaintiff. The GPA Ex PW-2/3 (colly) has been executed by Smt Suraksha Malik in favour of Sh. Pawan Kumar in respect of property in question. There are only three documents in favour of the plaintiff i.e.
1.Attornment Letter Ex PW-2/4,(2). Agreement to Sell Ex PW-2/3 (colly).(3). Will Ex PW-2/3 (colly).
143. As already held above, the plaintiff has failed to prove that the Attornment letter has been issued by Smt Suraksha Malik and the said Attornment letter was sent to the defendant. It is settled law that the Will comes into operation after the death of the testator/testatrix. At the best, on the basis of agreement to sell, the plaintiff could have file the suit for specific performance. The agreement to sell is of dated 21.03.2005 and we are in year, 2024, but till date plaintiff has not filed any suit for specific performance. No sale deed/conveyance deed of the suit property has been executed by Smt Suraksha Malik in favour of the plaintiff. The agreement to sell is not a Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 64 of 66 conveyance deed. It does not transfer ownership right and or any other right in the suit property to the plaintiff. It is admitted case of the plaintiff that he has never obtained the physical possession of the suit property. At the time of execution of agreement to sell & other documents, the defendant was in possession of suit property. If plaintiff has obtained the possession of suit property then he has the right to protect his possession U/s 53A of T.P.A. Act on the basis of registered Agreement to sell. But in the present case, possession of suit property has never been obtained by the plaintiff.
144. The plaintiff has no title & ownership over the suit property. The plaintiff has also failed to prove that she is landlady of the suit property. The plaintiff has also failed to prove that she has any authority to receive rent or obtain possession of the suit property from the defendant. In view of the above said discussion, it is held that the plaintiff is not entitled to obtain possession of the suit property from the defendant and the plaintiff has also no right to receive rent, arrears of rent and Mesne profits from the defendant, Accordingly, issue no 6, 7 & 8 are decided against the plaintiff and in favour of defendant.
Findings on Issue no. 5
5. Whether the suit filed by the plaintiff is barred by Delhi Rent Control Act? OPD.
145. Burden to prove issue no 5 is upon the defendant. As Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 65 of 66 held above in issue no. 6 that there is no landlady & tenant relationship between the plaintiff & the defendant. Delhi Rent Control Act is applicable only when there is landlord/landlady & tenant relationship between the parties. Therefore, in the present suit, Delhi Rent Control Act is not applicable. Accordingly, issue no. 5 is decided against the defendant & in favour of the plaintiff.
RELIEF
146. In view of the findings given on issue no. 6, 7 & 8, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after preparation of decree as per rules. Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2024.05.13 17:03:42 -0500 Announced in the open court (Shiv Kumar ) on 13.05.2024 District Judge-02 (West) Tis Hazari Courts Delhi.Civ DJ No. 7671/16 Anju sharma Vs Deepak Oberoi Page 66 of 66