Delhi District Court
Shri Syed Nazim Ali vs Shri Om Prakash Dwedi on 18 January, 2011
IN THE COURT OF SH AJAY GUPTA
ASCJ/JSCC/GJ(E): KARKARDOOMA COURTS DELHI
Original Suit No.1214/06 New Suit No.700/07
In the matter of
Shri Syed Nazim Ali,
S/o Late Sh. Syed Asif Ali,
R/o 2842, Kucha Chelan Sir Syed Ahemed Road,
Darya Ganj, New Delhi ....Plaintiff
Versus
1.Shri Om Prakash Dwedi,
S/o Shri Laxmi Narayan Dwedi,
R/o F170, Flat No.8, Second Floor Main Market,
Laxmi Nagar, Delhi92
Also At:
C/o Shri Om Aushadhalya (Regd)
J3, Sarafa Bazar, Near Ganesh Jewellers,
Laxami Nagar, Delhi92
2.Smt. Kamla Rani @ Kamla Kapoor,
W/o Late Shri T.R. Kapoor,
R/o F170, Flat No.8, Second Floor Main Market,
Laxmi Nagar, Delhi92 ....Defendants
Date of institution of the suit 29.05.06
Arguments heard/order reserved 07.01.11
Date of judgment 18.01.11
SUIT FOR EJECTMENT/POSSESSION AND RECOVERY
OF DAMAGES/MESNE PROFTS ETC.
1. This is a suit for recovery of possession and damages/mesne
profits etc. filed by the plaintiff against the defendants.
Original Suit No.1214/06 New Suit No.700/07 1/16
(PLAINTIFF'S CASE)
2. Brief facts as stated in the plaint are that plaintiff had let out the flat
consisting two room sets at the second floor of property no.
F170/08, Laxmi Nagar, Delhi92 (hereinafter to be referred as 'suit
property') to defendant no.1 at the rate of Rs.4000/ per month
exclusive of water and electricity charges w.e.f. 08.07.98 for eleven
months through a rent agreement dt. 07.07.98. Aforesaid rent
agreement was countersigned by defendant no.2 as at the time of
execution of rent agreement defendants no.1 and 2 represented
themselves to be husband and wife. Plaintiff was served by
defendant no.2 with a vague notice dt. 02.01.04. In this notice
defendant no.2 had claimed herself to be the tenant of plaintiff.
Plaintiff refuted this notice and sent reply dt. 14.01.04 to both the
defendants and terminated the tenancy of defendant no.1 and
asked him to hand over the vacant and peaceful possession of the
suit property. Plaintiff has demanded three years recoverable
arrears of rent amounting to Rs.1,44,000/ @ Rs.4000/ per month
along with interest @20% per annum. After service of aforesaid
notice, defendant no.1 has become unauthorized occupant i.e.
w.e.f. 08.03.04. Plaintiff again served the defendants with a legal
notice and asked them to hand over the possession of the suit
property and pay arrears of rent and damages of Rs.3,42,650/
along with interest @20% per annum. This notice was served upon
defendant no.2. However, notice sent to defendant no.1 by
registered post was received back but the notice sent by UPC was
not received back. Hence, it is to be presumed that defendant no.1
was duly served. Defendants did not send reply to this notice.
3. It is stated that defendants have wrongly represented themselves
as husband and wife. Defendant no.1 has deliberately committed
breach of contract and parted with the possession of the suit
Original Suit No.1214/06 New Suit No.700/07 2/16
property to defendant no.2. Defendants have not paid electricity bill
dt. 04.04.06 of Rs.17,430/ and water bill Rs.8873/ of March, 2006.
On the basis of these avements plaintiff has sought recovery of
possession of the suit property from defendants. Plaintiff has also
sought decree of Rs.1,44,000/ qua arrears of rent with interest
@20% per annum. Plaintiff has also sought recovery of damages
@Rs.4000/ per month w.e.f 08.05.06 till the possession of the suit
property is handed over to the plaintiff. Plaintiff has also sought
recovery of electricity bill dt. 04.04.06 of Rs.17,430/ and water bill
of March, 2006 of Rs.8873/.
(DEFENDANT No.1's CASE)
4. Both the defendants contested the present suit by filing their
separate written statements. In his written statement defendant no.
1 has not disputed that plaintiff had let out the suit property to him.
He has also not disputed the execution of rent agreement dt.
07.07.98, however, it is stated that rent agreement is an illegal
agreement and same is not admissible as neither it is sufficiently
stamped nor it is registered. It is stated that plaintiff has let out the
suit property to him at the monthly rent of Rs.1400/ exclusive of
electricity and water charges. Thus, present suit is barred us 50 of
DRC Act. Defendant no.1 has vacated the suit property on 07.10.99
and handed over the possession of the suit property to the plaintiff.
Defendant no.1 has never given possession of the suit property to
any one. He had purchased an accommodation and after 07.10.99
he is residing at his new address. Plaintiff had himself given the
suit property to defendant no.2 by a separate transaction and
defendant no.1 has no concern with the suit property after 07.10.99.
Defendant no.1 has also denied the claim of the plaintiff regarding
arrears of rent as well as electricity and water charges. He has also
denied the service of legal notice and sought dismissal of the
present suit.
Original Suit No.1214/06 New Suit No.700/07 3/16
(DEFENDANT No.2's CASE)
5. Defendant no.2 has stated that plaintiff had created an oral tenancy
in October, 1999 in her favour at the monthly rent of Rs.1450/
(exclusive of electricity and water charges). She has been regularly
paying the rent to plaintiff since inception of her tenancy. It is stated
that suit property requires repair which fact was informed by her to
the plaintiff. On this plaintiff informed the defendant no.2 that he
wishes to dispose off the suit property, as such in July, 2005, an
oral agreement to sell was entered into between her and plaintiff
and plaintiff had agreed to dispose off the suit property to
defendant no.2 for consideration of Rs.4,50,000/. Defendant no.2
was to pay rent at the rate of Rs.1450/ per month till the date she
pays the amount of Rs.4,50,000/. It was also agreed that
defendant no.2 can get the suit property repaired and the money
invested in the same, was to be adjusted from the sale
consideration. It was also agreed that plaintiff shall execute
necessary document in this regard, however, plaintiff has become
dishonest and refused to go with this agreement. Plaintiff also
refused to accept the rent of December, 2005, as such, defendant
no.2 sent the same through money order. Plaintiff again refused to
accept the rent for the month of January, 2006 which was again
sent through money order. It is stated that plaintiff visited the suit
property and apologized to defendant no.2 and started receiving
rent in cash from her but did not issue rent receipts. After receiving
summons of the present suit, rent for the month of August, 2006
was sent through money order but same was received back. It is
stated that there is no cause of action against the defendant no.2.
In regard to her signature on the rent agreement, it is stated that
plaintiff has obtained her signatures fraudulently. On these grounds
defendant no.2 sought dismissal of the present.
Original Suit No.1214/06 New Suit No.700/07 4/16
6. Plaintiff filed replication to the written statement of defendant no.1.
Plaintiff denied the contents of the written statement and reiterated
the facts of his plaint.
( ISSUES )
7. From the pleading of the parties following issues were framed on
dt. 07.05.2007:
1. Whether the plaintiff is entitled to a decree for
ejecement/possession of the suit property?OPP
2. Whether the plaintiff is entitled to the sum as claimed towards
arrears of rent, towards electricity charge and damages as claimed?
OPP
3. Whether the plaint of the plaintiff is barred by provisions of DRC
Act?OPD1
4. Whether the defendant no.1 has handed over the physical
possession of the suit premises to the plaintiff on 07.10.99? OPD1
5. Whether the defendant no.1 has paid the rent, electricity and water
charges as on 07.10.99?
6. Whether any agreement to sell as claimed of the suit property was
entered into between the defendant no.2 and plaintiff?OPD2
7. Relief.
8. After framing of issues matter was listed for plaintiff's evidence. In
his evidence plaintiff examined himself as PW1. Defendant no.1
examined himself as DW1, one Rajender Singh s/o Late Sh. Ram
Hars Singh as D1W2 and Sh. Krishan Narayan Shukla s/o Sh.
Ram Avtar Shukla as D1W3. Defendant no.2 examined herself as
DW2 and one Mr. Amit Kapoor s/o late Sh. T.R. Kapoor as D2W2.
After closure of evidence of parties matter was listed for final
arguments.
(DECISION ON ISSUSES)
9. I have heard the arguments on behalf of both the parties and gone
through the record of the case. Issue wise findings of this court is
as under:
ISSUE No.1
Whether the plaintiff is entitled to a decree for
ejecement/possession of the suit property?OPP
(a)The onus to prove Issue no.1 was on plaintiff. For proving Issue no.
Original Suit No.1214/06 New Suit No.700/07 5/16
1 plaintiff was required to establish on record the following
ingredients:
(i) that there exists a relationship of landlord and tenant between
plaintiff and defendant no.1 and it subsistence till the date of
determination/termination of tenancy,
(ii) that the rate of rent is above Rs.3500/ per month and
(iii) that the tenancy/lease between the parties to the suit, has
been determined as per the provisions of section 111 of Transfer
of Property Act.
POINTi
that there exists a relationship of landlord and tenant between
plaintiff and defendant no.1 and it subsistence till the date of
determination/termination of tenancy,
(b)Now let us see whether the plaintiff has been successful in
establishing the aforesaid ingredients. The relationship is not at all
in dispute, however subsistence of tenancy is in dispute which
would be discussed in the later part of this Issue.
POINTii
that the rate of rent is above Rs.3500/ per month
(c)In this matter plaintiff has claimed that he has let out the suit
property to defendant no.1 at the rate of Rs.4000/ per month
exclusive water and electricity charges, but, defendant no.1 stated
that it was let out to him at the rate of Rs.1400/ per month
exclusive of water and electricity charges. In support of his
aforesaid claim, plaintiff has relied upon the rent agreement ex.
PW1/2. Defendant no.1 has admitted the execution of ex. PW1/2 in
his written statement as well as in his cross examination. Thus,
plaintiff has duly proved the execution of PW1/2 (rent agreement).
Since the execution of the rent agreement ex. PW1/2 has been
admitted, thus, no further proof of its execution is required. It is well
settled law that admitted facts are not required to be proved
(section 58 of Evidence Act).
(d) So far as, the objection of section 35 of Stamp Act is concerned,
Original Suit No.1214/06 New Suit No.700/07 6/16
this objection can only be taken before tendering of a document.
Once, the document is exhibited other party forfeits his rights to
raise objection regarding validity of the document for its
insufficiently stamped. Such document can be duly considered
and relied upon. In this regard this court is supported with the case
law reported as "1985 RLR 408 Delhi Box Factory vs Mishri Lal
Abhinandan". It is clear from the ex. PW1/2 that suit property was
let out to defendant no.1 at the rate of Rs.4000/ per month, but as
per 'D1' it was let out at Rs.1400/ per month. Defendant no.1 has
relied upon a photo copy Mark 'D1' to show that rent was Rs.1400/
per month and not Rs.4000/ per month. It is pertinent to note that
Mark 'D1' is a photo copy of Ex. PW1/2 and rent of Rs.1400/ has
been mentioned after striking out of rent of Rs.4000/ per month.
During cross examination DW1 categorically admitted that the
cutting and correction made in document Mark 'D1' were also made
in the document ex. PW1/2. But, the original rent agreement Ex.
PW1/2 clearly indicates the rate of rent as Rs.4000/ per month and
not Rs.1400/ per month. If the monthly rent would have been Rs.
1400/ per month, an appropriate correction must have been made
in the original agreement also and not in the photo copy only. It is
well settled law that the material corrections of an agreement are to
be initialled by both the parties. However, the photo copy produced
by defendant no.1 does not bear the signature of the plaintiff. Thus,
it is clear that the photo copy produced by defendant no.1 during
his evidence is a self serving document and it is clear that there is
manipulation in mentioning the rate of rent in the photo copy. It is
clear from this document Mark 'D1' that defendant no.1 has
attempted to substantiate his false claim that rent was Rs.1400/
per month. Even otherwise the document Mark 'D1' is a photo copy
and same cannot be relied upon. Thus, in view of these
discussions, it is held that the suit property was let out to the
Original Suit No.1214/06 New Suit No.700/07 7/16
defendant no.1 at the rate of Rs.4000/ per month.
POINTiii
that the tenancy/lease between the parties to the suit, has been
determined as per the provisions of section 111 of Transfer of
Property Act.
(e) As per section 111(a) of Transfer of Property Act, a lease of
immovable property also determines by efflux of time. It is clear
from the Ex. PW1/2 that tenancy of the defendant no.1 was created
on 07.07.98 for eleven months and the same has expired by efflux
of time, hence, service of the statutory notice was not required. In
this regard this court is supported with the following judgment.
Head notes of the judgment reads as under:
87 (2000) DLT - 76
Zulfikar Ali Khan(Through LRs) vs Straw Products Ltd.
CPC O12R6 - T.P. Act - Section 106/116 - Judgment on admission,
Decree of possession. No partition by metes & bounds. No
opportunity of Rent Amongst Coowners. Tenancy came to an end by
efflux of time. No notice of termination of tenancy u/s 106 of T.P. Act
required".
Thus it is held that the tenancy of the defendant has been duly
determined as per the provisions section 111 of Transfer of Property
Act. As such, service of statutory notice u/s 106 of T.P. Act was not
required in he present case.
(f)Moreover, in a recent case, the Hon'ble Supreme Court has held
that filing of an eviction suit is to be treated as the service of notice
to quit on the tenant. Relevant portion of the judgment reads as
under:
'(2008) 2SCC 728'
Nopany Investment (P) Ltd. Vs Santokh Singh (HUF)
22...In any view of the matter, it is well settled that filing of an eviction
suit under the general law itself is a notice to quit on the tenant.
Therefore, we have no hesitation to hold that no notice to quit was
necessary under section 106 of the Transfer of Property Act in order
to enable the respondent to get a decree of eviction against the
appellant'.
Original Suit No.1214/06 New Suit No.700/07 8/16 As such, even otherwise plaintiff was not required to serve the defendants with the notice to quit. Moreover, it is clear that tenancy of defendant no.1 was terminated by service of legal notice Ex. PW1/4. It is also clear from Ex. PW1/10 and PW1/11(AD Cards) that defendant no.1 was duly served with the notice to quit at the correct address of the suit property as well as at the other address of defendant no.1. Moreover, this notice was also sent by UPC. The correctness of both these addresses have not been disputed. Thus, as per section 27 of General Clause Act, it is to be assumed to have been served upon the defendant no.1. In this regard this court is supported by the law laid down in "1995 RLR 43, Vinod vs. BK Sachdev". Thus, it is clear that tenancy of defendant no.1 was duly terminated. Moreover, during cross examination of PW1, it was admitted that Ex. PW1/4 was the first notice which was sent by the plaintiff to the defendants. Thus in view of the aforesaid discussion it is held that plaintiff has established on the record the relationship of landlord and tenant and also that the suit premises is not governed by the provisions of DRC Act. It is further clear that the tenancy of the defendant was terminated by way of a legal notice. Even otherwise in view of the law laid down by the Hon'ble Supreme Court, no notice for termination of the tenancy of the defendant, is required. Thus, it is held that plaintiff has established all the aforesaid three ingredients on record. As such, it is held that plaintiff is entitled to the decree of possession.
(g)Before parting with decision of issue no.1 it is pertinent to mention some more important aspects of this case. Defendant no.2 has claimed herself to be the tenant in the suit property w.e.f the month of October, 1999 at the monthly rent of Rs.1450/. As such, onus to prove this particular fact was on defendant no.2 and it is well settled law that a tenancy can only created by way of a mutual Original Suit No.1214/06 New Suit No.700/07 9/16 contract and mere payment of rent by a particular person does not make him tenant. In this regard this court is supported with the law laid down by the Hon'ble Delhi High Court in following judgment. Head note of the judgment reads as under: 2009(160) DLT 171 Veeran Devi vs. S. Subhash, (Delhi) D.Tenancy - Mere payment of rent by a third person does not make him a tenant - Tenancy is a result of contractual relationship between two parties, who must be ad idem.
(h)In this matter defendant no.2 has claimed herself to be tenant and has endeavoured to establish her tenancy on the basis of acceptance of one money order of Rs.1450/ by the daughter of the plaintiff. Defendant no.2 has not proved any agreement and in view of the law laid down by the Hon'ble High Court in the aforesaid case, the aforesaid payment would not make her tenant in the suit property. Moreover, it is clear from the legal notice Ex. PW1/14 that the reasons for acceptance of Rs.1450/ has been properly explained by the plaintiff in this legal notice ex. PW1/14. Plaintiff has also denied the allegations of defendant no.2 through his legal notice. Furthermore, it is clear from the cross examination of DW2 that she has taken a false ground in her written statement that she was inducted by plaintiff in the suit property in October, 1999. It is clear from the following cross examinations that she came into the suit property on 07.07.98 along with defendant no.1 and did not vacate the same till date. Relevant portion of cross examinations of defendant no.2 Smt. Kamla Rani (D2W1) reads as under: "(Cross examination of D2W1)...It is correct that I had been staying in the suit premises along with defendant no.1 since 07.07.98. ... The premises in question was never vacated during the period after 07.07.98.
...I started residing in the suit premises since 07.07.998. The premises was then taken on rent by the defendant no.1 from the plaintiff. (Cross examination of D2W2) ...Myself and my mother and the defendant no.1 are all staying in the suit premises since 1998 though I do now recollect the date and month thereof. It is correct that neither Original Suit No.1214/06 New Suit No.700/07 10/16 myself nor the defendant no.2 ever occupied the suit premises in the year 1998 as a tenant thereof".
These facts have been admitted by defendant no.2 as well as her son. Thus, it is clear that defendant no.2 is staying in the suit property as an unauthorized occupant and not as a tenant. ISSUE No.4 Whether the defendant no.1 has handed over the physical possession of the suit premises to the plaintiff on 07.10.99? OPD1
(i) Defendant no.1 contended that he had handed over the physical possession of the suit property to the plaintiff on 07.10.99. For proving this fact defendant no.1 relied upon ex. PW1/D and PW1/D2. Defendant no.1 has endeavoured to prove that he surrendered the possession of the suit property to the plaintiff by way of these two documents. However, these two documents, does not talk of handing over and receiving the possession of the suit property. Defendant has relied upon another document ex. DW1/5 which is letter dt. 03.10.99. This document is a unilateral document and this does not bear any acknowledgment of plaintiff, as such, this document cannot be relied upon. Such type of documents can be prepared by anybody as per his own convenience. It is well settled law that the tenancy agreement is a bilateral contract and tenancy rights can only be surrendered by way of a bilateral agreement, which may be expressed or implied. It has been held by the Hon'ble High Court that even if the tenant abandoned the tenanted premises, it does not put to an end of landlord and and tenant relationship. The tenancy agreement can be brought to an end only way of a bilateral agreement. In this regard this court is supported with the following judgment. Relevant para of judgment reads as under: 2009(160) DLT 171 Veeran Devi vs S. Subhash,(Delhi) "H. Transfer of Property Act, 1882, Sections 111(e) and 111(f) - Tenancy - Mere abandonment of tenancy does not put to an end landlord - tenant relationship - Since the tenancy agreement is a Original Suit No.1214/06 New Suit No.700/07 11/16 bilateral agreement, the tenancy rights can be surrendered only by bilateral agreement which may be expressed or implied".
(j) In the instant case defendant no.1 has failed to prove on record any document of surrender of the possession of the tenanted premises. Even if it is assumed that defendant no.1 had shifted from the suit property, it would not absolve him from his contractual obligations. Before shifting from the suit property, he was under an obligation to hand over the vacant and peaceful possession of the suit property to plaintiff. It is clear from the aforesaid discussions that defendant no.1 did not surrender the possession of the suit property to the plaintiff, thus, he is still liable to contractual obligation of his tenancy agreement. It it well settled law that if the tenant fails to prove the relinquishment of tenancy, then the tenant is continue to be liable to pay the rent.
(k)As per defendant no.1, suit property would have been given to the defendant no.2 by the plaintiff after he had vacated the suit property. But in his cross examination defendant no.2 has categorically admitted that she came to reside in the suit property along with defendant no.1 and since then she is residing in the suit property. It is also admitted that she is in constant possession of the suit property. Thus, in such circumstances, it is clear that even if defendant no.1 had shifted from the suit property, he was under
obligation to have got evacuated the defendant no.2 from the suit property before his shifting to other place. If defendant no.2 continued to reside in the suit property, even after defendant no.1 vacating the same, it is to be assumed that defendant no.1 is still in possession of the suit property, but none else. Moreover, if the defendant no.1 had handed over the vacant and peaceful possession of the suit property to the plaintiff on dt. 07.10.99, he must have replied the legal notice sent by the plaintiff and must have rebutted to all the allegations made by plaintiff but defendant Original Suit No.1214/06 New Suit No.700/07 12/16 no.1 remained silent. Defendant's silence also speaks for itself.
(DECISION ON ISSUE NO.1 & 4)
(l) As such, it is clear that the status of the defendant no.2 in the suit property is not more than of an unauthorized occupant. It is clear from the aforesaid discussions that defendant no.1 is the tenant of plaintiff and rent of suit property was Rs.4000/ per month and the tenancy of defendant no.1 has been duly determined and defendant no.2 is residing in the suit property as an unauthorized occupant, as such, plaintiff is entitled to the decree of possession against both the defendants. Issue No. 1 and 4 decided accordingly.
ISSUE No.3 Whether the plaint of the plaintiff is barred by provisions of DRC Act?OPD1 The onus to prove this Issue was on defendant no.1. In view of findings of Issue no.1 and 4, it is held that present suit is not barred by the provisions of section 50 of DRC Act.
ISSUE No.2 & 5Whether the plaintiff is entitled to the sum as claimed towards arrears of rent, towards electricity charge and damages as claimed? OPP Whether the defendant no.1 has paid the rent, electricity and water charges as on 07.10.99?
(a)Being inter connected both these Issues are taken up together for disposal. In the present suit plaintiff has claimed recovery of arrears of rent Rs.1,44,000/ i.e three years recoverable rent from 08.05.03 to 07.05.06. Plaintiff has also claimed damages at the same rate w.e.f 08.05.06 till the possession of the suit property is handed over to him. Plaintiff has claimed that defendant no.1 has not paid rent since 05.10.99, however, he has sought recovery of rent from 08.05.03 as he could have only recovered the rent for the last three years. As per settled law, onus of payment of rent is always on tenant. Defendant no.1 has not led any evidence to Original Suit No.1214/06 New Suit No.700/07 13/16 prove this fact that he has paid rent to the plaintiff since 05.10.99. In this regard, not even a single whisper has been made either in the written statement or in the evidence. Thus, it is to be held that defendant has failed to prove that he has paid rent of the suit property to the plaintiff w.e.f. 05.10.99. Moreover, it is already held while deciding issue no.4 that possession of suit property is still with defendant no.1. As such, it is held that plaintiff is entitled to the recovery of arrears of rent from defendant no.1. However, plaintiff is only entitled to the recovery of rents only for three years. i.e. w.e.f. 08.05.03 to 08.05.06. Plaintiff has also claimed interests @20% per annum on the arrears of rent. This claim appears to be on higher side, as such, plaintiff is awarded interest @9% per annum on the arrears of rent.
(b) So far as, damages are concerned, in view of finding of issue no.1 and 4, it is clear that defendant no.1 is still in possession of suit property. Since possession of the suit property is still with the defendant no.1 and thus, he is liable to pay the arrears of rent as well as damages. In this regard this court is supported with the following judgment: Veeran Devi vs S. Subhash, (Delhi) 2009 (160) D.L.T. 171 "F. Transfer of Property Act, 1882, Sections 108(I) and 108(q) - Relinquishment of Tenancy - Mere acceptance of rent from assignee by itself is not enough to release the lessee or to establish relinquishment of tenancy - Lease continues to be liable to pay rent because lessee cannot by unilateral act put an end to his contractual allegations".
As such, after termination of his tenancy, defendant no.1 is liable to pay the damages. Plaintiff has claimed damages equivalent to monthly rent of Rs.4000/. Thus, it is held that plaintiff is liable for decree of damages from defendant no.1 w.e.f. 08.05.06 till possession of the suit property is handed over to him. Plaintiff has also sought recovery of water and electricity charges from the Original Suit No.1214/06 New Suit No.700/07 14/16 defendant. It is clear from ex. PW1/21 that an amount of Rs. 17,430/ is pending on account of electricity charges and this bill pertains to the year 2006. In view of the aforesaid discussions, it is held that since defendant no.1 in occupation of the suit property, hence he is liable to pay the electricity charges also. So far as, the water charges are concerned, it is admitted position of fact that water charges have not been paid since 1995. It is also admitted position of fact that suit property was let out in the year 1998 and it is not clear as to how much amount defendants are liable to pay. Thus, it is held that plaintiff is not entitled to the recovery of water charges which are reflected in ex. PW1/22. Both these issues are decided accordingly.
ISSUE No.6 Whether any agreement to sell as claimed of the suit property was entered into between the defendant no.2 and plaintiff?OPD2 The onus to prove this issue was on defendant no.2. Deft. no.2 claimed that she entered into an agreement to sell of suit property with plaintiff. Defendant no.2 has not proved any such agreement. Defendant no.2 has also not proved that she spent a sum of Rs. 1,50,000/ on repair of the suit property. Moreover, it is well settled law that a suit for recovery of possession can not be opposed on the ground that a party has entered into an agreement to sell. In this regard this court is supported with law laid down by the Hon'ble High High Court in "2010 (167) DLT 806, Sunil Kapoor vs Himmat Singh & Ors". This issue is decided accordingly. It is most respectfully observed that the judgments cited by the Ld. Counsel for defendant is not applicable to the peculiar facts and circumstances of the present case.
Before parting with the decision on the issues, it is necessary to discuss one another important aspect of the present case. In this matter plaintiff has filed the court fees on the aggregated valuation Original Suit No.1214/06 New Suit No.700/07 15/16 of the subject matter, though, as per settled law, court fees is to be paid on all the reliefs separately. Thus, plaintiff is directed to pay deficient court fees.
RELIEF In view of my aforesaid findings the suit of the plaintiff is hereby decreed with costs and a decree of possession is passed in favour of plaintiff and against the defendants in respect of suit property. Defendants are directed to hand over the vacant and peaceful possession of the suit property i.e. flat at second floor consisting two room sets of property no. F170/08, Laxmi Nagar, Delhi92 (as shown in ex. PW1/1) to the plaintiff within one month from the date of this judgment. A decree of Rs.1,44,000/ towards arrears of rent for a period of three years w.e.f 08.05.03 to 07.05.06, is also passed in favour of plaintiff and against the defendant no.1. Plaintiff is also entitled to recover damages from defendant no.1, hence, plaintiff is also awarded damages @Rs. 4000/ per month w.e.f. 08.05.06 till defendants hand over vacant and peaceful possession of the suit property to the plaintiff. Plaintiff is also awarded simple interest @9% per annum. A decree of Rs.17,430/ towards electricity charges is also passed in favour of plaintiff and against the defendant no.1. It is made clear that defendant no.1 will be entitled to the adjustment of the amount paid by him (if any) during pendency of the present suit. Decree sheet be prepared on plaintiff's depositing court fees on the damages awarded from the date of filing of the present suit till the date of judgment. File be consigned to the record room.
(AJAY GUPTA) ASCJ/JSCC/GUARDIAN JUDGE(E) KKD COURTS DELHI Announced in open court on 18.01.11 Original Suit No.1214/06 New Suit No.700/07 16/16