Firasat Ali vs Abdul Sattar Salam Qasmi on 6 December, 2023

[Cites 6, Cited by 0]

Delhi District Court

Firasat Ali vs Abdul Sattar Salam Qasmi on 6 December, 2023

            IN THE COURT OF SH. DEEPAK VATS
                 ACJCUMCCJCUMARC
     DISTRICT: SOUTHEAST, SAKET COURTS, NEW DELHI


CS SCJ 1168/2018
Firasat Ali v. Abdul Sattar Salam Qasmi


Sh. Firasat Ali
S/o Sh. Mohd. Saeed Khan
R/o H.no. 528/6A, Zakir Nagar,
Okhla, New Delhi110025.                                                   ........plaintiff



                                        VERSUS
Sh. Abdul Sattar Salam Qasmi
S/o Sh. Abdul Salam
Chairman Darul Uloom Delhi Trust,
R/o R239, Abdul Hameed Road,
Jogabai Extn., Jamia Nagar,
New Delhi110025.

Also At:
S453/260, Jogabai Extn.,
Jamia Nagar, New Delhi110025.                                          .......Defendant

  SUIT FOR RECOVERY OF POSSESSION, ARREARS OF
RENT, RECOVERY OF MESNE PROFITS AND MANDATORY
            & PERMANENT INJUNCTION

Date of institution of case                               : 29.08.2018
Reserved for judgment                                     : 09.10.2023
Date of pronouncement of judgment                         : 06.12.2023


__________________________________________________________________________________________
CS no.1168/2018                                              Digitally signed
Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi   DEEPAK VATS   by DEEPAK        Page no. 1 of 24

                                               VATS   Date: 2023.12.06
                                                      16:11:27 +0530
                                      JUDGEMENT

1. Vide this judgment this Court shall dispose of a suit for recovery of possession, arrears of rent and recovery of mesne profits/damages and mandatory & permanent injunction filed by the plaintiff in respect of builtup property bearing no. S453/260, Jogabai Extn. New Delhi - 110025, hereinafter referred to as the suit property.

Plaintiff's case

2. It is the case of the plaintiff that he is the owner of the suit property, and that he agreed to sell the same to the defendant, upon the latter's inducement and assurances that he had sufficient funds to purchase the property. It is averred that the suit property was agreed to be sold at the sale consideration of Rs. 11,50,000, out of which Rs. 2,50,000 was paid as earnest money on 3.6.2010 in the presence of witnesses. It is further averred that upon payment of such earnest money, an agreement to sell was reduced into writing between the parties on the same date. It is further stated in the plaint that the defendant had agreed to pay the balance sale consideration amounting to Rs. 9,00,000 to the plaintiff by 30.09.2010, after which the plaintiff was to execute the sale deed in his favour. It is stated that the sale agreement provided that if the defendant failed to pay balance consideration within the stipulated period, the plaintiff would have the right to forfeit the earnest money.

3. It is averred that the defendant failed to complete his part of the transaction as he failed to make payment of balance consideration by 30.09.10. It is further stated that before entering into the said transaction, the defendant had taken the suit property on rent @ Rs.2,500/ per month from the plaintiff w.e.f 1.6.2010 for a period of four months up to 30.09.2010, and accordingly the defendant had paid the rent for the four months through a cheque of Rs. 10,000, and since then the defendant has been in possession of the suit property as a tenant. It is also averred that the defendant, in his own handwriting, has admitted that the cheque of Rs. 10,000 was issued by him to the plaintiff towards payment of rent for the period from 01.06.2010 to 30.09.2010.

4. It is stated that thereafter, the defendant requested the plaintiff for grant of more time to make payment of balance consideration up to 31.3.2011. Thereafter, the defendant further paid Rs. 6,50,000 to the plaintiff on different dates and he used to obtain the signatures of the plaintiff on receipts prepared by him without disclosing the contents therein and without providing a copy of the same to the plaintiff. It is averred that in this manner the defendant made payment of Rs. 9,00,000, however he failed to make payment of balance sale consideration of Rs. 2,50,000 despite repeated requests and demands of the plaintiff.

5. It is further averred that due to nonpayment of balance __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam QasmiDEEPAK by DEEPAK VATS Page no. 3 of 24 VATS Date: 2023.12.06 16:12:46 +0530 consideration, the plaintiff served legal notice dated 26.9.2011 on the defendant and terminated the salepurchase transaction and forfeited the said amount so paid by the defendant, and thus the transaction came to an end. Vide a subsequent legal notice dated 26.09.2011, the plaintiff called upon the defendant to pay the arrears of rent w.e.f 1.10.2010 and to vacate and handover the possession of the suit property. It is stated that the said notices have been duly served on the defendant.

6. It is averred that the after receipt of the said notices, the defendant approached the plaintiff in October 2011 and requested the plaintiff not to evict him from the suit property as he was passing through a financial crisis and did not have funds to pay the balance amount or arrears of rent. It is further averred that as per the defendant's suggestion, it was agreed that the plaintiff would allow him to use and occupy the said premises and adjust the aforesaid amount of Rs 9,00,000 against monthly rent of Rs.10,000/ w.e.f. 1.10.2010 and after adjustment and completion of the said amount, the defendant would vacate the suit property and hand over the same to the plaintiff.

7. It is further averred that the said amount of Rs. 9,00,00 as agreed to be adjusted towards monthly rent @ Rs 10,000 w.e.f. 1.10.2010 was completed on 31.3.2018. It is also averred that in the last week of February 2018, the plaintiff reminded the defendant that the complete __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam QasmiDEEPAK VATS by DEEPAK Page no. 4 of 24 VATS Date: 2023.12.06 16:12:54 +0530 amount has been adjusted and now the defendant is required to vacate and handover the possession to the plaintiff by 31.3.2018, however the defendant failed to vacate the same. It is stated that since the term of the tenancy expired on 31.3.2018, the defendant is now an unauthorized occupier, and is liable to pay damages for unauthorized use and possession w.e.f 1.4.2018 till actual handing over of possession. The plaintiff has further averred that on 18.6.2018 he served the defendant with statutory notice dated 18.6.2018 and called upon the defendant to vacate the suit property, but despite service of the same, the defendant failed to comply.

8. Based on this, the plaintiff approached this court with the present suit seeking recovery of possession of the suit property, recovery of mesne profits/damages of Rs 40,000 for period from 1.4.2018 to 31.7.2018, Rs.10,000 per month, from the date of filing of suit till vacation and decree of permanent injunction restraining the defendant from creating third party interest in the suit property.

Defendant's case

9. The defendant, in his written statement, denied all allegations made in the plaint and stated that he is the chairman/trustee of Darul Uloom Delhi Trust (regd) and the plaintiff approached him to sell the suit property at Rs. 11,50,000. Further, on 01.06.10, the plaintiff asked the defendant to pay Rs. 10,000 for preparing agreement to sell, which were paid through a cheque. It is averred that the agreement to __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK VATS Page no. 5 of 24 VATS Date: 2023.12.06 16:13:15 +0530 sell was prepared on 02.06.2010, and the same was signed and executed on 03.06.10. It is stated that a sum of Rs. 2,50,000 was paid at the time of preparation of sale agreement, and balance sum of Rs 9,00,000 was to be paid on or before 30.09.10. It is averred that the last date of payment was extended by plaintiff on many occasions by accepting further payments beyond 30.09.10.

10. It is contended that the defendant paid a total of Rs 9,00,000 to the plaintiff till 05.01.2011 and has always been willing to make balance amount of Rs. 2,50,000 to the plaintiff. Further, that the defendant made his last payment of Rs. 2,00,000 on 05.01.2011 by way of cheque against a duly acknowledged receipt dated 05.01.2011, by way of this receipt, the plaintiff agreed that balance amount to be paid by the def is 2,50,000, and if the defendant failure to make the payment by 31.03.2011, the defendant trust would pay Rs. 1000 per month till full payment.

11. It is further averred that the defendant got a room kitchen and toilet constructed on first floor out of his own funds and since then the trust has been enjoying possession of property and has been imparting Islamic theological education to children of poor section of society. It is stated that the defendant visited the house of the plaintiff to make payment of balance amount, but the plaintiff himself refused to receive the full and final settlement amount, and has filed the present suit merely to harass the defendant.

12. It is also averred that there was no landlordtenant relationship between the plaintiff and the defendant, and the trust is rightful owner in possession of the property by virtue of sale agreement, and having made payment of more than 78% sale consideration.

13. The defendant has prayed for dismissal of the suit as the plaintiff is not entitled to any relief.

Replication

14. The plaintiff reiterated that, the defendant on every occasion requested that he has failed to arrange the balance amount and he got the time extended for making payment of balance consideration. The plaintiff also stated that the receipt of payment dated 05.01.11 is tampered by removing the name of the plaintiff mentioned and retyping the same below as executant. It was also averred that the transaction which was to be completed on 30.9.2010 was extended till 31.3.2011, but that also was never completed by the defendant. It is further stated that the defendant has not paid any amount towards the balance sale consideration after 31.3.2011. It is prayed that the suit be decreed.

Issues:

15. Upon completion of pleadings and admission and denial of documents, this Court framed the following issues for trial:

__________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK VATS Page no. 7 of 24 VATS Date: 2023.12.06 16:13:33 +0530 (1) Whether the plaintiff is entitled to the decree of possession as prayed in prayer A of plaint against the defendant? OPP (2) Whether the plaintiff is entitled to the decree of mesne profit as prayed for in prayer B of plaint against the defendant? OPP (3) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in prayer C of the plaint? OPP (4) Whether there was no landlord tenant relationship between plaintiff and defendant? OPD (5) Whether the plaintiff is entitled to the cost of the proceedings?

OPP (6) Relief.

Plaintiff's Evidence:

16. The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit in which he reiterated the facts stated in his plaint on oath. The plaintiff further placed reliance on the following documents; Ex.PW1/A (site plan of the suit property), Ex. PW1/B (agreement to sell), Ex. Mark A (copy of receipt dated 03.06.10), Ex. Mark B (copy of cheque of Rs. 2,50,000), Ex. Mark C, D, E, F, G (copies of receipts dated 20.10.10, 27.10.10, 27.11.10, 30.12.10, 05.01.11), Ex. PW1/C and Ex. PW/1D (copies of notices dated 26.9.2011) and Ex. W1/E (colly) (copy of postal receipts), Ex. PW/1F (colly) and Ex. PW/1F (acknowledgment).

17. The plaintiff's brother Dr Abdul Akhir was examined as PW __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK Page no. 8 of 24 VATS VATS Date: 2023.12.06 16:13:40 +0530

2. PW2 stated in his evidence affidavit that the agreement to sell was executed in his presence, and identified his signature at point A on Ex. PW1/B. He further proved the execution of Mark A (copy of the receipt dated 03.06.2010, i.e. receipt of earnest money).

18. One Mr. Liaqat Ali was examined as PW3. He stated in his evidence affidavit that in October 2011, he was present when a meeting was called to settle dispute between the plaintiff and defendant regarding payment of balance consideration. He further stated that in his presence the defendant showed his inability to pay the balance, and proposed that the sum of Rs. 9,00,000 already paid, be adjusted at the rate of Rs. 10,000 per month as rent in respect of the suit property w.e.f. 01.10.2010 and upon complete adjustment of the said amount, the defendant would vacate the suit property.

19. The defendant did not crossexamine the plaintiff's witnessed despite given the opportunity, hence, the defendant's right to cross examine Pws was closed.

Defendant's Evidence

20. The defendant only examined one witness i.e. himself as DW

1. In his affidavit of evidence he reiterated the facts stated in the written statement. He further placed reliance on the following documents; Ex. DW1/1 (receipt dated 20.10.10), Ex. DW1/2 (receipt dated 27.10.10), Ex. DW1/3 (receipt dated 3.11.10), Ex. DW1/4 __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK VATS Page no. 9 of 24 VATS Date: 2023.12.06 16:13:48 +0530 (receipt dated 30.12.10), Ex. DW1/5 (receipt dated 05.01.10).

21. During crossexamination, DW1 was confronted with Ex. DW1/P1 a document purported to be in the handwriting of the defendant, and bearing his signature, stating that he had paid Rs.10,000 to the plaintiff as rent for a period of four months from 01.06.2010 to 30.09.2010. DW1 admitted his signature at point A of Ex. DW1/P1 and also admitted that the said document was in his writing. He further deposed that the said document was prepared prior to execution of the agreement to sell with the promise that it would be torn off after the agreement to sell was executed. He further admitted the truth of the contents of the document and stated that he handed over a cheque of Rs. 10,000 as rent for a period of four months. He also admitted that he did not possess any document to show that he had handed over Rs. 10,000 to the plaintiff to prepare the agreement to sell. He further admitted that he did not file any civil suit to get the suit property registered in the name of the defendant trust. He also admitted that he did not transfer the balance consideration i.e. Rs. 2,50,000 to the bank account of the plaintiff, he stated that he took the said amount in cash and requested the plaintiff to accept it. Thereafter, D.E. was closed and final arguments were advanced by the counsels for the parties and matter was listed for orders.

22. I have gone through the file and considered the arguments __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK Page no. 10 of 24 VATS VATS Date: 2023.12.06 16:13:56 +0530 advanced by the Ld. counsels for the parties. The issuewise findings are as follows: Issuewise Findings Issue no.(1) Whether the plaintiff is entitled to the decree of possession as prayed in prayer A of plaint against the defendant? OPP Issue no.(4) Whether there was no landlord tenant relationship between plaintiff and defendant? OPD

23. Issue no. 1 & 4 are taken up together as similar questions of facts and law are involved in deciding both the issues. The onus to prove issue no.1 was upon the plaintiff. The onus to prove issue no.4 was upon the defendant. It is the case of the plaintiff that initially the suit property was let on rent for 4 months by him to the defendant for Rs.2500/ per month, thereafter an agreement to sell Mark X1 was executed between the parties to transfer the suit property in favour of the defendant for a total sum of Rs.11,50,000/, thereafter despite availing various opportunities, the defendant failed to pay the whole amount of Rs.11,50,000/ and paid only Rs.9 lacs, due to which the agreement to sell between the parties was cancelled by the plaintiff and subsequently the suit property was let on rent to the defendant for monthly rent of Rs.10,000/ which was to be deducted from the sum of Rs.9 lacs paid by the defendant to the plaintiff as part consideration for sale of suit property. The plaintiff claims that the tenancy was in existence only till 31.03.2018. The plaintiff did not claim any rent from the defendant till 31.03.2018 and adjusted the same from the said Rs. 9 lacs paid by the defendant. Thus, the plaintiff contends that after the termination of tenancy on 31.03.2018 he is entitled for possession __________________________________________________________________________________________ CS no.1168/2018 Digitally signed by DEEPAK Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATS Page no. 11 of 24 VATS Date:

2023.12.06 16:14:06 +0530 of the suit property.

24. On the contrary, the defendant claims that there was no tenancy ever between the parties. On 02.06.2010, the suit property was sold by the plaintiff to the defendant for a sum of Rs.11,50,000/. The defendant has already paid Rs.9 lacs to the plaintiff. Thereafter, it was agreed that till the time the plaintiff pays the remaining amount of Rs.2.5 lacs, the defendant would be liable to be pay Rs.1000/ per month as rent. Further, that the defendant requested the plaintiff many times to take the balance amount and to register the sale deed, however, the plaintiff, on one pretext or other, refused the same.

Considering the rival contentions of the parties, first thing to be decided is whether there was any relationship of landlordtenant between the parties. The initial onus to prove the same is on the plaintiff. The fact that the plaintiff was previously the owner of the suit property has not be denied by the defendant. The defendant has also not denied that the complete payment of the consideration amount has not been done by him. The plaintiff has examined himself, PW2 & PW3, all of whom have clearly stated that on the failure of the defendant to pay the balance amount, it was agreed between the parties that the suit property would be used by the defendant as a tenant at monthly rent of Rs.10,000/ and same would be adjusted from Rs.9 lacs paid in advance by the defendant. All the testimonies of three plaintiff's witnesses have remained unrebutted, the witnesses were not crossexamined by the defendant despite given the opportunity and __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi by DEEPAK Page no. 12 of 24 DEEPAK VATS VATS Date:

2023.12.06 16:14:13 +0530 thus, their testimonies are deemed to be admitted by the defendant. In view of all these facts, the initial onus to prove landlordtenant relationship between the parties can be said to have been discharged by the plaintiff. Now the onus shifts upon the defendant to disprove the same.

25. The case of defendant, as discussed above, is that he is the owner and not the tenant of the suit property. The document on the basis of which the defendant claims his ownership is Mark X1. The same is just an agreement to sell/ bayana dt. 02.06.2010. It is settled law that agreement to sell is not a title document and does not result in creation of any title in favour of the transferee. It merely gives right to the transferee to become owner on execution of sale document after payment of consideration amount. Admittedly, there was no sale deed between the parties and no suit for specific performance of the agreement to to sell has been filed by the defendant. Further, admittedly, the document agreement to sell is an unregistered document and thus the defendant cannot even claim the benefit of Section 53 A Transfer of Property Act,1882, in view of clear bar of Section 17 (1 A) of Registration Act, 1908. Further, admittedly, the defendant has not paid the full consideration amount of Rs.11,50,000/. Apart from the agreement to sell Mark X1, no other document has been filed by the defendant to show that he/Trust is the owner of the suit property. Hence, it is clear that the defendant is not the owner of the suit property.

__________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi Page no. 13 of 24 DEEPAK VATSby DEEPAK VATS Date: 2023.12.06 16:14:22 +0530 Next question that arises for consideration is that whether the defendant has proved that though he/ Trust is not the owner but still there is no landlordtenant relationship between the parties. To get an answer to this question, the transactions between the parties have to be divided in two periods i.e. (1) period from 01.06.2010 to 30.09.2010 and (2) period from 01.10.2020 onwards. So far as period from 01.06.2010 to 30.09.2010 is concerned, the defendant, in his crossexamination, has admitted his signature on document Ex.DW 1/P1. The defendant has also admitted his handwriting in the said document. The document clearly states that the suit property was taken on rent from 01.06.2010 to 30.09.2010 i.e. for 04 month @ Rs.2500/ per month and a cheque was of Rs.10,000/ was drawn in favour of the plaintiff as rent for the said four months. In the WS the defendant has taken a stand that the cheque of Rs.10,000/ was issued by him in favour of the plaintiff as expenses for registration and drafting of agreement to sell.

The admission of the defendant of document Ex.DW1/P1 clearly points that the said Rs.10,000/ cheque was issued as rent for the period 1.06.2010 to 30.09.2010 and not as registration/ drafting expenses. This alludes that defendant has not stated the facts correctly in the WS. Further, when the said document Ex.DW1/P1 was put to the defendant in his crossexamination, he stated that document was meant only to be subsequently torned off after the execution of agreement to sell. This fact also does find any mention in the WS and the said explanation by defendant in his crossexamination cannot also __________________________________________________________________________________________ CS no.1168/2018 Digitally signed by DEEPAK Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATS Page no. 14 of 24 VATS Date:

2023.12.06 16:14:29 +0530 be taken at it's face value. It is apparent that the defendant has not stated correct facts in the WS and his deposition. Accordingly, so far as the period from 01.08.2010 to 30.09.2010 is concerned the defendant has admitted that the suit property was given on rent to him by the plaintiff.

26. Thereafter, admittedly, there was an agreement to sell Mark X1 executed between the parties thereby agreeing for selling of the suit property. After the execution of agreement to sell it may be said that the tenancy which was created vide Ex.DW1/P1 got terminated and the defendant came in possession of the suit property as proposed owner by virtue of agreement to sell. It may be clarified here that, as earlier said, the agreement Mark X1, being unregistered, shall have no effect by virtue of Section 17 (1A) Registration Act, but, atleast, it may be said that the tenancy between the parties which commenced by virtue of document Ex.DW1/P1 got terminated by agreement to sell Mark X1.

27. Thereafter, it is the admitted position of both the parties that the total amount of Rs. 11,50,000/ was not paid by the defendant to the plaintiff and thus, next question for consideration is whether the tenancy between the parties resumed and the agreement to sell got cancelled. Here, the plaintiff has placed on record a legal notice Ex.PW1/D dt. 26.09.2011, the said legal notice was issued by the counsel for the plaintiff to the defendant. As per the said legal notice, __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK Page no. 15 of 24 VATS VATS Date: 2023.12.06 16:14:37 +0530 the defendant did not pay the agreed amount of the sale consideration within time and thus, as per the terms and conditions of the agreement to sell the same was determined by efflux of time and the amount of Rs. 9 lacs which was paid as part consideration was forfeited by the plaintiff. The plaintiff has also placed on record the postal receipt showing the dispatch of the said legal notice Ex.PW1/D to the defendant.

There is indeed a stipulation in agreement to sell Mark X1 that in the event of nonpayment of money in time by the defendant, the amount already paid would be forfeited. Thus, the plaintiff had the right to cancel/ determine the agreement to sell and he exercised the same by issuing legal notice Ex.PW1/D. As stated already, all the three plaintiff witnesses have not been crossexamined by the defendant, thus the fact of issuance of legal notice and its service has gone unrebutted. The legal notice Ex.PW1/D amply proves that the status of the defendant as proposed owner of the suit property ceased to have effect. Now, it has to be seen, as to in what capacity the defendant remained in possession of suit property after cancellation of agreement to sell.

28. The plaintiff and the other two plaintiff's witnesses have stated that in October, 2011, as the amount was not paid by the defendant, a settlement was arrived at between the parties that the defendant would pay rent of the suit property @ Rs.10,000/ p.m. w.e.f. 01.10.2010 and shall remain in possession of the suit property as __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATS by DEEPAK Page no. 16 of 24 VATS Date: 2023.12.06 16:14:47 +0530 tenant till the amount of part consideration i.e. Rs. 9 lacs is adjusted against the rent of Rs.10,000/ p.m. Thus, as per the plaintiff the tenancy between the parties resumed in October, 2011 w.e.f. 01.10.2010. As stated earlier, all the three witnesses of plaintiff have stated this fact and they have not been crossexamined by the defendant. There is nothing in the testimonies of all three plaintiff's witnesses which suggests that they have deposed falsely and thus, the fact that the tenancy between the parties resumed in October, 2011 @ Rs.10,000/ p.m. we.f 01.11.2010 is deemed to be admitted.

Another fact which bears mention is that the defendant has alleged that on 05.01.2011 the receipt Ex.DW1/5 was executed by the plaintiff wherein it was agreed by the parties that the remaining amount of Rs.2,50,000/ would be paid by the defendant on or before 31.03.2011 and if the payment is not made till the said date, Rs.1,000/ pm would be paid by the defendant/ Trust till full payment. The defendant has placed on record Ex.DW1/5 to prove his allegations. The plaintiff has alleged that the defendant has forged the receipt Ex.DW1/5 and added the condition of payment of rent of Rs. 1000/ pm and that it was never agreed to by the parties. The plaintiff has also placed on record the copy of receipt dt. 05.01.2011 which is marked as Mark G. In the said copy there is no condition of payment of rent of Rs. 1000/ per month. It is pertinent to note that there appears to be an overwriting in Ex.DW1/5 which is filed by the defendant. It appears that a white fluid has been applied on Ex.DW1/5 and the statement of Rs.1000/ pm has been added in the receipt Ex.DW1/5. The statement __________________________________________________________________________________________ CS no.1168/2018 Digitally signed by DEEPAK Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATS Page no. 17 of 24 VATS Date:

2023.12.06 16:14:59 +0530 "if the payment is not made till due day, Rs.1000/ per month would be paid till full payment by the above Trust" is not mentioned in the copy Mark G. It is also pertinent that in the receipt Ex.DW1/5, there are two witnesses namely Mr.Shamsuddin and Mohd. Iqbal Khan, however, in the copy Mark G there are no witnesses. The said two witnesses have not been examined by the defendant for reasons best known to him. In the opinion of this court, it is not safe to rely upon Ex.DW1/5 filed by the defendant because, perhaps, there has been some overwriting in the same and the witnesses have not been examined. The possibility of tempering of Ex.DW1/5 cannot be ruled out. Accordingly, Ex.DW1/5 cannot be said to be proved on the scale of preponderance of probabilities and same is accordingly disclosed. Hence, the claim of the defendant that the plaintiff agreed that the remaining amount of Rs.2,50,000/ may be paid by 31.03.2011 and if payment is not made till that date the defendant would pay rent @ Rs.1000/ per month remains not proved. On the contrary, the version of the plaintiff that the parties agreed that the amount of Rs.9 lacs which was paid as part consideration amount was to be deducted @ Rs.10,000/ as rent per month appears plausible because the plaintiff and his witnesses deposed the same on oath and they were not cross examined.

The upshot of above discussion is that plaintiff has been successful in proving on the scale of preponderance of probabilities that after failure of the defendant in payment of the full consideration amount, the defendant took the suit property on rent @ Rs.10,000/ __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi Page no. 18 of 24 DEEPAK VATS by DEEPAK VATS Date: 2023.12.06 16:15:09 +0530 p.m. which was to be deducted from the amount of Rs.9 lacs. Thus, the tenancy of the defendant resumed w.e.f. 01.10.2010 in terms of oral settlement between the parties. It is clear now that the defendant was tenant of the plaintiff in the suit property firstly for period from 01.06.2010 to 30.09.2010 as per Ex.DW1/P1 and then for period from 01.10.2010 till date as per oral agreement between the parties in the month of October 2011. The defendant has failed to discharge the onus that shifted on him. Accordingly, it is held that there was a landlord tenant relationship between the plaintiff and defendant.

The next question is whether the defendant is liable to vacate the suit property. The plaintiff's case is that the complete amount of Rs.9,00,000/ (paid by the defendant) got adjusted in rent of the suit property till 31.03.2018, thereafter, the oral tenancy came to an end and a legal notice dt. 18.06.2018 Ex.Pw1/G was issued whereby the defendant was asked to handover the possession of the suit property. This version of the plaintiff has gone unrebutted and thus the only conclusion that may be drawn is that the tenancy of the defendant has expired and the plaintiff is entitled for possession of the suit property.

29. Before concluding issues no.1 & 4, another defence of the defendant needs to be disbursed. Ld. counsel for defendant argued that the suit property was taken on rent by the DarulUloomDelhi Trust and the suit should have been filed against all the Trustee and because the plaintiff has failed to do the same, the suit is barred U/o 1 Rule 9 __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATSby DEEPAK Page no. 19 of 24 VATS Date: 2023.12.06 16:15:34 +0530 CPC for non impleadment of necessary parties. Ld. counsel for defendant has also relied upon Order 31 Rule 2 CPC to bolster his argument. Per contra, Ld. counsel for plaintiff argued that it was the defendant who represented himself as the chairman of trust. He argued that no document of registration was filed by the Trust and that all the documents were signed on behalf of Trust by the Defendant Abdul Sattar Salam Qasmi and that there was no record of any other members of the Trust and thus, suit is not barred U/o 1 Rule 9 CPC.

30. The court is not convinced with the argument of Ld. counsel for defendant for various reasons. Firstly, an application U/o 1 Rule 10 CPC was filed on behalf of defendant at the very last stage i.e. at the stage of final arguments/ orders that all the Trustee have not been impleaded. The name of Trustee was nowhere mentioned in the said application. Secondly, though the defendant claimed that the said Trust is registered, it is nowhere stated as to under which Law/ Act the Trust is registered. The constitution/ memorandum of the Trust has not also been filed by the defendant, thereby, showing as to whether there are other trustees or what were the powers of the defendant as Chairman of the said Trust. Thirdly, throughout the transactions between the parties, only the defendant i.e. Sh.Abdul Sattar Salam Qasmi has represented the so called Trust as its Chariman. It was defendant only who signed all document i.e. agreement to sell, Receipt between between the parties, WS and all the documents. Fourthly, no other trustee ever came to court and filed any application U/o 1 Rule __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK VATS by DEEPAK Page no. 20 of 24 VATS Date: 2023.12.06 16:15:42 +0530 10 CPC to get impleaded as a member of the said Trust. For the aforesaid four reasons, it is not clear as to whether there was actually any Trust or it was only Sh. Abdul Sattar Salam Qasmi who was himself acting in the name of the said Trust. In these circumstances the plaintiff cannot be faulted to sue the defendant in his personal capacity or as chairman of the said Trust and the suit cannot be said to be barred U/o 1 Rule 9 CPC. For the same reasons in the opinion of this court Order 31 Rule 2 CPC is not applicable.

31. The Point raised by the Ld. counsel for defendant can be looked at from a different perspective too. As discussed above, after the transaction for sale of the suit property between the parties failed for nonpayment of full consideration amount, the parties entered into an oral tenancy keeping the rent @ Rs.10,000/ per month. The plaintiff states that he entered into an oral tenancy with the defendant. It is nowhere the case of plaintiff that oral tenancy was with the defendant Trust and not with the defendant. Accordingly, the present suit for filing of possession against the defendant on basis of an oral tenancy created between the parties is not barred U/o 1 Rule 9 CPC for non impleadment of any Trustee of the so called Trust. Accordingly, this defence of defendant is liable to fail. Consequently, issue no. 1 & 4 are decided in favour of the plaintiff and against the defendant.

Issue no. 2: Whether the plaintiff is entitled to the decree of mesne profit as prayed for in prayer B of plaint against the defendant? OPP __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK VATS Page no. 21 of 24 VATS Date: 2023.12.06 16:15:54 +0530 Issue no.5: Whether the plaintiff is entitled to the cost of the proceedings? OPP

32. The onus to prove these issues was upon the plaintiff. The plaintiff has claimed mense profits/ damages @ Rs.10,000/ pm for the alleged unauthorised possession of the defendant w.e.f. 01.04.2018 till the date on which the possession of suit property is handed over to the plaintiff. The law of mense profit is no more resintegra. In the case of Lucy Kochuvareed Vs. P.Mariappa Gounder & Others, (1979) 3 SCC 150 The Hon'ble Supreme Court held as follows: "24 Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and "the court may mould it accordingly to the justice of the case..........".

33. In view of the above observation of Hon'ble Supreme Court it is clear that the mense profit are decided as per the merits of a case. In the present case, one fact that this court cannot lose sight of is that more than 78% of the total consideration amount was paid by the defendant to the plaintiff to purchase the suit property. In view of this fact, the Court is of the opinion that in the peculiar facts of this case, it would not be the interest of justice to award any mense profits or costs to the plaintiff. Accordingly, mense profits and cost are denied. Issue no.2 & 5 are decided against the plaintiff and in favour of defendant.

Issue no. (3): Whether the plaintiff is entitled to a decree of permanent injunction as prayed in prayer C of the plaint? OPP __________________________________________________________________________________________ CS no.1168/2018 Digitally signed Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi DEEPAK by DEEPAK VATS Page no. 22 of 24 VATS Date: 2023.12.06 16:16:07 +0530

34. Onus to prove issue no.3 was upon the plaintiff. The plaintiff seeks injunction against the defendant thereby restraining the defendant from creating any third party interest or transferring or parting with the possession of the suit property. It has already been found that defendant is liable to handover the possession of the suit property to the plaintiff. Accordingly, defendant has no right to create any third party interest or transfer the suit property to any other third party. Accordingly, the present issue is decided in favour of plaintiff and against the defendant.

Conclusion

35. In view of the aforesaid findings, following reliefs are granted to the plaintiff:

i) A decree of recovery of possession is passed in favour of plaintiff and against the defendant thereby directing the defendant to vacate and handover the vacant, physical possession of the suit premises bearing no.S453/260, Jogabai Extn., New Delhi110025 measuring 50 sq yds., comprising of ground floor and first floor, as more specifically shown in the site plan Ex.PW1/A and to remove his entire belongings from there and handover the vacant physical possession to the plaintiff.

ii) A decree of Permanent Injunction is passed in favour of plaintiff and against the defendant thereby restraining the defendant from creating any third party interest and/ or transferring or parting with the possession of the suit premises to any third person other than the plaintiff.

36. Decree sheet be prepared accordingly after payment of requisite court fee by the plaintiff, if any. File be consigned to Record Room. Digitally signed DEEPAK by DEEPAK VATS VATS Date: 2023.12.06 16:16:23 +0530 Announced in the open Court (DEEPAK VATS) on 06th December, 2023 ACJcumCCJcumARC (SE) Saket Courts, New Delhi __________________________________________________________________________________________ CS no.1168/2018 Firasat Ali Vs. Sh. Abdul Sattar Salam Qasmi Page no. 24 of 24

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Delhi District Court

Firasat Ali vs Abdul Sattar Salam Qasmi on 6 December, 2023