Delhi District Court
Chhaya Aggarwal vs Nishant Bharthyaa @ Bhartiya on 11 March, 2025
IN THE COURT OF AYUSH SHARMA: CIVIL JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Date of Institution of Suit: October 20th, 2020
Reserved on: January 21st, 2025
Pronounced on: March 11th, 2025
SUIT NO: 521/20
IN THE MATTER OF: -
SMT. CHHAYA AGGARWAL
W/O SH. KARUNESH AGGARWAL
THROUGH ITS SPA
R/O H. NO. 19, GARHWALI MOHALLA
BLOCK H, LAXMI NAGAR,
DELHI-110092 ...PLAINTIFF
Through: Mr. Ankit Gupta,
Advocate.
VERSUS
SH. NISHANT BHARTHYAA@BHARTIYA
S/O SH. SANTOSH BHARTIYA
OFFICE AT M-160, JAGAT RAM PARK
NEAR GAGAN HOTEL, LAXMI NAGAR
DELHI-110092 ...DEFENDANT
Through: Mr. L.K. Singh and
Ms. Saira Parveen,
Advocates.
JUDGMENT
1. The present suit has been filed for recovery of possession, mesne profits/damages and permanent injunction in respect of a shop located at ground floor of the property bearing no. N-60, Jagat Ram Park, Laxmi Nagar, Delhi-110092, more particularly shown in red colour in the site plan Digitally Suit No 521/20 Pg 1 of 31 signed by AYUSH AYUSH SHARMA SHARMA Date:
2025.03.11 14:30:54 +0530 annexed with the plaint.
2. Brief facts mentioned in the pleadings of the parties are mentioned as under:
Case of Plaintiff 2.1 The plaintiff's case, as outlined in the plaint, is that the plaintiff is the owner of property bearing no. N-60, Jagat Ram Park, Laxmi Nagar, Delhi-110092 and has filed the present suit through her Special Power of Attorney (SPA), Sh. Karunesh Aggarwal. 2.2 The defendant, a friend of the plaintiff's husband, requested the plaintiff to lease the shop on the ground floor of the aforementioned property (hereinafter referred to as the "suit property") for his business, operating under the name and style of 'M/s Hira Properties.' The plaintiff rented the suit property to the defendant at a monthly rent of Rs. 9,000/-, exclusive of water and electricity charges. 2.3 The defendant paid rent only until 15.10.2019, after which he stopped making payments. As a result, the defendant has accrued outstanding rent amounting to Rs. 1,08,900/-. The plaintiff, in urgent need of the demised premises, issued a legal notice through her counsel on 16.09.2020, terminating the lease. This notice was duly served on the defendant via WhatsApp, email and speed post. However, despite the service of notice, the defendant has failed to vacate and surrender peaceful possession of the suit property. Consequently, the present suit has been filed.
2.4 By way of the present suit, the plaintiff has claimed recovery of possession of the suit property, mesne profits/damages @ Rs. 30,000/- per month from 1.10.2020 till handing over of vacant and peaceful possession of suit property and permanent injunction restraining the defendant from causing any damage and creating any third party interest in the suit Digitally signed by AYUSH Suit No 521/20 Pg 2 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:31:00 +0530 property.
Case of Defendant 2.5 The defendant has contested the suit by filing a written statement (WS). In the WS, the defendant stated that the suit has not been signed and verified by the plaintiff herself; instead, it has been signed and verified by the plaintiff's husband, who claims to act as her SPA holder based on an SPA/authority letter/affidavit dated 14.10.2020. The defendant contended that the SPA is legally defective being unstamped, making the suit liable for dismissal.
2.6 Additionally, the defendant denied the existence of a landlord-tenant relationship between the parties. The defendant contended that no document evincing creation of lease or tenancy has been filed by the plaintiff along with the plaint. It is further contended that the suit has been improperly valued for the purpose of court fees and jurisdiction, as the same has to be valued at the market value and not at the annual rent. 2.7 On merits, the defendant claimed that his possession in the suit property is that of an intending purchaser in part performance of an oral agreement of sale and purchase made between the plaintiff and the defendant. The plaintiff's husband acted as a witness to this agreement and played a key role in its formation and execution. 2.8 The defendant claimed that the plaintiff and the defendant shared a cordial relationship, with the defendant providing financial assistance to both of them and helping them in buying properties in their names or their family members. The defendant claimed that it was mutually agreed between the plaintiff, her husband, and the defendant that the defendant would receive a 2% commission on each transaction involving the sale and purchase of immovable property for the plaintiff and her family members.
2.9 The defendant claimed that the property of which suit property
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forms part of was purchased with his assistance and that he was a witness to the sale deed executed and registered in favour of the plaintiff. He claimed that the total sale consideration amounted to Rs. 33,25,000/- but the sale deed was registered on the circle rate. Furthermore, the defendant claimed that his commission for the transaction was Rs. 66,500/- (calculated at 2% of the actual sale consideration), which the plaintiff had agreed to pay later.
2.10 The defendant also claimed that before the purchase of the property that includes the suit property, he acted as an agent for the plaintiff's husband in acquiring property at N-57, N-Block, Laxmi Nagar, Delhi, for a total price of Rs. 16,50,000/-. The sale deed for this property was executed on 16.08.2012 for Rs. 13,57,849/-. The defendant's commission for this transaction was Rs. 33,000/- (2% of the actual sale consideration), which the plaintiff and her husband had also agreed to pay later. 2.11 According to the defendant, when the plaintiff and her husband acquired the property of which the suit property forms part of, it was in a severely dilapidated state and required extensive renovations. The plaintiff and her husband planned to create a shop within the property while retaining the remaining space as a residential unit. They allegedly proposed that the defendant carry out the renovations at his own expense in exchange for ownership of the shop. It was further agreed that the renovation costs, along with the outstanding commissions from the previous property transactions, would be adjusted against the shop's sale consideration. The defendant accepted this arrangement and took possession of the entire property. The defendant claimed to have spent Rs. 7,50,000/- on renovations, and in March 2016, the plaintiff and her husband informed that the total price of the suit property was Rs. 18,00,000/-. After adjusting Rs. 7,50,000/- for renovations and Rs.
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99,500/- (Rs. 66,500 + Rs. 33,000/-) for outstanding commissions, the remaining balance payable by the defendant stood at Rs. 9,50,500/-, which was to be paid in installments.
2.12 The defendant further claimed that the plaintiff and her husband were starting a garment business and sought his financial assistance. Over two years, the defendant provided them with Rs. 5,00,000/- in cash, which was agreed to be deducted from the balance sale consideration. Additionally, in April 2018, the defendant's mother transferred Rs. 3,00,000/- to the plaintiff, with an agreement that if the amount was not repaid within three months, it would also be deducted from the balance sale amount. By July 2018, since the plaintiff and her husband had not returned the money, the Rs. 3,00,000/- was adjusted, leaving Rs. 1,50,500/- as the outstanding balance.
2.13 Since the garment business did not succeed, the plaintiff and her husband refunded Rs. 3,00,000/- to the defendant's mother's bank account, thereby making the balance amount payable by the defendant to Rs. 4,50,500/-. In April 2019, the plaintiff and her husband engaged the defendant's services to sell the third floor of property no. 116, J & K Block, Laxmi Nagar, Delhi, for Rs. 62,00,000/-. The defendant earned a 2% commission of Rs. 1,24,000/-, which was adjusted against the outstanding amount, reducing the balance to Rs. 3,26,500/-. 2.14 In June 2019, the plaintiff and her husband sought the defendant's help again to sell the third floor of property no. N-57, N-Block, Laxmi Nagar, Delhi, for Rs. 23,40,000/-. The defendant earned Rs. 46,800/- in commission, reducing his balance payable to Rs. 2,79,700. 2.15 Later, in October 2019, the plaintiff and her husband again availed the services of the defendant in purchasing property no. 9 at Gyan Kunj, Laxmi Nagar, Delhi, for Rs. 1,00,00,000/-. The defendant earned a 2% Digitally signed by Suit No 521/20 Pg 5 of 31 AYUSH AYUSH SHARMA SHARMA Date:
2025.03.11 14:31:20 +0530 commission of Rs. 2,00,000/- which was adjusted against the balance payable, bringing the balance payable to Rs. 79,700/-. 2.16 The defendant asserted that he repeatedly approached the plaintiff and her husband to accept the remaining amount of Rs. 79,700/- and execute the title documents in his favour. However, the plaintiff and her husband allegedly delayed the matter and, on 16.09.2020, sent a legal notice seeking his eviction. The defendant claimed that his possession of the suit property is that of a purchaser in part performance of an oral sale agreement between him and the plaintiff. 2.17 In his para-wise reply on merits, the defendant denied the allegations made in the plaint and reiterated his claims. Issues
3. On the basis of the pleadings, vide order dated 26.08.2023, following issues were framed:
(i) Whether the plaintiff is entitled to a decree of possession, as prayed in prayer clause 'a' of the plaint? OPP
(ii) Whether the plaintiff is entitled for mesne profits/damages @ Rs. 30,000/- per month from 01.10.2020 till the actual possession of the suit property, as prayed in prayer clause 'b' of the plaint, if yes at what rate of interest and for which period? OPP
(iii) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
(iv) Whether the defendant is in the possession of the suit property not in the capacity of the tenant but in part performance of the oral contract of sale and purchase of the suit property with the plaintiff?
OPD
(v) Relief.
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Suit No 521/20 Pg 6 of 31 AYUSH SHARMA
SHARMA Date:
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Plaintiff's Evidence
4. In order to substantiate her case, plaintiff examined her SPA holder/husband as PW1 who filed his evidence by way of affidavit Ex.
PW1/A. He reiterated the contents of plaint on oath and relied upon the registered sale deed Ex. PW1/1 (OSR), actual photograph of the suit property Ex.PW1/2, original SPA Ex. PW1/3, ID proof of plaintiff Ex. PW1/4 (OSR), ID proof of SPA holder Ex. PW1/5 (OSR), original site plan Ex. PW1/6, Electricity bill Ex. PW1/7 (OSR), legal notice Ex. PW1/8, screenshot of WhatsApp Ex. PW1/9, printout of email Ex. PW1/10, original receipt of speed post with tracking report Ex. PW1/11 and certificate u/s 65B Ex. PW1/12.
Defendant's Evidence
5. In order to prove his case, defendant examined himself as DW1 and filed his evidence by way of affidavit Ex. DW1/A. He reiterated the contents of WS on oath and relied upon the documents tendered by PW1. Submissions
6. Mr. Ankit Gupta, Ld. Counsel for the plaintiff, advanced the following arguments:
6.1 The plaintiff is the rightful owner of the suit property, having acquired it through a registered sale deed dated 14.11.2015 (Ex. PW1/1).
The defendant has also acknowledged the plaintiff's ownership. The suit property was given to the defendant on a monthly rent/license fee of Rs. 9,000/- excluding other charges. The defendant's status in the property was that of a tenant/licensee, which was terminated through a legal notice dated 16.09.2020 (Ex. PW1/8).
6.2 The defendant's claim of possession of the suit property as an intending purchaser under part performance of an oral sale agreement is baseless and lacks merit. There is no registered document, nor any written Digitally signed by AYUSH Suit No 521/20 Pg 7 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:31:32 +0530 agreement outlining the terms and conditions of the alleged sale. 6.3 The defendant's assertions regarding the payment of consideration through adjustments of brokerage/commission earned as an agent in property transactions, renovations amounting to Rs. 7.5 lakhs, and investments in the plaintiff's garment business are inconsistent and contradictory. The defendant has not provided any documentary proof supporting these claims, whether regarding commission agreements, the alleged purchase of the suit property, renovation expenses, or investments in the garment business. Regardless, the plaintiff remains the legal owner of the suit property, and the defendant cannot claim possession based on an oral agreement.
6.4 Once the SPA has been marked as an exhibit, its admissibility cannot be challenged later, as per Section 36 of the Indian Stamp Act. In any event, the plaintiff is ready to pay the stamp duty and the penalty assessed on it.
To support his argument, the counsel relied on the judgments of the Hon'ble Supreme Court in Hindustan Steel Ltd. v. Dilip Construction Company (1969) 1 SCC 597 and Splendor Land Base Ltd. v. Aparna Ashram Society & Anr. (2023) SCC OnLine Del 5148.
7. Mr. L.K. Singh, Ld. Counsel for the defendant, presented the following arguments:
7.1 The Special Power of Attorney (SPA)/authority letter/affidavit dated 14.10.2020, executed by the plaintiff in favour of her husband, is unstamped and, therefore, invalid. As the document is inadmissible due to being unstamped, the authority granted to the plaintiff's husband is also non-existent. Consequently, the plaintiff's husband cannot be considered a competent witness to prove the plaintiff's case. He cited the judgment of Hon'ble Delhi High Court in Gurmeet Singh Sidana v. Ameek Singh Sahani (CRP No. 10/2023), and the judgments of Hon'ble Supreme Court Digitally signed by AYUSH Suit No 521/20 Pg 8 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:31:38 +0530 in Mohinder Kaur v. Sant Paul Singh (Civ. Appeal No. 2869-2870 of 2010), and Janki Vasudeo Bhujwani & Anr. v. IndusInd Bank Ltd. & Ors. (Civ. Appeal No. 6790 of 2003) in support of this contention.
7.2 The plaintiff's suit is based on a licensor-licensee relationship and is not couched in the form of a mandatory injunction but in the form of recovery of possession. Consequently, the suit's valuation for jurisdiction and court fees should be determined based on the market value, requiring payment of ad valorem court fee. However, the plaintiff has valued the suit based on the annual rent and not on the market value which is beyond the pecuniary jurisdiction of this court. He referred to the judgment of Hon'ble Supreme Court in Bharat Bhushan Gupta v. Pratap Narain Verma & Anr. (Civ. Appeal No. 4577 of 2022) to support this argument. 7.3 There is no landlord-tenant or licensor-licensee relationship between the plaintiff and the defendant. Instead, the defendant is in possession of the suit property based on an oral agreement for its sale and purchase for a total consideration of Rs. 18,00,000/-. Partial payments of the sale consideration were made over time through adjustments of the commissions earned by the defendant for facilitating various property transactions for the plaintiff and her family, renovation expenses incurred for the entire property, and financial contributions to the plaintiff's and her husband's garment business.
7.4 The defendant has filed a separate suit seeking specific performance of the oral sale agreement regarding the suit property. The case is pending before Sh. Hem Singh, Ld. District Judge (East), Karkardooma Courts, Delhi.
7.5 The surrounding circumstances and evidence presented by the plaintiff indicate the existence of an oral agreement for the sale of the suit property between the parties. The plaintiff has failed to produce any Digitally signed by AYUSH AYUSH SHARMA Suit No 521/20 Pg 9 of 31 SHARMA Date:
2025.03.11 14:31:44 +0530 documentary proof showing that the defendant ever paid Rs. 9,000/- per month as rent/license fee. Additionally, the plaintiff has not clarified when exactly the defendant took possession of the suit property. The plaintiff has also admitted to multiple property transactions in which the defendant acted as a broker and to his friendly relations with the defendant. Analysis
8. I have heard the submissions and perused the record along with the written submissions filed by the parties Since, issues no. (i) and (iv) are interlinked and involve common discussion of facts and law, they have been taken conjointly first, for analysis. The onus of proving first issue is on plaintiff and fourth issue is on defendant. Issue No. (i) and (iv) (on possession and plea of part performance of an oral agreement for sale and purchase of suit property)
9. The plaintiff's case is based on the claim that the suit property was given to the defendant at a monthly rent/license fee of Rs. 9,000/- and the license was subsequently terminated through a legal notice dated 16.09.2020. As a result, the plaintiff seeks recovery of possession. However, the defendant contests this claim, asserting that he occupies the suit property under an oral agreement for its sale and purchase for a total agreed consideration of Rs.18,00,000/-. The defendant further asserts that he has already paid a substantial portion of the sale consideration by adjustment of the following towards the agreed sale consideration:
a. Brokerage/commission dues for his role as an agent in facilitating property transactions for the plaintiff and her husband. b. Renovation expenses for the entire suit property, which he claims to be Rs. 7,50,000/-.
c. Investment/payment of Rs. 5,00,000/- in cash into the plaintiff's garment business.
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Suit No 521/20 Pg 10 of 31 AYUSH SHARMA
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10. According to the defendant, as of October 2019, only Rs. 79,700/-
remains unpaid out of the total sale consideration of Rs. 18,00,000/-. Before evaluating the conflicting claims, it is important to highlight that a plea of part performance based on an oral agreement to sale is unsustainable in law. Section 53A of the Transfer of Property Act, 1882 ('TP Act') states that if a person contracts to transfer immovable property for consideration through a written agreement, signed either by them or on their behalf, and if the terms necessary for the transfer can be ascertained with reasonable certainty, then the transferee--having taken possession of the property or any part thereof in part performance of the contract--can protect their possession. This protection extends only if the transferee, already in possession, continues to do so in furtherance of the contract and has either performed or is willing to perform their part of the agreement. The Hon'ble Supreme Court, in Mool Chand Bakhru & Anr. v. Rohan & Ors.1, held that a written agreement is a fundamental prerequisite for invoking the equitable doctrine of part performance under Section 53A of the TP Act. The court observed:
"11. Section 53-A provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contact, and the transferee has performed or is willing to perform his part of the contract then he is entitled 1 AIR 2002 SC 812 Digitally signed by AYUSH Suit No 521/20 Pg 11 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:31:57 +0530 to protect his possession in respect of the property of which he was put in possession in part performance of the agreement to sell.
12. This Court in Nathulal v. Phool Chand [1970] 2 SCR 854, while interpreting Section 53-A called out the following conditions to be fulfilled for making out the defence of part performance to an action in ejectment by the owner, as under:
"(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(2) that the transferee has, in part performance of the contract, taken possession of the property or any pat thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract."
After culling out the aforesaid conditions, it was held:
"If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing Digitally signed by AYUSH Suit No 521/20 Pg 12 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:02 +0530 against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
13. In Sardar Govindrao Mahadik v. Devi Sahai [1982] 2 SCR 186 , it was reiterated that to qualify for the protection of the doctrine of part performance it must be shown that there is an agreement to transfer of immovable property for consideration and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
14. In view of the authoritative view expressed by this Court the learned counsel appearing for the respondents on being called upon did not dispute the proposition that a proposed vendee could not protect his possession of an immovable property on the basis of an oral agreement. He conceded that written agreement was sine qua non for the applicability of the equitable doctrine of part performance enshrined in Section 53-A of the Act.
15. Learned counsel appearing for the respondents by referring to the letters written by Mool Chand dated 14th January, 1969 - Ex. P12, 24th January, 1969 - Ex. P11, 5th February, 1969 - Ex. P10, 18th February, 1969 - Ex. P9, 8th March, 1969 - Ex. P8, 28th March, 1969 - Ex. P7 and 14th May, 1969 - Ex. P5 submitted that Mool Chand having admitted that he had agreed to sell his half share of the property, the letters written by him be deemed to be the written agreement to sell in terms of Section 53A of the Act. We have perused these letters and, on their perusal, find that Mool Digitally signed by AYUSH Suit No 521/20 Pg 13 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:08 +0530 Chand in these letters has admitted that he had agreed to sell his half share of the property for a sum of Rs. 15,000/- out of which Rs. 10,000/- was received by him. In each of these letters Mool Chand has called upon Bhagwan Dass to pay the balance amount of Rs. 5,000/- as he was in urgent need of the money. Bhagwan Dass failed to do so. Ultimately, on 21 st May, 1070 Mool Chand wrote a letter, Ex. P3, repudiating the so called agreement to sell as Bhagwan Dass had failed to carry out his part of the agreement. It was further stated in this letter that the amount received by him as advance was appropriated by him towards the use and occupation of the property at the rate of Rs. 20/- per day from 1st May, 1970 onwards. He categorically stated that he was no longer interest in selling the property. From the admission made by Mool Chand that he had agreed to sell his half share in these letters, learned counsel for the respondents argued that the letters written by him be taken to be the agreement to sell in which the terms of the agreement have been spelt out. We do not find any substance in this submission. The letters written by Mool Chand cannot be termed as an agreement to sell, the terms of which have been reduced into writing. At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily the emphasis is not on a written agreement only. In addition the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. There was no meeting of minds. Admission made by Mool Chand of an oral agreement to sell does not spell out the other essential terms of the agreement to sell such as the time frame within which the sale deed was to be executed and as to who would pay the registration Digitally signed by AYUSH Suit No 521/20 Pg 14 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:13 +0530 charges etc. The letter written by Mool Chand cannot be taken to be an agreement to sell within the meaning of Section 53-A spelling out the terms of an agreement for sale. In our view, the High Court fell in error in coming to the conclusion that the letters written by mool Chand, referred to above, constituted an agreement to sell the terms of which have been reduced in writing. Terms necessary to constitute the transfer with reasonable certainty could not be ascertained from the letters written by Mool Chand to his uncle. At the most it is an acknowledgment that there was an oral agreement to sell but the same could not be construed to be a written agreement to sell the terms of which have been reduced into writing. Written agreement has to precede the putting of the proposed vendee in possession of the property. Bhagwan Dass was never put in possession in pursuance of the property to the written agreement arrived at between the parties.
(Emphasis supplied)
11. Similarly, in V. R. Sudhakara Rao & Ors. v. T. V. Kameswari 2, the Hon'ble Supreme Court held that possession based solely on an oral agreement of sale does not entitle a person to protection under Section 53A of the TP Act. Furthermore, in Kaushal Aggarwal & Ors. v. Ashok Malhotra & Ors.3, the Hon'ble High Court of Delhi reiterated the position and held:
"3. I consider that on the basis of an oral agreement to purchase, no ownership rights can be claimed in a property. The part performance which is alleged by the plaintiffs. cannot be looked into in view of Section 53(A) of the Transfer of Property Act as the 2 (2007) 6 SCC 650 3 CS (OS) No. 165/2009 Digitally signed by AYUSH AYUSH SHARMA Suit No 521/20 Pg 15 of 31 SHARMA Date:
2025.03.11 14:32:22 +0530 basic and fundamental requirement of Section 53A is that the agreement should be in writing specifying precisely the terms and conditions of contract. Creation of a right in any manner in immovable property of more than Rs. 100 is compulsorily register-able. Under these circumstances, I consider that the suit filed by the plaintiffs seeking injunction restraining the tenant from handing over possession to the landlord lawful owners cannot be entertained neither the Court can restrain the lawful owners of the property from exercising their rights in inducting another tenant or another person because of plaintiffs' claim of entering into an oral agreement to sell of the property around 25 years ago without any document showing that any amount was paid towards sale of the property. The suit is not maintainable and is hereby dismissed."
(Emphasis supplied)
12. The Hon'ble High Court of Delhi in Sunil Kapoor v. Himmat Singh & Ors.4, in the context of plea of part performance has explained the law succinctly and held:
"11. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v. Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance 4 167 (2010) DLT 806 Digitally signed by AYUSH Suit No 521/20 Pg 16 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:30 +0530 thereto is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.
12. Section 53A of the Transfer of Property Act codifies the doctrine of part performance. A purchaser of immovable property, who in pursuance to an agreement to sell in writing has been put into possession of the property, is entitled to so remain in possession. However, in the present case, there is no agreement to sell in writing. The respondents/plaintiffs deny inter alia the averments of the petitioner/defendant of what transpired on 8th July, 2004. Be that as it may, in none of the receipts relied upon by the petitioner/defendant, is there any mention of delivery of possession/constructive possession to the petitioner/defendant of the premises in part performance of the agreement to sell. The express plea of the petitioner/defendant in this regard is also of an oral agreement to that effect on 8th July, 2004. Even if the receipts relied upon by the petitioner/defendant are to be termed as an agreement in writing, the same as per the petitioner/defendant also are executed by the respondents 1 & 2 only. There is no agreement in writing with the respondent No. 3. The property admittedly belongs to all three of them and the petitioner is claiming the agreement with all three of them. There is no authority in writing shown of the respondent No. 3 in favour of respondent No. l and/or respondent No. 2. The agreement to sell with the respondent No. 3 as per the plea of the petitioner/defendant is thus oral only.
13. Even the writing claimed by the petitioner/defendant does not provide the possession of the premises having been delivered to the Digitally signed by AYUSH Suit No 521/20 Pg 17 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:36 +0530 petitioner/defendant in pursuance to the agreement to sell. From the pleas of the petitioner/defendant himself, notwithstanding the oral agreement to sell dated 23 February, 2004, he was liable to pay rent thereof and also continued to pay the rent. It is his case that only on 8th July, 2004, it was orally agreed by the respondent No. 2 with the petitioner/defendant that he should not pay rent w.e.f 1st August, 2004 and thereafter should continue to occupy the premises in pursuance to the agreement to sell. There is nothing to support the said plea of the petitioner/defendant which essentially is of an oral agreement on 8 th July, 2004. The said plea, in the face of the notice dated 22nd July, 2004 sent by all the respondents of termination of tenancy of the petitioner even otherwise does not inspire confidence. It is not the case of the petitioner/defendant that anything has happened between 8th July, 2004 and 22nd July, 2004 owing whereto the respondents/plaintiffs change their mind. It defies logic as to why the respondent No. 2, alleged to have agreed with the petitioner/defendant on 8th July, 2004 not to pay rent w.e.f. 1st August, 2004, within days thereafter will change her mind and have a notice of termination of tenancy issued to the petitioner/defendant. Ordinarily there is a hiatus between the date of instructing the advocate and the date of issuance of the notice. It can be presumed that the instructions for issuance of notice dated 22nd July, 2004 would have been issued even earlier to that date. In the circumstances, the plea of the petitioner/defendant of what transpired on 8 July, 2004 cannot be accepted.
14. Even otherwise, the Stamp Act and the Registration Act as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment an agreement to sell of immovable Digitally signed by AYUSH Suit No 521/20 Pg 18 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:42 +0530 property where-under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his possession in part performance of the agreement to sell.
15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.
16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment."
(Emphasis supplied)
13. Given the settled legal position, the defendant's plea of part performance based on an oral agreement for the sale and purchase of the suit property is legally untenable and cannot serve as a basis for protecting possession. In addition to the legal position, on the evidence presented in this case, it is apparent that the defendant has failed to substantiate his claim or provide any justification for retaining possession of the suit Digitally signed by AYUSH Suit No 521/20 Pg 19 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:32:48 +0530 property. A brief overview of the evidence of the plaintiff and the defendant presented in the present case is as follows:
a. During cross-examination, PW1 testified that the plaintiff is in sound health and mind and can travel freely. He denied the suggestion that the legal notice, marked as Ex.PW1/8, described the defendant's status as a licensee. He voluntarily stated that the defendant's status in the suit property is that of a tenant. PW1 admitted that no document has been submitted to establish that the plaintiff was receiving Rs. 9,000/- per month for the suit property. He further acknowledged that no formal document was executed between the parties at the time of handing over possession of the suit property to the defendant. He explained voluntarily that since the defendant was a good friend, there was no perceived necessity to execute any document.
b. PW1 confirmed his signatures on the agreement to sell and purchase dated 23.06.2012 (Ex.PW1/D1), sale deed dated 01.08.2019 (Ex.PW1/D2), and the sale deed dated 16.10.2019 (Ex.PW1/D3). He stated that he had known the defendant for 10 to 12 years through common friends. He also admitted knowing that the defendant was engaged in the property dealing business under the name 'Hira Property.' PW1 further acknowledged that the plaintiff had acted as a broker for the sale of the top-floor flat of property No. N-57, Laxmi Nagar, Delhi, but denied that the brokerage was fixed at 2% of the sale consideration. He deposed that no specific percentage was fixed.
c. He also admitted that the defendant acted as a broker while purchasing the property of which suit property forms part of.
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However, he denied that the total sale consideration for the entire property was Rs. 33,25,000/- stating instead that it was Rs. 13,30,000/-. He further denied the claim that he approached the defendant with an offer that if the defendant invested in renovating the property, he would transfer ownership of the suit property (a shop) for Rs. 18,00,000/- with the renovation costs adjusted in the sale consideration.
d. Additionally, PW1 denied that possession of the suit property was handed over to the defendant as an intending purchaser in part performance of an oral sale agreement. He also denied any agreement that the commission earned by the defendant from property transactions involving the plaintiff and his family members would be adjusted against the sale consideration. PW1 refuted any involvement in a garment import business from Bangladesh with the defendant. While he admitted traveling to Dhaka with the defendant in 2018, he stated it was purely a casual trip, denying any business relationship. He further denied that the he had borrowed Rs. 5,00,000/- in cash from the defendant for a garment business with an understanding that it would be adjusted toward the sale consideration. However, he admitted receiving Rs. 3,00,000/- from the defendant's mother's account but voluntarily stated that it was returned to the same account. He acknowledged that the defendant was a broker in the transaction concerning the property referenced in Ex.PW1/D2.
e. PW1 refuted the claim that as of October 2019, the outstanding sale consideration payable by the defendant was Rs. 79,700/- after adjusting Rs. 7,50,000/-, Rs. 5,00,000/-, and the brokerage commission of 2% from the total sale consideration of Rs.
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AYUSH SHARMA
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18,00,000/-. He further denied that the defendant was not a tenant/licensee in the suit property or that he lacked competency to testify before the Court.
f. DW1 stated that he has been working as a property dealer since 2007 but could not specify his current monthly income. He also did not recall the amount declared in his last Income Tax Return (ITR) and admitted that he does not maintain business records such as balance sheets, profit & loss statements, or ledgers. DW1 acknowledged that the electricity connection for the suit property is in the plaintiff's name and admitted that he has not submitted any proof of electricity bill payments. He also stated that the suit property has remained closed since his father's passing in 2021. He confirmed that he acted as a broker in the property transaction involving the plaintiff's husband.
g. DW1 denied requesting permission from the plaintiff and her husband to operate his business, 'Hira Property,' from the suit property for a monthly rent of Rs. 9,000/-. He admitted that he is not the owner of the suit property as of today. He stated that the plaintiff and her husband never paid him any commission for the property transactions in which he acted as a broker, whether before or after the purchase of the suit property.
h. DW1 admitted that he has not provided any document proving that he incurred and expenditure of Rs.7,50,000/- in renovation, visit of plaintiff's husband with him for any business purpose or paid Rs. 5,00,000/- to the plaintiff. He confirmed that Rs. 3,00,000/- received from the defendant's mother's account was returned to the same account. He denied any offer or adjustment of amounts between him and the plaintiff concerning the suit property. He denied being a Digitally signed by Suit No 521/20 Pg 22 of 31 AYUSH AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:07 +0530 tenant in the suit property. He further denied the suggestion that there was no oral agreement of sale between the plaintiff and the defendant concerning the suit property.
14. A thorough examination of the evidence presented in the case reveals the following:
a. PW1 has explicitly denied the existence of any oral agreement for the sale and purchase of the suit property between him and the defendant for a total consideration of Rs. 18,00,000/-. He has also refuted the claim that the brokerage was fixed at 2% for the sale and purchase of the immovable property. The defendant, during the cross-examination of the plaintiff, has failed to extract anything material that could raise doubts about the credibility of PW1's testimony.
b. The fact that the defendant acted as a broker for the plaintiff or her husband in the purchase and sale of immovable property does not, in itself, establish any specific terms of an agreement for the purchase of the suit property. Furthermore, the defendant was not given possession of the suit property under any written agreement. Notably, the defendant's claim that he adjusted his alleged commission from a 2012 property sale towards the purchase of the suit property in March 2016 is highly implausible. It is highly improbable that a commission earned in 2012 would lie with the plaintiff or her husband without any objection from the defendant with the expectation of it being adjusted against a future and uncertain purchase of the suit property by them in the year 2016. c. The onus of proving the existence of any oral agreement for sale and purchase rested on the defendant. However, apart from unsubstantiated allegations, the defendant has not presented any Digitally signed by AYUSH Suit No 521/20 Pg 23 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:17 +0530 documents to establish the terms of the sale and purchase agreement for the suit property, proof of any payment made, bills reflecting expenses of Rs. 7,50,000/- for additions, alterations, or renovations, or any evidence related to a business trip to Bangladesh. Additionally, the defendant has not placed anything on record except bare assertions regarding the payment of Rs. 5,00,000/- or any sale consideration amount.
15. It is undisputed that the plaintiff is the owner of the suit property and the defendant's suit for specific performance is still pending before the concerned court for adjudication. The onus of proving the defence of an oral agreement and the plea of part performance rested on the defendant. However, he has failed to establish any of his claims or demonstrate a superior title to that of the plaintiff. In the present case, although the plaintiff has not produced any rent agreement or rent/license fee receipts, it has been conclusively established that the defendant's possession of the suit property originated through the plaintiff. Consequently, the defendant's status in the suit property can, at best, be categorized as that of a permissive occupier or licensee. The plaintiff terminated the defendant's license/tenancy through a legal notice dated 16.09.2020 (Ex.PW1/8), the service of which remains undisputed by the defendant. As all the necessary conditions for the recovery of possession have been met and the defendant has failed to substantiate his claim of part performance, issues no. (i) and (iv) are decided in favour of the plaintiff and against the defendant.
16. Apart from the merits, which have already been discussed and addressed, the counsel for the defendant raised two technical objections-- one regarding the SPA of PW1 and the other regarding the valuation of the Digitally signed by AYUSH Suit No 521/20 Pg 24 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:24 +0530 suit for jurisdiction and court fees purposes. He argued that the SPA is unstamped, rendering PW1 an incompetent witness. Additionally, he contended that for the relief of possession, the plaintiff must value the suit property at its market value and pay ad valorem court fees accordingly, which would place the suit beyond the pecuniary jurisdiction of this Court.
17. Regarding the objection of unstamped power of attorney, the defendant's counsel relied on Gurmeet Singh (Supra), Mohinder Kaur (Supra), and Janki Vashdeo Bhojwani (Supra). In Janki Bhojwani, the court held that a power of attorney holder who has acted in accordance with the power granted may testify on behalf of the principal regarding those acts. However, he cannot testify about acts performed by the principal personally, nor can he provide testimony regarding matters of which only the principal has personal knowledge and should be cross- examined. Similar observations were made in Mohinder Kaur concerning the authority of a power of attorney holder. In the present case, it is significant that the defendant, in his written statement on page 6, expressly stated:
"It is submitted in this regard that the status of the possession of the defendant in the suit property is that an intending purchaser in part performance of an oral contract/ agreement of sale and purchase entered into and contracted between the plaintiff and the defendant with the husband of the plaintiff being a witness to the said oral contract and also being the person instrumental in the creation and conclusion of the said contract."
18. Furthermore, during cross-examination, the defendant admitted that his dealings concerning the suit property were with the plaintiff's husband. Therefore, it cannot be asserted that PW1 lacks personal knowledge of the Digitally signed by AYUSH Suit No 521/20 Pg 25 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:31 +0530 entire transaction. The absence of the plaintiff's testimony and the examination of the power of attorney holder, in the opinion of this Court, do not suffer from any infirmity so as to discard the evidence of PW1.
19. The argument regarding the non-payment of stamp duty on the SPA is unfounded, as no objection was raised at the time the document was introduced into evidence and marked as an exhibit. Furthermore, even in the absence of a special power of attorney, PW1 remains a relevant witness in support of the plaintiff's case. In Javer Chand v. Pukhraj Sharma5, the Hon'ble Supreme Court held that under Section 36 of the Stamp Act, once a document has been admitted as evidence, its admissibility cannot be questioned at any stage of the suit or proceedings. The Court observed:
"7. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has 5 AIR 1961 SC 1655 Digitally signed by AYUSH Suit No 521/20 Pg 26 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:39 +0530 been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in the examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
(Emphasis supplied)
20. Since no challenge was raised at the time of admission of SPA, Section 36 of the Stamp Act applies, preventing any objections related to improper stamping. Moreover, this Court is of the view that the fact that Ex. PW1/3 is unstamped does not justify discarding the entire testimony of PW1. The Stamp Act is a fiscal measure enacted to secure revenue for state on certain classes for instrument: it is not enacted to arm a litigant with a weapon of technicality to meet the case of its opponent 6. It is well established that procedural rules exist to serve justice, not obstruct it. Substantive rights should not be undermined due to a curable procedural irregularity7.
21. In any event, counsel for the plaintiff has stated that the plaintiff is willing to furnish the required stamp duty along with the penalty for the unstamped SPA (Ex. PW1/3). Accordingly, the plaintiff is directed to 6 Hindustan Steel Ltd Vs. Dilip Construction Company (1969) 1 SCC 597 7 Union Bank of India Vs. Naresh Kumar AIR 1997 SC 3 Digitally signed by AYUSH Suit No 521/20 Pg 27 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:47 +0530 deposit the requisite stamp duty and penalty before this court. The Reader shall collect the amount and forward it, along with the attested SPA, to the concerned Collector of Stamps, who shall collect the amount and return the duly stamped SPA to the court. The judgment in Gurmeet Singh Sidana (Supra) concerned a power of attorney executed in Australia that had not been assessed for stamp duty under Article 48 of Schedule I of the Stamp Act. Additionally, the challenged order was passed under Order XII Rule 6 CPC and not after a full-fledged trial. Given the facts and circumstances in the present case, the judgment is not applicable. Therefore, the objection regarding the power of attorney is dismissed.
22. The next objection pertains to the valuation of the suit for the purpose of jurisdiction and court fees. The defendant's counsel argued that the suit property must be assessed at market value for the relief of possession, thereby requiring ad valorem court fees. However, this argument is baseless and unsustainable. The fundamental principle remains: once a licensee, always a licensee, meaning a licensee cannot deny or exclude the possession of the licensor. This suit primarily seeks possession, and the plaintiff is not precluded from seeking recovery of possession merely because the relief has not been framed as a mandatory injunction. The nature of the present suit, makes its evident on the face of the record that the plaintiff has sought the possession of the suit property alleging that the defendant is her tenant / licensee at a monthly license fee of Rs.9,000/- per month. It is the nature of the relief which is decisive of the question of the suit valuation as held in the judgment of Bharat Bhushan Gupta (supra). As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject matter of the litigation. In view thereof, the plaintiff has properly valued the suit for claiming possession and has paid the Digitally signed by AYUSH Suit No 521/20 Pg 28 of 31 AYUSH SHARMA SHARMA Date:
2025.03.11 14:33:59 +0530 proper court fees.
23. Moreover, it is important to highlight that no such objection was raised when the issues were framed in the present suit on 26.08.2023. As per the settled principles of law under Section 21(1) of the CPC, an objection to pecuniary jurisdiction must be raised at the earliest opportunity, before the framing of issues. If not raised in a timely manner, the objection is considered to have been waived. The Hon'ble Supreme Court, in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Anr.8 held:
"30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."
(Emphasis supplied) 8 (2005) 7 SCC 791 Digitally signed by AYUSH Suit No 521/20 Pg 29 of 31 AYUSH SHARMA SHARMA Date:
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24. Accordingly, in light of the above reasoning, the defendant's objection regarding the lack of pecuniary jurisdiction is no longer tenable and cannot be sustained.
Issue No. (ii) (on mesne profits/ damages @ Rs.30,000/- per month from 01.10.2020 until the suit property is vacated and if yes, at what rate of interest)
25. The plaintiff has sought damages at the rate of Rs. 30,000/- per month from 01.10.2020, along with interest, for the use and occupation of the suit property. Since Issue No. (i) has been decided in favour of the plaintiff and the defendant has failed to establish any legal basis for his possession of the suit property, his status after the termination of the license vide legal notice (Ex.PW1/8) became that of an unauthorized occupier. Although the plaintiff has claimed damages of Rs. 30,000/- per month, no supporting evidence has been provided to substantiate this amount. Considering the locality and the rental rate of Rs. 9,000/- per month as stated in the plaint, it would be reasonable and equitable to award damages at the rate of Rs.10,000/- per month along with an interest of 7% from 01.10.2020 until the suit property is vacated and handed over to the plaintiff. Accordingly, issue no. (ii) is decided in favour of plaintiff. Issue No. (iii) (on permanent injunction)
26. The plaintiff has sought a permanent injunction against the defendant to prevent him from causing any damage and creating any third- party interest in the suit property. Since issue no. (i) has been decided in favour of the plaintiff, it follows that the defendant has no rights in the suit property. Therefore, the plaintiff is held entitled to a permanent injunction against the defendant. The issue is accordingly decided in favour of the plaintiff.
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Relief
27. In view of the above discussion, the suit of the plaintiff stands decreed with the following reliefs:
a. The defendant is directed to handover the vacant and peaceful possession of the suit property viz. shop at ground floor of property bearing no. N-60, Jagatram Park, Laxmi Nagar, Delhi-110092, more particularly shown in the site plan within thirty days from today. b. The defendant shall pay mesne profits/damages at the rate of Rs.10,000/- per month along with an interest @ 7 % per annum from 01.10.2020 till handing over of possession of the suit property to the plaintiff.
c. The defendant is permanently restrained from causing any damages and from creating any third-party interest in the suit property. d. Costs of the suit are also awarded in favour of plaintiff. Decree sheet be drawn accordingly on payment of stamp duty along with penalty on SPA (Ex. PW1/3) and deficient court fees on mesne profits. File be consigned to record room after due compliance.
Digitally signed by
AYUSH AYUSH SHARMA
Pronounced in open court SHARMA Date: 2025.03.11
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On March 11th 2025 (AYUSH SHARMA)
CJ/EAST/KARKARDOOMA
DELHI/11.03.2025
This judgment contains 31 pages and each page has been signed by me.
Suit No 521/20 Pg 31 of 31