Delhi District Court
Yaduvanshi Realestate Pvt Ltd vs Luxmi Narain on 24 April, 2025
IN THE COURT OF LEARNED SENIOR CIVIL JUDGE CUM RENT
CONTROLLER, (WEST), TIS HAZARI COURTS, DELHI
PRESIDED BY : MS. RICHA SHARMA
CS SCJ No. 775/22
CNR No. DLWT-03-001390-2022
M/S. YADUVANSHI REAL ESTATE
THROUGH ITS DIRECTOR
SH. MOHINDER YADAV
S/O LATE KISHAN CHAND
AT: UNIT NO.3, SECOND FLOOR,
CH. KISHAN CHAND SHOPPING COMPLEX,
JWALAHERI PASCHIM VIHAR,
NEW DELHI-110063. .....PLAINTIFF
VERSUS
1. SH. LUXMI NARAIN
S/O SH. M. R. SHARMA
R/O B-428, MEERA BAGH, NEW DELHI-110043.
ALSO AT:
SHOP NO.61, FIRST FLOOR,
CH. KISHAN CHAND SHOPPING COMPLEX,
4, JWALAHERI MARKET, PASCHIM VIHAR,
NEW DELHI-110063.
2. SH. KUNDAN LAL AHUJA
S/O. LATE SH. M. C. AHUJA
R/O. BA/128A, JANAKPURI,
NEW DELHI - 110058. ....DEFENDANTS
(Defendant No. 2 was deleted from the array of parties vide order dated
10.11.2022)
Date of filing of the suit : 24.05.2022
Date of Judgment : 24.04.2025
_____________________________________________________________________________________________
CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 1 of 48
SUIT FOR RECOVERY OF POSSESSION AND FOR RECOVERY OF
RS.19,800/- TOWARDS ARREARS OF USAGE CHARGES / RENT
JUDGMENT
FACTS OF THE CASE
1. The factual matrix of the plaint is, that the plaintiff is a private limited company and is represented through its Director Sh. Mohinder Yadav, who is owner in possession of built-up property in form of a shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri Market, Paschim Vihar, New Delhi-110063 (hereinafter referred to as Suit Property).
2. It has been averred, that the defendants were inducted as joint tenants under the landlordship of the plaintiff in Shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri, Paschim Vihar, New Delhi-110063 vide rent agreement dated 20.07.1991. It has been further averred, that the defendants paid the rent lastly @ Rs. 550/- per month exclusive of electricity and other charges. The tenancy of the defendants starts from the first day of each calendar month and ends on the last day of the same calendar month.
3. It has been averred, that the defendants remained irregular in payment of rent, hence, a demand notice dated 10.02.2014 was sent by the plaintiff through his counsel as per law and the same was duly served, however, the defendants failed to comply with the same. It has been averred, that on account of non-compliance a petition under Section 14(1)(a) read with other provisions of Delhi Rent Control Act Act, was filed, bearing eviction petition _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 2 of 48 No.25392/2016 (Old No.E-124/2014) was filed by the petitioner before Ld. Additional Rent Control Actler (West), Tis Hazari Courts, Delhi.
4. It has been averred, that the defendant filed his written statement and he did not deny the rent agreement dated 20.07.1991, rather admitted that fact of relationship of landlord tenant between the parties, however, claimed himself to be the owner of the said shop. It has been averred, that the defendant further filed an application under Order 7 Rule 11 of Code of Civil Procedure on 10.02.2020, wherein also despite written agreement, the defendant No.1 denied the ownership / land-lordship of the plaintiff as well as the relationship Certified between the parties as landlord and tenant.
5. It has been averred, that it is evident from the written statement and application under Order 7 Rule 11 CPC filed by the defendant No.1 in Eviction Petition No.25392/2016 (Old No.E-124/2014) that the defendant No.1, despite the rent agreement and rent receipts, renounced his character in the capacity of a tenant, hence, forfeited his right to remain in possession in any capacity whereas defendant No.2 opted to remain absent from the proceedings. It has been averred, that as the defendants have no right to claim any status other than that of the tenant in the tenanted portion/suit property and if such claim is raised, the same amounts to renouncement of his character in the capacity of a tenant, hence, forfeited their right to be in possession in the tenanted portion.
6. It has been averred, that the counsel for the plaintiff sent a statutory _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 3 of 48 notice dated 09.03.2022, under Section 106 read with Section 111 of Transfer of Property Act, 1882 which was duly delivered on the address at which his suit property is situated and the defendants are carrying on their business, however, no reply has been received till date. Hence, this suit was filed.
7. The plaintiff has prayed for the following reliefs :-
a. Decree of possession in favour of the plaintiff and against the defendants in respect of the built-up property in form of a shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri Market, Paschim Vihar, New Delhi-110063.
b. Decree towards arrears of rent to the tune of Rs.19,800/- in favour of the plaintiff and against the defendants along-with pendent-lite and future interest @ 18% per annum from the date of filing of the suit till its realization.
c. Cost of litigation.
WRITTEN STATEMENT FILED BY THE DEFENDANT
8. It has been contended, that the plaintiff has not approached this Court with the clean hands and has concealed the material facts and as such, the suit of the plaintiff is liable to be dismissed. It has been contended, that the plaintiff has already filed a Suit for Eviction of Tenant U/s 14(1)(a)(b)(d) (f) & (J) of Delhi Rent Control Act Act against the defendants before the Rent Control Actler, Delhi and the defendants had filed their Written Statement to the aforesaid suit, in _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 4 of 48 which the defendants have clearly mentioned that they had given consideration amount of Rs.30,00,000/- to the plaintiff and the plaintiff had assured the defendants to execute the title documents in the name of the defendants but later on the plaintiff became dishonest and did not execute the title documents and the reason behind the same was that the price/value of the property in that area got increased. It is submitted, that the defendant No.1 has moved an application U/o 7 Rule 11 for dismissal of the previous suit filed before the Ld. Rent Control Actler, Tis Hazari, Delhi, and the present suit has only been filed by the plaintiff as a counterblast to the said application and the present suit is a gross abuse and misuse of the process of law.
9. It has been further contended, that the present suit is time barred as per the own version of the plaintiff as he has been demanding the rent since 1997 and till the filing of the previous suit, the plaintiff had neither demanded any money from the defendants nor the possession of the suit property and now after the gap of 26 years, he has suddenly filed the present suit against the defendants.
10. It has been further contended, that the Rent Agreement filed by the plaintiff contains several clauses in which it has been clearly mentioned in clause 4, that in case if the second party/tenant i.e. the defendants herein failed to pay the rent for two consecutive months, then the landlord shall terminate the tenancy and the tenants shall have to hand over the vacant possession of the shop to the plaintiff/landlord, hence the question here arises that when the defendants did not pay the rent for such a long period, then why the plaintiff had not filed the suit earlier.
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11. It has been further contended, that the defendant No.1 & 2 arrived into a settlement in the year 1995 and in the said settlement, it was agreed that the defendant No.2 will hand over the tenanted shop to the defendant No.1 and in this regard, a Dissolution Deed was executed between the defendant No.1 & 2 on 31.03.1995 and the defendant No.1 has already handed over the copy of the said Dissolution Deed to the plaintiff. It has been further contended, that the defendants have paid the entire consideration amount of the suit property to the plaintiff as per the market value at that time. It has been further contended, that the plaintiff had only filed the rent receipts till 1996 which itself shows that since 1996, the plaintiff had not claimed/demanded any rent or the possession of the suit property as he was very well aware that he has already sold the suit property to the defendants and had received the entire consideration amount. It has been further contended, that why the plaintiff had not filed the present suit earlier or sent the legal notice immediately or within sometime when the defendants stopped paying the rent to the plaintiff, despite the fact that the plaintiff as well as his brother both are Advocates by profession and very well aware about law and proceedings. Hence, prayer is made for dismissal of the present case.
ISSUES
12. From the pleadings of the parties, following issues were framed on 06.03.2023 :-
1. Whether the plaintiff is entitled for a decree of possession, as prayed for? OPP _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 6 of 48
2. Whether arrears of rent/damages/mesne profits, if yes, at what rate and for which period? OPP
3. Whether the plaintiff is entitled to interest of arrears rent/damages/mesne profits, if any, for what rate and for what period? OPP
4. Relief.
EVIDENCE LED BY THE PLAINTIFF
13. In support of its contentions, plaintiff examined Sh. Mohinder Yadav as PW1 and he tendered in evidence his duly sworn affidavit exhibited as Ex.PW1/A. In his testimony, following documents were exhibited :-
(1) Ex P-1 is the board resolution alongwith minutes of meeting dated 21.02.2022, (2) Ex P-2 is the certified copy of eviction petition bearing no. 25392/16 (old no. E-124/2014), (3) Ex P-3 is the certified copy of WS filed by the defendant no. 1 in eviction petition bearing no. 25392/16 (old no. E-124/2014), (4) Ex P-4 is the certified copy of application u/o 7 rule 11 CPC filed by the defendant no. 1 in eviction petition bearing no.
25392/16 (old no. E-124/2014), (5) Ex P-6 (OSR) is the certified copy of rent agreement dated 20.07.1991, (6) Ex P-7 (OSR) are the counter files of 11 rent receipts dated 14.11.1994, 11.03.1995, 19.05.1995, 20.07.1995, 23.09.1995, 14.10.1995, 21.12.1995, 09.01.1996, 27.06.1996, 09.09.1996, 26.09.1996, (7) Mark A (Colly) are the copies of the other receipts, _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 7 of 48 (8) Ex P-8 (colly) are the legal notice dated 09.03.2020 alongwith postal receipt and tracking report and (9) Ex P-9 is the certified copy of site plan.
14. PW1 was cross-examined by Learned Counsel for the defendant.
15. The plaintiff has also examined one summoned witness namely Sh.
Anuj Kumar Amal, Asst. Ahlmad as PW2, who had brought the file of the petition bearing no 25392/16 (old no. E124/2014) and he proved the certified copies bearing Ex.P-2, Ex.P 3, Ex.P-5 and Ex.P-9 as the copies of original record of the petition in the aforesaid file.
16. Thereafter, the PE was closed.
EVIDENCE LED BY THE DEFENDANT NO.1
17. In order to prove his contentions, the defendant examined himself as DW1 and tendered in evidence his duly sworn affidavit exhibited as Ex.DW1/A. He has relied upon the copy of the dissolution deed marked as Mark A.
18. DW1 has been duly cross-examined by the Learned Counsel for the plaintiff.
19. The defendant has further examined Sh. Satya Narayan Sharma as DW2, who tendered in evidence his duly sworn affidavit exhibited as Ex.DW2/A. _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 8 of 48
20. The defendant has also examined Smt. Santosh Sharma as DW3, who tendered in evidence her duly sworn affidavit exhibited as Ex.DW3/A. She has relied upon her aadhar card and the copy of the same has been exhibited as Ex.DW3/1 (OSR).
21. Thereafter, the defendants' evidence was closed and matter was listed for final arguments.
22. Final arguments were duly addressed by the Ld. counsels for both the parties. I have duly considered the arguments advanced before the court as well as have perused the evidence on record carefully.
23. Before delving into the merits of the present case on facts, this court deems it fit to primarily adjudicate upon certain legal aspects / issues which have been raised as objections to the Maintainability of the present suit on legal grounds by the defendant.
24. Firstly Maintainability with regard to the valuation and the court fees.
It is primarily contended by the defendant that the plaintiff has failed to properly value the suit and further has not affixed the requisite court fees. The defendant's averment is a legal objection, asserting that the suit has been undervalued and that there is a deficiency in the court fees paid. On the contrary, it is paramount to note, that the suit has been valued as per Section 7 (xi) (cc) of Court Fees Act that is valued at the annual rent for the next year before the date of presenting in view of the fact, that for the purpose of payment of court fees and for the purpose of pecuniary jurisdiction, _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 9 of 48 the value of the suit is the same. Thus, the plea taken by the defendant with regard to the improper valuation and inadequate court fees is devoid of merit.
25. Secondly, The second legal objection taken by the defendant is with regard to the suit being barred by limitation.
As contended by the defendant, the plaintiff has claimed areas of rent dating back to 1997. But since then, he has not taken any legal action for over 26 years and therefore, as per the narrative of the defendant, the claim of the plaintiff for areas of rent can only be made for 3 years from the date the rent became due and thus it is contended by the defendant that the plaintiff's claim for arrears of rent is therefore barred by limitation.
26. Perusal of the record shows, that the defendant in the eviction petition bearing number 25392 of 2016 in its written statement has denied the existence of landlord-tenant relationship between the parties and claimed Title / Ownership in himself and Thus, qua this contention of the defendant, the cause of action arose in favour of the plaintiff for the first time when the said plea was taken by the defendant in his WS on 30th May 2016. Further, the defendant had filed the application under Order 7 Rule 11 CPC in the same eviction petition and by filing of the said application, the cause of action further arose on 20th February 2020 as on the basis of which the tenancy of the defendant was determined or terminated under Section 106 read with Section 111 (g) of Transfer Of Property Act vide Notice dated 9th March 2022.
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 10 of 48
27. It is pellucid to note, that the defendant per se has avowed that he not only became the owner of the property in question but also ceased to be the tenant. Thus, the present suit for the purpose of calculation of the limitation period cannot be adjusted on the basis of the landlord-tenant relationship from the angle of the defendant as he cannot be permitted to blow hot and cold in the same breath. Defendant cannot take simultaneously both the pleas, i.e. one being the Tenant and second being the the Owner, as both are just oppose to each other. Therefore, the present suit has fallen under the ambit of Section 67 of the Limitation Act. Additionally, even if avernment of the defendant is accepted as it is with regard to the failure of the plaintiff to claim rent for the Period 1997-2014, the same cannot hold any relevancy for the purpose of Delhi Rent Control Act as the limitation does not apply to the proceedings of Delhi Rent Control Act as the latter is a complete code in itself.
28. Reliance has been placed on the judgment titled as Subhash Chander vs Rehmat Ullah, 1972 RLR 154, in which it was held as under :-
(31) The second question referred has many facts. The basic question is whetherthe Limitation Act 1963 applies to proceedings before the Controller. We have heard an extensive argument on this question and many cases were cited. No purpose will be served in reviewing them, because, on reflection, the opinion we have formed is that the matter is concluded by two decisions of the Supreme Court. In Nityanand M. Joshi and another v. The Life Insurance Corporation of India and others, , the Supreme Court had to decide whether an application under section 33C(2) of the _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 11 of 48 Industrial Disputes Act 1947 was governed by Article 137 of the Limitation Act. That depended on whether the Limitation Act applied to proceedings in the Labour Court. This is what the Supreme Court said. "in our view Article 137 only contemplates application to Courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a court. Further section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is "when the court is closed". Again under Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963".
(32) Whatever doubts there may ones have been, that passage establishes conclusively and authoritatively that the Limitation Act 1963 applies only to a Court. We would have thought, that it also shows that the word 'Court' is used in the strict sense and not the larger one which it often bears. This was disputed. To resolve it, one has only to turn to the earlier case Town Municipal Council. Athani v. Presiding Officer. Labour Court. Hubli and others, on which the Supreme Court relied. In that earlier case the question for decision was prisely the same. After referring to the changes brought about in the Limitation Acts from time to time, the judgment proceeds : "at best the further amendment now made enlarges the scope of the third division of the schedule so as also to includes some applications presented to courts governed by _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 12 of 48 the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to includes within them applications to bodies other than Courts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure. We cannot, therefore. accept the submissions made that this article w:ll apply over to applications made to an Industrial Tribunal or a Labour Court. The alterations made in the article and in the new Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than courts, are now to be governed for purposes of limitation by Article 137".
(33) And, in the next paragraph, disagreement with a judgment of Bombay High Court is expressed : "The High Court ignored the circumstance that the provisions of Article 137 were sought to be applied to an application which was presented not to a Court but to a Labour Court dealing with an application under Section 33C of the Act and that such a Labour Court is not governed by any procedural code relating to civil or criminal proceedings."
"AND,a little further down : In the long title, thus, the words "other proceedings" have been added; but we do not think that this addition necessarily im- plies that the Limitation Act is intended to govern proceedings before any authority, whether executive or quasi-judicial, when, earlier, the old. Act was intended to govern proceedings before civil courts only".
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 13 of 48 And, finally : "The question still remains whether this alteration can be held to be intended to cover petitions by a petitioner to authorities other than Courts. We are unable to find any provision in the new Limitation Act which would justify holding that these changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other than courts".
(34) It is obvious from these passages in the judgment, that the Supreme Court was using the word 'Court' in the strictest sense and excluding quasi-judicial tribunals and other bodies. (35) We think it is unarguable that the Controller is a Court in the strict sense. Sections 36(2), 41 and 42 of the Act refute that suggestion entirely. They would not transmute the Controller into a court for certain purpose, if he were that already. Similar provisions have led to the conclusion that a Commissioner appointed under the Public Servants (Inquires) Act 1850, and an Employees' Insurance Court constituted under the Employees State Insurance Act 1948, are not courts : see Brajnandan Sinha v. Jyoti Narain, ; M/s. Popular Process Studio and another v. Employees' State Insurance Corporation, . Mr. Justice V. S. Despande, has also held that the Controller is not a Court :
see Kulwant Kaur v. Jiwan Singh I.L.R. (1972) 1 Delhi 15. The contrary view taken in Krishnan v. Radha Lakshmi Amma, was based on the definition of "Rent Control Act Court" in the Act there under consideration. Besides, that case does not notice the judgments of the Supreme Court to which we have already referred. Cases under various other statutes showing the kinds of bodies or tribunals that have been held to be courts to not assist us, because it must always depend on the meaning attributed to that word in a particular contest : as witness, the Rent Control Actler in Punjab has been held, by a Full Bench, _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 14 of 48 to be a civil court for purposes of the Criminal Procedure Code : see Smt. Vya Devi v. Firm Madan Lal Prem Kumar (1971) 73 P.L. R. (F B) 61; and, by another Full Bench, not for purposes of the Code of Civil Procedure : see Pitman's Shorthand Academy v M/s B. Lila Ram & Sons, A. I. R 1950 E P 181. As regards the Limitation Act 1963 the judgments of the Supreme Court are clear. In our opinion. though the Controller under the Delhi Rent Control Act Act 1958 may have some of the trappings of a Court, he is not a court stricto sensu and so not within the meaning of the Limitation Act. (36) It was suggested thatthe statutes of limitation are a part of the procedural law, and that when section 37 of the Delhi Rent Control Act Act 1958 refers to the 'practice and procedure' of a Court of Small Causes it means to include the Limitation Act. Alternatively, that the Controller, in proceedings before him, ought to act onthe analogy of that statute. We do not agree. It seems to us, that had the Legislature intended that the Limitation Act should apply, it would not, on such an important matter, have resorted to so devious a method of statement instead of the direct manner. On such matters,the Legislature usually speaks with a clear voice. (37) We have pondered, so far as we could, the consequences resulting from our view. Had we held that the Limitation Act 1963 applied, there is very little in it that could hive applied to proceedings before the Controller. The First and Second Divisions of the Schedule to that Act deal with suits and appeals, and can have no application to such proceedings; at best, only some of the Articles in the Third Division may possibly have applied. That could well have been one of the reasons why the Limitation Act was not applied. The only difficulty we foresee is the absence of a provision like section 12 of the Limitation Act. Rule 17(2) of the Delhi _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 15 of 48 Rent Control Act Rules, requires every memorandum of appeal under the Act to be accompanied by a copy of the order of the Controller appealed from. A copy means a certified copy : see Reasat Ah Khan v. Mahfuz Ali Khan and others, A.I.R. 1929 Lahore 771; State of Uttar Pradesh v. C. Tobit and others . There appears to be no provision in the Delhi Rent Control Act Act/or the rules providing for the exclusion of the time requisite for obtaining a certified copy from the time allowed for an appeal. But, we think, the difficulty can bs overcome by applying the proviso to section 38(2) of the Act. As the rules require that a memorandum of appeal be accompanied by a copy of the order appealed from,the time taken in obtaining a certified copy may well be regarded as a period during which the appellant was prevented by sufficient cause from filing the appeal in time. This assumes, of course, that the copy his appeal by venture allowed for appeal."
29. Thirdly, The suit is barred by Delhi Rent Control Act Act 1950.
It is contended by the defendant, that as per Section 50 of the Delhi Rent Control Act Act, civil courts do not have jurisdiction over the eviction or possession matter when the rent is below Rs. 3500. It is further stated that the plaintiff has placed reliance upon the rent receipts for a sum of Rs. 500 and the same establishes that the tenancy, if any, falls under the purview of the Delhi Rent Control Act Act. Further, the Plaintiff has already instituted an Eviction Petition under Section 14 (1) (a) (b) (d) (f) (j) of the Delhi Rent Control Act Act, which is pending for adjudication. Thus, it is contended that the present suit is barred by Delhi Rent Control Act. _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 16 of 48
30. In order to appreciate this fact, it is noted that the Plaintiff has placed reliance upon the Order of the Rent Controller dated 7th January, 2024. It is further contended, that this aspect needs to be appreciated from the point that in the present case, the defense of the defendant is that he is not a tenant, but the owner of the property in question. Thus, the defendant himself has denied all his legal status of the tenancy and has contested principally on the ground that he is the owner of the premises in question. Thus, he loses the right to claim any defense under Delhi Rent Control Act.
31. Reliance has been placed on the judgment titled as Swarn Lata Agarwal versus Narang Medicine Company 225 (2015) DLT 503, in which it was held as under :
16. Reference may be had to the judgment of the learned Single Judge of this Court in the case of S.Makhan Singh vs. Smt.Amarjeet Bali (supra).
That was a case where the respondent had filed an eviction petition before the Rent Control Actler where the rent was stated to be Rs.500/- per month. In reply the petitioner denied the title of the respondent over the suit property and set up a title in himself and his wife. The respondent thereafter filed a suit for possession of the property before the Civil Court. The learned Single Judge held as follows:- "5. A tenant has been given protection under Delhi Rent Control Act Act from eviction only where the jural of tenant and landlord was not disputed and the tenant claims himself to be the tenant and not the owner. A perusal of Section 14, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 17 of 48 claim himself to be the owner of the premises. The moment a person refuses the title of CS(OS) 2731/2012 Page 6 of 16 the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act Act is not available to him. Section 111(g) of Transfer of Property Act provides that a lease of immovable properties come to an Swarn Lata Agarwal & Anr vs M/S Narang Medicine Co. on 24 November, 2015 Indian Kanoon - http://indiankanoon.org/doc/98397769/ 4 end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111(g) is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises....."
17. The Division Bench of this Court in Naeem Ahmed vs. Yash Pal Malhotra (supra) approved the above judgment and held as follows:- "12. As aforesaid, in Kurella's case (supra) and Abdulla Bin Ali's case (supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent No. 1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent No. 1. Consequently, the respondent No. 1 had repudiated and renounced the relationship of _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 18 of 48 landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent No. 1 had become unauthorized and that of a trespasser."
18. Reference may also be had to the judgment of the Supreme Court relied upon by the learned counsel for the defendant in the case of Sheela vs. Firm Prahlad Rai Prem Prakash (supra). In paragraph 16 the Supreme CS(OS) 2731/2012 Page 7 of 16 Court held as follows:- "16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant how does it concern him what the title of the lessor is [See Tej Bhan Madan v. II Additional District Judge and Ors. - (1983) 3 SCC 137]. A denial of title which falls foul of the rule of estoppel contained in Section 116 of Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of Swarn Lata Agarwal & Anr vs M/S Narang Medicine Co. on 24 November, 2015 Indian Kanoon -
http://indiankanoon.org/doc/98397769/ 5determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms )See - Majati Subbarao _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 19 of 48 v.MANU/SC/0306 /1989 : P.V.K. Krishna Rao (deceased) by Lrs. - AIR1989SC2187 , Kundan Mal v. GuruduttaMANU/SC /0280/1989 :
[1989]1SCR330 : [1989]1SCR330 and Raja Mohammad Amir Ahmad Khan, (supra). We may quote with advantage the law as stated by a Division Bench of Calcutta High Court in Hatimullah and Ors. v. Mahamad Abju Choudhary, MANU/WB/0110/1927 :
AIR1928Cal312 . It was held, "the principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona- fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture". (AIR p.315)
19. Similarly, the Supreme Court in Kundan Mal v. Gurudutta, (1989) 1 SCC 552/( MANU/SC/0280/1989) held as follows: "In providing disclaimer as a ground for eviction of a tenant in Clause (f) of Section 13(1) of the Act, the Legislature decided to give effect to the provisions of Clause (g) of Section 111 of the Transfer of Property Act. The principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms."
20. Hence repudiation of tenancy by the tenant would follow only where the tenant has unequivocally repudiated the tenancy and set up a title either in himself or in a third person. The disclaimer has to be clear and in unequivocal terms. Merely denying title by a landlord bona fide on the ground of seeking information of such _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 20 of 48 title does not amount to repudiation or forfeiture of the tenancy.
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26. The act of the defendant is contrary to section 116 of the Indian Evidence Act which reads as under:- 116. Estoppel of tenant; and of license of person in possession- No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such Swarn Lata Agarwal & Anr vs M/S Narang Medicine Co. on 24 November, 2015 Indian Kanoon - http://indiankanoon.org/doc/98397769/ 8 immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when license was given.
27. In my opinion, denial of title by the defendant was mischievous. It was an attempt to set up title in a third party and in view of provisions of Section 111(g) of the Transfer of Property Act it is a clear Act forfeiture of the lease. As pointed out by the Supreme Court in Sheela vs. Firm Prahlad Rai Prem Prakash (supra) the act of denial of title which falls foul of section 116 of the Indian Evidence Act is a malicious Act detrimental to the interest of the landlord. The act was not bonafide or an attempt to bonafidely verify the title of the plaintiff by the defendant.
32. Further, Reliance has been placed on Hansraj Vs. Raghuveer Singh 2020 (2) RCR Rent 172 in which it was held as Under:-
22. In other words, the appellant has contested the mandate set-out in Section 111 (g) of the Transfer of Property Act, 1882 and thereafter reverted _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 21 of 48 back to claim protection under the Delhi Rent Control Act Act.
........
24. The learned counsel for the respondent though referred to Naeem Ahmad (supra), but this decision was challenged in Division Bench in 188 (2012) DLT 579 (DB) wherein the Court held:-
"10. Now turning our attention to the ratio of the decision in V. Dhanapal Chettiar case (supra) it is observed that in the said decision it was held that determination of lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act. It is trite to state that a decision is an authority for what it holds and not what flows from it.
11. From the above, it is observed that the decision in V. Dhanapal Chettiar case(supra) is not an authority for the proposition that even if a tenant denies the title of the landlord and claims himself to be owner, he continues to be a tenant in the eyes of law and the protection of the Delhi Rent Control Act Act is still available to him.
12. xxx
13. In view of the above we hold that the ratio of the decision in S. Makhan Singh case (supra) does not warrant reconsideration. We are, therefore, of the considered opinion that in the facts and circumstances of the case the suit was cognizable by the civil court and the impugned order was erroneous, inasmuch as it held that the same was barred by provisions of Section 50(4) of the Delhi Rent Control Act Act. The appeal is _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 22 of 48 allowed accordingly. Consequently, the impugned order is set aside. The case is remanded back to the Trial Court with directions to readmit the suit under its original number in the register of civil suits and to proceed to determine the suit from the stage when the impugned order was passed in accordance with law. A copy of this order and judgment along with Trial Court record be transmitted to the court of the concerned District Judge with directions that the matter to be posted before the concerned civil judge for further proceedings."
25. Welfare Association case (supra) is also an authority which propounded the same theory as of V.Chattiars case. It is a settled law the Delhi Rent Control Act Act proceeds on an assumption that there exists a relationship of landlord - tenant between the parties and in cases of mere denial of such relationship the tribunal has an authority to determine such question, per Om Prakash Gupta vs. Rattan Singh and another 1964 SCR Vol. I
259. However I may also refer to Narang Medicine Company vs Swaran Lata Agarwal and Others 238 (2017) DLT 301 to find the true import of forfeiture. The Court held:-
"20. There is no quarrel with said preposition of law, but that does not mean that the person claiming to be the landlord cannot proceed by filing a civil suit by relying upon the pleadings of the tenant before the competent authority slum and if in said civil proceedings can show that the nature of the pleading by the tenant is of a kind which results in determination of the tenancy by forfeiture. If the person succeeds, that would be the end of the matter to the benefit of the landlord. If he fails, the right to proceed under the Rent Control Act Legislation or any other law on the basis of a landlord tenant relationship would be lost to the landlord because the mandate of law is that a landlord can evict a tenant in a slum area _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 23 of 48 in Delhi only after obtaining permission from the competent authority slum."
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27. As per law the only requirement to oust the jurisdiction of the tribunal under the Delhi Rent Control Act Act is to give a notice by the landlord to the tenant disclosing his intention to terminate the lease, per Section 111 (g) read with Section 114A of the Transfer of the Property Act,1882. Such a notice dated 11.04.1988 has, admittedly, been given by the landlord in this case. The citations supporting my this view are numerous viz. Namdeo Lokman Lodhi vs. Narmadabai and Others AIR 1953 SC 228; Raghupati Roy and Others vs. Debu Karmakar and Others AIR 1956 Calcutta 79; Abdul Sattar Mian vs. Kailash Prasad AIR 1966 Patna 93; Chandra Nath Mukherjee vs. Chulai Pashi and Another AIR 1960 Calcutta 40; Ramniranjan Prasad Tulshyan and Others vs. Gajadhar Prasad and Others AIR 1960 Patna 525; Somti Parkash Lakshmi Narain Singh vs. Natha Baga and Another AIR 1964 Punjab 449; Devasahayam (Dead) by Lrs. vs. P.Savithramma and Others (2005) 7 SCC 653. I need not repeat the law laid in these judgments, hence, contention a) is accordingly answered and is rejected.
.......
30. Neither in V Chettiar (supra) nor in Vinay Eknath Lad vs Chiu Mao Chen Civil Appeal No.4726/2010 decided on 19.12.2019 the plea of adverse possession was ever raised. These are the cases of simple denial of relationship and in such circumstances, undoubtedly, the learned ARC has a power to determine such relationship. However, where a plea of adverse possession is raised by a tenant, assuming the title in himself against the real owner and once a notice to determine lease, per Section 111(g) (2) of the Transfer of the Property Act, 1882 is given, as is given in this case by the landlord, the tenant cannot allege _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 24 of 48 ouster of civil jurisdiction."
33. Thus, all the legal objections taken by the defendant during the course of arguments are not tenable in the teeth of the above analysis and discussion.
34. Now the issue-wise findings are as under :-
1. Whether the plaintiff is entitled for a decree of possession, as prayed for? OPP
2. Whether arrears of rent/damages/mesne profits, if yes, at what rate and for which period? OPP
3. Whether the plaintiff is entitled to interest of arrears rent/damages/mesne profits, if any, for what rate and for what period? OPP
35. All these issues are taken up together as they are inter-related to each other as they entail common questions of law and facts and issue No. 1 has a bearing on the other issues.
36. The onus to prove these issues was upon the plaintiff.
37. Before proceeding with the appreciation of evidences advanced, this Court deems it fit to discuss in brief the law laid down with respect to the onus of proof in civil litigation.
38. In brief the law pertaining to the burden of proof as entailed under the earlier Indian Evidence Act, 1872 and the present Bhartiya Sakshya Adhiniyam 2023.
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 25 of 48
39. The burden of proof in civil trial is the obligation upon the plaintiff that the plaintiff would adduce evidence that proves his claim against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Bhartiya Sakshya Adhiniyam 2023 dealing with burden of proof are produced as under:-
Burden of proof:-
104. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
105. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
106. Burden of proof as to particular fact.-
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 26 of 48
109. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
40. Therefore, on the basis of the law laid down as above, court proceeds with the appreciation of evidence as adduced in the present suit.
41. At the very outset, it is pertinent to mention, that the defendant on being subjected to the litmus test of cross-examination has categorically acceded to the fact, that the premises in question is a tenanted premises being a shop and has been used by him for commercial purpose since the very inception. He further went on to admit, that he is in occupation of the tenanted premises since 1981 and that he had occupied the shop in question in the capacity of a tenant only. The relevant excerpts of the cross-examination of the DW1 to this effect are reproduced as under :-
"The tenanted premises is a shop used by me for commercial purposes since beginning. I am in occupation of the tenanted shop since 1991. I occupied the shop in dispute in the capacity of tenant (Vol. I paid the amount of pagdi to the landlord). I obtained the shop from one Mr. Mohinder Yadav on rent (Vol. I paid the pagdi to him only). The landlord only used to prepare an agreement to create tenancy for 11 months, _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 27 of 48 but never mentioned the amount of pagdi in the said agreement. I paid the rent to Sh. Mohinder Yadav, the landlord till the year 1997."
42. It is further apposite to note, that the defendant has averred in his cross-examination, that it was the landlord i.e. plaintiff who used to prepare the agreement pertaining to the tenancy for a period of 11 months, but he never mentioned about the payment of Pagdi that is alleged to have been paid by the defendant to the plaintiff. Having said that, it is a candid admission by the defendant, that :-
firstly, he entered into occupation of premises in capacity of a tenant, Secondly, it is averred that he had paid the Pagdi amount to the plaintiff but within the four corners of the law the Pagdi as such has not received any legal recognition for the same to be considered as a consideration amount towards any of the transactions in the form of sale proceeds that is alleged to have transpired between a landlord and a tenant, Thirdly, it is averred that the tenancy was created by virtue of an agreement for a period of 11 months without mentioning of the Pagdi amount in it, but neither any such agreement has been filed on record to even prima-facie prove that the rent agreement was executed for a period of 11 months from time to time nor the defendant has filed on the record of the court any complaint, thereby showing his displeasure or objection for non-incorporation of the Pagdi amount by the plaintiff as one of the terms of the so-called Tenancy Agreement.
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 28 of 48
43. It is pellucid to note, that the principal defence of the defendant in the present case is, that the defendant had paid an amount of Rs. 30 lakhs to the plaintiff as a consideration amount towards the tenanted shop and so being the case, it was imperative on the part of the defendant to have firstly proved the execution of any sale deed or agreement between the plaintiff and defendant. However, the record speaks to the contrary as no such agreement has been placed on record. Mere oral averment is made with regard to the payment of Rs. 30 lakhs by the defendant to the plaintiff but there is no documentary proof to the effect, that as to how and when the said amount was paid and further there is no receiving regarding the payment of the alleged consideration amount being placed on record. It is further not out of place to mention, that the defendant has also admitted that no receipt pertaining to the payment is placed on record by him. It is contended by the defendant, that plaintiff had never given any document towards the receipt of the payment of alleged Rs. 30 lakhs by him to the plaintiff. Having said that, it is writ large on record that the defendant neither filed any complaint, nor any FIR with any appropriate authorities or forum for non- issuance of receipt towards the payment of Rs. 30 lakh by him to the plaintiff. It is further not out of place to mention, that even despite non-incorporation of the payment of the alleged pagdi amount by the defendant to the plaintiff as one of the terms of the rent agreement stated to be so entered into between the plaintiff and the defendant, the latter still continued with the tenancy in question. This further puts a dent in the story of the defendant.
44. Further, there is neither any letter of request nor any other _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 29 of 48 correspondence placed on record to establish, that the defendant had paid any such amount and further had also asked the plaintiff to provide receipt for the same. The relevant excerpts of his cross- examination to this effect are reproduced as under :-
"Q. Please see the record file and show any document regarding payment of Rs. 30 lacs by you to the plaintiff.
Ans. The plaintiff never gave any document towards receipt of the above payment.
It is correct that the plaintiff issued rent receipt against payment of rent of tenanted shop till 1997 i.e. till I paid the rent to the plaintiff.
I remained the income tax assessee, but I do not remember till when I paid the income tax."
45. It is also pellucid to note, that the defendant has averred himself to be the sole exclusive owner of the disputed premises. Further, defendant has stated to have paid house tax to the MCD for the said premises, but no such house tax receipt is filed on record of the court and the said fact was duly admitted by him with regard to the non-filing of house tax receipt on the record. The relevant excerpts of the cross-examination of DW-1 to this effect are as under :-
"Q. I put it to you that in para no. 12 of Ex.DW-1/A, you have mentioned that you are the sole and exclusive owner of tenanted shop, _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 30 of 48 please tell whether you have ever paid house tax to the Municipal Corporation in respect of the tenanted shop?
Ans. Some times I have paid.
Q. Please show in the Court record any document depicting that the house tax was paid by you to the MCD.
Ans. After going through the Court file, the witness states that I have not filed any such documents."
46. Further, the defendant has taken a vague objection with regard to the non-filing of the correct site plan by the plaintiff but it is a matter of record, that objection taken by the defendant is merely a bald objection as no counter site plan has been filed on record by the defendant contrary to the site plan of the plaintiff to even establish prima facie the authenticity of his averment with regard to the site plan of the plaintiff being incorrect. The relevant excerpts of his cross-examination to this effect are as under :-
"Q. I put it to you that in para no. 9 of Ex.DW-1/A, you have mentioned that the site plan filed by the petitioner along with the petition is not correct. Please show after seeing of the Court file that whether you have filed any site plan to counter the site plan of _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 31 of 48 the petitioner?
Ans. After seeing the Court record, the witness has stated that he has not filed any such site plan."
47. It is apposite to note, that the credibility of the defendant also stands questioned as, as per the affidavit of defendant Ex.DW1/A, his address mentioned is that of B-428, Meera Bagh, New Delhi but he has submitted in his cross-examination, that his correct address is F-212, Nihal Vihar, Nangloi, Delhi, and that he has been residing at the said address since last 7 - 8 years. No plausible explanation has been accorded for giving two different addresses when admittedly defendant is residing at his Nihal Vihar address. Further, on specifically being confronted with the affidavit filed with reply that is Ex.DW1/P-1 with regard to the address being mentioned E-428, Meera Bagh, New Delhi, the witness gave the shaky answer to the said question and the said observation has been duly made by the Ld. Predecessor of the Court. It is pellucid to note, that the witness i.e. DW1 duly admitted in his cross-examination, that he had neither moved any application before the court for taking on record his address of Meera Bagh nor has he informed the change of his address to the plaintiff. The relevant excerpts of his cross- examination to this effect are as under :-
"Q. At which address, you received the summons issued by this Court on the petition filed by the petitioner?
Ans. I received the summons at the tenanted _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 32 of 48 shop.
At this stage, the witness is confronted with the affidavit filed with the reply to the petition which is signed by respondent no. 1 at point X and Y, and the same is now exhibited as Ex.DW-1/P1, and is attested on 20.02.2023, wherein the address of the petitioner is mentioned as B-428, Meera Bagh, New Delhi. (witness has given a shaky answer on the pretext that he is residing in tenanted premises and has to frequently change his residence. ) Q. Have you ever filed any application before this Court for bringing on record your current address?
Ans. As the petitioner mentioned the address of Meera Bagh in the petition, that is why I have not moved any application.
Q. Have you ever informed the petitioner about your change of address?
Ans. I have never informed to the petitioner in this respect."
48. It is apropos to note, that the defendant has duly admitted to the receiving of the legal notice dated 09.03.2022 i.e. Ex.P-8 being served upon him at this address, but he did not sent any reply to the legal notice. The relevant excerpts of his cross-examination to this _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 33 of 48 effect are as under :-
"The petitioner has rightly mentioned the address of the tenanted shop in the petition. It is correct that the petitioner sent a legal notice dated 09.03.2022 (Ex.P8), which was served upon me at my given address. It is correct that I have not given any reply to the legal notice Ex.P8 (Vol. I have given reply to the petition in the Court only)."
49. It is a settled proposition of law that, if a party despite service of legal notices chooses not to reply to the same, the averments of the notice stands admitted. Furthermore, the legal notice along with postal receipts exhibited as Ex.P-8 (colly) was also sent by plaintiff to the defendant and at this stage inference can be drawn on the basis of Section 119 of the Bhartiya Sakshar Adhiniyam, 2023 (earlier Section 114 of the Indian Evidence Act), which states that, "the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and/a private business, in their relation to the facts of the particular case ." The Clause (f) appended to the section clearly states that, " common course of business has been followed in a particular case, implying that where a letter or legal notice as in the present case is sent to the defendant, it would have ordinarily been delivered in the common course of business to the party to whom it was addressed."
50. It has been held by the Hon'ble Supreme Court in judgment titled as _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 34 of 48 Abdul Gaffar vs. DDA 2001 Rajdhani Law Reporter 249 that if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him. Another judgment of Hon'ble High Court titled as Kalu Ram v Sita Ram 1980 Rajdhani Law Reporter (Note) 44 is on the same aspect.
51. At this stage, it is also pertinent to mention Section 27 of the General Clauses Act :
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or "given" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
52. The Hon'ble Apex Court in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 observed as under :
"The principle incorporated in Section 27 of the General Clauses Act could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to have been served on the addressee, unless he proves that it was not really served and he was not responsible for such non-service. These were the observations of the Hon'ble _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 35 of 48 Supreme Court while dealing with a case relating to service of notice U/s 138 of NI Act. "
53. At the cost of brevity it is being stated, that the principal defence of the defendant is, that he is the owner of the premises in question and during his cross-examination, a specific question was put to him whereby he was asked to show any document / title deed on record to demonstrate that he is the owner of the premises i.e. tenanted shop in question but the witness did not give the answer to the said question and on the contrary asked the Ld. Counsel to show the documents, stating that the property belongs to Gram Sabha and the said observation had also been made by the Ld. Predecessor of this Court during the cross-examination of DW1. The relevant excerpts of his cross-examination to this effect are as under :-
"Q. Please show any document /title deed on record to show that you are the owner of the tenanted shop?
Ans. The petitioner never executed any title deed after receipt of the consideration amount despite repeated requests. (Vol. I came to know that the plot on which the tenanted shop is constructed belongs to gram sabha) Q. Please show any document on record _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 36 of 48 where the tenanted shop or the entire Chaudhary Kishan Chand Complex, Pashim Vihar is shown the property of gram sabha.
The witness is not willing to answer the question rather asked the counsel to show any such document showing the property belongs to Gram sabha. (Vol. The respondent did not ask for rent for 27 years, therefore, he is not entitled to file the present suit.)"
54. Thus, from the entire testimony of DW1, it stands safely deduced that :-
firstly - the defendant has miserably failed to place on record any document to even prima facie establish his ownership over the premises / tenanted shop in question, secondly - the defendant has admitted to his induction in the property as a tenant and therefore he had prima facie admitted to the existence of landlord and tenant relationship between him and the plaintiff, thirdly - the defendant has not placed on record even a single document to testify the payment of an amount of Rs. 30 Lakh to the plaintiff as a sale consideration for the purchase of the property / tenanted premises in question.
55. Apart from examining himself, defendant had also got examined Sh.
Satya Narain Sharma as DW2, who also is the real brother of the defendant. DW2 was subjected to litmus test of cross-examination whereby he showed his complete ignorance with regard to the _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 37 of 48 address of the defendant in the year 1991. He also did not know if the defendant was the owner of the property at which he was residing in the year 1991. He also did not have the knowledge of the place from where the defendant was conducting his business in the year 1991. DW2 was also not aware as to who had filed the present case and further stated, that he had no concern with the present case and he was also not aware of the fact as to who is the plaintiff in the present case. The relevant excerpts of the cross-examination of DW2 to this effect are as under :-
"In the year 1991, the respondent was either residing in Meera Bagh or in Rani Bagh, Delhi. I do not know the address of the respondent where he was residing in 1991. I do not know whether the respondent was the owner of the property where he was residing that is of Meera Bagh Or Rani Bagh. I do not know from where the defendant was conducting his business before 1991, however he was in the business of jewelery.
........
I do not know who has filed the present case. Vol. I do not have any concern with the present case. I do not know also who is the plaintiff in the present case."
56. It is crucial to mention, that DW2 was specifically asked in his cross-examination, that in para no. 4 of Ex.DW2/A, he had mentioned that a total consideration of Rs. 30 Lakh was settled _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 38 of 48 between the parties for two shops but DW2 did not know the name of the persons between whom the said settlement arrived at. The relevant excerpts of the cross-examination of DW2 to this effect are reproduced as under :-
"Question :In paragraph no. 4 of Ex.DW2/A, you have mentioned that the total consideration amount of Rs. 30 Lakh was settled between the parties for two shops. Please tell, who were the parties between whom the alleged meeting was held and transaction was settled?
Answer: I do not know the name of the persons between whom the said settlement was arrived at."
57. Moving further, DW2 was put the contents of para no. 4 of his affidavit and was asked if he could tell as to whom the amount of Rs. 10.5 Lakh was given by the defendant and the DW2 gave a vague reply stating, that the said amount was given to three brothers whose surnames were Yadav but he did not know the names of those persons. The witness also did not know if the said amount was given to all the three brothers in one go or separately and further stated that he did not know all the three brothers, but he knew only the name of one of those three brothers I.e Sh. Mahender Yadav. He also did not know the addresses of those three brothers and further also did not know the place where he visited. He further did not know the month and year of the alleged payment of Rs. 10.5 Lakh by the defendant to the plaintiff. He further did not know if the amount was paid by the defendant from his own account or _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 39 of 48 borrowed the same from someone else. The relevant excerpts of the cross-examination of DW2 to this effect are reproduced as under :-
"Question : I put it to you that in paragraph no. 4, you have mentioned that a sum of Rs. 10.5 Lakhs was given by the defendant. Please tell to whom this amount was given and during which period?
Answer : The amount was given to three brothers whose surnames were Yadavs.
Again said, the name of the one of the person was Mahender.
Question : Please tell whether the above amount was given to all the three brothers at the same time or on different occasions?
Answer : At this stage, the witness again said that he do not know all the three brothers but one of them was Mahender Yadav. The amount was given to all the three brothers on different occasions.
All the three brothers were residing in the same premises. I do not know where all the three brothers were residing. Vol. As the matter is about 35 years old, I cannot tell the address or place where I visited. The place is probably near Chaudhary Kishan Chand Complex, Paschim Vihar. It is incorrect to suggest that all the three _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 40 of 48 brothers were residing together at the relevant time in the same premises. I do not know the month or year of the alleged payment of Rs. 10. 5 Lakh given to the plaintiff by the defendant. The entire amount was given in cash by the defendant.
I do not know whether defendant paid the amount from his own account or borrowed the same from some other person."
58. It is further deposed by DW2, that out of the amount of Rs.19.5 Lakh that was alleged to be given by the defendant to the plaintiff, an amount of Rs. 2 Lakh was contributed by DW2 and Rs. 2 Lakh was contributed by his brother Sh. Shiv Narayan Sharma, but there is no proof of giving of any such amount by DW2 and DW3 to defendant / DW1.
59. Further, it is interesting to note that the DW2 categorically deposed in his cross-examination that he has no concern with the purchase of the shops in question and that no written agreement was ever executed in his presence. The relevant excerpts of the cross- examination of DW2 to this effect are reproduced as under :-
" I have no concern about the purchase of the shop and I am only concerned with regard to the payment. There was no written agreement executed in my presence. Vol. The Yadav Brothers orally informed that we have sold all other properties in the same _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 41 of 48 manner without any written documents. I do not remember the month in which the amount was given in the year 1991."
60. Thus, from the entire extracts of examination in chief and cross-
examination of DW2, nothing could be culled out to support the defence of the defendant as DW2 was neither aware of the facts of the case nor could he bring any cogent evidence to prove the defence of the defendant. Further, Court cannot be oblivious to the fact that DW2 being brother and DW3 being sister in law of defendant / DW1 are interested witnesses and therefore, their testimonies have to be appreciated keeping those parameters in mind.
61. Thereafter, defendant got examined DW3 i.e. Smt. Santosh Sharma wife of his deceased brother Sh. Shiv Narain Sharma. DW3 averred in his cross-examination, that she did not know the names of the persons to whom she visited in the year 1991 and had also no clue as to who had filed the present case. The only thing which she remembered was that there were three brothers, but she even did not know the names of those three brothers. Neither did she know the address that she visited in year 1991 nor was she present when the alleged settlement of Rs. 30 Lakh towards the sale consideration took place between the parties. She further did not know the month of 1997 in which the balance of amount of Rs. 19.5 lakh was given by the defendant to the plaintiff. She further admitted, that there was no written agreement executed either in 1991 or 1997. She did not know the names of any of the three brothers to whom the _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 42 of 48 amounts were given. Interestingly, as per the narrative of DW2 i.e. one of the brother of the defendant, an amount of Rs. 2 Lakh was contributed by him to the defendant and similarly the same amount was contributed by his another brother Sh. Shiv Narain Sharma. But as per DW2, the said amount was not returned by defendant to DW2. But as per DW3, the said amount of Rs. 2 Lakh was given by her husband to the defendant and the same was duly returned.
62. Thus, the entire version of DW3 with regard to the giving of amount of Rs. 2 Lakh by her husband to the defendant, the alleged transpiring of the settlement agreement, the addresses of the parties, the exact date and month of making payment, the name of the plaintiff and his brothers, cannot be relied upon as she was unaware of the answers to the material questions and thus her testimony does not lend any credence to the version of the defendant.
63. It is further pellucid to note, that DW3 stated in her cross-
examination, that plaintiff never sold the suit property to the defendant. The relevant excerpts of the cross-examination of DW3 to this effect are reproduced as under :-
"It is correct that the plaintiff never sold the suit shop to the defendant."
64. Thus, in the teeth of the above analysis and after the detailed analysis of the testimonies of the witnesses brought forth on record, this Court finds no hesitation in deducing that :-
firstly - admittedly the defendant occupied the suit property as tenant and paid rent till 1997.
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 43 of 48 secondly - No document has been placed on record by the defendant to prove the alleged payment of Rs. 30 Lakh by the defendant to the plaintiff. There is no iota of evidence even to prove as to how the defendant generated the said amount of Rs. 30 Lakh for the purpose of making the same to the plaintiff.
Thirdly - Even if the version of the defendant is taken to be a gospel truth with regard to the payment of Rs. 30 Lakh to the plaintiff, there is no receipt placed on record by the defendant to even prima facie establish that said amount was ever taken by the plaintiff from the defendant.
Fourthly - It is asserted by the defendant, that he had been paying the house tax to the MCD for the premises in question, but no such house tax receipt has been furnished on record of the Court. The testimony of the defendant lacks credibility as it has been duly observed by the Ld. Predecessor of this Court, that the defendant had refrained to answer the questions that were vital for the case and that the testimony of the defendant /DW1 was shaky, thereby putting his / DW1's deposition under scanner. Fifthly - The defendant has failed to prove his averment with regard to his ownership qua the premises in question as no title documents are placed on record to establish any kind of ownership of the defendant over the suit property.
Sixthly - As far as the deposition of other two witnesses i.e. DW2 and DW2 examined by the defendant is concerned, in the first place those witnesses are related to the defendant and therefore Court cannot be unmindful of the fact that they are interested witnesses and the said witnesses were completely oblivious of the facts of the present case and the person by whom the present suit has been filed. _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 44 of 48 They categorically admitted, that no settlement agreement had arrived between the plaintiff and the defendant for a sum of Rs. 30 Lakh qua the suit property / tenanted shop in question. They also admitted that the defendant was inducted as a tenant only in the suit property.
65. Thus, on the basis of observations and findings made as above and in absence of any cogent evidence being led by the defendant to prove his averments, it can be safely culled out, that the averments made by the defendant are completely sham and illusionary as no material evidence is led by the defendant to prove his case.
66. Further, the issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh , (2009) 7 SCC 330 which reads as under:
"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
_____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 45 of 48
67. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24.The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright v. Wright (1948) 77 _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 46 of 48 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at
536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
68. Therefore, in view of the detailed discussions above and as a result of the appreciation of evidence, this court is of the considered opinion that plaintiff has duly proved on the scale of preponderance of probabilities and the plaintiff is liable to be entitled for the following :-
(i). a decree of possession in favour of the plaintiff and against the defendant in respect of the built-up property in form of a shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri Market, Paschim Vihar, New Delhi-110063;
(ii). a decree of arrears of rent to the tune of Rs.19,800/- in favour of the plaintiff and against the defendants.
69. As a squeal to the above, plaintiff has also prayed for pendentelite and future interest @ 18% per annum on the amount of Rs. 19,800/- from the date of the filing of the suit till its realization. But, in the considered opinion of this court, interest sought by the plaintiff is on a higher side and therefore, interest @ 9% per annum being just, fair and reasonable is awarded. Therefore, plaintiff is awarded the _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 47 of 48 interest @ 9% per annum from the date of the filing of the suit till its realization.
70. Thus, all the issues are decided in favour of the plaintiff and against the defendant.
Relief
71. Thus, in the teeth of the above analysis, the suit of the plaintiff stands decreed in favour of the plaintiff and against the defendant no.1 with the following reliefs :-
1. Decree of possession in favour of the plaintiff and against the defendant in respect of the built-up property in form of a shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri Market, Paschim Vihar, New Delhi-110063.
2. Decree of arrears of rent to the tune of Rs.19,800/- in favour of the plaintiff and against the defendants along-with interest @ 9% per annum from the date of the filing of the suit till its realization.
3. Plaintiff is also entitled to the cost of the suit.
72. Decree Sheet shall be prepared on filing of deficient Court fees, if any. Digitally signed by RICHA RICHA SHARMA SHARMA
73. File be consigned to Record Room after due compliance. Date:
2025.04.24 15:43:25 +0530 Announced in the open court (Richa Sharma) today on 24.04.2025. SCJ-Cum-RC (West) Tis Hazari Court / Delhi 24.04.2025 _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 48 of 48 CS SCJ 775/22 YADUVANSHI REALESTATE PVT LTD Vs. LUXMI NARAIN 24.04.2025 Present : None for the plaintiff.
Defendant through VC.
Vide separate detailed judgment of the even date announced in the open Court today, the suit of the plaintiff stands decreed in favour of the plaintiff and against the defendant no.1 with the following reliefs :-
1. Decree of possession in favour of the plaintiff and against the defendant in respect of the built-up property in form of a shop No.61, First Floor, Ch. Kishan Chand Shopping Complex, 4, Jwalaheri Market, Paschim Vihar, New Delhi-110063.
2. Decree of arrears of rent to the tune of Rs.19,800/- in favour of the plaintiff and against the defendants along-with interest @ 9% per annum from the date of the filing of the suit till its realization.
3. Plaintiff is also entitled to the cost of the suit.
Decree Sheet shall be prepared on filing of deficient Court fees, if any.
File be consigned to Record Room after due compliance. Digitally by RICHA signed SHARMA RICHA Date:
SHARMA 2025.04.24 15:43:18 +0530 (Richa Sharma) Sr. Civil Judge - Cum - RC THC / Delhi / 24.04.2025 _____________________________________________________________________________________________ CS SCJ No. 775/22 M/S. YADUVANSHI REAL ESTATE Vs. LUXMI NARAIN & ANR. 49 of 48