Delhi District Court
Bhupender Singh Bhalla vs Neelu Bhalla @ Neelam Singh on 8 December, 2021
IN THE COURT OF SHRI SANJEEV KUMAR-II, ADDITIONAL
DISTRICT JUDGE-04, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI.
CS DJ 205511/2016
CNR No:DLST01-000021-2012
Bhupender Singh Bhalla,
Karta of M/s Hindustan Timber Syndicate (HUF),
Shop No. 95, Kotla Mubarakpur,
New Delhi -110003. ..........Plaintiff
Versus
Neelu Bhalla @ Neelam Singh
Wife of Hakim Singh,
The Proprietor of Touch of Glass,
192, Khirki Village Extension
Karriapa Marg, Sainik Farm,
New Delhi-110062. .........Defendant
Instituted on : 17.09.2012
Reserved on : 09.10.2021
Pronounced on : 08.12.2021
J UD G M E N T
This judgment will decide the suit and counter claim; suit instituted by
the plaintiff, Bhupender Singh Bhalla, against the defendant, Neelu Bhalla, for
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 1
ejectment, possession, recovery of arrears of rent, mesne profits, mandatory and
permanent injunction; and counter claim filed by the defendant-counter
claimant, Neelu Bhalla, against the plaintiff, Bhupender Singh Bhalla, for
specific performance and mandatory injunction.
PLAINT
2. The brief facts of the case as mentioned in the plaint are that the
plaintiff is the landlord/lessor in respect to the property bearing no. 192, Khirki
Extension, Cariappa Marg, Sainik Farm, New Delhi except a portion of '13' x
'11' feet of Front Elevation, Corridor and the construction raised thereon
(hereinafter referred to as the Suit Property). The tenant portion exclusively
with the defendant is marked in Red Colour in the site plan. Exclusive portion
with the plaintiff is shown in Green while common portion for both plaintiff and
defendant to be used as common passage and common car parking is shown in
Yellow and Blue Colour.
3. The defendant is a lessee with respect to the suit property. The defendant
was inducted as a licensee in the suit property vide a rent agreement dated
December, 1998 for a period of 14 months commencing from 10 th December,
1998. Thereafter, various documents like rent agreement and their addendums
were executed between the parties in respect of the suit property. The last such
agreement was made on 9th February, 2011, wherein it was agreed that the
defendant would pay a rent of rupees 1,76,000/- per month for period of 10 th
February, 2011 till 9th February, 2012 and thereafter, at the rate of rupees
1,93,000/-. The above said rate of rent was exclusive the service tax, which was
payable as applicable by the defendant.
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4. The defendant had paid rent to the plaintiff till around April 2012,
whereafter she had failed to pay the rent w.e.f. 10th May, 2012. The defendant
had issued certain cheque for payment of the rent w.e.f. 10 th May, 2012.
However, the said cheques were also dishonoured and the defendant failed to
pay the amount qua the said cheques even on demand being made by the
plaintiff. Following cheques were issued by the defendant in favour of the
plaintiff:-
(i) Cheque No. 229692 and 229691 both totaling to an amount of rupees
2,17,529/- (returned unpaid).
(ii) Cheque No. 229702 and 229701 both totaling to an amount of rupees
2,17,529/- (returned unpaid).
(iii) Cheque No. 228828 and 228829 both totaling to an amount of rupees
2,17,529/- (returned unpaid).
5. The plaintiff has already filed complaints under Section 138-142 of the
Negotiable Instrument Act, which are pending disposal. Even earlier, the
cheques issued by the defendant were dishonoured. The defendant is liable to
pay the bank charges for return of Cheques. But defendant failed to clear the
rent ever since 10th May, 2012.
6. The defendant was further liable to pay the house tax, which was in
arrears w.e.f. Ist April, 1999 and the defendant had assured the plaintiff on 09 th
February, 2011, that the said arrears would be cleared within a period of six
months, i.e. by 9th August, 2011. It was clearly understood and agreed between
the parties that in case of failure of the defendant, the lease will stand
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 3
terminated and that the defendant will handover vacant and peaceful possession
of the premises to the plaintiff.
7. It was further agreed by the defendant that in case the defendant failed to
pay the regular rent as agreed, the defendant would be liable to pay rupees
15,000/- per day till the arrears of rent was paid by her. The clear
understanding, between the parties was that the defendant would pay rupees
15,000/- per day in addition to the rent.
8. The plaintiff on 13th August, 2012 came to know that the defendant has
got installed three electricity connection in the suit property, the details of
which are as under:-
a. CRN No. 2520100924 in the name of Sh. Amitab Chaudhary.
b. CRN No. 2520100925 in the name of Sh. Prage Bhalla.
c. CRN No. 2520100952 in the name of Sh. N. Bhatti.
9. The said information was revealed to the plaintiff by BSES, on an
application made by the plaintiff for applying a new electricity connection. The
aforesaid connections have been installed by the defendant without any
permissions from the plaintiff and also the application of the plaintiff was
rejected since there were huge arrears for the aforesaid connections which have
not been cleared by the defendant. Thereafter, the plaintiff made representation
and intimated BSES about the misrepresentation made by the defendant and
BSES allowed the electricity connection in the name of the plaintiff. Earlier, an
electricity connection was already installed in the premises in the name of the
plaintiff which connection was provided to the defendant to be used in the
tenanted premises and the payment thereof was being made by the defendant.
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10. The defendant has also made illegal constructions in the suit property and
changed the nature of the suit property thereby causing substantial damage to
the suit property. The defendant had also indulged in the illegal activity of
restraining the plaintiff and his representatives from entering the suit property
and the plaintiff was constrained to lodge a complaint with the police and on the
intervention of the police, the defendant was restrained from her illegal acts.
11. Due to the aforesaid reasons and the failure of the defendant to clear the
arrears of rent, the plaintiff terminated the tenancy of the defendant vide notice
dated 16th August, 2012 sent through registered post with A.D. Card and
Courier, thereby calling upon the defendant to pay the arrears of rent w.e.f. 10 th
May, 2012 till the date of termination of tenancy alongwith an amount of rupees
13,50,000/- in terms of the agreement to pay of rupees 15,000/- per day for the
delayed payment of rent, thereby totaling to an amount of rupees 22,20,116/-
alongwith payment for house tax of rupees 2,43,453/- and further calling upon
the defendant to clear the electricity dues and to have the illegal electricity
connection removed from the suit property and also requested the defendant to
handover vacant and peaceful possession of the suit property on or before 9 th
September, 2012.
12. The said notice was duly served upon the defendant at the tenanted
premises. However, the registered cover sent at the residential addresses, as
provided by the defendant in all the rent agreement, was returned with the
remark "no such person". The defendant had sent a reply dated 27 th August
2012, through Sh. Rohtash Singh Advocate. The said reply is based on false and
concocted facts. As is evident even from the contents of the reply itself. The
plaintiff emphatically denies the contents of the reply which are in contradiction
of the facts stated by the plaintiff in the plaint.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 5
WRITTEN STATEMENT
13. The written statement was filed on behalf of the defendant wherein it is
stated that the suit filed by the plaintiff is liable to be dismissed for want of
cause of action. The plaintiff is neither the owner of the suit property nor is he
landlord/lessor of the suit property vis-a-vis the defendant. The plaintiff is
merely an agreement to sell holder who has agreed to purchase the property
from the original owner, one Sh. Diwan Chand vide Agreement to Sell dated
23.08.1994. To the best of the knowledge of the defendant, the plaintiff has no
document or title in respect of the suit property and is consequently, not entitled
to maintain the present suit seeking recovery of possession from the defendant.
In support of the cause of action for filing the suit under reply, the plaintiff has
relied upon two alleged rent agreements i.e one dated December, 1998 and the
other 09.02.2011. Though the plaintiff has placed on record the photocopy of
the alleged rent agreement dated 09.02.2011 i.e Document No.5, as per the List
of Documents filed by the plaintiff, but the plaintiff has not filed the December,
1998 Rent Agreement. However, the said alleged rent agreement dated
09.02.2011 is a license agreement for a period of two years, commencing w.e.f
10.02.2011 till 09.02.2013. But, the same is drawn on a stamp paper of Rs. 50/-
only. Since the said rent agreement is for a period of more than 11 months, it is
required to be compulsorily registered under Section 107 of the Transfer of
Property Act. Since the entire claim of the plaintiff in the suit is based on the
said Agreement, the same cannot be looked into or acted upon in any manner,
by this court by virtue of the provisions contained in Section 35 of the Indian
Stamp Act, even for collateral purposes. Accordingly, till such time, the suit
under reply cannot proceed, and is liable to be stayed sine die. Moreover, the
said agreement sought to create lease/license in the suit property for a period of
more than one year, and since under Section 107 of the Transfer of Property Act
read with Section 49 of the Registration Act, a valid lease/license can be created
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 6
only by way of a registered agreement, and since the aforesaid agreement is not
registered, it does not create any lessor/licensor and lessee/licensee relationship,
and under the law, such document shall not affect any immovable property nor
be received as evidence of any transaction affecting such property.
Accordingly, in the absence of the same, the suit of the plaintiff fails to disclose
any cause of action.
14. There was never any relationship of landlord-tenant between the plaintiff
and the defendant. As a matter of fact, initially, the plaintiff executed a License
Deed dated 14.12.1998 with the defendant whereby the suit property, which at
that time only had a small partially constructed basement, was given to the
defendant on license basis with the right to raise construction over and above
the same for purposes of residence and running a restaurant at an agreed initial
license fee of rupees 19,000/- per month. The said license was thereafter
renewed from time to time vide unstamped and unregistered License Deeds
dated 10.02.2003, 12.10.2004 and 04.02.2006, which as per the settled law did
not create any licensor-licensee or landlord-tenant relationship in view of the
provisions contained in Sections 33, 35 and 38 of the Indian Stamp Act, and
Section 107 of the Transfer of Property Act, read with Section 49 of the
Registration Act. During the currency of the aforesaid alleged license, the
defendant constructed the superstructure with her own funds and resources
consisting of the basement, ground floor and first floor, on the suit property
with the due authorization, knowledge and consent of the plaintiff at a cost of
more than rupees 50 lacs for the purposes of her residence and also running the
restaurant. The said superstructure was constructed by the defendant in
pursuance of the aforesaid license.
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COUNTER CLAIM
15. The defendant/counter-claimant has filed counter-claim against the
plaintiff stating therein that the plaintiff/counter-defendant is the her real
paternal uncle (chacha) and the relation between the parties were extremely
good and cordial. The plaintiff and the father of the defendant, namely, Mr.
Surjit Singh Bhalla were having common business of timber. The father of the
defendant died in the year 1988 and during his life time, the defendant used to
reside at 54/4, Old Rajinder Nagar, New Delhi and was running the business of
timber store under the name and style of "Himalayan Timber Store" from 1/23,
Kirti Nagar, New Delhi. However, at the time of her father, the defendant was
residing in Sweden alongwith her husband. However, since there are no body to
look after the properties and business of her late father, the defendant shifted to
India on the death of her father in the year 1988. Since the plaintiff used to treat
the defendant as his own daughter, he advised the her that timber business is not
an appropriate business for ladies and she should change the business. When the
defendant sought the advice of the plaintiff regarding the change of business,
the defendant was advised that since the she was running a restaurant in Sweden
for many years, it would be the appropriate business for her to be carried on.
The plaintiff further offered to the defendant that he has acquired a plot of land
in Sainik Farms, New Delhi and since the same is lying idle she can shift there
and can construct the aforesaid plot of land for the purposes of her residence as
well as a restaurant. Since the defendant treated the plaintiff as her father and
well wisher, she readily accepted the above proposal of the plaintiff. As per the
above understanding, the defendant raised construction over the suit property
for her residence and also for running the restaurant. Since the defendant
required some documentation for the purpose of obtaining various permissions
in respect of the suit property for running the restaurant, the plaintiff and the
defendant mutually decided to execute a licensee deed dated 14.12.1998.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 8
16. After executing the licence-deed, the plaintiff offered to the defendant
that it is better for her to purchase the suit property but the defendant expressed
inability to pay the consideration in lumb sum. Accordingly, the plaintiff further
offered which was accepted by the defendant by arriving at an oral
understanding in January, 1999 whereby it was agreed that till the time the
defendant is able to raise sufficient funds towards the sale consideration of the
suit property, the defendant would continue to pay the agreed license fee for use
and occupation of the suit property to the plaintiff, and it was further agreed that
the aforesaid license fee towards use and occupation to be paid by the defendant
would eventually be adjusted towards purchase price of the suit property. It was
further agreed between the parties that once the total amount of consideration in
the shape of aggregate license fee would be paid by the defendant to the
plaintiff, the suit property would vest in the defendant and the plaintiff would
execute the necessary conveyance deed/agreement to transfer all his rights and
interests in the suit property in favour of the defendant. However, since no
actual period was fixed for completing the sale transaction, it was also agreed
that the amount of sale consideration shall be decided between the parties as and
when the defendant would be ready to pay the entire sale consideration.
17. As per the aforesaid understanding, various license deed/rent deeds were
executed between the parties on 14.12.1998, 10.02.2003 and 04.02.2006,
however, when the license/rent deed dated 04.02.2006 expired in February,
2009, the plaintiff expressed that since a period of almost 10 years has expired,
accordingly, the defendant should make all endeavours to close the sale
transaction as early as possible. Since, by the time, the defendant had already
paid about rupees 75 lakhs, it was finally decided and agreed that the total sale
consideration of the suit property shall be rupees 1.60 crores and the defendant
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 9
shall pay the remaining amount of rupees 85 lakhs on or before February, 2013
for completing the sale transaction.
18. Accordingly, keeping in view the aforesaid understanding/oral
agreement of sale between the parties, it was mutually decided that the license
fee which was being paid rupees 70,000/- in February, 2009 shall be increased
manifold i.e. almost by 60 per cent and accordingly, the same was increased to
rupees 1,66,000/- for the first year, and rupees 1,93,600/- for the second year i.e.
upto February, 2013 by which time the parties agreed to complete the sale
transaction as per the aforementioned agreement of sale. In view of the above
understanding and oral terms of sale, the defendant started paying the license
fee as per the aforementioned rates. Everything was smoothly going on as per
the aforesaid understanding/oral agreement of sale. However, at the instigation
of his son, namely, Parag Bhalla, the plaintiff back out from the said oral
understanding of the sale of the suit property. In view of change in attitude and
intentions of the plaintiff, the defendant was forced to stop the payment of said
agreed license fee with effect from June, 2012, as the same was towards the said
oral sale agreement. However, the defendant is always ready and willing to pay
the balance sale consideration of rupees 15,94,852/-, which remains outstanding
as on date after adjustment of said agreed license fee paid by the defendant with
effect from December, 1998 upto May, 2012 inluding the security deposit of
rupees 2,57,000/- already lying with the plaintiff, amounting in total to rupees
1,44,05,148.
19. In the counter-claim, the decree of specific performance of the
agreement to sell arrived at between the parties in the month of January, 1999
and followed in February, 2009 has been prayed, and decree of mandatory
injunction directing the plaintiff to execute all necessary documents, including
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 10
conveyance deed to convey all his rights, titles and interests in the suit property
in favour of the defendant has also been paryed.
WRITTEN STATEMENT TO COUNTER CLAIM
20. The plaintiff has filed written statement to counter-claim stating that the
counter-claim read with written statement of the defendant/counter-claimant
contains innumerable contradictions and on meaningfull reading of the same
fails to disclose any claim against plaintiff. The counter-claim sets up a plea of
an alleged oral agreement to sell whereas at the same time, the defendant admits
execution of various documents dated 14.12.1998, 10.02.2003, 04.02.2006,
02.02.2009, and the alleged agreement to sell is completely at variance of the
written agreement entered into between the parties and thus, the entire plea is
specifically barred under Section 91 and 92 of the Indian Evidence Act and
thus, cannot even be looked into for any purpose whatsoever. The
defendant/counter-claimant is tenant under the plaintiff and the same has been
unequivocally admitted by the counter-claimant in the suit filed by the counter-
claimant herself titled as "Neelam Singh Vs. DDA & Ors." pending before the
court of Ms. Richa Gosain Solanky, Civil Judge, Tis Hazari Courts, Delhi.
Further, the counter-claimant led her evidence in the said matter in the year
2007 by filing evidence by way of affidavit where also she has unequivocally
admitted herself to be a tenant. Subsequently, the defendant was cross-examined
by counsel for the DDA wherein she reiterated the fact that she is a tenant in the
suit property. Even in the present suit, in the written as well as the counter-
claim, the defendant has duly admitted the execution of various rent/licence
deed dated 14.12.1998 and thus admitting to be the licensee/lessee in the suit
property and as such the entire counter-claim is misuse and abuse of the process
of law.
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21. It is further stated in the said written statement to the counter-claim that
the counter-claim does not disclose the material particulars of the alleged
agreement to sell in as much as no particulars about the date, time, place or the
terms have been disclosed in relation to alleged agreement. More importantly,
there is no allegation about any consensus-ad-idem between the parties in
relation to any terms or consideration, with respect to alleged agreement to sell,
and/of the with respect to duration of execution, in the entire claim set up by the
defendant.
22. It is apparent that as per the contentions of the defendant in the written
statement, the defendant allegedly has already paid an amount of rupees
67,529/- towards full and final settlement to the plaintiff. At this juncture it is
most pertinent to submit that as per the reply sent on behalf of the defendant to
the legal notice dated 16.08.2012, the sale consideration alleged was rupees two
crores. Even in the counter-claim the defendant has alleged the consideration to
be rupees 1.6 crores as well as rupees 1.5 crores thereby making it apparent that
the entire claim is fictitious and the counter claim is completely devoid of any
merits.
23. Without prejudice to the aforesaid and only for the purpose of argument
without at any moment admitting to the alleged agreement to sell it is submitted
that the defendant/counter-claimant is not entitled to any relief of specific
performance in as much as the counter claimant has admittedly defaulted in the
monthly payment due to lack of funds and has also duly admitted that she does
not possess enough money even for the purpose of payment of statutory dues. It
is thus apparent that the counter-claimant does not possess means to fulfill the
alleged terms of the alleged agreement to sell and thus even for the sake of
argument cannot be said to be ready and willing to perform her alleged part, as
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 12
is apparent from the application to sue as forma pauper under Order 33 of the
CPC filed by the defendant/counter-claimant herself and thus, the most
important ingredient of a claim of specific performance not being satisfied.
24. Without prejudice to the aforesaid, the defendant in her written statement
has raised challenge about the title of the plaintiff herein with respect to the suit
property and as such the defendant cannot be permitted to take mutually
destructive pleas wherein at one instance in para 1 and 2 of preliminary
submissions in the written statement and also para 1 of the parawise reply to the
written statement, the ownership of the plaintiff challenged and disputed by the
defendant on the other she is seeking to obtain title from the plaintiff. It is thus
apparent that the defendant cannot maintain the suit for specific performance
against the plaintiff who according to the defendant is not the owner and does
not have perfect title in respect of the suit property and the counter claim is
liable to be dismissed on this count alone.
ISSUES
25. On 29.08.2014, following issues for suit and couner-claim were framed
by the Hon'ble Delhi High Court when trial of this case was pending there:
1) Whether the Defendant is a tenant under the Plaintiff on a rent of Rs.
1,76,000/- per month or at any other rate? OPP.
2) Whether the Plaintiff is entitled to recover the possession of the suit
property from the Defendant? OPP.
3) What amount, if any, the Plaintiff is entitled to recover from the
Defendant? OPP.
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4) Whether any Agreement to Sell in respect of the suit property was entered
into between the parties as claimed by the Defendant in February, 2009 for an
amount of Rs.1.6 Crores and whether the sale consideration has been paid, as
claimed? OPD.
5) Whether the Defendant is entitled to specific performance of the
Agreement to Sell? OPD.
6) Whether the Defendant was a Licensee with permission to raise
permanent construction ? If so, whether the suit is barred under Section 18 of
the Indian Easement Act, 1882? OPD.
EVIDENCE
26. The plaintiff/counter-defendant got examined Virender Singh (PW-1),
himself (PW-2), Sunil Kumar (PW-3), Rakesh Kumar (PW-4) and Ritu Bhargav
(PW-5 ). The defenendant/counter-claimant got examined self (DW-1), Sangini
Singh (DW-2), Satish Gupta (DW-3) and Rajender Kumar Gupta (DW-4). It is
pertinent to mention here that para 4,5,6,7 and 8 of the affidavit of DW-1
pertaining to examination-in-chief were struck down from the said affidavit
being of substantive/procedural law by order dated 26.09.2016.
27. The plaintiff (PW-2) got exhibited following documents :
1. The copy of the agreement of Licence Deed - Mark A (marked as Ex.
PW-1/2 in the affidavit).
2. The certified copy of cheque No. 229702 dated 31.05.2012 - Mark B
(marked as Ex. PW-1/5 in the affidavit).
3. The certified copy of cheque No. 229701 dated 31.05.2012 - Mark C
(marked as Ex. PW-1/6 in the affidavit).
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4. The certified copy of cheque No. 228828 dated 30.06.2012 - Mark D
(marked as Ex. PW-1/7 in the affidavit).
5. The certified copy of cheque No. 228829 dated 30.06.2012 - Mark E
(marked as Ex. PW-1/8 in the affidavit).
6. The certified copy of Return Memos - Mark F, G & H (marked as Ex.
PW-1/9 to Ex. PW-1/11in the affidavit).
7. The house tax receipts of the suit property - Ex. PW-1/12 to Ex. PW-15
8. The payment receipt dated 31.08.2012 for fresh electricity connection -
Ex. PW-1/16.
9. The electricity bill having due date 10.01.2000 - Ex. PW-1/17.
10. The certified copy of the statement recorded in the Suit No. 215 of 1997
- Mark I (colly) (Exhibited as Ex. PW-1/18 in the affidavit).
11. The true copy of Police Complaint dated 08.08.2012 - Ex. PW-1/19.
12. The certified copy of the affidavit by way of evidence filed by the
defendant in suit titled as "Neelam Singh Vs. DDA & Ors." - Mark J
(given as Ex. PW-1/20 in the affidavit).
13.The certified copy of the cross-examination of the defendant - Mark K
(given as Ex. PW-1/21 in the affidavit).
14. The payment challans of service tax return - Ex. PW-1/22 (colly).
SUBMISSIONS OF PLAINTIFF/COUNTER-DEFENDANT
28. Mr. Prakash Gautam, learned counsel for the plaintiff has submitted that
the plaintiff is the owner of the suit property by virtue of agreement to sell GPA
executed by its erstwhile owner namely, Diwan Chand. In the year 1998, the
suit property was given by the plaintiff to the defendant. Initial agreement
between the parties was termed as licence deed dated December 1998 with
effect from 10.12.1998, however, the words used in the said documents
specified that the defendant is the licensee in the suit property. The last such
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agreement was made on 09.02.2011 which was valid till 09.02.2012. The
defendant has failed to pay rent with effect from May 2012. The cheques which
was paid also got bounced. The defendant has been in use and occupation of the
suit property without paying any amount since May 2012.
29. Mr. Gautam has further submitted that the defendant made some illegal /
temporary constructions in the suit property and the plaintiff had never given
permission to her to raise any illegal constructions but without the knowledge
and consent of the plaintiff. The plaintiff terminated the tenancy in August 2012
and since then the defendant has been living in the suit property without even
paying a single penny towards use and occupation of the suit property. The
defendant in her affidavit and cross-examination in another case stated that she
is the licensee of the plaintiff and construction exhausted when she entered the
suit property.
30. Mr. Gautam has also submitted that the plaintiff has examined five
witnesses in support of his case and they have proved the case of the plaintiff. In
the cross-examination of the plaintiff (PW-2), the rent agreement of December
1998 had been put to him during cross-examination and accordingly the said
documents can be looked for collateral purposes though not registered and the
said documents had been marked as PW-2/AAA. The other rent agreement
dated 09.02.2011 was also duly put to the witness and accordingly were
exhibited during cross-examination. The deposition of the plaintiff having
possession of one servant quarter in the suit property was duly confirmed by the
Local Commissioner report. It is also recorded in the report that there exists
Scandinavian structure, which is being made by the defendant. PW-4 proved the
affidavit in evidence of Neelam Singh (PW-4/2) and her cross-examination
(PW-4/1) in civil suit no. 140/14 titled as Neelam Singh Vs. DDA & Ors.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 16
Pending in the court of Ms. Preeti Parewa, MM, District South, Delhi. In said
evidence, the defendant herein has admitted herself that plaintiff is owner of the
suit property and she is paying monthly rent to the plaintiff and she is a tenant in
the suit property and further the construction existed when she entered and had
spent rupees 30 lacs towards addition / alteration, decoration in the suit
property. However, in the present pleadings contrary stand being taken that she
invested rupees 50 lacs towards construction. No such defense was raised in the
said suit to the extent that she is under an oral agreement to sell or she is paying
monthly payment not towards monthly rent but towards installment of purchase
agreed between the parties.
31. Mr. Gautam has further submitted that issue of construction being made
at the suit property firstly has been done without the permission of the plaintiff
unauthorized construction and subsequently, the same has not been of
permanent nature. There has been ambiguity in the examination of DW-1 to the
extent of the construction being done by the defendant and there has been lot of
contradictions which have emerged during the cross-examination regarding the
said construction. The first agreement between the parties is to be a lease deed
whereas all subsequent documents clearly mentions to be a rent agreement.
Thus, in sum and substance the character of the defendant is not of a licensee.
The agreement between the parties clearly mentions that she would not raised
any unauthorized constructions in the suit property and therefore, anything done
by the defendant without the prior approval and consent of the plaintiff makes
them unauthorized which cannot be permitted under law. As per the Section 91
and 92 of the Indian Evidence Act there is exclusion of evidence of oral
agreement and the averment of terms of contract grants and other dispositions of
property reduced to form documents are to be looked into. Even the defendant
has admitted execution of the rent agreement which clearly stipulates the
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 17
condition of the property being given to her on rent against payment of monthly
rent and she could not produced any documents to show that there was any oral
arrangements towards sale of suit property and therefore, her defense to the
extent of there being an oral agreement gets demolished under law. The proviso
to Section 49 of the Registration Act clearly deal with the situation that non-
registered document can be read in evidence of any collateral transaction not
required to be effected by the registered document. The transaction between the
parties is collateral as it concern the suit property, therefore, the rent amount can
be taken into evidence for the said purpose. Even otherwise, the said documents
has been duly admitted by the defendant in her cross-examination.
32. Mr. Gautam further submitted that for a specific performance of the
oral agreement, the ready and willingness of the buyer has to be seen for all
times whereas it has been the admission on the part of the defendant herself that
she is having financial crisis and is on the mercy of her daughter and sister who
are given her financial help. Even she has not deposed that she had the funds
available with her which as per herself is about 15.95 lacs, the alleged
outstanding amount. She has filed no bank statement, no proof of her income
and also no proof any availability of funds with her. This also goes to show that
she was never ready and willing to honour her commitment as alleged by her.
Learned counsel has prayed that suit of the plaintiff be decreed and counter-
claim of the defendant be rejected.
SUBMISSIONS OF DEFNDANT/COUNTER-CLAIMANT
33. Per contra, Mr. Vivek Aggarwal, learned counsel appearing for the
defendant submitted that the plaintiff is merely an agreement to sell holder and
he has no document or title in respect of suit property and therefore, he is not
entitled to maintain the present suit. The suit property is a custodial land and
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 18
such land cannot be transferred. The plaintiff initially executed a license deed
dated 14.12.1998 in favour of the defendant whereby the suit property was
given to the defendant on license basis with the right to raise construction over
and above the same for the purpose of residence and running a restaurant. The
said license was thus renewed from time to time vide unstamped and
unregistered license deed dated 10.02.2003, 12.10.2004 and 04.02.2006. And
even the said license deed renewed in the year 2009 and 2011. During the
existence of said license agreement, the defendant built a superstructure with
her own funds as it was a bare land and resources with due authorization and
consent of the plaintiff at a cost of more than rupees 50 lacs for the purpose of
residence and for running a restaurant. The structure was constructed in
pursuance of aforesaid license.
34. Mr. Aggarwal has further submitted that the plaintiff is neither the owner
of the suit property nor landlord / lessor of the suit property vis-a-vis the
defendant. The photocopy of two alleged rent agreements i.e. one dated
December 1998 and other 09.02.2011 have been placed by the plaintiff but he
has failed to file the other rent agreements of the intervening period. The alleged
rent agreement dated 09.02.2011 is license agreement for a period of two years
but the same is drawn on a stamp paper of rupees 50/- only. Since the said rent
agreement is for a period of more than 11 months, it is required to be
compulsory registered under Section 107 of the Transfer of Property Act. The
said agreement cannot looked into or acted upon in any manner by virtue of
Section 35 of the Indian Stamps Act, even for collateral purposes. A valid
lease / license can be crated only by way of registered agreement by virtue of
Section 107 of the Transfer of Property Act read with Section 49 of the
Registration Act and since the aforesaid agreement is not registered, it does not
create any lessor / licensor and lessee / licensee and under the law such
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 19
documents shall not affect any immovable property nor be received as evidence
of any transaction effecting the such property.
35. Mr. Aggarwal has further submitted that the superstructure was
constructed by the defendant in pursuance of the license and since the same is of
the permanent character, the license of the defendant is irrevocable in terms of
Section 60 of the Easement Act, 1882. Accordingly, the revocation of the
defendant's license is expressively barred under the provisions of Section 60 of
the said Act.
36. Mr. Aggarwal has further submitted that the defendant is always ready
and willing to pay the balance sale consideration of rupees 15,94,850/- which
remains outstanding as on date after the adjustment of the agreed license fees
paid by the defendant with effect from December 1998 upto May 2012
including the security deposit of rupees 2,57,000/- already lying with the
plaintiff amounting in total rupees 1,44,05,148/- subject to plaintiff honouring is
part of oral agreement to sell by completing the sale transaction by executing
necessary documents in favour of the defendant. The plaintiff paid the house tax
of the suit property till 1998 and thereafter, the defendant has regularly paid the
house tax of the suit property.
37. Mr. Aggarwal has further submitted that the defendant has got examined
four witnesses in support of her defense and counter-claim. The defendant has
proved her counter-claim and therefore, suit of the plaintiff be dismissed and
counter-claim of the defendant be decreed.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 20
ANAYLYSIS AND CONCLUSION
38. Issue No. 1: Whether the Defendant is a tenant under the Plaintiff on a
rent of Rs. 1,76,000/- per month or at any other rate? OPP.
The defence taken by the defendant that the plaintiff is not the owner of the
suit property is liable to be rejected in view of rule of estoppel embodied in
Section 116 of the Evidence Act, 1872. In view of said rule of estoppel, no
tenant of immovable property 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 immovable property. Hon'ble Supreme Court in case of
Sri S.K. Sarma v. Mahesh Kumar Verma [Appeal (Crl.) No. 960 of 2002]
decided on 17.09.2002 referred to the decision in S. Thangappan v. P.
padmavathy, (1999) 7 SCC 474 in which it was held that Section 116 of the
Evidence Act, 1872 puts an embargo on a tenant of an immovable property,
during the continuance of his tenancy to deny the title of his landlord at the
beginning of his tenancy, and the significant words under it are 'at the beginning
the tenancy'. So a tenant once inducted as a tenant by a landlord, later cannot
deny his landlord's title. However defective the title of such landlord may be,
such tenant cannot deny his title.
39. Section 116 of the Evidence Act embodies therein a rule of estoppel. 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 immovable
property. This estoppel so long as it binds the tenant excludes the tenant from
raising a plea disputing the title of his landlord at the commencement of the
tenancy. It flows as a corollary therefrom that the proof of landlord-tenant
relationship tantamounts during the continuance of tenancy to proof of
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 21
ownership of landlord over the tenancy premises at the beginning of the tenancy
so far as the tenant is concerned. It is significant to note that on the phraseology
of Section 116 of the Evidence Act the rule of estoppel applies so long as the
tenancy is not terminated and the rule estops the tenant from laying challenge to
the ownership of the landlord at the commencement of the tenancy. But the rule
of estoppel as incorporated in Section 116 is not exhaustive and it may be
extended or suitably modified in its application to other situations as well,
retaining the basic feature of the rule. [Sheela & Ors v. Firm Prahlad Rai
Prem Prakash, Appeal (Civil) No. 3965 of 1999]
40. There are exceptions to this rule of estoppel. The Hon'ble Supreme Court
in a judgment passed on 18.11.2005 in case of E. Parashuraman (D) By LRs.
v. V. Doraiswamy (D) By LR, [Civil Appeal No. 3502 of 2004] observed that
the exception to the rule of estoppel embodied under Section 116 of the
Evidence Act arises if it is shown that since the date of the tenancy the title of
the landlord came to an end, or that he was evicted by a paramount title holder,
or that even though there was no actual eviction or dispossession from the
property, under a threat of eviction, the tenant had attorned to the paramount
title holder and a new jural relationship of landlord and tenant had come into
existence between them. The instant case does not fall in any exception of rule
of estoppel embodied under Section 116 of the Evidence Act because such a
situation has not arisen in the instant case.
41. There is dispute between the parties in respect of status of the defendant
in the suit property. As per the plaintiff, the defendant is tenant in the suit
property whereas the defendant could not say at all the time that he is licensee
or tenant. The defendant in some places of written statement, counter claim, her
evidence and written submission claims herself to be licensee but other some
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 22
places to be tenant and some other places to be tenant/licensee. Hence, it is
consistent stand of the plaintiff that the defendant is tenent in the suit property
whereas defendant's stand qua her status is not consistent. The defendant has
admitted execution of license deeds/rent agreements dated 14.12.1998,
10.02.2003, and 04.02.2006 in respect of the suit property. She has also
admitted the rent agreement dated 02.02.2009 qua the suit property. The
defendant (DW-1) in her cross-examination has admitted that agreement entered
into between her and the plaintiff in the year 2011 was in the shape of rent
agreement. She also stated in her cross-examination that she issued a demand
draft no. 222050 dated 29.06.2012 for rupees 67,529/-, the same towards the
arrears of rent. The daughter of defendant (DW-2) has stated the word
tenant/rent agreement/lease agreement for the suit ptoperty several times during
her cross-examination.
42. PW-4 has proved evidence by way of affidavit of plaintiff Smt. Neelam
Singh (defendant herein), certified copy of which is Ex. PW-4/2 and her cross-
examination, certified copy of which is Ex. PW-4/1. These evidence is in
respect of Civil Suit No. 140/14 titled as "Neelam Singh v. DDA and Ors"
pending in the court of Ms. Chhavi Kapoor, Civil Judge, West District, Tis
Hazari Court, Delhi. The defendant herein was plaintiff in that suit. She had
examined herself as PW-1 in that suit. She was cross-examined on 19.04.2011
in that suit. In examination-in-chief (Ex.PW-4/2), Neelam singh (defendant
herein) stated, inter-alia, that she is in possession of suit property as tenant
under defendant No. 3 (plaintiff herein) and paying rent/license fee regularly;
that she took the suit property from the defendant No. 3 vide lease deed in
December, 1998 and the copy of lease deed is Exh. PW-1/1. She in her cross-
examination (Ex.PW-4/1) in said case stated that the defendant no. 3/Sh.
Bhupender Singh Bhalla (plaintiff herein) had shown her the documents
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 23
pertaining to the disputed property at the time of taking the property in question
on rent from him; that prior to taking the property in dispute on rent from
defendant no. 3, she enquired about the perfect title of defendant no. 3 qua the
property in question from the concerned Patwari at Mehrauli. Hence, in that
suit, the defendant herein has clearly deposed that she is tenant of the plaintiff
herein qua suit property. Deed of December, 1998 with the plaintiff herein qua
the suit property is stated to be lease deed and not license-deed by the defendant
herein in that suit.
43. PW-1 (Virender Singh) is Inspector of Income Tax, Ward 53 (4), Income
Tax Department, Delhi who brought the certified true copy of ITRs (Income
Tax Returns) for the period for assesment years 2008-09, 2009-10, 2010-11,
2011-12 and 2012-13 and forwarding letter which have been mrked as Ex. PW-
1/A (colly). He has proved the ITRs of the plaintiff pertaining to certain years
which goes to show that income from rent received from the suit property has
been shown in the ITRs.
44. Further, in respect of service tax, Ritu Bhargav (PW-5) who is Inspector,
Service Tax Department, Government of India, has proved service tax return of
Hindustan Timber Syndicate (HUF) for the financial years 2011-12 to 2014-15
as Ex.PW-5/A which goes to show that the suit property is being shown in the
records of service tax and service tax is being paid on the amount of rent
received. The payment challans of service tax return have been proved as Ex.
PW-1/22 (colly) by the plaintiff (PW-2).
45. Hence, there are sufficient evidence and admissions of the defendant with
regard to status of the defendant in the suit property to be tenant. The status of
the defendant in the suit property is of a tenant not of a licensee.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 24
46. The defendant has admittted last rate of rent in para no. 5 (iv) of
preliminary submissions in her written statement admitting that when the
aforesaid rent agreement dated 02.02.2009 expired in February, 2011, the rent
was increased to rupees 1,66,000/- for the first year, and rupees 1,93,600/- for
the second year that is upto February, 2013. It is also admitted by the defendant
that she has not paid since May/June, 2012. Hence, it is proved that the
defendant is a tenant under the plaintiff in the suit property; that last rate of rent
was of rupees 1,93,600/- per month. Accordingly, this issue is decided in favour
of the plaintiff and against the defendant.
47. Issue No. 4: Whether any Agreement to Sell in respect of the suit
property was entered into between the parties as claimed by the Defendant in
February, 2009 for an amount of Rs.1.6 Crores and whether the sale
consideration has been paid, as claimed? OPD.
The defendant has taken stand that there is oral agreement to sell between the
parties qua the suit property. For specific performance of said oral agreement to
sell, the defendant has filed counter-claim. But the plaintiff has denied
outrightly about existence of any oral agreement to sell.
48. In respect of oral agreement to sell, it is averred by the defendant that,
she shifted to suit property, which was a plot, in 1998 and constructed the said
plot for the purposes of her residence as well as a restaurant; and all this were
offered and advised by the plaintiff which were accepted by her and thereafter,
said construction was done done by her at the said advise and offer made by the
plaintiff. It is further stand of the defendant that since she required some
documentations for the purposes of obtaining various permissions in respect of
the suit property for running the restaurant, she and the plaintiff mutually
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 25
decided to execute a licence-deed dated 14.12.1998. As per further stand of the
defendant, after executing the said licence-deed, the plaintiff offered to the
defendant that since she is going to raise permanent construction over the suit
property and going to live and earn livelihood from there, it better that she
should purchase the suit property from him; However, since she did not have
sufficient funds available with her to purchase the suit property as she had to
firstly spend a huge money which she had, in constructing the house and the
restaurant on the suit property, she expressed inability to pay the consideration
in lump sum, and accordingly, he further offered which was accepted by her by
arriving at an oral understanding in January, 1999 whereby it was agreed that
till the time she is able to raise sufficient funds towards the sale consideration of
the suit property, she would continue to pay the agreed licence fee for use and
occupation of the suit property to him, and it was further agreed that aforesaid
licence fee towards user occupation to be paid by her would eventually be
adjusted towards purchase price of the suit property; It was further agreed that
once the total amount in the shape of aggregate licence fee would be paid by her
to the plaintiff, the suit property would vest in her and he would execute the
necessary conveyance deed/agreement to transfer all his rights and interests in
the suit property in her favour; However, since no actual period was fixed for
completing the sale transaction, it was also agreed that the amount of sale
consideration shall be decided between the parties as and when the defendant
would be ready to pay the entire sale consideration.
49. The whole defence and couner-claim of the defendant are based on this
oral agreement to sell which was allegedly executed in the month of January,
1999 and sale consideration was allegedly finally decided in February, 2009.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 26
50. But stand of financial inability in purchasing the suit property does not
inspire the confidence of the court because she herself deposed in her cross-
examination that she incurrred rupees 30 lakhs in construction of the suit
property, and in other place of cross-examination she deposed that she incurred
rupees 50 lakhs in construction. In respect of alleged sale amount, she deposed
that from the year 1998 to 2009, the sale amount, which was agreed between her
and the plaintiff mutually varied from time to time starting from rupees 35 Lakh
to rupees 50 Lakh and finally the plaintiff settled for a figure of rupees 1.60
Crores. But, in cross-examination, the defendant (DW-1) could not tell the exact
agreed sale consideration; she could not tell whether it is 1.5 crores or 1.6 crore.
The daughter of the defendant, namely, Sangini Singh (DW-2) in her cross-
examination deposed that oral agreement regarding sale of suit property
between the parties for a total consideration of rupees 1.60 Crores was entered
into the year 1998 but she again said that in 1998 sale consideration was agreed
as rupees 30 to 50 Lakh. If she could incur rupees 30 or 50 Lakh in construction
on the suit property in the year 1998 then she could have pay said alleged sale
consideration of rupees 30 or 50 Lakh in the same year or thereafter when she
sold two properties in the year 2002 or 2003 which were inherited by her from
her father and she had received the money in bulk.
51. As per further stand of the defendant, at the time of said oral agreement
to sell, there was no time fixed for execution of the sale-deed/conveyance deed
and no final consideration fixed/agreed upon between of the parties. The total
sale consideration as per the defendant, was finally decided and agreed after
expiry of license/rent deed dated 04.02.2006 in February, 2009 to be rupees
1.60 crore. As per her further case, till February, 2009 she already paid rupees
75 lakhs and had to pay remaining amount of rupees 85 lakhs on or before
February, 2013 for completing the sale consideration.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 27
52. As per the defendant, the reason for increasing license fee of rupees
70,000/- to rupees 1,60,000/- in February, 2009 under the rent agreement dated
02.02.2009 and further increasing rent of rupees 1,66,000/- for the first year,
and rupees 1,93,600/- for second year that is upto February, 2013 was due to
payment of remaining sale consideration of rupees of rupees 85 lakhs on or
before February, 2013 for completing the sale consideration. But it pertinent to
mention here that the defendant's witness (DW-3) has admitted in examination-
in-chief that with the passage of time, the price of suit property sky rocketed. If
price of suit property sky rocketd then rate of rent also could have incresed
substantially. Hence, it cannot be conclusively said that reason for increasing
license fees of rupees 70,000/- to rupees 1,60,000/- in February, 2009 under the
rent agreement dated 02.02.2009 and further increasing rent of rupees
1,66,000/- for the first year, and rupees 1,93,600/- for second year that is upto
February, 2013 was due to alleged payment of remaining sale consideration of
rupees of rupees 85 lakhs on or before February, 2013 for completing the sale
consideration and was not due to increasing the amount/rent of suit property.
Hence, merely because rent/license fee of the suit property was increased from
70,000/- to rupees 1,60,000/- and then to rupees 1,66,000/- and thereafter to
rupees 1,93,600/- between February, 2009 and February, 2013, it cannot be
concluded that rent/license fee was increased so that alleged payment of
remaining sale consideration of rupees of rupees 85 lakhs could be completed
till February, 2013.
53. In respect of year when the alleged sale consideration was
fixed/detemined, it is specifically averred by the defendant in her counter-claim
that since no actual period was fixed for completing the sale transaction, it was
also agreed that the amount of sale consideration shall be decided between the
parties as and when the defendant would be ready to pay the entire sale
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 28
consideration. Hence, as per couner-claim, no sale consideration was
fixed/determined at the time of said alleged oral agreement to sell which was
allegedly executed in January, 1999. But in cross-examination defendant (DW-1
) deposed that the oral agreement regarding sale of suit property between her
and the plaintiff for a total consideration of rupees 1.60 Crores was entered in
the year 1998. She again said that in 1998 sale consideration was agreed as
rupees 30 to 50 Lakh. It is pertinent to mention here that she also stated in
cross-examination that no figure was fixed in the year 1998 and the figure of
rupees 1.60 Crores was only decided in the year 2009. She also states in other
place of her cross-examination that the sale amount regarding the suit property
was determined between them for the first time mutually in the year 2002
orally. Hence, her stand in cross-examination was not consistent qua the year
when the alleged sale consideration was fixed for the suit property. At one
place, she states that in the year 1998 the amount was fixed, at othe place she
states that same was fixed in the year 2002 and at other place she state that same
was fixed in the year 2009.
54. Similarly stand of the defendant qua the quantum of sale consideration
of the suit property is also not consistent. It is specifically averred by the
defendant in her counter-claim in this reagrd that since no actual period was
fixed for completing the sale transaction, it was also agreed that the amount of
sale consideration shall be decided between the parties as and when the
defendant would be ready to pay the entire sale consideration. Hence, as per
couner-claim, no sale consideration was fixed/determined at the time of said
alleged oral agreement to sell which was allegedly executed in January, 1999.
But in cross-examination DW-1 (defendant) deposed that the oral agreement
regarding sale of suit property between her and the plaintiff for a total
consideration of rupees 1.60 Crores was entered in the year 1998. She again
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 29
said that in 1998 sale consideration was agreed as rupees 30 to 50 Lakh. It is
pertinent to mention here that she also stated in cross-examination that no figure
was fixed in the year 1998 and the figure of rupees 1.60 Crores was only
decided in the year 2009. As per the reply sent on behalf of the defendant to the
legal notice dated 16.08.2012, the sale consideration alleged was rupees two
crores. Hence, her stand in cross-examination was not consistent qua the
quantum of sale consideration for the suit property. At one place of her cross-
examination, she states that total consideration of rupees 1.60 Crores was
entered in the year 1998 but again said that in 1998 sale consideration was
agreed as rupees 30 to 50 Lakh and other place she states that no figure was
fixed in the year 1998. In the reply sent on behalf of the defendant to the legal
notice dated 16.08.2012 of the plaintiff, the sale consideration alleged to be
rupees two crores.
55. DW-1 also deposed in her cross-examination that in spite of the sale of
the properties by her in the year 2002 or 2003 she did not pay any bulk amount
to the plaintiff and only paid as mentioned in the rent agreement of that period.
She also deposed that the plaintiff was comfortable in arrangement agreed
between them; that she offered the amount over and above the amount of rent
agreement in the year 2002 or 2003, but she could not remember the amount
that was offered. Nothing has been stated by her in written statement/counter-
claim/examination in chief in respect of offering the amount over and above the
amount of rent agreement in the year 2002 or 2003. She could not tell the
amount that was offered. It cannot be belieabavle to this Court that the plaintiff
who made said alleged oral agreement to sell in favour of the defendant, would
be comfortable in arrangement agreed between them and would not accept the
amount over and above the amount of rent agreement in the year 2002 or 2003.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 30
56. It is important to note that the defendant has not taken plea/defence in
said Civil Suit No. 140/14 titled as "Neelam Singh v. DDA and Ors" (supra)
that there was an oral agreement to sell between the plaintiff herein and the
defendant herein and it was agreed that till the time she is able to raise sufficient
funds towards the sale consideration of the suit property, she would continue to
pay the agreed rent/licence fee for use and occupation of the suit property to
him, and said rent/licence fee towards user occupation to be paid by her would
eventually be adjusted towards purchase price of the suit property.
57. Rajinder Kumar Gupta (DW-4) was treasurer of the Carriappa Marg
Resident Association during the period 1993 to 2000, and became Secretary
during the period 2002 to 2011, and further became Vice President during the
tenure 2012 to 2013 and thereafter remained President during the July, 2013 to
December, 2016. His deposition pertaining to mentioning the name of defendant
as owner in the records of said Resident Association is not of much importance
because this record can not be proof of ownership of suit property when the
defendant himself claimed herself to be tenant/licensee/holder of oral agreement
to sell.
58. DW-4 deposed also that he met with the defendant in 1998 when the
constuction for residence cum restaurant was going on and before that the suit
property was an empty plot covered by some old wood gate and the defendant
intimated him that she has purchased the suit property from the uncle (plaintiff)
and she called her uncle and he (uncle) said that she is his daughter and is the
sole owner of the suit property. This deposition is against the stand of the
defendant because the stand taken by the defendant is that oral agreement to sell
was allegedly executed in the month of January, 1999. The defendant prior to
the said alleged oral agreement to sell claims herself to be licensee. Hence, the
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 31
deposition of DW-4 that in 1998, the defendant told her that she purchased the
suit property from her uncle (plaintiff) and her uncle also said that she is the
sole owner of the suit property in 1998, cannot be relied upon. From this
evidence of DW-4, it can be said that the defendant has taken the stand which is
not according to her stand mentioned in her examination-in-chief, cross-
examination, written statement and counter-claim. It is also important to note at
this juncture that the defendant is claiming herself to be holder of oral
agreement to sell since January, 1999 and not claiming herself to be owner and
further she has filed couner-claim for specific performance of said oral
agreement to sell and therefore, there is no question of ownership of the
defendant qua suit property.
59. DW-4 deposed also that the after arising some disputes in 2012 between
the parties of this suit, the plaintiff along with his advocate Chander Shekhar
approached him to be the arbitrator and the plaintiff gave proposal that he will
pay back all the amount which he had received from the defendant and
whatever she has spent on construction the suit property and also will give a
part of the suit property to the defendant to live in and he (PW-4) put the same
proposal to the defendant but later the plaintiff backed out. The defendant
through this witness (DW-4) has introduced new defence that the plaintiff gave
proposal that he will pay back all the amount which he had received from the
defendant and whatever she has spent on construction the suit property and also
will give a part of the suit property to the defendant to live. The defendant has
not averred/deposed herself in her written statement/depostion about said
proposal as deposed by PW-4. She has stated no words about such a proposal.
She deposed nothing about the telling the said proposal by DW-4 to her. This
depostion is beyond pleadings and is not believable.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 32
60. The counter-claim does not disclose the material particulars of the alleged
agreement to sell. No particulars about the date, time, place or the terms have
been disclosed in relation to alleged agreement. More importantly, there is no
allegation about any consensus-ad-idem between the parties in relation to any
terms or consideration, with respect to alleged agreement to sell, and/of the with
respect to duration of execution, in the entire claim set up by the defendant.
61. Even if it is assumed for the sake of argument that there is any said
alleged agreement to sell, even then the defendant/counter-claimant is not
entitled to any relief of specific performance in as much as the counter claimant
has admittedly defaulted in the monthly payment due to lack of funds and has
also duly admitted that she does not possess enough money even for the purpose
of payment of dues. It is thus apparent that the counter-claimant does not
possess means to fulfill the alleged terms of the alleged agreement to sell and
thus even for the sake of argument cannot be said to be ready and willing to
perform her alleged part, as is apparent also from the application to sue as forma
pauper under Order XXXIII of the CPC moved by the defendant/counter-
claimant herself and thus, the most important ingredient of a claim of specific
performance (always ready and willingness) not being satisfied.
62. The defendant in her pleadings has raised challenge about the title of the
plaintiff with respect to the suit property and as such the defendant has taken
mutually destructive pleas wherein at one instance, the ownership of the
plaintiff has been challenged and disputed by her on the other she is seeking to
obtain title from the plaintiff. It is thus apparent that the defendant cannot
maintain the suit for specific performance against the plaintiff who according to
her is not the owner and does not have perfect title in respect of the suit
property.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 33
63. Hence, the defendant has failed to prove that there is an oral agreement to
sell qua suit property entered into between the parties to this suit and that sale
consideration has been paid. Consequently, this issue is decided against the
defendant and in favour of the plaintiff.
64. Issue No. 5: Whether the Defendant is entitled to specific performance of
the Agreement to Sell? OPD.
As it has been found that there is no oral agreement to sell qua suit property
between the parties to the suit, threrefore, no question of specific performance
of the agreement to sell arises. Hence, this issue is decided against the
defendant/counter-claimant and in favour of the plaintiff/counter-defendant.
65. Issue No. 6: Whether the Defendant was a Licensee with permission to
raise permanent construction ? If so, whether the suit is barred under Section 18
of the Indian Easement Act, 1882? OPD
It is submitted by learned counsel appearing for the plaintiff that this issue
has wrongly quoted Section 18 of the Indian Easement Act whereas it has to be
read as Section 60 of the Indian Easement Act. Learned counsel appearing for
the defendant was given opportunity to clarify the provision mentioned in this
issue but he could not clarify and he kept taking adjournments. In view of stand
taken in written statement, counter claim and written submissions by the
defendant and submissions of the learned counsel appearing for the plaintiff, it
is found that this issue has wrongly quoted Section 18 of the Indian Easement
Act whereas it has to be read as Section 60 of the Indian Easement Act and
accordingly, Section 18 be read as Section 60 in this issue.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 34
66. License, as defined in section 52 of the Easements Act means grant of
permission, by a person to the other, a right to do or continue to do, in or upon,
the immovable property of the grantor, something which would, in the absence
of such right, be unlawful. Such a right does not amount to an easement or any
interest in the property. The rights so conferred is license. The grant of license
may be expressed or implied which can be inferred from the conduct of the
grantor. A license may be oral also, in that case, terms, conditions and the
nature of the license, can be gathered from the purpose for which the license is
granted implied with the conduct of the parties and the circumstances which
may have let to the grant of license.[Ram Sarup Gupta (Dead) By Lrs v.
Bishun Narain Inter College & Ors, 1987 AIR 1242]
67. If a person allows another to build on his land in furtherance of the
purpose for which he is granted license, subject to any agreement to the
contrary, he cannot turn round, later on, to revoke the license. This principle is
codified in Section 60 (b) of the Indian Easements Act, 1882. Section 60 of the
Easenent Act enumerates the conditions under which a license is irrevocable;
firstly, the license is irrevocable if it is coupled with the transfer of property and
such right is enforced, and secondly, if the licensee acting upon the license
executes work of permanent character and incurs expenses in execution. But
Section 60 is not exhaustive. A license is irrevocable under section 60 (b) of the
Indian Easement Act, 1882 only if all the following three conditions are
fulfilled:
(i) the licensee executed work of a permanent character,
(ii) he did so acting upon the license, and
(iii) he incurred expenses in doing so.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 35
The onus of proving these facts lie upon the licensee and in the absence of
any evidence on these questions the license could not be irrevocable under
section 60 (b) of the Act. [Ram Sarup Gupta (Dead) By Lrs (supra)]
68. There is dispute between the parties regarding nature of construction on
the suit property by the defendant and regarding consent of plaintiff in respect
of said construction. As per stand of the plaintiff, the defendant made some
illegal/temporary construction in the suit property without his consent and
knowledge. But, as per the stand of the defendant, she constructed the
superstructure with her own funds and resources consisting of the basement,
ground floor and first floor, on the suit property with the due authorization,
knowledge and consent of the plaintiff at a cost of more than rupees 50 lacs for
the purposes of her residence and also running the restaurant. But in cross-
examination of defendant (DW-1), the cost of construction incurred is deposed
to be rupees 35-40 lakhs approximately. In cross-examination, she admitted that
when she came to the suit property, it was a barren field with some plants on it,
a basement and a temporary servant quarter were there. She stated at other place
in cross-examination that when she entered into the suit property in the year
1998, basement and ground floor partially constructed, unfinished existed and
there was no boundary wall, it was covered with net. She also stated that she
repaired the basement and ground floor which existed and the first floor was the
fresh construction. As per her further cross-examination, the said superstructure
referred to by her in para 8 of her affidavit was done by her in the year 1998
itself and no further construction was done by her after that; that the
construction was completed within a period of 5-6 months; that structure was
constructed at once in the year 1998.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 36
69. Hence, from the point of view of the defendant, when she entered into the
suit property in the year 1998, basement and ground floor partially constructed,
unfinished existed and there was no boundary wall and that she repaired the
basement and ground floor which existed and the first floor was the fresh
construction; said superstructure/construction was done by her in the same year
that is in 1998 itself within a period of 5-6 months and same was constructed at
once in the year 1998 and no further construction was done by her after 1998.
Said construction is stated by her to be permanent construction.
70. Said construction/superstructure/addition/alteration is stated by the
defendant to be permanent construction and to be made with the due
authorization, knowledge and consent of the plaintiff. But, as per the stand of
the plaintiff, same was temporary construction and not permanent. In this
regard, the plaintiff (PW-2) in his cross-examination deposed that after letting
out of the disputed premises, no permanent structure was got constructed in it;
that the defendant after the premises was let out to her has got constructed two
huts and one hall in it; that some temporary portion was also got constructed by
her above basement and ground floor and first floor which was got constructed
by him.
71. PW-4 has proved evidence by way of affidavit of plaintiff Smt. Neelam
Singh (defendant herein), certified copy of which is Ex. PW-4/2 and her cross-
examination, certified copy of which is Ex. PW-4/1. These evidence is in
respect of Civil Suit No. 140/14 titled as "Neelam Singh v. DDA and Ors"
pending in the court of Ms. Chhavi Kapoor, Civil Judge, West District, Tis
Hazari Court, Delhi. The defendant herein was plaintiff in that suit. She had
examined herself as PW-1 in that suit. She was cross-examined on 19.04.2011
in that suit. In examination-in-chief (Ex.PW-4/2), Neelam singh (defendant
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 37
herein) stated, inter-alia, that after taking the premises on lease, made addition
and alteration in the premises and also fitted furniture and other articles to bring
the premises to run the restaurant and to reside in the premises and she invested
about a sum of rupees 30,00,000/-in the property and running her business and
residing in the premises since then. She in her cross-examination (Ex.PW-4/1)
in said case stated that after taking the disputed property on lease, they raised
the construction over there upto 35-40% of the entire property which is not a
permanent form rather it is constructed of wooden articles/material; that they
did not get any permission for raising the said construction over the disputed
land as they have not raised the pucca construction.
72. Hence, in that suit (Civil Suit No. 140/14), the defendant herein has
clearly deposed that the construction raised on the suit property by her was not a
permanent/pucca construction rather it was constructed of wooden
articles/material. Hence, it is admission of the defendant in said case that
construction raised on the suit property by her was not a permanent/pucca
construction rather it was constructed of wooden articles/material.
73. A question has been put in cross-examination of plaintiff (PW-2) that the
said addition/alteration in the suit property was made in or about 2011 when
new lease/rent agreement was extended. By putting this question to the plaintiff
by learned counsel for the defendant, the defendant has changed his stand that
all the constructions were made only in the year 1998. Hence, the defendant has
taken different stand qua year of construction/addition/alteration on the suit
property.
74. DW-3 has stated himself to be a contractor of the defendant who
constructed the suit property which was stated by him to be a vacant plot of land
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 38
without any boundary. He is doing contract of plumbing, fire fighting and civil
part. Hence, as per this witness he being contractor of the defendant,
constructed the suit property, whereas the defendant (DW-1) in her cross-
examination deposed that there was no contractor engaged to raise the
construction, they themselves hired the services of individual persons to do the
construction work.
75. From the evidence, this court is of the view that the construction whatever
the defendant made in the suit property is not permanent construction rather it
was temporary construction. I have already held in in Issue no. 1 that the
defendant is tenant in the suit property. Hence, in the instant case, the two
conditions out of three, viz. (i) the licensee/defendant executed work of a
permanent character, (ii) he did so acting upon the license, as required by
Section 60(b) of the Easement Act have not been made out. Hence, the
defendant was not a Licensee with permission to raise permanent construction.
Further, the suit is not barred under Section 60 of the Indian Easement Act.
Hence, this issue is decided against the defendant and in favour of the plaintiff.
76. Issue No. 2: Whether the Plaintiff is entitled to recover the possession
of the suit property from the Defendant? OPP.
It has been held/found: in issue no. 1 that the defendant is a tenant not
licensee; in issue no. 6 that the defendant was not a Licensee with permission to
raise permanent construction, and the suit is not barred under Section 60 of the
Indian Easement Act; in issue no. 4 that the defendant has failed to prove that
there is an oral agreement to sell qua suit property entered into between the
parties to this suit.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 39
77. The tenancy has been terminated by the plaintiff by notice dated
16.08.2012, thereby calling upon the defendant to pay the arrears of rent etc.
and to handover vacant and peaceful possession of the suit property on or before
9th September, 2012. This notice is admitted by the defendant. The reply dated
27.08.2012 to this notice sent by the defendant is also admiited. Hence the
plaintiff is entitled to recover the possession of the suit property from the
defendant. This issue is decided against the defendant and in favour of the
plaintiff.
78. Issue No. 3: What amount, if any, the Plaintiff is entitled to recover
from the Defendant? OPP.
It is relevant to note that there were lease agreements executed between the
parties but same were not on requisite stamp papers and were not registered and
therefore, a month to month tenancy was created.
79. The unregistered document which is compulsorily registrable under
Section 17 of the Registration Act can be looked into for the collateral purpose
in view of Proviso to Section 49 of this Act. But, Section 35 of the Indian Stamp
Act, 1899 stipulates that no instrument chargeable with duty shall be admitted
in evidence for any purpose by any person having the authority to receive
evidence unless the instrument is duly stamped. Section 35 of Stamp Act is
distinct and different from Section 49 of Registration Act in regard to an
unregistered document. Section 35 of the Indian Stamp Act does not contain a
proviso as appended to Section 49 of The Registration Act enabling the
instrument to be used to establish a collateral transaction. On this point,
judgment in cases of Ajit Singh v. Vinod Kumar & Ors., FAO (OS) 504/2013
passed by the Division Bench of our Hon'ble High Court; Avinash Kumar
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 40
Chauhan v. Vijay Krishna Mishra, Civil Appeal No. 7350 of 2008 and Om
Prakash v. Laxminarayan & Ors., Civil Appeal No. 9032 of 2013, both
passed by the Hon'ble Supreme Court can be referred.
80. It has been held by the Hon'ble Delhi High Court in M/S Kusum
Enterprises & Ors. v. Vimal Kochhar & Anr., RFA 466/2013 decided on
18.12.2013 that it is the consistent stream of judgments from Fateh Chand v.
Balkishan Dass AIR 1963 SC 1405 till the dicta of the Division Bench of this
Court in Vishal Engineers & Builders v. Indian Oil Corporation
MANU/DE/6829/2011 holding that Section 74 of the Contract Act merely
provides the maximum compensation which could be given for breach of
contract and without any evidence of loss, merely because of a penalty clause,
such penalty cannot be awarded.
81. There could be no estopple against law as has been observed in M/S
Kusum Enterprises (supra). The Hon'ble Supreme Court in Raghunath Rai
Bareja v. Punjab National Bank, (2007) 2 SCC 230 has held that equity
cannot defeat the law.
82. It is the case of the plaintiff that the defendant has failed to pay rent with
effect from 10.05.2012 and the certain cheques bearing cheque numbers
229692, 229691, 229702, 229701, 228828 and 228829 for payment of the rent
with effect from 10.05.2012 issued by the defendant were dishonoured. The
defendant has admitted issuance of said six cheques towards license fee by her
and their dishonour. But, she has taken stand that she made payments under
said first four cheques vide pay orders. She also taken the stand that no amount
whatsoever is due or payable by her to the plaintiff either as rent or license fee
but only towards the sale consideration. She has admitted in her cross-
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 41
examination that she did not make any payment to the plaintiff with effect from
May 2012 qua suit property.
83. Despite of admission of defendant qua issuance of said six cheques
towards license fee/rent by her and their dishonour, the plaintiff has got
examined Sunil Kumar (PW-3) who is Ahlamad in the Court of Ms. Preeti
Pareva, Metropolitan Magistrate, South District, Saket Courts, New Delhi. He
has proved that the file CC No. 175/14 titled as "Hindustan Timber Syndicate
(HUF) v. Neelu Bhalla @ Neelu Singh" contained the original cheque bearing
No. 229701 dated 31.05.2012 drawn on ICICI Bank and original return memo
dated 25.06.2012 of said cheque. Said cheque is proved to be Ex. PW-3/1 and
return memo to be Ex.PW-3/2. He has proved also that the file CC No. 174/14
titled as "Hindustan Timber Syndicate (HUF) v. Neelu Bhalla @ Neelu Singh"
contained three original cheques and their return memos that is cheque bearing
No. 229702 dated 31.05.2012 (Ex. PW-3/3) and its return memo (Ex.PW-3/6);
cheque bearing No. 228828 dated 30.06.2012 (Ex.PW-3/4) and its return memo
(Ex.PW-3/7) and cheque bearing No. 222829 dated 30.06.2012 (Ex.PW-3/5)
and its return memo (Ex.PW-3/8). The said documents which have been
exhibited during testmony of this witness are certified copies of originals. It is
also submitted by learned counsel appearing for the plaintiff that in two cheque
bouncing cases out of three cases, the defendant has been convicted and in one
of the case she has been acquitted and she has filed appeal against the
conviction.
84. The last rate of rent is admitted to be rupees 1,93,600/- per month with
effect from 10.02.2012. The defendant has not paid rent admittedly with effect
from 10.05.2012. The tenancy has been admittedly terminated by the plaintiff
by notice dated 16.08.2012, thereby calling upon the defendant to pay the
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 42
arrears of rent etc. and to handover vacant and peaceful possession of the suit
property on or before 9th September, 2012. Hence, the the plaintiff is entitled to
recovery of rent from the defendant at the rate of rupees 1,93.600/-per month
with effect from 10.05.2012 till 09.09.2012.
85. For damages for use and occupation/mesne profits, it would be appropriate
to refer to Section 2(12) of the CPC, which defines mesne profits and also to
Order XX Rule 12 CPC, which prescribes the procedure to be followed by the
Court while dealing with a claim for grant of mesne profits. These aforesaid
provisions read as under:-
"Section 2(12) "mesne profits" of property means those profits which the person in
wrongful possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the person in wrongful
possession;"
"Order XX Rule 12:-Decree for possession and mesne profits.- (1) Where a suit
is for the recovery of possession of immovable property and for rent or mesne
profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the
institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit
until--
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the
decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first
occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in
respect of the rent or mesne profits shall be passed in accordance with the result of
such inquiry."
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 43
86. Mesne profits, which a landlord is entitled to receive from a tenant who
is continuously in the occupation of the lease property despite the termination of
the lease, has been laid down to mean the rate of rent which would otherwise,
accrue on a suit premises during the period of its illegal occupation by a tenant.
However, the burden which the Courts are often tasked with is to determine the
appropriate amount payable to the landlord towards such mesne profits. This
process of determination of mesne profits begins with the landlord discharging
the onus placed upon him to prove his claim for mesne profits, in accordance
with the law. Thereafter, it is for the Court to ascertain the appropriate mesne
profits to be awarded to the claimant by adhering to the parameters as set out in
Order XX Rule 12 CPC which prescribes that while passing the decree for
possession, the Court may either straightaway pass a decree for mesne profits or
direct that an inquiry be conducted for assessing the rate of mesne profits
payable. If the Court finds that it is sufficient and authentic evidence available
on record for determination of the landlord's claim for mesne profits, the Court
may, in its discretion, award the same by relying on such evidence. In the
alternative, in situations when the Court finds that the evidence brought on
record is not sufficient for such determination, The court may direct that an
inquiry be conducted thereto, in accordance with the provisions of the CPC
and/or take judicial notice under Section 114 and 57 of the Evidence Act, 1872.
87. The calculation of mesne profits always involves some guesswork and the
Courts in several cases, taken judicial notice of the prevalent market rents of
different areas within the city while awarding mesne profits. Rents may vary
based on location of properties, nature of construction, a period of construction,
purpose/ user for which the premises are let, variation between demand for
tenanted premises and availability of premises and even factors relating to the
position of the economy. In this regard, reference may be made to judgment of
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 44
Suman Verma & Ors v. Sushil Mohini Gupta & Ors., 2014 (10) DRJ 595
wherein it was held as under:-
"(a) though undoubtedly the Division Bench of this Court in National Radio &
Electronic Co. Ltd. supra has held that judicial notice, only of a general increase in
rent in the city of Delhi and not of the rates of rent, in the absence of proof thereof
can be taken but it cannot be lost sight of that the Courts are for doing justice
between the parties and not for, on hyper technicalities, allowing the parties to
suffer injustice.
b) the property of the respondents/plaintiffs which the appellants/defendants are
admittedly in unauthorized occupation of, is situated in one of the poshest colonies of the city of Delhi, properties wherein fetch high rentals and which only the elite, affluent, expats and foreigners are able to afford.
(c) the said property is a independent bungalow constructed over 400 sq. yd. of land and comprising of two and a half floors.
(d) the calculation of mesne profits always involves some amount of guess work, as held by this court in International Pvt. Ltd. Vs. Saraswati Industrial Sundictes Ltd. (1992) 2 RCR 6, M.R. Sahni Vs. Doris Randhawa and reiterated in Consep India Pvt. Ltd. supra and applicability of prevalent rents in the city and of which the Judges manning the Courts and who are born and brought up in the same city, are generally aware of.
e) The Division Benches of this court in Vinod Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 32 and S.Kumar Vs. G.K. Kathpalia 1991 (1) RCR 431, taking judicial notice, refused to interfere with the rate of mesne profits even where the landlord had not led any documentary evidence. Notice of such increase has also been taken by the Supreme Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18."
88. In the case of M. C. Agrawal v. Sahara India and Ors., 183 (2011) DLT 105, Hon'ble High Court of Delhi held that in absence of any evidence led by the landlord in respect of rent prevalent in the area even then judicial notice of increase of rent in urban areas can be taken by applying Sections 114 and 57 of the Evidence Act, 1872. In the aforesaid case an increase of 15% every year was awarded to the landlord for illegal occupation. The relevant portion of the aforesaid judgment reads as:
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 45 "8. What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area If there is no registered lease deed for a fixed period of three years, then, the tenant continues to stay in the premises, not because of any relationship of landlord and tenant pursuant to a lease of three years but only as an unauthorized occupant after the expiry of lease period by efflux of time. I therefore do not agree with the argument of the learned counsel for the tenants and I hold that since in this case tenancy expired by efflux of time on 30.11.2000 and the suit was filed on 3.4.2001, clearly, the tenant would become liable to pay mesne profits from 1.12.2000. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Connaught Place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 3.4.2005. I rely upon and refer to a Division Bench judgment of this Court in the case of S. Kumar v. G.R. Kathpalia 1999 RLR 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent."
89. In the case of National Radio and Electronic Co. v. Motion Pictures Associations, 122 (2005) DLT 629(DB) the Division Bench of Hon'ble Delhi High Court observed as under:-
"31. We find that this Court has in several cases taken judicial notice of the factum of increase of rent and made awards of mesne profits and damages. Noteworthy in this behalf is a judicial pronouncement of the Division Bench reported at (supra) entitled Vinod Kumar v. Bakshi Sachdev.........
21........It is true that no substantial evidence has been led by the plaintiff in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 46 capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court making judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D.C. Oswal v. V.K. Subbiah.
22. In that view of the matter we have no hesitation in our mind in holding that the Trial Court did not commit any illegality in taking judicial notice of the fact of increase of rents and determining the compensation in respect of the suit premises........"
90. The question as to whether the plaintiff can be awarded future mesne profits at a rate higher than what has been claimed in the plaint has been dealt with in various decisions. In the case of Santosh Arora v. M. L. Arora, 2011 (2014) DLT 312 where the Division Bench of the Hon'ble Delhi High Court held that the rate of mesne profits, is to be determined by evidence and is not a matter of contract. The relevant portion of the judgment reads as under:-
"25. The Supreme Court in Gopalakrishna Pillai Vs. Meenakshi Ayal AIR 1967 SC 155 has held:-
"With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit.."
It is for this reason only that payment of Court Fees of future mesne profits decreed is a condition to the execution thereof and is not to be paid at the time of institution of the suit. At the time of institution of the suit and which often remain pending for long, it is not possible for the plaintiff to state as to what benefits the defendant in wrongful possession of the property would receive from time to time.
27. In our opinion the plaintiff in such a situation would be entitled to such higher rate since he was not obliged to make a claim for future mesne profits, not obliged to pay Court Fees thereon and could not have in any case known to future mesne profits at what rate he would be entitled to as observed by the Supreme Court in Gopalakrishna Pillai supra. Once it is held to be the duty of the Court under Order 20 Rule 12 to award future mesne profits even without a specific prayer in this regard, the specific prayer even if made by the plaintiff cannot limit the entitlement of the plaintiff to future mesne profits.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 47
29. The Division Bench of the Calcutta High Court in Gauri Prosad Koondoo Vs. Reily ILR 9 Cal 112, High Court of Andhra Pradesh in Magunta Kota Reddy Vs. Pothula Chendrasekhara Reddy AIR 1963 AP 42 and the High Court of the Rajasthan in Prithvi Singh Vs. Pahap Singh MANU/RH/0369/2006 have also held that a plaintiff is not estopped from claiming a larger sum as mesne profits than what was claimed in the plaint."
91. The suit property which the defendantd is in unauthorized occupation of since 10.09.2012, is situated in one of the poshest colonies of the city of Delhi, properties wherein fetch high rentals and which only the elite, affluent and expats are able to afford. I hold that the defendant would become liable to pay damages/mesne profits from 10.09.2012.
92. Keeping in view the evidence and the fact that the calculation of mesne profits always involves some guesswork, I am of the view that plaintiff is entitled to recover damages for use and occupation/mesne profits from the defendant in respect of the suit property at the rate of rupees 1,93,600/- per month with effect from 10.09.2012 to handing over the possession of the suit property.
93. Further, in my opinion, considering that the suit property is situated in one of the poshest colonies of the city of Delhi, that is in Sainik Farm, New Delhi an increase of 10% every year should be awarded during the period for which the defendant has over stayed in the suit property. Putting it differently, the damages/mesne profits for the first year will be rupees 1,93,600/-; for the second year of illegal occupation, the defendant will pay 10% increased mesne profits over the rupees 1,93,600/- that will be rupees 2,12,960/-; For the third year of illegal occupation, 10% increase will be over the second year damages (rupees 2,12,960/-). It will be accordingly for all subsequent years of the illegal occupation till the suit property was vacated.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 48
94. The plaintiff has claimed arrears of house tax amounting to rupees 2,43,453/- which was arrears with effect from 01.04.1999 in his examination-in- chief. He has proved that he has been regularly paying house tax vide receipts of payment Ex. PW-1/12 to 15. There is no cross-examination of the plaintiff in this regard. The plaintiff has proved that he paid rupees 2,43,453/- as house tax of the suit property and therefore, he is entitled to recover the said house tax from the defendant.
95. It is admitted by the plaintiff that the defendant deposited a sum of rupees 2,57,000/- to him towards security deposit of the suit property which has not refunded to the defendant. This amount will be adjusted in favour of the defendant and against the plaintiff.
96. It is settled proposition of law that interest forms an integral part of the mesne profits and, therefore, once the Court awards mesne profits, the interest accruing thereon has to be allowed in the computation of the mesne profits itself. The mesne profits which in fact ought to have been paid years ago, should bear interest.
97. In case of Consep India Pvt Ltd v. CEPCO Industries Pvt Ltd, (2010) ILR 3 Del 766 the Hon'ble Delhi High Court, after examining the decision of the Hon'ble Supreme Court in State Bank of Bikaner and Jaipur v. I.S. Ratta and Ors., 120 (2005) DLT 407 observed that interest is an integral part of the mesne profits and, therefore, the same has to be allowed in the computation of mesne profits itself.
98. Keeping in view the facts and circumstances of the case and the facts that suit property was given for the commercial purposes, I am of the view that the plaintiff is entitled to simple interest at the rate of nine per cent per annum till the payment on the sums that are awarded for rent as well as mesne profits.
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 49 Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
99. Relief:
In view of my findings on Issue numbers. 1 to 6, the suit of the plaintiff is decreed with costs in favour of the plaintiff and against the defendant: for recovery of possession of the suit property; for rent of rupees 1,93,600/- with effect from 10.05.2012 till 09.09.2012; for mesne profits/damages for use and occupation of the suit property at the rate of rupees 1,93,600/- per month with effect from 10.09.2012 to handing over the possession of the suit property; for rupees 2,43,453/- as house tax of the suit property. Rupees 2,57,000/- (security deposit) will be adjusted in favour of the defendant and against the plaintiff. The defendant shall pay simple interest at the rate of nine per cent per annum till the payment on the sums that are awarded for rent as well as mesne profits. But, the counter-claim of the defendant is dismissed.
101. Further, an increase of 10% every year shall be paid during the period for which the defendant has over stayed in the suit property. Putting it differently, the damages/mesne profits for the first year will be rupees 1,93,600/-; for the second year of illegal occupation, the defendant will pay 10% increased mesne profits over the rupees 1,93,600/- that will be rupees 2,12,960/-; For the third year of illegal occupation, 10% increase will be over the second year damages (rupees 2,12,960/-). It will be accordingly for all subsequent years of the illegal occupation till the suit property was vacated.
Dated: 08.12.2021 Digitally (Sanjeev Kumar-II) signed by SANJEEV Additional District Judge-4, SANJEEV KUMAR South District, Saket Courts, New Delhi.
KUMAR Date:
2021.12.08
13:56:35
+0530
CS DJ 205511/2016 Bhupender Singh Bhalla v. Neelu Bhalla 50