Delhi District Court
Shri Salimuddin vs Mohd. Iliyas on 8 December, 2015
IN THE COURT OF SHRI GAGANDEEP SINGH : ADDITIONAL SENIOR CIVIL
JUDGE : JSCC : GUARDIAN JUDGE, KARKARDOOMA COURTS (EAST)
Suit No. 236/12
Unique Case ID No. 02402C0214012012
Shri Salimuddin
s/o Mohd. Ali
r/o M79, Abul Fazal Enclave,
Jamia Nagar, New Delhi110025.
........... Plaintiff.
VERSUS
Mohd. Iliyas
s/o Shri Azizuddin
r/o House No. 1143,
Mohalla Rakab Ganj,
near Delight Cinema, Asaf Ali Road,
New Delhi.
Also at:
Shop No. 62, DDA Market,
Block No. 1516, Trilok Puri, Delhi.
......... Defendant.
Date of institution of the suit : 31.07.2012
Date on which order was reserved: 23.11.2015
Date of decision : 08.12.2015
SUIT FOR POSSESSION, DAMAGES, MESNE PROFIT AND PERMANENT
INJUNCTION.
JUDGMENT
1. By way of the instant judgment I propose to dispose off a suit for possession, damages, mesne profit and permanent injunction against the defendant.
2. Briefly the case of the plaintiff is that he claims himself to be the owner of property bearing shop no. 62, Mini Market Block no. 1516, Trilok Puri, Delhi91 (hereinafter referred to as suit property). The suit property was let out to him by the defendant at monthly rent of Rs.4000/ excluding electricity and water charges through registered agreement for a period of five yers w.e.f. 10.08.2006 to 10.08.2011. An amount of Rs.3 lac was paid by the defendant as refundable security at the time of inception of tenancy. The defendant is chronic defaulter in making payment of rent and is in arrears of rent since 11.08.2011. He has failed to pay the same inspite of repeated demands. Therefore, the plaintiff was constrained to terminate the tenancy by service of notice u/s 106 of Transfer of Property Act dated 08.02.2012. The same was duly served upon the defendant but he has neither replied the same nor complied with the said notice. On the contrary, the defendant in order to harass the plaintiff has filed frivolous suit for permanent injunction which is pending in the court of Ld. Senior Civil Judge. The defendant is thus liable to handover peaceful and vacant possession consequent to the termination of tenancy by notice dated 08.02.2012. The occupation after the said notice is that of unauthorized occupant and he is liable to pay Rs.10,000/ per month being prevailing market rate of rent. Hence he has preferred the present suit for possession, recovery of arrears of rent w.e.f. 01.08.2011 coupled with mesne profits and damages @ Rs.10,000/ per month till it is vacated by the defendant.
3. Summons of settlement were issued to the defendant who appeared and filed written statement. The preliminary objection was taken by the defendant by pleading that plaintiff has no locus standi to institute the present suit as he is not the owner but only landlord of the suit property. Suit has also been improperly valued and appropriate court fees has not been paid. It has been further pleaded by the defendant that he is tenant in the ground floor shop and one room situated at the first floor of the suit property w.e.f. August 2006 at monthly rent of Rs.4000/ vide rent agreement executed on 08.08.2006. But subsequently the plaintiff took him to the Sub Registrar office and obtained his signatures on the rent agreement by claiming that it was same rent agreement which was earlier executed between the parties. The copy of the registered rent agreement was never supplied to him. He has been regularly making payment of rent and has paid the rent till February 2012 but no receipt has ever been issued by the plaintiff. The remaining averments of plaintiff in the plaint were termed as incorrect and it was also claimed that the rent agreement originally executed between the parties dated 08.08.2006 was for a period of ten years. Hence the suit is liable to be dismissed.
4. The plaintiff thereafter filed replication to the written statement of defendant by reiterating the contents of plaint and denying the averments of defendant. It was also claimed that no such agreement for a period of ten years dated 08.08.2006 was executed between the parties.
5. After completion of pleadings, vide order dated 04.09.2013, Ld. Predecessor framed the following issues :
1. Whether plaintiff is entitled for recovery of possession of shop no. 62, Mini Market, Block No. 1516, Trilok Puri, Delhi 91 as claimed for? OPP
2. Whether plaintiff is entitled for recovery of rent for the period from 11/08/2011 till the filing of the present suit to the tune of Rs. 48,000/ alongwith interest @ 18% per annum? OPP.
3. Whether plaintiff is entitled for mesne profit and damages @ Rs. 10,000/ per month from the date of filing of the present suit till possession is handed over.
4. Relief.
6. Thereafter, the plaintiff led his evidence by examining himself as PW1. He has reiterated the contents of his case through his affidavit in evidence Ex. PW1/1. He again claimed that the registered rent agreement for a period of five years was only executed between the parties and same expired on 10.08.2011 and since then the defendant has failed to pay rent. The plaintiff also relied upon the documents i.e. copy of registered rent agreement Ex. PW1/A (OSR), copy of legal notice and postal receipt PW1/Mark A and PW1/Mark B. The witness was extensively cross examined by counsel for defendant wherein suggestions were given that he has failed to file correct site plan. PW1 also denied the existence of any rent agreement Mark D1 which was produced by the defendant.
7. No other witness was examined by the plaintiff. Thereafter evidence was led by the defendant who examined himself as DW1. He has reiterated his defence through affidavit Ex. DW1/1 by deposing that he had taken the premises on rent in August 2006 for a period of ten years for which rent agreement Mark D1 was executed. He also relied upon site plan Ex. PW1/DB.
The witness was extensively cross examined by the counsel for plaintiff and the existence of rent agreement Mark D1 was denied by giving suggestion to the witness.
8. The defendant also examined another witness DW2 Mohd. Sultan. He also deposed on the lines of defence of defendant by stating that rent agreement Mark D1 was executed for a period of ten years wherein he put his signatures as a witness. Though in the cross examination he admitted his signatures on the rent agreement Ex. PW1/A relied upon by the plaintiff by stating that this is the only document executed between the parties. Thereafter, DE was closed.
9. I have heard Ld. Counsel for plaintiff, Ld. Counsel for defendant and gone through the record.
10. My issuewise findings on the abovesaid issues are as under:
Issues No.1.
Whether plaintiff is entitled for recovery of possession of shop no. 62, Mini Market, Block No. 1516, Trilok Puri, Delhi 91 as claimed for? OPP
11. The burden of proving issue no.1 was placed upon the plaintiff who has claimed the relief of recovery of possession of the tenanted premises. It was argued on behalf of plaintiff that the testimony of PW1 as well as cross examination of DW2 proves his case in entirety. The existence of rent agreement Ex. PW1/A is not in dispute and the oral month to month tenancy of the defendant has been validly terminated through legal notice Ex. PW1/Mark A. On the contrary Ld. Counsel for defendant has argued that the plaintiff is not entitled to the relief of possession as he has failed to show any title documents in his favour. The GPA, Agreement to Sell, Will etc. do not confer title in his favour and hence he is not entitled to the relief of possession. Reliance was also placed by him upon the judgment titled as Suraj Lamp Industries Vs. State of Haryana and Anr. 2012 (1) SCC 650.
12. It is the admitted case of both the parties as is clear from the pleadings that relationship between them is that of landlord and tenant. It is also not in dispute that the property was let out by the plaintiff in the year 2006. Though it has been claimed by the defendant that the same was let out for a period of ten years through document Mark D1. On the contrary, the plaintiff has claimed that it was let out only for the period of five years through document Ex. PW1/A. The existence of rent agreement Mark D1 upon which the entire defence of the defendant is based was itself put into dock by the witness of defendant i.e. DW2. DW2 in his cross examination admitted that only one agreement was executed between the parties and he appended his signatures upon the same at point Y on Ex. PW1/A. He further denied the execution of Mark D1. Similarly, PW1 in his cross examination also denied the suggestion with respect to the execution of rent agreement Mark D1. Original of the same was never produced in the court as it was claimed that original is in possession of plaintiff but no notice was ever issued by the defendant to the plaintiff for production of the same nor permission was sought in terms of Section 65 of Indian Evidence Act for leading secondary evidence in this regard. Therefore, the document Mark D1 has remained unproved and cannot be looked into in evidence.
On the contrary, the plaintiff has been able to prove duly registered rent agreement Ex. PW1/A by producing the original of the same. The defendant merely tried to avoid its binding nature by pleading that same was got signed with the misrepresentation that it is the true copy of earlier agreement Mark D1. It has already been observed that existence of Mark D1 is highly suspicious and same has not been got proved by the defendant. In these circumstances defendant is also precluded from denying the terms of the agreement Ex. PW1/A in view of the provisions of Section 92 of Indian Evidence Act.
It is a duly registered document and there is no question of not believing the same. As per the same, rent of the premises was Rs.4000/ per month and period of tenancy was five years. Admittedly, the said rent agreement has expired on 10.08.2011 and no separate rent agreement extending the tenancy has been executed between the parties. Thus after the expiry of rent agreement Ex. PW1/A fresh oral month to month tenancy was initiated between the parties which has been validly terminated through legal notice PW1/Mark A dated 08.02.2012. The tenancy was terminable in terms of section 106 of Transfer of Property Act by giving 15 days time for the same.
13. The termination of tenancy through legal notice PW1/Mark A has been denied by the defendant in the written statement. Further, in the entire cross examination of PW1 apart from giving a bare suggestion regarding service of notice nothing more has been brought forth. The DW1 also in his cross examination again admitted that the notice Mark A mentions his correct address and postal article are received by him at the said address only. The question of notice being sent through speed post was never disputed in the cross examination of PW1 as no suggestion was given regarding the document PW1/Mark B. Hence, now the same cannot be stated to be not admissible. The defendant by not denying the existence of document PW1/Mark B has admitted about the dispatch of the notice through speed post at the correct address of defendant. Thus presumption has to be attached that notice was duly served upon the defendant thereby terminating the tenancy in his favour.
14. But even for the sake of argument, if it is believed that said notice was never served upon the defendant, the service of summons of present suit amounts to service of notice in terms of Section 106 of Transfer of Property Act. To support this view, I am guided by the judgment of Hon'ble Supreme Court in the matter of Nopany Investments Pvt. Ltd. v. Santokh Singh (HUF) 2008 2CC 728 AIR 2008 SC 673.
15. It was also argued on behalf of defendant that plaintiff has filed the wrong site plan and has deliberately not shown the entire suit property. Plaintiff has merely claimed that defendant is in possession of one shop. On the contrary defendant has claimed that he was inducted as tenant in the shop as well as one room at the first floor of the suit property.
The said issue was raised by the defendant during the cross examination of PW1 by putting site plan Ex. PW1/DA. The counter site plan which was filed by the defendant was also put to PW1 i.e. Ex. PW1/DB showing the entire construction of suit property but PW1 denied the claim of defendant regarding letting out of the room on the first floor. PW1 further claimed in his cross examination that there is only one MUMTI at the terrace which is also in possession of defendant. Merely because some additional accommodation is in possession of defendant, cannot be the plea for rejection of the claim of plaintiff. The plaintiff has filed the present suit on the premise of letting out of the suit property i.e. shop no. 62, Mini Market Block no. 1516, Trilok Puri, Delhi91 on the basis of rent agreement Ex. PW1/A. The description of the property in the rent agreement makes it clear that shop with roof rights was rented out. Thus the said additional construction of MUMTI is part and parcel of the tenanted property and plea of misrepresentation on behalf of defendant cannot be termed as sustainable.
16. Lastly it was argued that the plaintiff is merely landlord and not the owner of the premises in question as there are no valid transfer documents in his favour.
Admittedly, the relationship between the parties is that of landlord and tenant and consequently rule of estoppal under section 116 of Indian Evidence Act would apply in the present case. The defendant is estopped from denying the title of the landlord. In this regard it has been held in the judgment of Hon'ble Supreme Court in the matter of Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SC 3569, in paragraphs 14 and 15 as under: "14. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given.
15. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppels has been incorporated by the legislature in the said section."
Similar is the view taken by the Hon‟ble Supreme Court in the case of Sri S.K. Sarma vs. Mahesh Kumar Verma AIR 2002 SC 3294 and relevant para is reproduced as under : "In Vishal Builders Pvt. Ltd. vs. Delhi Development Authority (supra), this court held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession thereof can be permitted to deny that such person had a title to such property when such license was given. Similar is the view of the judgment of this Court in the case of Desh Raj Singh vs. Triveni Engineering & Industries Ltd.(supra)".
17. In view of above stated settled legal proposition it would suffice to observe that defendant admittedly as per pleadings as well as evidence was inducted as tenant in the suit property and hence has no right to challenge the title of the landlord/plaintiff herein. The reliance placed by the defendant on the judgment of Hon'ble Supreme Court titled as Suraj Lamp vs State of Haryana and Anr. (supra) is completely misplaced.
In view of abovesaid reasons, issue no.1 is decided in favour of plaintiff and against the defendant.
Issue No. 2 Whether plaintiff is entitled for recovery of rent for the period from 11/08/2011 till the filing of the present suit to the tune of Rs. 48,000/ alongwith interest @ 18% per annum? OPP.
18. The burden of proving the arrears of rent w.e.f. 11.08.2011 to the tune of Rs. 48,000/ alongwith interest at the rate of 18% per annum was placed upon the plaintiff. The plaintiff has claimed through his affidavit Ex. PW1/1 that defendant failed to pay rent after 11.08.2011 despite repeated reminders and requests and lastly legal notice was also issued. The said contention was termed as incorrect by the defendant in the written statement by claiming that he has paid rent till February 2012.
19. In the entire cross examination of PW1 apart from giving bare suggestion as to the payment of rent till February 2012 nothing more was put to PW1. No question was put as to when and how payment was made. Similarly, the testimony of DW1 is also completely silent with respect to the mode or method as well as time of payment of rent w.e.f. 11.08.2011 till February 2012 as claimed. Thus there is no reason to disbelieve the testimony of PW1 on the aspect of arrears of rent w.e.f. 11.08.2011 @ Rs.4000/ per month till the termination of tenancy vide termination notice PW1/Mark A. In view of abovesaid reasons, issue no.2 is decided in favour of plaintiff to the extent that he is held entitled to the arrears of rent w.e.f. 11.08.2011 till the date of filing of the suit i.e. 31.07.2012 @ Rs.4000/ per month.
Issue No. 3 Whether plaintiff is entitled for mesne profit and damages @ Rs. 10,000/ per month from the date of filing of the present suit till possession is handed over.
20. The plaintiff has claimed the relief of mesne profits @ Rs.10,000/ per month from 01.08.2012 till the possession is handed over to him by the defendant. The burden of proving the said rate of mesne profits was upon the plaintiff who through his testimony as PW1 claimed that it is ordinary rent in the area which the suit property could have fetched if rented out. But the said averment has been termed as incorrect by the defendant in the cross examination by claiming that average rent of the locality was Rs.4000/ to Rs.4500/ per month.
21. The plaintiff, though filed affidavit of the neighbourers on the said aspect of rate of rent but the said witnesses were never examined. The said question of prevailing market rent of the suit property was also put to DW2 in the cross examination who claimed that market rent is about Rs.4000/ per month.
22. Thus the contention of the plaintiff that the general ordinary rent in the locality of the suit property is Rs.10,000/ has not been got proved through documentary or ocular evidence. But considering the aspect of escalation of rentals in the NCR, the mesne profits @ Rs.7000/ appears to be reasonable rent which the property could have fetched if rented out during the said period. Accordingly plaintiff is held entitled for the mesne profits @ Rs.7000/ w.e.f. 01.08.2012 till the date of actual handing over the possession of the suit property by the defendant to the plaintiff.
In view of abovesaid reasons, issue no.3 also decided in favour of plaintiff and against the defendant.
Relief
23. In the light of my findings upon the foregoing issues, the suit of the plaintiff is decreed. A decree of possession of suit property i.e. shop no. 62, Mini Market Block no. 1516, Trilok Puri, Delhi91 is passed in favour of the plaintiff. A decree of Rs.4000/ per month towards the arrears of rent w.e.f. 11.08.2011 till the date of filing of the suit i.e. 31.07.2012 and a decree of Rs.7000/ per month towards the mesne profits w.e.f. 01.08.2012 till the date of actual handing over the possession of the suit property by the defendant to the plaintiff is also passed in favour of plaintiff. Cost of the suit also awarded in favour of the plaintiff. The decree qua relief of mesne profits shall become executable only on payment of requisite court fee. File be consigned to record room.
Announced in the open court ( Gagandeep Singh) on this 08th day of December 2015. ASCJ/JSCC/G. Judge (East) Karka rdooma Courts, Delhi.