Delhi District Court
Istiaq Ahmed (Deceased)_ vs Karan Singh (Deceased) on 5 January, 2016
Page No. 1 of 49
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C0258392002
CS No. 224/14
20 Oldest Case
Istiaq Ahmed (deceased)_
Through his Lrs:
(i) Iftikhar Ahmed
R/o K556, Hazrat Nizamuddin (West),
Along LodhiRoad, New Delhi - 110013
(ii) Noorul Amin
R/o 2842, Bulbuli Khana,
Bazar Sitaram, Delhi 110006
(iii) Abrar Ahmed
R/o 2852, Bulbuli Khana,
Bazar Sitaram, Delhi - 110006
................ Plaintiffs
Versus
1. Karan Singh (deceased)
Now represented by:
(i) Shashank Sareen
S/o Late Sh. Karan Singh
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 2 of 49
(ii) Prashant Sareen
S/o Late Sh. Karan Singh
Both R/o 1011, D.K. Depot
Nanglio, Najafgarh Road,
Laxmi Vihar, Delhi - 110043
(iii) Mrs. Rajni Bala
D/o Late Sh. Karan Singh
R/o 416, Budh Vihar
Inderpuri, New Delhi - 110012
(iv) Smt. Neelam
D/o Late Sh. Karan Singh
R/o 1011, D.K. Depot
Nanglio, Najafgarh Road,
Laxmi Vihar, Delhi - 110043
(v) Smt. Pinky
D/o Late Sh. Karan Singh
R/o 1011, D.K. Depot
Nanglio, Najafgarh Road,
Laxmi Vihar, Delhi - 110043
(vi) Smt. Minalika @ Meeni
S/o Late Sh. Karan Singh
R/o 80, Badli Industrial Area
PhaseII, Delhi - 110042
2. Irshad Ali
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 3 of 49
S/o Late Amin Ali @ Sheroo Chandi Wala
R/o 2842, Bulbuli Khana
Turkman Gate, Delhi - 110006
................ Defendants
Date of Institution of the Suit : 11.09.1985
Date of Reserving of Judgment : 21.12.2015
Date of Judgment : 05.01.2016
JUDGMENT
1. This is a suit for Possession and Mandatory injunction. The suit was initially filed in the year 1985 against six defendants i.e. defendant no. 1 Sh. Karan Singh, defendant no. 2 Sh. Sibto Ali, defendant no. 3 Sh. Wahid Beg, defendant no. 4 Sh. Radhey Shyam, defendant no. 5 Sh. Hakimuddin Ansari and defendant no. 6 Sh. Irshad Ali and was filed by three plaintiffs namely Sh. Rajeshwar Prasad Sareen, Sh. Rameshwar Prasad Sareen and Sh. Rajender Prasad Sareen. The suit property bears no. 2842, Bulbulikhana, Turkmaan Gate, Delhi. The original plaintiffs had CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 4 of 49claimed to be owners of front half portion of the above said suit property. However, during the course of trial, the original plaintiffs have sold their part of suit property to one Ishtiaq Ahmed, S/o Shri Fasal Ahmed vide registered sale deed dated 30.01.1992. An application u/o 22 Rule 10 CPC moved by Sh. Ishtiaq Ahmed for being substituted as plaintiff was allowed by the Court on 25.04.1992, whereafter the suit is being pursued by the said plaintiff and after his death, by his legal heirs. Facts of the suit are as under :
2. As per the plaint, the suit property was originally owned by one Sh. Ajodhaya Prasad, Uncle of the three plaintiffs. The aforesaid owner of the suit property was a bachelor and he left a Will dated 31.05.1985 before his demise, whereby he bequeathed front half portion of the suit property in favour of the original plaintiffs. During the life time of Sh. Ajodhaya Prasasd, one of his tenants namely Sh. Charan Singh had filed a suit for injunction against him bearing suit no. 536/79. After the demise of Sh. Ajodhaya Prasad, the original plaintiffs were impleaded as his legal representatives in the said suit no. 536/79 on the basis of his will dated 31.05.1975. It is claimed that the Will dated 31.05.1975 was duly proved and upheld by the court of Sh. V. K. Jain, Sub Judge, Ist Class, Delhi where by the original plaintiffs were declared to be CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 5 of 49the owner of the front half portion of the suit property.
3. As per paragraph no. 6 of the plaint, the defendant no. 1 is residing in a portion on ground floor of the property; shown in red in site plan A which portion comprises of one small room and one Veranda. It is claimed that the defendant No. 1 was residing in the said portion, being a close relative of Sh. Ajodhaya Prasad and was not paying any consideration for his use and occupation of the said portion. It is claimed that the occupation of the defendant was merely permissive and that of a licencee. It is alleged that the defendant No. 1 had raised unauthorized and illegal construction in the portion in his occupation with a view to convert the property into shops so as to let out the same to different persons. It is further alleged that the defendant No. 1 had also raised a wall in the middle of the Courtyard of the ground floor despite the same, not being in his possession. The original plaintiffs had raised objection to the illegal construction, but to no avail. In order to restrain the defendant No. 1 from carrying out further illegal construction, a suit for Permanent and Mandatory injunction was filed against him by the original plaintiffs. It is claimed that during the pendency of the said civil suit, parties entered into an agreement of sale of the suit property on 17.11.1980. One of the clauses of the agreement is reproduced in the plaint as below : CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 6 of 49"And whereas a sum of Rs. 4,000/ has been paid to the first party by the second party in cash to which a separate receipt has already been executed by th first party.
1. That sale shall be completed within four months from today i.e. 17th November, 1980 to 16th March, 1981 positively, failing which first party shall be at liberty to forfeit the earnest money and to sell the same to any body else and to recover the deficiency thereof fom the second party."
4. It is stated that a sum of Rs. 4,000/ was paid on account of earnest money vide receipt dated 17.11.1980 to the plaintiffs and another some of Rs. 19,000/ was paid by the defendant No. 1 to the plaintiff on 09.01.1981. It is claimed that time was essence of agreement of sale dated 17.11.1980 and the agreement was to expire on 16.03.1981. It is also claimed that the plaintiffs were entitled to forfeit the amount of earnest money in case the sale deed could not be executed within time.
5. The original plaintiffs have alleged that the defendant no. 1 never had an intention or willingness to perform his part of the contract and therefore, committed breach of the same. The original plaintiffs received a notice dated 17.03.1981 from the defendant no. 1 containing false and incorrect facts which were duly replied to by CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 7 of 49them. Thus, it is stated that the occupation of the defendant no. 1 in the premises during all this time was merely permissive and it could not be said that any title had devolved upon him during the period the agreement of sale remained in force. It is stated that the agreement dated 17.11.1980 stood cancelled on failure of the defendant no. 1 to perform his part of the contract . However, it is alleged that the defendant no. 1 continued to carry out illegal and unlawful construction of four shops in the portion in his occupation and raised a wall in the middle of the courtyard in the suit property and converted it into a work shop. It is further stated that the defendant no. 1 raised unauthorized construction of a room and started residing in the same. It was alleged that the defendant no. 1 also took forcible possession of the roof in occupation of the plaintiffs and raised unauthorized construction thereupon. It was averred that the defendant no. 1 had no right, title or interest to dispossess the plaintiffs from the roof or to raise illegal construction in the suit property. It was claimed that shops were constructed and possession, handed over to defendant no. 2 to 6 in order to cause wrongful loss to the plaintiffs. The occupation of defendant no. 2 to 6 was thus, termed to be unauthorized.
6. It is stated that the defendant No.1 had filed a suit against the tenant of the suit property i.e. Sh. Charan Singh, alleging CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 8 of 49himself to be the owner, on the basis of agreement of sale dated 17.11.1980. It is claimed that in the said suit, the defendant No. 1 had averred that he was in permissive possession of the suit property without any consideration and was never a tenant of Sh. Ajodhaya Prasad. Hence, it was stated that the possession of defendant no. 1 in the suit property after cancellation of agreement of sale dated 17.11.1980 was unauthorized. The plaintiffs had issued a legal notice dated 24.05.1985 revoking the license of the defendant no. 1 to reside in the suit property. It was claimed that therefore, the defendant no. 1 had no right to pass on possession to defendant no. 2 to 6 and hence, even their possession was unlawful. It was claimed that the defendant no. 1 to 6 were liable to pay damages/mesne profits from 16.03.1981 @ Rs. 200/ per month till 15.08.1985. It was claimed that a sum of Rs. 10,600/ had become due from the defendant no. 1 to 6 , but the plaintiffs were claiming recovery of Rs. 2,850/ only as damages for use and occupation. The suit was filed with the following four prayers :
(a) A decree for possession for different portion of 2842, Bulbulikhana, Turkman Gate, Delhi and as shown in 'Red' in plan 'B' in favour of the plaintiffs and against the defendants;
(b) A decree for mandatory injunction be passed against the defendants and in favour of the plaintiffs directing the defendants to restore the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 9 of 49premises to its original condition;
(c) A decree for Rs. 2850/ on account of mesne profits/damages for use and occupation be passed in favour of the plaintiffs and against the defendants;
(d) That the plaintiffs are entitled to possession of the above mentioned shop against the defendants, a direction to pay future mesne profits @ Rs. 200/ p.m. be made as provided under Order 20 Rule 12 of CPC.
7. A written statement was filed by defendant no. 1 in which it was claimed that the suit of the plaintiff was barred u/s. 53(A) of the Transfer of Property Act, 1982 as the defendant was earlier in possession of the property in the capacity of a tenant whereas the possession was delivered to him by the plaintiffs at the time of execution of agreement of sale dated 17.11.1980. Hence, it was claimed that the agreement of sale stood partly performed by the parties and hence, the suit was not maintainable in its present form. Further, it was claimed that only renovations were carried out by defendant no. 1 in the suit property and that the same were done at his own cost and with the permission of the plaintiffs. It was claimed that the renovation was carried out in the year 198182 and the suit was filed after a lapse of five years without explaining the delay. It was also claimed tht the plaintiffs had never objected to letting out of various parts of the suit property to other tenants by CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 10 of 49the defendant no. 1 as he had paid a total amount of Rs. 42,000/ to the plaintiffs on various dates. He claimed that the suit was a gross abuse of the process of law and had been filed with a view to harass the defendants. It was alleged that the plaintiffs were in the habit of taking money from other people with a view to sell the suit property to them, but later on, they developed dishonest intentions and refused to sell the property to them. It was stated that the defendant was realizing rent from the defendant no. 2 to 6 as he was the landlord of the property. However, it was claimed that the plaintiffs were allowing other people to occupy parts of the suit property unauthorizedly with a view to defeat the rights of the defendants and his tenants in the suit property.
8. It was admitted in paragraph no. 7(a) of written statement filed by defendant no. 1 that a suit no. 375/1980, filed against him in th court of Sh. S. M. Gupta, the then SubJudge, First Class was compromised with the plaintiff on 24.01.1980. Thus, defendant claimed that the plaintiffs were estopped from questioning his title and possession in the suit property. However, it was stated that the defendant no. 1 was occupying the property as a tenant and hence,it was claimed that the present suit was barred by virtue of Sec. 50 of the Delhi Rent Control Act. It was stated that the tenancy of defendant no. 1 stood admitted by the plaintiffs in pleadings of suit CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 11 of 49no. 375/1980 and in notice dated 16.03.1983 and hence, the plaintiffs could not take a different stand now. This suit was also resisted on the ground of being barred by section 19 of the Slum Areas Act, 1954 and provisions of the Specific Relief Act. Accordingly, it was prayed that the suit of the plaintiff be dismissed.
9. A joint written statement was filed by the defendant nos. 2 to 6, in which it was stated that the original plaintiffs and the defendant no. 1 had been claiming and representing them to be the owners and landlords of the entire property. It was claimed that the story set out in the plaint regarding the defendant no. 1 being a licensee was false as the plaintiffs had themselves stated in their notice dt. 16.03.1983 that the defendant no. 1 was a tenant in the suit property . It was claimed that the defendant nos. 2 to 6 were inducted by the plaintiffs as well as defendant no. 1 as tenants in the suit property but it was denied that any unauthorized construction was carried out at their behest. It was claimed that defendant no. 2 was inducted as a tenant on 01.01.1981 at the rate of rent of Rs. 60/ per month, defendant no. 3 was inducted as a tenant on 06.12.1980 at the rate of rent of Rs. 100/ per month, defendant no. 4 was accepted as tenant on 01.02.1981 at the rate of rent of Rs. 60/ per month, defendant no. 5 was inducted as a tenant in October, 1981 at the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 12 of 49rate of rent of Rs. 60/ per month, defendant no. 6 was became a tenant in September, 1980. It was however claimed that on account of fall out between the plaintiff and defendant no. 1, the defendant nos. 2 to 6 were being made to suffer. It was stated that the defendant nos. 2 to 6 had no business or concern with the suit filed by or against the tenant Charan Singh by the plaintiff or defendant no. 1. The defendants stated that they were occupying the property as tenants and were paying rent to defendant no. 1 as well as plaintiffs regularly and hence, there was no question of paying damages or mesne profits. It was denied that the defendants were asked to vacate the suit property by the plaintiffs or the defendant no. 1 and it was averred that any eviction order could validly be passed under provisions of Section 14 of Delhi Rent Control Act. The defendants also stated that sometimes, the rents was being paid to defendant no. 1 on asking of the plaintiff, though on many occasions, the rent was paid to plaintiff himself. It was alleged that the present suit was filed with a view to coerce the defendants to increase the rent and hence, it was prayed that the suit was liable to be dismissed as the plaintiff had approached the court with unclean hands.
10. A separate written statement was filed on behalf of defendant no. 7 Sadik Ali on 02.06.2011 after he was made a party CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 13 of 49in this case on 30.03.2011. In the written statement of defendant Sadik Ali, it was stated that the original plaintiffs were never the owners of the suit property as there was no valid title deed showing their ownership over the property. It was claimed that the Will dt. 31.05.1975, over which the original plaintiffs were placing reliance, had not been probated and hence, it could not be said that the original plaintiffs had any valid right, title or interest in the suit property. On the other hand, it was claimed that the suit was barred by Section 50 of the Delhi Rent Control Act as the defendant no. 7 was a lawful tenant, put in possession by the landlord defendant no.
1. Further, it was claimed that after the partition of the country in the year 1947, the suit property was lying vacant, whereafter, the family of the defendant no. 1 came to occupy the same. It was claimed that the original plaintiffs and defendant no. 1 were related to each other and had acted in collusion to manufacture false documents of the property. It was claimed that the defendnat no. 1 had inducted defendant no. 7 as tenant against a "pagri" amount of Rs. 22,000/ and monthly rental of Rs. 100/. It was stated that the defendant was in possession of rent notes showing that he was in settled possession as a tenant in suit property. The suit was claimed to be based on false and frivilous facts and therefore, it was prayed that the suit was liable to be dismissed.
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 14 of 4911. Separate replications to the written statements of defendant no. 1, defendant nos. 2 to 6 and defendant no. 7 were filed by the plaintiff.
12. It is pertinent to point out that the dispute was compromised between the plaintiff and the various defendants during the course of trial of this case. The suit was compromised with the defendant no. 7, as finds mention in orders dt. 15.05.2013, though the defendant no. 7 has not been deleted from the array of parties. Nevertheless, it is trite to record that the said defendant has already handed over possession of suit property back to the plaintiff. Hence, the relief of the suit has been rendered infructuous as far as defendant no. 7 is concerned. Furthermore, settlement was effected between the plaintiff and LRS of defendant no. 5 Hakimuddin, whereafter, they were deleted from array of parties on 17.11.2015. This court had also ordered that the suit had abated against Lrs of defendant no. 4 Radhey Shyam on 03.10.2015. By virtue of the same orders, it was also observed that the relief of possession had become infructuous against defendant no. 2 Sibte Ali and defendant no. 3 Wahid Beg as well. Hence, it becomes clear that the relief of possession/injunction survives against LRs of defendant no. 1 and Defendant no. 6 Irshad Ali only. The plaintiff has accordingly, filed an amended memo of party dt. 28.11.2015 mentioning the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 15 of 49names of Lrs of deceased defendant no. 1 Karan Singh and defendant no. 2 Irshad Ali as the only remaining two defendants in suit. The relief of possession and injunction is accordingly, sought against the abovesaid two defendants only.
13. After completion of pleadings of parties, following issues were framed for adjudication in this case on 15.09.1989:
1. Whether the plaintiff are owners in respect of the property in dispute by virtue of "WILL"? OPP
2. Whether defendant no.1 is a tenant in the premises in question? OPD1
3. Whether the defendant no. 1 is entitled to protection u/s 53A of the Transfer of Property Act? OPD1
4. Whether defendant no.1 has failed to perform his part of the contract? OPP
5. Whether the Agreement to sell dt. 17.11.1980 stand cancelled? OPP
6. Whether the defendant no. 1 is in unauthorized occupation of the property in suit, if so, its effect? OPP
7. If the issue no. 2 to 6 related to defendant no.1 are decided against the defendant no. 1, whether the defendant no. 2 to 6 could claim tenancy rights as alleged by them? OPD 2 to 6 CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.Page No. 16 of 49
8. Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPP
9. Whether the defendant no. 2 to 6 are legal occupants of the shops illegally and unauthorizedly constructed by the defendant no. 1, if so, its effects? OPP
10.Whether the plaintiff is entitled to claim possession, claim damages and relief of Mandatory Injunction? OPP
11. Relief.
14. In his evidence, plaintiff has examined the following witnesses; PW1 Iftikar Ahmed S/o Ishtiaq Ahmed, PW2 Rajeswar Prasad Sareen s/o Sh. Lalita Prasad Sareen, PW3 Sayed Azam Meer S/o Sayed Kasim Meer, in support of his case. PW1 is the son of the plaintiff and has deposed on the strength of a power of attorney executed in his favour by the plaintiff. The said document is proved as document Ex. PW1/1. Witness has relied upon a certificate of doctor G.G. Mansharmani, Senior Consultant at Colmet Hospital regarding the illness of the plaintiff. The said document is exhibited as Ex. PW1/2. Similar, certificate issued by RML Hospital is marked as Mark X. Sale deed dt. 30.01.1992 and 04.03.1992 executed in favour of plaintiff Ishtiaq Ahmed by the original three plaintiffs ( Sareen Brothers) is exhibited as Ex. PW1/3, Site plan CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 17 of 49accompanying the sale deed dt. 30.01.1992 and 04.03.1992 is exhibited as Ex. PW1/4, Site plan filed alongwith this case is exhibited as Ex. PW1/5, Site plan showing unauthorized construction by defendant no. 1; Ex. PW1/6.
15. PW2 Rajeshwar Prasad Sareen has relied upon the following documents; Will dt. 31.05.1975; Ex. PW2/1, Carbon copy of notice dt. 17.03.1981 sent by defendant no. 1 is Ex. PW2/2, Reply sent by the original plaintiff to notice dt. 17.03.1981; Ex. PW2/3, Copy of notice dt. 24.05.1985; Ex. PW2/4, Receipt of Rs. 4000/ ; Ex. PW2/5, Certified copy of plaint of suit no. 372/80; Ex. PW2/6, Certified copy of order in suit no 372/80; Ex. PW2/7, Certified copy of settlement/statements recorded in suit no. 372/80; Ex. PW2/8, Receipt of Rs. 19,000/; Ex. PW2/9, Site plan; Ex. PW2/10, Copy of agreement to sell dt. 17.11.1980; Ex. PW2/11.
16. In support of their case, defendant no. 1 has examined himself as D1W1. The said witness has relied upon original counter foils of rent receipts issued by him to various tenants as documents Ex. DW1/1 to Ex. DW1/23, site plan filed alongwith the written statement is Ex. DW1/24, Photocopy of ration card in the name of defendant no. 1 is Ex. DW1/25.
17. The defendant Irshad has also examined himself as a defendant witness. He has relied upon the following documents.
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 18 of 49Rent receipts, Ex. DW1/1 to Ex. DW1/17.
18. Defendant Hakimuddin Ansari has examined himself as a witness in favour of his case. He has relied upon rent receipts, DW2/1 to Ex. DW2/27.
19. No other evidence has come on record for adjudication of the issues framed in this suit.
20. After conclusion of evidence, lengthy arguments have been addressed by both sides on the merits of their respective cases.
21. My issue wise findings are as follows:
ISSUE NO. 1.
Whether the plaintiff are owners in respect of the property in dispute by virtue of "WILL"? OPP
22. Onus to prove this issue is upon the plaintiff.
23. The original plaintiffs i.e. the Sareen Brothers ; Sh. Rajeshwar Prasad Sareen, Sh. Rameshwar Prasad Sareen and Sh. Rajender Prasad Sareen, had filed the suit stating that the suit property was originally owned by Sh. Ajodhaya Prasad. It was claimed that the original plaintiffs were the nephews of Sh. Ajodhaya Prasad, who died a bachelor after leaving a Will dated 31.05.1975 in their favour, thereby bequeathing the front half portion of the suit property to them. It was claimed in paragraph no.
4 of the plaint that the Will dated 31.05.1975 was proved and
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 19 of 49
upheld by the Court of Sh. V. K. Jain, SubJudge, First Class in CS No. 536/79 titled "Charan Singh Vs. Ajodhaya Prasasd". It was claimed that the original plaintiffs were impleaded as the legal representatives of Sh. Ajodhaya Prasad in the said suit after his demise on the strength of the said Will. The original Will dated 31.05.1975 has been filed on the court record and has been exhibited in the evidence of PW2 as Ex. PW2/1. The defendant no. 1 had not denied the title of the original plaintiffs in the suit property as it has been stated in paragraph no. 4 of the reply on merits of Written Statement filed by him that the plaintiffs were successful in establishing their title in the court of Sh. V. K. Jain, SubJudge of First Class. The defendant no. 1 has also admitted the averments made in paragraph no. 2 of the plaint which states that the front half portion of the suit property was bequeathed by Sh. Ajodhaya Prasad to the plaintiffs by virtue of Will dated 31.05.1975. In fact, there appears to be no dispute amongst the original plaintiffs and the defendant no. 1 with respect to title of the original plaintiffs as the parties have willingly entered into an agreement of sale dated 17.11.1980 of the suit property with each other. The defendant no. 1 has also paid earnest money of Rs. 4,000/ on 17.11.1980 to the plaintiffs in lieu of entering into the agreement of sale of the suit property. However, when the affidavit CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 20 of 49of DW1 came to be filed before this court (on 23.09.2002), surprisingly, a question mark was raised over the title of Sh. Ajodhaya Prasad and the original plaintiffs in the suit property. In fact, averments made in paragraph no. 3, 4 and 6 of affidavit of defendant no. 1 : Ex. D1 were not a part of the pleadings of the defendant no. 1. The defendant no. 1 has introduced new facts in his affidavit, without taking the permission of the Court, and hence, it is not within his rights to agitate upon the question of title of the suit property at this stage. If the defendant no. 1 was serious about questioning the title of the original plaintiffs in the suit property, he should have amended his defence so that due opportunity would have been granted to the plaintiffs as well to rebutt his claim. In the absence of such objection taken at the appropriate stage, the defendant no. 1 cannot be allowed to wriggle away from admissions made by him. Nevertheless, defendant no. 2 to 6 have questioned the title and authority of Sh. Ajodhaya Prasad and the plaintiffs in the suit property. In the written statement filed by defendant no . 7 Sadiq Ali, a preliminary objection has been taken claiming that neither Sh. Ajodhaya Prasad, nor the original plaintiffs (Sareen brothers) were the owners of the suit property. In this regard, it was stated that the alleged will dated 31.05.1975 had not been probated and hence, it could not be said that the original CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 21 of 49plaintiffs had perfected their title to the suit property. During the course of final arguments, it was argued by the defendants that there were no title documents of the suit property in the name of Sh. Ajodhaya Prasasd and hence, it was claimed that the property could not have been bequeathed by him.
24. A bare perusal of the pleadings of defendants makes it clear that the defendant no. 2 to 6 and the defendant no. 7 have claimed themselves to have been inducted in the suit property as tenants by the original plaintiffs and the defendant no. 1. None of the defendants are setting up the title of a third party in the suit property. There pleadings are silent as to who is the owner of the suit property if not the plaintiff or Sh. Ajodhaya Prasad. Further, the defendants claiming to be in occupation of the suit property as tenants are estopped by virtue of Sec. 116 of the Indian Evidence Act, 1872 to question the title of their landlord. Provisions of Sec. 116 of the Indian Evidence Act, 1872 are being reproduced below in this regard : "Estoppel of tenant; and of licensee of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 22 of 49the time when such licence was given."
25. Hence, the objections of the defendants to the title of the original plaintiffs is unsustainable. Nevertheless, since onus of proving the issue is upon the plaintiff, let us find out if the onus has been discharged or not.
26. It has been rightly pointed out that there are no documents on the court file showing that Sh. Ajodhaya Prasad was the recorded owner of the suit property. There are no averments as to how the suit property was acquired by Sh. Ajodhaya Prasad or whether the land lying underneath the suit property was recorded in his name in the Government Records. PW2, who is one of the original plaintiffs namely Sh. Rajeshwar Prasad Sareen has admitted in his crossexamination dated 29.10.2001 that no documents are filed to show the ownership of Sh. Ajodhaya Prasad in the suit property. He has admitted that he is not in possession of any title deeds from where the ownership of Sh. Ajodhaya Prasad is made out. Further, despite stating in the plaint that the Will dated 31.05.1975 stood proved in CS no. 536/79 titled "Charan Singh Vs. Ajodhaya Prasad" the original plaintiffs failed to summon the official record of the case in order to prove this claim. The original will dated 31.05.1975 was however, produced by PW2 and filed on the court record. During his crossexamination, PW2 stated that CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 23 of 49they had not obtained the probate of this Will as nobody had ever challenged it. There were no averments in the examination in chief of PW2 that the Will dated 31.05.1975 was duly proved in another suit by examination of the attesting witnesses. In fact, PW2 failed to state in his examination in chief, the title of the suit or the suit number in which the said Will was proved in their favour. Only a bare statement that the Will was a registered document and was filed in an earlier suit was stated in the examination in chief recorded on 29.03.2001. There was no statement that the Will dt. 31.05.1975 stood already proved in a previous litigation in favour of the original plaintiffs. PW2 had stated in his examination in chief dt. 29.03.2001 that both the attesting witnesses of the Will dt. 31.05.1975, namely Sh. Laxmi narayan Khanna and R.N. Sareen had already expired. However, during the course of his cross examination dt. 29.10.2001, it was revealed that PW2 was not confident if one of the attesting witness Sh.R.N. Sareen was alive or dead. Witness stated that he believed that the said witness was residing at Sui Wala Bazaar, Sita Ram, Delhi, meaning thereby that the witness believed that one of the attesting witnesses to the Will dt. 31.05.1975 was alive. As per Section 68 of Indian Evidence Act 1872, no document required by the law to be attested can be used as evidence until one attesting witness has been called for the purpose CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 24 of 49of proving its execution, if there be an attesting witness alive and subject to the process of court. PW2 has admitted that both the attesting witnesses were his relatives. In view of the admission that one of the attesting witnesses of the Will dt. 31.05.1975 was alive, it was incumbent upon the parties suing on the strength of the Will to have called the attesting witness to prove the execution of the same. Furthermore, PW2 could not disclose as to when or in what proceedings had he summoned the attesting witnesses to prove the execution of the Will in their favour. Pw2 also admitted that he had not filed any document on record to prove that he had summoned the attesting witnesses in this case or in any other lititgation to prove the execution of the Will. Infact, Pw2 stated that the Will was not executed in his presence but was handed over to him by one of his relatives, whose name he did not remember. PW2 had also not called the said relative in the witness box as he stated that the relative had expired. The date of demise of this relative or the details of his remaining family members were not given by PW2 on being questioned in crossexamination as he denied knowing about them. PW2 stated that this relative was very famous but despite his popularity and the fact that PW2 was related to this person, his details were concealed from the court. It gave an impression that PW2 was hiding material facts from the court. Above all, PW2 CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 25 of 49admitted that he had not placed on record the death certificate of the attesting witnesses of Will dt. 31.05.1975 to prove that they had already expired. Clearly, the document Ex. PW2/1 i.e. Will Dt. 31.05.1975 has not been proved in accordance with Section 68 of Indian Evidence Act, 1872. In addition to this, there are no title documents to show that Sh. Ajoydhya Prasad was the owner of the suit property and was authorised to bequeath the same to the original plaintiffs. In the absence of cogent documentary evidence, the plaintiffs have failed to discharge the onus which lay upon their shoulders. Issue is, therefore, decided against the plaintiff.
ISSUE NO. 2Whether defendant no. 1 is a tenant in the premises in question? OPD1
27. Onus is upon the defendant no. 1 to prove the issue.
28. This suit for Possession and Mandatory Injunction was filed against the defendant no. 1 and other defendants, interalia with the allegations that the defendant no. 1 was permitted to reside in the suit property as a licensee by Sh. Ajodhya Prasad on account of their near relations. It was stated in the plaint that the defendant no. 1 had started raising unauthorized construction in the suit property and therefore, the original plaintiffs had cancelled his license to continue in the suit property. In the meanwhile, the original CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 26 of 49plaintiffs had also entered into an agreement of sale dt. 17.11.1980 of suit property with the defendant no. 1 but the sale could not take place. This suit was filed claiming that the license of the plaintiff in the suit property was terminated on cancellation of agreement of sale dt. 17.11.1980 and therefore, his occupation was no longer authorised. It was prayed that the defendant no. 1 be directed to hand over the possession of the suit property back to the plaintiffs. The defendant no. 1 had denied that he was occupying the property as a licensee. In fact, he claimed that he was a tenant in the suit property for the last 40 years and was entitled to protect his possession after frustration of agreement of sale dt. 17.11.1980 by virtue of Section 53A of Transfer of Property Act.
29. Plaintiffs had themselves relied upon the record of an earlier suit filed by the original plaintiffs against the defendant no. 1 in the court of Sh. S.M. Gupta, SubJudge, Delhi, bearing suit no. 375/80, titled "Rameshwar Prasad Sareen & Ors. Vs. Karan Singh"
(Ex. PW2/6 is the certified copy of the plaint). Paragraph no. 1 of the said plaint Ex. PW2/6 records the defendant no. 1 Karan Singh s/o Basant Singh to be a tenant in the suit property occupying two kotharis and one Verandah at the monthly rent of Rs. 35/ only. Paragraph no. 4 of the plaint records that the defendant karan Singh was not paying rent to the plaintiff for last many years and that CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.Page No. 27 of 49
since the question of title of the property stood decided in favour of the plaintiffs, hence, defendant was entitled to pay rent to them. By virtue of averments made in the paragraph no. 9 of the said plaint, the plaintiffs had tried to set up a case that the provisions of Delhi Rent Control Act were applicable to the tenancy of the defendant Sh. Karan Singh. When the plaintiffs have been confronted with this fact in the written statement filed by defendant no. 1, they have simply stated in the replication that it is a typographical mistake. However, perusal of the evidence shows that it is not at all a typographical mistake and that, in fact, the defendant no. 1 has been in occupation of the suit property as a tenant. I state so as had it not been such a case, the plaintiffs would not have relied upon the record of the earlier case showing the defendant as a tenant in respect of the present suit. Further more, there are no documents to show that any license was created in favour of the defendant no. 1 by Sh. Ajodhaya Prasad or by the plaintiffs at any point of time. In his crossexamination dated 29.10.2001, PW2 has admitted that there are no documents to show that a license was created in favour of the defendant no. 1 by Sh. Ajodhaya Prasad. In fact, PW2 has stated in his crossexamination dated 17.07.2001 that he was not aware as to since when was the defendant no. 1 in occupation of the suit property. He stated that he was not aware if the defendant no.
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.Page No. 28 of 49
1 was in possession of the suit property since the year 1940. Instead, he answered that the said information was known to his uncle Sh. Ajodhaya Prasad who had expired on 29.09.1976. Despite relying upon the record of CS No. 675/80 titled "Rameshwar Prasad Sareen & Ors. Vs. Karan Singh" , filed in the Court of Sh. S. M. Gupta, the then Civil Judge, Delhi, PW2 stated in his cross examination that he did not remember if the suit was ever filed by him in the year 1985. The witness very conveniently stated that he did not remember the fate of the suit , but in the next breath admitted that he had withdrawn the same on 17.11.1980. On the other hand, in the further part of his crossexamination, he admitted that the said suit was dismissed by the Court on 24.11.1980, hence, it gave an impression that the witness was not playing fair with the process of the Court.
30. PW2 had stated that defendant no. 1 was carrying out unauthorized construction in the year 1981, but in the further part of his crossexamination, he stated that he had never visited the spot and had got to know about the unauthorized construction from his sister Munni. PW2 admitted that defendant no. 1 Sh. Karan singh was in exclusive possession of the suit property from 1940 till 1975 without any intereference from any person. Witness went on to state that from 1975 till 2001, the defendant no. 1 continued to be in CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 29 of 49physical possession of the suit property without any interference from a third party. No record was proved to suggest that the original plaintiffs had ever written to the defendant no. 1, thereby stating that he was incorrectly referred to as a tenant in the suit no. 375/80 despite being a licensee in the property. Even otherwise, there is no evidence as to when the alleged license was created in favour of the defendant no. 1 by Sh. Ajodhaya Prasad . The plaintiffs could not examine any other person who could testify that a license was granted to the defendant no. 1 in his presence. On the other hand, there is an admission in pleading of plaintiffs filed in an earlier suit to show that the defendant no. 1 was occupying the suit property as a tenant. The plaintiffs cannot be allowed to resile from their admissions on the basis of a fake plea that it was not an admission but a clerical error . Hence, the issue is decided in favour of the defendant no. 1 and against the plaintiff.
ISSUE NOS. 3, 4, 5 AND 63. Whether the defendant no. 1 is entitled to protection u/s 53A of the Transfer of Property Act? OPD1
4. Whether defendant no.1 has failed to perform his part of the contract? OPP
5. Whether the Agreement to sell dt. 17.11.1980 stand cancelled? OPP CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 30 of 496. Whether the defendant no. 1 is in unauthorized occupation of the property in suit, if so, its effect? OPP
31. These three issues can be disposed off by way of common findings, hence, these issues are taken up together.
32. During the course of final arguments, it was vehemently argued by the counsel for defendant no. 1 that the present suit seeking the relief of possession and injunction only was not maintainable in view of the bar created by virtue of Sec. 53A of Transfer of Property Act. In this regard, it is trite to record that the execution of agreement of sale dated 17.11.1980 between original plaintiffs and defendant no. 1 in CS no. 375/80, titled Rajeshwar Prasad Sareen Vs. Karan Singh is not disputed by both the sides. Even though, the original agreement of sale dated 17.11.1980 has not been filed on the record of this case, nevertheless, the copy exhibited during the course of evidence of plaintiff has been admitted to be correct by both the sides (Ex.PW2/11). The agreement records that original plaintiffs have agreed to sale the property to the defendant Sh. Karan Singh for an amount of Rs. 53,000/, out of which Rs. 4,000/ has been paid in cash against a receipt. It has been further agreed in the agreement that the balance amount of Rs. 49,000/ is to be paid to the original plaintiffs at the office of SubRegistrar, Kashmiri Gate at the time of registration of CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 31 of 49sale deed. The agreement records that time shall be the essence of the contract and the sale would have to be completed within 17.11.1980 to 16.03.1981. Covenants no. 2, 3, and 5 of the agreement pertain to obtaining of permission of the Urban Land Sealing and Regulation Act, 1976. The three terms are being reproduced below in verbatim as the language is necessary to decide if the defendant no. 1 had failed to perform his part of the contract.
" 2. That all the expenses of the sale deed, registration charges, stamp duty, and expenses which are to be incurred in obtaining permission under Section 27 of he Urban Land (Ceiling & Regulation) Act, 1976 shall be borne by the second party.
3. That the first party shall sign all the requisite papers which may be required in obtaining the Permission under Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976.
5. The first party shall intimate the second party with regard to the accordance of the permission under Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976."
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.Page No. 32 of 49
33. It is a matter of record that the sale could not be completed within the stipulated period. Immediately upon the expiry of the time, defendant no. 1 has issued a notice dated 17.03.1981 (Ex. PW2/2.) to the original plaintiff thereby alleging that the original plaintiffs had intentionally not come forward to perform their part of the contract. The contents of the legal notice dated 17.03.1981 are reproduced below:
1. That you entered into an agreement to sell with my client on 17.11.1980, according to which you have agreed to sell to my client the premises bearing no. 2842, Bulbuli Khana, Turkman Gate. Delhi for a sale consideration of Rs. 53,000/ .
2. That you being a relative of my client have received Rs.
42,000/ towards the abovesaid payment and have been asking for more amount again to my client.
3. That you have not abided, by the terms of the said agreement to sell and have failed to execute the sale deed in favour of my client in respect of the abovesaid property inspite of the stipulated period given to you i.e. 15th March,1981, hence, this notice.
4. That you have also not raised the wall towards the side adjoining demolished premises nor you have cleared the house arrears which are necessary for the purpose of transferring CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 33 of 49the said property in the name of my client.
5. That you have also not abide by you promise as you have not evicted the tenant M/s M.A. Plastic & Co. by the stipulated period as per agreement and due to your failers on all the aspects towards the execution of the abovesaid deal, my client do hereby call upon you to execute he sale deed in favour of my client immediately failing which my client shall be constrained to seek all possible civil and criminal remedies against you to get the same done. You are further liable to be prosecuted under criminal acts for such irresponsible sets and misdeeds on your part in court of law at Delhi. In case you failed to make the said agreement good within ten days from the date of serving this notice, he shall further sue you for damages as well of the torture and harrassment inducted by you on my client.
Please note in case you failed to execute the sake deed within the further given period of ten days from the date of serving this notice, my client shall be at liberty to file the suits for specific performance as per agreement and will also initiating all possible civil and criminal remedies for the recovery of damages & for the touture, harassment faced by my client or will launch criminal prosecution against you as CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 34 of 49well as all possible civil remedies at your intire risk and costs".
34. In reply to this legal notice, the original plaintiffs have issued a legal notice dated 31.03.1981 (Ex. PW2/3) whose contents read as under : "Your notice on behalf of your client Sh. Karan Singh, S/o of Shri Basant Singh, resident of 2862, Bulbulikhana, Turkman Gate, Delhi addressed to my clients S/Shri Rameshwar Prasad Sareen, Rajeshwar Parshad and Rainder Sarshad Sareen, Sons of Shri Lalita Parshad, C/o 19/104, West Moti Bagh, Sarai Rohilla, New Delhi, has been placed in my hands to reply as under :
1. Para 1 of the notice is correct. However, it is submitted that my clients are owners of only ½ of the portion of the premises bearing no. 2842, Bulbulikhana, Turkman Gate, Delhi under a Will dated 01.06.1975 executed by Shri Ajudhiya Parshad, duly registered. Your client was conveyed about the ownership of half of the portion of premises bearing no. 2842, Bulbulikhana, Turkman Gate, Delhi, by my said clients. Your client got the agreement drafted and told my said clients that he would persuade for the registry of whole building. The agreement to sell with regard to the whole of the property bearing no. 2842, Bulbulikhana, Turkman Gate, Delhi is void as my clients do not possess any right, interest, title in respect of the remaining half portion of the aforesaid CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 35 of 49property. Your client paid a sum of Rs. 4,000/ as an earnest money and a sum of Rs. 19,000/ was paid on 09.01.1981.
2. Para 2 of the notice is entirely incorrect, false to the knowledge of your client and is not admitted. Your client only paid Rs. 23,000/ to my said clients including the earnest money. My clients never received Rs. 42,000/ as alleged by you.
3. Para 3 of the notice as stated is not admitted. Accordingly to the said agreement time was essence of the contract and the sale deed was to be executed by 16.03.1991 falling which my clients shall be entitled to forfeit the earnest money and to sell the same to a third person. Your client has failed to perform his part of obligations as stated in the foregoing agreement and was/is never ready and willing to perform the same thereby committed the breach of the contract and rendered himself liable for forfeiture of the earnest money. No permission is required under the Urban Land (Ceiling and Regulation) Act, 1976, for seeking permission to sell the property. Your client has failed to get the sale - deed registered before the stipulated date.
4. Para 4 of your notice is incorrect and is not admitted. My clients never agreed to raise the wall as alleged.
5. Para 5 of the notice is denied. My clients never agreed that they will get the tenant Messrs. M. A. Plastic & Company evicted from a portion of the aforesaid premises. It is only your client who has CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 36 of 49beglected?failed to perform his part of contract and was never ready and willing to perform his contract for which my clients are not to be held responsible. Your client has thus committed a breach of contract.
I may further add for your information that your client was already told by me said clients that the aforesaid property is a subject matter of litigation on the ground of alleged agreement to sell entered into between one Mohammad Illyas and Shri Rajeshwar Parshad.
Inspite of this if your client takes any action against my said clients bases on illadvise, he will do so at his own risk and costs and my clients shall not be held responsible for the same."
35. During the course of final arguments, it was stated by the plaintiff that the requisite permission under the provisions of Urban Land Ceiling and Regulation Act, 1976 were to be obtained by the defendant no. 1 and that on account of delay on his part, the sale deed could not be executed in time. Hence, it was argued that failure was attributed on the shoulders of defendant no.1 and not the plaintiff. The contents of legal notice of the plaintiff dated 31.03.1981 shows that any such permission under the Urban Land Ceiling and Regulation Act, 1976 was never required to be taken for the purpose of sale of the suit property. That is why the plaintiffs have replied so to the legal notice of the defendant dated 17.11.1980. It is, therefore, not clear as to why such a condition CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 37 of 49was incorporated in the agreement of sale dated 17.11.1980 in the first place. Further more, clause 5 of the agreement dated 17.11.1980 shows that it was upon the "first party" i.e. the original plaintiffs to intimate the "Second party" i.e. defendant no. 1 if the permission under the said law had been granted or not. The covenant no. 3 also talks of the first party taking steps and signing the documents required for obtaining permission under the said law. The covenant no. 2 provides that the expenses in obtaining the permission shall be borne by the second party. Clearly, it was for the plaintiffs / first party to initiate the process since they were the vendors and were to intimate the purchasers regarding the permission. There is no communication between the plaintiffs and the defendant no. 1 in between the period 17.11.1980 to 16.03.1981 wherein the plaintiffs have complained that the defendant has not borne the expenses of obtaining permission . In fact, the first communication has emanated from the defendant no. 1 thereby complaining that steps have not been taken by the plaintiffs in this regard. In reply, the plaintiffs have merely stated that no such permission was required. Had it been the case, the plaintiffs would not have included the condition in the agreement. Therefore, it goes on to show that it is the plaintiff and not the defendant no. 1 who has defaulted in performance of obligations arising from the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 38 of 49agreement. Hence, the issue no. 4 is decided against the plaintiffs and in favour of the defendant no. 1.
36. The agreement to sell dated 17.11.1980 stands frustrated, however, the defendant no. 1 seeks to protect his possession in the property on the strength of doctrine of part performance i.e. Sec 53A of Transfer of Property Act. There is no evidence that a suit for Specific Performance of the Agreement of Sale dated 17.11.1980 has been filed by the plaintiff or the defendant no. 1 against each other. The plaintiff has also not filed a suit for cancellation of the agreement dt. 17.11.1980, but has merely sought possession from the defendant no. 1 claiming that on frustration of the agreement, his possession becomes unauthorized. Nonetheless, it is my view that the defendant no. 1 has rightly invoked the doctrine of part performance u/s. 53A of the Transfer of Property Act, 1882 to protect his possession. The relevant Provision of law is being reproduced below : "[53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 39 of 49and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
37. In the judgment titled as "Shrimant Sham Rao Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi" AIR 2002 SC 960, the Apex Court had held that a defendant transferree is entitled to protect his possession over the suit property taken in part performance of the contract even if the period of limitation for brining a suit for Specific Performance has expired. The court has further noted down that the limitation Act does not extinguish the defence , but only bars the remedy. Meaning thereby that the defendant is well within his rights to protect his possession in the suit property taken in part performance of contract by invoking the defence of Sec. 53A of the Transfer of Property Act.
38. In the present case, the defendant no. 1 was already in possession of the suit property and he continued to remain in CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 40 of 49possession after entering into the agreement of sale of the suit property dated 17.11.1980. There is admission in the plaint that the defendant no. 1 had paid an amount of Rs. 4,000/ to the plaintiffs on 17.11.1980 whereafter another amount of Rs. 19,000/ was paid to them on 09.01.1981. In the case titled as "Raj Pal & Anr. Vs. Harswaroop" 188 (2012) DLT 20, the Hon'ble High Court Judge has discussed the conditions necessary for making out the defence of part performance to an action in ejectment. The same are being reproduced below in verbatim : " 1. That the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
2. That the transferor has in part performance of the contract take possession of any property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
3. That the transferee has done some act in furtherance of the contract; and
4. That the transferee has performed or is willing to perform his part of the contract."
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 41 of 4939. The transpired facts of the present case make it clear that the transferee defendant no. 1 has paid an amount of Rs. 4,000/ and 19,000/ on two occasions to the transferor and this payment has been made in furtherance of the agreement dated 17.11.1980. The defendant no. 1 has also continued to remain in possession of the property. The transfreree has expressed his willingness to perform the contract at his end and such a recital has been made in his pleadings too. It is otherwise, apparent from the conduct of the transferee / defendant no. 1 that he has always been willing to perform the contract as the first legal notice has been issued by him to the plaintiffs after expiration of the period of the agreement. The fact that the agreement dated 17.11.1980 has been signed willingly by both the parties was never in dispute. Suffice to say that all the ingredients entitling the transferee to take benefit of the doctrine of part performance have been satisfied in this case. The doctrine of part performance does not confer a title upon the transferee in possession, but it only imposes a statutory bar upon the transferor. In the case of "Raj Kumari Garg Vs. S. M. Ezaz & Ors." 2012 (132) DRJ 108 (DB), the High Court of Delhi has held that the relief of possession and injunction, as sought in such cases without seeking cancellation of the document is not maintainable. The Court has dealt with a number of case laws in cases involving CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 42 of 49similar factual matrix and has held that in such cases, the plaintiff tries to create an illusion of cause of action to get over the period of limitation. It has been held that by merely styling the suit as one for possession, the parties cannot be allowed to indirectly do , what they could not do directly. Hence, the plaintiffs cannot be allowed to recover possession from the defendant no. 1 by merely filing a suit for possession and injunction. Issue no. 3 and 4 are consequently decided in favour of the defendant no. 1 and against the plaintiff.
40. As has already been stated before that none of the parties have initiated an action for filing a suit for cancellation of the agreement dated 17.11.1980, hence, it has not been proved that the agreement stands cancelled. Plaintiff has not discharged the onus to prove this issue no. 5 and hence, the same is decided against the plaintiff.
41. As regards, issue no. 6, it has already been discussed above that the defendant has a statutory rights u/s. 53A of Transfer of Property Act to protect his possession obtained in part performance of an agreement to sell and therefore, it is clear that his possession in the property is authorized. Further more, it has already been decided in the issue no. 2 that the defendant no. 1 was earlier occupying the property in the capacity of a tenant. Defendants had CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 43 of 49relied upon a judgment titled as "K. Mani Vs. M.D. Jayavel & Ors". 2012 (1) RCR (Rent) 111, wherein it was held that a mere agreement of sale did not terminate the landlord tenant relationship unless there was a specification to the said effect in the agreement. In this judgment, it was also observed that it was possible that the tenant was entitled to the benefit of Sec. 53A, but in such a case, his liability to pay rent did not cease until and unless specified in terms. The agreement of sale dated 17.11.1980 records that the defendant no. 1 has been in possession of the suit property for the last 40 years, but it does not state specifically about his tenancy rights. However, it has been proved that the defendant was occupying the property as a tenant before entering into an agreement of sale dated 17.11.1980. Since, there was no express provision discontinuing the said relationship between the parties, hence, it cannot not be stated if the parties had an intention of severing the landlord tenant relationship. Therefore, there is no evidence by the plaintiff to suggest that the defendant no. 2 has ever been in unauthorized occupation of the property at any point of time. Plaintiff fails to discharge the onus of issue no. 6 and consequently, issue is decided against the plaintiff.
ISSUE NO. 7If the issue no. 2 to 6 related to defendant no. 1 are decided against the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 44 of 49defendant no. 1, whether the defendant no. 2 to 6 could claim tenancy rights as alleged by them? OPD 2 to 6
42. The issue pertains to tenancy rights of defendant no. 2 to 6 and its effect in case the issue No. 2 to 6 are decided against the defendant no. 1. Since, issue no. 2 to 6 are decided in favour of the defendant no. 1, hence, there is no need to give findings on issue no. 7. Decided accordingly.
ISSUE NO. 8Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPP
43. There is no evidence to suggest that the suit has been improperly valued for the purpose of court fees and jurisdiction. No arguments have been addressed on this aspect during the course of final arguments. The valuation arrived at in the plaint clause is correct and in consonance with the provisions of Court Fees and Suit Valuation Act. Hence, the issue is decided in favour of the plaintiff.
ISSUE NO. 9.
Whether the defendant no. 2 to 6 are legal occupants of the shops illegally and unauthorizedly constructed by the defendant no. 1, if so, its effects? OPP CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 45 of 4944. The original plaintiffs had filed a suit against the defendant no. 1 in the year 1980 alleging that the defendant was in the process of carrying out illegal construction in the suit property with a view to let it out to other people. The original plaintiffs had pleaded that the defendant was barred in lieu of Section 14 (1) (b) of Delhi Rent Control Act from subletting the property without the consent of the landlord. This suit bearing no. 375/80 was compromised and withdrawn on 24.11.1980. An agreement of sale was executed between the parties consequent to the compromise talks in the suit no. 375/1980 but the terms of the agreement are silent with regard to any construction made in the suit property. Thereafter, parties are again at loggerheads with the plaintiffs alleging that the defendant no. 1 has carried out unauthorized construction in the property without their permission. In his examination in chief, the original plaintiff Rajeshwar Prasad Sareen (PW2) has proved a site plan Ex. PW2/10 which shows the alleged illegal construction carried out by the defendant no. 1 in the suit property. It shows the illegal construction at point A,B,C and D in site plan Ex. PW2/10. However, in his cross examination, the witness has admitted that he has never visited the property from inside and has seen it from outside only. In circumstances of the case, the authencity of the site plan Ex. PW2/10 is under doubt. Further, there is no mention in the CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 46 of 49examination in chief of PW2, of the date or the year when the alleged unauthorized construction has been carried out at the behest of defendant no. 1. PW2 has stated in his cross examination that the unauthorized construction was carried out in the year 1981 but he does not know when the same was completed. He has gone to the extent of saying that he has never visited the spot and therefore, no reliance can be placed on the testimony of this witness. Infact, the witness has stated in his cross examination that he was informed by his sister "Munni" that the defendant no. 1 had carried out further unauthorized construction in the suit property after 1981. However, plaintiffs have not examined any witness to prove that any such other construction was carried out in derrogation of the building bylaws. On the other hand, defendant no. 1 has maintained that whatever construction has been carried out, the same is legal and with the permission of the landlord. Onus of proving that the defendant no. 1 had carried out unauthorized construction in the property was upon the plaintiffs who have led no evidence to support their claim. There is no report that the site has been inspected by the government authorities to check whether there is unauthorized construction. The plaintiffs have not been able to state the year when the construction work was started or completed. The witness who has testified to carrying out of illegal CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 47 of 49construction has infact has never visited the property from inside and therefore, it is proved that there is no truth in the allegations of the plaintiff that the property has illegal construction. Further, the defendant no. 1 has admittedly inducted tenants in the property who are paying rent to him. The defendant no.1 has already been held to be a tenant in the property. The rate of rent at which the defendant No. 1 was inducted as a tenant in the property is reflected to be Rs. 35/ per month in the plaint of CS no. 375/80 which is exhibited as Ex. PW2/6 in the evidence of plaintiffs. Therefore, the tenancy of the defendant no. 1 is governed by the provisions of Delhi Rent Control Act. The remaining defendants have been inducted as sub tenants by the defendant no. 1 in the property and their tenancy is also covered by provisions of the same act. Therefore, the defendants no. 2 to 6 (now only defendant Irshad Ali) is a sub tenant under provisions of Delhi Rent Control Act in the suit property and therefore, it is held that he is not an unauthorized occupant in the property. Issue no. 9 is decided against the plaintiff.
ISSUE NO. 10Whether the plaintiff is entitled to claim possession, claim damages and relief of Mandatory Injunction? OPP
45. In view of my findings on issue no. 1 already stated above, it has been held that the original plaintiffs have failed to prove that CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 48 of 49they are owners of half portion of the suit property by virtue of Will dated 31.05.1975. On the other hand, the defendant no. 1 is occupying the suit property since the last more than 40 years and his possession is protected by virtue of Sec. 53A of the Transfer of property Act. It has already been held in findings of issue no. 3, 4, 5 and 6 that the plaintiffs are not within their rights to recover possession from the defendant no. 1 by filing a mere suit for possession and injunction without claiming relief of cancellation of the agreement dated 17.11.1980. The remaining defendant is the subtenant of defendant no. 1 and his tenancy is covered by provisions of the Delhi Rent Control Act. There is no evidence that the defendant no. 2 Irshad Ali is an unauthorized occupant of the property and is not entitled to avail the benefit of the Delhi Rent Control Act to protect his possession in the suit property. Hence, the relief of possession is denied to the plaintiffs. The plaintiffs have not proved as to how they are entitled to claim damages in th amount of Rs. 2850/ as claimed in the suit. They have led no evidence to show that there is unauthorized construction in the property. Therefore, the reliefs of mandatory injunction and recovery of damages are also denied. Issue is decided against the plaintiff.
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.
Page No. 49 of 49
RELIEF.
46. In view of my findings on the issues framed, the suit of the plaintiff is dismissed with parties to bear their own costs. Decree Sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
th
today on 5 January, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
CS No. 224/14 Istiaq Ahmed Vs Karan Singh & Ors.