Delhi High Court
Sharda vs Kusum Gupta on 28 August, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th August, 2018
+ RSA 196/2017 & CM No.27311/2017 (for stay)
SHARDA ..... Appellant
Through: Mr. Yog Verdhan, Adv.
Versus
KUSUM GUPTA ..... Respondent
Through: Mr. Shamindra Kadian, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 27 th
March, 2017 in RCA No.4/2017 of the Court of Additional District Judge
(South-West)] of dismissal of First Appeal under Section 96 of the CPC
filed by the appellant against the judgment and decree [dated 26 th
December, 2016 in Civil Suit No.425372/2016 of the Court of Senior Civil
Judge (South-West)] allowing the suit of the respondent/plaintiff against the
appellant/defendant for recovery of possession of immoveable property and
for recovery of rent and mesne profits.
2. The appeal came up first before this Court on 1 st August, 2017, when
notice thereof was ordered to be issued and execution stayed, though
without formulating or indicating the substantial question of law, if any
arising and the Trial Court record was requisitioned.
3. The counsel for the respondent/plaintiff has been appearing and the
proceedings have been adjourned from time to time. None of the
RSA 196/2017 Page 1 of 11
subsequent orders also record or indicate the substantial question of law, if
any entailed in this appeal.
4. The counsels for the parties have been heard and the Trial Court
record requisitioned perused.
5. The respondent/plaintiff instituted the suit, from which this appeal
arises, pleading (i) that the respondent/plaintiff had purchased the subject
property from the appellant/defendant vide Agreement to Sell, Power of
Attorney etc. and the appellant/defendant had put the respondent/plaintiff
into possession of the property agreed to be sold; (ii) however, after some
time, the appellant/defendant approached the respondent/plaintiff for taking
the same property on rent and which was agreed to by the
respondent/plaintiff and the property was let out by the respondent/plaintiff
to the appellant/defendant at a rent of Rs.5,000/- per month; (iii) that the
appellant/defendant was irregular in payment of rent; and, (iv) that the
respondent/plaintiff thus determined the tenancy of the appellant/defendant.
Hence, the suit for recovery of possession and for recovery of arrears of
rent and mesne profits.
6. The appellant/defendant contested the suit inter alia denying any
transaction of sale or letting and pleading that the respondent/plaintiff had
taken the signatures of the appellant/defendant on some blank papers.
7. The following issues were framed/got framed in the suit:
"1. Whether the plaintiff obtained the signatures and thumb
impression of the defendant on some blank papers and
fabricated the same as documents dated 16.07.2012 in the
nature of GPA etc. with respect to the suit property? ....OPD
RSA 196/2017 Page 2 of 11
2. Whether the defendant is still the owner of the suit
property?....OPD
3. Whether a landlord - tenant relationship was created
between the parties in November 2012? .......OPP
4. If a landlord-tenant relationship was created, whether
the plaintiff has terminated the tenancy of the defendant?..OPP
5. Whether the plaintiff is entitled to the recovery of
arrears of rent, and interest upon the same, if so, at what rate
and for what term?.....OPP
6. Whether the plaintiff is entitled to the recovery of
damages, if so, at what rate and for what term?....OPP
7. whether the defendant has attempted to create third
party interest in the suit property? .....OPP
8. Relief."
8. The Suit Court allowed the suit reasoning, (i) that the defence of the
appellant/defendant qua Agreement to Sell, Power of Attorney etc. in
favour of the respondent/plaintiff was of bald denial; (ii) though the
appellant/defendant admitted her signatures on documents other than
possession letters and Will, she denied the contents of these documents
asserting that her signatures were obtained on blank papers/printed papers;
(iii) that the admission of signatures/thumb impression on documents raised
the presumption of awareness of contents thereof, as a prudent person is
presumed to have either read the contents or accepted whatsoever may be
recorded on such papers; (iv) with the admission by the appellant/defendant
of the signatures/thumb impression on General Power of Attorney,
Agreement to Sell, affidavit and receipt, it stands admitted that the
RSA 196/2017 Page 3 of 11
appellant/defendant appointed the respondent / plaintiff as her attorney for
the property, for consideration and also agreed to sell the property to the
appellant/defendant; (v) that the denial of signatures on possession letter
and Will was thus irrelevant; (vi) that the Power of Attorney being for
consideration, could not under Section 202 of the Indian Contract Act,
1872, be terminated; (vii) that the appellant/defendant in her cross-
examination also admitted sale of other portions of the same property to
others at about the same time as the sale claimed by the
respondent/plaintiff; (viii) that since the appellant/defendant knowingly
sold other portions of the property at the same time, it was highly
improbable that she was duped by the respondent/plaintiff; (ix) denial by
the appellant/defendant was contrary to normal course of human conduct;
reference was made to Sections 15,16 & 114 (f) of the Indian Evidence Act,
1872; (x) the circumstances in which the appellant/defendant claimed that
her signatures were obtained on blank/printed papers had not been
established/proved; (xi) the Agreement to Sell, Power of Attorney etc. in
favour of the respondent/plaintiff were witnessed by Suresh Kumar
Aggarwal, to whom the appellant/defendant admitted to have sold other
portion of the property; (xii) that it was not the plea of the
appellant/defendant that the said Suresh Kumar Aggarwal was in collusion
with the respondent/plaintiff; (xiii) issues no.1&2 aforesaid were thus
decided in favour of the respondent/plaintiff and against the
appellant/defendant; and, (xix) qua issue no.3 it was held that though there
was no written Rent Agreement between the parties but a tenancy could be
oral also and that considering that the defence of the appellant/defendant
RSA 196/2017 Page 4 of 11
had been disbelieved, the preponderance of probabilities was of a tenancy
having come into effect as claimed by the respondent/plaintiff, at a rent of
Rs.5,000/- per month; issue no.3 was thus decided in favour of the
respondent/plaintiff and against the appellant/defendant.
9. Resultantly the suit was decreed.
10. The First Appeal preferred by the appellant/defendant has been
dismissed framing the following two points for determination:-
"1. Whether the impugned order and judgment
dated 26.12.2016 granting recovery of possession in
favour of the plaintiff without declaring the plaintiff
owner of the same is as per law.
2. Whether the judgment and decree passed by the
Ld. Trial Court is even otherwise sustainable in the
eyes of law."
and holding/reasoning, (i) that though Agreement to Sell, Power of
Attorney etc., as per dicta of the Supreme Court in Suraj Lamp &
Industries P. Ltd. Vs. State of Haryana (2012) 1 SCC 656, did not
constitute documents of title, the respondent/plaintiff had proved better title
to the property than the appellant/defendant; (ii) reliance in this regard was
placed on Suresh Kumar Vs. Saroj Atal 189 (2012) DLT 285 and Hardip
Kaur Vs. Kailash 193 (2012) DLT 168; and, (iii) that since the
appellant/defendant had failed to prove her version of having signed on
blank papers and the respondent/plaintiff had been found to have a better
title than the appellant/defendant, it was most probable that the version of
the respondent/plaintiff, of creation of oral tenancy at a monthly rent of
Rs.5,000/-, was correct.
RSA 196/2017 Page 5 of 11
11. It would thus be seen, that both the Courts below have presumed the
existence of relationship of landlord and tenant, from the
respondent/plaintiff having title to the property and/or from the
respondent/plaintiff having better title to the property than the
appellant/defendant.
12. Though the title of the suit from which the appeal arises, was 'for
recovery of possession' but in law, a suit by a landlord for ejectment of
tenant is distinct from a suit for recovery of possession of immovable
property, on the basis of prior possession or title, in which either prior
possession or title has to be established. On the contrary, in a suit for
ejectment by landlord against tenant, the question of title to the property is
not relevant (See Jai Sujanti Vs. Sudarshan Chadha 2013 SCC OnLine
Del 2860; Precision Steels Vs. Reeta Salwan 205 (2013) DLT 695; Sanjay
Singh Vs. Corporate Warranties Pvt. Ltd. (2013) 204 DLT 12; Ram
Kumar Vs. S.K. Gulati (2013) 203 DLT 588; Vansons Footwear (P) Ltd.
Vs. USP Fashion Weaves (P) Ltd. 2018 SCC OnLine Del 6998; and,
Gayatri Gupta Vs. Bimla Devi 2018 SCC OnLine Del 10726) and the only
question to be determined is the existence of relationship of landlord and
tenant.
13. In an ejectment suit, the issues of title to the property and of
obtaining of signatures by the respondent/plaintiff of the
appellant/defendant on blank papers were not required to be framed.
14. This is a classic example of how a misdirected trial, not only leads to
neither party benefitting therefrom, but also leads to waste of judicial time.
RSA 196/2017 Page 6 of 11
15. Though issues are to be framed by the Court, but once the parties to a
suit are represented by the counsels, the said counsels are expected to assist
the Court in framing of issues. Even if the Court had framed issues on the
aspects not required to be determined, it was bounden duty of the counsels,
to point the same out. The counsels in the present case did not do so and
proceeded to lead evidence on such issues. Axiomatically, a misdirected
trial has led to a misdirected judgment with the Courts below pronouncing
on the issues and holding the respondent/plaintiff, on the basis of
Agreement to Sell, Power of Attorney etc. to be having a better title than
the appellant/defendant, forgetting that the respondent/plaintiff, by pleading
purchase of property from appellant/defendant, had admitted the title of the
appellant/defendant to the property. In such circumstances, it is not
understandable, as to how the test of better title, if at all valid in law, was
invoked in a suit for recovery of possession of immovable property on the
basis of title.
16. The First Appellate Court also failed to realise the aforesaid mistrial
and proceeded to dismiss the appeal in the same spirit.
17. De hors the title, the Suit Court as well as First Appellate Court have
held that there is no evidence of relationship of landlord and tenant between
the parties or of the rent agreed by the parties being Rs.5,000/- per month.
The rate of rent becomes relevant because as far as the city of Delhi is
concerned, the jurisdiction of the Civil Court to entertain a suit for
ejectment of a tenant from a premises is barred if the rent of the premises is
Rs.3,500/- or less per month. If the rent is Rs.3,500/- or less per month, the
Rent Controller under Delhi Rent Control Act, 1958 has to be approached.
RSA 196/2017 Page 7 of 11
18. I have thus asked the counsel for the respondent/plaintiff, as to the
evidence if any of existence of relationship of landlord and tenant.
19. The counsel for the respondent/plaintiff has fairly stated that out of
all of the witnesses examined by the respondent/plaintiff, only PW-8 Mohd.
Mushtaq has deposed about such relationship.
20. I have perused the affidavit by way of examination-in-chief and
cross-examination of the said witness. All that the said witness has deposed
is that on his approaching the respondent/plaintiff for taking the premises
on rent, the respondent/plaintiff replied that he had already let out the
premises to the appellant/defendant 'half an hour back' and that the
appellant/defendant was also present over there. The said witness has not
whispered a single factum about the rate of rent. The bare statement of PW-
8 could not withstand the cross-examination.
21. Choice has been given to the counsel for the respondent/plaintiff that
if he is willing to consent to decision of the appeal by substantial question
of law in this judgment itself, the appeal can be allowed today itself and
whereafter the respondent/plaintiff can institute a suit for recovery of
possession of the property on the basis of the title or prior possession as he
may consider appropriate and that the findings in the impugned judgment
on aspects which were not relevant to be decided would not constitute res
judicata, or to have the substantial question of law framed today and have
the appeal admitted for hearing to be listed in the category of 'Regulars'
and as a result whereof the respondent/plaintiff, till the decision of the
appeal, would also not be entitled to institute a suit for possession.
RSA 196/2017 Page 8 of 11
22. The counsel for the respondent/plaintiff states that he is not able to
give consent.
23. I may mention that the reasoning given by the Suit Court, of
preponderance of probability also is contrary to law. It has been held in
Mahabir Prasad Jain Vs. Ganga Singh (1999) 8 SCC 274, Kamini Lal Vs.
Raman Lal Sethi MANU/DE/2938/2018, Mohd. Farooq Vs. Mubassara
2014 SCC OnLine Del 805 and Akila Vs. Nisar Ahmad AIR 2012 All 93
that mere possession of premises of another does not give rise to an
inference of tenancy.
24. The appeal raises/entails following substantial questions of law:
"Whether the Suit Court and the First Appellate Court
have misdirected themselves and the trial by
misconstruing the suit for ejectment as a suit for recovery
of possession on the basis of title."
25. At this stage, the counsel for the respondent/plaintiff states that the
respondent/plaintiff be permitted to withdraw the suit from which this
appeal arises, with liberty to file appropriate proceedings. He states that the
liberty be also clarified to include a second suit for ejectment.
26. I have considered whether the respondent/plaintiff would be entitled
to institute a second suit for ejectment and on consideration, I am of the
view that even if one of the suits for ejectment is dismissed, the same does
not bar the landlord from filing a second suit for ejectment. Reference if
any required in this regard may be made to Chhaganlal Vs. Parwati Bai
MANU/MP/0199/1969, Noor Jahan Rahim Vs. Arokiadas ILR 1979 Kar
RSA 196/2017 Page 9 of 11
186 and Nand Kumar and Brothers Vs. Ram Prasad Rajak 1996 SCC
OnLine Pat 217.
27. Else, the counsel for the appellant/defendant also agrees that findings
returned in the impugned judgments qua title to the property or qua the
documents claimed to have been executed by the appellant/defendant, were
beyond the scope of a suit for ejectment and would not constitute res
judicata.
28. The counsel for the appellant/defendant also has no objection to
liberty being granted to the respondent/plaintiff either to sue for recovery of
possession on the basis of title or prior possession or to sue afresh for
ejectment of the appellant/defendant as a tenant.
29. In the peculiar facts of the case, since the trial has been misdirected,
the respondent/plaintiff is permitted to, at this stage of second appeal,
withdraw the suit from which this Second Appeal arises and with liberty to
take appropriate proceedings for recovery of possession or for ejectment of
the appellant/defendant and with further clarification that none of the
findings returned by the Suit Court or by the First Appellate Court qua title
to the property or qua the documents on the basis of which the
respondent/plaintiff claims title, would constitute res judicata in subsequent
proceedings if any instituted and the said questions will be decided afresh
on the basis of evidence led in said proceedings.
30. In view of the above, this appeal is infructuous and is disposed of as
such. However, in the circumstances, the respondent/plaintiff, as a
RSA 196/2017 Page 10 of 11
condition for instituting fresh proceedings, to pay costs of Rs.25,000/- to
the appellant/defendant.
The Trial Court record requisitioned in this Court be returned
forthwith.
RAJIV SAHAI ENDLAW, J.
AUGUST 28, 2018 bs/sr..
RSA 196/2017 Page 11 of 11