Delhi District Court
Ms. Neelam Ahuja vs R.K. Associates on 28 April, 2026
IN THE COURT OF MS. VRINDA KUMARI:
DISTRICT JUDGE (COMMERCIAL COURT)-03, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ No. : 665/2021
In the matter of :
MS. NEELAM AHUJA,
D/o. Late Shri O.P. Ahuja,
R/o. 6223, NW Helmsdale Way Port,
St. Lucie, Florida 34983 U.S.A.
through Sh. Gurnam Singh
S/o. Late Sh. Sardha Ram,
R/o. 22- Amrapali Cooperative Group Housing Society Limited,
56, 1 P Extension,
Delhi-110092 ....PLAINTIFF
Versus
1. R.K. ASSOCIATES
Through its Partner Mr Somen Coondoo,
Flat No. 1304, 13th Floor,
Hemkunt Tower,
Plot No. 98 Nehru Place,
New Delhi
2. MR. SOMEN COONDOO
S/o Shri P.L. Coondoo
r/o. M-30, Part II,
Greater Kailash,
New Delhi
....DEFENDANTS
CS DJ 665/2021 28.04.2026 Page no. 1 of 49
Ms. Neelam Ahuja vs. R.K. Associates
Date of e-filing : 18.09.2021
Date of Institution : 20.09.2021
Date when final arguments concluded : 17.04.2026
Date of Judgment : 28.04.2026
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit of the plaintiff against the defendant for recovery of possession of suit property and mesne profits.
PLAINT
2. The case of the plaintiff is that the defendants no.1 is a partnership firm and defendant no.2 is one of its Partner. They are in joint possession of the tenanted premises bearing Flat No. 1304 at 13th Floor (admeasuring 661 sq ft.) in Hemkunt Tower, situated at plot no. 98, Nehru Place, New Delhi.
3. Vide registered Lease Deeds, Late Sh. O.P. Ahuja, being owner of the premises and vide various MoUs, the plaintiff being the daughter and successor in interest of late Sh. O.P. Ahuja, leased out Cabin No. 1, 2, 3, 4, 5 and 6 built in the Flat no. 1304 to the defendants. The last MoU executed was dated 07.03.1991 in respect of Cabin No. 2 & 4. The total rent in respect of the entire premises was Rs. 13,200/- p.m. and was to be increased @ CS DJ 665/2021 28.04.2026 Page no. 2 of 49 Ms. Neelam Ahuja vs. R.K. Associates 20% every three years. The defendants initially made payment of the above aggregate rent, however, they have not paid the increased rent since the year 1993 and have continued to pay the rent at the fixed rate of Rs. 13,200/- p.m.
4. It is the case of the plaintiff that the rate of rent from 01.01.1993 to 31.12.1995 was Rs. 13,200/- p.m; from 01.01.1996 to 31.12.1998, it was Rs. 15,840/- p.m; from 01.01.1999 to 31.12.2001, it was Rs. 19,008/- p.m; from 01.01.2002 to 31.12.2004, it was Rs. 22,809.60 p.m and so on; and from 01.01.2020 till the date of filing of the present suit, it was Rs. 68,109.10 p.m. It is submitted that in sheer breach of terms and conditions of the rent arguments, the defendants have tendered fixed rent of Rs. 13,200/- p.m. which was not acceptable to the plaintiff. The defendants have lastly tendered rent @ Rs. 13,200/- vide two cheques dated 19.12.2018.
5. It is submitted that after the execution of the last MoU in respect of Cabin No.5, the defendants have raised partition between the cabins and have merged the 661 sq yards area into a single office in the year 1993.
6. It is further submitted that since January 1999, the defendant is in arrears of rent amounting to Rs. 1,15,18,256/- till December 2020. A separate suit has been filed by the plaintiff for recovery of arrears of rent. It is also submitted that for non payment of the agreed rent, the tenancy of the defendants stands terminated w.e.f 31.12.2020.
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7. It is further submitted that despite service of legal notice dated 05.02.2021, the defendants have not handed over vacant possession of the tenanted premises to the plaintiff and have also not cleared the arrears of rent. The defendants are now unauthorised occupants in the suit premises.
8. The plaintiff was, therefore, constrained to file the present suit for possession, mesne profits at the rate of market rent for use and occupation of the premises after 30.12.2020 till date of actual handing over of possession of the suit premised and costs.
WRITTEN STATEMENT
9. The defendants filed their Written Statement wherein they have controverted the averments made in the plaint. It is submitted that defendant no.1 is, in fact, a proprietorship concern of defendant no.2. Therefore, the present suit is defective. Further, the defendants were inducted as tenants in the year 1985 and continued to be the tenants/licensee till July 1996. After the death of Sh. O.P Ahuja in the year 1987 or 1988, the plaintiff received the rent till July 1996. It is submitted that the tenancy ceased to exist since August 1996 as neither any rent was ever received by the plaintiff from August 1996 till date. Now 25 years have elapsed. The tenancy was never renewed. The defendants continued to be in open and undisturbed possession of CS DJ 665/2021 28.04.2026 Page no. 4 of 49 Ms. Neelam Ahuja vs. R.K. Associates the suit property without paying any rent since August 1996. It is submitted that the possession of the defendants is hostile and adverse to the knowledge of the plaintiff as per the contention of the plaintiff herself in the suit.
10. It is submitted that the plaintiff has been sitting silent for more than 23 years itself shows adverse animus possession of the defendants. It is further submitted that as per the plaint, the plaintiff had instructed her attorney to file a suit for eviction against the defendants in the year 1998, thus, the plaintiff admitted adverse animus possession of the defendants which was in her knowledge since 1998.
11. It is further submitted that the plaintiff failed to file a suit for possession within a period of 12 years from the date when the possession of the defendants became adverse i.e. from August, 1996, therefore, present suit is barred under section 27 of the Limitation Act, 1963 and under Article 65 of the Limitation Act. It is further submitted that limitation for filing the suit for possession by a landlord against a tenant is 12 years when the tenancy is determined. The suit is, therefore, barred under Article 67 of the Limitation Act.
12. It is further submitted that the Special Power of Attorney in favour of Sh. Gurnam Singh is defective. The signatures of plaintiff on SPA are different from those on the MoUs relied upon by the plaintiff.
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13. It is further submitted that suit property should have been valued at its market value as per section 7 of the Court Fees Act 1870. Further, the plaintiff has also failed to produce any proof of ownership to the exclusion of other legal heirs of Late Sh. O.P. Ahuja.
14. It is further the case of the defendants that though Sh. O.P. Ahuja had executed registered Lease Deeds in respect of Cabin No. 5 (w.e.f 31.01.1985 to 31.01.1988) and No. 3 (w.e.f 01.10.1987 till 30.09.1990), unstamped and unregistered MoUs dated 22.07.1988 and 07.03.1991 and unstamped MoU dated 07.03.1991 were executed by plaintiff for Cabin Nos. 1,2,3 & 5. It is submitted that the defendants took possession of the remaining two Cabins (no. 4 & 6) also subsequently.
15. It is further submitted that the plaintiff has deliberately filed a separate suit for recovery of arrears of rent (CS DJ 686 of 2021) to confuse the Court and plaintiff has deliberately not disclosed since when she is not receiving the rent from the defendants and has suppressed the fact that she has not accepted the rent since May 1996.
REPLICATION
16. The plaintiff has denied the averments of the defendants and has reiterated its stand in the plaint.
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17. It is submitted that the defendants have concealed the fact that they have tendered rent of the suit premises upto September 2019. Now the defendants are estopped u/s 115 of the Indian Evidence Act, 1872 from raising the plea of adverse possession. It is only after September, 2019 that defendants stopped the payment of rent. It is also submitted that as per the documents on record including the Lease Agreement(s) and various letters of defendants no.2 on behalf of defendants no.1, status of defendants no.1 has been shown as a partnership firm. However, Sh. Somen Coondoo has been arrayed as defendants no.2 in his personal capacity as well.
ISSUES
18. On completion of pleadings, vide Order dated 15.02.2024, following issues were framed by my Ld. Predecessor :
"1. Whether the Plaintiff is entitled for a decree of possession against defendants in respect of the suit property being Flat No. 1304, 13 th Floor, Hemkunt Tower, Plot No. 98, Nehru Place, New Delhi? OPP
2. Whether the Plaintiff is entitled to decree of mesne profit at the market rate as claimed? (OPP)
3. Whether the Plaintiff has no right, title and interest over the suit property Flat No. 1304, 13th Floor, Hemkunt Tower, Plot No. 98, Nehru Place, New Delhi as the defendants have CS DJ 665/2021 28.04.2026 Page no. 7 of 49 Ms. Neelam Ahuja vs. R.K. Associates acquired the right, title and interest in the suit property by virtue of adverse possession? OPD
4. Whether the suit is barred by limitation? (OPD)
5. Whether The Special Power of attorney dated 04.10.2019 filed by the plaintiff is forged and fabricated? OPD
6. Whether the suit of the plaintiff is not properly valued for the purpose of the court fee and jurisdiction? OPD
7. Relief."
PLAINTIFF'S EVIDENCE
19. Plaintiff led PE in its favour and examined Sh. Gurnam Singh, SPA of the plaintiff as PW1. His affidavit in evidence is Ex.PW1/A. He proved true copy of the Special Power of Attorney dated 04.10.2019 as Ex.PW1/1 (OSR). The Site Plan of the tenanted premises is Ex.PW1/2. Copy of the registered lease deed dated 31.01.1985 is Ex.P-1 (OSR). Copy of the registered lease deed dated 08.09.1987 is Ex.P-2 (OSR). The copies of MOU dated 22.07.1988 are Ex.P-3 (OSR). The copies of the MOU dated 07.03.1991 are Ex.P-4 (OSR). The copies of the MOU dated 07.03.1991 are Ex.P-5 (OSR). Copy of the covering letter dated 10.11.1993 was exhibited as Ex.PW1/3 and later marked as Mark-A. Cheque No. 016857 datd 13.09.2008 drawn on Oriental Bank of Commerce is Ex.PW1/4 (OSR). Cheque No. CS DJ 665/2021 28.04.2026 Page no. 8 of 49 Ms. Neelam Ahuja vs. R.K. Associates 312944 dated 13.09.2008 drawn on State Bank of Mysore is Ex.PW1/5 (OSR). Covering letter dated 13.09.2008 is Ex.PW1/6 (OSR). Cheque No. 929119 dated 20.04.2016 drawn on State Bank of Mysore is Ex.PW1/7 (OSR). Cheque No. 071628 dated 20.04.2016 drawn on Oriental Bank of Commerce is Ex.PW1/8 (OSR) Covering letter dated 20.04.2016 is Ex.PW1/9 (OSR). Cheque No. 102988 dated 19.09.2016 drawn on Oriental Bank of Commerce is Ex.PW1/10 (OSR). Cheque No. 929149 dated 19.09.2016 drawn on State Bank of Mysore is Ex.PW1/11 (OSR). Covering letter dated 19.09.2016 is Ex.PW1/12 (OSR). Cheque No. 929174 dated 16.11.2016 drawn on State Bank of Mysore is Ex.PW1/13 (OSR). Cheque No. 103006 dated 16.11.2016 drawn on Oriental Bank of Commerce is Ex.PW1/14 (OSR). Covering letter dated 16.11.2016 is Ex.PW1/15 (OSR). Cheque No. 147184 dated 18.05.2017 drawn on State Bank of Mysore is Ex.PW1/16 (OSR). Cheque No. 103046 dated 18.05.2017 drawn on Oriental Bank of Commerce is Ex.PW1/17 (OSR). Covering letter dated 18.05.2017 is Ex.PW1/18 (OSR). Cheque No. 103056 dated 19.07.2017 drawn on Oriental Bank of Commerce is Ex.PW1/19 (OSR). Cheque No. 147190 dated 19.07.2017 drawn on State Bank of Mysore is Ex.PW1/20 (OSR). Covering letter dated 19.07.2017 is Ex.PW1/21 (OSR). Cheque No. 103063 dated 19.08.2017 drawn on Oriental Bank of Commerce is Ex.PW1/22 (OSR). Cheque No. 147192 dated 19.08.2017 drawn on State Bank of Mysore is Ex.PW1/23 (OSR). Covering letter dated CS DJ 665/2021 28.04.2026 Page no. 9 of 49 Ms. Neelam Ahuja vs. R.K. Associates 19.08.2017 is Ex.PW1/24 (OSR) Cheque No. 103069 dated 18.09.2017 drawn on Oriental Bank of Commerce is Ex.PW1.25 (OSR). Cheque No. 147193 dated 18.09.2017 drawn on State Bank of Mysore is Ex.PW1/26 (OSR). Covering letter dated 18.09.2017 is Ex.PW1/27 (OSR). Cheque No. 056500 dated 17.02.2018 drawn on State Bank of India is Ex.PW1/28 (OSR). Cheque No. 150798 dated 17.02.2018 drawn on Oriental Bank of Commerce is Ex.PW1/29 (OSR). Covering letter dated 17.02.2018 is Ex.PW1/30 (OSR). Cheque No. 766026 dated 15.02.2019 drawn on State Bank of India is Ex.PW1/31 (OSR). Cheque No. 172145 dated 15.02.2019 drawn on Oriental Bank of Commerce is Ex.PW1/32 (OSR). Covering letter dated 15.02.2019 is Ex.PW1/33 (OSR). Cheque No. 172148 dated 15.03.2019 drawn on Oriental Bank of Commerce is Ex.PW1/34 (OSR). Cheque No. 766036 dated 15.03.2019 drawn on State Bank of India is Ex.PW1/35 (OSR). Covering letter dated 15.03.2019 is Ex.PW1/36 (OSR). Cheque No. 172159 dated 17.05.2019 drawn on Oriental Bank of Commerce is Ex.PW1/37 (OSR). Cheque No. 766043 dated 17.05.2019 drawn on State Bank of India is Ex.PW1/38 (OSR). Covering letter dated 17.05.2019 is Ex.PW1/39 (OSR). Cheque No. 766056 dated 16.08.2019 drawn on State Bank of India is Ex.PW1/40 (OSR). Cheque No. 172167 dated 16.08.2019 drawn on Oriental Bank of Commerce is Ex.PW1/41 (OSR). Covering letter dated 16.08.2019 is Ex.PW1/42 (OSR). Copy of cheque no. 172136 CS DJ 665/2021 28.04.2026 Page no. 10 of 49 Ms. Neelam Ahuja vs. R.K. Associates dated 19.12.2018 drawn on Oriental Bank of Commerce is Ex.PW1/43 (OSR). Copy of cheque bearing no. 766014 datd 19.12.2018 drawn on State Bank of India is Ex.PW1/44 (OSR). Copy of letter dated 19.12.2018 is Ex.PW1/45. Copy of envelops through which the above said letter sent to Sh. Anil Gera the erstwhile power of attorney of the plaintiff containing the cheques for the rent is Ex. PW1/46 (OSR). True copy of Legal Notice dated 05.02.2021 is Ex.PW1/47 (OSR). Postal receipt and delivery proof are Ex.PW1/48 (colly) (OSR). Copies of the tax receipts are Mark B (Colly).
DEFENDANT'S EVIDENCE
20. Defendants led DE in its favour and examined Sh. Somen Coondoo, defendant no. 2 as DW1. His affidavit in evidence is Ex.DW1/A. He proved copy of GST Registration Certificate as Ex.DW1/1. Letter dated 09.09.2002 issued by Skipper Towers Private Limited is Ex.DW1/2 (OSR). Letter dated 09.09.2002 alongwith copies of cheques issued by defendant no. 2 are Ex.DW1/3 (OSR). Receipts of payment of Ground Rent of the Suit Property paid by the defendants from the period 2015 to 2021 are Ex.DW1/4 to Ex.DW1/10 respectively (OSR). Receipts (property tax) issued by the MCD are Ex.DW1/11 to Ex.DW1/19. Receipt dated 25.10.2004 is Ex.DW1/11 (OSR). Receipt dated 13.07.2006 is Ex.DW1/12 (OSR) Receipt dated 14.05.2007 is CS DJ 665/2021 28.04.2026 Page no. 11 of 49 Ms. Neelam Ahuja vs. R.K. Associates Ex.DW1/13 (OSR). Receipt dated 09.05.2008 is Ex.DW1/14. Receipt dated 18.06.2009 is Ex.DW1/15 (OSR). Receipt dated 07.06.2010 is Ex.DW1/16 (OSR). Receipt dated 23.06.2011 is Ex.DW1/17 (OSR). Receipt dated 30.06.2013 is Ex.DW1/18 (OSR). Printed Tax Receipt dated 28.07.2023 issued by the MCD is Ex.DW1/20. Original receipt-cum-challan dated 24.07.2023 towards payment of Gound Rent paid to the DDA is Ex.DW1/21.
21. I have heard the detailed final arguments on behalf of both the parties and have perused the record carefully including the written submissions as well as case laws relied upon by them.
DISCUSSION
22. During the course of final arguments, Ld. counsel for plaintiff relied upon the following Judgments:
(i) Md. Laiquiddin Vs Kamla Devi Mishra 2010 2 SCC 407.
(ii) Amonchit Suriya Kiran & Anr. V. National Restaurant & Ors. 2019 SCC OnLine Del 7469.
(iii) In Bhimappa And Ors. vs Allisab And Ors.
2006 SCC OnLine Kar 153: ILR 2006 Kar
3129
(iv) Janki Vashdeo Bhojwani and Ors. Vs.
Indusind Bank Ltd. and Ors. AIR (2005) SC
439; (2005) 2 SCC 217
CS DJ 665/2021 28.04.2026 Page no. 12 of 49
Ms. Neelam Ahuja vs. R.K. Associates
(v) Man Kaur (Dead) by Lrs. Vrs. Hartar Singh
Sangha (2010) 10 SCC 512. (para 11 & 12)
(vi) Kamal Taneja vs. Roshanlal and ors. 2019
SCC Online P&H 6598
(vii) Brij Narayan Shukla (D) Thr. Lrs. v. Sudesh
Kumar Alias Suresh Kumar (D) Thr. Lrs. &
Ors. [2024] 1 S.C.R. 60
(viii) Sohan lal vs. Sohan Lal Passi (deceased)
Thru LRs 2022:DHC:1934
(ix) Annakili v. A. Vedanayagam, 2007 (14) SCC
308
(x) Thakur Kishan Singh (dead) v. Arvind Kumar
[(1994) 6 SCC 591]
(xi) Om Prakash & Ors. Vs Prem Singh 2015:
DHC:10040
(xii) Gaya Parshad Dikshit vs Dr. Nirmal Chander
& Anr. 1984 (2) SCC 286 (288 C, D, E & F)
(xiii) Neelam Gupta & Ors Vs. Rajender Kumar
Gupta 2024 10 SCR 769
(xiv) Saroop Singh Vs. Banto 2005 8 SCC 330
(xv) P.T. Munichikkanna Reddy & Ors vs
Revamma And Ors. 2007 (6) SCC 59
(xvi) Grafitek International vs K.K. Kaura And
Ors. 96(2002) DLT 385
23. Ld. Counsel for defendants relied upon the following Judgments:
(i) R. V. Bhupal Prasad vs. State of A.P. and others (1995) 5 SCC 698 wherein it has been held that the tenancy on sufferance is CS DJ 665/2021 28.04.2026 Page no. 13 of 49 Ms. Neelam Ahuja vs. R.K. Associates converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted.
(ii) Maharashtra Rajya Veej Vitaran Company, Malkapur & Anr.
VS. Manoj Abarao Deshmukh & Anr 2015(3) Mh. L.J 459 wherein status of the appellants was considered to be that of a tenant at sufferance and of issuance notice by plaintiffs on 23.12.1992 and 27.02.2002 was held to be of no consequence as lease in question came to be determined by efflux of time on 10.04.1988.
(iii) Bisheshwar Nath vs. Kundan & Ors. ILR (1922) 44 All 583 wherein no rent was paid by tenant after expiration of tenancy with efflux of time. It was tenancy at sufferance. Period of lease expired in the year 1895. Suit for possession was filed by the lessor in 1919. The suit was held to be barred by limitation.
(iv) Manisha Mahendra Gala & Ors. vs. Shalini Bhagwan Avatramani (2024) 6 SCC 130
24. I have considered the above mentioned case laws carefully.
25. My issue wise findings are as follows:
ISSUE No.1:
"Whether the Plaintiff is entitled for a decree of possession against defendants in respect of the suit property being Flat No. 1304, 13th Floor, Hemkunt Tower, Plot No. 98, Nehru Place, New Delhi? OPP"
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26. While addressing final arguments on this issue, several aspects of the case have been referred to which I will deal with one by one.
Power of Attorney
27. In the amended plaint filed on 02.11.2021, PW-1/ SPA holder of plaintiff has mentioned in the verification clause that the contents of plaint from para 1 to 17 are correct and true to the best of his personal knowledge and on the instructions/information received from the plaintiff. It is further submitted that the contents of para 18 to 22 are believed to be true as per the legal advice received by him. Para 1 to 17 pertain to the facts related to the tenancy of the suit property for the period from 1985 till 31.12.2020.
28. In the initial plaint filed on 20.09.2021, the verification clause read as follows:
"Verified at Delhi on this 15th day of September, 2021 that the contents of plaint from para 1 to 17 are correct and true to the best of my knowledge derived from the records the case and the contents of para 18 to 22 I believed to be true as per the legal advice received by me. Nothing material has been concealed there from and no part of it is incorrect".
29. Vide Order dated 20.09.2021, my learned Predecessor pointed out the defect in the verification clause as it did not refer to the personal knowledge of the attorney of the plaintiff.
CS DJ 665/2021 28.04.2026 Page no. 15 of 49 Ms. Neelam Ahuja vs. R.K. Associates Accordingly, the plaintiff moved an application under Order VI Rule 17 CPC on 02.11.2021. No reason for mentioning ' correct and true to the best of my knowledge derived from the records' in the original plaint was averred in the application other than the grounds that this Court had noticed that the verification clause was not in consonance with law. Nevertheless, the application was allowed vide Order dated 08.11.2021 and the amended plaint filed on 02.11.2021 was taken on record.
In light of the above circumstances, following cross examination of PW1 gains importance:
"Q. Is it correct that you do not have any personal knowledge of the facts of this case as you have been constituted attorney in respect of the suit property only 2019?
Ans. I am aware of the facts of the case since long over the years and it is wrong to say that I don't have the personal knowledge about the case before getting the power of attorney on 04.10.2019.
Q. How do you aware about the facts of this present case prior to 04.10.2019?
Ans. Since, Mr. Sunil Ahuja is the brother of the plaintiff and he is my friend over the years, he often used to discuss with me about the facts of this case.
Mr. O.P. Ahuja father of the plaintiff, died in the year 1983. The legal heirs of Mr. O.P. Ahuja namely Smt. Shanta Ahuja, Mr. Sunil Ahuja had given 'No-Objection' in favour of the plaintiff, but not in my presence. I do not remember the exact date but I got to know about the No-Objection in favour of plaintiff, long back through the plaintiff and her brother.
Q. Can you produce the No-Objection given by other legal heirs of Late Shri O.P. Ahuja in favour of the plaintiff? Ans. It is not readily available with me today but I can search the records and produce the same. Q. Whether the MOU dated 22.07.1988 Ex.P-3 MOU dated 07.03.1991 Ex.P-4 and MOU dated 07.03.1991 CS DJ 665/2021 28.04.2026 Page no. 16 of 49 Ms. Neelam Ahuja vs. R.K. Associates Ex.P-5 were executed between plaintiff and defendant, in your presence?
(Question objected to by the Ld. Counsel for the plaintiff as the question is irrelevant on the grounds that the documents Ex.P-3, Ex.P-4 and Ex.P-5 are the admitted documents) (LC Observation: The objection shall be decided by the Hon'ble Court) Ans. No. At this stage the attention of the witness is drawn to para 8 of the affidavit of evidence Ex.PW1/4 and put the following question:
Q. Are you aware that what correspondence took place between the plaintiff and defendant when defendant did not pay the alleged increased rent in the year 1993? Ans. I was told by the plaintiff and her brother that the defendant had not paid the rent as per the MOU with them. Q. Whether the plaintiff and her brother also informed you about any correspondence which took place between them and the defendant in the year 1993? Ans. If, I remember correctly that they were getting the agreed rent as per the MOU from 1993 and 1995 and on increase of rent they simply kept on sending cheques for the rent which was supposed to enhance @20%. Q. Is it correct that disputes arose between the plaintiff and defendant in the year 1995 itself, when the defendant did not tender the increase rent?
Ans. I do not remember.
Q. Are you aware during the period between 1996 to 1998 whether the plaintiff informed the defendant that rent of Rs.13,200/- is not acceptable to her? Ans. I do not remember whether the plaintiff informed the defendant or not about the acceptance of rent of Rs.13,200/-. Q. Whether any legal notice was issued by the plaintiff to the defendants for payment of increased rent in the year 1995 to 1998?
Ans. I do not aware. (Vol. As advised to me by the plaintiff and her brother that the case file was handed over to one Mr. Anil Gera who was the attorney at that time). Q. When the last rent cheque was encashed by the plaintiff?
Ans. Since the case was being handled by Mr. Anil Gera the attorney of the plaintiff and I am not aware about the date of last cheque encashed by the plaintiff.
CS DJ 665/2021 28.04.2026 Page no. 17 of 49 Ms. Neelam Ahuja vs. R.K. Associates At this stage the attention of the witness is drawn to para 11 of the affidavit of evidence Ex.PW1/A and put the following question:
Q. How do you learn about the contents of para 11 of the affidavit of evidence Ex.PW1/A?
Ans. I was informed by the plaintiff and her brother about the said facts."
30. The above mentioned testimony of PW1 would show that he does not have the personal knowledge of the transactions involved in the present case. The facts that he has asserted in his affidavit in evidence are either based on the documents provided to him by the plaintiff or on the basis of his communication / discussion with the brother of the plaintiff. In fact, he has categorically stated that he had been informed by the plaintiff and her brother that defendant had not paid the rent as per MoU. He was also not aware whether any legal notice had been issued by the plaintiff to the defendant for payment of increased rent during the period from 1995 to 1998. He volunteered to explain that as informed /advised by the plaintiff and her brother, case was being handled by one Sh. Anil Gera, the previous attorney of the plaintiff.
31. In these circumstances, I shall consider whether the testimony of PW1 to the extent of the admitted documents can be relied upon or not.
32. Ld. counsel for the plaintiff has relied upon the following Judgments to show that PW1 could have deposed regarding all the facts asserted in his affidavit in evidence.
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(i) Bhimappa and Ors vs. Allisab and Ors 2006 SCC OnLine Kar 153 wherein it has been held by Hon'ble High Court of Karnataka as follows:
"15. Therefore, the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with."
(ii) Janki Vashdev Bhojwani and ors vs. IndusInd Bank Ltd and Ors AIR (2005) SC 439 wherein it was CS DJ 665/2021 28.04.2026 Page no. 19 of 49 Ms. Neelam Ahuja vs. R.K. Associates held by Hon'ble Supreme Court of India on the basis of the facts of the case that the question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross- examined on those facts which are to the personal knowledge of the principal.
(iii) Man Kaur (dead) by Lrs. Vs. Hartar Singh Sangha (2010) 10 SCC 512 wherein it has been held by Hon'ble Supreme Court of India as follows:
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
CS DJ 665/2021 28.04.2026 Page no. 20 of 49 Ms. Neelam Ahuja vs. R.K. Associates
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
CS DJ 665/2021 28.04.2026 Page no. 21 of 49 Ms. Neelam Ahuja vs. R.K. Associates It was reiterated by Hon'ble Supreme Court of India that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract.
33. On the other hand, the defendant has relied upon the following judgments in his favour :-
(i) Manisha Mahendra Gala & Ors vs. Shalini Bhagwan Avatramani (2024) 6 SCC 130 wherein it has been held by Hon'ble Supreme Court of India as follows:
"28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd.3, this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all (2005) 2 SCC 217 previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State of Maharashtra concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due CS DJ 665/2021 28.04.2026 Page no. 22 of 49 Ms. Neelam Ahuja vs. R.K. Associates knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much (2014) 11 SCC 790 before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala's. He was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted."
34. In light of the above said case laws, PW1 was competent to depose about the facts which were in his personal knowledge. Further, where a fact could be proved on the basis of documentary evidence alone, oral evidence in respect of that fact was not necessary. Thus, his testimony can be considered in respect of the documents which are admitted documents. The documents such as Lease/Rent Agreement dated 31.01.1985 (Ex.P1), Lease Agreement dated 08.09.1987(Ex.P2), Memorandum of Understanding dated 22.07.1988 (Ex.P3), CS DJ 665/2021 28.04.2026 Page no. 23 of 49 Ms. Neelam Ahuja vs. R.K. Associates Memorandum of Understanding dated 27.02.1989, Memorandum of Understanding dated 07.03.1991 (Ex.P4), Memorandum of Understanding dated 07.03.1991 (Ex.P5) are admitted documents. Even though twenty eight cheques and their thirteen covering letters (Ex.PW1/4 to Ex.PW1/45) have been denied by the defendant in their affidavit of Ad/denial of documents, no reason of such denial has been adduced. Eventually, in his cross- examination, defendant no.2/DW1 has admitted the documents Ex.PW1/4 to Ex.PW1/45 also. I will now discuss how these documents also stand admitted.
35. The cheques in question pertain to the period from September 2008 till August 2019. The defendant no. 2 has nowhere denied his signatures on these cheques. PW1 has specifically asserted in his affidavit in evidence that defendant issued the above said cheques with their respective covering letters in favour of the plaintiff and lastly tendered the rent vide cheque no. 172136 dated 19.12.2018 alongwith a covering letter dated 19.12.2018. During the cross-examination of PW1, the defendant has put a suggestion to PW1 that these cheques were never handed over to the plaintiff and they were also not towards any rent. This suggestion was denied by the plaintiff. In his cross-examination, however, DW1 Sh. Somen Coondoo deposed as follows:
"Q18. In response to question No. 15, you have wrongly stated that nobody was in touch with me from the plaintiff side after July, 1996. I put to you that your above statement CS DJ 665/2021 28.04.2026 Page no. 24 of 49 Ms. Neelam Ahuja vs. R.K. Associates is false because the cheques given by you from August, 1996 to December, 1999 were duly encashed by the plaintiff. What do you have to say ?
Ans. My response to question No. 15 is correct. All the cheques since August, 1996 to December, 1999 were not encashed. Again said no cheques were given by the Defendants to the plaintiff during such period. .
.
.
Q22. I put it to you that your answer in response to the question No.21 is false because you kept on issuing the cheques for rent in the name of Plaintiff with covering letters addressing to Mr. Anil Gera till December, 2019. What do you have to say?
Ans. My answer in response to question No.21 is not false and as stated before I tendered some cheques around September, 2008 just to check if they still have any interest in the property or not. They lost interest because they did not encash the cheques.
Q23. Have you written any letter or other communication to the Plaintiff or Mr. Anil Gera to enquire as to why the Plaintiff is not encashing the cheques of the Defendant for the rent of the suit property since January. 2000 to December, 2019 ?
Ans. Not written.
Yes. I have issued some cheques after September, 2008 just to reconfirm if they have interest in the property or they have abandoned.
Q24. Is it correct that the last cheques tendered towards rent were issued on 19.12.2018?
Ans. I do not remember the date.
(At this stage the witness has been shown the document Ex.PW-1/43 to Ex. PW-1/45 at page 54 and 55 of the documents filed alongwith plaint).
Q25. Is it correct that you had issued the document Ex.PW-1/43 to Ex.PW-1/45?
Ans It is correct.
(At this stage the witness has been shown the document Ex. PW-1/4 to Ex. PW-1/42 at page 1 to 39 of the Plaintiff CS DJ 665/2021 28.04.2026 Page no. 25 of 49 Ms. Neelam Ahuja vs. R.K. Associates documents filed on 20.03.2023). Q26. Is it correct that you had issued the document Ex.PW-1/4 to Ex.PW-1/42? Ans. Yes, it is correct.
Q27. Since you have tendered the rent of the suit property till December, 2019. is it correct that the tenancy was continuing till December, 2019?
Ans. No, I was just trying to reconfirm their interest on this abandoned property."
36. The above said cross-examination of DW1 would show that issuance of the cheques with covering letters (Ex.PW1/4 to Ex.PW1/45) by defendant no. 2 on behalf of defendant no.1 firm is an admitted fact. In the Written Statement, the defendants have mentioned that no rent was ever received by the plaintiff since August 1996. The cross-examination of DW1 would show that this assertion was made on account of plaintiff not encashing those cheques.
37. Thus, the MoUs and the cheques with their covering letters being admitted documents do not require personal knowledge of PW1 and can be proved by him. The legal notice dated 05.02.2021 (Ex.PW1/47) was issued on behalf of the plaintiff after SPA had already been executed in favour of PW1 by plaintiff. Personal knowledge of PW1 in respect of this legal notice has not been questioned by the defendants during his cross-examination.
Whether Partnership firm (defendant no.1) converted into a Proprietorship concern.
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38. The contention of the defendant in the WS that the defendant no.1 is a proprietorship concern of defendant no.2 whereas in the plaint, plaintiff has arrayed defendant no.1 as a partnership firm and defendant no.2 as its partner. It is submitted that the present suit is defective and is liable to be dismissed.
39. The admitted Lease Deeds Ex.P1 and Ex.P2 dated 31.01.1985 and dated 08.09.1987 respectively were executed between Sh. O.P. Ahuja (predecessor-in-interest of the plaintiff) and Sh. Somen Coondoo, partner of R.K. Associates. In the admitted MoUs, defendant no.2 has been mentioned as Mr. Somen of R.K. Associates. In some of the admitted MoUs, tenant has been mentioned as R.K. Associates. There is nothing on record that would show that the defendant no.2 ever informed the plaintiff regarding the death of his partner and conversion of defendant no.1 into a Proprietorship concern. Argument of defendant no.1 is that in the twelve out of the thirteen cheques (part of Ex.PW1/4 to Ex.PW1/45), the plaintiff has mentioned himself as proprietor of R.K. Associates. The covering letters sent by the defendant to the plaintiff alongwith these cheques would show that he has mentioned himself as authorised signatory of R.K. Associates and not as a proprietor. It is further noted that the cheque bearing no. 016857 dated 13.09.2008 (Ex.PW1/4) has been signed by defendant no.2 as authorised signatory of R.K & Associates whereas the cheque bearing no. 312944 dated 13.09.2008 (Ex.PW1/5) has been signed as CS DJ 665/2021 28.04.2026 Page no. 27 of 49 Ms. Neelam Ahuja vs. R.K. Associates proprietor of R.K. Associates. Thus defendant no. 2 has signed two cheques on the same day in different capacities.
40. In his Written Statement, the defendants have avoided to say as to when did the defendant no.1 partnership firm convert into a proprietorship concern. There is no assertion in this respect in the affidavit in evidence of DW1. During the course of final arguments, Ld. counsel for defendants submitted that on account of death of a partner, the partnership firm automatically gets dissolved u/s 42 (c) of the Indian Partnership Act, 1932. No document at all has been placed on record by the defendant to show when did the other partner of defendant no.1 partnership firm expire. The defendants have also not placed on record any partnership deed to show what the constitution of partnership firm was and how many partners were there in the said firm. The Court, therefore, does not find any ground to hold that the present suit filed by the plaintiff against defendant no.1 partnership firm and defendant no.2 is defective. Admitted Documents of plaintiff
41. Before analyzing the admitted documents, I would discuss their contents.
42. Ex.P1 is the registered Lease Deed dated 31.01.1985 vide which one cabin in property no. 1304-98, Nehru Place was leased out to defendant no.2, partner of R.K. Associates on monthly rent of Rs. 2,100/-. It was for a period of three years terminating on 31.01.1988. A sum of Rs. 12,000/- was deposited CS DJ 665/2021 28.04.2026 Page no. 28 of 49 Ms. Neelam Ahuja vs. R.K. Associates by lessee as security with the lessor which was refundable at the time of vacation of the property. In clause 13 of the Lease Deed, it has been specifically mentioned as follows:
"13. The lease is for a fixed period of three years. It is hereby explicitly agreed by the Lessee that on every successive renewal of the Lease, the rent shall be increased by 25% of the last rent paid after a period of every three years."
43. Ex.P2 is a registered Lease Deed dated 08.09.1987 between lessor Sh. O.P. Ahuja and lessee Sh. Somen Coondoo, partner of R.K. Associates in respect of Cabin no.3 in property No. 1304-98, Nehru Place, New Delhi. It was for a period of three years terminating on 30.09.1990. Monthly rent in sum of Rs. 2,100/- was payable by the lessee to the lessor. Defendant no.2 also deposited security amount in sum of Rs. 12,500/- refundable at the time of vacation of the suit property. In clause 13 of the Lease Deed, it has been specifically mentioned as follows:
"13. The lease is for a fixed period of three years. It is hereby explicitly agreed by the Lessee that on every successive renewal of the Lease, the rent shall be increased by 20% of the last rent paid after a period of every three years. A fresh lease deed will be executed after expiry of every three years of this lease."
44. Ex.P3 is MoU dated 22.07.1988 between defendant no.2 (Mr. Somen of R.K. Associates) and the plaintiff Ms. Neelam Ahuja. It is a handwritten document. Ms. Neelam Ahuja is mentioned as owner of 1304, 98 Nehru Place, New Delhi. It is in CS DJ 665/2021 28.04.2026 Page no. 29 of 49 Ms. Neelam Ahuja vs. R.K. Associates respect of Cabin No. 1, 3 and 5 in the said property. It is mentioned that defendant no.2 will be taking possession of Cabin no.1 w.e.f 01.08.1988. It is specifically mentioned that the terms for Cabin No. 1 will be the same as the terms stated in the leases for Cabin No.3 and Cabin No. 5 other than the following exceptions:
"1) Leases to be renewed from 1st October 1990 @ 20% or a rate mutually agreed by both parties at that time.
2) Security of all three cabins to total Rs. 36,000/- by 1st October 1989 i.e. Rs. 11,500/- to be paid by 1st October 1989.
3) Rent for all three cabins to total Rs. 6,400/- per month. Rent for phone 6411581 shall be borne by the landlord/landlady.
4) Lease for cabin no.1 shall be signed at the time the other two leases are renewed."
45. MoU dated 27.02.1989 is also a handwritten document titled as 'Nehru Place Cabins No. 1, 3 and 5 Rented to R.K. Associates'. This MoU talks about increase in rent of Cabin No.1, 3 and 5. The part of this MoU titled as 'Nehru Place Cabin No. 4 Rented to Int Cargo' pertains to Cabin no. 4. It is mentioned that rent for Cabin No.1 shall be increased in October 1990 as follows:
"Increase 20% = 440 + 2200 = 2660 OR Increased 15% = 330 + 2200 = 2530 + They pay* phone rent *Phone no. 6411581 shared by Cabin 1 and 5".
CS DJ 665/2021 28.04.2026 Page no. 30 of 49 Ms. Neelam Ahuja vs. R.K. Associates
46. Regarding cabin no. 5, it is mentioned in the MoU dated 27.02.1989 that it was mutually agreed on 22.07.1988 that lease would be renewed on 01.10.1990 with an increase of 20%. It is mentioned that hence rent due on 1st October 1990 will be Rs. 2520/- for cabin no. 5 OR increase by 15% i.e. Rs. 315 (Rs.2415) total and they pay phone rent. Regarding cabin no. 4, it is mentioned that lease seems to have been renewed for the period from 10.07.1989 to 09.07.1990. The rent of Rs. 1,770/- per month was increased by 25% and increased rent in sum of Rs. 2,212.50 was payable from July 1990 and complete phone bill was also payable. Regarding Cabin No. 4, it is mentioned that Lease seems to have been renewed for the period from 10.07.1989 to 09.07.1990. The current rate of rent of Rs. 1,770/- per month was to be increased by 25% and rent payable w.e.f July 1990 was Rs. 2,212.50. Phone bill was also payable. It is also mentioned that phone no. 6417221 was used only by Int Cargo. It is noted that this MoU dated 27.02.1989 does not bear signatures of any party but is an admitted document.
47. Ex.P4 is a handwritten MoU dated 07.03.1991. It pertains to Cabin No.1, 3 and 5 and was executed between plaintiff and defendant no.2. It specifically acknowledges the plaintiff as landlady of the defendants. It further mentions that lease rent is to be renewed from 01.07.1991 to Rs. 6,750/- for a period of one year i.e. till 01.07.1992. Lease was agreed to be signed on 01.07.1992 with an increased rent of Rs. 7000/- for a period of CS DJ 665/2021 28.04.2026 Page no. 31 of 49 Ms. Neelam Ahuja vs. R.K. Associates three years. It was agreed that at the end of three years, rent would be increased by 15% to 20% or as mutually agreed.
48. Ex.P5 is a handwritten MoU dated 07.03.1991 executed between defendant no.2 and the plaintiff. It is in respect of cabin No. 2. The plaintiff, her assignee, successors, L.Rs are mentioned as landlord/landlady in respect of tenancy of cabin no.2. Lease rent was agreed to be Rs. 2,000/- for a period of one year commencing on 07.03.1991 and ending on 28.02.1992. If the tenant desired to continue occupation of this cabin, the rent was to be increased to Rs. 2,200/- for a period mutually agreed upon. It talks of security deposit of Rs. 5,000/- to be paid immediately and another sum of Rs. 5,000/- was to be paid on 28.02.1992 if the rental agreement was renewed. It also mentions that the defendant no.2 took possession of cabin No. 2 on 07.03.1991.
49. As discussed in preceding paragraphs, 28 cheques and 13 covering letters (Ex.PW1/4 to Ex.PW1/45) are also admitted documents. The Covering letter Ex.PW1/45 shows that defendant no. 2 tendered total rent in sum of Rs. 13,200/- to the plaintiff in the month of December, 2018. The amount of Rs. 13,200/- includes rent of Rs. 5,200/- towards Cabin nos. 2,4 and 6 and rent in sum of Rs. 8,000/- towards Cabin nos. 1, 3 and 5. Ex.PW1/31 to Ex.PW1/42 are the cheques with their covering letters issued by defendants during the period from 15.02.2019 till 16.08.2019. These cheques and covering letters pertain to the CS DJ 665/2021 28.04.2026 Page no. 32 of 49 Ms. Neelam Ahuja vs. R.K. Associates rent to the tune of Rs. 13,200/- p.m. towards Cabin nos. 1,2,3,4, 5 and 6 for the months of February 2019, March 2019, May 2019 and August 2019.
50. Perusal of the admitted MoUs would show that they pertain to cabin nos. 1,2,3,4 and 5. These documents further show that fresh Lease Deeds were to be executed qua the tenancy in these cabins and percentage increase in rent was yet to be finalized. For eg, in Ex.P3, it is mentioned "lease to be renewed from 1st October 1990 @ 20% or a rate mutually agreed by both the parties at that time." MoU dated 27.02.1989 also talks about increase of rent by 20% or by 15% plus charges of phone rent. Ex.P4 mentions increase of rent by 15% to 20% or as mutually agreed between the parties. Ex.P5 mentions that in case tenant desired to continue occupation of the cabin after 28.02.1992, rent will be increased to Rs. 2,200/- for a period mutually agreed upon. These stipulations in MoUs show that the rate of increase in rent was yet to be finalized. Further, agreed stipulations are different for each of the cabins. What was the final understanding or Agreement between the parties pursuant to these MoUs has not been proved. To prove the circumstances as to why fresh lease deeds were not executed and what the final agreement between the parties qua the rate of rent for the six cabins was, either the previous General Attorney of the plaintiff or the plaintiff herself should have entered the witness box. All that the admitted documents of the plaintiff prove is that the defendants tendered CS DJ 665/2021 28.04.2026 Page no. 33 of 49 Ms. Neelam Ahuja vs. R.K. Associates the rent @ Rs. 13,200/- p.m. for all the six cabins till August 2019. The plaintiff accepted these cheques without demur. Merely because the plaintiff chose not to or could not encash these cheques for any reason whatsoever, it does not prove that remittance of rent in sum of Rs. 13,200/- for the six cabins by the defendants was objected to by the plaintiff. Thus, the plaintiff not only remained quiet for a very long time on the point of increase in rent and accepted the cheques of defendant without demur but also did not get fresh lease deeds executed.
51. Now I shall consider the status of the defendants in the suit property.
Tenant Holding Over
52. Section 116 of Transfer of Property Act, 1882 reads as follows:
"116. Effect of holding over If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lessee is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
Illustrations
(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month to month.
CS DJ 665/2021 28.04.2026 Page no. 34 of 49 Ms. Neelam Ahuja vs. R.K. Associates
(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A's assent. B's lease is renewed from year to year."
53. As per the defendants, they did not pay rent since August 1996. There is nothing on record to show whether or not the defendants continued to pay rent during the period from 1996 till 2007. Plaintiff has, however, placed on record 28 cheques issued by the defendants during the period from September 2008 till August 2019. Neither the plaintiff nor the defendants have produced their respective Bank Account Statements to show whether cheques other than the 28 cheques for the above said period of 11 years were or were not issued by the defendants and were or were not encashed by the plaintiff. Nothing has been placed on record to show that the plaintiff ever made her intention to discontinue tenancy clear to defendant before 05.02.2021 when the legal notice Ex.PW1/47 was got issued by her against the defendants. The postal receipts and tracking report (Ex.PW1/48 and Ex.PW1/49) show that the legal notice was served upon the defendants. The original cheques produced by the plaintiff do show that the defendants remitted the rent vide cheques during the above said period and these cheques were accepted by the plaintiff. Even though, the plaintiff has mentioned in legal notice Ex.PW1/47 that she did not accept rent but it is manifest from the record that the cheques were accepted by the plaintiff through previous attorney and that her intention to CS DJ 665/2021 28.04.2026 Page no. 35 of 49 Ms. Neelam Ahuja vs. R.K. Associates discontinue tenancy was never conveyed to the defendants before 05.02.2021. In the covering letter dated 16.08.2019, defendant no.2 (as an authorized signatory) has categorically mentioned tendering of rent for the month of August 2019 after deducting Ground Rent paid by him.
54. In Nand Ram (dead) through Legal Representatives and Others vs. Jagdish Prasad (Dead) through Legal Representatives (2020) 9 SCC 393, Hon'ble Supreme Court of India has placed reliance upon MEC (India)(P) Ltd vs. Inder Maira 1999 SCC OnLine Del 422 wherein it has been held as follows:
"48. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlord's title and his (tenant's) liability to pay mesne profits for the use and occupation of the property.
49. To sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to-month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year CS DJ 665/2021 28.04.2026 Page no. 36 of 49 Ms. Neelam Ahuja vs. R.K. Associates but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to- month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month."
55. Thus the act of acceptance of cheques (admitted documents) towards rent by the plaintiff brings the present case within the ambit of Section 116 of Transfer of Property Act, 1882.
56. The present case, therefore, squarely falls within the ambit of Section 116 of Transfer of Property Act, 1882. After expiry of the lease deeds and also of the period of MoUs, the tenancy of the defendants became a month to month tenancy.
Site plan
57. In the affidavit of Ad/denial, the defendants have denied the site plan but there is no explanation as to how this site plan is incorrect. The Court has no hesitation in relying upon the site plan (Ex.PW1/2) of the plaintiff.
58. In view of the above discussion, the issue no.1 is decided in favour of the plaintiff.
ISSUE NO. 3CS DJ 665/2021 28.04.2026 Page no. 37 of 49 Ms. Neelam Ahuja vs. R.K. Associates "Whether the Plaintiff has no right, title and interest over the suit property Flat No. 1304, 13th Floor, Hemkunt Tower, Plot No. 98, Nehru Place, New Delhi as the defendants have acquired the right, title and interest in the suit property by virtue of adverse possession? OPD"
59. Onus to prove this issue was on the defendants.
60. As already discussed in the preceding paragraphs under Issue no.1, the status of the defendants in the suit property was that of tenant holding over. The claim of the defendants that he was in fact tenant at sufferance does not hold as the cheques issued by him towards rent till August, 2019 were accepted by the plaintiff even though she did not encash them. Simpliciter non- encashment of the cheques issued by tenant in favour of landlady towards payment of rent without any manifest intention to discontinue the tenancy would not automatically convert the possession of the tenant into a hostile possession. The Court is convinced that where the defendants have categorically mentioned in the covering letters issued alongwith the cheques till August 2019 that the cheques were being issued in favour of the plaintiff towards payment of rent of the six cabins in the suit property, the principle of adverse possession cannot be invoked. The act of tendering rent as a tenant shows that the continued possession of the suit property by the defendants was neither openly hostile nor was it in denial of the plaintiff's title. The averment in the plaint that in the year 1998, plaintiff had instructed the previous attorney to file a suit for getting the CS DJ 665/2021 28.04.2026 Page no. 38 of 49 Ms. Neelam Ahuja vs. R.K. Associates premises vacated is of no consequence so far as the issue of adverse possession is concerned.
61. In Judgment dated 07.12.2010 of Hon'ble Supreme Court of India in Civil Appeal No. 6039 of 2003 titled as Chatti Konati Rao and Ors vs. Palle Venkataka Subba Rao , it has been held as follows:
"12. We have bestowed our thoughtful consideration to the submission advanced and we do not find any substance in the submission of Mr. Bhattacharya. What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows :
"20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and CS DJ 665/2021 28.04.2026 Page no. 39 of 49 Ms. Neelam Ahuja vs. R.K. Associates since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows :
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128]"
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the CS DJ 665/2021 28.04.2026 Page no. 40 of 49 Ms. Neelam Ahuja vs. R.K. Associates title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law."
62. In Judgment dated 22.08.2006 of Hon'ble Supreme Court of India in Appeal (Civil) No. 3594 of 2006 titled as T. Anjanappa and Ors vs. Somalingappa and Anr, it has been held that the concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established CS DJ 665/2021 28.04.2026 Page no. 41 of 49 Ms. Neelam Ahuja vs. R.K. Associates that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed.
63. In the present case, the defendants have not led any specific evidence to establish animus possidendi.
64. In light of above discussion, the Court is convinced that the possession of the defendants in the suit property was not adverse but it was permissive. The issue is decided against the defendants.
ISSUE NO. 4"Whether the suit is barred by limitation? (OPD)"
65. The onus to prove this issue was on the defendants.
66. As discussed in the preceding paragraphs, the tenancy of the defendants, after the expiry of Lease Deeds (Ex.P1 & Ex.P2) and also the MoUs (Ex.P3 to Ex.P5), was a month to month tenancy and status of the defendants in the suit property was that of a tenant holding over. They continued to tender rent by way of cheques till August 2019. The tenancy of the defendants was terminated by issuance of legal notice dated 05.02.2021 (Ex.PW1/47). Even otherwise, it has been held in Nopany Investments (P) Ltd vs. Santokh Singh (HUF) (2008) 2 SCC 728 that it is well settled that filing of an eviction suit under the CS DJ 665/2021 28.04.2026 Page no. 42 of 49 Ms. Neelam Ahuja vs. R.K. Associates general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in V. Dhanapal Chettiar vs. Yesodai Ammal (1979) 4 SCC 214: AIR 1979 SC 1745.
67. In Judgment dated 09.10.2015 of Hon'ble High Court of Delhi in RFA (COMM) 503/2025 & CM APPL. 52643/2025 titled as Naseem Ahmad vs. Deepak Singh , it has been held as follows:
"55. The Supreme Court in Nopany Investments (P.) Ltd. v. Santokh Singh (Supra) has held that, in the context of tenancy for commercial purposes, theservice of notice under Section 106 of TPA is a mandatory condition that precedes the termination. However, it is further clarified that the institution of a suit for possession itself operates as a notice to quit, satisfying the statutory requirement under Section 106 TPA."
68. In these circumstances, since the tenancy in question is a month to month tenancy and the present case also falls within the ambit of section 116 of the Transfer of Property Act, 1882, the present suit filed on 20.09.2021 is well within the period of limitation.
69. The issue is, accordingly, decided against the defendants.
CS DJ 665/2021 28.04.2026 Page no. 43 of 49 Ms. Neelam Ahuja vs. R.K. Associates ISSUE NO. 5 "Whether The Special Power of attorney dated 04.10.2019 filed by the plaintiff is forged and fabricated? OPD"
70. The onus to prove this issue was on the defendants.
71. In para 18 of the WS, the defendants have averred as follows:
"18. Besides above, it is apparent from the naked eye that the signatures of the plaintiff on the alleged Special Power of Attorney is different from the MOU's filed by the plaintiff herself. The plaintiff is called to produce the original of the said Power of Attorney and same be sent to CFSL for comparison and if found forged, strict action as per the law be taken including but not limited to the proceedings under Section 340 Cr.Pc. be initiated against the plaintiff for filing forged and fabricated document before this Hon'ble Court."
72. During the cross-examination of PW1, however, the defendants did not put even a single material question to the witness to the effect that the Power of Attorney in his favour is forged and fabricated one or that signatures of the plaintiff on these documents do not match.
73. The cross-examination of PW1 by the defendants in respect of the Special Power of Attorney (Ex.PW1/1) is as follows:
"... I know the plaintiff for the last 30 years. The Plaintiff is sister of my friend's Sh. Sunil Ahuja. The Special Power Attorney dated 04.10.2019 Ex.PW-1/1 was signed by the Plaintiff in my presence and at that time she was present in India.
CS DJ 665/2021 28.04.2026 Page no. 44 of 49 Ms. Neelam Ahuja vs. R.K. Associates Q. Is it correct that no witness were present at the time of execution of Special Power Attorney dated 04.10.2019 Ex.PW-1/1?
Ans. If I remember correctly her brother namely Sunil Ahuja was present at the time of execution of Special Power Attorney dated 04.10.2019.
Objected to by the Ld. Counsel for the Plaintiff on the grounds that the question is vague for the reason that witness is not mentioned in the SPA.
LC Observation: Objection shall be decided by the Hon'ble Court.
At this stage the attention of the witness is drawn on First Recital of SP dated 04.10.2019 and pointed out that the partition suit being CS No. 194 of 2016 pending before Additional District Judge. Tis Hazari Court does not pertain to the suit property in the present case. The witness replied that the case pertains to their family property of Ms. Neelam Ahuja and Mr. Sunil Ahuja being the member of their family."
74. There is not even a single suggestion in the above said cross-examination that the signatures of the plaintiff on the SPA are forged signatures or that the signatures on MoUs and the SPA have not been appended by the same person.
75. The comparison between the signatures of the plaintiff on the photocopies of both the pages of SPA (Ex.PW1/1) and the MoUs would show that difference in signatures is not remarkable. It cannot be lost sight of the fact that the MoUs were executed in the years 1988 and 1991 whereas the SPA in favour of PW1 was executed in October 2019. It is also apt to note that at the time of recording of evidence of PW1, original SPA and original MoUs were produced. Signatures of plaintiff on these originals must positively have been more clear and pronounced.
CS DJ 665/2021 28.04.2026 Page no. 45 of 49 Ms. Neelam Ahuja vs. R.K. Associates Defendants had the opportunity to compare the original signatures and confront the witness with discrepancy in signatures if at all it existed. It was not done. In these circumstances, a bald suggestion towards the end of the cross- examination of PW1 that the Power of Attorney in favour of PW1 is a forged and fabricated one is not sufficient to prove the defence of the defendants.
76. The issue is decided against the defendants.
ISSUE NO. 6"Whether the suit of the plaintiff is not properly valued for the purpose of the court fee and jurisdiction? OPD"
77. Onus to prove this issue was on the defendants.
78. In para 22, 23 and 24 of the plaint, it has been averred as follows:
"22. That since the rent for the preceding year as per MOU agreed to pay the instant suit is valued to Rs. 8,17,310/- (Eight Lakhs Seventeen Thousand Three Hundred Ten) for the relief of recovery of possession and Rs. 7,00,000/- approximately for the relief of mense-profit.
23. The requisite court fee for both the relief of Rs. 19,680/- (Nineteen Thousand Six Hundred Eighty) has been paid.
24. The plaintiff seeks leave of this Hon'ble Court for payment of additional court fee if it is found deficit."
79. The contention of the defendants in the Written Statement is that the present suit should be valued as per section 7 of the CS DJ 665/2021 28.04.2026 Page no. 46 of 49 Ms. Neelam Ahuja vs. R.K. Associates Court Fees Act, 1870 and in a manner specified for the recovery of house and gardens i.e. according to the market value of the suit property. Ld. counsel for the defendants has based his arguments on the premise that the defendants are tenants in sufferance which does not create the relationship of landlord and tenant and, therefore, the suit must be valued at the market value of the suit property. It has already been held in the preceding paras that the status of defendants in the tenanted premises is that of tenants holding over and not tenants at sufferance. It has also been held that the tenancy is a month to month tenancy. In such circumstances, the Court is unable to find any fault in the valuation of the suit by the plaintiff.
80. The issue is decided against the defendants.
ISSUE NO.2:
"Whether the Plaintiff is entitled to decree of mesne profit at the market rate as claimed? (OPP)"
81. The onus to prove this issue was on the plaintiff.
82. Since the plaintiff has proved Issue no. 1 in her favour and the defendants could not prove the Issue nos. 3,4, 5 and 6 in their favour, plaintiff is entitled to grant of mesne profits.
83. As per plaintiff's own case, the defendants have been paying rent at the rate of Rs. 13,200/- per month from 1993 till August 2019. Above discussion would show that the plaintiff CS DJ 665/2021 28.04.2026 Page no. 47 of 49 Ms. Neelam Ahuja vs. R.K. Associates accepted the rent during this period without any protest. For 26 years, the plaintiff did not assert her right towards the increased rent. In such circumstances, the Court is not inclined to grant mesne profits at market rent. Mesne profits @ Rs. 13,200/- p.m. w.e.f 05.02.2021 (date of issuance of legal notice for termination of tenancy) till the date of filing of the present suit i.e. 23.09.2021 is granted in favour of plaintiff and against the defendants. Thereafter, mesne profits with 10% annual increase w.e.f 23.09.2021 till recovery of possession of the suit property are also granted in favour of the plaintiff and against the defendants.
RELIEF
84. In light of the above discussion, decree of possession of the suit property bearing no. 1304, 13th Floor (measuring 661 sq ft) , Hemkunt Tower, 98 Nehru Place, New Delhi as shown in the site plan Ex.PW1/2 is passed in favour of plaintiff and against the defendants. The defendants shall handover the vacant, peaceful, physical possession of the suit property to the plaintiff within 45 days from today. The suit is also decreed in favour of the plaintiff and against the defendants for recovery of mesne profits @ Rs. 13,200/- per month w.e.f 05.02.2021 to 23.09.2021 and thereafter with 10% increase w.e.f 23.09.2021 with further annual increase of 10% till recovery of possession of the suit property. In the peculiar facts of the case, parties shall bear their own costs. CS DJ 665/2021 28.04.2026 Page no. 48 of 49 Ms. Neelam Ahuja vs. R.K. Associates
58. Decree sheet be prepared.
59. File be consigned to Record Room after due compliance.
PRONOUNCED IN OPEN COURT ON THIS 28 th DAY OF APRIL 2026. Digitally signed by VRINDA VRINDA KUMARI KUMARI Date:
2026.05.02 17:38:02 +0530 (VRINDA KUMARI) District Judge(Commercial Courts)-03, SED/Saket Courts/Delhi (bs) CS DJ 665/2021 28.04.2026 Page no. 49 of 49 Ms. Neelam Ahuja vs. R.K. Associates