Delhi District Court
Smt. Phool Wati W/O Late Sh. Ram Dass ... vs Smt. Neelam W/O Late Sh. Jai Prakash on 22 September, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI
CS DJ No. 622/2018
Sh. Ram Dass Sagar (since deceased)
through his Legal Heirs
1. Smt. Phool Wati W/o Late Sh. Ram Dass Sagar
2. Sh. Vinod Kumar S/o Late Sh. Ram Dass Sagar
3. Smt. Pushpa Rani D/o Late Sh. Ram Dass Sagar
(Being mentally retarded represented through
her guardian/mother Smt. Phool Wati)
All R/o: 16/715-E, Padam Sngh Road,
Bapa Nagar, Karol Bagh,
New Delhi - 110005
4. Smt. Chanchal Bala D/o Late Sh. Ram Dass Sagar
W/o Sh. Subhash Chand
R/o: D-90, Nawada Housing Complex,
Uttam Nagar, New Delhi - 110059
5. Smt. Kiran Bala D/o Late Sh. Ram Dass Sagar
W/o Sh. Brijpal Singh
R/o: Gali No. 1, LTC Road, Sidarth Nagar,
Saharanpur, Uttar Pradesh
6. Smt. Anuradha D/o Late Sh. Ram Dass Sagar
R/o: House No. 12, Ghasi Pura Extension,
Nagli Dairy, New Delhi - 110043
7. Smt. Jai Mala D/o Late Sh. Ram Dass Sagar
W/o Sh. Lalit
R/o: A-1/259, Sector-4, Rohini, New Delhi
.......... Plaintiffs
Versus
Smt. Neelam W/o Late Sh. Jai Prakash
R/o: Flat No. 110-A, Ground Floor,
Sunlight Colony, New Delhi - 110014
.......... Defendants
CS DJ No. 622/2018 page No. 1 of 32
Ram Dass Sagar (since deceased), through his LRs vs. Neelam
First date before this Court: 25.04.2018
Date of Decision: 22.09.2021
JUDGMENT :
1. This Suit for Recovery of Possession and Recovery of Arrears of Rent of Rs. 1,95,333/- and for Recovery of Mesne Profits, Damages and Permanent Injunction has been filed by the plaintiff, since deceased, against the defendant.
2. The facts in brief are that plaintiff, since deceased, was allotted Flat No. 110-A, Ground Floor, Sunlight Colony, New Delhi by the DDA on 13.05.1974 in regard to which Conveyance Deed has been executed on 17.08.2016. It is submitted that the defendant was inducted as tenant vide oral tenancy in the suit premises for residential purposes in the month of July, 2014 on monthly rent of Rs. 10,000/- per month excluding water and electricity charges for 11 months w.e.f. 01.07.2014. It is claimed that the defendant paid rent upto 13.04.2016 @ Rs. 10,000/- per months, which is established from the handwritten rent receipts/ diary issued by the defendant to the plaintiff, but on expiry of 11 months the defendant failed to vacate the suit property. The Legal Notice dated 18.10.2017 was served upon the defendant to terminate her tenancy and for demanding user and occupation charges @ Rs. 15,000/- per month. Another Legal Notice dated 24.03.2018 was served calling upon the defendant to vacate the premises or to pay the damages, despite which he she failed to either vacate or to pay the damages. Hence, the present suit has been filed for Recovery of Possession of the suit premises, Recovery of Arrears of Rent in the sum of CS DJ No. 622/2018 page No. 2 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam Rs. 1,95,333/- w.e.f. 14.04.2016 to 30.11.2017 @ Rs. 10,000/- per month and for Recovery of Mesne Profits/Damages @ Rs. 15,000/- per month w.e.f. 01.12.2017 till the possession is handed over. In addition thereto, Relief of Permanent Injunction is sought for restraining the defendant from creating any third party interest in the suit premises.
3. The defendant in her written statement took the preliminary objections that the plaintiff does not have any right to file the present suit. It is claimed that the suit has not been properly valued for the purpose of court fees and jurisdiction. Moreover, the suit is based on forged and fabricated documents. It is submitted that this Court has no jurisdiction to entertain the present suit, which is liable to be dismissed.
4. On merits, it is submitted that presently plaintiff is not the owner of the suit premises. It is claimed that the plaintiff had approached the defendant to sell the suit premises as he needed money to pay to DDA and accordingly Agreement to Sell dated 29.12.2011 was executed between the parties for sale of the suit premises for total sale consideration of Rs. 30 lacs, out of which Rs. 10 lacs was received by the plaintiff, while the remaining Rs. 20 lacs was agreed to be paid to the plaintiff as and when the plaintiff converted the suit premises in freehold from leasehold. It is further submitted that in the month of November 2015, plaintiff again approached the defendant for further payment and a sum of Rs. 1 lac was paid on the request of the plaintiff.
5. Defendant has further asserted that she has been residing in the property since before July, 2014 and when she entered into CS DJ No. 622/2018 page No. 3 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam suit premises, the suit property was in a very dilapidated condition and with the consent of the plaintiff, she got the entire property renovated and to make it habitable and spent Rs. 11,75,240/- on the renovation and repair of the suit premises. It is submitted that she has already paid substantial amount towards the Agreement to Sell, while the plaintiff has failed to perform his part of Agreement in getting the suit premises freehold. It is claimed that by virtue of Agreement to Sell, defendant became the owner of the suit property. However, the plaintiff has now turned greedy and is trying to wiggle out of the said Agreement to Sell & Purchase dated 29.12.2011, even though substantial amount already stands paid.
6. The defendant thus denied being a tenant in the suit premises on monthly rent of Rs. 10,000/- per month excluding water and electricity charges and also denied having paid rent upto 13.04.2016. Moreover, the plaintiff had claimed in his Legal Notice that the rent has been paid till October, 2015 while he admitted in his evidence that rent has been received till April, 2016 which again shows that the claim of the plaintiff is false. It is submitted that the present suit is without merits and is liable to be dismissed.
7. Plaintiff in his replication has explained that the alleged Agreement to Sell on which reliance has been placed by the defendant is a forged and fabricated document. There is no proof of any money having been spent by the defendant on renovations as claimed by her. It is denied that Rs. 10 lacs were ever paid by the defendant to the plaintiff. Admittedly, CS DJ No. 622/2018 page No. 4 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam Rs. 1 lac was paid by the defendant but it was towards arrears of rent.
8. The plaintiff has denied having entered into any Agreement to Sell with the defendant and has submitted that the same does not bear his signatures and this document has been created only to cheat the plaintiff. It is submitted that when the plaintiff came to know about the forged and fabricated Agreement to Sell, he lodged various complaints with the SHO and Deputy Commissioner of Police and FIR No. 78/2019, under Sections 420/467/468 IPC, PS Sunlight Colony has already been registered against the defendant. The averments made in the plaint are re-affirmed in the replication.
9. From the pleadings of the parties and material on record, the following issues were framed vide order dated 07.01.2021:
(a) Whether the plaintiff is entitled to recovery of possession of the suit property? OPP.
(b) Whether the plaintiff is entitled to recovery of arrears of rent @ Rs. 10,000/- per month w.e.f. 14.04.2016 to 30.11.2017? OPP.
(c) Whether the plaintiff is entitled to damages/ mesne profits @ Rs. 15,000/- per month w.e.f. 01.12.2017 till delivery of the possession of the suit property? OPP.
(d) Whether the defendant is liable to be restrained from transferring or parting with the possession of the suit property? OPP.
(e) Whether the plaintiff is entitled to relief of Permanent Injunction? OPP.
(f) Whether the defendant is not a tenant in the suit property on account of Agreement to Sell dated CS DJ No. 622/2018 page No. 5 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam 29.12.2011 executed in favour of the defendant and had paid Rs. 10 lacs towards the sale consideration to the plaintiff? OPD.
(g)Whether the defendant pursuant to the mutual consent spent Rs. 11,75,240/- on the repair and renovation of the suit property? OPD.
(h) Relief
10.PW-1 Ms. Chanchal Bala, daughter of the plaintiff proved her affidavit of evidence as Ex. PW-1/1, original Site Plan as Ex. PW-1/A, copy of Allotment Letter and Conveyance Deed in respect of the suit premises as Ex. PW-1/B and Ex. PW- 1/C. She has also proved copy of the diary as Ex. PW-1/D, Legal Notice dated 18.10.2017 along with postal receipt as Ex. PW-1/E & Ex. PW-1/F respectively. The postal receipts in respect of the Legal Notice dated 24.03.2018 are Ex. PW- 1/H and Ex. PW-1/I respectively and the tracking reports are Ex. PW-1/J and Ex. PW-1/K respectively.
11.DW-1 Smt. Neelam, the defendant tendered her evidence by way of affidavit Ex. DW-1/A. She proved various documents in respect of the suit premises as Ex. DW-1/1 to Ex. DW- 1/6. The Agreement to Sell dated 29.12.2011 is Ex. DW-1/4.
12.The detailed testimony of the witnesses shall be considered subsequently.
13.Ld. Counsel for the plaintiff has argued that the Agreement to Sell on which the reliance has been placed by the defendant, is a forged and fabricated document in regard to which FIR No.78/2019 has been registered against the defendant. Furthermore, there is no proof of any cash payment of Rs. 10 lacs having been made to the plaintiff. The alleged CS DJ No. 622/2018 page No. 6 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam money spent on the renovation/repair of the suit premises has not been proved by way of any cogent evidence. Further, the defendant has claimed that she carried out the renovation in the suit premises after taking oral permission from the plaintiff. But the defendant herself has admitted the diary wherein it is clearly mentioned that the rent was being paid from time to time by the defendant to the plaintiff @ Rs. 10,000/- per month. It is submitted that there is no evidence whatsoever to show that defendant was ever the owner in the suit premises. Moreover, even on the basis of Agreement to Sell she cannot claim to have ceased to be the tenant in the suit premises, the fact which is admitted in the alleged Agreement to Sell. Ld. Counsel for the plaintiff has placed reliance on the decision of Hon'ble High Court of Delhi in Shri Sudhir Sabharwal vs. Shri Rajesh Pruthi in CM (M) No. 1087/2013 & CM No. 16069/2013 decided on 07.08.2014 .
14.It is thus, submitted that Decree may be passed in favour of the plaintiff for Recovery of Possession, Recovery of Arrears of Rent, Recovery of Mesne Profits, Damages and Permanent Injunction.
15.Ld. Counsel for the defendant has argued that plaintiff, since deceased, has alleged that oral tenancy was created, but there is no evidence to prove the tenancy. The defendant on the other hand, has proved various documents like medical record and Death Certificate of her husband, to show that she was in possession of the suit premises since even prior to July, 2014, which clearly shows that she came into possession of CS DJ No. 622/2018 page No. 7 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam the suit premises pursuant to the Agreement to Sell dated 29.12.2011 and has occupied it as owner and not as tenant. The claim of the plaintiff is permeated with the contradictions; while in the Legal Notice, it has been claimed that the rent has been paid till October, 2015 but the plaintiff has himself stated in the plaint that the rent has been paid till 13.04.2016. Plaintiff had in fact entered into the Agreement to Sell in the year 2011 as he was unable to pay the charges of the flat to the DDA.
16.It has been further argued that sale consideration in the sum of Rs. 10 lacs was paid in cash to the plaintiff at the time of entering into the Agreement to Sell in the year 2011. It has been further argued that the cash transaction is admissible in evidence as has been held by Hon'ble High Court of Delhi in Shri Shyam Sunder vs. Sohan Singh @ Shoban Singh, RFA No. 189/2015, decided on 22.02.2018 . Furthermore, the defendant has been able to prove the Agreement to Sell and has thereby discharged her onus. The final burden of proving the tenancy rested on the plaintiff which the plaintiff has not been able to discharge. For this, reliance has been placed on Kalyan Singh & others vs. Sanjeev Singh, FA No. 211/2002, decided on 19.04.2018 by Hon'ble High Court of Madhya Pradesh and Rattan Singh & others vs. Nirmal Gill & Others in Civil Appeal Nos. 3681-3682 of 2020 decided on 16.11.2020 by the Hon'ble Apex Court. It is argued that there is a cloud on the title of the plaintiff since the property already stands sold to the defendant. In such circumstances, plaintiff was mandatorily required to seek CS DJ No. 622/2018 page No. 8 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam declaration and simplicitor suit for possession was not maintainable. For this, reliance has been placed on Kayalulla Parambath Moidu Haji vs. Nambodiyil Vinodan in Civil Appeal Nos. 5575-5576 of 2021 decided by the Hon'ble Apex Court on 07.11.2021. It has been further argued that defendant has been occupying the premises since 2011 in the capacity of owner and has never paid the rent. The case of the plaintiff is without merit and same is liable to be dismissed.
17. I have heard the arguments and perused the record. My issue- wise findings are as under:
18. FINDINGS ON ISSUES NO. 1, 6 & 7:
Issue No. 1: Whether the plaintiff is entitled to recovery of possession of the suit property? OPP.
Issue No. 6: Whether the defendant is not a tenant in the suit property on account of Agreement to Sell dated 29.12.2011 executed in favour of the defendant for which she had paid Rs. 10 lacs towards the part sale consideration to the plaintiff? OPD.
Issue No. 7: Whether the defendant pursuant to the mutual consent spent Rs. 11,75,240/- on the repair and renovation of the suit property? OPD.
All these three issues are taken up together as they are co- related.
RELATIONSHIP OF LANDLORD-TENANT:
19.The first aspect to be considered is the relationship of Landlord- Tenant between the parties. PW-1 Ms. Chanchal Bala, who is the daughter of the deceased plaintiff, has CS DJ No. 622/2018 page No. 9 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam deposed that her father was sole and absolute owner of the suit premises, which was allotted to him by the DDA vide Allotment Letter dated 13.05.1974 Ex. PW-1/B. The Conveyance Deed dated 17.08.2016 Ex. PW-1/C was subsequently executed in his favour. The Conveyance Deed proves that Sh. Ram Das, the original plaintiff (who died during the pendency of the suit) and after him the plaintiffs, who are his legal heirs, are the owners of the property in question. This fact of Ram Das Sagar being the original owner is also not denied by the defendant.
20.The entire controversy has arisen since according to the plaintiff, since deceased, the property was rented out to the defendant in July, 2014 on monthly rent of Rs. 10,000/- for limited period of 11 months and that the rent was paid upto 13.04.2016. However, the defendant has denied having been inducted as a tenant in the suit premises in 2014 and has asserted that she had purchased the suit property from Late Sh. Ram Das Sagar the deceased plaintiff vide Agreement to Sell dated 29.12.2011 Ex.DW1/4. She has further claimed that she has been in possession since prior to July, 2014.
21.It is deposed by Defendant as DW-1 that the plaintiff had approached her for sale of the suit premises since he was unable to make payment for the flat to the DDA. It may be noted that allotment of flat had been done in the name of the deceased plaintiff on 13.05.1974 and he has been in possession of the same since then and only the Conveyance Deed Ex.PW1/C was executed on 17.08.2016. There is no evidence whatsoever to show that there was any outstanding CS DJ No. 622/2018 page No. 10 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam payment to be made in respect of suit flat or there was any financial crises, which may have prompted the plaintiff to enter into this Sale Agreement as asserted by the defendant.
22.The entire defense of the defendant rests on the Agreement to Sell Ex.DW1/4 the genuineness of which needs to be ascertained as the plaintiff has denied having entered into any Agreement to Sell and has claimed it to be forged document. PW-1 Chanchal Bala has explained that no Agreement to Sell was ever entered into by her father Late Sh. Ram Dass Sagar with the defendant or anybody else.
23.The plaintiff had asserted that a complaint under Section 200 Cr. P. C. was filed and subsequently FIR No.78/2019 under Sections 420/467/468 IPC has been registered at PS Sunlight Colony, New Delhi against the defendant. The defendant has admitted the registration of FIR against her but tendered an explanation that she has been granted anticipatory bail by the High Court.
24.PW-1 Ms. Chanchal Bala deposed that the Agreement to Sell ExDW1/4 does not bear the signatures of her deceased father Sh. Ram Dass Sagar. The defendant in her cross-examination admitted that she did not know where the Agreement to Sell was prepared, but stated that it was brought to the suit premises by Late Sh. Ram Dass Sagar where she had signed it. She further deposed that she and her husband had signed on it at Points X & Y respectively and no other person had signed it, but when specifically questioned she stated that Late Sh. Ram Dass Sagar had also signed on the Agreement to Sell in her presence. It is difficult to comprehend that any person CS DJ No. 622/2018 page No. 11 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam intending to buy a property would be at home with no involvement in preparation of the documents. Not only this, the defendant deposed that the Agreement was signed by her and her husband and only subsequently when specifically asked did she say that it was also signed by Sh. Ram Dass, the original plaintiff. It is quite evident that The Agreement to sell was not got prepared by the original plaintiff, as claimed.
25.The defendant had further deposed in her cross-examination that the deceased plaintiff Sh. Ram Dass Sagar gave her the copy of the Conveyance Deed, documents of the suit premises after about 15 days of execution of the Agreement to Sell. If so was the case, then the allotment letter/document of ownership in respect of the suit premises should have been in possession of the defendant, but they have not been produced or proved. It also establishes that the defendant was already in possession of suit premises when the Agreement to Sell was signed. Significantly except claiming that she was in the suit property since prior to 2014, she has failed to give the date since when she has been in possession of the suit premises.
26.Moreover, the defendant has admitted that there was no time frame given for execution of the Sale Deed pursuant to the Agreement to Sell. It was explained by her that the property was lease hold and deceased plaintiff Sh. Ram Dass Sagar had told her that the Sale Deed would be executed after the property was made freehold. Even if it is accepted that the Sale Deed was to be executed after the property was made freehold then too, it may be noted that the Conveyance Deed Ex. PW-1/C was executed on 17.08.2016, but till date no steps CS DJ No. 622/2018 page No. 12 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam whatsoever have been taken by the defendant to seek the performance of the Agreement to Sell. Blissfully, defendant as is evident from her testimony not even aware that the property was made freehold in 2016. Though, Agreement to Sell may not specify the time frame within which the sale is to be executed after the property was made freehold, but it cannot be left open ad-infinitum nor the defendant can sit with the Agreement to Sell and claim herself to be the owner on its basis without taking any steps for getting the Sale Deed executed. The reasonableness of time frame for claiming the specific performance has to be there. It is difficult to comprehend that a person who has paid a substantial amount of Rs. 10 lacs in cash in the year 2011 and subsequently Rs. 11,75,240/- by way of renovation/repair of the suit premises, would not take any steps whatsoever, even by way of a Notice or any letter to deceased plaintiff Sh. Ram Dass Sagar for execution of the Sale Deed. The conduct of the defendant is not that of a person who has agreed to purchase an immovable property.
27.It would also be pertinent to mention that the limitation period is three years from the date on which Sale Deed was to be executed. The Conveyance Deed was executed in 2016 and more than three years have elapsed since then and any claim of defendant to get the Sale Deed executed has also become time barred.
28.Further, the necessary ingredient of any Sale transaction is the Sale consideration. PW-1 Ms. Chanchal Bala deposed that neither any amount whatsoever was received by her deceased CS DJ No. 622/2018 page No. 13 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam father nor did he give any permission to the defendant to carry out the alleged renovation or repair work in the suit premises.
29.The defendant has claimed in her testimony that out of the sale consideration of Rs. 30 lacs, Rs. 10 lacs was paid in cash but no evidence whatsoever has been led by the defendant in respect of payment.
30.The defendant has claimed that a further sum of Rs. 11,75,240/- had been spent on the renovation and repair work of the suit premises with the prior consent of the deceased plaintiff. The defendant has deposed that the suit property was in dilapidated condition, which is demonstrated by the photographs Mark-G (Colly). The defendant did not produce any receipts/bills in regard to purchase of material of construction to establish that the repairs/renovation was carried out by her. In the cross-examination, the defendant produced loose pages of diary Ex. DW-1/P-1 (two sheets) giving the entire details of the amount spent on repair/ renovation of the suit property. These pages of Diary were never mentioned in her evidence or filed along with other documents but were produced for the first time in the cross examination by the defendant. Further, she has admitted that this one page of diary has been prepared at one time. It is quite evident that these pages of diary allegedly containing the details of the amount spent on the alleged repair/renovation work have been prepared subsequently at one time. There is not a single receipt or bill to establish the alleged renovation/ repair work. The pages of diary Ex. DW-1/P-1 (two sheets) CS DJ No. 622/2018 page No. 14 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam are palpably fabricated and do not support the case of the defendant in any manner.
31.It may also be noted that no matter how hard one may try falsehood has its own uncanny way of revealing itself. According to the defendant she came in possession of the suit premises way back prior to execution of the Agreement to Sell in 2011. Since the suit property was in dilapidated condition, she carried out the renovations with the permission of the plaintiff. However, these alleged renovation/repair work has been carried out in the year 2017. It is evident that no renovations to the tune of Rs 11,75,240/- were ever carried out and that too with the permission of the plaintiff. No reasonable person would accept that the part payment of Rs. 11,75,240/- was made in the year 2017 i.e. almost after 07 years and that too by way of renovations. The defendant has failed to prove having carried out renovation/repair in the suit premises or having spent Rs. 11,75,240/- for the purpose. The defendant has even failed to prove that there was any consent on the part of the deceased plaintiff or that the said amount was to be adjusted towards the sale consideration. The testimony of the defendant herself establishes that there no amount of Rs. 11,75,240/- was spent by her for renovation/ repair of the suit premises to be adjusted against the sale consideration.
32.The defendant as DW-1 had deposed that the plaintiff needed money to get the property made freehold for which reason she paid Rs.1 lac in 2015 to PW-1. Ms. Chanchal Bala who has admitted that payment of Rs. 1 lac was received from CS DJ No. 622/2018 page No. 15 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam the defendant but has explained that it was towards the arrears of rent for the period from 13.01.2014 to 15.11.2015.
33.The defendant has miserably failed to prove the Agreement to Sell Ex DW1/4 allegedly executed in her favour by the deceased plaintiff.
34. The Ld. counsel for the defendant has argued that since there is a cloud over the title of the plaintiff because of the Agreement to Sell, the present suit is not maintainable as no declaration has been sought by the plaintiff. Reliance has been placed on the recent judgement of the Supreme Court reported as Kayalulla Parambath Moidu Haji vs. Nambodiyil Vinodan in Civil Appeal Nos. 5575-5576 of 2021 decided by the Hon'ble Apex Court on 07.11.2021.
35.Hon'ble Apex Court in Aanaimuthu Thevar (Dead) By LRs vs Alagammal & Ors (2005) 6 SCC 202 succinctly stated that proposition of law as under:
"Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."CS DJ No. 622/2018 page No. 16 of 32
Ram Dass Sagar (since deceased), through his LRs vs. Neelam
36.In Jharkhand State Housing Board vs. Didar Singh and Another 2 (2019) 17 SCC 692 Hon'ble Apex Court observed as under:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
37.Hon'ble Apex Court in Kayalulla Parambath Moidu Haji (supra) has reaffirmed the above proposition of law that not in every case a declaration is required to be sought by the plaintiff.
38.In the present case the plaintiff has proved his clear title and the defendant is frivolously claiming to be the owner and the plaintiff cannot be driven to seek declaration of his otherwise clear title.
LEGAL RIGHTS CREATED UNDER AGREEMENT TO SELL:
39.Admittedly, the original owner of the suit premises was Sh. Ram Dass Sagar, the deceased plaintiff. The claim of the defendant is based on Agreement to Sell. However, if for the sake of arguments it is accepted that an Agreement to Sell was executed in favour of defendant, then too can she resist the present suit for eviction. For this one needs to first understand the rights that are created under an Agreement to Sell.
40.Section 54 of the Transfer of Property Act in specific terms provides that a contract for sale does not, of itself, CS DJ No. 622/2018 page No. 17 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law as observed in Jiwan Das vs. Narain Das AIR 1981 Delhi 291 .
41.The most celebrated judgment in regard to the validity and rights created under unregistered Agreement to Sell etc. is Suraj Lamp & Industries vs. State of Haryana, (2012) 1 SCC 656 wherein the sanctity of these documents came up for consideration. The Apex Court observed that the sale transactions in respect of immovable property were being undertaken on the basis of what was commonly known as General Power of Attorney or Sale Agreement, General Power of Attorney, Will Transfer. These descriptions are misnomers as there cannot be a sale by execution of a Power of Attorney nor can there be a transfer by execution of an Agreement of Sale and a Power of Attorney and Will. These kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money and to avoid payment of unearned increases. It was noted that these transactions are not to be confused or equated with genuine transactions where the owner of a property grants a Power of Attorney in favour of a family member or friend to manage the property. The ill-effects of such transaction is that it makes title verification and certification, which is an integral part of orderly conduct of transactions CS DJ No. 622/2018 page No. 18 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers. The transfer of immovable property by way of sale can only be by a Deed of Conveyance and in the absence of a Deed of Conveyance, no right, title or interest in an immovable property can be transferred by way of Agreement to Sell. Any contract of sale, which is not a registered Deed of Conveyance would fall short of the requirements of Sections 54 & 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property.
42.It was observed that any contract of sale (Agreement to Sell) which is not registered would fall short and will not any right and will not any right, title nor transfer any interest in the immovable property, except to the limited extent granted under Section 53(A) of the Transfer of Property Act but it cannot be the basis of claiming the ownership in the immovable property.
43.Similar observations were made by Hon'ble High Court of Delhi in the case of Rekha Gupta Vs. Ashok Kumar and Anr. RFA No. 279/2018 decided on 23.03.2018.
44.The Agreement to Sell per se does not create any right title in the suit property but merely confers a right to seek execution of Sale Deed and till then the alleged purchaser cannot claim any title in the property. The Agreement to Sell Ex. DW1/4 is proved to be not a genuine document under which defendant can claim any title. Even otherwise mere Agreement to Sell does not confer proprietary title on the defendant. At best the CS DJ No. 622/2018 page No. 19 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam defendant can seek protection of her title under S.53A of TP Act under a genuine Agreement to Sell.
PROTECTION OF POSSESSION UNDER SECTION 53(A) OF THE TRANSFER OF PROPERTY ACT:
45.The Core Question which arose is that whether the defendant has already been in possession of the suit premises since prior to July, 2014 in the capacity of owner pursuant to Agreement to Sell and her possession is protected under Section 53(A) of the Transfer of Property Act or whether she was inducted as a tenant by the deceased plaintiff Sh. Ram Dass Sagar in the year 2014.
46.The defendant in order to show that she has been in possession of the suit property since 2011 has relied upon the Death Certificate dated 29.09.2014 Ex. DW-1/3 of her husband Late Sh. Jai Prakash wherein address has been mentioned as that of the suit premises. The defendant has also relied upon the medical documents of her husband Late Sh. Jai Parkash Ex. DW-1/2 (Colly) pertaining to August, 2013 wherein also the address has been shown as that of the suit premises. These are the documents which have been created on the basis of information provided by the defendant and there is no authenticity or verification of these documents by any independent authority. The defendant has admitted that she was earlier living as a tenant in Flat No. 110-B, DDA Flats, Sunlight Colony, New Delhi and she had been meeting the deceased plaintiff Late Sh. Ram Dass Sagar when he used to visit the suit flat for rent etc. There was nothing which prevented the defendant from giving the suit address in the CS DJ No. 622/2018 page No. 20 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam medical records or the Death Certificate of her husband. Interestingly, though she has claimed to be in possession of suit property since prior to 2014 but has failed to give any specific date when she came into the possession of the suit property.
47.The truth about the defendant is revealed from the Agreement to Sell Ex.DW1/4 on which she has relied heavily.
48.Clause-2 of the Agreement to Sell dated 29.12.2011 Ex. DW-1/4 reads as under:
Clause 2-That the First Party will deliver the symbolic possession of the suit property under sale to the Second Party at the time of final payment, as the Second Party is already residing in the said property as tenant.
49.According to this clause the defendant was already residing in the suit property as a tenant on the date of execution of Agreement to Sell dated 29.12.2011. In the Agreement to Sell itself it is noted that the possession of the defendant in the suit premises was only as tenant. Her claim that she came into possession on execution of Agreement to Sell stands falsified by her own document. Rather, the inconsistency in her stand about the nature and date of possession and the express terms of the Agreement establish the truthfulness of the claim of the plaintiff that defendant came into the possession of suit premises as a tenant. The documents of the defendant itself show that her possession in the suit premises was in the nature of a tenant and not that of an owner.
50.Hon'ble High Court of Delhi in case Nirmala Devi & Ors. vs. Jai Dutt, RSA 221/2016 decided on 01.03.2017 has held that once the defendant/ tenant admitted the relationship CS DJ No. 622/2018 page No. 21 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam of the landlord and tenant between the parties, having agreed to purchase the same from the plaintiff/landlord, he is estopped under Section 116 of the Indian Evidence Act from denying the title of the appellant who inducted him as a tenant and handed over the possession during the continuance of the benefit that he had drawn under this relationship.
51.A Three-Judge of the Supreme Court in the decision reported as Sri Ram Pasricha vs. Jagannath & Ors. (1976) 4 SCC 184 reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act.
52.The defendant who is proved to be a tenant in suit property is thus estopped from challenging the title of plaintiffs as landlords.
AGREEMENT TO SELL AND SURRENDER OF TENANCY UNDER SECTION 111 OF TRANSFER OF PROPERTY ACT :
53.The next aspect is whether the tenant's status change on entering into an Agreement to Sell with the landlord.
54.Chapter V of the TP Act deals with the leases of Immovable property. A lease of an immoveable property is a contract between the lessor and the lessee. Their rights are governed by Sections 105 to 117 of TP Act. Section 111 of the Act deals with the determination of lease. Clauses (a) to (h) set out the grounds on which a lease of an immoveable property can be determined. Clauses (e) provides that a lease can be determined by an express surrender by mutual agreement CS DJ No. 622/2018 page No. 22 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam between them whereas Clause (f) provides that the lease can be determined by implied surrender.
55.The Hon'ble Apex Court in Shah Mathuradas Maganlal & Company vs. Nagappa Shankarappa Malage & Ors., (1976) 3 SCC 660 considered the scope of clauses (e) and
(f) of Section 111 and noted that surrender can be express by mutual consent or Implied surrender by operation of law which occurs by the creation of a new relationship or by relinquishment of possession. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact?
56.Similar observations were made by the Hon'ble Supreme Court in the case of R. Kanthimathi And Anr. vs. Beatrice Xavier (Mrs) AIR 2003 SC 4149 that the nature of possession of the tenant would change to be in the nature of owner only where the Agreement clearly indicates that the parties had really intended to surrender their tenancy rights on execution of the Agreement of Sale and bring to an end their jural relationship of the landlord and tenant.
57.In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an Agreement To Sell, CS DJ No. 622/2018 page No. 23 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam necessary provision to that effect has to be made by providing a specific clause in the Agreement.
58.Hon'ble High Court of Delhi in Shri Sudhir Sabharwal vs Shri Rajesh Pruthi decided on 7 August, 2014 (Supra) has clearly noted that mere Agreement to Sell will not determine the relationship of landlord-tenant unless there is specification to that effect in Agreement itself. It is well settled that mere Agreement to Sell does not create any right, title or interest except to seek performance of the said agreement. Therefore, till a decree for specific performance is obtained, the owner is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed. (Reference may be had to Govinda Chandra vs. Provabati Ghose , AIR 1956 Cal1 47 and S. Ramalingm vs. G.R. Jagadammal A.I.R. 1957 AP 960).
59.In another decision reported as K. Mani vs. M. D. Jayavel & Ors. 2012 (1) RCR (Rent) 111 the High Court of Madras, while reiterating the legal position as laid down in B. Kuppulal vs. D. Sagunthala & Anr. (1987) 1 MLJ 242 and Duraisami Nadar vs. Nagammal 1981 (1) MLJ 35 held that mere Agreement of Sale will not terminate landlord- tenant relationship unless there is specification to that effect in agreement itself. It was further held that notwithstanding the Agreement of Sale, the relationship of landlord and tenant continues to operate till there is a specific agreement to end the relationship of landlord and tenant and the tenant would CS DJ No. 622/2018 page No. 24 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam not acquire any right in the property Even assuming that the petitioner is entitled to the benefit of Section 53-A, his liability to pay rent does not cease unless the Agreement of Sale puts an end to that liability in specific terms.
60.Hon'ble Supreme Court of India in Dr. H. K. Sharma vs Ram Lal on 28 January, 2019 Civil Appeal Nos. 1237- 1238 of 2019 (Arising out of S.L.P. (C) Nos. 28420- 28421 of 2017) has held that on execution of such Agreement in relation to the tenanted premises it is a matter of contract whether the tenancy was terminated or they intended to keep the Lease subsisting notwithstanding the execution of such Agreement.
61.In the facts in hand, Clause-2 of the Agreement to Sell Ex.DW1/4 itself provided that the symbolic possession of the suit premises under the Sale shall be given at the time of final payment and till then she would be residing as a tenant. Even if for the sake of arguments, it is accepted that there was any Agreement to Sell executed between the parties, but the said Agreement to Sell itself provided that the possession of the defendant in the suit premises shall be in the capacity of a tenant till execution of the Sale Deed and final payment. It is abundantly established from evidence that the defendant's possession in the suit premises was that of a tenant and not of an owner.
62.The defendant has not been able to produce any cogent evidence to establish that she came into possession of suit premises in 2011 pursuant to the Agreement to Sell Ex.DW1/4 and not inducted as a tenant in the suit premises. The CS DJ No. 622/2018 page No. 25 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam plaintiff has thus proved themselves to be the owner in the suit premises and defendant is a tenant thereof . The relationship between the plaintiff and defendant is that of Landlord and tenant.
The Issues No.1, 6 and 7 are decided in favour of the plaintiff and against the defendant.
63. FINDINGS ON ISSUE NO. 2:
Whether the plaintiff is entitled to recovery of arrears of rent @ Rs. 10,000/- per month w.e.f. 14.04.2016 to 30.11.2017? OPP.
The other aspect which needs to be considered is the rate of rent. The plaintiff has relied upon the page of diary Ex. PW- 1/D wherein endorsement was made about the rent was paid by the defendant to the plaintiff. Defendant admitted in her cross-examination that the page of diary Ex. PW-1/D was in her handwriting. It is clearly mentioned in the said document that the rent was received in the sum of Rs. 30,000/- from 13th October to 13.01.2015. Further, endorsement has been made that the rent from 13.01.2015 to 13.11.2015 in the sum of Rs. 1 lac has been received. Further, endorsement has been made that the rent from the month November, 2015 to 13th April, 2016 in the sum of Rs. 50,000/- has been received.
64.This endorsement clearly proves that the rate of rent was Rs. 10,000/- per month. It also establishes that the last rent has been paid till 13.04.2016 and the defendant is in arrears of rent since 13.04.2016 till date.
65.PW-1 Ms. Chanchal Bala has further deposed that the tenancy was created w.e.f. 01.07.2014 and after the expiry of 11 CS DJ No. 622/2018 page No. 26 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam months, her deceased father Sh. Ram Dass Sagar informed the defendant about termination of the tenancy, but the defendant failed to vacate and handover the possession of the suit premises and took further time on one pretext or the other. Finally, Legal Notice dated 18.10.2017 Ex. PW-1/E was served by her deceased father on the defendant terminating her tenancy w.e.f. 30.11.2017 and called upon the defendant to handover the vacant possession of the suit premises and in case the defendant failed to vacate the suit premises, she would be liable to pay the damages for the unauthorised use and occupation charges @ Rs. 15,000/- per month. The Legal Notice was sent to the defendant by way of courier and speed post and the postal receipt dated 18.10.2017 is Ex. PW-1/F Thereafter, another Legal Notice dated 24.03.2018 Mark-A was served upon the defendant through post. Ex. PW-1/H and Ex. PW-1/I are the postal receipts dated 24.03.2018. The tracking report in respect of the speed post and courier are Ex. PW-1/J and Ex. PW-1/K respectively. Even if it held that plaintiff has failed to prove subsequent Legal Notice dated 24.03.2018 Mark-A but the service of earlier Legal Notice dated 18.10.2017 Ex. PW-1/E stands duly proved.
66.It may be noted that as per the plaintiff, tenancy has been created for a period of 11 months and in July, 2014 which expired by efflux of time. Plaintiff has thus proved not only the termination of the tenancy by efflux of time, but also the Legal NoticeEx.PW1/E seeking arrears of rent.
67. Plaintiff explained that the arrears of rent had been erroneously claimed from October, 2015, though rent stood CS DJ No. 622/2018 page No. 27 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam paid till April, 2016. Merely incorrect mentioning of the payment of arrears of rent would not make the Legal Notice invalid. The defendant is, therefore, liable to pay the arrears of rent from May, 2016 till October, 2017 (18 months) amounting to Rs. 1,80,000/-. Plaintiff is also awarded interest @ 5 % per annum from the date of institution of the suit till the date of payment. This issue is decided in favour of the plaintiff and against the defendant.
68. Findings on Issue No. 3:
Whether the plaintiff is entitled to damages/mesne profits @ Rs. 15,000/- per month w.e.f. 01.12.2017 till delivery of the possession of the suit property? OPP.
The question which now arises is whether the plaintiff is entitled to penal rent/mesne profits after the lease got terminated by efflux of time and by Legal Notice dated 18.10.2017 (Ex. PW-1/E). This aspect was considered by Hon'ble High Court of Delhi in the case of M.C. Agrawal HUF Vs. Sahara India & Ors. 183 (2011) DLT 105 wherein it was observed that even if there is a lease agreement between the parties quantifying the damages payable for unauthorized occupation of the premises after expiry of the lease deed, then too the plaintiff cannot claim the same by virtue of the contract. A reference was made to Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405 wherein it was held that where on account of breach of contract damages can be proved, then, there cannot be any validity of a clause which CS DJ No. 622/2018 page No. 28 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam given liquidated damages. What is the rent which the premises can fetch during the period of the illegal occupation by the erstwhile tenant is a fact which can be easily proved in a suit for possession and mesne profits against the tenants by leading evidence with respect to rents of similar premises within the locality.
69.The Hon'ble Supreme Court in the case of O.N.G.C Vs. Saw Pipes Ltd., 2003 (5) SCC 705 had observed that the liquidated damages as fixed by the contract would become payable only if it is impossible to calculate the loss on account of breach of contract.
70.The Hon'ble High Court of Delhi in M.C. Aggarwal, HUF (supra), after making a reference to Section 74 of the Indian Contract Act, noted that the mesne profit cannot be granted at double the admitted rate of rent as provided in the rent contract between the parties. However, since there was no evidence led with respect to the rent payable for similar premises in locality during the relevant period, it would be appropriate to allow damages at original contractual rate plus additional 15%.
71.What thus, emerges is that mere stipulation of penal interest or rate of damages would not simplicitor entitle the landlord to the same but it has to be calculated in terms of Section 74 of the Contract Act. It may also be noted that damage/user and occupation charges is inclusive of rent/penal rent and these cannot be claimed separately. The facts of this case are now to be examined in this light.
CS DJ No. 622/2018 page No. 29 of 32Ram Dass Sagar (since deceased), through his LRs vs. Neelam
72.It has been proved that after the termination of tenancy, the possession of the defendant became that of an unauthorized occupant.
73.Plaintiff has claimed that the defendant is liable to pay the damages/mesne profits @ 15,000/- per month. However, no evidence whatsoever has been led by the plaintiff to prove that the property could fetch Rs. 15,000/- per month if vacated by the defendant in the month of October, 2017.
74. Thus, in view of the judgments, as discussed above, plaintiff is granted mesne profits @ Rs. 10,000/- + 15 % of Rs. 10,000/- i.e. Rs. 11,500/- per month from November, 2017 till the vacation of suit premises. Plaintiff is also awarded interest @ 5 % per annum from the date of institution of the suit till the date of payment.
This issue is decided accordingly.
75. Findings on Issues No. 4 & 5:
Issue No. 4: Whether the defendant is liable to be restrained from transferring or parting with the possession of the suit property? OPP.
Issue No. 5: Whether the plaintiff is entitled to relief of Permanent Injunction? OPP.
In view of findings on Issue No. 1 that the plaintiff is the owner/landlord of the suit premises in which defendant is in the capacity of an unauthsorized occupant it is held that plaintiff is entitled to permanent injunction. Hence, the CS DJ No. 622/2018 page No. 30 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam defendant is restrained from transferring or parting with possession of the suit premises.
76. RELIEF:
In view of my above findings, the suit of the plaintiff is decreed against the defendant as under:
(a) A Decree of Possession is passed in favour of the plaintiff and against the defendant with respect to the suit property i.e. Flat No. 110-A, Ground Floor, Sunlight Colony, New Delhi-110014, as shown in red colour in the Site Plan.
(b) A Decree of arrears of rent is passed in favour of the plaintiff and the defendant is liable to pay the arrears of rent from May, 2016 till October, 2017 (18 months) amounting to Rs. 1,80,000/-.
Plaintiff is also awarded interest @ 5% per annum from the date of institution of the suit till the date of payment.
(c) A Decree of Mesne Profits is also passed in favour of the plaintiff and the defendant is liable to pay the Mesne Profits @ Rs. 11,500/- per month from November, 2017 till the vacation of suit premises. Plaintiff is also awarded interest @ 5 % per annum from the date of institution of the suit till the date of payment.
(d) A Decree of Permanent Injunction is also passed in favour of the plaintiff and against the CS DJ No. 622/2018 page No. 31 of 32 Ram Dass Sagar (since deceased), through his LRs vs. Neelam defendant, thereby restraining the defendant from transferring or parting with the possession of the suit premises bearing Flat No. 110-A, Ground Floor, Sunlight Colony, New Delhi-110014 as shown in red colour in the Site Plan, to any third person other than the plaintiff.
77.Plaintiff is directed to file the requisite Court Fees on the Mense Profits within 15 days w.e.f. today.
78.Parties to bear their own costs. Decree Sheet be prepared accordingly.
79. File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA)
Court on 22.09.2021 Principal District & Sessions Judge,
(KSR) South East: Saket Courts, New Delhi
CS DJ No. 622/2018 page No. 32 of 32
Ram Dass Sagar (since deceased), through his LRs vs. Neelam