Delhi District Court
Rajpal vs Dayawati on 16 April, 2024
Suit No. 16887/16 1
IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 16887/16
CNR No. : DLSW01-000406-2012
Sh. Rajpal
S/o Sh. Mange Ram
R/o 664, Village Shahbad Mohammadpur,
New Delhi - 110061 .....Plaintiff
Versus
Smt. Dayawati
W/o Sh. Chander Singh
R/o H.No.651, 1st & 2nd Floor,
Shahbad Mohammadpur,
Near Vijay Mother Dairy,
New Delhi - 110061 .....Defendant
Date Of Institution : 18.01.2012
Date Of Final Arguments : 03.02.2024
Date Of Decision : 16.04.2024
Decision : Decreed
Sh. Rajpal vs Smt. Dayawati
Suit No. 16887/16 2
SUIT FOR RECOVERY OF POSSESSION, MESNE
PROFITS AND ARREARS OF RENT
JUDGMENT
1. The Plaintiff has filed the present suit seeking recovery of possession, mesne profits and arrears of rent against the defendant.
PLAINT
2. The brief facts as mentioned in the plaint are as follows:
(a) The plaintiff is the owner of the property bearing no.651, Village Shahbad Mohammadpur, New Delhi - 110061, Khasra no.451, Area 72 sq. mtrs. (31 x 21) comprising of ground floor, first floor and second floor (hereinafter referred to as 'suit property'). The plaintiff purchased the abovesaid property from Baljeet Singh S/o Sh. Kehar Singh by way of GPA dated 05.07.2001.
(b) As per the agreement dated 26.04.2011, the plaintiff agreed to sell the suit property for a total sum of Rs.32,50,000/- to the defendant. At the time of execution of the agreement, the defendant advanced a sum of Rs.18,00,000/- to the plaintiff as earnest money and the balance amount of Rs.14,50,000/- was to be paid to the plaintiff upto 25.10.2011. The defendant failed to make the remaining payment of Rs.14,50,000/- to the defendant Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 3 within the stipulated period prescribed in the Agreement to Sell dated 26.04.2011.
(c) After the execution of Agreement to Sell dated 26.04.2011, the defendant requested the plaintiff to rent out the first floor and second floor of the suit property till the time sale deed is executed between the parties at a total rent of Rs.20,000/- per month excluding electricity/water charges. The plaintiff believed the representation of the defendant and rented out the first floor and second floor of suit property to the defendant w.e.f. May, 2011.
(d) The defendant evaded the payment of monthly rent of Rs.20,000/- on the pretext that she would pay the rentals alongwith final installment of the total sale consideration. The defendant neither paid the monthly rent towards the use and occupation of first floor and second floor of the suit property nor did she pay the balance sale consideration to the plaintiff, however, she continued to enjoy the possession of the suit property.
(e) Pursuant to the said agreement dated 26.04.2011, when the defendant failed to pay the balance sale consideration within stipulated period i.e. upto 25.10.2011, the plaintiff forfeited the earnest amount paid by the defendant by giving legal notice Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 4 dated 31.10.2011 through his counsel which was duly received by the defendant.
(f) The defendant continued to enjoy the premises of first floor and second floor of the suit property without payment of rent. The plaintiff issued a legal notice dated 14.12.2011 to the defendant for vacating the tenanted premises by handing over the peaceful and vacant possession of the suit property and also to make payment of arrears of rent amounting to Rs.1,60,000/- to the plaintiff alongwith interest and also to make payment of electricity bills raised against the consumption of electricity. The notice dated 14.12.2011 was duly served upon the defendant but she failed to hand over the peaceful and vacant possession of the tenanted premises and also failed to pay arrears of rent till the filing of the present suit.
(g) As per the legal notice dated 14.12.2011, the plaintiff terminated the tenancy of the defendant by giving the said notice. The defendant is still in possession of the suit property. Hence, this suit.
WRITTEN STATEMENT, REPLICATION, ADMISSION- DENIAL OF DOCUMENTS AND FRAMING OF ISSUES
3. A perusal of the Court file reveals that the suit was instituted on 18.01.2012. On 01.12.2012, summons were Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 5 served upon the defendant which were received back duly served. On 28.02.2012, the defendant entered her appearance through her counsel and sought time to file Written Statement. On 28.03.2012, Written Statement was filed by the defendant. In her Written Statement, she has averred that the present suit is not maintainable and is liable to be dismissed. She has also averred that this court is barred from trying the preset suit by res judicata as the suit has already been filed by the defendant in Hon'ble High Court of Delhi in C.S.(O.S.) no.251/12 titled as 'Smt. Dayawati vs. Rajpal Singh' on the same facts and between the same parties. She has also averred that the present suit is not maintainable on the ground of pecuniary jurisdiction as the value of the property is admittedly Rs.32,50,000/- and the sale agreement between the parties is for the said amount. She has further averred that the suit is liable to be dismissed being based on false and frivolous grounds and hence is liable to be dismissed. She has further submitted that there is no relationship of landlord-tenant and rather, she entered into the suit property as an agreement purchaser.
4. On 15.05.2012, on the basis of pleadings of parties, the following issues are framed:
(i) Whether the suit is properly valued for the purpose of Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 6 court fee and jurisdiction? OPP.
(ii) Whether the present suit is barred u/o II R 2 CPC? OPP.
(iii) Whether plaintiff is entitled for recovery of possession, as claimed? OPP.
(iv) Whether plaintiff is entitled for mesne profit, if so, to what extent? OPP.
(v) Whether plaintiff is entitled to arrears of rent, as claimed? OPP.
(vi) Relief.
Issue no.1 was treated as preliminary issue. Thereafter the matter was fixed for arguments on the preliminary issue.
5. On 04.09.2012, arguments on the preliminary issue were heard and the matter was fixed for orders. On 11.02.2013 it was decided that the preliminary issue be decided on merits after both the parties lead evidence of this ground and the onus with respect to this issue would be on both the parties. Thereafter, the matter was fixed for plaintiff's evidence.
EVIDENCE OF THE PARTIES
6. On 21.11.2014, PW Raj Singh is examined as PW-1. He tendered his evidence by way of affidavit as Ex.PW-1/1 and relied upon the following documents :
(i) Site plan is Ex.PW-1/A
Sh. Rajpal vs Smt. Dayawati
Suit No. 16887/16 7
(ii) Copy of GPA and Agreement to Sell both dated 05.07.2001
is Mark A (colly)
(iii) Copy of Agreement to Sell dated 26.04.2011 is Mark B.
(iv) Two original rent agreements dated 18.10.2008 are Ex.PW-1/B and Ex.PW-1/C respectively.
(v) Copy of legal notice dated 31.10.2011 is mark C.
(vi) Copy of legal notice dated 14.12.2011 is Mark D.
(vii) Original AD, Postal receipts and courier receipts all dated 15.12.2011 are Ex.PW-1/D (colly).
(viii) Original electricity bills of the relevant period are Ex.PW- 1/E (colly).
7. In his cross examination, he deposed that the possession of the suit property was handed over to the defendant and no written agreement was entered into by the parties. He further deposed that another connected matter in respect of the suit property was filed by the defendant which is pending in Hon'ble High Court of Delhi. He further deposed that he did not know the status of that case. He further admitted that the defendant had deposited the balance amount of Rs.14,50,000/- in Hon'ble High Court of Delhi. He further deposed that since the defendant had not performed her duties as per agreement to sell, there is no question of transferring the property.
Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 8
8. On 04.02.2015, both the parties submitted that there are chances of settlement between the parties, hence the matter was fixed for settlement. On 11.11.2016, the matter was referred to Mediation Cell for settlement. On 02.02.2017, the matter was settled in Mediation Cell and time was sought for working out terms and conditions of the settlement. On 30.01.2018, since the terms of settlement at Mediation Centre were not complied with, matter was adjourned for further proceedings.
9. On 27.08.2018, Sh. Krishan Kumar was examined as PW-
2. He tendered his evidence affidavit as PW-2/A and stated that he was the witness to agreement to sell dated 26.04.2011 already Mark A. On 06.02.2020, he was cross examined. In his cross examination, he admitted that on the day of agreement, i.e. 26.04.2011, the defendant gave Rs.18,00,000/- to the plaintiff and the rest of the amount was to be given on or before 25.10.2011. He also deposed that the defendant had given one cheque to the plaintiff. He also admitted that the plaintiff had given possession of ground floor, first floor and second floor to the defendant. He also admitted that there is not agreement with regard to the said floors given on rent by the plaintiff to the defendant. He further deposed that he was present at the time of signing of the agreement alongwith the plaintiff, defendant and Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 9 one or two more persons. He also deposed that the approximate value of the suit property today would be around one crore. He also admitted that Dayawati was ready and agreed to buy the suit property. He further deposed that Rajpal never informed him about his intentions of selling or purchasing any immovable property. He further deposed that he did not remember as to who were the other persons alongwith him and Rajpal who went to meet defendant Dayawati to request her to make payment. He also deposed that those people were his neighbours and residents of his village, whom he did not remember now and had accompanied him and Rajpal two or three times. He also deposed that at the time when Rajpal agreed to rent the suit property, son and husband of defendant were present and nobody else was present. He also deposed that the agreement for rent was between plaintiff and son and husband of plaintiff.
10. On 12.05.2022, it was informed by ld. counsel for plaintiff that witness Om Prakash had expired and he may be dropped from the list of witnesses. Therefore, witness Om Prakash is therefore dropped from the list of witnesses.
11. On 01.02.2023, PW Sh. Rajesh Kumar was examined as PW-3. He tendered his evidence affidavit as Ex.PW-3/A. In his cross examination, he deposed that Rajpal is his maternal uncle. Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 10 He further deposed that in May 2011, he alongwith plaintiff, Krishan Kumar, Umed and Om Prakash went to the defendant and requested her to pay monthly rent to the plaintiff. He further deposed that he was not present in the negotiations between the plaintiff and defendant about the agreement to sell dated 26.04.2011, however the same was signed by the plaintiff and thumb impression was given by the defendant on the agreement in his presence. He further deposed that he did not remember as to when Dayawati and her family shifted to the suit property but they shifted after execution of the agreement to sell dated 26.04.2011. He further deposed that in May 2011, the plaintiff told him that defendant was not paying rent for the suit property. He also deposed that in the first meeting, Dayawati told them that she had no funds at the moment and she is arranging the same. He further deposed that no rent agreement was prepared in respect of the suit property in his presence.
12. Thereafter, plaintiff's evidence was closed and the matter was fixed for defendant's evidence.
13. On 22.08.2023, DW Smt. Dayawati was examined as DW-
1. She tendered his evidence affidavit Ex.DW-1/A and relied upon the following documents:
(i) Copy of account statement of her husband as Ex.DW-1/1 Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 11 (colly) (OSR).
(ii) Copy of internet generated order of Hon'ble High Court dated 01.02.2012 as Mark A.
(iii) Copy of Mediation Agreement dated 16.12.2016 as Mark B.
(iv) Copy of passbook of joint account in Central Bank of India as Mark C.
14. On 16.09.2023, she was cross examined. In her cross examination, she deposed that she had paid Rs.18,00,000/- for the purchase of the property and after keeping her belongings in the property, plaintiff had asked for money and therefore she paid Rs.50,000/-. She also deposed that plaintiff had not demanded any rent from her. She has denied that her tenancy was terminated by the plaintiff vide legal notice dated 14.12.2011.
She further deposed that she and her family are residing on only two floors of the suit property. She further deposed that she could not tell as to whether she replied to the legal notice dated 31.10.2011 from the address H.No.651, Village Shahbad, Mohammadpur where she was residing. She further deposed that Rs.14,00,000/- deposited by her in Hon'ble High Court in CS (OS) 251/12 has already been withdrawn by her.
15. On 22.08.2023, DW Sh. Chander Singh was examined as Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 12 DW-2. He tendered his evidence by way of affidavit as Ex.DW- 2/A and relied upon pages of his account statement for the period 30.07.2010 to 27.01.2012 as Ex.DW-2/1 (colly) (OSR). On 16.09.2023, he was cross examined. In his cross examination, he deposed that he was present at the time of execution of the Agreement to Sell dated 26.04.2011 and signed as a witness. He further deposed that in December 2011, he alongwith his family were residing on the 1st and 2nd floors of the suit property. He admitted that on 31.10.2011, plaintiff has sent a legal notice dated 31.10.2011 to them and the said legal notice was received by them at the suit property. He further deposed that the plaintiff did not intimate them about the cancellation of the Agreement to Sell dated 26.04.2011 in his legal notice dated 31.10.2011. He further deposed that he did not know the contents of reply dated 30.11.2011 in response to the legal notice dated 31.10.2011. He denied that in legal notice dated 14.12.2011, the plaintiff terminated the tenancy and asked them to vacate the suit premises. He further deposed that till date, they have not paid any rent to the plaintiff.
16. Vide order dated 16.09.2023, since other witnesses were not required to be examined, DE was closed and the matter was fixed for final arguments. On 03.02.2024, final arguments were Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 13 concluded and on 02.03.2024, the matter was fixed for judgment. CONTENTION OF PARTIES
17. Ld. Counsel for Plaintiff submitted that as the present suit was between the landlord and tenant, therefore, Section 7 (ix) of the Court Fees Act would apply and therefore, the suit was properly valued. He relied upon the judgment of the Hon'ble High Court of Delhi in Delton Cables Vs. Kishore Kumar Sharma and Ors (2010) SCC OnLine DEL 2414. He thereafter, submitted that the doctrine of Order II R 2 of CPC was inapplicable as the previous suit filed by the Defendant herein was a suit for specific performance and the causes of action being different, there was no question of a bar under Order II R 2 of CPC.
18. Coming to the main issues, it has been submitted that admittedly, the Plaintiff is the actual and absolute owner of the suit property. It has been submitted that the suit of the Defendant for specific performance of the agreement to sell dated 26.04.2011 has been dismissed by this Court and therefore, the suit for recovery of possession should be decreed. Consequently, it has been argued that the prayers for arrears of rent and mesne profits should also be decreed. Ld. Counsel for Plaintiff has also relied upon a judgment in M.C. Aggarwal Vs. Sahara India and Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 14 Ors (2011) SCC OnLine DEL 3715.
19. Per contra, Ld. Counsel for Defendant has firstly submitted that the earlier suit for specific performance is still pending as regular first appeal has been filed by the Defendant herein before the Hon'ble High Court of Delhi against the dismissal of her suit. It has been submitted that the appeal is the continuation of the suit and therefore, the present suit cannot be decreed as the earlier suit for specific performance is still pending. Secondly, it has been submitted that the Plaintiff has not been able to discharge his burden of proving the landlord-tenant relationship. It has been submitted that the Plaintiff has not brought any documentary evidence to show that the suit property was given on rent of Rs. 20,000/- per month to the Defendant. It has been submitted that the agreement dated 26.04.2011 which is the agreement to sell between the parties qua the suit property, is completely silent on the point that the property is being given on rent to the Defendant and therefore, Section 91 and 92 of the Indian Evidence Act, 1872 will come into play. It has been submitted that even the oral testimony of the Plaintiff witnesses including PW-2 does not substantiate the claim of landlord-tenant relationship. Ld. Counsel for Defendant has emphasized that as per the testimony of PW-2, the Defendant was not present when Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 15 the agreed upon rent was decided and therefore, there was no concluded contract qua the rent of Rs. 20,000/- per month. Ld. Counsel for Defendant has relied upon the judgment in S. Saktivel (dead) Through Lrs. Vs. Venu Gopal Pillai and Ors. (2000) 7 SCC 104 to buttress his point that the proving of the separate oral agreement of landlord-tenant is not permissible.
20. It has been further argued that the landlord-tenant relationship, if any, came to an end by virtue of the mediation agreement dated 16.12.2016. It has been submitted that during the pendency of the suit, the matter came to be settled and an agreement was drawn up by the Court appointed Mediator which resulted in a novation of the earlier agreements between the parties as per Section 62 of the Indian Contract Act, 1872 and therefore, the cause of action for the present suit was at an end. Ld. Counsel for Defendant relied upon the judgment of Union of India Vs. Kishori Lal Gupta (1959) SCC OnLine SC 6.
21. It has been further submitted by Ld. Counsel that the possession was handed over at the time of the agreement to sell which is indicative of the fact that the Defendant is occupying the property as an agreement purchaser and not as a tenant.
Consequently, Ld. Counsel for Defendant has prayed for a dismissal of suit.
Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 16 Findings Issue no. (i) : Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP.
22. Qua the issue of valuation of the present suit, I find force in the arguments of Ld. Counsel for Plaintiff. The present suit is based upon the landlord-tenant relationship and has been valued accordingly. The arguments of the Plaintiff remain unrebutted. Therefore, I find that the suit has been properly valued for the relief of possession on the basis of landlord-tenant relationship according to the amount of rent alleged by the Plaintiff. Issue no.
(i) is therefore, decided in favour of the Plaintiff and against the Defendant.
Issue no. (ii) : Whether the present suit is barred u/o II R 2 CPC? OPP.
23. Qua this issue also, I find force in the submissions of the Plaintiff. The suit for specific performance filed by the Defendant is on a separate cause of action and would not act as a bar upon the suit filed by the Plaintiff herein. Moreover, in that suit, the Plaintiff herein was the Defendant and therefore, in no position to pray for the reliefs claimed in the present suit. Order II R 2 of CPC would have no applicability whatsoever.
Issue no. (ii) is therefore, decided in favour of the Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 17 Plaintiff and against the Defendant.
Issue no. (iii) : Whether plaintiff is entitled for recovery of possession, as claimed? OPP.
24. The defence of the Defendant is inter alia that firstly, there was no landlord-tenant relationship and that the Plaintiff could not prove the same and secondly, that as the Defendant had entered into the suit property as an agreement purchaser, she was entitled to protect her possession from the Plaintiff.
25. Some preliminary objections raised by the Ld. Counsel for Defendant may be dealt with before further proceeding to consider the evidence.
The first objection that was raised was qua the pendency of the appeal of the suit for specific performance that was decided earlier by this Court. In my opinion, the pendency of the suit for specific performance would not bar the Court from pronouncing judgment in the present suit. Moreover, the cause of action for suit for specific performance and the present suit for recovery of possession is entirely different. It is the settled law that even the decree holder of a suit for specific performance does not have the right for possession of the property till such time as the decree is executed and conveyance deed is registered in his favour. It is not clear as to how the Counsel for Defendant Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 18 proposes to apply the doctrine of merger in the present case. The relief of specific performance and the relief for possession / eviction on the ground of landlord-tenant relationship operate in two different spheres. Therefore, the contention in this regard is misplaced.
The second contention to be considered is the argument of novation. It has been submitted that as the matter was settled before the mediator and the said mediation agreement was entered into between the parties, the same effaced the earlier agreement to sell and the alleged landlord-tenant agreement and parties entered into fresh obligations. Therefore, it has been submitted that the present suit cannot survive as the cause of action i.e. the landlord-tenant relationship also does not survive.
26. In my opinion, the contention is misplaced. As per the record, it is revealed that the parties were referred to mediation whereupon, a mediation agreement was arrived at between the parties. Two suits were referred to mediation i.e. the present suit and the earlier suit filed by the Defendant herein for specific performance. The order sheets would reveal that after the said mediation agreement was entered into on 16.12.2016, the parties sought and received multiple adjournments for complying with the compromise agreement. On 30.01.2018, it was recorded by Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 19 the Ld. Predecessor of this Court that the matter had to be proceeded as per law for Plaintiff's evidence as the terms of settlement were not complied with. Thereafter, again on 21.04.2018, it was again recorded that the matter was to be proceeded for Plaintiff's evidence as no joint application had been moved for passing of a compromise decree. As recorded herein, the matter was proceeded for evidence and in fact, both Plaintiff and Defendant have led evidence on multiple dates without pressing for the recording of a compromise by the Court under Order XXIII R 3 of CPC. Once the mediation agreement did not result in a passing of a consent decree, the same would mean that the said mediation agreement has outlived its utility and has in fact, been abandoned by the parties who have then proceeded to contest the suit by the recording of evidence. At no point did the Defendant press for the consummation of the mediation agreement. In fact, the agreement itself records that if the parties do not abide by the settlement, then they shall be at liberty to take appropriate action as per law. Therefore, the contention of the Ld. Counsel for Defendant that the mediation agreement has the effect of novation is misplaced in law and in fact.
27. Now, it has to be considered whether the Plaintiff is Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 20 entitled to the relief of possession. The following observations arise from the consideration of the evidence adduced and the arguments advanced by the parties:-
(a) It is the admitted position that the Defendant does not claim an independent title and in fact, traces her right to stay in possession from the unregistered agreement to sell dated 26.04.2011 which is an admitted document Mark B executed by the Plaintiff and Defendant whereupon, the Plaintiff had agreed to sell the property being plot no. 651, Village Shahbad, Mohammadpur, New Delhi-61 to the Defendant for a sale consideration of Rs. 32,50,000/-.
(b) The Plaintiff thereupon claims that the Defendant had requested for lease of the first floor and second floor of the suit property. It is further the claim that an oral month to month lease was arrived at between the parties at the rate of Rs. 20,000/- per month and therefore, the Defendant had entered into possession of the first floor and second floor of the suit property as a tenant. This has been disputed by the Defendant by submitting that no such agreement for a tenancy was arrived at and in fact, as she had paid a sum of Rs. 18,00,000/- as part consideration, the Plaintiff permitted her to enter into possession of the suit property and thereafter, reneged on the agreement and refused to Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 21 accept the balance sale consideration.
(c) The evidence for a landlord-tenant relationship is admittedly based upon the oral evidence of the Plaintiff and the other circumstantial evidence. It is notable that though, the Defendant claims to have entered into possession of the suit property as an agreement purchaser and not as a tenant, the said fact of the handing over of the possession does not find any mention in the agreement to sell dated 26.04.2011. Therefore, it becomes improbable that the possession of the suit property was handed over to the Defendant on execution and in furtherance of the agreement to sell.
(d) It is pertinent and significant to note that as per the evidence adduced, the suit property consists of a ground floor in addition to the first and second floors, however, it is the admitted fact that the Defendant is only in possession of two floors i.e. the first and second floors. In this regard, reference can be had to the cross-examination of Defendant / DW-1 dated 16.09.2023 where the said fact has been deposed by her. If the possession was handed over to her in part performance of the agreement to sell, then common sense would dictate that she would obtain possession of the entire suit property and not merely the first and second floor. On the other hand, this fact makes the story of the Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 22 Plaintiff more probable. The Plaintiff from the very beginning has pleaded that the Defendant was inducted as a tenant on the first and second floor of the property due to which he had also evicted his earlier tenants which were corporate entities. The Plaintiff has also corroborated the same in his evidence. Therefore, the story of the Plaintiff has the ring of truth in it.
(e) The Plaintiff has also been able to prove that he sent a legal notice for eviction dated 14.12.2011. DW-2 who is the husband of the Defendant admitted during the cross-examination dated 16.09.2023 that they had received the legal notice dated 14.12.2011. He also deposed that they had consulted their Counsel about sending the reply. However, it is the admitted fact that no such reply has been proved by the Defendant. No explanation is forthcoming as to why the reply was not sent to the aforesaid notice. Rather, it appears that in the WS, the Defendant took up the false plea that she has no knowledge about the sending of the said legal notice, even though, her husband DW-2 admitted the same in the cross-examination. Adverse inference can be drawn from the said fact and the failure to give a reply shall also go against the Defendant and in favour of the Plaintiff. The said legal notice clearly lays out the factum of tenancy and the rate of rent which has remain unrebutted by the Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 23 Defendant by any corresponding reply.
In Dinesh Bhardwaj v. Janardhan Singh 2016 SCC OnLine Del 4740, the Hon'ble High Court had observed that:
"it is noted that the respondent no. 1/plaintiff had sent a Legal Notice dated 26.8.1996 Ex.PW1/12 to the appellants/defendant nos. 1 and 2 but the same was not replied to. The registered post receipts and the UPC with respect to the legal notice have been proved and exhibited as Ex.PW1/13 and Ex.PW1/14. In this legal notice, respondent no. 1/plaintiff has clearly asked the appellants/defendant nos. 1 and 2 to make the payment of the bills as respondent no. 1/plaintiff was engaged by the appellants/defendant nos. 1 and 2 as a sub- contractor. This legal notice was not replied to by the appellants. Non reply to the legal notice by the appellants becomes crucial in a case like this more so when the appellants/defendant nos. 1 and 2 did not file their income tax returns or their books of accounts. Non replying to the legal notice amounts to admission of the contents of the notice against the appellants."
Therefore, the circumstantial evidence corroborates the story of the Plaintiff qua the landlord-tenant relationship between Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 24 the Plaintiff and Defendant and I find that the story of the Plaintiff has been proved on a preponderance of probabilities.
(f) Here I may deal with the contention of the Ld. Counsel for Defendant that the proof of a tenancy is barred under Section 91 and 92 of the Indian Evidence Act, 1872 as the agreement Mark B dated 26.04.2011 is conclusive of the rights and obligations of the parties and therefore, the Plaintiff is not at liberty to produce evidence in contradiction of or supplanting the written agreement. I find that the contention is misplaced and lacks merit. In the first instance, the agreement is completely silent about the handing over of possession of the suit property to the Defendant. Secondly, the inference that can be drawn is that the handing over of possession was done under a separate oral agreement not forming part of the agreement Mark B dated 26.04.2011. Therefore, the proof of a separate oral agreement of tenancy would not constitute a contradiction, variation, addition or subtraction from the written agreement to sell. Therefore, Section 91 and 92 of the Indian Evidence Act would not be applicable to the facts of the present case.
(g) The Ld. Counsel for Defendant has relied heavily upon the cross-examination of PW-2 who has deposed that at the time when the Plaintiff agreed to rent the suit property, only the son Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 25 and husband of Defendant were present. He has therefore, submitted that there is no contract between the Plaintiff and Defendant. The evidence of PW-2 cannot be stretched to this extent. He was not specifically confronted or questioned that the Defendant was absent and in fact, from reading of the entire evidence, it appears that it was implied that only the family members of the Defendant were present at the time when the tenancy was agreed upon. To construe from the said testimony that the Defendant was absent would be a leap too far.
(h) I have also considered whether the Plaintiff can be granted the relief of possession even if it is assumed that the Plaintiff could not prove the relationship of a landlord and a tenant between him and the Defendant.
In Bhagwati Prasad v. Chandramaul, 1965 SCC OnLine SC 111 : (1966) 2 SCR 286 : AIR 1966 SC 735 : (1967) 1 SCJ 666, the Hon'ble Supreme Court of India found that:
"10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 26 knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 27 would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
11. Therefore, in dealing with Mr Setalvad's argument, our enquiry should not be so much about the form of the pleadings as their substance; we must find out whether the ground of licence on which the plaintiff's claim for ejectment has been confirmed by the High Court was in substance the subject-matter of the trial or not; did the defendant know that alternatively, the plaintiff would rely upon the plea of licence and has evidence been given about the said plea by both the parties or not? If the answers to these questions are in favour of the plaintiff, then the technical objection that the plaint did not specifically make out a case for licence, would not avail the defendant.
12. Turning then to the pleadings and evidence in this case, there can be little doubt that the defendant knew what he was specifically pleading. He had admitted the title of the plaintiff in regard to the plot and set up a case as to the manner in which he spent his own money Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 28 in constructing the house. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas are clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that of an owner of property and a person put into possession of it by the owner's licence. No other alternative is logically or legitimately possible. When parties led evidence in this case, clearly they were conscious of this position, and so, when the High Court came to the conclusion that the tenancy had not been proved, but the defendant's agreement also had not been established, it clearly followed that the defendant was in possession of the suit premises by the leave and licence of the plaintiff. Once this conclusion was reached, the question as to whether any relief can be granted to the plaintiff or not was a mere matter of law, and in deciding this point in favour of the plaintiff, it cannot be said that any prejudice has been caused to Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 29 the defendant.
13. When Mr Setalvad was pressing his point about the prejudice to the defendant and the impropriety of the course adopted by the High Court in confirming the decree for ejectment on the ground of licence, we asked him whether he could suggest to us any other possible plea which the defendant could have taken if a licence was expressly pleaded by the plaintiff in the alternative. The only answer which Mr Setalvad made was that in the absence of definite instructions, it would not be possible for him to suggest any such plea. In our opinion, having regard to the pleas taken by the defendant in his written statement in clear and unambiguous language, only two issues could arise between the parties : is the defendant the tenant of the plaintiff, or is he holding the property as the licensee subject to the terms specified by the written statement? In effect, the written statement pleaded licence, subject to the condition that the licensee was to remain in possession until the amount spent by him was returned by the plaintiff. This latter plea has been rejected, while the admission about the permissive character of the Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 30 defendant's possession remains. That is how the High Court has looked at the matter and we are unable to see any error of law in the approach adopted by the High Court in dealing with it.
14. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon two of its earlier Full Bench decisions. In Abdul Ghani v. Musammat Babni [25 All 256] the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 31 Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu [25 All 498].
15. It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. The importance of the pleadings cannot, of course, be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 32 the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial that the formal requirement of pleadings can be relaxed. In the present case, having regard to all the facts, we are unable to hold that the High Court erred in confirming the decree for ejectment passed by the trial court on the ground that the defendant was in possession of the suit premises as a licensee. In this case, the High Court was obviously impressed by the thought that once the defendant was shown to be in possession of the suit premises as a licensee, it would be futile to require the plaintiff to file another suit against the defendant for ejectment on that basis. We are not prepared to hold that in adopting this approach in the circumstances of this case, the High Court can be said to have gone wrong in law."
In the present case, though I have already found that the Plaintiff has been able to prove on a preponderance of probabilities the landlord-tenant relationship, however, even if it was found that the Plaintiff had been unable to do so, the Court would exercise its discretion under Order VII R 7 of CPC to Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 33 grant the Plaintiff the relief of possession. In the present case, whether the Plaintiff would plead a tenancy, a licence, or that the possession was handed over in pursuance of the agreement to sell, the defence of the Defendant would not substantially change and in all three cases, the suit of the Plaintiff would have to be decreed for possession.
In Sunil Kapoor v. Himmat Singh, 2010 SCC OnLine Del 354 : ILR (2010) 2 Del 616 : (2010) 167 DLT 806 : (2010) 115 DRJ 229, Hon'ble High Court of Delhi had held that:
"11. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v. Narain Das, AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the petitioner has no right to Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 34 remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.
12. Section 53 (A) of the Transfer of Property Act codifies the doctrine of part performance. A purchaser of immovable property, who in pursuance to an agreement to sell in writing has been put into possession of the property, is entitled to so remain in possession. However, in the present case, there is no agreement to sell in writing : The respondents/plaintiffs deny inter alia the averments of the petitioner/defendant of what transpired on 8th July, 2004. Be that as it may, in none of the receipts relied upon by the petitioner/defendant, is there any mention of delivery of possession/constructive possession to the petitioner/defendant of the premises in part performance of the agreement to sell. The express plea of the petitioner/defendant in this regard is also of an oral agreement to that effect on 8th July, 2004. Even if the receipts relied upon by the petitioner/defendant are to be termed as an agreement in writing, the same as per the petitioner/defendant also are executed by the Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 35 respondents 1 & 2 only. There is no agreement in writing with the respondent no. 3. The property admittedly belongs to all three of them and the petitioner is claiming the agreement with all three of them. There is no authority in writing shown of the respondent no. 3 in favour of respondent no. 1 and/or respondent no. 2. The agreement to sell with the respondent no. 3 as per the plea of the petitioner/defendant is thus oral only.
13. Even the writing claimed by the petitioner/defendant does not provide the possession of the premises having been delivered to the petitioner/defendant in pursuance to the agreement to sell. From the pleas of the petitioner/defendant himself, notwithstanding the oral agreement to sell dated 23rd February, 2004, he was liable to pay rent thereof and also continued to pay the rent. It is his case that only on 8th July, 2004, it was orally agreed by the respondent No. 2 with the petitioner/defendant that he should not pay rent w.e.f. 1st August, 2004 and thereafter should continue to occupy the premises in pursuance to the agreement to sell. There is nothing to Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 36 support the said plea of the petitioner/defendant which essentially is of an oral agreement on 8th July, 2004. The said plea, in the face of the notice dated 22nd July, 2004 sent by all the respondents of termination of tenancy of the petitioner even otherwise does not inspire confidence. It is not the case of the petitioner/defendant that anything has happened between 8th July, 2004 and 22nd July, 2004 owing whereto the respondents/plaintiffs change their mind. It defies logic as to why the respondent no. 2, alleged to have agreed with the petitioner/defendant on 8th July, 2004 not to pay rent w.e.f. 1st August, 2004, within days thereafter will change her mind and have a notice of termination of tenancy issued to the petitioner/defendant. Ordinarily there is a hiatus between the date of instructing the advocate and the date of issuance of the notice. It can be presumed that the instructions for issuance of notice dated 22nd July, 2004 would have been issued even earlier to that date.
In the circumstances, the plea of the petitioner/defendant of what transpired on 8th July, 2004 cannot be accepted.
Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 37
14. Even otherwise, the Stamp Act and the Registration Act as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment an agreement to sell of immovable property where-under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his possession in part performance of the agreement to sell.
15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined. Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 38
16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment.
17. 1 also find that beside the judgments relied by the counsel for the respondents/plaintiffs, another Single Judge of the Andhra Pradesh High Court in Gollu Bhavani Sankar v. Bhogavalli Rajeswara Rao and the Madhya Pradesh High Court in Prakash Chand Soni v. Anita Jain have also refused to stay the eviction proceedings due to pendency of suits for specific performance of agreement to sell."
It is the admitted position that the Defendant at best is an agreement purchaser who has no registered conveyance deed in her favour qua the suit property. The agreement to sell is unregistered and therefore, the post 2001 Amendment Act position would be applicable and even the protection of Section 53A of the Transfer of Property Act would be unavailable. Therefore, in equity, the only logical conclusion can be to decree Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 39 the suit of the Plaintiff for possession.
Consequently, issue no. (iii) is decided in favour of the Plaintiff and against the Defendant.
Issues no. (iv) and (v) : Whether plaintiff is entitled for mesne profit, if so, to what extent? OPP;
Whether plaintiff is entitled to arrears of rent, as claimed? OPP.
28. Consequently and as a logical corollary, I find that the Plaintiff is entitled to a sum of Rs. 1,60,000/- as arrears of rent.
Now it is to be considered whether the Plaintiff is also entitled to mesne profits and the quantum thereof. Admittedly, the Plaintiff had informed the Defendant that she must vacate the property vide legal notice dated 14.12.2011. It is the admitted position that the Defendant has remained in possession of the suit property since the filing of the suit. It is also the admitted position and which has not been disputed that prior to putting the Defendant in possession of the property, the Plaintiff was enjoying a rental income from the same which was around Rs. 12,000/- per month as per the rent agreements Ex. PW1/B and Ex. PW1/C. This position has not been seriously disputed by the Defendant during the cross-examination of the Plaintiff and Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 40 therefore, the same also stands proved. DW-2 has also admitted that the first and second floors of the suit property were leased out by the Plaintiff to a company though he was not aware about the details of the said company.
29. Consequently, I find that the Plaintiff would be entitled to mesne profits which he would have otherwise enjoyed with ordinary diligence from the property. From the material on record and taking into account the increase of rents over the past decades for properties situated in Delhi and including the element of healthy guess work, I find that the ends of justice would be satisfied if the Plaintiff is awarded pendente lite and future mesne profits at the rate of Rs. 15,000/- per month from the date of filing of the present suit till date of handing over the vacant and peaceful possession of the suit property by the Defendant.
Issues no. (iv) and (v) are decided accordingly in favour of the Plaintiff and against the Defendant.
RELIEF
30. Therefore, the suit of the plaintiff is decreed with the following reliefs:
(a) Decree of possession of the suit property i.e. first and Sh. Rajpal vs Smt. Dayawati Suit No. 16887/16 41 second floor of plot no. 651, Village Shahbad Mohammadpur, New Delhi - 110061. The Defendant shall hand over the vacant and peaceful possession of the same to the Plaintiff;
(b) Decree of recovery of arrears of rent to the tune of Rs.
1,60,000/- and
(c) Decree of recovery of pendente lite and future mesne profits at the rate of Rs. 15,000/- per month from the date of filing of the present suit till date of handing over the vacant and peaceful possession of the suit property by the Defendant.
(d) Future interest on the arrears of rent and mesne profits at the rate of 6% per annum till date of realization.
(e) Costs of the suit are awarded to the Plaintiff, to be paid by the Defendant.
31. Decree sheet be prepared accordingly after deposit of appropriate court fees by the Plaintiff in terms of relief in para (c) above.
32. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2024.04.16
15:28:40
+0530
Announced in the open court (Sh. Divyang Thakur)
On 16.04.2024 DJ-03/South West
Dwarka / New Delhi
Sh. Rajpal vs Smt. Dayawati