Delhi District Court
Smt. Ranjana Mitra vs Ashok Kumar Mazumdar on 22 February, 2022
DLSE010091222019
Presented on : 08112019
Registered on : 13112019
Decided on : 22022022
Duration : 2 years, 3 months, 14 days
Date of Institution : 08.11.2019
Date reserved for judgement : 05.02.2022
Date of announcement of judgement : 22.02.2022
Decision : Appeal Allowed.
IN THE COURT OF SH.MUNISH MARKAN, ADDITIONAL
DISTRICT JUDGE(ADJ02) SOUTH EAST, DISTRICT COURTS,
SAKET, AT NEW DELHI
RCA DJ/133/2019
Smt. RANJANA MITRA
W/o Sh. B. K. Mitra
R/o : H.No. A80,
Chitranjan Park, New Delhi 110019 .... Appellant
VERSUS
1. ASHOK KUMAR MAZUMDAR
S/o Late Sh.R. K. Mazumdar,
R/o H.No. 947, Urban Estate,
Phagwara, District Kapurthala,
Punjab144401
RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 1/27
2. Smt. Deepa Dass,
W/o Sh.Bijon Dass,
D/o Late Sh.R. K. Mazumdar,
R/o J. K. Steel, Quarter Gate,
Subhash Nagar,
P.O. Nova Gram, District - Hoogly
West Bengal - 712246
3. Dr. Meena Chakravarty
W/o Sh.Kanti Lal Chakravarty,
D/o Late Sh. R. K. Mazumdar,
R/o Flat No.163, SFS Flats,
East Mukherjee Nagar,
Delhi
4. Dr. Meena Mazumdar,
D/o Late Sh.R. K. Mazumdar,
R/o H. No.67, NFL Colony, Sector 2,
Naya Nangal Dfistrict Roop Nagar (Ropar)
Punjab
5. Ms. Krishna Mazumdar
D/o Late Sh.R. K. Mazumdar
R/o H. No.67, NFL Colony, Sector 2,
Naya Nangal Dfistrict Roop Nagar (Ropar)
Punjab .... Respondents
J U D G M E N T:
1. This is the second round of first appeal. The appellant/ defendant no.1 having lost before the Trial Court had filed this first appeal being aggrieved by the judgement and decree dated 01.10.2019 passed by RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 2/27 the Ld. Trial Court in Civil Suit No.50607/2016 whereby the Ld. Trial Court decreed the suit filed by the respondent no.1/ plaintiff for possession, arrears of rent and mesne profits in respect of the suit property and defendant no.1 was treated to be a tenant therein notwithstanding the fact that defendant no.1 was found to be in long possession of the suit property and unregistered Agreement To Sell and GPA both dated 22.11.1994 having been executed in favour of appellant/ defendant no.1 by Late Sh.Rohini Kumar Mazumdar(hereinafter referred to as R.K. Majumdar), the predecessor in interest /father of respondent no.1/ plaintiff. The other respondent no.2 to 5/ defendants no.2 to 5 are also the LRs of late Sh.R. K. Mazumdar through whom the plaintiff claimed interest in the suit property. Plaintiff/Respondent no.1's Case:
2. The plaintiff/Respondent No. 1 herein Shri Ashok Kumar Mazumdar, being the son/legal heir of the alleged landlord Late Sh.R.K.Majumdar, filed the suit against the Appellant/defendant no.1, the alleged tenant and the other legal heirs of Sh. R.K.Majumdar/Respondents No. 2 to 5/proforma defendant no. 2 to 5 and sought possession of the "tenanted" premises bearing No. A80, Chitranjan Park, New Delhi (hereinafter referred to as 'suit property') and recovery of arrears of rent amounting to Rs. 36,000/ along with interest @ 18% per annum and mesne profits/damages @ Rs. 25,000/ per month w.e.f. 01.02.2015 along with interest @ 18% per annum.
3. As per plaint, Late Shri R.K. Mazumdar was allotted the suit land RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 3/27 by the Ministry of Rehabilitation, Government of India, vide registered Lease Agreement dated 24.11.1969. Sh. R.K. Mazumdar constructed a house over the said land in the year 1991 by raising a loan from LIC through DDA against mortgage of the property with DDA. Shri R.K. Mazumdar inducted the Appellant Smt. Ranjana Mitra as a tenant with respect to the entire suit premises, except for one rear right bedroom and store, shown separately in red in the site plan, with all fittings and fixtures at ground floor, initially vide Tenancy Agreement dated 22.11.1992 and later vide Tenancy Agreement dated 31.01.1995 for a period of two years ending on 31.12.1996. Vide this latter Agreement, the rent was Rs. 6,000/ per month. However, on account of friendly relationships between Late Sh. R.K.Mazumdar and Sh. B.K. Mitra, husband (now deceased) of the present Appellant, it was verbally agreed that out of the said monthly rent, appellant would deposit Rs. 5,457.30/per month with DDA to discharge the loan liability of Rs. 523543.85/ and pay the balance to Late Shri Mazumdar. Appellant was paying the rent in accordance with agreed terms during the lifetime of Late Sh.R. K. Mazumdar.
4. There were in total 264 monthly instalments to be payable to DDA from the period 10.12.1991 to 09.12.2013 but after the death of the landlord i.e. Sh.R. K. Mazumdar, the husband of defendant no.1/ appellant failed to tender the rendition of accounts i.e. monthly instalment paid and the balance rent payable despite verbal requests of the plaintiff/ respondent no.1 Sh.Ashok Kumar Mazumdar.
RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 4/275. Respondent No. 1 further stated that after the death of Late Shri R. K. Mazumdar on 05.12.1998, Appellant/ defendant no.1 changed her stand and started making claims of being the purchaser of the premises and also stopped paying the rent. On 11.08.2014, when Respondent No. 1 and his wife tried to enter the portion of the premises in their possession and sought arrears of rent, they were denied entry and were threatened with dire consequences by the Appellant. This conduct of the Appellant compelled Respondent No. 1/plaintiff to send a legal notice dated 22.11.2014 to the Appellant, determining the monthtomonth tenancy, which even otherwise had come to an end by efflux of time under the Tenancy Agreement dated 31.01.1995. Failure on the part of the Appellant/ defendant no.1 to vacate the premises led to the filing of the Suit by Respondent No. 1 seeking possession, arrears of rent and mesne. Plaintiff further stated that he filed RTI application with the DDA on the same day to know the status of the suit property regarding the loan amount. Plaintiff retired from JCT Mills, Phagwara, Punjab on 25.12.2013. Therefore, he filed the present suit. STAND OF THE APPELLANT/ DEFENDANT NO.1
6. The defendant no.1/ appellant took the stand that there existed no landlord and tenant relationship and defendant no.1 is the owner of the suit premises along with her son Sh.Debjyoti Mitra having purchased the same from Sh.R. K. Mazumdar, the father of the plaintiff/ respondent no.1 which fact was to the knowledge of the plaintiff. It is stated that appellant/ defendant no.1 was the owner of the first floor of the adjoining house no.A RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 5/27 79, Chitranjan Park, New Delhi. Late Sh.R. K. Mazumdar the father of the plaintiff approached the husband of the appellant with an offer to sell the roof rights of the suit premises as he was not able to maintain the property and was permanently stationed at Amritsar, Punjab and property was in dilapidated state. Though the husband of defendant no.1 wanted to purchase the property but did not have additional funds. Therefore, he proposed that he would require to sell his adjacent property A79, Chitranjan Park, New Delhi in order to buy the roof rights of the suit property and in the mean time, the husband of defendant no.1/ appellant would require an alternate place to reside in. To this, the father of the plaintiff/ respondent no.1 offered to husband of defendant no.1/ appellant to stay at the ground floor of the suit property and pay the rent till the constructions of the floors above is completed. Since, the suit property was in a very bad condition and inhabitable and the father of the plaintiff cited financial constraints and asked the husband of the defendant no.1 to carry out the repairs of the ground floor at his own expense and to deduct the amount spent from the total amount to be paid by the husband of defendant no.1/ appellant to the father of the plaintiff/ respondent no.1 towards upper floors to be purchased in the said property. The husband of the appellant spent Rs.1,90,000/ on the said repairs and the family shifted to the ground floor.
7. Further, appellant/ defendant no.1 stated that thereafter, Sh.R. K. Mazumdar, the father of the plaintiff offered to sell the entire house to RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 6/27 the appellant and her son for a sum of Rs.9 Lakh, after adjusting Rs.1,90,000/ spent on the repairs of the ground floor and Rs.1,40,000/ paid towards the rent. A sum of Rs.5,65,000/ was immediately paid by the appellant and her son to Sh.R. K. Mazumdar and in respect of the balance sale consideration of Rs.3,35,000/, it was agreed that the same would be paid after Sh.R. K. Mazumdar obtain relevant documents from DDA and discharge his loan liability within stipulated time and in case he did not discharge his loan liability, the appellant/ defendant no.1 would pay the outstanding loan amount directly to DDA and in case of any excess amount become payable to DDA by defendant no.1, defendant no.1 would be entitled to recover the said excess amount from Sh.R. K. Mazumdar. An agreement to sell dated 22.11.1994 was executed by Late Sh.R. K. Mazumdar in favour of appellant/ defendant no.1 and her son along with an irrevocable General Power of Attorney dated 22.11.1994 in favour of husband of the appellant, conferring upon him the powers to deal with the property in any manner he likes including the power to sell. Therefore, the property in question stood sold to defendant no.1 and her son on 22.11.1994 and there was no occasion for the father of the plaintiff or defendant no.1 to have entered into the alleged tenancy agreement dated 31.01.1995.
8. The appellant/ defendant no.1 further took the stand that agreement dated 31.01.1995 is a forged and fabricated document and even the signatures of Late father of the plaintiff on the said document did not RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 7/27 match with the signature of late father of plaintiff on the other documents placed on record by the plaintiff himself. The father of the plaintiff during his lifetime, never came forward to agitate any of his right in the suit property nor did he raise any demand of money in the form of consideration or rent on account of the transaction already happened and the balance dues in respect of said suit property towards DDA were much more than the balance consideration amount shown in the agreement to sell and the plaintiff had the full knowledge of the said transaction of the sale. Further, in para 2 of the reply on merits in the written statement, defendant no.1/ appellant took the stand that she and her son are in possession of the "complete property". Defendant no.1 further denied that plaintiff ever visited the suit property on 11.08.2014 or any other date either prior or subsequent thereto.
9. Respondent no.2 to 5/ defendants no.2 to 5 filed the written statement wherein they took the plea claiming also to be the legal heirs of Late Sh.R. K. Mazumdar and claimed share in the suit property and prayed for transposing them as plaintiffs.
10. Plaintiff/ respondent no.1 also filed replication reiterating his stand as made out in the plaint and controverting the stand taken by the defendant no.1.
11. Further, plaintiff/ respondent no.1 denied the execution of the agreement to sell and GPA dated 22.11.1994 and the stand of the defendant no.1 taken in this regard. It is further stated that out of 264 instalments, RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 8/27 only 42 instalments were paid but the husband of the defendant no.1 failed to regularly pay after 35th instalment dated 10.10.1994. Besides, the suit property could not have been sold on 22.11.1994 without getting Mortgage released from DDA and sale permission to L& DO and therefore, there was no question of selling of the suit property as alleged as the father of the plaintiff was not competent to sell the suit property and any agreement to sell, if any, it was void, abinitio, and therefore, unenforceable in law. Further, Sh.R. K. Mazumdar terminated the tenancy of defendant no.1/ appellant vide registered AD letter / notice dated 13.11.1994 asking her to vacate the suit premises on or before 31.12.1994 though the same was not received at her end and therefore, there was no occasion to execute the agreement to sell and GPA dated 22.11.1994 soon after and even otherwise the alleged agreement to sell and GPA are only notarized documents and are not registered as required under the law and therefore inadmissible.
12. From the pleadings of the parties, following issues were framed:
ISSUES:
1. Whether the plaintiff is entitled to the possession of premises no. A80, C. R. Park, New Delhi90 as shown in the site plan? OPP
2. Whether the plaintiff is entitled to arrears of rent to the tune of Rs. 36000/ besides interest as prayed for against defendant no.
1? OPP
3. Whether the plaintiff is entitled to mesne profits of Rs.25,000/per month against defendant no.1 since 01.02.2015 as RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 9/27 prayed for besides interest? OPP
4. Whether the plaintiff is entitled to cost of suit as prayed for? OPP
13. During the trial, plaintiff examined three witnesses ie. PW1 Sh.Ashok Kumar Mazumdar (plaintiff) who tendered his affidavit as Ex.PW1/1 and relied upon the documents Ex.PW1/2 to Ex.PW1/20 and Mark A to Mark D. PW2 Sh.Dinesh Singh deposed regarding the RTI application filed by the plaintiff before DDA. PW3 Sh.Jaglal Mahto witness from the L& DO deposed and relied on certain documents Ex.PW 3/1 to Ex.PW3/4.
14. During defence evidence, defendant examined two witnesses i.e. herself as DW1 Ms.Ranjana Mitra i.e. appellant who tendered the affidavit as Ex.PW1/A and relied upon the documents Ex.DW1/1 to Ex.DW1/4. Defendant no.1 also examined DW2 Sh.Subrat Debnath, who tendered his affidavit as Ex.DW2/1 and deposed in favour of the defendant no.1 claiming to be the attesting witness to Agreement to Sell and GPA dated 22.11.1994.
15. I have heard Ld. Counsel for the parties at length and have gone through the Trial Court as well as Appellant Court record carefully.
The issue wise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to the possession of RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 10/27 premises no. A80, C. R. Park, New Delhi90 as shown in the site plan? OPP
16. It is the admitted case of both the parties that the tenancy agreement dated 22.01.1992 Ex.PW1/8 was executed between the defendant no.1 Smt. Ranjana Mitra and the father of the plaintiff/ respondent no.1 namely Sh.R. K. Mazumdar. As per this tenancy agreement Ex.PW1/8, the monthly rent was fixed at Rs.4000/ per month out of which Rs.1000/ was to be paid by the tenant to the owner and the balance amount of Rs.3000/ was to be kept by the tenant against adjustment of amount of Rs.45,000/ spent by the tenant in connection with miscellaneous repair works. At the bottom of two page agreement Ex.PW1/8, there is handwritten endorsement dated 01.02.1993 duly signed by Sh.R. K. Mazumdar and Mrs.Ranjana Mitra as well as by the present respondent no.1/plaintiff Sh.Ashok Kumar Mazumdar and the husband of the present appellant/ defendant no.1 namely Sh.Bijoy Mitra as witness, as per which rent was increased to Rs.4500/ per month w.e.f. 01.02.1993 for another 12 months, the other terms and condition remained unchanged. The original tenancy agreement dated 22.01.1992 Ex.PW 1/8 was witnessed by two witnesses Sh.Bijoy Mitra i.e. husband of defendant no.1 and one Sh.Arun Prasad Sinha. There is purpose behind this elaboration of the contents of Ex.PW1/8 dated 22.01.1992 and its subsequent extension dated 01.02.1993 explained RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 11/27 hereinbelow.
17. The stand of the plaintiff/ respondent no.1 is that no agreement to sell and GPA both dated 22.11.1994 Ex.DW1/1 and Ex.DW1/2 were executed and these are forged documents. Plaintiff has taken the stand that instead, the tenancy was extended by another tenancy agreement dated 31.01.1995 Ex.PW1/7 allegedly executed between Sh.R. K. Mazumdar and the present defendant no.1/ appellant Smt. Ranjana Mitra. As per the stand of the appellant/ defendant no.1, this tenancy agreement Ex.PW1/7 is a forged and fabricated document.
18. This second Tenancy agreement dated 31.01.1995 Ex.PW1/7 is a two page document and first page is a stamp paper of Rs.2/ and on the backside of this, there is a stamp of stamp vendor which clearly shows that this stamp paper was issued on 17.04.1995. The date of the alleged tenancy is 31.01.1995. It is very difficult to fathom this fact that the stamp paper purchased on 17.04.1995 can bear the tenancy agreement dated 31.01.1995. Secondly, the signature of Sh.R. K. Mazumdar on the second page of the tenancy agreement dated 31.01.1995 Ex.PW1/7, on the face of it, appears to be not signed by him as the "hallmark" underline of his signature which is present on all other documents, even relied upon by the plaintiff/ respondent no.1, is conspicuously missing. Besides, at the place of two witnesses, there are signature of two persons. Name of witness no.1 is not given and from the signature, it is not possible to figure it out as to who has signed it. The second witness is one Sh.G. B. Kar. No further details as to RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 12/27 what is the address can be made out. It is in stark contrast to the tenancy agreement dated 22.01.1992 Ex.PW1/8 where the specific addresses of witnesses find mention. Therefore, so far as the observation of the Trial Court is concerned that this tenancy agreement dated 31.01.1995 Ex.PW 1/7 appears to be not genuine is correct and no fault can be found therein.
19. Now coming to the agreement to sell dated 22.11.1994 Ex.DW 1/1 purported to be executed between Sh.R. K. Mazumdar, the father of respondent no.1 and the present appellant/ defendant no.1 Mrs. Ranjana Mitra and her son Master Debjyoti Mitra. Another document is the GPA dated 22.11.1994 purported to be executed by Sh.R. K. Mazumdar in favour of Sh.Bijoy Kumar Mitra, the husband of the appellant/ defendant no.1. First and foremost question is the whether these two documents were executed or not, as the plaintiff/ respondent no.1 has disputed the genuineness of these two documents. The Trial Court record reflects that while tendering in evidence, documents Ex.DW1/1 and Ex.DW1/2 were exhibited and their originals were seen and returned. I have asked the appellant/ defendant no.1 to produce the originals of Ex.DW1/1 and Ex.DW1/2 which have been produced today and I have carefully perused these two documents and returned the originals. The agreement to sell Ex.DW1/1 is a 3 page document bearing the signatures of Sh.R. K. Mazumdar on each page as well as of appellant/ defendant no.1 Mrs. Ranjana Mitra. Further, these documents were witnessed by two witnesses i.e. Sh.Dipak Mitra and DW2 Sh.Subrata Debnath and these documents RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 13/27 were notarized. Similarly, the GPA Ex.DW1/2 also bears the signature of Sh.R. K. Mazumdar on the side at the two pages and at the appropriate place at page no.3 with the same two witnesses and it was also attested by the same notary. The signature of Sh.R. K. Mazumdar on these documents on each page bear 'striking resemblance' with the signature of Sh.R. K.Mazumdar and other documents filed by the plaintiff. Plaintiff/ respondent no.1 has placed on record the deposit receipt Ex.PW1/11 and tenancy agreement dated 22.01.1992 Ex.PW1/8 which bear the signatures of Sh.R. K. Mazumdar at two places. Plaintiff has also sought to rely upon another document Ex.PW1/9 which is purported to be an eviction notice which also bears the signature of Sh.R. K. Mazumdar (is dealt with separately regarding rest of its contents).
20. Further, the plaintiff has also placed number of receipts Ex.PW 1/X1 to Ex.PW1/X4 which also bear signature of Sh.R. K. Mazumdar. It is worthwhile to note that the signature of Sh.R. K. Mazumdar are complete signature and the way Sh.R. K. Mazumdar used to sign on these documents relied upon by the plaintiff have striking resemblance of signature on agreement to sell Ex.DW1/1 and that of GPA Ex.DW1/2 on each page. Not only that, the defendant no.1 had also examined DW2 Sh.Subrata Debnath who is one of the witnesses Agreement to sell and GPA Ex.DW 1/1 and Ex.DW1/2. Perusal of cross examination of DW2 Sh.Subrato Debnath reflects that his testimony could not be breached in material particulars so as to discredit this witness. On the part of defendant no.1/ RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 14/27 appellant, he has led the best evidence i.e. production of the original documents which withstood the test of visual scrutiny as well as examining one of the attesting witness DW2. In my considered opinion, the defendant no.1/ appellant discharged her burden and satisfactorily proved the execution of these two documents Ex.DW1/1 and Ex.DW1/2.
21. However, so far as the respondent no.1/ plaintiff is concerned, he has failed to disprove this fact that these two documents Ex.DW1/1 and Ex.DW1/2 are forged and fabricated document. He has also failed to placed the best evidence i.e. by examining the Notary Public Sh.Om Prakash Arora who had notarized these two documents. Therefore, considering the documents on record and the totality of the facts and circumstances, in my considered opinion, the fact that the agreement to sell Ex.DW1/1 and GPA Ex.DW1/2 are in fact duly executed stands duly proved. Therefore, in this regard, I concur with the observations of Ld. Trial Court that these documents Ex.DW1/1 and Ex.DW1/2 are genuine documents and the tenancy agreement dated 31.01.1995 Ex.PW1/7 does not appear to be a genuine document.
22. The appellant/ defendant no.1 has taken the plea that the defendant no.1 though was a tenant in the suit property except one room and store but had purchased the whole of the suit property vide agreement to sell and GPA both dated 22.11.1994 Ex.DW1/1 and Ex.DW1/2 and had become owner thereof and by virtue of doctrine of part performance u/s 53A of The Transfer of Property Act, the defendant no.1 is entitled to RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 15/27 protection for her possession. However, the said view did not find favour with Ld. Trial Court who relying upon the judgement of Shyam Narayan Prasad Vs. Krishna Prasad and Ors. (2018) 7 SCC 646 had observed that defendant no.1 has not pleaded that he has taken the possession of the property in part performance of the contract and also failed to prove that there was either express or implied surrender of tenancy by virtue of Section 111 (e) and (f) of The Transfer of Property Act and in this regard, Ld. Trial Court had relied upon the judgement of Sh.H. K. Sharma Vs. Ram Lal (2019) 4 SCC 453. Perused the said judgements and its reliance as sought by the Ld. Trial Court.
23. Ld. Counsel for the appellant has argued that defendant no.1 was required to state material facts in the pleadings and the pleadings are not required to contain the law. He argued that the pleadings have to be meaningful and holistically construed and on such mere technicality of pleadings, defendant no.1/ appellant could not be denied the benefit of Section 53A of The Transfer of Property Act when the sum and substance of the stand taken by the defendant no.1/ appellant is clear from its pleadings. He further argued that defendant no.1/ appellant had spelt out his defence clearly in her written statement specifically taking the stand that initially the suit premises except one room and store was taken on rent and eventually, complete property was purchased by the appellant/ defendant no.1 by way of agreement to sell and GPA Ex.DW1/1 and Ex.DW1/2 which was the most usual mode of purchasing the property at RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 16/27 that time.
24. Perusal of the pleadings i.e. defence of the defendant no.1/ appellant coupled with the tenancy agreement dated 22.01.1992 Ex.PW1/8 clearly reflects that the entire ground floor of suit property no.A80, Chitranjan Park, New Delhi except one bed room with attached store room with all fixtures and fittings were given on rent to defendant no.1/ appellant by Sh.R.K. Mazumdar. It was not a surprise to either of the parties that whole of the suit property except one bed room and store were given on rent. In para 2 of the reply on merits in its written statement (as also mentioned above), the defendant no.1/ appellant had categorically stated that the father of the plaintiff i.e. Sh.R. K. Mazumdar had executed the Agreement to Sell and irrevocable GPA dated 22.11.1994 and further stated that plea of one store room allegedly being in occupation of respondent no.1/ plaintiff is also false and contrary to the record. It is further stated that the defendant no.1 and her son are the owners of the property and are occupying and are in possession of "complete property"
and they have been enjoying and using the same without any hindrance and any quarrel.
25. Though, defendant no.1/ appellant has not specifically stated that as to when and at what point of time, they came into possession of one room and the attached store. Admittedly, they were tenant in the whole of the suit property except one bed room and store and claimed the ownership by virtue of the execution of the agreement to sell and GPA Ex.DW1/1 RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 17/27 and Ex.DW1/2 but at the same time, also claimed that they are in possession of the "complete property". The necessary corollary which emerges out from the stand of the defendant/ appellant is that on execution of agreement to sell and GPA (claiming to become owner) and came in possession of the complete property which included one bed room and which was initially kept by the landlord.
26. This fact is duly proved even from the cross examination of PW
1. PW1 Sh.Ashok Kumar Mazumdar during his cross examination done on 05.05.2018 at page no.2 when PW1 stated that between the period 1998 i.e. the demise of the father Sh.R. K. Mazumdar and upto November 2014, he visited the suit property twice. The first visit was in 2010 and the second visit was in the Summer of 2014. PW1 further stated that and he visited in the year 2010, he demanded entry in the suit property but was not permitted to enter nor he was paid any rent. However, at the same time, he admitted that he had not stated about the incident of year 2010 in his plaint.
27. Therefore, so far as putting the plaintiff to notice regarding the defendant no.1/ appellant coming into possession of the whole of the suit property in pursuance of agreement to sell and GPA Ex.DW1/1 and Ex.DW1/2 is concerned, the plaintiff/ respondent no.1 was in full knowledge thereto. Though, defendant no.1 has not stated so expressly couching the same in the format as prescribed under Section 53A of The Transfer of Property Act. It is clear that earlier, the defendant no.1/ appellant stayed in a bigger portion of the suit property in the capacity of a RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 18/27 tenant and subsequently, after the execution of the agreement to sell and GPA Ex.DW1/1 and Ex.DW1/2, the appellant claimed to be the owner of the whole of the suit property including one room and the store annexed. Therefore, the meaningful interpretation and holistic view and whole fact situation leads only to one inference that appellant/ defendant no.1 continued in possession of the suit property after execution of the agreement to sell and GPA Ex.DW1/1 and Ex.DW1/2 and now occupied the whole of the property including the one room and the store attached. Therefore, so far as reliance on judgement by Ld. Trial Court on Shyam Narain Prasad (Supra) to the effect that defendant no.1 was required to plead specific facts of Section 53A of The Transfer of Property Act is concerned, in my considered opinion, the Ld. Trial Court erred in not appreciating the pleadings in its totality and holistic manner and failed to notice the sum and substance of the pleadings that defendant no.1/ appellant earlier a tenant, after entering into the agreement to sell and GPA in respect of the whole of the suit property occupied the complete property and there were requisite pleadings to this effect and therefore, it cannot be said that there was any element of surprise for the plaintiff regarding the defence of part performance.
28. Next, the Ld. Trial Court relied upon the judgement of Sh.H. K. Sharma Vs. Ram Lal (2019) 4 SCC 453 and arrived at the conclusion that the lease of immovable property could be terminated by express or implied surrender as required u/s 111 (e) and (f) of The Transfer of Property Act RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 19/27 and derived the conclusion that nothing of the 9 conditions of the agreement to sell spelt out as to what would be the fate of the tenancy after entering into the agreement to sell.
29. No doubt, it was not a question of express surrender but so far as the implied surrender of tenancy is concerned, it has to be ascertained by appreciating all facts and circumstances of the case. The intention of the parties can be gathered from their conduct, prior to, at the time of and even after the execution of the relevant documents.
30. The tenancy agreement Ex.PW1/8 while it was extended on 01.02.1993 had a footnote raising the rent from Rs.4000/ to Rs.4500/. This tenancy agreement shows the manner in which the parties dealt with each other during the subsistence of the tenancy agreement. Ex.DW1/1 and Ex.DW1/2 both dated 22.11.1994 are proved documents. First, defendant no.1/ appellant took over the possession of the whole of the suit property, secondly, perusal of the whole cross examination of PW1 leads to inference that respondent no.1/plaintiff who worked with M/s JCT Mills Phagwara, Punjab till 2014 woke up only after his retirement in 2014. As per PW1, the last drawn salary was Rs.24,000/ per month. PW1 further stated that after the demise of his father in the year 1998 till 2010, he did not write any letter or got issued any notice on record for arrears of rent, rendition of account, terminating the tenancy etc. The stand of PW1 that he visited the suit property in the year 2010 is already found to be unbelievable and highly improbable. Sh.R. K. Mazumdar, the father of the RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 20/27 plaintiff was more diligent and particular to put down the terms of the agreement in the black and white. After his death in the year 1998, there is not a single document till the year 2014 which could show that either the appellant/ defendant no.1 paid any rent to the plaintiff/ respondent no.1 or respondent no.1/ plaintiff demanded any rent from the appellant/ defendant no.1.
31. Further, plaintiff has relied upon one eviction notice dated 13.11.1994 Ex.PW1/9 which on the face of it appears to be a photocopy of a document imposed upon a blank signed document of Sh.R. K. Mazumdar and is not believable at all. Therefore, post the execution of agreement to sell and GPA dated 22.11.1994, the conduct of the parties has been such that the plaintiff never demanded any rent nor the defendant no.1/ appellant paid any. In fact, there appears to be no connection between the parties for a long period of 18 years. The tenancy agreement dated 31.01.1995 Ex.PW1/7 has already been to be a document which cannot be relied upon. All this leads to a very strong inference that there was an implied surrender of tenancy at the time of execution of the Agreement to Sell and GPA Ex.DW1/1 and Ex.DW1/2. The intention of the parties has to be gathered from the circumstances surrounding and transaction and the conduct of the parties. The evidence clearly suggests that the plaintiff/ respondent no.1 only woke up at the time of his retirement in 2014 from Phagwara, Punjab and reasserted his claim of the suit property having remained silent for a period of about 18 years. Therefore, in my considered opinion, present case RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 21/27 falls within the ambit of Section 111 (f) of The Transfer of Property Act and is a case of implied surrender and in this regard, Ld. Trial Court has erred by holding that there is neither implied or express surrender.
32. Ld. Counsel for respondent no.1/ plaintiff had argued that appellant/ defendant no.1 can never become the owner of the property by virtue of an unregistered agreement to sell and GPA. In this regard, he relied upon judgement of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. (2012) 1 SCC 656 and argued that these unregistered documents Ex.DW1/1 and Ex.DW1/2 even if admitted do not confer any right, title or interest in the suit property upon the appellant/ defendant no.1.
33. On the other hand, Ld. Counsel for appellant/ defendant no.1 has submitted that these documents i.e. agreement to sell and GPA Ex.DW1/1 and Ex.DW1/2 constitute part of the same transaction i.e. selling of the suit property by Sh.R. K. Mazumdar to the appellant/ defendant no.1 and in this regard, the GPA was executed by Sh.R. K. Mazumdar in favour of the husband of the appellant/ defendant no.1 on the same day. He submits that since the same transaction is contained in more than one documents between the parties, this must be read and interpreted together as one document and for all intents and purposes and in this regards he has relied upon judgment of S.Chattnatha Karayalar Vs Central Bank of India AIR 1965 SC 1856. Perused.
34. He further argued that though the appellant may not become the RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 22/27 absolute owner of the property but have certainly acquired interest in the suit property by virtue of Section 202 of The Contract Act and in support of his stand, he has relied on Hardeep Kaur Vs. Kailash and Another RFA No.648/2006 DOD 18.05.2012, Delhi. Perused the same.
35. So far as treating of agreement to sell and GPA as evidence of one transaction is concerned, there is no doubt about it. It is nobody's case that Sh.R. K. Mazumdar executed GPA Ex.DW1/2 in favour of Sh.Bijoy Kumar Mitra the husband of defendant no.1 Mrs. Ranjana Mitra on account of being any family member or some other fiduciary relation or out of purely love and affection. It is clear that by way of executing agreement to sell and GPA, both the parties intended to transfer the suit property to the defendant no.1/ or the nominee of Sh.Bijoy Kumar Mitra. However, law is also equally well settled that merely executing agreement to sell and GPA that too, unregistered one, does not confer any right, title or interest on any person but at the same time, the rights of a party acquired under Section 202 of The Contract Act are also required to be looked into as in : Ramesh Chand Vs. Suresh Chand 188 (2012) DLT 538 Delhi, it has been held that the power of attorney given for a consideration coupled with the interest is irrevocable u/s 202 of The Contract Act and subsisted even after the death of the executant. Further, the purchaser may not be a classical owner as would be an owner under the registered Sale Deed but surely certain rights can exists in immovable property pursuant to section 53A of TPA and Section 202 of The Contract Act.
RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 23/2736. In view of the above, it is clear that though defendant no.1/ appellant may not have complete ownership right in the suit property unless a Sale Deed is duly registered as per law. However, certain rights in fact exists in respect of the suit property under Section 53A of The Transfer of Property Act read with Section 202 of the Contract Act.
37. So far as the aspect of readiness and willingness of the defendant no.1 to do his part of the act is concerned, perusal of the agreement to sell Ex.DW1/1 reflects that out of the total consideration amount of Rs.9 Lakhs, Rs.5,65,000/ was already paid by the purchaser to the seller and amount of Rs.3,35,000/ was to be paid by the purchaser to the seller only after getting the relevant papers i.e. documents from the DDA within the stipulated period of time. Had it been confined to this clause, then onus would have been upon defendant no.1/ appellant to plead and prove her readiness and willingness to perform her part of obligation. However, clause 2 of the agreement to sell Ex.DW1/1 stipulates that in case the seller failed to pay remaining instalment due to DDA within the time period fixed by the DDA, then the second party who is purchaser shall pay directly to the DDA of the balance consideration fund available with her and if the final dues of DDA exceeds Rs.3,35,000/, only then the second party i.e. purchaser shall be entitled to recover this excess amount from the first party and take over the said property in her name after getting mortgage lease from DDA. It was argued by Ld. Counsel for defendant no.1/ appellant that since 1994, the outstanding due of the DDA are much RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 24/27 much more than the amount of Rs.3,35,000/. In fact, it is the own version of the plaintiff as reflected from the legal notice dated 22.11.1994 Ex.PW 1/13 that against Loan, the amount of Rs.5,23,543.85 taken from LIC through DDA was outstanding as per letter of DDA dated 20.11.1991. Ex.PW1/5 is the letter of the DDA which shows the outstanding amount of Rs.5,23,543.85 as on 20.11.1991. So far as further readiness and willingness of the appellant/ defendant no.1 is concerned, it is clear that defendant no.1/ appellant was required to pay outstanding instalment to DDA and not to Late Sh.R. K. Mazumdar or to his successor in interest. Though nothing is placed on record to suggest as to what is the actual amount outstanding by either of the parties. However, in any case, it does not disentitle the appellant/ defendant no.1 to avail the protection u/s 53A of The Transfer of Property Act as the appellant already having paid the substantial amount to the seller. Not only that, the requirement was to pay balance amount of Rs.3,35,000/ to the DDA on account of clearing the loan on the property and clear the mortgage and there was no liability towards the plaintiff and at the same time, the appellant was also entitled to get the excess amount paid to be reimbursed from seller.
38. Therefore, in my considered opinion, so far as the requirement of Section 53A of The Transfer of Property Act is concerned, the defendant no.1/ appellant had fulfilled the same and is entitled to the protection there under. Therefore, in this regard, in my considered opinion, Ld. Trial Court has failed to take into account the aspect of creation of interest u/s 202 of RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 25/27 The Contract Act and its consequential fall out and has erred in law.
39. It being the case, the question of termination of tenancy does not arise as the tenancy stood extinguished by implied surrender as explained hereinabove. Therefore, in my considered opinion and considering the totality of the facts and circumstances and for the aforesaid reasons, the judgment of Ld. Trial Court suffers from wrong appreciation of facts and non application of appropriate law thereto and therefore, the findings of the Trial Court on issue no.1 are set aside. This issue is accordingly decided in favour of appellant/ defendant no.1 and against the plaintiff.
ISSUE NO.2 and 3Whether the plaintiff is entitled to arrears of rent to the tune of Rs. 36000/ besides interest as prayed for against defendant no. 1? OPP Whether the plaintiff is entitled to mesne profits of Rs.25,000/per month against defendant no.1 since 01.02.2015 as prayed for besides interest? OPP
40. In view of the findings given on issues no.2 and 3, both these issues are decided against the plaintiff/ respondent no.1 and in favour of defendant no.1/ appellant.
ISSUE No.4.
Whether the plaintiff is entitled to cost of suit as prayed for? OPP
41. In view of the fact that the suit of the plaintiff is liable to be RCA No.133/2019 Ranjana Mitra Vs. Ashok Kumar Mazumdar & ors Page 26/27 dismissed, therefore, it is defendant no.1 who is entitled to cost of the suit as per Delhi High Court Rules and Orders.
RELIEF:
42. In view of the above, the judgement of the Ld. Trial Court dated 01.10.2019 is set aside and suit of the plaintiff/ respondent no.1 is dismissed with costs. Copy of this judgement be placed in the trial court record and trial court record be sent back.
Decree sheet be prepared.
File be consigned to Record Room.
Announced in open court. Digitally signed
by MUNISH
MUNISH MARKAN
On 22.02.2022. MARKAN Date:
2022.02.26
18:26:22 +0530
(Munish Markan)
Additional District Judge02 (SED)
District Courts Saket, New Delhi
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