Delhi District Court
Prem Aggarwal vs Ashwini Parashar on 15 April, 2025
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IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.609434/2016
CNR NO. DLWT03-000110-2008
IN THE MATTER BETWEEN: -
1). Smt. Prem Aggarwal
2). Smt. Sabina A. Sehgal
Both R/o L-402, Ambience Island,
NH-8, Gurgaon.
..........................PLAINTIFFS
VERSUS
Sh. Ashwini Parashar
R/o 19-A, Mandakini Enclave,
VIP Block, Gate No.8,
Alakhananda, New Delhi.
.....................DEFENDANT
Suit filed on :- 25.01.2008
Judgment Reserved on :- 26.03.2025
Date of decision :- 15.04.2025
SUIT FOR RECOVERY OF POSSESSION AND MESNE
PROFIT
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-1/48
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JUDGMENT
By this judgment, this Court shall adjudicate the suit filed by the plaintiffs against the defendant seeking decree of recovery of possession and mesne profit. Before adjudicating upon the issues framed in the present suit, it is vital to first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiffs: -
1. The plaintiffs have filed the present suit seeking decree of possession against the defendant, to vacate and handover physical and vacant possession of the property bearing Flat No. 19A, SFS, Duplex Flat comprising of ground and first floors, Mandakini Enclave, VIP block, New Delhi-110019, measuring 1200 sq feet [hereinafter referred to as "the suit property/flat or demised property"] and to further pass a decree in favour of the plaintiffs and against the defendant awarding mesne profit w.e.f. 30.11.2007 onwards and until the date of vacation and handing over of the physical and vacant possession of the suit property along with interest @18% per annum.
2. The brief case of the plaintiffs, as per the plaint, is that the plaintiff permanently reside at the aforesaid address, and by virtue of the documents i.e., Agreement to sell, GPA and Will duly executed and thereafter registered on Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-2/48 -3- 15.11.2007 before the Sub-Registrar's Office, by Ms. Mridula Garg R/o F-421, Ground Floor, Greater Kailash, Part-II, New Delhi being the erstwhile owner of the suit property/flat, which is currently in unauthorized and illegal possession of the defendant.
3. That the plaintiffs are the successors in interest of the erstwhile owner Ms. Mridula Garg, who had created the tenancy in favour of the defendant on 14.12.2005. That the said agreement so signed, executed and witnessed contains inter alia the accepted contract inter se parties. That, the clauses 2 and 15 of the rent agreement, provides the terms of tenancy and that the period of tenancy was of 2 years commencing w.e.f. 01.12.2005 up to 30.11.2007 and also contains therein the unilateral obligation and unconditional undertaking of the defendant to vacate and hand over the vacant and physical possession of the suit property on or before 30.11.2007.
4. It has been further averred that defendant, on expiry of the lease has failed to vacate and hand over the peaceful and vacant possession of the suit property. That, the same is ex facie derogation of the lease created in favour of the defendant which was executed on 14.12.2005 and expired on 30.11.2007, before which time, as per the terms of tenancy, the defendant was necessarily required to surrender.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-3/48 -4-
5. It has been further averred that, prior to expiry of lease, the erstwhile owner Mrs. Garg vide notice dated 25.06.2007 reminded the defendant of his obligation to vacate the suit property as the terms of tenancy. It has been further averred that, the defendant has however failed to honor his contractual commitment and in clear defiance thereof has failed to vacate and has continued to unauthorizedly occupy, possess and retain the suit property in an illicit matter.
6. It has been further averred that, the occupation and possession of the defendant is, therefore, no longer permissive but in fact unauthorized, illegal and contrary to law. That plaintiff no.1 is an old and aged senior citizen and resides with her daughter/plaintiff no.2 and wishes to reside at the suit property. That both the plaintiffs have, therefore, terminated the tenancy U/s 106 of Transfer of Property Act.
7. It has been further averred that, the plaintiff vide legal notice dated 29.12.2007, duly served and received, have intimated the defendant of his failure to vacate and that same is unacceptable and illegal and had also whilst affording him one last opportunity to vacate and hand over possession with a period of 15 days from the receipt of the notice issues, informing that his possession of the suit property is no more permissive but blatantly in derogation Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-4/48 -5- of law. That the said legal notice was in supersession of an earlier notice dated 05.12.2007, which contained certain technical defects and, therefore, had to be withdrawn. However, despite receipt of notice of termination dated 29.12.2007, the defendant continued to occupy the aforesaid premises and had in fact disputed and denied his obligation to vacate by offering contest albeit on perverse, malafide, unfounded, unwarranted and fallacious grounds.
8. It has been further averred that, the execution of lease deed is not in dispute and the defendant has performed in terms of the said agreement so signed by him in presence of witness and has, except for the instant refusal to vacate occasioning the filing of the subject suit for eviction, continually since the creation of tenancy until now without demur, contest and/or objection paid an amount of Rs.16,000/- as rent towards discharge of liability due and payable. Further, the defendant has also admitted to the due execution and implementation of the lease deed dated 14.12.2005 in his reply dated 18.12.2007 to earlier legal notice issued.
9. It has been further averred that, needless to state that the breach and default is of the defendant and cost for institution of the subject suit, therefore, necessarily has to be borne by the defendant. That because despite termination, the defendant continued to use and occupy the Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-5/48 -6- said premises, the plaintiff is entitled in law to claim damages at the market price and accordingly has also prayed for inquiry and adjudication of mesne profit.
10.It has been further averred that, the suit property, which is a duplex flat is situated in a posh colony and where similarly situated and built-up property fetch a monthly rent, approximately in range of Rs.30,000/- to Rs.35,000/- a month. The plaintiff accordingly reserves the right to tender evidence in furtherance of said assertion and submit with respect to proof thereof. That the defendant has otherwise also breached and defaulted and has unauthorizedly constructed on the subject premises.
11.It has been further averred that, the intention of the defendant to procrastinate matter are also conclusively established from the apparently fallacious statements, contained in the letter dated 18.12.2007 and also made otherwise during the course of the negotiations, when the defendant on being approached and requested to vacate has, in complete defiance of obligations and undertaking made, chosen to instead issue threats. That the defendant on being personally approached on 17.11.2007 and 28.11.2007 and otherwise telephonically has categorically communicated to the plaintiff no.1 and the plaintiff no.2 that he will not vacate nor handover possession to the Court, and that if the plaintiffs and/or the courts wish then Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-6/48 -7- they can recover possession from a third party. That defendant also issued threats and attempted to intimidate the plaintiff no.1, who is an old lady. That the defendant possesses ill intent and can also resort to any level including perfidiously defacing and permanently damaging and destroying the subject premises by unrequited and unauthorized additions and alterations. Hence, the present suit.
Pleadings of the Defendant: -
12.That, the written statement was filed on behalf of the defendant denying the allegations as contained in the plaint wherein, inter alia, it has been submitted that the plaintiff has no locus standi to file the present suit against the defendant herein as the plaintiff is not the owner of the flat nor the landlord of the flat in question and the suit is liable to be dismissed. That the suit of the plaintiff is without any cause of action as the defendant has always been depositing the rent diligently to the land lady Ms. Mridula Garg from time to time, hence the suit is liable to be rejected U/O 7 Rule 11 CPC. That there is no privity of contract between the plaintiffs on the one hand and the defendant on the other hand. That, admittedly the plaintiffs have never been the landlord of the property in question nor have ever been attorned as landlord in any manner by the defendant as land lady qua the premises in question.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-7/48 -8- That the plaintiff has filed the present suit on the strength of certain forged and fabricated documents like GPA, Agreement to Sell and Will. That these documents have been fabricated by the plaintiffs in their favour by forging the signature of the erstwhile owner Smt. Mridula Garg. That even the documents clearly show that all the signature on the document are different. That moreover the signature which are appearing on these documents do not at all tally with the signature on the lease agreement which have been relied by the plaintiffs to have been executed by Smt. Mridula Garg. That the documents in question do not convey any ownership rights upon the plaintiffs in any manner. That as per their case, only an agreement to sell has been executed and the property transfer deed yet to be executed, hence on the strength of the above document even no rights whatsoever can be claimed.
13.It has been further submitted that the plaintiffs have not come to the Court with clean hands and have suppressed the material facts. That on the one hand in the document it has been stated that the plaintiffs had entered into an agreement to sell dated 11.05.1987 and on the other hand it is an admitted fact that before 2007 no right whatsoever has ever been claimed or have been made known to the defendant or anybody else. That the alleged agreement to sell dated 11.05.1987 not seen the light of the day till date Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-8/48 -9- and has been duly concealed from the Court even at the time of filing of the suit which clearly strengthen the plea of suppress and prove the contention of the defendant that the plaintiffs have been forging the documents in order to grab the Flat in question. That it further came to the knowledge of the defendant that the flat in question was allotted to the said Ms. Mridula Garg only in 1993 whose possession taken by her in March 1993 through attorney Smt. Sangita. That this fact further corroborated the fact that the present plaintiffs had no relation or agreement to sell related to flat in question of 1987. That not only this, the said Ms. Mridula Garg had also applied for conversion of the said flat from lease hold to free hold in the year 2000. That these facts clearly demonstrate that the present plaintiffs have never entered into any alleged agreement to sell dated 11.05.87. That Smt. Mridula Garg who had let out the flat in question to the defendant herein is not the same lady whose photograph has been affixed on the documents namely GPA, agreement to sell and Will all dated nil registered on 15.11.2007, all the said documents are result of well-planned conspiracy to grab the flat in question which itself writ at large on the face of the documents and the signature thereon.
14.It has been further submitted that that, the suit for possession filed by the plaintiffs herein is not even Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-9/48 -10- otherwise maintainable for want of legal notice. That no notice whatsoever dated 25.06.2007 and 29.12.2007 have ever been received by the defendant herein. That the notice dated 05.12.2007 was though served upon the defendant and was duly replied through his counsel vide reply dated 18.12.2007, however, as per the contents of the plaint the said notice dated 05.12.2007 has been withdrawn by the plaintiffs. That in the absence of serving of any legal notice as required under section 106 Transfer of Property Act, the suit for possession does not lie and thus liable to be dismissed. That without prejudice to the contention of the defendant that no legal notice dated 25.06.2007 and 29.12.2007 have been served upon the defendant, it is submitted that ever those notices copy of which has been filed on record, do not at all covered to the requirements of section 106 Transfer of Property Act, and there in no legal termination of the tenancy. That, however it is again reiterated that the plaintiffs have no locus standi to send legal notice and the alleged notice has never been served upon the defendant.
15.It has been further submitted that, the suit of the plaintiffs for mense profit is liable to be dismissed as there is no legal termination of the tenancy and no right to the plaintiff to terminate the same besides that the rent which was being paid by the defendant to Smt. Mirdula Garg i.e., Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-10/48 -11- Rs.16,000/- per month is the market rent of the similar situated flat and cannot fetch more than that. That the suit is not maintainable on the ground that the plaintiffs are relying upon the unregistered lease deed dated 14.12.2005. That the said documents perpetuated to be a lease deed neither registered nor affixed with the proper stamp duty. That under section 35 of Indian Stamp Act the lease deed is liable to be affixed on proper stamp duty which has not adequately affixed on alleged lease agreement. That moreover the same is unregistered against the requirement of Law. That it is a settled law that unregistered lease agreement cannot be looked into for any purpose as the same is inadmissible in evidence. That the suit of the plaintiffs is based and relying upon unregistered documents and is liable to be dismissed.
16.It has been further submitted that, even the documents filed on record by the plaintiffs clearly shows that Smt. Mridula Garg was resident of 1022, Sector-21, Chandigarh, thereafter alleged documents of GPA, agreement to sell and Will have been shown to be executed by one Ms. Mridula Garg R/o Greater Kailash, New Delhi and intentionally in the said document the plaintiff no.1 has given the same address at which Smt. Mridula Garg was residing. That the present suit the plaintiff no.1 had given her address of Gurgaon, which clearly shows that Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-11/48 -12- manipulation has been done by the plaintiff.
Replication: -
17.Replication was also filed on behalf of the plaintiff to the written statement of the defendant wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Issues: -
18.From the pleadings of the parties, following issues were framed in the suit vide order dated 26.02.2009: -
(1) Whether the plaintiff has no locus standi to file the present suit against the defendant as the plaintiff is neither the owner nor the landlord of the premise as alleged by him in the preliminary objection no.(b)? OPD (2) Whether the plaintiff had become the owner of the suit property by virtue of GPA, agreement to sell and Will and accordingly the landlord of the defendant? OPP (3) Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for? OPP (4) Whether the plaintiff is entitled for a decree for mesne profits, if yes, at what rate and for what period? OPP Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-12/48 -13- (5) Whether the plaintiff is entitled to interest, if yes, then at what rate and for which period? OPP (6) Relief.
Plaintiff Evidence: -
19.In order to prove his case, the plaintiff got examined four witnesses in toto which are as under: -
a). PW-1 Ms. Sabina A. Sehgal led her evidence by way of affidavit which is Ex. P-1 and reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under: -
Identification Description
Mark
Ex.PW-1/1 Certified copy of the agreements to sell.
Ex.PW-1/2 Copy of GPA.
Ex.PW-1/3 Carbon copy of notice dated 05.12.2007.
Ex.PW-1/4 & Postal receipts.
Ex.PW-1/5
Ex.PW-1/6 AD Card.
Ex.PW-1/7& Courier receipts.
Ex.PW-1/8
Ex.PW-1/9 Reply dated 18.12.2007.
Ex.PW-1/10 Carbon copy of notice dated 29.12.2007.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-13/48 -14- Ex.PW-1/11 & Original postal receipts.
Ex.PW-1/12 Ex.PW-1/13 AD Card.
Ex.PW-1/14 & Courtier receipts.
Ex.PW-1/15
Ex.PW-1/16 Delivery report.
PW-1 was also cross-examined at length on behalf of defendant.
b). PW-2 Sh. Roshan Lal, UDC from Sub-Registrar Office- V, Mehrauli, New Delhi brought the summoned record and deposed that as per the document i.e. agreement to sell got registered on 15.11.2007 vide Volume no.7798, Page No.91-97 exhibited as Ex.PW-2/1 is true and correct. That the document Ex.PW-2/2 i.e. Will registered on 15.11.2007 vide volume no.1593, Page 75-76 is true and correct as per record. That the document Ex.PW-2/3 i.e. GPA, registered on 15.11.2007 vide volume no.3080, page 28-30 is true and correct as per record but page 3 of the document in the Court file is not a complete photostat. That the page 3 of the document does not bear the address and PAN number of the witness. That it is correct that the name of the witness is correctly photocopied there. That the signatures of both the witnesses on page 3 are same and present on both files and page 3 is true and correct copy of the Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-14/48 -15- document registered.
PW-2 was also cross-examined on behalf of defendant at length.
c). PW-3 Sh. Abhishek Kumar tendered his evidence by way of affidavit which is Ex. P-3. PW-3 also relied upon document Ex.PW-3/1 (colly) i.e. copy of lease agreement dated 02.05.2013.
PW-3 was also cross-examined on behalf of defendant.
d). PW-4 Sh. Anil Kumar, Junior Assistant from Sub- Registrar0VII, Vikas Sadan, INA, New Delhi brought the summoned record i.e. the original register containing the conveyance deed registered vide registration no.3146 in book no.1, volume no.6657, page 8 to 11 dated 13.03.2018 in favour of Ms. Prem Aggarwal W/o Sh. D.C. Aggarwal and Ms. Sabina Sehgal W/o Sh. Sumit Sehgal R/o L-402, Ambience Island, Gurgaon-122002. PW-4 compared the original conveyance deed with the certified copy, which is on the Court record and exhibited the same as Ex.PW-4/1 (OSR).
PW-4 was not cross-examined on behalf of defendant despite opportunity.
Thereafter, the plaintiff evidence was closed vide order Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-15/48 -16- dated 23.01.2019 and the matter was proceeded for defence evidence.
Defendant Evidence: -
20.In defence evidence, the defendant/DDA got examined four witnesses, which are as under: -
a). DW-1 Sh. Ashwini Parashar tendered his evidence by way of affidavits which are Ex.D-1 and Ex. DW-1/X. DW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex. DW-1/1 List of payments made to Mrs.
Mridula Garg towards rent and cash.
Ex. DW-1/2 Voucher dated 17.12.2007.
Ex. DW-1/3 Voucher dated 15.01.2008
DW-1 was cross-examined at length by the counsel of plaintiff. During cross-examination, certain documents were also exhibited i.e. lease deed as Ex. DW-1/P1 and agreement for service charges as Ex. DW-1/P2 along with another document as Ex. DW-1/P3.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-16/48 -17-
b). DW-2 Sh. Sharad Mohan tendered his evidence by way of affidavit which is Ex. D-2.
DW-2 was cross-examined by the counsel of plaintiff at length.
c). DW-3 Sh. Rupesh Hooda, Assistant Director, SFS Housing, DDA, INA, Vikas Sadan, New Delhi deposed that he has been summoned to place on record the original conveyance deed dated 13.03.2018 of the suit property bearing no. A-19. Pocket- WCC, Ground & First Floor, Mandakini Enclave, New Delhi. DW-3 brought main property file bearing no. F35 (7) 87/SFS/WCC/III of the aforementioned property and stated that as per record of their office, the original conveyance deed dated 13.03.2018 is not available in the main property file of DDA and it is also not clear whether the same has been executed in DDA or not i.e. conversion of property from leasehold to freehold. It is stated by the witness that he cannot say if the record brought by him is the complete record of the aforementioned property. That as per record, an application dated 15.01.2000 was received from Mridula Garg for conversion of the aforementioned property from leasehold to freehold, however, the same has not been-processed so far. That execution of conveyance deed itself means conversion of the property from leasehold to freehold.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-17/48 -18- DW-3 was cross-examined by the counsel of plaintiff at length.
However, thereafter DW-3 was recalled in view of the order dated 06.05.2024. DW-3 brought the summoned record/ main file no.F.35(7)87/SFS/LAB(H)/ DDA in respect of property no. A-19, Mandakini Enclave, New Delhi. That out of the summoned file as required, he produced photocopies of the documents as pointed out to him by the defendant. That the records so produced comprises of application dated 15.01.2000 made by allottee Smt. Mridula Garg W/o A.P. Garg R/o 1022/21B, Chandigarh for conversion of property from leasehold to freehold, challan in respect of amount paid for the conversion of the property from leasehold to freehold, copy of notarized possession letter dated 29.01.1993 and letter no. F.35(7)87/SFS/LAB(H)/DDA/1665 dated 10.10.2005 issued by DDA to Smt. Mridula Garg with copy to Advocate Sabina A. Sehgal. That as per the original file of the suit property brought by DW-3, the final cost of the flat A-19, Mandakini Enclave including scooter garage as per the demand letter dated 11.05.1989 was Rs.4,14,500/- in the year 1989. The documents are collectively exhibited as Ex. DW-3/1 (colly) (OSR).
DW-3 was again cross-examined by the counsel of plaintiff at length.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-18/48 -19-
d). DW-4 Smt. Mridula Garg stated that she has been residing in the aforementioned address since 2004. Prior to that she used to reside at Masjid Moth. It is stated that she does not remember as to when suit property i.e. Flat bearing no. A-19, comprising of ground and first floor, Mandakini Enclave, New Delhi was allotted to her. It was voluntarily deposed that she sold the property in 2007 by executing proper register documents to Prem Aggarwal, thereafter she had no concern with the property. It was voluntarily deposed that she also does not know as to why she has been called as a witness in the dispute between Prem Aggarwal and some Parashar again said Ashwini Parashar. DW-4 further denied that she does not remember any Ashwini Parashar and that he is in possession of property as tenant. However. DW-4 stated that the, the rent deed might have been signed by her and that, although she was the owner of the property but her property was managed by co-owner Sh. Aggarwal to whom she had sold the property. Further stated that, his name was Sh. D.C. Aggarwal and everything regarding the property was being managed by Sh. D.C. Aggarwal. DW-4 further testified that, Sh. D.C. Aggarwal had purchased the suit property in the name of his wife Smt. Prem Aggarwal. DW-4 further stated that, she does not remember the sale consideration for the suit property paid, if any, due to which she does not remember the amount of sale consideration, if any and the Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-19/48 -20- year in which it was paid. The details of sale consideration etc. will be a part of record as contained in the said sale deed of the year 2007. She further stated that, she does not exactly remember from whom she received the sale consideration, if any, whether Sh. D.C. Aggarwal or Smt. Prem Aggarwal. It was further testified that, the sale consideration for the suit property, if any, received by her would have been received prior to 2007, however, she does not remember the exact year. It was further testified by DW-4 that, she does not remember the amount in which she originally purchased the suit property from DDA. Further, she has not made any application to DDA for converting the suit property from leasehold to freehold, whatever steps have been taken must have been taken by Sh. D.C. Aggarwal or Prem Aggarwal. It was further stated that, she sold the suit property to Prem Aggarwal in consultation with her husband. However, she does not remember about the opposite side. It was further stated that, as far as she can remember she had executed the sale documents of the suit property in the year 2007 and does not remember anything of the sorts prior to the year 2007.
DW-4 was cross-examined by the counsel of plaintiff at length and thereafter re-examined on behalf of defendant as well.
Thereafter, DE of defendant/DDA was closed vide order Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-20/48 -21- dated 01.08.2024.
Decision with reasons: -
21.The final arguments have been extensively heard on behalf of both the parties at length and the entire record has been carefully perused. During the course of final arguments, the parties have placed reliance on their respective pleadings and evidence led on their behalf as stated herein above.
22.During final arguments it was argued by Ld. Counsel for plaintiffs that, it is the admitted stand of the defendant that, he is merely a tenant in the said property and came in possession of the same on execution of a lease deed with the erstwhile owner Mrs. Mridula Garg and as such defendant has no locus, right, title or interest to object the case of the plaintiff. It was further submitted that, the defendant has further admitted his signature on the Lease Deed dated 15.12.1999 executed between Mridula Garg W/o A. P. Garg through her attorney Mr. D.C. Aggarwal and the defendant for leasing the suit property for the period of 1 year (1999-2000) and payment of rent on the monthly basis to Mrs. Mridula Garg. It was further argued that, thus, the defendant is estopped from raising any objection regarding the validity of the title of the plaintiff as per Section 116 of the Indian Evidence Act, 1872. It was Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-21/48 -22- further argued that, the plaintiffs became the owners of the suit property on 15.11.2007 by way of Registered ATS, GPA & Will dated 15.11.2007 and Mrs. Mridula Garg (DW-4) has admitted to have sold the suit property to the plaintiffs along with her signatures on the said documents.
23.It was further argued by Ld. Counsel for Plaintiff that, thereafter plaintiffs applied to DDA for execution of the Conveyance Deed and the same was executed by DDA after duly examining the relevant documents on 13.08.2018 in favour of the Plaintiffs and same was further duly registered. It was further submitted that, the documents exhibited by the Plaintiffs are public documents and the proof thereof is protected under Section 77 of the Indian Evidence Act, 1872. It was further submitted that, any oral evidence adduced by the defendant side is of no relevance in terms of the Section 91 and 92 of the Indian Evidence Act, 1872. It was further argued that, the defendant came in possession of the suit property via Lease Deed dated 15.12.1999 executed between Mridula Garg through her attorney Mr. D.C. Aggarwal and the defendant for a period of 1 year. That, after the expiry of the said lease deed the tenancy of the defendant became month to month. That, subsequently, a fresh lease deed dated 14.12.2005 was executed between the Defendant and Mrs. Mridula Garg whereby the suit property was leased Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-22/48 -23- for another 2 years i.e. till 30.11.2007. it was further argued that, thereafter, in terms of the lease deed dated 14.11.2005, the erstwhile owner of the property, Mrs. Mridula Garg issued an advance notice dated 25.06.2007 to the defendant to the suit property before 30.11.2007.
However, defendant failed to vacate the suit premises and is in the unauthorised possession thereof.
That in support of her case, the plaintiff side has placed reliance on following citations:
i. D.C. Oswal v. V.K. Subbiah [(1992) 1 SCC 370] ii. S. Kumar v. G.R. Kathpalia [1998 SCC OnLine Del 553] iii. Chander Kirti Rani Tandon v. VXL Lodging N. Boarding Services Pvt. Ltd. [2013 SCC OnLine Del 406] iv. S. Kumar v. G.R. Kathpalia [1998 SCC OnLine Del 553] v. Amena Bal v. Aminder Singh Bal [2024 SCC OnLine Del 9406] vi. Prem Singh v. Birbal [(2006) 5 SCC 353] vii. Appaiya v. Andimuthu [2023 SCC OnLine SC 1183] viii. Rattan Singh v. Nirmal Gill [(2021) 15 SCC 300] ix. Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-23/48 -24- x. State of Goa v. Maria Julieta D'Souza [(2024) 3 SCC 523] xi. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [(2003) 8 SCC 752] xii. Ramesh Chand v. Suresh Chand [2012 SCC OnLine Del 1985] xiii. Sky Land International Pvt. Ltd. V. Kavita P. Lalwani [2021 SCC OnLine Del 3082] xiv. Ranbir Singh (Dr) v. Ashrafi Lal [(1995) 6 SCC 580] xv. Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana [2012 1 SCC 656].
xvi. Ashok Vs. Satnam Singh [2023 SCC OnLine Del 5594].
xvii. M.C. Aggarwal HUF Vs. M/s Sahara India & Ors.
[2011 SCC OnLine Del 3715].
xviii. Santosh Solanki Vs. Dada Dev Prabandhak Sabha (Barah Gaon) Palam [(2014) SCC Online Del 2677].
xix. Deep Sons Departmental Store Vs. V.N. Gupta [ILR (2011) IV Delhi 702].
xx. Nopany Investment Pvt. Ltd. Vs. Santokh Singh HUF [2008 2 SCC 728].
24. Per Contra, it was argued by Ld. Counsel for defendant that, defendant is a tenant in the suit property and has never claimed any right or title over the suit property. It Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-24/48 -25- was further argued that, however, it is the settled principle of law that the general burden of proving the case lies upon the plaintiff and the same is required to be done as per law. It was further argued by Ld. counsel for defendant that on 05.12.2007, defendant received a legal notice from the plaintiff acting as GPA holder of Mrs. Mridula Garg and upon asking of the relevant documents in support of the claim, the plaintiff instituted the present suit purportedly claiming ownership of the suit property on the basis of certain registered documents executed in November'2007. It was further argued by Ld. counsel for plaintiff that transfer of immovable property above the value of Rs.100/- can take place only by virtue of a registered sale deed after affixing advalorum Court fees on the market value of the property in question as has also been held in the case of Suraj Lamps & Industries Pvt. Ltd. It has been further argued on behalf of the defendant side that the plaintiff was duty bound to approach this Court with clean hands and place on record all the relevant documents pertaining to the sale transaction of the suit property including the agreement to sell of the year 1987, which never saw the light of the day, proof of consideration paid, allotment letter, proof of payments made to DDA, demand notice raised by DDA, possession letter, lease deed etc. It was thus further argued by Ld. counsel for defendant that the purported sale transaction between the plaintiff side Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-25/48 -26- and Ms. Mridula Garg is void-ab-initio and is of no effect in law merely because of the agreement between two individuals as the same does not comply with the mandatory requirements of the law.
25.It was further argued by Ld. counsel for defendant that the falsity of the sale documents relied upon by the plaintiff side is further discernible from the fact that despite execution of these documents, the plaintiff got a conveyance deed executed on 13.03.2018. It was further argued that in fact an official witness summoned by defendant from DDA categorically stated that no such conveyance deed was executed since there is no record of the same available in the case file brought by him on the day of his examination. In this regard, it was further argued by Ld. counsel for defendant that for an execution of a valid conveyance deed, a person is required to comply with the mandatory requirements as laid down in the guide book on Housing Department of DDA, the crux of the procedure whereof entails payment of requisite charges, filing of application in prescribed format, payment of ground rent, submitting necessary documents, furnishing an indemnity bond along with all other additional requirements as prescribed therein, which has clearly not been adhered to by the plaintiff side since there is no material available on record to that effect. It was thus Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-26/48 -27- further argued by Ld. counsel for defendant that in light of the above, the defendant was correct in not handing over the possession of the suit property without being satisfied of the ownership of the plaintiff with respect to the suit property and further on the ground that defendant was regularly paying rent to Mrs. Mridula Garg being the landlord of the defendant and not the plaintiffs. It was further argued by Ld. counsel for defendant that the plaintiff is not entitled to the relief sought as plaintiff has not approached this Court with clean hands. Further, with respect to the relief of mesne profits, it was submitted that plaintiff has grossly failed in proving any substantiating evidence with respect to the claim of mesne profits. That the documents tendered in evidence on behalf of plaintiff with respect to the issue of mesne profits were not merely unregistered but also forged and fabricated, thereby dis- entitling the plaintiff from the relief sought. It was thus pleaded that the suit of the plaintiff be dismissed with exemplary cost.
26.That in support of his case, the defendant has placed reliance on following citations:
i. Shaik Ziaul Hakim Vs. DDA [2023 SCC OnLine Del 1014].
ii. Vidyadhar Vs. Manikrao & Anr. [1999 SCC OnLine SC 294].
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-27/48 -28- iii. Kewal Krishan Vs. Rajesh Kumar & Ors. [2021 SCC OnLine 1097].
iv. Moti Lal Sahoo Vs. Ugrah Narain Sahoo & Ors.
[1949 SCC OnLine Pat 43].
v. Bhartu Vs. Naval @ Chote [2012 SCC OnLine All 177].
vi. National Radio & Electronic Company Ltd. Vs. Motion Picture Association [(2005) 122 DLT 629 (DB)].
vii. M/s Kusum Enterprises & Ors. Vs. Vimal Kochar & Anr. [(2014) 207 DLT 172].
It is pertinent to mention that, the relevancy of the citations relied upon by either side to the instant matter and its reliability shall be discussed herein below at the appropriate stage, if any.
27. That, firstly, issues no. (1) and (2) are being dealt with together and thereafter issues no. (3) to (5) shall be discussed. Now, let us deliberate upon the factual matrix and evidences in the matter at hand. That, the issue-wise findings are as follows:
28.Issue No. (1) and (2) -
(1) Whether the plaintiff has no locus standi to file the present suit against the defendant as the plaintiff is neither the owner nor the landlord of the premise as alleged by him in the preliminary objection no.(b)? OPD Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-28/48 -29- (2) Whether the plaintiff had become the owner of the suit property by virtue of GPA, agreement to sell and Will and accordingly the landlord of the defendant? OPP The onus to prove these issues was upon the defendant.
At the outset, it is pertinent to mention that, it is the admitted case of the defendant that, he is a mere tenant in the suit property, who was inducted by the erstwhile owner Mrs. Mridula Garg. That, the factum and instances of the tenancy of defendant with Mrs. Mridula Garg in respect of the suit property has neither been denied nor challenged by the defendant, rather admitted. It is further an admitted position of the defendant that, the defendant is not claiming any right, title, interest or ownership rights in the suit property. However, the sole objection of the defendant to the entitlement and locus standi of the plaintiff is that, the documents of ownership relied upon by the plaintiff are unregistered and further has neither been executed nor proved as per law in order to confer ownership rights.
It is thus, the case of the defendant that, therefore plaintiffs are neither the owner of the suit property nor the landlord of the defendant qua the suit property. However, it is pertinent to mention that, w.r.t the issue of locus standi, except for taking objection in the written statement, no material has been placed on record by defendant to prove the allegations made in so far as, mere objections do not Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-29/48 -30- amount to proof. At this stage, it is further noteworthy that, defendant has neither placed on record any document or law to show his locus to challenge the title of the plaintiff w.r.t the suit property, in as much as, the defendant is admittedly a tenant in the suit property without any right, title of interest thereto. Thus, this Court is of the opinion that, the issue w.r.t locus and title of the plaintiffs w.r.t suit property can be considered as merely incidentally in issue; and not directly and substantially.
Per contra, the plaintiff has tendered in evidence the regis- tered Agreement to Sell, GPA and WILL dated 15.11.2007 tendered in evidence as Ex. PW-2/1 to Ex. PW-2/3, respec- tively, executed between the Mrs. Mridula Garg and plain- tiff no. 1 w.r.t sale of the suit property, upon receipt of con- sideration at the time of execution of a previous agreement to sell dated 11.05.1987. Further, plaintiff tendered in evi- dence the registered Conveyance Deed dated 13.08.2018 executed by DDA in favour of the plaintiffs w.r.t. suit property. The said conveyance deed was proved by PW-4 and was tendered in evidence as Ex. PW-4/1 (OSR).
At this stage, it is further pertinent to mention that, defen- dant summoned the erstwhile owner Mrs. Mridula Garg to the stand as DW-4. It was testified by DW-4 during her ex- amination-in-chief, cross-examination and re-examination under oath that, the suit property was allotted to her by Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-30/48 -31- DDA. Further, she does not remember as to when the suit property i.e. Flat bearing no. A-19, comprising of ground and first floor, Mandakini Enclave, New Delhi was allotted to her. It was deposed that she sold the property in 2007 by executing proper registered documents to Prem Aggarwal i.e., plaintiff herein; thereafter she had no concern with the property. It was further deposed that, she also does not know as to why she has been called as a witness in the dis- pute between Prem Aggarwal and some Parashar, again said Ashwini Parashar. DW-4 further denied that she does not remember any Ashwini Parashar and that he is in pos- session of property as tenant. However. DW-4 admitted her signatures on the termination of lease notice dated 25.06.2007 i.e., Mark-X have been signed by her. The wit- ness was further confronted with an affidavit dated 23.03.2010 sworn in by DW-4 and exhibited as Ex. DW-1/P3 to the effect whether she received any rent qua the suit property after execution of GPA, ATS and Will dated 15.11.2007, to which DW-4 denied receiving of any such rent. DW-4 further, categorically denied her pur- ported signatures on Ex. DW-1/2 and Ex. DW-1/3 i.e., the rent receipts dated 17.12.2007 and 15.01.2008 and further stated that there cannot be any rent receipts after the year 2007 when the suit property was sold by her to the plain- tiffs and specifically when she never received any rent qua the suit property after sale of the same.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-31/48 -32- It was further testified by DW-4 that, although she was the owner of the suit property but, the same was being man- aged by co-owner Sh. Aggarwal to whom she had sold the property. Further stated that, his name was Sh. D.C. Aggar- wal and everything regarding the property was being man- aged by Sh. D.C. Aggarwal. DW-4 further testified that, Sh. D.C. Aggarwal had purchased the suit property in the name of his wife Smt. Prem Aggarwal i.e., plaintiff no. 1 herein. DW-4 categorically admitted her photograph and signatures on the ATS, GPA and Will dated 15.11.2007 i.e., Ex. PW-2/1 to Ex. PW-2/3, respectively. It was further tes- tified by DW-4 that, she does not remember the sale con- sideration for the suit property paid, if any, due to which she does not remember the amount of sale consideration, if any and the year in which it was paid. It was further stated that, sale consideration if any received by her, would have been received prior to 2007. It was further stated that, the details of sale consideration etc. will be a part of record as contained in the said sale deed of the year 2007, since she identified her signatures on the ATS, GPA and Will dated 15.11.2007 Ex. PW-2/1 to Ex. PW-2/3. DW-4 further testi- fied that, she does not exactly remember from whom she received the sale consideration, if any, whether Sh. D.C. Aggarwal or Smt. Prem Aggarwal. It was further testified by DW-4 that, she does not remember the amount in which she originally purchased the suit property from DDA. Fur-
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-32/48 -33- ther, she has not made any application to DDA for convert- ing the suit property from leasehold to freehold, whatever steps have been taken must have been taken by Sh. D.C. Aggarwal or Prem Aggarwal. It was further stated that, she sold the suit property to Prem Aggarwal in consultation with her husband. However, she does not remember about the opposite side i.e., the defendant herein. It was further stated that, as far as she can remember she had executed the sale documents of the suit property in the year 2007 in favour of the Smt. Prem Aggarwal. Thus, in effect, DW-4, being a witness summoned by defendant, supported the case and title of the plaintiff w.r.t. suit property.
Further, defendant heavily placed reliance on the testimony of DW-3 being an official witness from DDA, who stated in evidence that, the original conveyance deed dated 13.03.2018 is not available in the main property file of DDA and it is not clear whether the same has been exe- cuted in DDA or not. DW-3 further testified that, he cannot say if the record brought by him was complete record or not. The Ld. Counsel for defendant objected to any ques- tion being put to the witness based on the said conveyance deed dated 13.03.2018. However, this Court finds the said objection unsustainable in law since, the said conveyance deed was tendered in evidence as Ex. PW-4/1 (OSR), by another official witness from DDA i.e., PW-4 and defen-
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-33/48 -34- dant failed to cross-examine him despite opportunity. Fur- ther, DW-3 categorically stated that, he cannot say any- thing about the said conveyance deed with certainty for want of complete record, which was the duty of DW-3 to be brought. At this stage, it if further pertinent to mention that, defendant side did not attempt to further summon the complete/remaining record from DDA to prove his case. At, this stage, it is further pertinent to mention that, defen- dant side was further not able to controvert the case of the plaintiff, even by cross-examining the plaintiff witnesses.
Further, w.r.t the issue that the plaintiff is neither the owner of the suit property merely by virtue of GPA, ATS and Will and consequently, nor the plaintiff is the landlord of the de- fendant qua the suit property. It is pertinent to mention that, defendant himself has no right in law to challenge the ownership and the sale transaction of the suit property be- tween the erstwhile owner Mrs. Mridula Garg and the plaintiff; specifically, when the sale transaction and service of lease termination notice issued by Mrs. Mridula Garg to defendant herein, already stands admitted by Mrs. Mridula Garg. Further, admittedly defendant has no right, title or interest in the suit property and also admits the receipt of lease deed termination notice dated 25.06.2007. Further- more, plaintiff has been able to prove her ownership of the suit property, which could not be assailed by the defendant.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-34/48 -35- Thus, defendant, being a tenant at the suit property has no right to challenge the ownership of the plaintiff qua the suit property. At this stage, it is further pertinent to men- tion that, none of the judgements relied upon by the defen- dant comes to his aid, since no law or citation confers any right or locus upon the defendant being a tenant to chal- lenge the title of the plaintiff, especially when sale transac- tion has been admitted by the previous owner. Rather, all the citations discuss the general position of law concerned having no application to the facts of the present matter.
Rather, this Court is fortified by the citation relied upon by the plaintiff side in case titled Ranbir Singh (Dr) v. Ashrafi Lal [(1995) 6 SCC 580], to the effect that question of title may be examined incidentally but cannot be decided con- clusively in an eviction suit. In this regard, it was held as follows:
"9. It may be pointed out that it is well settled law that the question of title of the property is not ger- mane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much lim- ited in which a question of title cannot be gone into because the suit of the plaintiff would be dis- missed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-35/48 -36- the Court has only to decide whether the defen- dant is the tenant of the plaintiff or not, though the question of title is disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the rela- tionship between the litigating parties. In L. I. C. Vs. India Automobiles & Co. [1990 (4) SCC 286 at para 21] this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prime facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and ten- ant between the parties it will have to pass a de- cree in accordance with law. It has been further observed that all that the Court has to do is to sat- isfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bonafide the Court may have to go into tenant dontention on the issue out the Court is not to de- cide the question of title finally as the Court has to see whether the tenant's denial of title of the land- lord is bonafide in the circumstances of the case."
[Emphasis Supplied] In the matter at hand, it is pertinent to mention that, defendant admits to be in the possession and occupation of the suit property as a tenant under the land-lordship of erstwhile owner Mrs. Mridula Garg. That, Mrs. Mridula Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-36/48 -37- Garg sold the suit property to the plaintiffs herein by virtue of registered ATS, GPA and Will dated 15.11.2007 i.e., Ex. PW-2/1 to Ex. PW-2/3, respectively and were further admitted to have been executed by Mrs. Mridula Garg herself in favour of the plaintiffs, having been summoned by defendant as DW-4. That, on 25.06.2007, Mrs. Mridula Garg, served a notice upon the defendant thereby terminating the tenancy and asking the defendant to vacate the suit property on or before 30.11.2007 i.e., the expiry date of the tenancy. The said notice was tendered as Mark- X, since, the original notice lies in the possession of the defendant. Further, the defendant was also served with another legal notice dated 05.12.2007 and 29.12.2007 issued by the plaintiffs calling upon defendant to vacate the suit property in light of tenancy being terminated by Mrs. Mridula Garg vide notice dated 25.06.2007 and informing about the sale of suit property by Mrs. Mridula Garg to the plaintiffs vide registered ATS, GPA and Will dated 15.11.2007. That, the receipt of said notices has not be denied by the defendant; rather, the only objection of the defendant was that, he has a right to be supplied with the sale transaction documents claiming them to be forged and fabricated. This Court is of the considered opinion that, admission as well as tenancy law, leaves no scope or right for/in defendant to challenge the ownership of the plaintiffs qua the suit property and their right to institute Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-37/48 -38- the instant eviction suit, as defendant failed to vacate the suit property upon termination of the tenancy and even thereafter, upon the receipt of summons of the present suit. Thus, defendant is a mere unauthorized occupant reaping benefits of a posh property at a meager rent and successfully dragging an eviction suit for good two decades.
Accordingly, issues no. (1) and (2) are decided against the defendant and in favour of the plaintiffs.
29.Issue No. (3), (4) and (5) -
(3) Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for? OPP (4) Whether the plaintiff is entitled for a decree for mesne profits, if yes, at what rate and for what period? OPP (5) Whether the plaintiff is entitled to interest, if yes, then at what rate and for which period? OPP The onus to prove these issues was upon the plaintiffs.
At the outset, it is pertinent to mention that, reasoning and decision rendered herein above w.r.t issues no. (1) and (2) squarely settles the issues at hand, as well. Nevertheless, issues no. (3) to (5) are being dealt with together, separately. That, the findings w.r.t issues no. (1) and (2) be read as part and parcel of the issues at hand, as well.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-38/48 -39- That, the plaintiffs in order to prove their case, got four witnesses examined i.e., PW- 1 being the plaintiff no. 2 herein; PW-2 being official from Sub-Registrar Office; PW-3 being another tenant of a-like property and PW-4 be- ing Sub-Registrar VII, DDA. That, plaintiffs in order to prove the transaction of sale of suit property by plaintiffs from its erstwhile owner Mrs. Mridula Garg by virtue of registered ATS, GPA and Will dated 15.11.2007, got exam- ined PW-2 from the office of Sub-Registrar, Mehrauli, who tendered in evidence the registered Agreement to Sell, GPA and WILL dated 15.11.2007 tendered in evidence as Ex. PW-2/1 to Ex. PW-2/3, respectively, executed between the Mrs. Mridula Garg and plaintiffs w.r.t sale of the suit property. Further, plaintiff tendered in evidence the regis- tered Conveyance Deed dated 13.08.2018 executed by DDA in favour of the plaintiffs w.r.t. suit property. The said conveyance deed was tendered in evidence by PW-4 as Ex. PW-4/1 (OSR).
Further, these documents were proved in law by the testi- mony of DW-4 i.e., Mrs. Mridula Garg, herself being the vendor thereto. It was testified by DW-4 during her exami- nation-in-chief, cross-examination and re-examination un- der oath that, the suit property was allotted to her by DDA. Further, she does not remember as to when the suit prop- erty i.e. Flat bearing no. A-19, comprising of ground and Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-39/48 -40- first floor, Mandakini Enclave, New Delhi was allotted to her. It was deposed that she sold the property in 2007 by executing proper registered documents to Prem Aggarwal i.e., plaintiff herein; thereafter she had no concern with the property. It was further deposed that, she also does not know as to why she has been called as a witness in the dis- pute between Prem Aggarwal and some Parashar, again said Ashwini Parashar. DW-4 further denied that she does not remember any Ashwini Parashar and that he is in pos- session of property as tenant. However. DW-4 admitted her signatures on the termination of lease notice dated 25.06.2007 i.e., Mark-X have been signed by her. The wit- ness was further confronted with an affidavit dated 23.03.2010 sworn in by DW-4 and exhibited as Ex. DW-1/P3 to the effect whether she received any rent qua the suit property after execution of GPA, ATS and Will dated 15.11.2007, to which DW-4 denied receiving of any such rent. DW-4 further, categorically denied her pur- ported signatures on Ex. DW-1/2 and Ex. DW-1/3 i.e., the rent receipts dated 17.12.2007 and 15.01.2008 and further stated that there cannot be any rent receipts after the year 2007 when the suit property was sold by her to the plain- tiffs and specifically when she never received any rent qua the suit property after sale of the same.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-40/48 -41- It was further testified by DW-4 that, although she was the owner of the suit property but, the same was being man- aged by co-owner Sh. Aggarwal to whom she had sold the property. Further stated that, his name was Sh. D.C. Aggar- wal and everything regarding the property was being man- aged by Sh. D.C. Aggarwal. DW-4 further testified that, Sh. D.C. Aggarwal had purchased the suit property in the name of his wife Smt. Prem Aggarwal i.e., plaintiff no. 1 herein. DW-4 categorically admitted her photograph and signatures on the ATS, GPA and Will dated 15.11.2007 i.e., Ex. PW-2/1 to Ex. PW-2/3, respectively. It was further tes- tified by DW-4 that, she does not remember the sale con- sideration for the suit property paid, if any, due to which she does not remember the amount of sale consideration, if any and the year in which it was paid. It was further stated that, sale consideration if any received by her, would have been received prior to 2007. It was further stated that, the details of sale consideration etc. will be a part of record as contained in the said sale deed of the year 2007, since she identified her signatures on the ATS, GPA and Will dated 15.11.2007 Ex. PW-2/1 to Ex. PW-2/3. DW-4 further testi- fied that, she does not exactly remember from whom she received the sale consideration, if any, whether Sh. D.C. Aggarwal or Smt. Prem Aggarwal. It was further testified by DW-4 that, she does not remember the amount in which she originally purchased the suit property from DDA. Fur-
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-41/48 -42- ther, she has not made any application to DDA for convert- ing the suit property from leasehold to freehold, whatever steps have been taken must have been taken by Sh. D.C. Aggarwal or Prem Aggarwal. It was further stated that, she sold the suit property to Prem Aggarwal in consultation with her husband. However, she does not remember about the opposite side i.e., the defendant herein. It was further stated that, as far as she can remember she had executed the sale documents of the suit property in the year 2007 in favour of the Smt. Prem Aggarwal. Thus, in effect, DW-4, being a witness summoned by defendant, supported the case and title of the plaintiff w.r.t. suit property.
At this stage, it is noteworthy that, on the one hand it is and admitted position of the fact that defendant is a mere tenant in the suit property and is not claiming any right, ti- tle or interest thereto. Further, defendant has admitted the lease deed confronted to defendant during his cross-exami- nation as Ex. DW-1/P1 and agreement for service charges as Ex. DW-1/P2. Further, defendant has further admitted the receipt of lease termination notice i.e., Mark-X issues by Mrs. Mridula Garg and also subsequent lease termina- tion notices Ex. PW-1/3 dated 05.12.2007 and Ex. PW-1/10 dated 29.12.2007. Further, on the other hand, no cogent evidence was led by defendant to prove his case and contentions that, the purported sale documents are Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-42/48 -43- sham, forged or fabricated. It is the settled tenet of law that, the burden of proving any particular fact lies upon the person who whishes the Court to believe in existence of said fact. Further, the burden of proving a fact, specifically within the knowledge of any person, lies upon such person having special knowledge. In the instant matter, it is the contention of the defendant that, the purported sale trans- action is fraudulent and fabricated. Thus, it was incumbent upon the defendant to specifically prove the same by lead- ing cogent evidences, which defendant has failed to do. Further, this Court sees no reason to doubt the validity or genuineness of the sale documents and the conveyance deed since, the same have been brought from the custody of the Sub-Registrars being duly registered documents and further their execution has also been admitted by the ven- dor herself i.e., Mrs. Mridula Garg. Thus, the documents Ex. PW-2/1 to Ex. PW-2/3 and Ex. PW-4/1(OSR) stands proved as per law.
Further, w.r.t the relief of mesne profits, plaintiff got exam- ined PW-3 being the Branch Manager of Bank of Hyder- abad, who had entered into a lease agreement dated 02.05.2013 with the plaintiff w.r.t a Flat bearing no. 46, Mandakini Enclave, Alaknanda, V.I.P. Block, New Delhi-110019 at a monthly rent of Rs.30,000/- for a prop- erty smaller than the property in question, though similarly Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-43/48 -44- situated in the same vicinity. Further, it was testified by PW-3 that, the similar property may fetch a rent of Rs.30,000/- to Rs. 35,000/- per month. Further, during the cross-examination of the PW-3 it came to light that, the lease agreement was between the Bank concerned and the plaintiff; however, there was no seal of the bank on any documents. Thus, w.r.t the issue of mesne profits, the plaintiff side had argued that, this Court can also take a ju- dicial notice of the same fact and further relied upon the judgement titled D.C. Oswal vs. V.K. Subbiah and Ors. [AIR 1992 SC 184] and Chander Kirti Rani Tandon vs M/S Vxl Lodging N Boarding Services Pvt [2013 SCC OnLine Del 406], wherein it has been held as follows w.r.t taking judicial notice of mesne profits:
"17. There are a catena of decisions that have held that while determining mesne profits, the Courts are well entitled to take judicial notice of the in- crease of rentals of the area where the property is situated under Sections 56 and 57 of the Indian Evidence Act, 1872. (xxx)
18. In the case of Anant Raj Agencies Properties (supra), a Division Bench of this Court was considering a case where the suit premises was situated in the heart of Delhi and on the basis of the evidence placed on record, payment of mesne profits in respect of the suit premises was allowed @ `50/- per sq.ft. per month. It was further held that as the suit had remained pending Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-44/48 -45- for a period of nine years, the trial court ought to have taken judicial notice of the manifold increase of rents in the area in question. While making the aforesaid observation, the Division Bench had placed reliance on the decision of the Supreme Court in the case of D.C. Oswal vs. V.K. Subbiah and Ors. reported as AIR 1992 SC 184."
[Emphasis Supplied] Thus, unquestionably this Court can take judicial notice of the facts of area of demised property, location, nature of property etc. while deciding mesne profits. Further, PW-1 has also stated during her testimony that, as on the date of instituting the suit, the suit property was capable of rental income about Rs.30,000/- per month and above. That, it is further pertinent to mention that, defendant on the other hand did not present any rebuttal evidence to prove other- wise. As such, in light of the above, the plaintiff has been able to prove her case on the scale of preponderance of probabilities.
In this regard, it is pertinent to mention that the demised property bearing Flat No. no.19A, SFS, Duplex Flat, Man- dakini Enclave, Alaknanda, VIP Block, New Delhi-110019 is a duplex flat comprising of ground and first floors, mea- suring 1200 sq. feet in posh colony of South Delhi. Fur- ther, the present suit was instituted by the plaintiffs on Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-45/48 -46- 25.01.2008, wherein plaintiff no. 1 namely Mrs. Prem Ag- garwal is a senior citizen, who has been made to litigate a suit for eviction of tenant, recovery of possession along with mesne profits for about seventeen years. That, the de- fendant has been unauthorizedly enjoying such a huge property being a duplex flat in a posh colony of South Delhi at a meager rent of Rs.16,000/- and has been suc- cessfully enjoying the demised premises for about last 17 years by unscrupulously contesting the present matter with all flash and no substance, thereby gaining wrongful gain and causing wrongful loss to the plaintiffs, being the own- ers. Accordingly, the plaintiffs are further entitled to the mesne profit along with interest having regard to the gen- eral inflation. At this stage, it is further pertinent to men- tion that this Court further exercises discretion with respect to grant of the interest in terms of Section 34 of the CPC for want of any explicit agreement between the parties hereto with respect to any rate of interest or even other- wise.
Hence, issues no. (3), (4) and (5) are decided in favour of the plaintiffs against the defendant.
30.Issue No. (6) -
(6) Relief - In view of the findings given on issues no. (1) to (5), pleadings of the parties, evidence led by the both the Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-46/48 -47- parties and arguments heard, the plaintiffs have proved their burden on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiffs is hereby decreed in favour of the plaintiffs and against the defendant and following reliefs are granted to the plaintiffs:
a) Plaintiffs are entitled to the decree of possession of the suit property bearing Flat no. 19A, SFS, Duplex Flat comprising of ground and first floors, Mandakini Enclave, VIP block, New Delhi-110019 measuring 1200 sq feet, against the defendant. The defendant is hereby directed to vacate the suit property and hand over the vacant and peaceful possession of the suit property to the plaintiffs within 45 days from passing of this judgement.
b) Plaintiffs are further entitled to the decree of recovery of mesne profits for the period w.e.f. 30.11.2007 till vacation and handing over of the peaceful and vacant possession of the suit property by the defendant in favour of the plaintiffs to the tune of Rs.30,000/- per month along with simple pendente lite and future interest @10% per annum thereon.
c) Plaintiff is further entitled to the decree of recovery of litigation expenses to the tune of Rs.25,000/- along with the costs of the suit.
Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-47/48 -48- Plaintiff is directed to deposit the deficient Court fees as per rules, if any, forthwith.
Thereafter, let decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH Date:
2025.04.15 16:37:44 +0530 (This judgment contains 48 pages and each page (DISHA SINGH) has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court on Tis Hazari Courts, Delhi 15.04.2025 Suit No.609434/2016 Prem Aggarwal & Anr. Vs. Ashwini Parashar Page-48/48