Delhi District Court
Also At vs Sh. Sameer Chandra on 16 August, 2023
IN THE COURT OF MS. SHUBHI GUPTA
CIVIL JUDGE ( East), KKD COURTS, DELHI
Civ Suit 689/2018
Date of institution of suit : 23.07.2018
Date of reservation of suit : 01.08.2023
Date of passing of Judgment : 16.08.2023
Smt. Savita
W/o Sh. Sumit
R/o D-1/1, Acharya Niketan
Mayur Vihar Phase-I
Delhi-110091
Also At
D-10, Gali No. 6, Shashi Garden,
Patparganj, Delhi-110091
..........Plaintiff
Versus
1. Sh. Sameer Chandra
S/o Sh. Suresh Chand.
2. Smt. Babita Singh
W/o Sh. Sameer Chandra
Both R/o D-10, Ground floor,
Gali No. 6, Shashi Garden,
Patparganj,
Delhi-110091
............Defendants
SUIT FOR POSSESSION, ARREARS OF RENT AND
MESNE PROFIT/DAMAGES
JUDGMENT
1. Brief facts of the present suit.
Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 1/11 Brief facts of the present case as per plaint are that the plaintiff has claimed himself to be an owner of the suit property bearing No.D-10, out of Khasra No. 63, situated in the Abadi of Gali no. 6, main road, Shashi Garden, Patparganj, Mayur Vihar, Phase-1 in the isa of Village Kotla, Ilaqa Shahdara, New Delhi- 91 which is purchased by the plaintiff on 01.12.2009 from its previous ower Sh. Sanjay Pal for total consideration of Rs. 17,16,500/- and Sh. Sanjay Pal executed the documents of transfer in his favour . It is further stated that the defendant no. 1 approached the plaintiff somewhere in the month of February- March, 2011 to take up the property on rent. It is further stated that the plaintiff had let out the flat which is shown as red colour in the site plan to the defendant no. 1 @ Rs. 3000/-. However, no rent agreement pertaining tenancy was created between the plaintiff and defendant no. 1. It was stated that it was agreed between the parties that the defendant no. 1 would use the tenanted premises for residential purposes and would vacate it after 11 months. It was further stated that in the month of January-February 2012, the defendant no. 1 was allowed to retain the possession of the tenanted premises at an enhanced rent @ Rs. 4000/- per month which was again enhanced @ Rs. 8000/-. It is further stated that the defendants had paid rent till 30.09.2017 and since then no rent has been paid by the defendants. It is further stated that the defendant approached the plaintiff for buying the said flat and after deliberations, the plaintiff agreed to sell the said flat for a consideration of Rs. 24,00,000/- to the defendants. It is further stated that the defendant no. 1 would pay the entire amount within 3 months from the issuance of the first cheque of Rs. 10,00,000/- of the part payment and agreement to sell would be executed between the parties. It is further stated Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 2/11 that it was agreed between the parties that until the execution of agreement to sell, the status of defendants would remain as tenant and defendant no. 1 would continue to pay the rent in respect of the tenanted premises. It is further stated that defendant no. 1 under his own signatures issued a cheque for an amount of Rs. 10,00,000/- and also another cheque of Rs. 10,00,000/- and two cheques of Rs. 2,50,000/-. It is further stated that the defendants requested the plaintiff and her husband to not to present the said cheque for Rs. 10,00,000/- and stated that the required funds were not available with them. It is further stated that the plaintiff requested the defendant to pay the monthly rent which was due from October, 2017. But the defendant did not pay heed to the request of the plaintiff. It is further stated that the plaintiff and her husband requested the defendant and his wife in the first week of February 2018 to make arrangement of the amount so that the plaintiff could present the cheques but defendant no. 1 and his wife failed to honour the commitment of the agreement. It is further stated that since time was the essence of the oral agreement for sale and since the period of 3 months was coming to end i.e. 26.03.2018. The plaintiff informed the defendants that he would present the said cheque of Rs. 10,00,000/- but the defendants refused the plaintiff on the ground that the money could not be arranged. It is further stated that the plaintiff on 10.03.2018 came to know that the defendant is trying to sell the tenanted premises. It is further stated that the plaintiff insisted the defendant no. 2 to pay the monthly rent w.e.f October, 2018 and made it clear that the plaintiff is ready and willingly to perform her part of contract. It is further stated that the plaintiff is ready to perform the part of a contract while it is the defendant who are trying to delay the part of their contract. Furthermore, the Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 3/11 plaintiff is under the apprehension that the defendant forged and fabricated the some of the title documents in respect of the portion shown in red colour in site plan. It is further stated that the plaintiff had filed a suit for permanent injunction against the defendants which was withdrawn by the plaintiff on the statement of the defendants that they will not create any third party interest in the suit property. It is further stated that plaintiff had sent a legal notice through his counsel to the defendants through speed post dated 01.06.2018 which was returned with the remark "Locked". Furthermore, the defendants are in the illegal possession of the suit property even after the termination of the tenancy and have not been paying rent since October, 2017. Therefore, the plaintiff has filed the present suit for recovery of possession, arrears of rent and mesne profits.
2. WRITTEN STATEMENT OF THE DEFENDANT NO.
2. Written Statement filed on behalf of defendant no. 2. It is stated by the defendant that plaintiff is not the owner of the suit property as he had only filed GPA in her name. It is further stated that defendant no. 2 took the present suit property and possession from her brother namely Narender Prasad Singh in the year 2012 and the defendant got the electricity connection in her name. Therefore, no question of tenancy arises between the plaintiff and the defendants. It is further stated that plaintiff has no right to file the present suit as she is not the owner of the suit property. It is further stated that the plaintiff was only the attorney of Sanjay Pal and plaintiff had already transferred her rights to Narender Prasad Singh of the suit premises. It is further stated that the plaintiff is trying to extort the money from the defendants by Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 4/11 filing the present suit. It is stated that the plaintiff is only the GPA holder of the suit property. It is further stated that being a GPA holder she already sold the suit property to different persons and handed over the physical possession. It is further stated that the plaintiff purchased the suit property on 01.12.2009 from the previous owner Sh. Sanjay Pal for a total consideration of Rs. 17,16,500/-. It is further stated that the defendant is not the tenant of the plaintiff and had never entered into any tenancy of the plaintiff. The defendant had denied all other averments made by the plaintiff and has prayed for the dismissal of the present suit.
3. REPLICATION Plaintiff filed replication to the written statement of the defendants, wherein, he has reaffirmed and reiterated the contents of the plaint and has denied the contents of the written statement. On the basis of the pleadings of the parties, following issues have been framed by the Ld. Predecessor of this court for trial on dated 12.03.2020.
4. ISSUES.
(i) Whether the plaintiff is entitled to decree of possession as prayed for in prayer clause (i)? OPP
(ii) Whether the paintiff is entitled to the relief of arrears of rent as prayed for in prayer clause (ii), if any, if yes, for which period and for what rate? OPP
(iii) Whether the plaintiff is entitled to the mesne profits/damages, if any, if yes, at what rate or for which period?
OPP (iv) Whether there is no landlord-tenant relationship between the plaintiff and defendant no. 2? OPD2 (v) Relief. Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 5/11
5. Thereafter, the defendant no. 2 was proceeded ex-parte by the Ld. Predecessor of this court. It is pertinent to mention that defendant no. 1 has already been proceeded ex-parte by the. Ld. Predecessor of this court vide order dated 29.10.2018. Thereafter, the matter was fixed for ex-parte PE.
6. Perusal of the record transpires that an application u/o 1 Rule 10 CPC for impleadment was dismissed by this court of the applicant namely Pramod Kumar vide order dated 25.05.2023.
7. PLAINTIFF'S EVIDENCE In order to prove his case, plaintiff has examined herself as PW-1 by way of his affidavit in evidence which is Ex. PW-1/1.
She has relied on the following documents:
(i) Ex. PW-1/1 : Site Plan.
(ii) Ex. PW-1/2(OSR) : IGPA dated
01.12.2009.
(iii) Ex PW-1/3 (OSR) : agreement to
sell dated
01.12.2009.
(iv) Ex. PW-1/4 (OSR) : Affidavit dated
01.12.2009.
(v) Ex. PW-1/5 (OSR) : Receipt dated
01.12.2009.
(vi) Ex. PW-1/6 (OSR) : Possession
letter dated
01.12.2009.
(vii) Ex. PW-1/7 (OSR) : Will dated
01.12.2009.
Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 6/11
(viii) Ex. PW-1/8 (OSR) : GPA dated
23.01.003.
(ix) Ex. PW-1/9 (OSR) : Deed of Will
dated
23.01.2003.
(x) Ex. PW-1/10 (OSR) : Cheque no.
119984 dated
27.12.2017.
(xi) Ex. PW-1/11 (OSR) : Cheque no.
119986.
(xii) Ex. PW-1/12 (OSR) : Cheque no.
071433.
(xiii) Ex. PW-1/13 (OSR) : Cheque no.
071434.
(xiv) Ex. PW-1/14 (OSR) : Electricity bill.
(xv) Ex. PW-1/15 (OSR) (colly) (4 pages) : Joint statement
of the
defendants in
suit no.
232/2018 in
the court of
Sh. Muneesh
Garg, Ld. CJ
East District,
KKD Courts,
Delhi on
11.05.2018.
(xvi) Ex. PW-1/16 : Legal notice
dated
01.006.2018.
Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 7/11
(xvii) Ex. PW-1/17 & Ex. PW-1/18 (OSR) : Two postal
receipts.
(xviii)Ex. PW-1/19 & Ex. PW-1/20(OSR) : Copy of two
returned
envelops.
(xix) Mark A : Copy of
electricity bill
with due date
09.03.2018.
8. I have heard Ld. Counsel for the plaintiff, Ld. Counsel for the defendants and have carefully gone through the records.
9. My observation on the above issues as follow:
Issues no. 1 and 4 are taken together.
Whether the plaintiff is entitled to decree of possession as prayed for in prayer clause (i)? OPP Whether there is no landlord-tenant relationship between the plaintiff and defendant no. 2? OPD2
10. The onus to prove the issue no. 1 is upon the plaintiff while the onus to prove issue no. 4 is upon the defendant. Following issues are taken together as they are interlinked with each other.
11. It is stated by the plaintiff that she is the owner and in possession of the suit property. It is deposed by the plaintiff that the suit property was purchased by the plaintiff from its previous owner Sh. Sanjay Pal for a total consideration of Rs. 17,16,500/-. Ex. PW-1/2 to Ex. PW-1/6 are the title documents in favour of the plaintiff. It is further deposed that defendant was inducted as a tenant by the plaintiff at a rent of Rs. 3000/- which was later enhanced to Rs. 4000/- which was further increased to Rs. 8000/-. It was further deposed that the tenancy was oral and the defendants had not paid rent after 30.09.2017. It is further Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 8/11 deposed that an oral Agreement to Sell was executed between the parties wherein the plaintiff agreed to sell the tenanted premises for a consideration of Rs. 24,00,000/- to the defendants. However, the defendant did not honour the terms of the oral agreement and tried to create third party interest. Thereafter, a suit for injunction was filed by the plaintiff which was disposed off after the recording of the statement of the defendants that no third party interest will be created by them qua the suit property. It is further stated that the defendants are in the illegal possession of the suit property even after the termination of the tenancy.
12. The defendant no. 2 in her WS on one hand has stated the plaintiff is the owner of the suit property whereas on the other hand she has stated that plaintiff is not the owner of the present suit as she has only filed GPA in her favour. It is stated by the defendant no. 2 that she took the possession from her brother Narender Prasad Singh in the year 2012 and also got the electricity connection in her name, therefore, no question of tenancy arises between the parties. It is further stated that the plaintiff was only the attorney of Sanjay Pal who is the actual owner of the suit property and thereafter, the plaintiff had transferred her rights to Narender Pal Singh.
13. It is further averred by the defendant that she got the possession of the suit property from her brother who in turn got the possession from the plaintiff. This court is of the considered opinion that the defendant is acknowledging the right of transfer of the plaintiff.
14. Furthermore, the defendant had failed to show that in which capacity she is residing in the suit property. The deposition of the plaintiff remained unrebutted as the defendant has not cross examined the plaintiff.
Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 9/11
15. Therefore, this court is of the considered opinion that the plaintiff is able to prove the relationship of tenancy on the principle of preponderance of probabilities which was terminated by the legal notice dated 01.06.2018 (Ex. PW-1/16)
16. In view of the above, the issue no. 1 is decided in favour of the plaintiff and against the defendant and issue no. 4 is decided against the defendant and in favour of the plaintiff.
Issue no. 2 and 3 are taken together.
Whether the paintiff is entitled to the relief of arrears of rent as prayed for in prayer clause (ii), if any, if yes, for which period and for what rate? OPP Whether the plaintiff is entitled to the mesne profits/damages, if any, if yes, at what rate or for which period? OPP
17. It is deposed by the plaintiff that the defendant has not been paying rent @ Rs. 8000/- since October,2017.
18. The deposition of the plaintiff has remained unrebutted.
19. Therefore, plaintiff is entitled for a recovery of rent @ Rs. 8000/- per month from 01.10.2017 till 30.06.2018.
20. The plaintiff has prayed for damages @ Rs. 15,000/- per month for illegal possession by the defendant from July, 2018 till vacant possession of the suit property. However, no evidence has been led by the plaintiff to claim damages at such an exorbitant rate. Therefore, plaintiff is entitled to get damages @ Rs. 8000/- per month alongwith interest rate @ 9% per annum from the defendants from 01.07.2018 till vacant delivery of possession of the suit property.
21. In view of the above, issue no. 2 and 3 are decided against the defendants and in favour of the plaintiff.
Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 10/11 RELIEF
22. In view of the discussions hereinabove, on the issues, the suit of the plaintiff is decreed and plaintiff is held entitled for recovery of possession of the suit property i.e. D/10, Plot No. 10, out of Khasra No. 63, which is situated in Gali no. 6, Shashi Garden, Mayur Vihar, Phase-I, Delhi measuring 12 sq yds. Defendants are directed to handover the actual, peaceful and physical possession of the suit property within 60 days from the date of the judgment to the plaintiff.
23. Plaintiff is further entitled for recovery of arrears of rent @ Rs. 8000/- per month per from 01.10.2017 till 30.06.2018.with respect to the tenanted premises. plaintiff is entitled to get damages @ Rs. 8000/- per month alongwith interest rate @ 9% per annum from the defendants from 01.07.2018 till vacant delivery of possession of the suit property.
24. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(this order contains 11 pages and each page has been signed by me.) Pronounced in open court on 16.08.2023 (Shubhi Gupta) Civil Judge(East)/KKD Courts Civ Suit 689/18 Smt. Savita Vs. Sameer Chandra & Anr 11/11