Delhi District Court
Sh. Harish Chand Narula vs Sh. Nanhu @ Lal Chand on 1 September, 2016
In the Court of Ms. Asha Menon, District & Sessions Judge
South East : Saket Court, New Delhi.
In the matter of :
RCA No. 34/14
Sh. Harish Chand Narula
S/o Sh. S.N. Narula
Aged about 60 years
R/o L4 Lajpat NagarII
New Delhi24 .... Appellant
V E R S U S
Sh. Nanhu @ Lal Chand
S/o Sh. Ram Narayan
Plot No. 4, Adjacent Q23
Jangpura Extension, New Delhi. ....Respondent
In the matter of :
RCA No. 29/14
Sh. Nanhu @ Lal Chand
S/o Sh. Ram Narayan
Plot No. 4, Adjacent Q23
Jangpura Extension, New Delhi. .... Appellant
V E R S U S
Sh. Harish Chand Narula
S/o Sh. S.N. Narula
R/o L4 Lajpat NagarII
New Delhi24 ....Respondent
Appeal No.34/14 presented on : 24.04.2014
Appeal No.29/14 presented on : 21.04.2014
Arguments concluded on : 08.08.2016
Judgment on : 01.09.2016
JUDGMENT
RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 1 of 19 This order will dispose of two appeals filed against the same Judgment of the Ld. Civil Judge dated 11.03.2014, one filed by the plaintiff and the other by the defendant, as arrayed before the Ld. Trial Court.
2. Sh. Harish Chand Narula was the plaintiff in the original suit and Sh. Nanhu @ Lal Chand was the defendant. This suit had been filed by Sh. Harish Chand Narula for ejectment and possession in respect of Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, along with a decree for Rs.1,98,000/ towards arrears of rent. The plaintiff had also sought appropriate damages against the defendant for not vacating the suit premises after the expiry of lease agreement along with interest @15% per annum.
3. The brief facts as alleged in the plaint was that the defendant entered into an oral tenancy with the plaintiff on 05.06.2006 in respect of one room, common open space with bathroom and toilet, for a monthly rent of Rs.5,000/ per month with electricity and water charges being borne by the defendant. The rent was payable on 5 th of each calender month. The defendant was not to alter the premises without permission of the plaintiff and nor was he allowed to sublet or mortgage the property. The plaintiff claimed that the agreement was initially for a period of 11 months from 05.06.2006 to 04.05.2007, which was renewable with mutual consent for another period of 11 months, however, with 10% increase in the rate of rent.
4. According to the plaintiff, after the first renewal, the defendant stopped paying the rent and requested for time to make the RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 2 of 19 payment on ground of hardship. According to the plaintiff, the defendant failed to pay rent for the next 11 months and the plaintiff warned him that he would have to vacate the premises and handover the possession of the room. According to the plaintiff, the defendant and his family members requested the plaintiff to allow them to continue in the premises on 05.05.2009 and also sought time to make payment of rent. The agreement was extended without increasing the rent on month to month basis.
5. On 10.07.2010, when the plaintiff approached the defendant for the rent, the defendant allegedly refused and misbehaved with him. It was also alleged that defendant did not maintain the property properly and also did not permit the plaintiff to inspect and visit the premises from inside. The defendant also allegedly started using the premises for commercial purposes in violation of the agreement. Thus, vide notice dated 30.07.2010, the plaintiff called upon the defendant to pay the arrears of rent and to remove the violation and vacate which the defendant duly replied admitting the fact of tenancy. Thereafter, the plaintiff was compelled to file suit on 14.09.2010.
6. The defendant raised some preliminary objections, particularly, that the Civil Court had no jurisdiction in view of the Delhi Rent Control Act as the rent of the premises was only Rs.1,000/. The defendant asserted that the plaintiff was regularly receiving the rent at the rate of Rs.1,000/ per month from the defendant from 2004. The defendant, however, denied that he was reinducted as tenant since RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 3 of 19 05.06.2006. The site plan has also been challenged. According to the defendant, he has been residing in the suit premises comprising of one room and common latrine and bathroom since the beginning of 2004 and was also paying the electricity and water charges. According to the defendant, the lease rent was received by the plaintiff in the first week of March 2011 at the rate of Rs.1000/ and that the defendant was assured by the plaintiff that he did not intend to evict him.
7. The plaintiff filed the replication in which he asserted that the nature of the premises under the tenancy is beyond the scope of Delhi Rent Control Act, 1958 as the tenanted premises is not pakka construction.
8. On the basis of these averments, the following issues were framed :
1. Whether the rate of rent of the premises is Rs.5,000/ or Rs. 1,000? OPP
2. Whether the plaintiff is entitled to a decree of possession? OPP
3. Whether the plaintiff is entitled to a decree of ejectment? OPP
4. Whether the plaintiff is entitled to arrears of rent? OPP
5. Whether the plaintiff is entitled to mesne profits?
If so, at what rate? OPP
6. Relief, if any.
9. The plaintiff examined himself as PW1 and also RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 4 of 19 examined Sh. Ram Prakash Sharma and Sh. Megh Raj as PW2 and PW3.
10. The defendant examined himself as DW1.
11. On the basis of the evidence and the material brought on the record, the Ld. Civil Judge answered the Issue No.1 against the plaintiff that the rent of the premises was Rs.1,000/ and not Rs.5,000/.
12. Issues No. 2 & 3 were answered against the plaintiff and in favour of the defendant holding that since the Court had already concluded that the rent payable was Rs.1,000/ per month, relief of possession and ejectment as claimed by the plaintiff could not be granted by the Civil Court in view of Section 50 of Delhi Rent Control Act which placed a bar on the jurisdiction of the Civil Court.
13. With regard to Issue No. 4, the Ld. Trial Court concluded that the plaintiff was entitled to recover arrears of rent from 05.10.2007 till 05.09.2010 i.e. three years prior to the date of filing of the suit at the rate of Rs.1,000/ per month i.e. a sum of Rs.36,000/. Thus, it answered the Issue No.4 in favour of the plaintiff and against the defendant.
14. The Issue No.5 was, once again, decided against the plaintiff and in favour of the defendant in view of the conclusion drawn that the possession of the defendant was not wrongful as the plaintiff had not been able to prove his entitlement to the relief of recovery of possession.
15. Thus, the suit was disposed of holding that the plaintiff RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 5 of 19 was entitled to the decree of recovery of Rs.36,000/ together with pendente lite interest @10% per annum and future interest @6% per annum from the date of the decree till realization.
16. Aggrieved by this Judgment, both, the plaintiff Harish Chand Narula and the defendant Nanhu @ Lal Chand, have preferred these two appeals, which will stand disposed of through this common order.
17. Sh. Nanhu @ Lal Chand in his appeal has questioned the Judgment of the Ld. Trial Court on the ground that while the conclusion in respect of all other issues were correct, the Ld. Trial Court erred in awarding a sum of Rs.36,000/ as arrears of rent for the period of 05.10.2007 till 05.09.2010 along with interest as mentioned hereinabove.
18. The grounds taken are that the conclusion in respect of Issue No.4 was passed on surmises and conjectures and that the claim of the plaintiff was not believable as he has stated during cross examination as PW1 that after receiving rent on 04.05.2007, for the first time in April, 2008, the plaintiff had demanded rent from the defendant, which could not be believed.
19. It is further submitted in the grounds of appeal that the Ld. Trial Court failed to note that in Para No.8 of the plaintiff's examinationinchief, he has stated that instead of demanding the alleged due rent, he had only "warned" the defendant and that such conduct of the plaintiff could lead to the only conclusion that there were in fact no arrears of rent that were payable.
RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 6 of 19
20. It is also submitted that PW1, the plaintiff in his entire examinationinchief nowhere stated that he was entitled to recover the arrears of rent from the defendant. It is also claimed that the PW2 and 3 being independent witnesses had not supported the plaintiff. It is further submitted that the onus of proving the Issue No.4 was on the plaintiff and he had failed to produce any evidence to prove the same.
21. Thus, the appellant Sh. Nanhu @ Lal Chand has prayed that the Judgment and Decree dated 11.03.2014 on Issue No.4 be set aside.
22. The grounds taken by Sh. Harish Chand Narula in his appeal are that the Ld. Trial Court had wrongly decided all the issues against him.
23. It is submitted that the Ld. Civil Judge had failed to consider that the rent of the suit premises was Rs.5,000/ and the witnesses of the plaintiff had corroborated themselves.
24. It is also submitted that the Ld. Trial Court had failed to consider the location of the suit property as it was situated at South Delhi in the vicinity of Metro Station, Highway, Jangpura Market, Main Road, Lajpat Nagar railway station. On the contrary, the defendant had not produced any evidence to support his claim.
25. It is further submitted that the Ld. Trial Court failed to consider that the suit property was not covered under the definition of "premises"under section 2(i) of Delhi Rent Control Act, 1958.
26. It is also submitted that the Ld. Trial Court failed to consider the order of the Hon'ble High Court in RFA No.523/2001 RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 7 of 19 titled Harish Chander Narula & Anr. V. Purshotam Lal Gupta, dated 07.03.2011, wherein the Hon'ble High Court has held that a plot with buildup/construction of temporary nature was not "premises" as per the DRC Act and hence, the matter did not fall in the domain of the Rent Controller.
27. It is submitted that the Ld. Trial Court wrongly concluded that its jurisdiction was barred under Section 50(1) of the Delhi Rent Control Act, 1958.
28. It is further submitted that the Ld. Trial Court had unjustifiably considered the matter of rent as being Rs.1,250/ per person restricted to four persons, whereas the plaintiff had taken the stand that the rent of the suit premises was Rs.5,000/ per month and it was only a bifurcation of Rs.5,000/ intended to restrict the tenant to keep not more than four persons in a room.
29. It is further submitted that the Ld. Judge had erred by taking an adverse presumption due to nonproduction of income tax records whereas the law laid down in this behalf was that the adverse presumption could be drawn only when there was no other evidence to this behalf.
30. It is further submitted that the Ld. Civil Judge ignored the arguments that there is no income, particularly, house property as per income tax returns records and otherwise also, the filing of the income tax returns records was a different aspect of law.
31. It is further submitted that the Ld. Trial Court overlooked the fact that the suit premises consisted of one room, common open RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 8 of 19 space with bathroom and toilet as the room was having space for four persons and accordingly, the rent of the room was Rs.5,000/ per month at the rate of Rs.1,250/ per person. Thus, the appellant has prayed that the Judgment and Order dated 11.03.2014 be set aside.
32. I have carefully perused the record and I have heard the arguments of both the sides. Written arguments have also been filed by both the sides. Written arguments have followed the pleadings.
33. Ld. Counsel for the plaintiff Sh. Harish Chand Narula submitted that the plot had been alloted to him for a fuel depot and he could not construct a permanent structure in the said property. On the other hand, the defendant Sh. Nanhu @ Lal Chand was running a juice corner, which was why the rent was Rs.5,000/. It is submitted that the land was being used for parking autos, which reflected commercial use. It is further submitted that the adverse presumption was wrongly drawn by the Ld. Trial Court in respect of the income tax returns and the Ld. Trial Court had overlooked the credible testimonies of PW2 & 3 wrongly.
34. It was further argued that whatever was the volunteered information of the plaintiff during his crossexamination, being beyond pleadings, ought not to have been considered by the Ld. Trial Court, to hold that the rent was Rs.1,000/ and not Rs.5,000/. It was further submitted that the nonproduction of income tax returns could not lead to a presumption that the rent was Rs.1,000/ and not Rs.5,000/.
35. Thus, it is submitted that the findings of the Ld. Trial Court were liable to be set aside and the suit be decreed.
RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 9 of 19
36. It would be useful to traverse the Judgment issuewise and to take the appeals of both the plaintiff and defendant in respect of each issue to determine whether the Judgment of the Ld. Trial Court is liable to be set aside or interfered with. But before doing so, it may be recorded that Sh. Nanhu @ Lal Chand has not questioned the status of Sh. Harish Chand Narula as the landlord of the suit premises. Though, in the Written Statement some challenges had been made to the tenure of the tenancy, the fact remains that the defendant has accepted that he had taken one room with common bathroom and laterine at a monthly rent from the plaintiff Sh. Harish Chand Narula. The relationship of tenant and landlord is not disputed and extent of tenancy/premises is also not disputed.
37. The Issue No.1 related to the rate of rent for the premises. The plaintiff had claimed in the plaint that the rate of rent was Rs.5,000/ per month and the defendant claimed that the rate of rent was Rs.1,000/. The onus was on the parties to establish these rival claims. In order to substantiate him, the plaintiff examined PW2 Sh. Ram Prakash Sharma and PW3 Sh. Megh Raj. While deciding the issue, the Ld. Trial Court concluded that even the deposition in respect of rent being Rs.1,250/ per person per month or the number of persons were restricted to four was an improvement in the case of the plaintiff and appeared to be an afterthought.
38. Reference was also made to the fact that though the plaintiff as PW1 had admitted to be an income tax assessee and mentioning in his returns that he was receiving Rs.5,000/ per month RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 10 of 19 towards rent. But as he had failed to place on record the income tax returns, an adverse inference had to be drawn. The Ld. Counsel for the plaintiff questioned this conclusion on the ground that filing or non filing of income tax returns records could lead to no conclusion on the rate of rent as nonfiling could only be a violation of some other law and nothing more.
39. Be that as it may, even if the court ignored the reasoning of the Ld. Trial Court that the income tax returns record had not been produced willfully, there is sufficient material which justified the Ld. Trial Court in concluding that the rent was not Rs.5,000/ per month but was something else. The Ld. Trial Court was justified in drawing such a conclusion on the basis of preponderance of probabilities. The Ld. Trial Court was required to weigh the evidence that was brought on record by the plaintiff and that brought on record by the defendant to conclude what was more credible. It has done so after extensive discussions of the evidence on record.
40. The plaintiff as PW1 claimed in his affidavit Ex. PW1/F that the rent was Rs.5,000/ per month. In his crossexamination by the defendant, he reiterated the same rate but, he further volunteered that "the premises given on rent is a room which can accommodate four persons and the rent was fixed at the rate of Rs.1,250/ per person per month."
41. It is a spacious argument of the Ld. Counsel for the plaintiff/appellant that since this statement was beyond pleadings, the court should have ignored the same. Crossexamination is intended to RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 11 of 19 test the veracity of a witness and the truthfulness of his statement. The defendant Sh. Nanhu @ Lal Chand has succeeded in shaking the claim of the plaintiff/appellant Sh. Harish Chand Narula that the rent was Rs.5,000/. The admission of the plaintiff/appellant on oath has to be read in evidence and the Ld. Trial Court has rightly considered the same to reject the claim of the plaintiff/appellant that the rate of rent was Rs.5,000/ per month.
42. The defendant has filed his affidavit as Ex.DW1/A in which he has stated that the rent was payable at the rate of Rs.1,000/ per month. He was crossexamined by the plaintiff through counsel. In his entire crossexamination, the only suggestion put to him in respect of the rent was that the rent of the suit premises was levied per head at the rate of Rs.1,250/ per person. The witness has deposed in reply to his crossexamination that at the time when he had taken the premises on rent, he had only one daughter and that presently, he had three children. In other words, the Ld. Trial Court rightly rejected this claim of the plaintiff/appellant that the rent totalled Rs.5,000/ because the room accommodated four persons and the rent was Rs.1,250/ per person. Had different people stayed together in that one room, such a claim was plausible. However, it is clear from the testimony of DW1 that the premises was taken on rent by him from the plaintiff/appellant to reside with his family members and the question of per head determination of rent does not appear credible.
43. Thus, there is no error in the impugned Judgment with regard to the conclusion in respect of Issue No.1 decided in favour of RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 12 of 19 the defendant/appellant and against the plaintiff/appellant that the rent was Rs.1,000/ per month and not Rs.5,000/.
44. It would be useful to jump to the Issue No. 4 for reason of continuity, the issue being whether the plaintiff is entitled to arrears of rent.
45. The Ld. Trial Court has rightly concluded that the testimony of the plaintiff/appellant in Ex.PW1/F that the defendant was not paying rent since 05.05.2007 has gone unrebutted. In the cross examination of the plaintiff, in answer to a suggestion made by the defendant, he has answered that it is correct that "I have not received rent after 04.05.2007." In other words, his crossexamination reaffirms that the rent had not been paid after 04.05.2007 and was due w.e.f. 05.05.2007 as claimed by the plaintiff/appellant. In his cross examination, the defendant has claimed that he had paid the rent in cash and sent the money order only in May and June 2011 and prior to that he had not sent any money order.
46. While arguing that it was improbable that the plaintiff/appellant would have come to claim rent for the first time in April 2008, the defendant nowhere contends that the plaintiff had been visiting the premises on a monthly basis which facilitated payment in cash to him prior to the sending of the money orders in May and June 2011.
47. On the other hand from the testimony of PW1, it is apparent that he would visit the property at intervals. It appears from the testimony of PW1, both his affidavit as well as crossexamination, RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 13 of 19 that he received the rent on 04.05.2007, then visited the property in April 2008 and thereafter in January 2010 and then on 10.07.2010 when he alleges that the defendant misbehaved with him. Thus, the claim of the defendant that he had made payment in cash is not believable. He has, therefore, failed to establish his claim of uptodate payment of rent and the absence of arrears w.e.f. 05.05.2007.
48. Thus, the Ld. Trial Court rightly answered the Issue No.4 in favour of the plaintiff/appellant and against the defendant/appellant that the plaintiff was entitled to recover arrears of rent w.e.f. 05.10.2007 till 05.09.2010 i.e. for three years prior to the date of filing of the suit at the rate of Rs.1,000/ i.e. a sum of Rs.36,000/ only.
The appeal of the defendant/appellant Nanhu @ Lal Chand is therefore clearly devoid of merit.
49. Issues No. 2&3 as also Issue No.5 were decided by the Ld. Trial Court on the basis of a conclusion that since the rent was Rs.1,000/ per month, the Delhi Rent Control Act, 1958 was applicable to the premises. However, the Ld. Trial Court has erred in reaching this conclusion. The applicability of the Delhi Rent Control Act is not premised only on the rate of rent. Premises defined under the Act have to be let out if the Delhi Rent Control Act, 1958 is to be applicable. It is well settled now that premises which are temporary in nature do not get the protection of the Delhi Rent Control Act as they are not "building" or "part of a building" within the definition of Section 2(i) of the DRC Act.
50. The plaintiff/appellant relied upon the decision of the RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 14 of 19 Hon'ble High Court of Delhi in RFA No.523/2001 titled Harish Chander Narula & Anr. V. Sh. Purshotam Lal Gupta decided on 07.03.2011, to contend that the land with temporary structure was not premises within the meaning of the DRC Act as the tin shed did not fall within the expression of premises.
51. The Ld. Trial Court went by the use of the words "room" in the legal notice Ex. CW1/E and in the description of the suit property in the plaint as being a room while ignoring the admission made by the defendant. The Ld. Trial Court even while referring to the admission made by the defendant chose to blink at it on the ground that the legal notice sent by the plaintiff to the defendant did not describe the suit property to be temporary in nature. It further went on to observe that the plea of the premises being a temporary structure was raised for the first time in the replication after the plea that the suit was barred under the DRC Act was taken by the defendant which indicated that the same was an afterthought and was directed at filling up the lacuna in the case of the plaintiff.
52. Such a view is completely misplaced. The purpose of the replication is to meet the pleas raised by the defendant in the Written Statement and the court having once allowed the plaintiff to file the replication, cannot chose to ignore it merely because it is filed after the written statement. The plaintiff could not have taken the stand that his suit was barred by the DRC Act or that the Rent Control Act was inapplicable to the premises and it is the defence of the defendant that the suit was barred under the rent laws. Therefore, rejection of the plea RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 15 of 19 taken by the plaintiff/appellant on this ground cannot be sustained.
53. The defendant in his crossexamination as DW1 has admitted that "I had taken one room on rent which was a small jhuggi. It is made of tin sheet. Because of leaking roof I had put a blue tarpoline on the roof". However, in his crossexamination, he had denied that he had constructed two rooms. He has also described that in the suit property there are "total four tenants living in jhuggies. The jhuggies are approximately built up of similar types." Thus, despite using the word "room", the defendant has reiterated repeatedly in his testimony that the premises he has taken on rent is a jhuggi and is a temporary structure. The Ld. Trial Court, however, went by the use of the word "constructed property as per the map/site plan" used by the plaintiff in the plaint. Temporary construction is also construction and the use of these words will not convert the temporary structure into a permanent structure to hold that the plaintiff had let out a permanent structure to the defendant when his own admission is that he was living in a jhuggi with a tin sheet and blue tarpoline roof.
54. The defendant was shown the photograph Ex.DW1/1C and he identified at Point A as his door. He also stated that the room was approximately 7x8 feet. The entire structure in this photograph is clearly temporary with tarpoline and tin sheet for roof. In fact, the defendant himself has placed on record three photographs Ex. DW1/1A, DW1/1B and DW1/1C and these photographs depict the temporary nature of the premises that has been let out.
55. In the result, it is clear that the Ld. Trial Court has RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 16 of 19 wrongly concluded that the tenancy was governed by Delhi Rent Control Act and that therefore, the Ld. Trial Court could not pass a decree of possession or decree of ejectment.
56. Having concluded that the Civil Court had jurisdiction in the matter, the question then to be determined is whether the plaintiff has successfully established that he is entitled to possession of the suit premises.
57. It is well settled law that temporary structure cannot be called 'premises' and would not be covered under the Delhi Rent Control Act.
58. Reference was made by the plaintiff/appellant to the decision of the Hon'ble High Court of Delhi in Surinder Kumar Jhamb V. Om Prakash Shokeen 82 (1999) DLT 569, Ajit Singh V. Ram Saroop Devi (1994) 55 DLT 759 as also the judgment of the Delhi High Court in RFA No.523/2001 entitled Harish Chander Narula & Anr. V. Sh. Purshotam Lal Gupta. There is no reason to adopt a different view.
59. Under the Transfer of Property Act, 1882, a lease is determined either by efflux of time or by express or implied surrender or on the happening of certain events or on the expiration of a notice to determine the lease or to quit the property leased, duly given by the landlord to the tenant or visaversa. This is provided under Section 111 of the Transfer of Property Act, 1882.
60. Under Section 106 of the Transfer of Property Act, a lease of immovable property not being for agriculture or manufacturing RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 17 of 19 purpose, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice. Under Section 106(2) of the Transfer of Property Act, the period mentioned in sub section (1) shall commence from the date of receipt of the notice.
61. Admittedly, in the present case, a notice was issued by the plaintiff which is Ex.CW1/E which was replied to by the defendant on 03.08.2010. The fact of having replied the legal notice is admitted by the defendant in his affidavit Ex.DW1/A. The notice is dated 30.07.2010 and the reply is dated 03.08.2010. The notice Ex.CW1/E clearly calls upon the defendant to vacate the suit premises and handover the physical possession of the same to the plaintiff within 15 days along with payment of Rs.2,14,500/.
62. The requirements of Section 106 Transfer of Property Act are fully met in this case.
63. Thus, the plaintiff is entitled to seek the ejectment of his tenant, the defendant and obtain the vacant possession from the defendant. Thus, Issues No.2&3 have to be answered in favour of the plaintiff and against the defendant to the effect that the plaintiff/appellant is entitled to the vacant possession of the leased property at Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, and to a decree of ejectment against the defendant in respect of the same premises. These issues are accordingly answered in his favour.
64. With regard to Issue No. 5, it must be held that there is no RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 18 of 19 evidence that has come on record regarding the rate at which the mesne profits have been claimed or are to be awarded. In the absence of any proof, the plaintiff having failed to discharge the onus, the issue cannot be answered except against the plaintiff.
65. In the light of the foregoing discussions, therefore, the appeal filed by Sh. Nanhu @ Lal Chand is dismissed while the appeal filed by Sh. Harish Chand Narula is allowed in part, inasmuch as the findings of the Ld. Trial Court in respect of Issues No. 1&4 are upheld with respect to the rate of rent being Rs.1,000/ per month and the period of arrears being w.e.f. 05.10.2007 to 05.09.2010, whereas the findings in respect of issues No. 2&3 are set aside. The suit is decreed for possession and ejectment in respect of Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, along with recovery of arrears of rent, in favour of the plaintiff/appellant and against the defendant/appellant.
66. Decree sheet be prepared accordingly.
67. The original order be placed in file RCA No. 34/14 and the copy be placed in file RCA No.29/14.
68. Trial Court Record be returned along with copy of this order.
69. File be consigned to Record Room.
Announced (Asha Menon) District & Sessions Judge SouthEast, Saket Courts New Delhi 01.09.2016 (s) RCA No.34/14 Harish Chand Narula V. Nanhu @ Lal Chand & RCA No.29/14 Nanhu @ Lal Chand V. Harish Chand Narula Page 19 of 19