Delhi District Court
Lochan Singh vs Pritpal Malhotra on 30 August, 2025
Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr.
IN THE COURT OF SH. JITEN MEHRA:
DISTRICT JUDGE 10:TIS HAZARI COURTS: DELHI.
CS DJ NO.610047/2016
CNR NO.DLCT01-000014-1999
In the matter of:
1. SH. LOCHAN SINGH
(Since deceased)
S/o Sardar Nanak Singh,
R/o P.O. Box No. 197,
Wembley, Middlesex,
HAO 3 UP, England,
United Kingdom (U.K.).
2. SH. SATINDER SINGH OBHRAI
(Impleaded as plaintiff no.2 vide order dated 22.08.2008)
S/o Late Sh. Lochan Singh,
R/o P.O. Box No.197, Wembley, Middlesex,
HAO 3 UP, England,
United Kingdom (U.K.).
......Plaintiffs
Versus
1. SMT. PRITPAL MALHOTRA
W/o Sh. Ranjan Malhotra,
2. SH. RANJAN MALHOTRA
(Expired on 13.11.2010 and deleted as defendant no.2
vide order dated 03.12.2010)
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.1/84
Both defendants are R/o:
A-2/46, Rajouri Garden,
New Delhi.
.....Defendant
Date of institution: 31.08.1999
Date on which reserved for judgment: 18.07.2025
Date of decision : 30.08.2025
SUIT FOR POSSESSION AND MESNE PROFITS.
JUDGMENT:
1. The present suit was originally instituted before the Hon'ble High Court of Delhi on 31.08.1999. However, owing to the enlargement of the pecuniary jurisdiction of the District Courts in Delhi, as per section 5 (2) of the Delhi High Court Act, 1966 as amended by the Delhi High Court (Amendment) Act, 2003 and in terms of office order No.37/DHC/ORGL. dated 22.08.2003, it was transferred to the District Courts (Central District) for further trial vide order dated 07.01.2004.
2. The plaintiff no.1 Sh. Lochan Singh, who unfortunately expired during the pendency of the present suit on 16.12.2013, had filed the present suit for possession and mesne profits against the defendants no.1 and 2.
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.2/84
3. The defendant no.2 also expired during the pendency of the present suit on 13.11.2010 and further was also deleted from the array of parties vide order dated 03.12.2010 on the request of the plaintiffs.
Plaintiff's version as per the plaint
4. It is pertinent to mention that the plaintiff was permitted to amend the plaint vide order dated 14.09.2005. Thereafter, during the pendency of the present suit, the plaintiff Sh. Lochan Singh executed a gift deed dated 17.05.2007 qua the suit property in favour of his son Sh. Satinder Singh Obhrai, who was impleaded as plaintiff no.2 as per order dated 22.08.2008.
5. The plaintiff no.2 then filed another application under Order 6 rule 17 CPC seeking to amend the plaint again, which was allowed vide order dated 03.03.2009.
6. As per the amended plaint, the plaintiff no.1 Sh. Lochan Singh states that he is the owner of the property bearing no.A-2/46, Rajouri Garden, New Delhi, built on a plot measuring CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.3/84 294.6 sq. yards (hereinafter referred to as the 'suit property'), having purchased the said plot vide a registered sale deed dated 16.08.1960. The plaintiff no.1 raised the super-structure on the said plot comprising of a ground floor. The suit property is stated to be comprising of three rooms, kitchen, bath, common front courtyard in the front portion and two rooms in the back portion.
7. The plaintiff no.1 was also assessed to house tax of the suit property in his own name and the suit property was also mutated in his name in the records of the Municipal Corporation of Delhi (MCD). The plaintiff no.1 also got installed electricity and water connections in his own name.
8. The plaintiff no.1 was a Non-Resident Indian (NRI) and had been residing in London, U.K. for the last thirty years, as on the date of the filing of the suit. However, owing to his emotional ties with India, decided to purchase the suit property for the purpose of settling down in India. As the plaintiff no.1 was residing in the U.K. and did not have anyone to look after the suit property, he requested his old friend Mr. Kulwant Singh to look CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.4/84 after the same. The understanding between the plaintiff no.1 and Mr. Kulwant Singh was that the latter was to look after the payments of the electricity and water connections of the suit property and also protect the possession of the plaintiff no.1. The suit premises were locked and the key was given to Mr. Kulwant Singh for inspection of the suit property from time to time.
9. Accordingly, Mr. Kulwant Singh began looking after the suit property. Whenever the plaintiff no.1 visited India, he would visit the suit property, which was found to be lying vacant by him. However, in October, 1988 during the plaintiff no.1's visit to India, he visited the suit property and found the daughter of his friend Sh. Kulwant Singh, i.e. the defendant no.1 Smt. Pritpal Malhotra and her husband Sh. Ranjan Malhotra (erstwhile defendant no.2) in the unauthorized and illegal possession of the front portion of the suit property and only two rooms of the suit property in the back portion were left in the original condition. The front portion of the suit property in possession of the defendants has been depicted in blue colour in the site plan annexed along with the plaint as Annexure-A. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.5/84
10. On being confronted by the plaintiff no.1, the defendants assured him that they would vacate the said front portion within two months. The plaintiff no.1 believed the defendants and left India on their assurance.
11. Thereafter, plaintiff no.1 kept pressing the defendants to vacate the suit property, which they did not comply with. The plaintiff no.1 next visited India in February, 1993, however the defendants had still not vacated the portion of the suit property in their possession.
12. As the plaintiff no.1 had great faith in the father of the defendant no.1, i.e. Sh. Kulwant Singh, he gave them some more time to vacate the front portion of the suit property.
13. The plaintiff no.1 again visited India in the year 1997 and reiterated his request to the defendants to vacate the front portion of the suit property and also sent a legal notice dated 03.03.1997 to the defendants, which was duly served, to vacate the front portion of the suit property. However, still the defendants did not CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.6/84 vacate the front portion of the suit property.
14. On legal advice received, the plaintiff no.1 then instituted a suit for mandatory and permanent injunction bearing Suit No. 226/1997 titled as 'Lochan Singh vs. Pritpal Malhotra and Anr.' against the defendants. However, the said suit was dismissed as being not maintainable in view of section 41(h) of the Specific Relief Act, 1963 vide order dated 02.04.1998. The plaintiff has then instituted the present suit.
15. The plaintiff no.2 Sh. Satinder Singh Obhrai, son of the plaintiff no.1, also visited India in April, 1999 to request the defendants to vacate the front portion of the suit property, but to no avail.
16. It was further submitted that on 17.05.2007, during the pendency of the present suit, the plaintiff no.1 has executed a registered gift deed in favour of the plaintiff no.2, duly registered with the Sub-Registrar, Delhi having Registration No. 9469 in Book No.1, Vol No. 14,742 on pages 156 to 165 dated CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.7/84 17.05.2007, with respect to the entire suit property, and hence now by virtue of the said gift deed dated 17.05.2007, the plaintiff no.2 had become the owner of the entire suit property.
17. As per the plaintiffs, the defendants are in unauthorized and illegal occupation of the front portion of the suit property, while the back portion of the same is in the possession of the plaintiff. The plaintiff claims mesne profits of Rs.10,000/- per month from the defendants from the legal notice dated 03.03.1997 along-with interest @ 18% p.a.
18. In para no.13 of the plaint, the cause of action is stated to have arisen for the first time in February, 1988, when the plaintiff discovered the defendants in illegal possession of the portion of the suit property. Further, on 03.03.1997 when the plaintiff issued the legal notice and again in April, 1999 when the plaintiff's son visited the suit property and requested the defendants to vacate the same. The cause of action is stated to be continuing and subsisting as on the date of the filing of the suit. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.8/84
19. The suit has been valued at Rs. 10,00,000/- with respect to the relief of possession for the purposes of court fees and jurisdiction on which a court fees of Rs. 12,104/- has been paid. Further, for the purpose of mesne profits, the suit has been valued at Rs. 2,60,000/- on which a court fees of Rs. 4,881.60/- has been paid. The plaintiffs have further paid court fees of Rs. 20/- against future damages, and undertakes to pay additional court fees at the time of getting the relief, if any.
20. The plaintiffs thus seek the following reliefs:
(a) A decree of possession of the portion of the suit property as shown in red colour in the site plan annexed with the plaint;
(b) A decree for Rs. 2,60,000/- towards mesne profits against the defendants;
(c) A decree for future mesne profits @ Rs. 10,000/- per month from the date of institution of the suit, till the recovery of the possession along-with interest @ 18% p.a. till its realization, against the defendants;
(d) any other further relief as this Court may deem fit.
Written statements of the defendants
21. The defendants no.1 and 2 filed a combined written CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.9/84 statement to the amended plaint. The said written statement contains evasive denials and contradictory pleas and submissions.
22. The defendants raised the the preliminary objections that the present suit had been filed without any cause of action and the material fact had been suppressed that the defendant no.1, Smt. Pritpal Malhotra, was a lawful tenant in the front portion of the suit property since February, 1993 at a monthly rent of Rs.500/- per month, excluding electricity and water charges. It was further submitted that the defendant no.1 was in possession of the front portion of the suit property since February, 1986. Further, the present suit was not maintainable on account of section 50 of the Delhi Rent Control Act, 1958 (DRC Act). It was further submitted that an incorrect site plan had been filed by the plaintiffs, which had not been signed. Further, the defendant no.2 had been mis-joined by the plaintiffs as a defendant in the present suit. The value of the property was also stated to be undervalued by the plaintiffs and the proper court fees had not been paid. It was further submitted that the plaint had been verified at Delhi, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.10/84 whereas the plaintiffs were residents of UK and it be verified from their passports whether they were present during the said time in India.
23. In the reply on merits, while claiming to be the tenant of the plaintiff no.1 in the preliminary objections, the defendants denied that the plaintiff no.1 was the owner of the suit property. It was further denied that the plaintiff no.1 had raised the superstructure on the plot of the suit property himself. It was also denied that the suit property was assessed to property/house tax in the name of the plaintiff no.1. It was submitted that the plaintiff no.1 Sh. Lochan Singh was permanently settled in the UK and a close friend of Sh. Kulwant Singh, i.e. the father of the defendant no.1. It was submitted that the plaintiff no.1 permitted Sh. Kulwant Singh to raise the construction of the said plot, which was then got constructed by Sh. Kulwant Singh. Further, the electricity and water connections were also obtained by Sh. Kulwant Singh and not by the plaintiff. The defendants denied that the Sh. Kulwant Singh was only instructed to look after the suit property by the plaintiff no.1 and not let out the same to CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.11/84 anyone.
24. Further, the defendants submitted that Sh. Kulwant Singh was given complete and full power to deal with the suit property in any manner. Sh. Kulwant Singh was also empowered by the plaintiff no.1 to let out the said property to any tenants in order to meet the maintenance costs of the suit property. Accordingly, Sh. Kulwant Singh let out the front portion of the suit property to one Sh. Mehra at a rent of Rs. 275 per month in the year 1976. The back portion of the suit property was let out to one Sh. Deepak at a monthly rent of Rs. 250/- per month in the year 1978. When Sh. Deepak vacated the said back portion in the year 1984, . Kulwant Singh is stated to have rented the said back portion out to his daughter/defendant no.1 in June, 1984 at Rs. 250/- per month. It is further submitted that in February, 1986 when the front portion of the suit property was vacated by Smt. Usha Sarin (daughter of the tenant Mr. Mehra), the said front portion of the property was also rented out by Sh. Kulwant Singh to the defendant no.1 at a monthly rent of Rs. 3,00/- per month, excluding electricity and water charges. It is further submitted that this 'arrangement' was CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.12/84 made by the father of the defendant no.1/Sh. Kulwant Singh with the consent, knowledge and permission of the plaintiff no.1. It is further submitted that the defendant no.1 used to pay the rent of Rs. 3,00/- per month in respect of the front portion of the suit property to her father Sh. Kulwant Singh since February, 1986 "who never issued rent receipts on account of the fact that Sh. Kulwant Singh was the father of the defendant no.1. The rent so collected by Sh. Kulwant Singh used to be deposited in the account of Sh. Lochan Sinh at Punjab National Bank, Rajouri Garden, New Delhi, as per the knowledge and instructions of the plaintiff no.1". It is further submitted that when the plaintiff no.1 visited India in February, 1993 the rent in respect of the front portion was raised to Rs. 5,00/- per month, excluding electricity and water charges. It is also submitted that the father of the defendant no.1, Sh. Kulwant Singh expired on 26.12.1988.
25. The defendants no.1 and 2 further submit that the defendant no.1 "paid the rent to the plaintiff no.1 up to February 1997 at the rate of Rs. 500/- per month in respect of the front portion in possession of the defendants but the rent receipts were CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.13/84 never issued to the answering defendants as the same was not being issued by late Sh. Kulwant Singh, earlier also as detailed above. It is submitted that the plaintiff no.1 never issued any receipt to the defendant No.1 on the ground that the plaintiff no.1 used to treat the defendant No.1 just like his daughter and as such neither the defendant No.1 asked for rent receipt, in respect rent paid of the front portion, nor the said rent was issued by the plaintiff no.1, at any time, on account of relationship of the plaintiff no.1 and defendant No.1. Rather on the other hand the plaintiff no.1., requested the defendant No.1, to have full faith in the plaintiff no.1.". It was further submitted that on account of rise in the price of the properties in the area, the plaintiffs had 'turned greedy' and were interested in getting the suit property vacated from her, despite she being a lawful tenant. The defendants denied that in October, 1988 the plaintiff no.1 discovered the defendants to be in unlawful possession of the front portion of the suit property and reiterated that she had been inducted as a tenant in February, 1986 by her father Sh. Kulwant Singh at a monthly rent of Rs. 300/- per month. The defendants also denied the service of the legal notice dated 03.03.1997 upon CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.14/84 them.
26. The defendants also denied that the plaintiff no.1 had executed a gift deed in favour of the plaintiff no.2. It is submitted that a perusal of the gift deed reveals that it is mentioned therein that a Court case bearing no. 1944/99 was pending before the Hon'ble High Court of Delhi, whereas to the knowledge of the defendants, no such suit was pending. Hence, the contents of the gift deed are wrong. It is further submitted that " Even otherwise, as per the contents of the Gift Deed it is mentioned that the donor has decided to gift, which does not mean that the donor has gifted the suit property to the applicant. Thus it is clear that the alleged Gift-Deed has not been executed and signed by the plaintiff no.1 but the same has been procured by plaintiff no.2 by making misrepresentation or by making false statement as plaintiff no.1 has never visited to India on 17.05.2005 in order to get register the alleged Gift-Deed before the Sub-Registrar and therefore, it will be in the interest of justice if the plaintiff is ordered to be present in the court to be examined as per law for bringing truth on record in respect of the alleged Gift Deed."
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.15/84
27. The defendants have thus denied all the averments of the plaint on the above grounds and sought for the dismissal of the present suit.
REPLICATION BY THE PLAINTIFFS
28. The plaintiffs filed their replication to the written statements of the defendants no.1 and 2, in which the contents of the written statement were denied and the averments of the plaint were reiterated to be true and correct.
ISSUES FRAMED
29. Vide order dated 29.04.2009, the following issues were framed for consideration in the present suit:
1. Whether the plaintiff is entitled to possession of the premises bearing no. A-2/46, Rajouri Garden, New Delhi? OPP
2. Whether the plaintiff is entitled to a sum of Rs. 2,60,000/- towards the mesne profits? OPP
3. Whether the defendant is a tenant in the premises in question? OPD
4. Whether the plaintiff is entitled to current and future CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.16/84 mesne profits @ Rs. 10,000/- per month from the date of its institution till the date of realization together with interest? OPP
5. Whether the suit is not maintainable? OPD
6. Whether the court has no jurisdiction in the present suit? OPD
7. Whether property is not properly value for the purpose of court fee and its jurisdiction? OPD
8. Whether the suit in question has been verified in accordance with laws? OPD
9. Relief.
(Sic.)
30. Further, vide orders dated 24.12.2009 and 19.03.2010, the defendant was ordered to lead their evidence first.
31. Vide order dated 08.07.2024 the following additional issue was also framed in the present suit, which is now numbered as issue no.8a :
8a. Whether the Gift Deed executed in favour of Sh. Satinder Singh Obhrai on 17.05.2007 is invalid? OPD Evidence adduced by the Defendant
32. The defendant Smt. Pritpal Malhotra filed two evidence by way of affidavits, i.e. one dated 12.08.2010 and another dated CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.17/84 06.01.2011 and tendered the latter in evidence as Ex. DW-1/A on 06.01.2011, without seeking any permission from the Court.
33. It is pertinent to mention that in the earlier evidence by way of affidavit dated 12.08.2010, the defendant had included a para no.6, which was subsequently altered in the subsequent evidence by way of affidavit dated 06.01.2011. The said para no.6 of both the affidavits is as follows:
Affidavit dated 12.08.2010 of the defendant no.1:
"6. That the plaintiff no.1, immediately called upon them to vacate the said portion and to hand over vacate and peaceful possession of the front portion, as he had purchased the said property for his own enjoyment and benefit and for finally settling down in India as alleged. I can say that the plaintiff no.1 was very happy to know when the front portion of the said property was let out to my wife as a tenant as above so that his property is being managed and looked properly by defendant No. 1, being just like his daughter and therefore the plaintiff no.1, never asked us to vacate the said premises at any time and neither served any notice to this effect."
Affidavit dated 06.01.2011 of the defendant no.1:
"6. That the plaintiff no.1, has never called upon me and my family to vacate the said portion and to hand over vacate and peaceful possession of the front portion, as he had purchased the said property for his own enjoyment and benefit and for finally settling CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.18/84 down in India as alleged. I can say that the plaintiff no.1 was very happy to know when the front portion of the said property was let out to me as a tenant as above so that his property is being managed and looked properly by me, being just like his daughter and therefore the plaintiff no.1, never asked us to vacate the said premises at any time and neither served any notice to this effect."
34. At the time of tendering of the evidence by way of affidavit dated 06.01.2011 as well, the said objection was raised by the ld. Counsel for the plaintiffs, which was directed to be adjudicated at the time of final disposal of the case.
35. In the evidence by way affidavit dated 06.01.2011 Ex. DW-1/A, the defendant Smt. Pritpal Malhotra reiterated that she was a tenant in respect of the front portion of the suit property @ Rs. 5,00/- per month, exclusive of electricity and water charges. She stated that she had been paying the rent to the plaintiff no.1 @ Rs. 5,00/- per month since February, 1993. She stated that she had been inducted as a tenant by her father Late Sh. Kulwant Singh. She stated that her father Sh. Kulwant Singh was authorized by the plaintiff no.1 to raise the construction on the said plot, which was then raised under 'his supervision'. She CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.19/84 further stated that the water and electricity connection was also obtained by her father Sh. Kulwant Singh and not the plaintiffs. She further deposed that "the plaintiff no.1, deposed complete confidence in my father Sh. Kulwant Singh, one of his friends, to look after the suit premises and also authorized him to look after and raise construction on the said property."
36. She further reiterated that Sh. Kulwant Singh was given complete and full power to deal with the suit property, being his close friend and "just like brother". She stated that her father Sh. Kulwant Singh let out the front portion of the suit property to one Sh. Mehra at a rent of Rs. 275 per month in the year 1976. The back portion of the suit property was let out to one Sh. Deepak at a monthly rent of Rs. 250/- per month in the year 1978. When Sh. Deepak vacated the said back portion in the year 1984, Sh. Kulwant Singh then rented the said back portion out to her in June, 1984 at Rs. 250/- per month. Further, in February, 1986 when the front portion of the suit property was vacated by Smt. Usha Sarin (daughter of the tenant Mr. Mehra), the said front portion of the property was also rented out by her father Sh. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.20/84 Kulwant Singh to her at a monthly rent of Rs. 3,00/- per month, excluding electricity and water charges. She reiterated that this 'arrangement' was made by her father Sh. Kulwant Singh with the consent, knowledge and permission of the plaintiff no.1. She further stated that she used to pay the rent of Rs. 3,00/- per month in respect of the front portion of the suit property to her father Sh. Kulwant Singh since February, 1986 and no rent receipts for the same were ever issued. She further stated that when the plaintiff visited India in February, 1993 the rent in respect of the front portion was raised to Rs. 5,00/- per month, excluding electricity and water charges. She further stated that she had paid the rent up-to February, 1997 of Rs. 5,00/- per month, however no rent receipts were issued by the plaintiff no.1 as he used to treat her "just like his daughter". She reiterated that on account of rise in the property prices, the intentions of the plaintiffs had become mala fide and wanted to evict her. She further deposed that the gift deed had not been signed by the plaintiff no.1, as he had never visited India on 17.05.2007.
37. The defendant relied upon the only following documents CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.21/84 in support of her case:
a) Copy of her ration card as Ex. DW-1/1.
b) Copy of her telephone bill as Mark B.
c) Copy of her electoral roll as Ex. DW-1/3.
d) Copy of her PAN Card as Mark A.
38. The defendant Smt. Pritpal Malhotra was cross-examined on 06.01.2011, during which she admitted that her children were married and settled in Gurgaon. She denied the suggestion that the voter list filed by her was of Sudershan Park only. She deposed that she could not tell the date, month or year when the ration card was got prepared by her, and volunteered to state that it was prepared at the time when she started residing in the suit property. She also admitted that the said ration card was prepared prior to the year 1986, which was renewed from time to time. She deposed that the evidence by way of affidavit Ex. DW-1/A was got prepared by her counsel at the instance of her husband and she did not remember whether she had signed the same. She also deposed that she could not say whether she detected the mistake in the earlier affidavit of August, 2010. She further stated CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.22/84 that she could not read the affidavit Ex. DW-1/A as she had not brought her spectacles, however had read the same the day before. She stated that she did not know whether she had stated in Ex. DW-1/A that the rents in the area had increased. She further stated that she did not know what were the prevalent rates of rent of such properties or whether the rental value of such property was Rs. 10,000/- per month. She further deposed that she did not know whether she had filed any document on record in respect of creation of any tenancy in her favour and stated that her husband used to deal with such matters. She further contradicted her own stand in the written statement and the evidence by way of affidavit Ex. DW-1/A and stated that only her husband used to pay the rent of the property and she never paid the same. She further stated that she did not know whether any statement of accounts was kept by the defendants with respect to the rents paid as it was her husband who used to deal with such matters. She categorically admitted that the plaintiff no.1 was the owner of the property in question. She denied that the house tax and other government dues of the suit property were paid by the plaintiff no.1 and volunteered to state that "I used to pay the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.23/84 house tax and other government dues in respect of the property in question and I was paying the said dues and house tax since the year 1984 till the date of filing of the present case and even after filing of the suit sometimes I paid the said dues". However she stated that did not know whether the house tax used to be deposited in the name of Sardar Lochan Singh and volunteered to state that her husband used to deposit the same with the concerned authorities. At this stage a court question was also put to the witness with respect to her contrary stand in regards payment of the house tax, i.e. whether it was being paid by her or her husband, to which she then confirmed that it was being paid by her husband only. She then admitted that she herself never paid any house tax and it was being done by her husband. She also admitted that she herself never paid any rent and it was being paid by her husband. She also stated that she had never seen any written document or any power of attorney which authorized her father Sh. Kulwant Singh to collect the rent on behalf of the plaintiff no.1. The defendant was then categorically also asked "Q. Whether you are aware that any talks of tenancy in respect of property in suit happened between Sardar Kulwant CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.24/84 Singh and plaintiff no.1?" to which she evasively replied "I cannot say anything as it was the matter between them only. Vol how can I tell this.". She further stated that she did not even know the bank account number of the plaintiff no.1. She further stated that she did not know whether any notice was issued to her with respect to demand of rent receipts. She also stated that the "Written statement in this case was got prepared by my husband and not by me as he used to deal with the case.". Thereafter, the further cross-examination of the defendant was deferred on account of lack of time.
39. The defendant Mrs. Pritpal Malhotra was then further cross-examined next on 03.03.2011, during which she also admitted that she did not have any house tax receipt with her to prove that the house tax was deposited by the defendants and volunteered to state that "all house tax receipts were taken by the Sh. Naminder Singh, the brother of the daughter-in-law of plaintiff no.1", which fact finds no mention in the written statement filed by the defendants. She was further asked whether she had sent any notice to the plaintiff for refund of the house tax CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.25/84 which was alleged to have been paid by them on behalf of the plaintiff no.1, to which she stated " I do not remember". She then stated that she did not know either the date, month or year since when she knew Mr. Mehra and Mr. Deepak, but stated that they resided in the suit property as tenants. She further stated that even at the time of filing of the evidence by way of affidavit before the Court, she did not know about the year or date since when Mr. Mehra and Mr. Deepak had allegedly stayed in the suit property. She further stated that she was not aware whether Mr. Mehra and Mr. Deepak were having any kind of documentation with respect to their tenancy or even the amount of rent they were paying as tenants. She also admitted that she did not even know whether the alleged rent paid by the defendants up-to February, 1997 was paid by way of cheque or cash or even any date on which the said rent was paid. She also stated that she could not remember whether she made the payment of rent prior to February, 1997 or thereafter. She also admitted that she had no proof with regard to payment of rent. She also admitted that she gave no notice to the plaintiff no.1 with respect to non-issuance of rent receipts. She also admitted that she could not tell the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.26/84 mode of deposit of rent. She denied having received the legal notice dated 03.03.2007, Mark X issued by the advocate of the plaintiff no.1. She was then confronted with the acknowledgment card depicting the acknowledgment of the same as Mark Y, to which she stated that she did not remember.
40. She further admitted that she was occupying two bedrooms, one drawing room, latrine, bath room and verandah as shown in the site plan, Ex. DW-1/P-1 from points 'A' to 'A'. She also admitted that she herself had not filed any site plan of the suit property showing her possession. She further deposed that " I do not know whether plaintiff no.1 has gifted the suit property to his son i.e. plaintiff no.2." She further admitted that there was never any correspondence between herself and the plaintiff no.1. She also stated that she could not even remember the date, month or year when she met the plaintiff no.1 the last time and then again stated that she met him when the suit was filed against her. But could not tell whether it was after the filing of the previous suit, or the present one. The defendant could not even tell since when she was in occupation of the front portion of the suit CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.27/84 property and stated "I can not say since when I occupied the front portion of the suit property. (vol I am in the possession since I entered into the suit property). However, still continued to deny the suggestions that she was in unauthorized occupation of the suit property and that she had never paid any rent for the same, or that her father Sh. Kulwant Singh never had any right to let out the property, or ever acted as the attorney or nominee of the plaintiff no.1. She also admitted that she did not have any documentary proof to show that her father Sh. Kulwant Singh had constructed the suit property. She also denied the suggestion that the plaintiff no.1 was always accompanied by his son, the plaintiff no.2 whenever he visited India, on account of his old age. The witness was thereafter discharged.
41. The defendant's own brother Sh. Ramanjit Singh also stepped into the witness box as DW-2 in an attempt to prove her case. He tendered his evidence by way of affidavit as Ex. DW-2/A, in which he stated that his sister was a lawful tenant in the suit property since 1986 and was paying rent @ Rs. 5,00/- per month exclusive of electricity and water charges since February, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.28/84 1993 and was in possession since February, 1986, having been inducted as a tenant by their father Sh. Kulwant Singh. He further deposed that "Plaintiff no.1 had authorized my father to raise construction on the said plot and accordingly the entire construction on the said plot bearing no. A-2/46, Rajouri Garden, New Delhi was got raised by my father under his supervision ". He stated that the water and electricity connection was also obtained by his father. He further stated that the plaintiff no.1 had authorized his father Sh. Kulwant Singh to look after " by giving the complete and full powers to deal with" the suit property. He further deposed that his father let out the suit property to his sister with the consent and knowledge of the plaintiff no.1. as his "agent and attorney" at a monthly rent of Rs. 3,00/- per month. He further stated "That my father was having the authority and attorney of the plaintiff no.1 and my father had duly informed the plaintiff no.1 about the tenants inducted in the premises .... from time to time as also about my sister who was also inducted as a tenant in respect of the front portion of the said premises and the rate of rent was increased from Rs. 3,00/- to Rs. 5,00/- in February, 1993 at the request of the plaintiff no.1 and accordingly CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.29/84 she had been paying rent firstly to my father at the rate of Rs. 300/- per month till he expired in December 1988 and thereafter to the plaintiff no.1 till February 1997 @ Rs. 5,00/- per month." The witness relied on no documents in support of his testimony.
42. The plaintiff's brother, i.e. Sh. Ramanjit Singh DW-2 was cross-examined on 19.04.2012, during which he admitted that he had not seen any documents executed by Sardar Lochan Singh in favour of his father with respect to the suit property, however volunteered to state that "Vol. But I knew that he was a caretaker of the suit property and he was taking care of the property since 1965 as there was a attorney in his favour". He also admitted that "It is correct that I was not aware of the contents of the alleged power of attorney in favour of my father." He then further admitted "I am not aware whether my father had right to let out the property to anybody. Volt. But I am sure he would have spoken with the plaintiff before the house was rented. It is correct that no such talks of my father with Lochan Singh took place in my presence." He also gave an evasive answer when questioned whether his father ever paid any rent to the plaintiff no.1 Lochan CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.30/84 Singh in his presence and stated "The same was being paid by the respondent and given to my father who in turn deposited in the account of Sardar Locan Singh." (sic.). He also admitted that he could even tell the account no. of the plaintiff no.1. He further admitted that no rent was ever paid by his sister to the plaintiff no.1 in his presence as well. He further deposed that rent was being deposited in the account of the plaintiff no.1 at PNB Bank, Rajouri Garden. He also admitted that he could not tell for what months rent had been deposited by his father. He also admitted that he was not aware as to in whose name the electricity and water connections of the suit property had been installed, or even when they were installed. He deposed that he could not recollect as to when the plaintiff no.1. visited India in the decade of 1980. He also admitted that "No talks happened between Sardar Loachan Singh and my sister in my presence when he visited India in the above years". He also stated that "I do not remember whether any talks between my brother in law and Sardar Loachan Singh ever took place whenever he come to India in my presence". He then even disowned his own assertion in Ex. DW-2/A by admitting that "No talk happened in my presence for CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.31/84 the increase of rent between Sardar Loachan Singh and my sister, my brother in law". The witness then again contradicted his earlier statement and stated "I have seen many documents executed in favour of my father. I have seen power of attorney executed by Sardar Loachan Singh in favour of my father during his lifetime." and further gave the excuse "I and my elder brother were living with my father till he was alive. All the documents of my father came in the hands of my elder brother and my mother." However, the witness continued to deny all the suggestion of the ld. Counsel for the plaintiffs based on their case.
43. I may also point out that the right of the defendant to lead further evidence was closed vide order of the Court dated 19.04.2012, which recorded the fact that the defendant had not even bothered to file any list of witnesses in the present case and last and final opportunity to lead evidence had been granted earlier in the suit. Accordingly, the defendant's evidence was closed on 19.04.2012, and the matter was listed for the evidence of the plaintiffs.
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.32/84 Evidence adduced by the Plaintiffs
44. The evidence by way of affidavits of plaintiff no.1/PW-1 Sh. Lochan Singh and the plaintiff no.2/PW-2 Sh. Satinder Singh Obhrai were tendered in evidence on 08.11.2012. However, the matter was adjourned at the request of the defendants that there had been a bereavement in the family of the counsel.
45. The plaintiff no.1/PW-1 tendered his evidence by way of affidavit as Ex. PW-1/A, in which he reiterated the contents of the plaint. He relied on the following documents in support of his case:
(a) The certified copy of the sale deed dated 16.08.2010 of the suit property in his name as Ex. PW-1/1.
(b) Power of attorney executed by him in favour of his son/plaintiff no.2 as Ex. PW-1/2.
(c) The site plan of the suit property as Ex. PW-1/3 (earlier exhibited as Ex. DW-1/P1).
(d) Copy of the legal notice dated 03.03.1997 served on the defendant along with postal receipt and AD Card as Ex.
PW-1/4, Ex. PW-1/5 and Ex. PW-1/6 respectively.
(e) Copy of the legal notice dated 03.03.1997 served on the defendant as Ex. PW-1/4.
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.33/84
(f) The copy of the gift deed dated 17.05.2007 executed by him qua the suit property in favour of his son/plaintiff no.2 as Ex. PW-1/7.
(g) The copy of the house tax receipts as Ex. PW-1/8 to Ex. PW-1/22.
46. The plaintiff no.2/PW-2 tendered his evidence by way of affidavit as Ex. PW-2/A, in which he also reiterated the contents of the plaint. He relied on the documents tendered in evidence by the plaintiff no.1/PW-1.
47. Thereafter, adjournments were sought on behalf of the plaintiffs to lead evidence as the plaintiff no.1, aged 82 years at the time, was unwell and also had to come from UK for the said purpose.
48. On 09.09.2013, PW-2 was present from UK for his cross- examination, however none appeared on behalf of the defendant at first call. On the second call of the matter at 11:00 am, proxy counsel for the defendant appeared and submitted that the copy CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.34/84 of the evidence by way of affidavit of the witness had not been supplied (despite the same having been supplied earlier on 08.11.2012) and the matter was again passed over for the appearance of the main counsel. Despite the matter being passed over four times till 1:00 pm, none appeared on behalf of the defendants and the Court also noted that the witness PW-2 was being 'harassed' by the defendants and cost of Rs. 3,000/- was also imposed.
49. The plaintiff no.2/PW-2 was then partly cross-examined on 11.09.2013, during which he deposed that the affidavit filed by did not contain the present address where he was staying in Delhi. He deposed that he was a graduate and had immigrated to the UK in the year 1968 along-with his father and prior to that his father was working as a farmer and agricultural trader in Kenya. He deposed that in the year 1960, his father used to travel between Kenya and India. He denied that suggestion that in August, 1960 his father was not in India or that his father was not even present in India on 16.08.1960 when the sale deed Ex. PW-1/1 was executed. I may point out that this defence was CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.35/84 never even raised by the defendants in their written statement and could not have been raised as well in view of section 122 of the Bhartiya Sakshya Adhiniyam, 2023 (section 116 of the erstwhile Indian Evidence Act, 1872). He then deposed that he was not present at the time of the execution of the sale deed as he was not born at that time. He deposed that he could not recall the date when his father told him that Mr. Kulwant Singh was his friend. He denied the suggestion the they were childhood friends. He further deposed that since 1985, he had visited India approximately 7-8 times and that in October, 1988 as well he had visited along with his father. He deposed that his father/plaintiff no.1 had requested Mr. Kulwant Singh to only look after the property. He further deposed that his father had verbally requested the defendant to vacate the suit property for this first time in the year 1988 in his presence at the suit property itself. He also deposed that the site plan Ex. PW-1/3 had been prepared under his instructions. He also deposed that his father served the legal notice to the defendant no.1 in the year 1997 and at that time he was also present in India. He also deposed that in February, 1993 he had visited India along with his father. He CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.36/84 further stated that the defendant was found to be in illegal occupation of the suit property when they visited India in the year 1988. He categorically denied that the defendant was living therein as a tenant and stated that there had never been any tenants in the suit property. He further admitted that his father maintained a bank account with PNB Bank Rajouri Garden branch, however denied that any rental amount was deposited by Mr. Kulwant Singh. He further admitted that in the legal notice Ex. PW-1/4 an amount of Rs. 3,60,000/- had been claimed as damages, whereas in the present suit, an amount of Rs. 2,60,000/- had been claimed. He further deposed that his father had told him of the fact that he had never received any letter from the defendant or held any talks with her in relation to letting out the suit property to her or raising its rent. He also admitted that an earlier case filed by his father with respect to the suit property against the defendant had been dismissed. He admitted that no power of attorney executed by the plaintiff no.1 in his favour was on record, however he had brought a copy of the same with him. He deposed that he did not know how many times Sh. Kulwant Singh had visited the suit property for inspection on behalf of his CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.37/84 father. He denied the suggestion that his father used to talk on the telephone with Sh. Kulwant Singh regularly. He denied the suggestion that the legal notice Ex. PW-1/4 had not been served on the defendant. He also denied the suggestion that late Sh. Kulwant Singh was depositing the house tax with MCD on behalf of his father. He further deposed that his father had never met with Kulwant Singh in his presence and that he had never visited the house of Kulwant Singh. When questioned about the tenancy of Mr. Deepak and Mrs. Usha Sarin, he categorically reiterated his denial that there had never been any tenants. He also denied the suggestion that he had not filed any proof to show that he had visited India and pointed out to documents, which were then marked as Mark P2/D (Colly). He also submitted that he had filed a separate affidavit detailing the number of his visits to India as Ex. D1. Thereafter the remaining cross-examination of the plaintiff no.2/PW-2 was deferred as the ld. Counsel for the defendants had to appear in another cross-examination before the Dwarka Courts.
50. The plaintiff no.2/PW-2 was then re-called for his further CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.38/84 cross-examination on 12.09.2013, during which the Court recorded the observation that the site plan. Ex. PW-1/3 did not have any blue colour highlighted, though it had been prepared in Ammonia print. He also admitted that it did not bear the signatures of the plaintiff no.1. He deposed that he and his father had been residing separately in the U.K. for the last three years on account of space constraints, however he was living only a few minutes away from his father and sees his everyday to discuss daily affairs. He also stated that the electricity and connection connections in the suit property were in earlier in his father's name and at present in his own name. He denied the suggestion Mr. Kulwant Singh used to make the payment of electricity and water bills from the account of his father. He also stated that the keys of the suit property had been given to Kulwant Singh by his father. He further deposed that he along with his father had ascertained the prevailing rental rates in the locality from one Mr. Oberoi. He denied the suggestion that the value of the property in the year 1997 was more than Rs. 50 lakhs. He further deposed that he could not recall at that moment whether his father was present at Delhi on 06.05.1999, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.39/84 06.08.1999 and 06.09.1999, and denied the suggestion that he was not present. He also denied the suggestion that the construction of the suit property was done under the supervision of Sh. Kulwant Singh and stated that the construction was done under the supervision of his grandmother. He denied all suggestions with respect to the defendants being tenants. He was thereafter discharged.
51. Vide order dated 28.09.2013 it was recorded that the plaintiff no.2/PW-2 had been cross-examined and discharged as a witness and only the cross-examination of the plaintiff no.1/PW-1 remained, however he was unable to travel to India as he was suffering from various ailments. PW-1 was also permitted to be cross-examined by way of video conferencing. However, in the meanwhile, the plaintiff no.1/PW-1 unfortunately expired on 16.12.2013.
52. It is pertinent to mention that vide order dated 01.12.2022, the defendant was permitted to amend her written statement to include averments with respect to the invalidity of the gift deed. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.40/84 An additional issue with respect to invalidity of the gift deed was also framed vide order dated 08.07.2024.
53. Further, Sh. Chamal Lal, record keeper, Office of Sub Registrar - II, Basai Dara Pur, Delhi - 110027 was summoned as witness PW-3 on 05.09.2024, who produced the summoned record pertaining to registered gift deed dated 17.05.2007 executed by Sh. Lochan Singh/plaintiff no.1 in favour of Sh. Satinder Singh Obhrai/plaintiff no.2 duly registered vide registration no. 9596 in Book No. 1, Vol No.14742 on pages 156 to 165 on 17.05.2007 as Ex. PW-3/A.
54. The plaintiff no.2/PW-2 then filed an additional evidence by way of affidavit qua the validity of the gift deed. On 05.09.2024, the plaintiff no.2/PW-2 tendered his additional evidence by way of affidavit as Ex. PW-2/A-1, in which he deposed that his father/plaintiff no.1 had executed the registered gift deed dated 17.05.2007 in his favour. He further deposed that his father/plaintiff no.1 expired on 16.12.2013 and his mother Smt. Achhar Kaur Obhrai expired on 19.04.2020. He stated that CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.41/84 he along with his father/plaintiff no.1 and his late mother Smt. Achar Kaur Obhrai travelled to India from the U.K. for the execution and registration of the gift deed in question and also placed on record a copy of their U.K. Passports depicting the dates of entry and exit from India. He also deposed that the suit property had been mutated in his own name in the records of the MCD. He also deposed that he had engaged the services of a handwriting expert with respect to the signatures of his father on the gift deed. He relied on the following additional documents in support of his case:
(a) Copy of his father/plaintiff no.1's evidence by way of affidavit as Ex. PW-1/A.
(b) His own evidence by way of affidavit dated 05.11.2012 as Ex. PW-2/A.
(c) Certified copy of the registered gift deed dated 17.05.2007 as Ex. PW-1/7.
(d) Copy of his U.K. passport showing entry and exit dates from India as Ex. PW-2/D.
(e) Copy of his father/plaintiff no.1's U.K. passport showing entry and exit dates from india as Ex. PW2/2 CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.42/84 (OSR).
(f) Copy of his mother Smt. Achhar Kaur Obhrai's U.K. passport showing entry and exit dates from india as Ex. PW2/3 (OSR).
(g) Copy of the death certificate of his mother Smt. Achhar Kaur Obhrai as Ex. PW2/7.
(h) Record of the MCD qua the suit property dated 20.03.2024 showing the mutation in the name of the plaintiff no.2 as Ex. PW2/4 (OSR).
(i) Report of the handwriting expert engaged by him dated 17.04.2024 and 10.04.2023 as Ex. PW2/5 and Ex. PW2/6.
55. The plaintiff no.2/PW-2 was then cross-examined by the ld. Counsel for the defendant on 10.09.2024, during which he deposed that the Sh. Raghubir Singh, the second attesting witness to the gift deed Ex. PW-3/A was known to his mother and was not aware whether he was alive or not. He further deposed that the left thumb impressions on Ex. PW-3/A had been taken on the back of pages no.1 and 2. He deposed that there were no thumb CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.43/84 impressions on the front side of each page. He deposed that in the year 1967 he was six years old and could not admit or deny whether his parents had shifted to UK permanently at that time. He admitted that his parents had not resided in the suit property after 1967. He admitted that his parents had not got issued any identity documents at the address of the suit property. He further admitted that on 17.05.2007, his parents were not residing at the suit property. He also admitted that he had not resided at the suit property at any point of time and volunteered to state that it was on account of the defendant's unlawful obstruction and possession. He further deposed that he was not aware of the term 'circle rate' and could not tell on what basis the value of the suit property had been ascertained at Rs. 20 lakhs for the purpose of the gift deed. Ex. PW-3/A. He deposed that he could not tell who purchased the stamp papers for the gift deed. He further deposed that he was not aware of the procedure of taking appointment before the Sub-Registrar. He further admitted that the gift deed was executed during the pendency of the present case. He stated that prior to the execution of the gift deed Ex. PW-3/A, he was appearing in the case as attorney of his father. Thereafter, the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.44/84 further cross-examination of the plaintiff no.2 was deferred.
56. The plaintiff no.2 was then re-called for his further cross- examination on 10.09.2024, during which he denied the suggestion that before 05.09.2024, every time either a certified copy or the photocopy of the gift deed Ex. PW-3/A was filed. He volunteered to state that a copy of the same was filed in the year 2008 along with his application seeking impleadment and the original of the same was brought to court in 2009 by his wife. He stated that the application for mutation of the suit property in his name in the record of the MCD was filed in 2012, which was completed on 20.03.2024. He admitted that he had filed no document to show that he had filed the same in 2012. He denied the suggestion that he deliberately for the mutation done in his own name after the passage of almost 10 years. He admitted that he had filed one affidavit as Ex. PW-2/D1 dated 11.04.2013, in which he had deposed about the status of the passport of his father. He volunteered to state that after some period, he did a thorough search of all his filed and managed to locate the passport of his father. He denied the suggestion that the said CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.45/84 passport did not belong to his father. He admitted that after the execution of the gift deed Ex. PW-3/A in his name, he did not issue any notice to the defendant or file any other case for possession of the property. He denied the suggestion again that the defendant was a tenant under his father @ Rs. 500/- per month. He further denied the suggestion that the gift deed Ex. PW-3/A was not executed by his father as per law, or that he misled his father into executing the same in his favour under the pretext of executing a special power of attorney. He further deposed that his father filed his evidence by way of affidavit in the year 2012 and despite being 87 years of age and against medical advice, he travelled to India for his cross-examination. However, despite his presence, no cross-examination was carried out. He further submitted that an application for his cross- examination by way of video conferencing was also allowed, however his father/plaintiff no.1 expired before his cross- examination could be conducted. Thereafter the plaintiff no.2/PW-2 was discharged as a witness.
57. The plaintiffs next examined Ms. Renu Kohli, Sub- CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.46/84 Registrar - II, Basaidarapur, Delhi as summoned witness PW-3, who deposed that she had seen the gift deed Ex. PW-3/A which tallied with the gift deed Ex. PW-1/7 and verified that the said gift deed had been duly registered. During her cross-examination by the ld. Counsel for the defendant, she stated that the gift deed Ex. PW-3/A had been registered prior to her joining her duties as Sub-Registrar in the said office and she did not have any personal knowledge with respect to the said document. She admitted that in the document Ex. PW-3/A there was no sheet annexed showing the calculation of the stamp duty. She further deposed that in the present case no intimation was given to the SDM with respect to any deficiency in any stamp duty. She denied the suggestion that the document was not registered as per law.
58. Lastly, Mrs. Shikha Chaudhary, handwriting and fingerprint expert was summoned as PW-5, who deposed that she had filed two reports dated 17.04.2024 and 10.04.2024 which were already exhibited as Ex. PW-2/5 and Ex. PW-2/6 with respect to the signatures of the plaintiff no.1 and the attesting witness, i.e. Smt. Obhrai, which had been prepared and signed by CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.47/84 her. During her cross-examination by the ld. Counsel for the defendants, she deposed that she had done her M.Sc. in forensic science and had also done a training of six months at CFSL, Delhi. She stated that her organization was not affiliated with the Government. She admitted that in the reports she had not mentioned as to when she received the documents for analysis and stated that she had received scanned copies of the same. She deposed that she had not inspected the court record for this purpose. She further confirmed that she had given her expert opinion on the signatures appearing on the gift deed Ex. PW-1/7. She deposed that she did not insist for the plaintiff to provide the admitted finger/thumb impressions at the back of the gift deed Ex. PW-1/7. She further stated that she had not insisted on the original gift deed as the signatures were clear on the scanned document itself. She admitted that in the records, she had not mentioned that she had received scanned copies of the documents. She denied the suggestion that there was no scientific procedure to analyze hand-writings. She further stated that it was not possible to ascertain the age of such hand-writings on the documents received by her for analysis. She denied the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.48/84 suggestion that she had not mentioned the specific procedure adopted by her while preparing the reports Ex. PW-2/5 and Ex. PW-2/6. She deposed that she was also assisted by two assistants for preparing the report, but had not mentioned their names and volunteered to state that the reports had been prepared entirely by her and the same was only proof-read by her associated. She deposed that the rough notes prepared by her on her computer while preparing the report in question, which were later deleted by her on the completion of the report. She admitted that thumb/finger impression had more evidentiary value than handwriting of the person, however both tests were accurate to determine the individuality of any person. She deposed that it was correct that the thumb/fingerprints of any person remains the same throughout his life. However, every ten years, there might be some minor variations in the handwriting of a person. She deposed that she received the documents a week prior to preparing her reports. She deposed that she also received the first and last page of the gift deed Ex. PW-1/7 for analysis. She denied the suggestion that no analysis was carried out by her and the report was prepared at the instance of the plaintiff. She also CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.49/84 denied the suggestion a false report was prepared by her or that she was not competent to prepare the same. She also denied the suggestion that a wrong/forged specimen of the admitted signature of the plaintiff no.1 had been provided to her. Thereafter, she was discharged as a witness.
59. The plaintiff no.2, Sh. Satinder Singh Obhrai closed his evidence on 10.09.2024.
Arguments of the parties
60. Sh. Pritpal Singh Nijjar, ld. Counsel for the plaintiffs has argued that the plaintiff no.2 has duly proved the case in his favour. He argued that it was an admitted case of the parties that the plaintiff no.1 Sh. Lochan Singh was the owner of the suit property in question, which fact has been admitted by the defendants in their written statement. Further, the defendant Smt. Pritpal Malhotra had miserably failed to prove that any tenancy had been created in her favour. No documentary proof was placed on record by the defendant in order to prove her case. The plaintiff no.2 had duly proved the execution of the gift deed dated CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.50/84 17.05.007 by the plaintiff no.1 qua the suit property in his favour. Hence, the suit of the plaintiffs be decreed as sought.
61. Opportunity was given to the Ld. Counsel for the defendants to address arguments, but, he did not turn up. Final arguments were heard after last opportunity was granted to him. Sh. Baldev Raj, ld. Counsel for the defendants has argued that the plaintiffs have miserably failed to prove the suit in their favour. The plaintiff no.2 has also failed to prove that a valid Gift Deed dated 17.05.2007 was executed in his favour. However, defendant has been able to prove that she is a lawful tenant in the suit property. He has sought for dismissal of the present suit. Issue-wise finding and reasons Issue no.3
62. I shall first decide issue no.3, which is being reproduced below for the sake of convenience:
3. Whether the defendant is a tenant in the premises in question? OPD CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.51/84
63. The case of the plaintiffs, pithily stated that is that the plaintiff no.1 was a permanent resident of the U.K. and the owner of the suit property, having purchased the plot vide a registered sale deed dated 16.08.1960 (Ex. PW-1/1), with a view to settle down in India. The plaintiff no.1 also raised the construction/super-structure on the said plot himself. As the plaintiff no.1 was a permanent resident of UK, he requested his old friend Sh. Kulwant Singh, father of the defendant no.1, to look after the suit property. When the plaintiff no.1 visited India in October, 1988, he found the defendants in illegal possession of the front portion of the suit property and requested them to vacate the same, who sought time of two months. However, they did not do so and even when the plaintiff no.1 next visited India in February, 1993 and in the year 1997. The plaintiff no.1 then issued a legal notice dated 03.03.1997 (Mark X) asking the defendants to vacate the property and pay mesne profits, which was duly served through Regd. A.D. (Mark Y) and postal receipt (Mark Z). The plaintiff no.1 also instituted a suit for mandatory and permanent injunction bearing Suit No. 226/1997 titled as 'Lochan Singh vs Pritpal Malhotra and Anr' before the Court of CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.52/84 the Ld. Civil Judge, Delhi, which was dismissed on technical grounds vide order dated 02.04.1998. Thereafter, the plaintiff has instituted the present suit on 31.08.1999.
64. The defence as raised by the defendant in her written statement, when read as a whole, is that her father Sh. Kulwant Singh was a 'close friend' of the plaintiff no.1 and 'just like his brother' and was 'authorized' by the plaintiff no.1 to raise the construction over the suit property. Accordingly, it was Sh. Kulwant Singh who raised the construction of the said plot under the 'supervision' of the plaintiff no.1. No date, month, year or even any particular of raising of the said alleged construction has been mentioned in the written statement. Further, the electricity and water connections were also 'obtained' by him.
65. Although in the reply on merits to para no.1 of the plaint, the defendants have denied that the plaintiff no.1 was the owner of the suit property, in the same breath have claimed to his tenant as well and admitted his ownership of the suit property. As per the defendant no.1, the "plaintiff deposed complete faith in Sh. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.53/84 Kulwant Singh, one of his old friends, to look after the suit premises" and was further "empowered to to let out the said property to the tenants". Accordingly, the defendant no.1 claims that in the year 1976, the front portion of the suit property was let out by Sh. Kulwant Singh to one Mr. Mehra at a monthly rent of Rs. 275/- per month. In the year 1978, the back portion of the suit property was let out to one Mr. Deepak at a monthly rent of Rs. 250/- per month. In the year 1984, the back portion was vacated and in June, 1984 the defendant no.1 was inducted as tenant by her own father Sh. Kulwant Singh at a monthly rent of Rs. 250/- per month. Further, in February, 1986 when the front portion of the property was vacated by one Mrs. Usha Sarin (daughter of Mr. Mehra), the defendant no.1 vacated the back portion and was inducted into the front portion of the suit property at a monthly rent of Rs. 300/- per month. In February, 1993 during the plaintiff no.1's visit to India, the rent was increased from Rs. 300/- to Rs. 500/-.
66. The defendant no.1 categorically stated in para no.1 of the reply on merits of the written statement that she used to pay the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.54/84 rent of the front portion of the suit property to her father Sh. Kulwant Singh since February, 1986 "who never issued rent receipts on account of the fact that Sh. Kulwant Singh was the father of the defendant no.1" and the "plaintiff no.1 never issued any receipt to the defendant No.1 on the ground that the plaintiff no.1 used to treat the defendant No.1 just like his daughter and as such neither the defendant No.1 asked for rent receipt, in respect rent paid of the front portion, nor the said rent receipt was issued by the plaintiff no.1, at any time, on account of relationship of the plaintiff no.1 and defendant No.1". The defendant no.1 further claims that she paid the rent to the plaintiff no.1 up till February, 1997. It is further contended that Sh. Kulwant Singh used to deposit the rent collected into the bank account of the plaintiff no.1 at Punjab National Bank, Rajouri Garden Branch. Further it is submitted that on account of increase in the prices of the properties in the area, the plaintiffs had become 'greedy' and wanted to get the property vacated from the defendant no.1, who claimed protection as a statutory tenant under section 50 of the Delhi Rent Control Act, 1958.
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.55/84
67. The onus to prove the existence of any landlord-tenant relationship was squarely on the shoulders of the defendant no.1, as she had asserted the same in her pleadings. However, the defendant no.1 has miserably failed to prove the same.
68. As already mentioned earlier, the defendant was directed to lead her evidence first in the present suit. At first the defendant no.1 filed her evidence by way of affidavit dated 12.08.2010 on 12.08.2010. Thereafter, without seeking any permission from the Court, the defendant no.1 then filed another evidence by way of affidavit dated 06.01.2011 on 06.01.2011, in which she deleted the para no.6 of the earlier affidavit, and tendered the same into evidence as Ex. DW-1/A on 06.01.2011 itself.
69. The contents of the deleted para no.6 of the defendant no.1's evidence by way of affidavit dated 12.08.2011 is reproduced below for the sake of convenience:
"6. That the plaintiff no.1, immediately called upon them to vacate the said portion to hand over vacate and peaceful possession of the front portion, as he had purchased the property for his own enjoyment and benefit and for finally settling down in India as alleged. I can say that the plaintiff no.1 was very happy to know when the front portion of the said property was let out to my wife as CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.56/84 a tenant above so that his property is being managed and looked properly by defendant No.1, being just like his daughter and therefore the plaintiff no.1, never asked us to vacate the said premises at any time and neither served any notice to this effect".
(Sic.)
70. The Hon'ble High Court of Bombay has held in the decision of Banganga Cooperative Housing Society Ltd. vs. Vasanti Gajanan Nerurkar, 2015 SCC OnLine Bom 3411 that once an evidence by way of affidavit is filed by a party, the same cannot be withdrawn by any party. It has been held as follows:
"12. What is not in doubt is that there can never be a withdrawal of an Evidence Affidavit just as there can never be a withdrawal of an examination-in-chief conducted directly in Court. This position, following Rasiklal Manikchand, raises some subsidiary questions :
(1) what are the consequences of a deponent filing an Evidence Affidavit but not making himself available to a cross-examination? (2) Is it permissible for a Court to order the expunging or redaction of any part of an Evidence Affidavit?"
(Emphasis supplied)
71. Hence, the defendant Smt. Pritpal Malhotra could not have simply withdrawn her earlier evidence by way of affidavit dated 12.08.2010 and replaced the same with a subsequent affidavit dated 06.01.2011, that too without seeking any permission from the Court and the entire testimony of the defendant Smt. Pritpal Malhotra is liable to be struck off on this ground alone. However, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.57/84 even otherwise, if the surreptitious and unauthorized filing and tendering in evidence of the subsequent evidence by way of affidavit dated 06.01.2011 by the defendant is momentarily kept aside, the defendant has still miserably failed to prove any relationship of landlord-tenant between herself and the plaintiff no.1. The defendant Smt. Pritpal Malhotra has infact performed a complete volte face with respect to many material assertions made by her in her written statement and has not produced any documentary evidence whatsoever to prove her case.
72. During her cross-examination dated 06.01.2011, the defendant Smt. Pritpal Malhotra categorically admitted that the plaintiff no.1 was the owner of the property in question. Further, she contradicted her own stand in the written statement and Ex. DW-1/A that she used to pay the rent and deposed that " My husband used to pay the rent of the property and I never paid the rent". Further, she also admitted that there was no statement of account of the rents paid maintained by her by stating " I cannot tell as it was my husband who was dealing in and knowing such matters". Further, with respect to the assertion of payment of CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.58/84 house tax of the suit property she contradicted herself twice during the cross-examination dated 06.01.2011. At one place a specific question was put to her "Q. I put it to you that the house tax and the other government dues were used to be paid by the plaintiff No.1 in respect of the property in question. What you have to say? A. It is incorrect. Vol. I used to pay the house tax and other government dues in respect of the property in question and I was paying the said dues and house tax since the year 1984 till the date of filing of the present case and even after filing of the suit sometimes I paid the said dues." (Emphasis supplied). However, immediately thereafter she stated that it was her husband who was depositing the house tax and she did not know whether it was being deposited in the name of the plaintiff no.1:
"Q. Is it correct that the house tax used to be deposited in the name of Sardar Lochan Singh, plaintiff no.1? A. I do not know.
Vol. My husband used to deposit with the concerned authorities".
This vacillation of the defendant even prompted the Court then to put the following question to her: " Court Question: As the earlier part of your cross-examination you have stated that the house tax and other government dues were used to be deposited by you but CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.59/84 now at this stage you are telling that you do not know as to whether the house tax was used to be deposited in the name of plaintiff No.1 or not. Kindly clarify. A. It was being paid by my husband". At this stage I may also point out that the husband of the defendant, i.e. Sh. Rajinder Malhotra (who was earlier impleaded as defendant no.2 and expired on 13.11.2010 and later deleted vide order dated 03.12.2010) also filed his evidence by way of affidavit dated 12.08.2010 in the present case as DW-2, which was never tendered in evidence by him. In the said affidavit also there is no assertion by him that he was depositing or paying the house tax of the suit property. During her cross- examination dated 03.03.2011 she also admitted that she had no house tax receipts to show the deposit of the same as alleged by her. She further made another claim, not pleaded by her anywhere in her written statement, that " Vol. All the receipts were taken by the Sh. Naminder Singh, the brother of daughter- in-law of plaintiff no.1". She was then also asked "Q. Have you given any notice to the plaintiff for refund of the house tax which you alleged to have been despiting (depositing) on behalf of the plaintiff?", to which the evasive answer was given "Ans. I do not CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.60/84 remember".
73. Further, during the defendant Smt. Pritpal Malhotra's cross-examination dated 06.01.2011 as specific question was put to her: "Q. Whether you have seen any document or writing in favour of Sardar Kulwant Singh (your father) to receive rent?", she again evasively answered "A. My husband must be knowing". Again another specific question was put to her whether she had seen any power of attorney executed by the plaintiff no.1 in favour of her father Sh. Kulwant Singh?, another evasive answer was given "A. I do not know, my husband might have seen it".
74. Despite having asserted positive in her written statement as well as Ex. DW-1/A that she had been paying the rent to the plaintiff no.1, through her father Sh. Kulwant Singh, the defendant again did a u-turn during her cross-examination dated 06.01.2011 when a specific question to this effect was put to her:
"Q. Whether you yourself ever paid the rent to Sardar Kulwant Singh? A. I have never paid". Further, despite the defendant's CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.61/84 assertion in her written statement and Ex. DW-1/A of having been inducted in the portion of the suit property as a tenant by her father Kulwant Singh, with the permission of the plaintiff no.1, when specifically question on this aspect, the said assertion fell flat on its proverbial face. "Q. Whether you are aware that any talks of tenancy in respect of property in suit happened between Sardar Kulwant Singh and plaintiff no.1? I cannot say anything as it was the matter between them only. Vol. How can I tell about this." Even her assertions in the written statement and Ex. DW-1/A with respect to the deposit of rent by her father Sh.
Kulwant Singh in the bank account of the plaintiff no.1 at Punjab National Bank, Rajouri Garden Branch turned out to be a complete falsehood as she stated that she could not even tell the bank account number of the plaintiff no.1. Further, no such statement of account of deposit of rent, or even dates of deposit or any deposit slip were even filed on record by her.
75. Even her claim in the written statement and Ex. DW-1/A of the front portion of the suit property having been let out in the year 1976 to Mr. Mehra and the back portion in the year 1978 to CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.62/84 one Mr. Deepak, turned out to be a complete falsehood. The following deposition of the defendant during her cross-
examination dated 03.03.2011 proves the point amply:
"Q. Since when you know Mr. Mehra and Mr. Deepak? Ans. I do not remember the date, month and year since I know Mr. Mehra and Mr. Deepak but they used to reside as a tenant in the suit property.
Q. When you filed your affidavit of evidence in this Court, whether you were aware of the year and date from which date they were residing in the property?
Ans. I was not aware even on that date since when they were residing.
I do not have any personal knowledge as to whether those persons were having any documentation with regard to their tenancy or what was the amount of rent which they were paying as tenant. It is wrong to suggest that there were no such persons remained as tenant in the suit property ever. I do not remember whether my father possessed any attorney or authorization from plaintiff no.1 with regard to the suit property".
(Sic.)
76. Further, during her cross-examination dated 03.03.2011 she admitted that she could not even remember as to by which mode, i.e. cheque or cash, the rent up-to February, 1997 was paid by her. Or even the dates on which she paid the said rent. She also admitted that she had no proof with regard to the payment of CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.63/84 rent. She also admitted that no notice was issued by her to the plaintiff with regard to non-issuance of any alleged rent receipts. Further, she also gave an evasive answer when questioned with respect to the service of the legal notice dated 03.03.1997 issued by the plaintiff no.1. When confronted with Mark Y, i.e. the acknowledgment card showing the receipt of the notice by her, she simply stated "I do not remember".
77. The defendant Smt. Pritpal Malhotra further admitted during her cross-examination dated 03.03.2011 that she never had any correspondence with the plaintiff no.1 and could not even state as to when she was in possession of the front portion of the suit property and evasively stated " I can not say since when I occupied the front portion of the suit property. (Vol . I am in the possession since I entered into the suit property). " The defendant also admitted that her claim of her father Sh. Kulwant having allegedly raised the construction over the suit property was without any documentary proof : "I do not have any paper to show that my father Kulwant Singh had constructed the suit property". The evidence of her brother Sh. Ramanjit Singh, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.64/84 DW-2 also is completely based on hearsay and is inadmissible in evidence.
78. In view of the above, it is manifestly clear that the defendant has miserably failed to prove the factum of any landlord-tenant relationship between herself and the plaintiff no.1. Accordingly, the issue no. 3 is decided against the defendant.
Issue no.5
79. I shall next decide issue no.5, which is reproduced below for the sake of convenience:
5. Whether the suit is not maintainable? OPD
80. The onus of the present issue was on the defendant, who had led no evidence to show as to in what manner the suit of the plaintiff is not maintainable. Further, as the issue no.3 has been decided against the defendant, there is no question of the applicability of section 50 of the Delhi Rent Control Act, 1958. Hence, the issue no.5 is decided against the defendant. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.65/84 Issue no.6
81. I shall next decide issue no.6, which is reproduced below for the sake of convenience:
6. Whether the court has no jurisdiction in the present suit?
OPD
82. The onus of the above issue as well was on the defendant,who has led no specific evidence to show as to in what manner this Court has no jurisdiction to deal with the present suit. Accordingly, the issue no. 6 is also decided against the defendant.
Issue no.7
83. I shall next decide issue no.7, which is reproduced below for the sake of convenience:
7. Whether property is not properly value for the purpose of court fee and its jurisdiction? OPD
84. The onus of the above issue as well was on the defendant, who has led no specific evidence to prove the actual valuation of the property as on the date of the filing of the suit. The plaintiffs CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.66/84 have valued the present suit for the purpose of Court fees and jurisdiction with respect to the relief of possession at Rs.10,00,000/-, on which a court fees of Rs. 12,104/- has been paid by them. Further with respect to mesne profits of Rs. 2,60,000/- as amount of Rs. 4881.60/- has been paid as court fees. In fact, only the following questions have been put to the plaintiff no.2/PW-2 on this aspect during his cross-examination dated 12.09.2013:
"Q. Did you or your father had gathered any information with regard to the price of the property at the time of filing of the present suit? A. Yes myself and my father both spoke to property experts.
Q. I put it to you that the value of the suit property was more than 50 lacs in the year 1997. What you have to say? A. That is incorrect"
85. Further, no evidence has been led by the defendant to prove what was the value of the property at the time of filing of the suit. Hence, the issue no.7 is decided against the defendant. Issue no.8
86. I shall next decide issue no.8, which is reproduced below for the sake of convenience:
CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.67/84
8. Whether the suit in question has been verified in accordance with laws? OPD
87. The defendant has claimed in her written statement that the plaint has been verified on 06.05.1999 or 06.09.1999 and he has not visited India during the said period. The defendant has not even made any positive assertion with respect to the said fact in her evidence by way of affidavit Ex. DW-1/A. No evidence has been led by the defendant to prove the said issue. Accordingly, the issue no. 8 is also decided against the defendant. Issues no.1 and 8a
88. I shall next decide issues no.1 and 8a together, being connected issues, which are being reproduced below for the sake of convenience:
1. Whether the plaintiff is entitled to possession of the premises bearing no. A-2/46, Rajouri Garden, New Delhi?
OPP 8a. Whether the Gift Deed executed in favour of Sh. Satinder Singh Obhrai on 17.05.2007 is invalid? OPD
89. In her cross-examination dated 06.01.2011, the defendant CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.68/84 has unequivocally admitted that the plaintiff no.1 was the owner of the suit property. It is not in dispute that the plaintiff no.1 expired during the pendency of the present suit on 16.12.2013 and that the plaintiff no.2 is his son. As per the plaintiffs, during the pendency of the present suit, the plaintiff no.1 executed a gift deed dated 17.05.2007 qua the suit property in favour of the plaintiff no.2. The defendant has resisted the said claim on the ground that: (i) the plaintiff no.1 was not present in India on 17.05.2007; (ii) the gift deed mentions the pendency of a court case i.e. suit no. 1944/99 before the Hon'ble High Court, whereas no such case is pending; and (iii) " It is mentioned that donor has decided to gift, which does not mean that the donor has gifted the suit property to the applicant".
90. With respect to the objection of the defendant that the gift deed dated 17.05.2007 mentions the pendency of a suit no.1944/99 before the Hon'ble High Court, whereas no such suit was pending, the same is most frivolous objection by the defendant. As already noted, the plaintiff no.1 had instituted the present suit originally before the Hon'ble High Court of Delhi, at CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.69/84 which time the suit was numbered as "Suit No. 1944/99" and it was subsequently transferred to the District Courts for further trial vide order dated 07.01.2004. Hence, merely because it is mentioned that the suit was pending before the Hon'ble High Court of Delhi and not the District Courts is but a minor error and does not materially affect the validity of the said gift deed dated 17.05.2007. Hence, the objection is rejected at this stage itself. Further, the objection of the defendant that "It is mentioned that donor has decided to gift, which does not mean that the donor has gifted the suit property to the applicant"is again a most frivolous objection and is against the basic principles of conveyancing of documents and is also rejected at this stage as well. The only contention of the defendant remaining is that the plaintiff no.1 was not present in India on 17.05.2007 at the time of execution of the gift deed dated 17.05.2007.
91. I must also mention at this stage that the plaintiff no.1 also filed his evidence by way of affidavit and tendered the same in evidence on 08.11.2012 as Ex. PW-1/A, in which he has categorically affirmed the execution of the gift deed dated CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.70/84 17.05.2007 in favour of his son/plaintiff no.2, as follows:
"16. That the plaintiff no.1 has executed a registered gift deed in favour of his son i.e. plaintiff no.2. The gift deed is Ex. PW-1/7. The plaintiff no.1/deponent visited India along with plaintiff no.2 for the execution of the gift deed. The said gift deed is executed by the deponent and is signed by the deponent."
92. The defendant no.1 had come down from the U.K. to India for the purpose of recording of his evidence. On 08.11.2012, when he tendered his evidence by way of affidavit as Ex. PW-1/A, his cross-examination was deferred on the request of the ld. proxy counsel for the defendant on account of a bereavement in the family of the main counsel. Thereafter, the plaintiff no.1 could not come down to India as he fell ill and was also aged 88 years at that time. Further, vide order dated 28.09.2013, on the plaintiffs' application, the plaintiff no.1 was permitted be cross-examined by way of video conferencing and the matter was listed for the said purpose on 15.11.2013. However, on 15.11.2013 a holiday was declared vide notification no.940/G-4/Genl/DHC dated 13.11.2013 of the Hon'ble High Court of Delhi. The matter was then put up for cross-examination CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.71/84 of the plaintiff no.1 on 09.1.2014. However, unfortunately the plaintiff no.1 expired in the meanwhile on 16.12.2013 and his cross-examination in the matter could not be conducted.
93. At this stage, I seek to again refer to the judgment of the Hon'ble High Court of Bombay in Banganga Cooperative Housing Society Ltd. vs. Vasanti Gajanan Nerurkar, 2015 SCC OnLine Bom 3411 , in which the effect of the death of a witness prior to his cross-examination has been opined upon:
"5. Broadly, there are two situations we must consider. First, where the witness is no longer physically available, i.e., he has expired between the time of filing of his Evidence Affidavit and the time for cross-examination (I would include in this a situation where the witness is so ill or incapacitated that it is impossible to tender him for cross-examination.) The law in this regard is, I believe, well- settled, and it is simply this : that where the testimony is incomplete by reason of death or incapacity of the witness before cross- examination, the evidence, admissible when given, does not cease to be so merely on account of that intervening factual circumstance. What probative or evidentiary value is to be attached to this evidence is another matter, and turns on the circumstances of each case. A court may seek independent corroboration of that evidence. It may accept it, albeit cautiously, and that is no infirmity per se in the final decision. This was the view of Mr. Justice H.R. Khanna as a learned single Judge of the Delhi High Court in Krishan Dayal v. Chandu Ram and I am in most respectful agreement with that view."
94. The Hon'ble High Court of Delhi has held in the decision CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.72/84 of Krishan Dayal v. Chandu Ram, 1969 SCC OnLine Del 134 :
ILR (1969) Del 1090 as follows:
"I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely anumus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity."
95. Hence, the statement of witness who has not been subjected to cross-examination on account of his death is not inadmissible in evidence per se and judicial discretion is to be CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.73/84 exercised with respect to the weight. Further, as a rule of caution, the Court may also seek corroboration of the testimony from other sources before relying upon the same.
96. The plaintiff no.2 has relied upon the said gift deed dated 17.05.2007 as Ex. PW/7 as well. Further during his cross- examination dated 11.09.2013 he has deposed as follows:
"Q. Is it correct that you have filed a separate affidavit detailing the number of visits made by you in India as per you passport?
A. Yes. It is correct the same Ex. D-1."
97. Further, PW-2/plaintiff no.2 in his additional evidence by way of affidavit tendered on 05.09.2024 has placed on record the notarized copy of the India visa and arrival and departure of the plaintiff no.1 from 13.05.2017 till 22.05.2017 as Ex. PW-2/2, which shows that the plaintiff no.1 was present in India during the execution of the gift deed dated 17.05.2007, Ex. PW-1/7. The said gift deed Ex. PW-1/7 has also been proved through PW-3, Chaman Lal, record keeper, Sub Registrar-II, Delhi who produced the certified copy of the said gift deed dated 17.05.2007 as Ex. PW-3/A. The witness PW-4, Ms. Renu Kohli, CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.74/84 Sub Registrar-II, Delhi also appeared and confirmed that the gift deed Ex. PW-3/A had been duly executed and registered in their office. The plaintiffs have also led the expert evidence of Ms. Shikha Choudhary, handwriting expert as Ex. PW-5, who has affirmed the signatures of the plaintiff no.1 on the said document as well those of his wife Smt. Achhar Kaur Obhrai as the attesting witness and given the same in her report Ex. PW-2/5 and Ex. PW-2/6. Nothing material was elicited from her during her cross-examination dated 30.09.2024.
98. The plaintiff no.2 was subjected to cross-examination on the aspect of the gift deed on 05.09.2024 and 10.09.2024, during which nothing which could assail the legitimacy of the gift deed dated 17.05.2007 could be extracted by the ld. Counsel for the defendant. During the cross-examination dated 10.09.2024, the plaintiff no.2 deposed that "It is correct that in the proceedings of this case, I had filed one affidavit which is already exhibited as Ex. PW-2/D1 dated 11.04.2013. It is correct that in the affidavit I had deposed about the status of passport of my late father. Vol. After some period of time we did a thorough search of all our CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.75/84 files in all locations and managed to locate the passport. It is wrong to suggest that I had filed the passport which do not belong to my father". A further suggestion was given to the witness "It is wrong to suggest that I got executed Gift deed Ex. PW-3/A by misleading my father on the pretext of executing Special power of attorney to contest this case", which was never the specific defence of the defendant in her written statement. The defendant also led no evidence to prove that the passport/visa details of the plaintiff no.1, Ex. PW-2/2 was not his but belonged to someone else. Further, the defendant also led no evidence to prove that the plaintiff no.1 was not present in India on 17.05.2007 for the execution and registration of the gift deed Ex. PW-1/7: Ex. PW-3/A in favour of the plaintiff no.2.
99. Further, the Hon'ble Apex Court has held in the decision of Rattan Singh & Ors vs Nirmal Gill & Ors, (2021) 15 SCC 300, that a document is presumed to be genuine if it is registered and the onus of proof to disprove the same lies on the person assailing its genuineness. The defendant herself has led no evidence to disprove the execution of the said gift deed by the CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.76/84 plaintiff no.1 in favour of the plaintiff no.2.
100. Accordingly, the issue no.8a is decided against the defendant.
101. The defendant has already failed to prove that she was a tenant under the plaintiff no.1 as alleged by her. Further, she admits that the plaintiff no.1 was the owner of the suit property. The gift deed dated 17.05.2007 executed by the plaintiff no.1 in favour of the plaintiff no.2 also stands proved. I find that the plaintiffs have well proved their case on the balance of probabilities that the defendant is a mere trespasser in the suit property, who has continued to occupy the same since atleast October, 1988 illegally and unlawfully. Hence, the plaintiff no.2 is also held entitled to recover the possession of the suit property and the issue no. 1 is decided in favour of the plaintiff no.2. Issues no.2 and 4
102. I shall lastly decide issued no.2 and 4 together, being connected issues, which are reproduced below of the sake of CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.77/84 convenience:
2. Whether the plaintiff is entitled to a sum of Rs. 2,60,000/- towards the mesne profits? OPP
4. Whether the plaintiff is entitled to current and future mesne profits @ Rs. 10,000/- per month from the date of its institution till the date of realization together with interest? OPP
103. The plaintiffs have claimed mesne profits of Rs. 10,000/- per month from the defendant from 03.03.1997 along-with future mesne profits at the same rate along-with interest @ 18% p.a.
104. The plaintiff no.2 has also reiterated the said assertion in his evidence by way of affidavit Ex. PW-2/A that the plaintiffs seek damages @ Rs. 10,000/- for the use and occupation from 03.03.1997, i.e. the date of the legal notice sent by the plaintiff.
105. In the cross-examination of the plaintiff no.2/PW-2 dated 11.09.2013, only the following question was put to the plaintiff with respect to the claim of Rs. 10,000/- as mesne profits:
"Q. Is it correct that in the present case you and your father are claiming Rs. 2,60,000/- towards the damages till filing of the suit, this fact was mentioned in your legal notice or not?CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.78/84
A. The witness that he needs to look into the legal notice before replying to the question. Request allowed.
After seeing the legal notice Ex. PW-1/4 the witness states that the said factum has been mentioned in the same.
Q. Is it correct that in the said legal notice Ex- PW-1/4, the amount of damages has been mentioned as Rs. 3,60,000/-?
A. Yes it is correct."
106. Apart from the above, not a single question has been put to the plaintiff no.2/PW-2 during his entire exhaustive cross- examination carried out on 11.09.2013, 12.09.2013, 05.09.2024 or 10.09.2024 on the aspect of the claim of mesne profits. Further, not even a suggestion has been put to the witness that the claim of mesne profits of Rs. 10,000/- as claimed by the plaintiffs was incorrect.
107. When a witness is not cross-examined on any aspect by the opposite party, it is deemed that they have admitted the averment of the witness on the said aspect and do not dispute the same. In the decision of the Hon'ble Apex Court in Muddasani Venkata Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288 : (2017) 1 CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.79/84 SCC (Civ) 268 : 2016 SCC OnLine SC 435, the effect of not cross-examining a witness on a particular aspect has been explained as follows:
"15. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW 1 and PW 2 have not been cross-examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non-cross- examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906] . This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177 : AIR 1958 P&H 440]
16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128 : AIR 1945 Nag 60] , it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian [A.E.G. Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44 : AIR 1961 Cal 359] has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram [Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC OnLine MP 35 : AIR 1950 Nag 83] has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.80/84 it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra [Karnidan Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288 : AIR 1940 Pat 683] has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff."
(Emphasis supplied.)
108. The Hon'ble High Court of Delhi has held in the decision of Hindustan Petroleum Corporation Ltd. vs. Mohanjit Singh (deceased) through Legal Heirs, 2019 SCC OnLine Del 9419 :
(2019) 263 DLT 192 that the uncontroverted testimony of the plaintiff with respect to mesne profits can be relied upon to award mesne profits.
109. Accordingly, I find that the defendant has virtually accepted the claim of the plaintiff with respect to mesne profits by not subjecting him to any cross-examination on this aspect. Further, this Court finds that even if judicial notice is taken of the prevailing rate of rents in Delhi, the sum of Rs. 10,000/- claimed by the defendants is a reasonable sum. The suit property is CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.81/84 located in a prominent area of Delhi and similar property in the area would easily command a rent of atleast Rs. 10,000/- at the time of filing of the suit and three years immediately prior to the same. The plaintiffs are thus held entitled to mesne profits of Rs.2,60,000/- along-with interest of 9% p.a., as and when the said amounts have fallen due from the defendant. Further, the plaintiffs are also held entitled to future mesne profits of Rs.10,000/- per month from the date of filing of the suit, subject to an annual increase of 15% every year, till such time the vacant and peaceful possession of the suit property is handed over by her to the plaintiff no.2, along with interest of 9% p.a. from the date such amounts have fallen due. The plaintiffs are directed to file the additional court fees in this regards. The amount of admitted rent paid by the defendant to the plaintiffs, if any, during the pendency of the present suit shall be deducted from the amount of mesne profits payable by the defendant for the relevant month(s). Accordingly, the issues no. 2 and 4 are decided in favour of the plaintiffs in the above terms. CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.82/84 Relief
110. In view of the foregoing reasons and conclusions, the suit of the plaintiffs is decreed in their favour. A decree of possession of the front portion of the suit property No.A-2/46, Rajouri Garden, New Delhi comprising of three rooms, kitchen, bath, common front courtyard as per the site plan Ex. PW-1/3 is passed in favour of the plaintiff no.2 Sh. Satinder Singh Obhrai against the defendant Smt. Pritpal Malhotra. Further, a decree for payment of mesne profits of Rs.2,60,000/- along-with interest of 9% p.a., as and when the said amounts have fallen due is also passed in favour of the plaintiff no.2 and against the defendant Smt. Pritpal Malhotra. Further, the plaintiff no.2 is also held entitled to future mesne profits of Rs.10,000/- per month from the date of filing of the suit, subject to an annual increase of 15% every year, till such time the vacant and peaceful possession of the suit property is handed over by the defendant Mrs. Pritpal Malhotra to the plaintiff no.2, along with interest of 9% p.a. from the date such amounts have fallen due. The amount of admitted rent paid by the defendant to the plaintiffs, if any, during the pendency of the present suit shall be deducted from the amount CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.83/84 of mesne profits payable by the defendant for the relevant month(s). The plaintiffs are directed to file the additional court fees in this regards. The costs of the suit are also awarded in favour of the plaintiffs. Further, the defendant Smt. Pritpal Malhotra is also burdened with compensatory cost of Rs.3,000/- as per section 35-A of the Code of Civil Procedure, 1908 in view of her false and vexatious defence in the present suit, to be paid to the plaintiff no.2.
Decree sheet be drawn up accordingly. File be consigned to the record room after due compliance. Judgment be uploaded forthwith.
Digitally signed JITEN by JITEN MEHRA MEHRA Date: 2025.08.30 16:34:04 +0530 Announced in the open court (JITEN MEHRA) on 30.08.2025 DJ-10/Central/THC CS DJ No. 610047/16 Lochan Singh & Anr. Vs. Pritpal Malhotra & Anr. Page No.84/84