Delhi District Court
Bala Devi vs Sarjeet Singh on 21 December, 2023
CS SCJ 292/2016
Bala Devi Vs. Sarjeet Singh
IN THE COURT OF SH. RAHUL VERMA, CIVIL JUDGE 03,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No:- 292/2016
CNR No. :- DLCT03-001949-2016
Date of Institution: 09.02.2016
Date of Decision: 21.12.2023
Smt. Bala Devi
W/o Sh. Hari Kishan
R/o Village and Post Sultanpur,
District Gurgaon (Haryana)
Also at
B-1079, Gali 15 feet,
near Main Market,
Shastri Nagar, Delhi - 110052.
............ Plaintiff
Versus
Shri Sarjeet Singh @ Jaspal Singh
S/o Sh. Mahender Singh
R/o B - 1079, first floor,
Gali 15 feet,
Near Main Market,
Shastri Nagar,
Delhi - 110052.
............ Defendant
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF
RENT/ ELECTRICITY AND WATER CHARGES/
DAMAGES AND MESNE PROFITS AND FUTURE AND
PENDENTE-LITE CHARGES WITH INTEREST
Present:- None.
Page 1 of 18
(Rahul Verma)
Civil Judge03, Central, Delhi
CS SCJ 292/2016
Bala Devi Vs. Sarjeet Singh
JUDGMENT:-
1. Present suit has been filed by the plaintiffs seeking the relief of recovery of possession, arrears of rent, recovery of damages/mesne profits qua first floor of property bearing no. B- 1079, Gali 15 Feet, Near Main Market, Shastri Nagar, Delhi- 110052 (hereinafter referred to as 'suit property').
AVERMENTS IN THE PLAINT:
2. It is submitted that the Plaintiff is absolute owner of the built-up property bearing No. B-1079, Gali 15 Feet, Near Main Market, Shastri Nagar, Delhi-110052, measuring 37 Sq.Yards, which she purchased from Smt. Anju Gupta D/o Shri Sewa Ram Garg vide sale deed registered as registration No. 6877, in Book No.1, Volume No. 2027, pages 76 to 86 on dated 09.10.2006 registered with Sub-Registrar-I, Kashmere Gate, New Delhi.
3. It is submitted that the Defendant approached the plaintiff for taking the suit property on rent which was given on rent by the Plaintiff to the Defendant since 02.07.2015 @ Rs.6000/- per month on the basis of oral tenancy which was created in the presence of two persons of the locality namely Shri Ashok Kumar and Shri Sanjay. The tenancy had commenced from 02.07.2015. It is submitted that at the time of creating the said tenancy and taking over the possession by the Defendant of the suit property, it was settled that the rent for the month of July 2015 shall be paid upto 05.07.2015 and the rent of each month shall be paid regularly by the Defendant to the Plaintiff on or before 5th day of each English Calendar month. It is submitted Page 2 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh that it was also settled that the electricity and water charges of the suit property are not included in the said monthly rent and the same would be payable as per the consumption and meter reading, which was agreed by the defendant. It is submitted that it was also settled as specific term that if the rent for the period of two consecutive months is not paid by the Defendant to the Plaintiff, then the said tenancy automatically shall stand terminated and the Plaintiff shall be liable to get vacated the suit property from the Defendant due to the non-payment of rent. It is submitted that after taking over the possession of the suit property by the Defendant, he has not paid the rent for the initial month of July 2015 despite several demands of the Plaintiff and further the Defendant has stopped payment of rent of the suit property for the coming months to the Plaintiff despite several requests. Not only this, the Defendant has also not paid the electricity and water charges of the suit property to the Plaintiff which he has been regularly using since the day of tenancy. It is submitted that the Plaintiff has been depositing the said electricity and water charges from her own pocket. Plaintiff has terminated the tenancy of the Defendant in the month of September 2015 i.e. on 06.09.2015 and has demanded the arrears of rent and electricity and water charges from the Defendant. Plaintiff also asked the defendant to vacate the suit property and pay the damages and mesne profits for illegal use and occupation of the suit property on the same rate i.e. Rs. 6,000/- per month. However, the Defendant has not bothered to pay even a single Page 3 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh penny to the Plaintiff. Hence, the Defendant is an unauthorized occupant and is in illegal possession of the suit property since 06.09.2015. It is submitted that the Defendant is liable to pay the arrears of rent @ Rs. 6,000/- per month from 02.07.2015 for two months i.e. Rs.12,000/-. The Defendant is also liable to pay Rs. 30,000/- as damages/mesne profits for illegal use and occupation of the suit property on the same rate from the day of termination of tenancy i.e. 06.09.2015 till 06.02.2016. The Defendant is also liable to pay the electricity and water charges to the tune of Rs.19,600/-calculated upto January 2016. Thus, the total amount is recoverable from the Defendant Rs. 61,600/- calculated upto 06.02.2016. The future /pendente-lite damages/mesne profits are also recoverable from the Defendant for illegal use and occupation of the suit property, with interest @ 18% per annum till the vacation of the suit property and actual realization of the said amount.
4. It is submitted that despite several requests and reminders of the Plaintiff, the Defendant has neither vacated the suit property, nor has paid the due arrears of rent electricity and water charges, damages and mesne profits to the Plaintiff. The Plaintiff has sent a legal notice dated 12.01.2016 through his counsel vide registered A.D/Speed post to the Defendant thereby demanding the due arrears of rent, electricity and water charges, damages and mesne profits and also demanded vacating the suit property by the Defendant within 15 days of the receipt of said legal Page 4 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh notice, but the Defendant refused to receive the same and did not comply with the legal notice. Hence, the present suit.
AVERMENTS IN THE WRITTEN STATEMENT:
5. Upon summons being issued, the defendant appeared and filed his WS. In the WS, the defendant raised preliminary objections that the present suit is barred under Section 50 of the Delhi Rent Control Act as the rate of rent of the tenanted premises is Rs. 1000/- per month exclusive of all other charges. Further, that there is no privity of contract between the parties as Sh. Mahender Singh, who was the father of the defendant, was inducted as tenant by Smt. Anju Gupta the erstwhile owner of the suit property initially on monthly rental of Rs. 600/- per month and the last paid rent was Rs. 1000/- per month. Further, that the present suit is bad for non-joinder of necessary parties as Smt. Anju Gupta, from whom the plaintiff has claimed to have purchased the suit property, has not been impleaded as party. Further, that the Plaintiff has suppressed and concealed the material fact that in the year 2006 when the plaintiff has claimed to have purchased the tenanted premises, the same was in occupation and possession of the tenants and the father of the defendant was also paying rent @ Rs. 1000/- per month exclusive of all other charges. Further, that the father of defendant or answering defendant has never received any communication from Smt. Anju Gupta or Plaintiff herein regarding the alleged transaction.
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6. In reply on merits, the defendant denied that plaintiff is landlady of the defendant. He denied that the plaintiff had given suit property on rent to the defendant from 2.7.2015 @ Rs. 6000/- per month on the basis of oral tenancy. It is averred that the father of the answering defendant was inducted by Smt. Anju Gupta in the suit premises on monthly rental of Rs. 600/- per month which was ultimately increased to Rs. 1000/- per month. He further denied that there was any settlement regarding payment of electricity & water charges by the defendant to the plaintiff. He further denied that any demand was ever raised by the Plaintiff. It is further denied that defendant is in illegal use of the suit property or is unauthorized occupant or is liable to pay damages. He further denied that the Plaintiff sent a legal notice dated 12.01.2016. It is further denied that defendant is liable to pay damages/mesne profits @ Rs. 6000/- per month, and electricity and water charges to the tune of Rs. 19600/-. All the other averments of the plaint are denied with the prayer to dismiss the suit.
REPLICATION:
7. In the replication filed by the plaintiff, averments of the plaint have been reiterated, and contents of the written statement have been denied.
ISSUES:
8. From the pleadings of the parties following issues were framed by Ld. Predecessor vide order dt. 06.02.2017 :-
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1. Whether the plaintiff is guilty of concealment of material facts as stated in the para no. 4 of preliminary objection? OPD
2. Whether the suit is barred under Section 50 of DRC Act? OPD
3. Whether the suit is bad for non-joinder of necessary party? OPD
4. Whether the plaintiff is entitled for relief of possession of suit property as prayed for? OPP
5. Whether the plaintiff is entitled for recovery of arrears of rent, electricity and water charges? OPP
6. Whether the plaintiff is entitled for damages at the rate of Rs. 61,600/- upto 06.02.2016? OPP
7. Whether the plaintiff is entitled for future, pendente lite, damages as prayed for at the rate of Rs. 6000/- per month? OPP
8. Relief.
PLAINTIFF'S EVIDENCE:
9. To prove its case, the plaintiff examined herself as PW1 by tendering her evidence by way of affidavit Ex. PW1/A. She relied upon following documents :-
i) Ex. PW-1/1 (colly.)(OSR) i.e. Sale deed dated 09.10.2006 with site plan.
ii) Ex. PW-1/2 i.e. copy of legal notice dated 12.01.2016.
iii) Ex. PW-1/3 and Ex.PW1/4 i.e. AD card and speed post receipt.
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iv) Ex. PW-1/5 and Ex.PW1/6 i.e. undelivered sealed envelope AD card and speed post.
v) Ex. PW-1/7 (OSR) i.e. copy of election I.D card.
vi) Ex. PW-1/8 i.e. copy of five electricity bills.
vii) Ex. PW-1/9 i.e. copy of receipts of deposit of electricity and water charges.
10. Plaintiff further examined PW-2 Sh. Hari Kishan Chauhan and PW-3 Sh. Sanjay and PW-4 Dinesh Raghav.
11. PW1, PW-2, PW-3 and PW-4 were duly cross examined by counsel for defendant. Thereafter, plaintiff's evidence was closed by way of separate statement dt. 25.05.2022 made by plaintiff. DEFENDANT'S EVIDENCE:
12. Defendant examined himself as DW-1 by tendering his evidence by way of affidavit Ex. DW1/1.
FINDINGS:
13. I have heard Ld. Counsel for the plaintiff as well as Ld. counsel for the defendant and have perused the case file. My issue-wise findings with reasons thereof are as under:-
Issue No.1: Whether the plaintiff is guilty of concealment of material facts as stated in the para no. 4 of preliminary objection? OPD
14. The onus of proof of this issue was upon the defendant.
15. The defendant has taken the defence in his WS that the plaintiff has concealed the material fact that in 2006 when the plaintiff has claimed to have purchased the tenanted premises the entire premises were in occupation of tenants. However, record Page 8 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh shows that the defendant has not led any cogent evidence to substantiate this claim. There is nothing on record to show that the defendant was in possession in the year 2006 in the suit property. Hence, the defendant has not discharged his onus in this issue.
16. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue No.2: Whether the suit is barred under Section 50 of DRC Act? OPD
17. The onus of proof of this issue was upon the defendant.
18. Since the relationship of landlord-tenant has not been admitted by the defendant, Section 50, DRC Act does not have any application in the present matter. Hence, the suit is not barred under Section, 50 DRC Act.
19. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue No.3: Whether the suit is bad for non-joinder of necessary party? OPD
20. The onus of proof of this issue was upon the defendant.
21. Though the defendant has taken the defence that the suit is bad for non-joinder of Anju Gupta being necessary party, perusal of pleadings of the parties shows that no relief has been sought against the said Anju Gupta. Plaintiff has sought relief of recovery possession, arears of rent etc. from the defendant and Anju Gupta is shown only as erstwhile owner of the suit property. The defendant has failed to show as to how in her absence, the Page 9 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh present suit cannot be effectively decided. In my opinion, Ms. Anju Gupta is not necessary party in the present matter and hence her non-joinder in the array of parties is no ground to dismiss the present suit.
22. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue No.4: Whether the plaintiff is entitled for relief of possession of suit property as prayed for? OPP
23. The onus of proof of this issue was upon the plaintiff.
24. Briefly stated, it is the case of the plaintiff that she purchased the suit property from Ms. Anju Gupta in 2006 vide registered sale deed and rented out the same to the defendant on 02.07.2015 with agreed rent of Rs.6,000/- per month on the basis of oral tenancy, which was created in the presence of two persons of the locality namely Shri Ashok Kumar and Shri Sanjay. However, after taking over the possession of the suit property, the defendant never paid the rent, electricity and water charges, and hence the present suit has been filed. On the other hand, the defendant denied that the plaintiff is the landlord and owner of the suit property, and averred that the father of the defendant was inducted by Ms. Anju Gupta, who is erstwhile owner as per the plaintiff.
25. In order to substantiate her case, the plaintiff examined herself as PW-1 and reiterated her plea in her evidence in affidavit. She primarily relied upon Sale deed dated 09.10.2006 Ex. PW-1/1 (colly.)(OSR), copy of legal notice dated 12.01.2016 Page 10 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh Ex. PW-1/2, copy of five electricity bills Ex. PW-1/8 and copy of receipts of deposit of electricity and water charges Ex. PW-1/9.
26. In order to prove the creation of oral tenancy, the plaintiff examined PW-2 Hari Kishan Chauhan and PW-3 Sanjay, claiming them to be witnesses to the creation of oral tenancy. PW- 2 Hari Kishan Chauhan, who is the husband of the plaintiff, deposed in his evidence in affidavit that he was present when the tenancy was created in favour of the defendant by the plaintiff. However, since his name is not mentioned as witness to the creation of tenancy in the plaint and in evidence affidavit of PW- 1/plaintiff, I am not inclined to place much reliance on his testimony.
27. Plaintiff further examined Sanjay as PW3 who deposed in his evidence by way of affidavit that he was present at the time of creation of tenancy between the parties. It is pertinent to note that while the plaintiff specifically mentioned the names of only Ashok Kumar and Sanjay in her plaint and in her evidence by way of affidavit as witness to the creation of tenancy, PW-2 deposed in his cross-examination that conversations of letting out the suit property were held between him and the defendant/Jaspal Singh on 02.07.2015 in presence of Dineh Raghav and Ashok Kumar. Clearly, PW-2 did not mention the name of Sanjay as witness to the creation of tenancy, which is in direct contrast with the testimony of PW-1. Thus, presence of Sanjay at the time of creation of tenancy becomes doubtful. His testimony has not helped the case of the plaintiff either. While PW-2 Sanjay Page 11 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh deposed in his evidence in affidavit that he took the defendant to the plaintiff for taking the suit property on rent, in his cross examination he deposed that he has known the defendant for six years but didn't not know where the defendant used to live prior to the suit property. He further deposed that he met the defendant two to three times only before the defendant got the property on rent. It has not been explained as to why PW-3 Sanjay would take the pains to get the property on rent in favour of a person whom he has met barely two-three times in the last 6 years and does not even know his residence. The deposition of PW-1 fails to inspire much confidence.
28. In view of the aforementioned appreciation of evidence, I am of the opinion that the plaintiff has not been able to prove creation of oral tenancy. However, even though the plaintiff has failed to prove her status as that of a landlord to the defendant, she could still claim the possession of suit property from the defendant on the strength of her title.
29. In order to show her ownership rights in the suit property, the plaintiff placed on record registered Sale deed dated 09.10.2006 Ex. PW-1/1 (colly.)(OSR). However, Ld. Counsel for the defendant raised the objection that the plaintiff has not proved the sale deed by examining the attesting witnesses. I do not find merit in this argument on behalf of the defendant. It is settled law that the sale deed is not required to be attested by any attesting witness so as to prove its due execution by examining at least one attesting witness. Reliance in this regard is placed on the Page 12 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh judgment of Bayanabai Kaware v. Rajendra, (2018) 1 SCC 585, where it was held as under:
"18. We agree with the reasoning of the High Court. In our opinion also, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed dated 29-12-1981 (Ext. P-31) against the appellant. It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act."
30. In view of the abovementioned judgment, it is clear that the examination of attesting witness is not required to prove execution of the sale deed. The plaintiff entered in witness box and proved execution of sale deed. No evidence has been led by the defendant to challenge the validity of the said registered sale deed in favour of the plaintiff. In fact, except a bare denial, no ground has been stated by defendant to oppose the said sale deed. Defendant has also not taken any objection when the sale deed was being exhibited in evidence. Even in the cross examination Page 13 of 18 (Rahul Verma) Civil Judge03, Central, Delhi CS SCJ 292/2016 Bala Devi Vs. Sarjeet Singh of PW-1, nothing specific has come so as to dispute the genuineness or validity of the sale deed.
31. Hence, it is clear that the said registered sale deed has been duly proved by the plaintiff. Perusal of the said sale deed shows that the suit property has been purchased by the plaintiff from the erstwhile owner Ms. Anju Gupta. The defendant has admitted that Smt. Anju Gupta was the owner of the suit property and but claimed that it was her who had inducted father of the defendant as tenant and that he has been residing in the suit property with his father for the last 20-25 years. However, no evidence has been led by the defendant to prove that Smt. Anju Gupta is still the owner or landlord of the suit property. No evidence has been led to show the existence of landlord-tenant relationship between the said Smt. Anju Gupta and the defendant. The defendant has also not produced any rent agreement, rent receipt or any other document to show tenancy in his or his father's favour. The defendant has failed to provide any justification to continue in possession of the suit property. Clearly, in absence of any possessory title in favour of the defendant, his status in the suit property is that of an unauthorised occupant. On the other hand, as already discussed, the plaintiff has already proved her ownership title in the suit property by way of registered sale deed.
32. In view of the foregoing discussion, the plaintiff has proved on the balance of probabilities that he is entitled to recover the possession of the suit property from the defendant.
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33. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No.5: Whether the plaintiff is entitled for recovery of arrears of rent, electricity and water charges? OPP & Issue No.6: Whether the plaintiff is entitled for damages at the rate of Rs. 61,600/- upto 06.02.2016? OPP & Issue No.7: Whether the plaintiff is entitled for future, pendente lite, damages as prayed for at the rate of Rs. 6000/- per month? OPP
34. Since all these three issues are inter-connected, and can be disposed of on appreciation of common evidence, all are being taken up together. The onus of proof of issue no. 5, 6 and 7 was upon the plaintiff.
35. In view of the discussion in issue no.4, it is clear that the plaintiff has failed to prove landlord tenant relationship between the parties. In other words, since the evidence related to creation of tenancy and the agreed rent has not been found reliable, the plaintiff has failed to prove that the agreed rent in the suit property is Rs. 6,000/- per month. The terms regarding the liability of the defendant to pay water and electricity charges has also not been proved. Thus, the plaintiff is not entitled to the recovery of arrears of rent @ Rs. 6,000/- per month, electricity and water charges.
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36. However, in view of the decision in issue no.4, it is clear that the plaintiff has proved that she is entitled to recover the possession of the suit property from the defendant on the strength of her title. In other words, since the defendant is unauthorized occupants in the suit property, as a necessary corollary, the plaintiff also becomes entitled to the recovery of mesne profits from the defendant for the duration of unauthorized occupation of the suit property. There is no gainsaying the fact that once it is established that a person is in wrongful possession of the suit property, he is bound to pay the damages for the period of wrongful possession.
37. However, as already noted, the plaintiff has failed to prove that the agreed rent of the suit property was Rs. 6,000/- per month. No other evidence was adduced to show what could be the prevailing rental value of the property such as the suit property. Here, it is pertinent to note that the defendant in his WS pleaded that he was paying the rent of Rs. 1,000/- to the erstwhile owner Ms. Anju Gupta. In view of the same, in my opinion, it would be reasonable and fair to fix the rental value of the suit property as per the admitted rent by the defendant i.e. Rs. 1000/- per month.
38. Accordingly, the defendant is held liable to pay damages/mesne profits @ Rs. 1000/per month from the date of filing of the present suit till the date of handing over of vacant, physical possession of the suit property.
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39. As already discussed, the plaintiff is held not entitled to recovery of arrears of rent, electricity and water charges. The plaintiff is also held not entitled for damages at the rate of Rs. 61,600/- upto 06.02.2016. The plaintiff is also held not entitled for future, pendente lite damages as prayed for at the rate of Rs. 6000/- per month.
40. Issue no. 5 and 6 are accordingly decided against the plaintiff and in favour of the defendant. Issue no. 7 is decided in aforesaid terms in favour of the plaintiff and against the defendant.
Issue no. 8: Relief
41. In view of the findings on the aforesaid issues, the suit of the plaintiff is hereby decreed and the plaintiff is held entitled to the following reliefs:
(a) Plaintiff is entitled to recover possession of suit property i.e. first floor of property bearing no. B-1079, Gali 15 Feet, Near Main Market, Shastri Nagar, Delhi-110052 from the defendants. The defendant is hereby directed to vacate the suit property within 8 weeks from the date of this judgment;
(b) The defendant is directed to pay mesne profits @ Rs.
1,000/- per month from the date of filing of the present suit till the date of handing over of vacant, physical possession of the suit property to the plaintiff.
42. No order as to costs.
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43. Decree sheet be prepared accordingly and file be consigned to Record Room after due compliance. Digitally signed by RAHUL RAHUL VERMA VERMA Date:
2023.12.22 09:27:21 +0530 Pronounced in open court: (Rahul Verma) Dated: 21.12.2023 Civil Judge-03, Central, Tis Hazari Courts, Delhi Note :- This Judgment contains 18 pages and all the pages have been checked and signed by me.
(Rahul Verma) Civil Judge-03, Central, Tis Hazari Courts, Delhi Page 18 of 18 (Rahul Verma) Civil Judge03, Central, Delhi