Delhi District Court
Sh. Mohan Lal Arora vs Sh. Dalip Kumar Talreja on 22 August, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02: NORTH
ROHINI COURT COMPLEX: DELHI
RCA DJ No. 40/19
CNR No. DLNT01-003312-2019
IN THE MATTER OF:-
Sh. Mohan Lal Arora
S/o Sh. B. D. Arora
R/o Flat No. 113
Star Light Apartment
Sector-9, Rohini
Delhi-10085 ............ Appellant
VERSUS
1. Sh. Dalip Kumar Talreja
S/o Sh. K. M. Talreja
R/o 85, AGCR Enclave
Delhi-110092
2. Manish Talreja
S/o Sh. Dalip Kumar Talreja
R/o 85, AGCR Enclave
Delhi-110092 ......... Respondents
Date of institution : 12.04.2019
Date of Conclusion of Argument : 14.07.2022
Date of Judgment : 22.08.2022
JUDGEMENT
1. This judgement shall dispose of appeal filed by appellant under Section 96 of CPC aggrieved from the judgement and decree dated 27.02.2019 passed by Ld. Civil Judge, North, Delhi in case bearing suit No. 535290/2016 titled as "Shri Dalip Kumar Talreja & Anr. v.
RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 1/17Mohan Lal Arora" whereby decree of recovery of possession, mesne profits and permanent injunction have been passed against the appellant herein.
2. For the sake of convenience parties have been referred to in this judgement as per their rank before the trial court i.e. appellant has been referred to as defendant whereas respondent No. 1 and 2 have been referred to as plaintiff No. 1 and 2 respectively.
3. Plaintiff No. 1 is husband and plaintiff No. 2 is son of Smt. Dayawati who was the absolute owner of the property bearing No. F-209, Prashant Vihar, Sector 14, Rohini, Delhi-110085. Smt. Dayawati expired on 19.02.1998 leaving behind only two legal heirs i.e. plaintiff No. 1 and plaintiff No. 2. After the death of Smt. Dayawati, plaintiff No. 1 and 2 became the absolute owner of the aforesaid property in equal share. Plaintiff No. 2 is living abroad and has executed Special Power of Attorney in favour of plaintiff No. 1 and thus plaintiff No. 1 being the co-owner and being attorney of plaintiff No. 2, the other co-owner, is competent and empowered to file the present suit against the tenant in respect of the below stated tenanted property.
4. In the month of December 2001, plaintiff No. 1 let out the ground floor of the aforesaid property, consisting of two bedrooms, one bathroom and toilet, one drawing, dining room, one kitchen, varandah and one store hereinafter referred to as the suit property, to the defendant for a period of one year by way of rent agreement which was lastly executed on 03.03.2012 for a period of 11 months RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 2/17 commencing from 01.05.2012 till 31.03.2013 at the monthly rent of Rs. 12,000/- exclusive of electricity and water charges. First floor with terrace is in the use and possession of the plaintiffs.
5. Plaintiff No. 1 requested defendant to vacate and hand over the vacant and physical possession of the suit property as plaintiff No. 1 was not interested in continuing with the said tenancy, however, initially defended avoided the request of the plaintiff and kept on lingering the matter but subsequently he refused to vacate the suit property. Plaintiff No.1, thereafter, got issued legal notice dated 26.02.2013 to the defendant thereby terminating the tenancy of the defendant but despite termination of the tenancy defendant did not vacate the suit property. Plaintiff further alleged about the obstruction created by defendant in letting the plaintiff enjoy the first floor of the property and were also threatening the plaintiff and as such plaintiffs were constrained to file the present suit for recovery of possession, mesne profit and permanent injunction.
6. The case of the defendant is that he has been in use and occupation of the suit property for the last 12-13 years and in this period there has not been any complaint, litigation or scuffle between the parties and relation has always been cordial and normal. Plaintiffs have caused a lot of pain and deeply hurt the sentiments and feeling of the defendant when they chose to file the present suit concealing the actual deal which had taken place between them and the defendant. Plaintiffs belong to a mediocre family and in the month of June 2004, the son of the plaintiff i.e. plaintiff No.2 had gone abroad for RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 3/17 higher studies and plaintiff was not having sufficient amount with him to meet such expenses for higher studies in abroad. At that time the defendant had given a sum of Rs. 2 lakhs in cash to the plaintiff No.1 for the higher studies of plaintiff No. 2 after withdrawing the same from his account and at that time plaintiff No.1 had promised to return the said amount at the earliest. However, plaintiff could not return the aforesaid amount of Rs.2 lakhs due to financial hardship as being told by them and similarly, the defendant again helped the plaintiff No.1 at the time of marriage of his son in January 2013 by giving him financial help to the tune of Rs. 5,00,000/-.
7. Since the time of second marriage of plaintiff No. 1, plaintiff No.1 has been residing with his second wife and her children at the address given in the plaint and plaintiff No. 2 has settled in USA. In such circumstances plaintiffs decided to sell out the entire property i.e. F-209, Prashant Vihar, Sector-14, Delhi-110085 and as such plaintiff No. 1 has given the said offer to the defendant to purchase the said property. As defendant was not having sufficient money to buy the whole property and so he gave counter offer to purchase the suit property in his possession on 10.01.2013.
8. After expiry of one week of the said counter offer, the plaintiff No. 1 along with plaintiff No. 2 met the defendant on 30.01.2013 and both of them agreed to sell the suit property to the defendant for total sale price of Rs.1 Crore and amount of Rs. 7,00,000/- was treated as earnest money and the sale deed was agreed to be RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 4/17 executed on or before 30.06.2013. It was further agreed that as the rent agreement has been extended from May 2012 for a period of 11 months and the sale deed is yet to be executed, therefore the defendant would continue to pay rent at the rate which he was already making and the defendant paid the rent to the plaintiff till March 2013.
9. After March 2013 defendant has been occupying the suit property in part performance of the agreement and the terms and condition of the sale were orally agreed in the presence of plaintiffs, defendant and wife of defendant and no written document reducing the oral terms and condition was prepared because deal was on mutual belief, trust and understanding.
10. After making arrangement for balance sale consideration of Rs. 93 lakhs, the defendant went to meet the plaintiff No. 1 in the first week of June 2013 but the deal was deferred for 2-3 months on the pretext that the deal would be finalised only after arrival of the plaintiff No. 2 who was likely to arrive by the end of September 2013. Defendant again tried to make contact with plaintiff No. 1 in the first week of 2013 but plaintiff No. 1 started avoiding him on one pretext or the other and it is only after receiving the summons of the present suit for 25.11.2013, defendant came to know about the malafide and dishonest intention of the plaintiffs and in the circumstances the suit filed by the plaintiff is not maintainable and liable to be rejected.
11. On the pleadings of the parties following issues were framed by the RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 5/17 Ld. Trial Court: -
1). Whether the plaintiff is entitled to the relief of possession, as prayed for? OPP
2). Whether the plaintiff is entitled to the relief of mesne profits, if any, at what rate and for what period? OPP
3). Whether there was any agreement to sell "the suit property which had been executed between the plaintiff and the defendant as is alleged in WS? OPD
4). Whether the defendant is in possession of the suit property in the status of buyers after having made a part payment of Rs.7 lakhs and not as a tenant as averred in WS? OPD
12. In support of his case plaintiff No. 1 examined himself as PW1 whereas defendant examined himself as DW1 and his wife as DW2 and one Ashok Kumar Bajaj, Chief Manager ICICI Bank as DW3.
13. After hearing the parties and appreciating pleading, evidence and material on record, Ld. Trial Court was pleased to pass decree for recovery of possession, mesne profits at the rate of Rs. 15,000/- per month and decree of permanent injunction in favour of plaintiff and against the defendants by impugned judgement and decree dated 27.02.2019 aggrieved from which present appeal has been preferred by the defendant.
14. It has been contended that Ld. Trial Court ignored the material contradictions and material discrepancies in the testimony of the plaintiff and no adverse presumption was drawn against him on account of discrepancies and non examination of best evidence.
15. It has been contended that Ld Trial Court failed to appreciate that RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 6/17 the suit was filed by the plaintiffs on the basis of their title whereas plaintiff were very much aware that after execution of oral agreement the relationship of landlord and tenant had come to an end. Ld. Trial Court had failed to appreciate that there was a difference in a suit filed by landlord against the tenant and the suit filed on the basis of title. It has been contended that Ld. Trial Court failed to appreciate that after 31.03.2013 when the tenancy came to an end in pursuance to the oral agreement executed between the plaintiffs and defendant, the relationship of landlord and tenant also came to an end and the defendant was no more a tenant of the plaintiffs.
16. It has been contended that Ld. Trial Court erroneously held that "PW1 has duly proved the rent agreement Ex. PW1/3, and the same has not been denied/contradicted on behalf of the defendant. Ex. PW1/3 is the rent agreement, which has been executed with plaintiff No. 1, Dalip Kumar Talreja and therefore, on 01.05.2012, i.e. on the date when the tenancy commenced in pursuance of the aforesaid rent agreement, the defendant cannot deny the title of the plaintiff at such date as per Section 116 of the Indian Evidence Act, 1872, accordingly the objection regarding Special Powers Attorney on behalf of the plaintiff No. 2 also loses significance." It has been contended that Section 116 of the Evidence Act, is not applicable because the rent agreement dated 01.05.2012 expired on 31.03.2013 and after expiry of the rent agreement the defendant was no more a tenant or licensee of the plaintiffs and for this reason the suit filed by both the plaintiffs on the basis of title being only legal heirs of RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 7/17 late Smt. Dayawanti and not by plaintiff No. 1 along with whom the said rent agreement was executed.
17. It has been contended that Ld. Trial Court has completely failed to appreciate the fact that Section 116 of the Evidence Act applies where relationship of landlord and tenant exists. It has been contended that suit was filed on the basis of title by the plaintiff No.1 for himself and as an attorney of plaintiff No. 2 without any valid SPA allegedly executed by plaintiff No. 2 in favour of plaintiff No.1, after expiry of tenancy and not during the continuance of the tenancy and law of estopple as provided under Section 116 of Evidence Act was not applicable but the trial court has completely ignored this fact.
18. It has been further contended that Ld. Trial Court erroneously held that "neither the prescribed period of 12 years has been pleaded, nor denial of title and nor the exact date when the defendant ceased to be a tenant, and became an owner, and since the entry into possession was in accordance with the rent agreement, that is consensual, the defendant cannot even claim adverse possession as a defense". It has been submitted that defendant in his written statement as well as in his affidavit has specifically mentioned that he was tenant till 31.03.2013 and after March 2013 he has been occupying the suit property in part performance of the oral agreement but Ld. Trial Court ignored this fact.
19. It has been contended that Ld. Trial Court completely failed to appreciate the fact that the alleged SPA executed by plaintiff No.2 RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 8/17 in favour of plaintiff No.1 was not a valid document as per law of attorney and had no sanctity in the eyes of law and therefore the suit filed by plaintiff No.1 for himself and on behalf of plaintiff No.2 on the basis of SPA was not maintainable and plaintiffs were not entitled to the relief claimed.
20. It has been contended that Ld. Trial Court failed to appreciate the fact that plaintiff No. 1 had taken the plea that plaintiff No.2 went abroad for higher studies with full scholarship and he had not given any money to the plaintiff No.2 for his higher studies but neither plaintiff No. 2 has been examined nor any document regarding his full scholarship has been placed on record. Trial Court completely ignored the fact that defendant had provided the financial help to the plaintiffs for the higher studies of plaintiff No. 2 abroad and at the time of marriage of plaintiff No.2 and this fact can only be proved by examining plaintiff No.2 but plaintiff No.1 had intentionally and deliberately not examined plaintiff No. 2 before the court.
21. It has been contended that trial court completely failed to appreciate the fact that plaintiff No.1 during his cross-examination on 30.07.2016 had stated that "it is correct that my son went to USA for higher studies. Now he has got employed there. I do not remember exactly as to when he got his job there. However, it is about 2 to 3 years back since, he is working there. I was not sending any money to him in USA in fact I have never sent any money to him to USA for his expenses". It has been contended that RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 9/17 the Ld. Trial court had completely ignored the fact that admittedly plaintiff No. 2 went to USA in 2004 and got job there in 2013 or 14 and plaintiff No.2 lived there for approximately 10 years without any assistance from plaintiff No.1 and it is the plaintiff No. 2 who can state about his source of money for living there for approximately 10 years without any assistance and without any job but plaintiff No. 1 deliberately not examined plaintiff No.2.
22. It has been contended that Ld. Trial Court failed to appreciate the fact that the circumstances in which Rs. 7 lakhs was given by defendant to the plaintiff as a help had been converted into earnest money out of total consideration amount of Rs.1,00,00,000/- for the sell of the suit property but trial court has completely ignored this fact that the terms and condition of the sale of the suit property were orally agreed in the presence of plaintiffs, defendant and his wife and no written document reducing the terms and conditions were prepared because deal was on mutual belief, trust and understanding.
23. It has been contended that Ld. Trial Court wrongly held that for the application of Section 53A of TP Act, agreement was required to be in writing and registered as well under section 17(1)A of the Registration Act.
24. Ld. Trial Court wrongly held that after expiry of rent agreement the defendant was no more than a tenant by holding over and was liable to be evicted by one months notice, as per section 106 read with Section 116 of the Transfer of Property Act, 1882. Ld. Trial Court RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 10/17 has completely ignored the fact that defendant and his wife in their affidavit had clearly stated the terms and condition of the same were orally agreed in the presence of plaintiffs and this fact had not been contradicted by the respondent in the cross-examination of DW1 and DW2, even by contrary suggestion in this regard. It has been completely ignored by Ld. Trial court that in cross- examination PW2 had stated that "it is correct that the agreement to sell which was for purportedly executed between the plaintiff and the defendant was oral and not in writing" and from the above testimony the defendant has successfully proved that there was oral agreement between the parties for the sell of the property.
25. It has been contended that trial court had failed to appreciate that defendant had discharge its onus and successfully proved that there was oral agreement for the sale of the property and once it has been proved that there was oral agreement in existence then Section 91 and 92 of the Indian Evidence Act and Section 17(1A) of the Registration Act was not applicable in the present case.
26. Ld. Trial court failed to appreciate the fact that facts of the case titled as Ajit Chopra v. Sadhuram 2007 SCC 114, Sanjiv Pathak v. Somnath and others 204 (2013) DLT 667 and Jeevan Diesel and Electrical Limited v. M/s Jasbir Singh Chaddha (HUF) and another 2011 (182) DLT 402 were entirely different from the present case and the ratio of the case relied upon referred to above were not applicable in the present case.
27. Ld. Counsel for plaintiff has supported the judgement impugned RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 11/17 herein and the reasoning given by Ld. Trial Court and has pleaded that appeal be dismissed.
28. Having heard rival submission and having perused Trial Court record, pleading, evidence, material on record and the impugned judgement, this Court is of the view that present appeal is liable to be dismissed not only for the reason given by the Ld. Trial Court which is sound and according to legally established principles of law but also for the reason that even if case of the defendant is accepted that he is in possession of the suit property in part performance of the oral agreement to sell and Section 53A of Transfer of Property Act, 1882 is applicable even where there is no registered written agreement, defendant cannot protect his possession because he was required to prove his readiness and willingness to perform his part of the contract.
29. Admittedly, till date defendant has not preferred any independent suit for specific performance of the alleged oral agreement to sell and limitation for filing such suit has expired some six years ago nor did he choose to file counter claim for such relief. Further, in the present case he only pleaded that he had been ready and willing to perform his part of the agreement and balance sum of Rs. 93 lacs had been available with him but there is no evidence regarding the availability of Rs 93 lacs with him or his wife any time since the day of alleged oral agreement. Nothing has been disclosed where from he would arrange the funds.
30. Further, statement of joint account Ex DW3/1 of defendant and his RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 12/17 wife for the period 01.04.2004 to 24.12.2004 hardly shows balance over Rs. 25,000/- except one entry of Rs 1,95,000/- which remained only for two days. On record is available photocopy of statement of account Mark-B (colly) of wife of defendant Mrs. Sunita Arora for period 29.03.2012 to 01.11.2012 which hardly show balance over Rs 2 lacs except once. Thus, there is no evidence to the effect that balance sum of Rs 93 lacs was available with defendant or his wife or with both. Defendant has grossly failed to prove his readiness and willingness to perform his part of the agreement to protect his possession allegedly continued after oral agreement to sell and he should not have audacity to challenge the decree for his eviction.
31. It is reiterated for the sake of defendant's knowledge that after 24.09.2001 on which day amendment in the Stamp Act and Registration Act as applicable to Delhi came into force, Section 53A of Transfer of Property Act protect possession in part performance of the agreement to sell only when such agreement is in writing and registered with prescribed stamp duty i.e. on 90% of the agreed consideration amount and transferee is ready and willing to perform the his part of the agreement. Hence, Ld. Trial Court rightly held that protection of Section 53A of Transfer of Property Act was not available to defendant for want of registered agreement to sell.
32. Another reason for failure of defendant's appeal is that defendant grossly failed to prove the alleged oral agreement to sell of the suit property and defendant's continuance in the suit property after RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 13/17 March, 2013 in part performance of the alleged oral agreement to sell. It is the case of the defendant that he helped plaintiffs by giving them Rs. 2 lacs when plaintiff No.1 had no sufficient amount to meet the expenses for higher studies abroad. Defendant in his written statement did not specify the time and date of extending such alleged sum of Rs. 2 lacs to plaintiff No.1. He stated that he withdrew the said amount form his account and gave it and in support of his contention he placed on record statement of joint account of the defendant and his wife with ICICI Bank. Perusal of statement of account Ex DW3/1 shows that a sum of Rs 1,80,000/- was withdrawn on 03.08.2004. It also shows that his account received an amount of Rs. 1,95,000/- by way cheque on 02.08.2004. Before 02.08.2004 and after 03.08.2004 this account hardly have balance over Rs. 50,000/- between 01.04.2004 to 24.12.2004. No other account of the relevant period has been placed and proved on record. With such small savings in account it is hardly believable that he would lend financial help to plaintiffs in 2004.
33. Further, defendant alleges to have given financial help of Rs.
5,00,000/- to plaintiff in January 2013 at the time of marriage of plaintiff No.2. No date of marriage of plaintiff No.2 has been mentioned. It has also been alleged that on 10 th January defendant had given counter offer to plaintiff to purchase the suit property. So when was the marriage of plaintiff No.2? Normally, no marriage among Hindus takes place between 15 th December to 14th January of the next year as that period is not considered auspicious in Hindu religion for marriages. Admittedly, alleged helping of Rs 5,00,000/-
RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 14/17was given when there was no iota of selling the property and willingness to sell off must have occurred after marriage of the son of the plaintiff No.1, so the time as pleaded by defendant for extending financial help and for oral agreement to sell is not reconciling. Besides, there is no evidence regarding the availability of fund of Rs 5,00,000/- with defendant in the month of January, 2013 when plaintiff No. 2 got married. Statement of account Mark- B of wife of defendant also does not show availability of Rs. 5,00,000/- in the month of August, September, October, November and December 2012. No statement of account for the month of January, 2013 either of defendant or his wife has been filed and proved on record. Defendant has even failed to prove that he had given Rs. 5 lacs to plaintiffs at the time of alleged marriage of plaintiff No.2. When defendant has failed to prove giving of financial help of Rs 2 lacs at the time when plaintiff No. 2 had gone abroad for higher studies and Rs. 5 lacs at the time of marriage of plaintiff No.2, it can hardly be believed that there was oral agreement to sell the suit property and said alleged sum of Rs. 7 lacs was treated as earnest money by plaintiffs.
34. Defendant, thus, has grossly failed to prove that he paid sum of Rs.
7 lacs to the plaintiffs in the manner pleaded by him, that there was an oral agreement to sell between the plaintiffs and defendant and that sum of Rs. 7 lacs as allegedly given to plaintiffs was agreed to be treated as earnest money. Once defendant has failed to prove above facts, his alleged stand that he is in possession of the suit property in part performance of oral agreement to sell also does not RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 15/17 survive. Even otherwise his possession of suit property in alleged part performance is not protected for want of registered agreement to sell.
35. Admittedly, defendant was inducted into the suit property as tenant and last rent agreement for a period 11 months was executed on 03.03.2012 commencing the lease from 01.05.2012 to 31.03.2012 and admittedly after 31.03.2012 no lease had been executed between the parties, therefore tenancy of the defendant became month to month terminable by 15 days notice. In the present case plaintiff by legal notice dt 26.02.2013 Ex PW1/5 terminated the tenancy of the defendant w.e.f 31.03.2012 receipt of which has been denied by defendant. Even though there is presumption regarding the service of said notice in view Section 27 of the General Clauses Act as said notice was sent by speed post with pre-paid requisite postal charges at correct address and it did not return, but in any case service of summons of the present suit upon the defendant would act as notice to defendant terminating the tenancy of the defendant qua the suit property in view of categorically ruling of the Hon'ble Supreme Court in M/s Nopany Investments (P) Ltd v. Santokh Singh (HUF) 2008 (2) SCC 728. Admittedly rent is above Rs 3,500/- per month, hence protection of Delhi Rent Control Act is not available to defendant. Thus, Ld. Trial Court rightly passed the decree of possession in respect of the suit tenanted property and consequently, impugned judgement and decree does not call for any interference by this Court.
RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 16/1736. Before parting with the appeal, defendant must be reminded that although he could not point out the defect in the SPA Ex PW1/2 in favour of plaintiff No.2 but even if it had defect suit was still maintainable by plaintiff No.1 alone as he was the landlord of the suit property. Even otherwise a co-owner can maintain suit for possession based on title provided other co-owner specifically does not support the opponent.
37. In view of the above discussion and reasoning, appeal file by defendant/appellant is hereby dismissed with cost of litigation in favour of respondent/plaintiffs.
38. TCR be sent back with copy of this judgement placed on it.
39. Appeal file be consigned to Record Room after necessary Digitally signed by compliance. HARISH HARISH KUMAR KUMAR Date: 2022.08.22 16:56:03 +0530 (Harish Kumar) Addl. District Judge-02, North, Announced in the open Court Rohini Court Complex, (Judgement contains 17 pages) Delhi/22.08.2022 RCA No. 40/2019 Mohan Lal Arora Vs. Dalip Kumar Talreja & Ors. DoJ 22.08.2022 Page No. 17/17