Delhi District Court
Ashok Kumar Mazumdar vs Smt. Ranjana Mitra on 1 October, 2019
IN THE COURT OF JSCCASCJGJ, SOUTHEAST DISTRICT, SAKET
COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 50607/16
Ashok Kumar Mazumdar
S/o Late Sh. Rohini Kumar Mazumdar
R/o House No.947, Urban Estate, Phagwara,
DistrictKapurthala, Punjab144401 ... Plaintiff
Versus
1. Smt. Ranjana Mitra
W/o Sh. B. K. Mitra
R/o House No.A80, Chittranjan Park,
New Delhi110019.
2. Smt. Deepa Dass
W/o Sh. Bijon Dass
and D/o Late Sh. Rohini Kumar Mazumdar,
R/o J. K. Steel, Quarter Gate, Subhash Nagar,
P.O. Nova Gram, DistrictHooghly,
West Bengal712246.
3. Dr. Meena Chakravarty
W/o Sh. Kanti Lal Chakravarty
And D/o Late Sh. Rohini Kumar Mazumdar,
R/o Flat No.163, SFS Flats,
East Mukherjee Nagar, Delhi110009.
4. Dr. (Ms) Meera Mazumdar
D/o Late Sh. Rohini Kumar Mazumdar
R/o H. No.67, NFL Colony, Sector2,
Naya Nangal, District Roop Nagar (Ropar),
Punjab.
5. Ms. Krishna Mazumdar
D/o Late Sh. Rohini Kumar Mazumdar
R/o H. No.67, NFL Colony, Sector2,
Naya Nangal, District Roop Nagar (Ropar),
Civil Suit No. 50607/16
Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.1 of 31
Punjab ... Defendants
SUIT FOR POSSESSION, ARREARS OF RENT
AND MESNE PROFITS/DAMAGES
DATE OF INSTITUTION : 05.02.2015
DATE OF FINAL ARGUMENTS : 21.09.2019
DATE OF DECISION : 01.10.2019
JUDGMENT
1. The plaintiff, an heir of the alleged landlord, Late Sh. Rohini Kumar Mazumdar has filed this suit against the defendant no.1, alleged tenant and the defendants no.2 to 5, other heirs of the alleged landlord, seeking three substantive reliefs viz. (a) recovery of possession of the alleged tenanted premises, (b) recovery of arrears of rent of Rs.36,000/ alongwith interest at the rate of 18% per annum and (c) recovery of mesne profits/damages at the rate of Rs.25,000/ per month w.e.f. 01.02.2015 alongwith interest at the rate of 18% per annum. The exact prayer made by the plaintiff, in the plaint of this suit, is reproduced below: "It is therefore, most respectfully prayed to this Hon'ble Court that:
a) A decree of possession of demised tenanted premises bearing no. A80, Chittranjan Park, New Delhi110019 as shown in the site plan attached with the plaint may please be passed in favour of the plaintiff and against the defendant no.1/tenant with costs;
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.2 of 31b) A money decree of arrears of rent amounting to Rs.36,000/ (Rupees Thirty Thousand only) may please also be passed in favour of the plaintiff and against the defendant no.1/tenant alongwith interest @18% P.A. as per usages and customs of the market with costs and,
c) A decree for mesne profits/damages @ Rs.25,000/ (Rupees Twenty Five Thousand only) P.M. may please also be passed in favour of the plaintiff and against the defendant no.1/tenant w.e.f. 122015 as the defendant no.1/tenant would be in illegal occupation/trespasser in the demised premises after the termination of her tenancy as per legal eviction notice dated 2211 2014 as stated above in the plaint till handing over of its vacant possession to the plaintiff by the defendant no.1/tenant with costs alongwith interest @ 18% P.A. as per usages and customs of the market;
d) Any other relief which this Hon'ble court deems fit and proper in the circumstances of the case may also be passed in favour of the plaintiff and against the defendant no.1/tenant in the interest of justice accordingly."
2. In order to justify the grant of the aforesaid reliefs/prayer, the Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.3 of 31plaintiff has interalia pleaded in the plaint of this suit that the plaintiff and the defendants no.2 to 5 are the children of Late Sh. Rohini Kumar Mazumdar (henceforth 'Late Sh. R. K. Mazumdar'); that Late Sh. R. K. Mazumdar was allotted the land underlying House No. A80, Chittranjan Park, New Delhi19 (formerly known as EPDP Colony, Kalkaji, New Delhi19) by the President of India through Ministry of Rehabilitation, Government of India vide registered lease agreement dated 24.11.1969 1; that upon obtaining the said land, Late Sh. R. K. Mazumdar had built House No. A80, Chittranjan Park, New Delhi19, upon the said land, in the year 1991, by raising a loan from LIC through DDA; that during his lifetime, Late Sh. R. K. Mazumdar had inducted the defendant no.1 as a tenant qua House No. A80, Chittranjan Park, New Delhi19, except one room and store room, identified in red colour in the site plan filed alongwith the plaint of this suit (henceforth 'tenanted premises'), initially vide tenancy agreement dated 22.11.1992 and later vide tenancy agreement dated 31.01.1995, for a period of two years, ending on 31.12.1996; that as per the tenancy agreement dated 31.01.1995, it was agreed between Late Sh. R. K. Mazumdar and the defendant no.1 that the rent qua the tenanted premises would be Rs.6000/ per month; that on account of friendly relations between Late Sh. R. K. Mazumdar and Sh. B. K. Mitra, husband of the defendant no.1, it was verbally agreed 1 A perusal of the first page (front side and back side) of the said document reflects that it is not a lease agreement executed between the President of India and Late Sh. R. K. Mazumdar. Instead, it is a 'Memorandum of Agreement' executed between the President of India and Late Sh. R. K. Mazumdar, which contemplates (a) that upon fulfillment of certain conditions mentioned in the first page of the said agreement by Late Sh. R. K. Mazumdar, a lease deed would be executed between the President of India and Late Sh. R. K. Mazumdar and (b) that till then, Late Sh. R. K. Mazumdar would only be a licensee in respect of the land, now underlying House No. A80, Chittranjan Park, New Delhi.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.4 of 31between Late Sh. R.K. Mazumdar and the defendant no.1 that out of the rent of Rs.6000/ per month, the defendant no.1 would deposit Rs.5457.30/ with DDA, in order to discharge the liability of Late Sh. R. K. Mazumdar, arising from the loan taken from LIC through DDA; that as per the said verbal agreement, the defendant no.1 was depositing Rs.5457.30/ with DDA, in the name of Late Sh. R. K. Mazumdar and paying the balance rent to Late Sh. R. K. Mazumdar, as and when Late R. K. Mazumdar used to visit the one room and store room, in possession of Late Sh. R. K. Mazumdar at House No. A80, Chittranjan Park, New Delhi19; that after the death of Late Sh. R. K. Mazumdar, on 05.12.1998, the defendant no.1 had become hostile towards the rights of Late Sh. R. K. Mazumdar and his heirs, in respect of the tenanted premises; that on 08.11.2014, when the plaintiff and his wife, Smt. Vibha Mazumdar had tried to visit the one room and store room, which was in the possession of Late Sh. R. K. Mazumdar at House No. A80, Chittranjan Park, New Delhi19 and sought arrears of rent from the defendant no.1, they were denied entry by the defendant no.1 and threatened with dire consequences; that on account of such conduct of the defendant no.1, the plaintiff had served a legal notice dated 22.11.2014 upon the defendant no.1, by way of courier and registered AD, determining the month to month tenancy of the defendant no.1 qua the tenanted premises, which even otherwise had determined on account of efflux of time, mentioned in the tenancy agreement dated 31.01.1995; that upon determination of the tenancy of the defendant no.1 qua the tenanted premises, the defendant no.1 has no right to stay at the tenanted premises; that the tenanted premises can fetch rent of Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.5 of 31Rs.25,000/ per month, if rented out afresh by the plaintiff and that in such circumstances, the plaintiff is entitled to recover from the defendant no.1, (a) possession of tenanted premises, (b) arrears of rent for the period, 01.08.2014 to 31.01.2015, amounting to Rs.36,000/ alongwith interest at the rate of 18% per annum and (c) mesne profits/damages at the rate of Rs.25,000/ per month w.e.f. 01.02.2015 alongwith interest at the rate of 18% per annum.
3. Upon service of summons for settlement of issues of this suit, the defendants have contested this suit by filing separate written statements. In the written statement of the defendant no.1, it is interalia pleaded that no landlordtenant relationship exists between the plaintiff and the defendant no.1; that the defendant no.1 was the owner of the first floor of House No. A79, Chittranjan Park, New Delhi19; that Late Sh. R. K. Mazumdar had approached Sh. B. K. Mitra, husband of the defendant no.1 with an offer to sell the roof rights of House No. A80, Chittranjan Park, New Delhi19; that the offer made by Late Sh. R. K. Mazumdar had appealed to Sh. B. K. Mitra, husband of the defendant no.1; that since Sh. B. K. Mitra, husband of the defendant no.1 did not have funds to purchase the roof rights of House No. A80, Chittranjan Park, New Delhi19, he had informed Late Sh. R. K. Mazumdar that in order to purchase the roof rights of House No. A80, Chittranjan Park, New Delhi19, he would have to sell the first floor of House No. A79, Chittranjan Park, New Delhi19 and require a place to stay; that upon hearing the said problem of Sh. B. K. Mitra, husband of the defendant no.1, Late Sh. R. K. Mazumdar had offered that the family of the Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.6 of 31defendant no.1 could stay at the ground floor of House No. A80, Chittranjan Park, New Delhi19 and pay rent to Late Sh. R. K. Mazumdar; that since, the ground floor of House No. A80, Chittranjan Park, New Delhi19 was inhabitable, it was agreed between Sh. B. K. Mitra, husband of the defendant no.1 and Late Sh. R. K. Mazumdar that Sh. B. K. Mitra, husband of the defendant no.1 would repair the ground floor of House No. A80, Chittranjan Park, New Delhi19 and the amount spent on the said repair would be deducted from the sale price of the roof rights of the House No. A80, Chittranjan Park, New Delhi19; that in pursuance of the said understanding/agreement, Sh. B. K. Mitra, husband of the defendant no.1 had repaired the ground floor of House No. A80, Chittranjan Park, New Delhi19 by spending Rs.1,90,000/; that after repair of the ground floor of House No. A80, Chittranjan Park, New Delhi19, the family of the defendant no.1 had shifted to ground floor of House No. A80, Chittranjan Park, New Delhi19; that thereafter, Late Sh. R. K. Mazumdar had delayed the obtaining of permissions to build floors on top of the ground floor of House No. A80, Chittranjan Park, New Delhi19, resulting in payment of rent of Rs.1,40,000/ to Late Sh. R. K. Mazumdar; that on account of the said delay, Late Sh. R. K. Mazumdar had offered to sell the entire House No. A80, Chittranjan Park, New Delhi19 to the defendant no.1 and Sh. Debjyoti Mitra, son of the defendant no.1, for a total sale consideration of Rs.9,00,000/, after adjusting the aforesaid amounts of Rs.1,90,000/ and Rs.1,40,000/; that out of the sale consideration of Rs.9,00,000/, a sum of Rs.5,65,000/ was paid immediately by the defendant no.1 and her son, Sh. Debjyoti Mitra to Late Sh. R. K. Mazumdar; that in respect of the balance sale Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.7 of 31consideration of Rs.3,35,000/, it was agreed that it would be paid, after Late Sh. R. K. Mazumdar obtains relevant papers/documents from DDA and discharges his liability arising from the loan taken from LIC through DDA and that in case, Late Sh. R. K. Mazumdar does not discharge the said liability, the defendant no.1 would discharge the said liability through the balance sale consideration of Rs.3,35,000/; that in pursuance of the said sale transaction, Late Sh. R. K. Mazumdar had executed an agreement to sell dated 22.11.1994, in favour of the defendant no.1 and her son, Master1 Debjyoti Mitra and a simultaneous irrevocable general power of attorney in favour of Sh. B. K. Mitra, husband of the defendant no.1; that as a consequence of the execution of the said documents by Late R. K. Mazumdar, the House No. A80, Chittranjan Park, New Delhi 19 stood sold to the defendant no.1 and her son, Sh. Debjyoti Mitra; that after execution of the aforesaid documents, Late Sh. R. K. Mazumdar had never sought rent from the defendant no.1; that on account of inability of Late Sh. R. K. Mazumdar to discharge the liability arising from the loan taken from LIC through DDA, the defendant no.1 had started paying installments to DDA through aforesaid balance sale consideration of Rs.3,50,000/; that the tenancy agreement dated 30.01.1995, is a forged and fabricated document; that no part of House No. A80, Chittranjan Park, New Delhi19 was retained by Late Sh. R. K. Mazumdar; that the incident dated 11.08.2014 had never occurred and that since, the defendant no.1 and her son, Sh. Debjyoti Mitra are the owners of the House No. A80, Chittranjan Park, New Delhi19, this suit 1 The word 'Master' in respect of Sh. Debjyoti Mitra, son of the defendant no.1, features for the first time in sixth last line of page 9 of the written statement of the defendant no.1.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.8 of 31should be dismissed.
4. In the joint written statement of the defendants no.2 to 5, which was taken on record by a Ld. Predecessor Judge vide Order dated 29.01.2016, it is interalia pleaded that the defendants no.2 to 5, who have also inherited rights from Late Sh. R. K. Mazumdar, in respect of House No. A80, Chittranjan Park, New Delhi19, should be transposed as plaintiffs in this suit1 and that if this suit is decreed, then the plaintiff alone should not be held to be entitled to the fruits of the said decree.
5. In the replication qua the written statement of the defendant no.1, the plaintiff has traversed the contents of the written statement of the defendant no.1, made the necessary denials and reiterated the contents of the plaint. Also, the plaintiff has pleaded that the tenancy agreement dated 31.01.1995 is a genuine document; that the defendant no.1 is a tenant of the plaintiff as well as the defendants no.2 to 5, in respect of the tenanted premises; that Late Sh. R. K. Mazumdar had never sold House No. A80, Chittranjan Park, New Delhi19; that the entire story of the defendant no.1 qua sale of House No. A80, Chittranjan Park, New Delhi19 is concocted (a) because Late Sh. R. K. Mazumdar was only a lessee in respect of land underlying House No. A 80, Chittranjan Park, New Delhi19 of L&DO, Government of India and could not have transferred title of the said land to the defendant no.1, (b) because Late Sh. R. K. Mazumdar had mortgaged House No. A80, 1 The issue of transposing the defendants no.2 to 5 as plaintiffs in this suit, was directed to be taken up for consideration, on 19.03.2016 but on 19.03.2016 and thereafter, it was neither pressed by the defendants no.2 to 5 nor considered by any of the Ld. Predecessor Judges.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.9 of 31Chittranjan Park, New Delhi19 with LIC, through DDA and could not have sold it, without prior permission/NOC from LIC/DDA, (c) because the agreement to sell and GPA dated 22.11.1994 do not bear the original signatures of Late Sh. R. K. Mazumdar and (d) because having served legal notice dated 13.11.1994 upon the defendant no.1, there was no occasion for Late Sh. R. K. Mazumdar to execute the agreement to sell and GPA dated 22.11.1994; that no payment of Rs.5,65,000/ was made by the defendant no.1 to Late Sh. R. K. Mazumdar; that the agreement to sell dated 22.11.1994, is void abinitio, on account of the law laid down in Sections 24, 25 and 29 of the Contract Act, 1872; that even otherwise, the agreement to sell and GPA dated 22.11.1994, being unregistered documents do not confer any title upon the defendant no.1 and her son, Sh. Debjyoti Mitra, in respect of House No. A80, Chittranjan Park, New Delhi19 and that the defendant no.1 has forged and fabricated the agreement to sell and GPA dated 22.11.1994, in order to usurp House No. A80, Chittranjan Park, New Delhi19.
6. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 08.09.2017: "1. Whether the plaintiff is entitled to the possession of premises no. A80, C. R. Park, New Delhi90 as shown in the site plan? OPP
2. Whether the plaintiff is entitled to arrears of rent to the tune of Rs. 36000/ besides interest as prayed for against defendant no. 1? OPP Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.10 of 313. Whether the plaintiff is entitled to mesne profits of Rs. 25,000/ per month against defendant no. 1 since 01.02.2015 as prayed for besides interest? OPP
4. Whether the plaintiff is entitled to cost of suit as prayed for? OPP"
7. During the trial of this suit, three witnesses viz. PW1 Sh. Ashok Kumar Mazumdar, PW2 Sh. Dinesh Singh and PW3 Sh. Jaglal Mehto were examined in support of the case of the plaintiff, two witness viz. DW1 Smt. Ranjana Mitra and DW2 Sh. Subrata Debnath were examined in support of the case of the defendant no.1 and the defendant no.3, who is the attorney of defendants no.2, 4 and 5, had chosen not to lead any evidence. The testimonies of PW1 Sh. Ashok Kumar Mazumdar, PW2 Sh. Dinesh Singh, PW3 Sh. Jaglal Mehto, DW1 Smt. Ranjana Mitra and DW2 Sh. Subrata Debnath are not being discussed, at this stage of this judgment, for the sake of brevity.
8. In order to adjudicate upon this suit, I had heard Sh. P. C. Sharma, Ld. Advocate for the plaintiff, Sh. Peeyoosh Kalra, Ld. Advocate for the defendant no.1 and Ms. Shagun Parashar, Ld. Advocate (LAC) for the defendant no.31, on 16.09.2019 and 21.09.2019. The issue wise findings, in this suit are as follows:
1 The Ld. Advocate had clarified that although the defendant no.3 is the attorney of defendants no.2, 4 and 5, she had been appointed by DLSA, SouthEast, only to represent the defendant no. 3.Civil Suit No. 50607/16
Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.11 of 31ISSUE NO.1
9. In respect of this issue, the case of the plaintiff is that since, his father, Late Sh. R. K. Mazumdar had inducted the defendant no.1, as a tenant qua the tenanted premises; since, after the death of Late Sh. R. K. Mazumdar, the plaintiff alongwith the defendants no.2 to 5 have become the landlords qua the tenanted premises 1 and since, despite termination of her tenancy qua the tenanted premises, upon service of legal notice dated 22.11.2014, the defendant no.1 has not vacated the tenanted premises, the plaintiff is entitled to recover from the defendant no.1, the possession of the tenanted premises. Per contra, the case of the defendant no.1, as pleaded in her written statement, is that since, Late Sh. R. K. Mazumdar, father of the plaintiff had sold House No. A80, Chittranjan Park, New Delhi19 to the defendant no.1 and her son, Sh. Debjyoti Mitra vide agreement to sell dated 22.11.1994 and GPA dated 22.11.1994 (executed between Late Sh. R. K. Mazumdar and Sh. B. K. Mitra, husband of the defendant no.1), the plaintiff cannot be said to be entitled to recover from the defendant no.1, the possession of the tenanted premises. Also, the case of the defendant no.1, as argued by the Ld. Advocate for the defendant no.1, during the hearing of final arguments, is that since, the agreement to sell dated 22.11.1994, was coupled with part performance of the said agreement by Late Sh. R. K. Mazumdar, the defendant no.1 is entitled to the benefit of Section 53A of the Transfer of Property Act, 1882.
1 In paragraph 3 of the replication qua the written statement of the defendant no.1, the plaintiff has admitted that the defendant no.1 is a tenant of the plaintiff and the defendants no.2 to 5.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.12 of 3110. In order to prove his case qua this issue, the plaintiff has examined three witnesses viz. PW1 Sh. Ashok Kumar Mazumdar, PW2 Sh. Dinesh Singh and PW3 Sh. Jaglal Mehto.
11. During examination in chief, the plaintiff viz. PW1 Sh. Ashok Kumar Mazumdar has deposed substantially in line with the plaint and replication of this suit and tendered in evidence viz. site plan, Ex.PW1/1, letter dated 01.07.1970, Ex.PW1/2(OSR), possession letter dated 24.11.1969, Ex.PW1/3(OSR), mortgage permission letter dated 06.09.1991, Ex.PW1/4(OSR), letter dated 20.11.1991, Ex.PW1/5(OSR), possession letter dated 29.11.1991, Ex.PW1/6(OSR), tenancy agreement dated 22.11.1992 (sic), Ex.PW1/7, rent agreement dated 22.01.1992, Ex.PW1/8, death certificate dated 05.12.1998, Ex.PW1/9, nomination of plaintiff, Ex.PW1/10(OSR), installment receipt dated 29.11.1991, Ex.PW1/11, installment receipt dated 08.05.1992, Ex.PW1/12, installment receipt dated 10.10.1994, Ex.PW1/13, installment receipt dated 24.02.1995, Ex.PW1/14, legal notice dated 22.11.2014, Ex.PW1/15(OSR), postal receipt dated 22.11.2014, Ex.PW1/16, courier receipt, Ex.PW1/17, refused AD cover containing notice, Ex.PW1/18, notice dated 13.11.1994, Ex.PW1/19, RC cover dated 21.11.1994, Ex.PW1/20, agreement dated 24.11.1969, Mark A, letter dated 11.11.2014 of DDA (Vigilance), Mark B, letter of DDA dated 16.12.2014, Mark C and undertaking dated 16.12.2014, Mark D. During cross examination on behalf of the defendant no.1, the plaintiff viz. PW1 Sh. Ashok Kumar Mazumdar has tendered in evidence rent receipt dated Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.13 of 3122.04.1992, Ex.PW1/X1, rent receipt dated 09.10.1993, Ex.PW1/X2, rent receipt dated 22.02.1995, Ex.PW1/X3, rent receipt dated 22.05.1995, Ex.PW1/X4 and pay order no.183/95 dated 24.02.1995, Ex.PW1/X5 and interalia deposed that he had gone alongwith his father to purchase the stamp paper used for execution of the tenancy agreement dated 31.01.1995, Ex.PW1/7; that despite the fact that the stamp paper used for the said agreement, has the date of purchase as 17.04.1995, the said agreement is not forged or fabricated; that the room and store room, retained by Late Sh. R. K. Mazumdar at House No. A 80, Chittranjan Park, New Delhi19 did not have a separate electricity connection; that the defendant no.1 used to render accounts of the payments made to DDA, on behalf of Late Sh. R. K. Mazumdar and he can produce the statement of account, given by the defendant no.1 to Late Sh. R. K. Mazumdar1; that before 08.11.2014, he had visited House No. A80, Chittranjan Park, New Delhi19, in 2010, but he was denied entry and arrears of rent; that he does not have the receipt book from which, the rent receipts, Ex.PW1/X1 to Ex.PW1/X4 were issued; that he does not possess the counter foil of the rent receipt, Ex.PW1/X3; that the rent receipt, Ex.PW1/X3 does not bear the signatures of Late Sh. R. K. Mazumdar; that the legal notice dated 13.11.1994, Ex.PW1/19 is a photocopy but it bears the original signatures of his father, Late Sh. R. K. Mazumdar; that it is wrong to suggest that the rent receipt, Ex.PW1/X1 and the legal notice dated 13.11.1994 are forged documents; that after the death of his father, Late Sh. R. K. Mazumdar, on 05.12.1998 and till issuance of legal notice dated 22.11.2014, Ex.PW1/20, he had not taken 1 The said document was ultimately never produced by PW1 Sh. Ashok Kumar Mazumdar.
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Page No.14 of 31any action in respect of House No. A80, Chittranjan Park, New Delhi19; that the rent receipts, Ex.PW1/X1 to Ex.PW1/X4 are in his handwriting; that rent receipt, Ex.PW1/X4 has his signatures because Late Sh. R. K. Mazumdar was asthmatic and he used to sign alongwith Late Sh. R. K. Mazumdar; that the rent receipts, Ex.PW1/X1 to Ex.PW1/X3 do not have his signatures; that the rent receipt, Ex.PW1/X3 was never issued to the defendant no.1; that the rent receipt, Ex.PW1/X4 was prepared for internal use at his residence and never given to the defendant no.1; that the pay order, Ex.PW1/X5 was prepared by Sh. B. K. Mitra, husband of the defendant no.1 and reflects rent for four months viz. November 1994 to February 1995; that the pay order, Ex.PW1/X5 has his handwriting from point X to X1 and that it is wrong to suggest that the rent receipts, Ex.PW1/X1 to Ex.PW1/X4 and the tenancy agreement dated 31.01.1995, Ex.PW1/7 are forged and fabricated documents. Despite grant of opportunity, the defendant no.3 had not cross examined PW1 Sh. Ashok Kumar Mazumdar.
12. During examination in chief, PW2 Sh. Dinesh Singh has tendered in evidence letter no.7247/DyDir(Vigilance 1/2014/RTI/859/1364344) dated 11.11.2014, Ex.PW2/1(OSR). During cross examination PW2 Sh. Dinesh Singh has deposed that he cannot say if the plaintiff had made any application or written any letter to DDA, before the RTI application dated 11.08.2014.
13. During examination in chief, PW3 Sh. Jaglal Mehto has tendered in evidence agreement dated 24.11.1969, Ex.PW3/1(OSR), Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.15 of 31allotment letter dated 01.07.1970, Ex.PW3/2(OSR), possession letter dated 24.11.1969, Ex.PW3/3(OSR) and mortgage permission letter dated 06.09.1991, Ex.PW3/4(OSR). Despite grant of opportunity, the defendants have not crossexamined PW3 Sh. Jaglal Mehto.
14. In order to prove her case qua this issue, the defendant no.1 had examined two witnesses viz. DW1 Smt. Ranjana Mitra and DW2 Sh. Subrata Debnath.
15. During examination in chief, the defendant no.1 viz. DW1 Smt. Ranjana Mitra has deposed substantially in line with her written statement and tendered in evidence agreement to sell dated 22.11.1994, Ex.DW1/1(OSR), general power of attorney dated 22.11.1994, Ex.DW1/2(OSR), property tax receipts, Ex.DW1/3(colly)(OSR)(two pages) and mutation of water connection no.38896 dated 05.05.2003, Ex.DW1/4(OSR). During cross examination, the defendant no.1 viz. DW1 Smt. Ranjana Mitra has interalia deposed that she was inducted as a tenant qua House No. A80, Chittranjan Park, New Delhi19 vide tenancy agreement dated 22.01.1992; that the tenancy agreement dated 31.01.1995, Ex.PW1/7 does not bear her signatures at point X and the signatures of her husband, Late Sh. B. K. Mitra, at point Y; that she has no knowledge if Late Sh. R. K. Mazumdar had taken a loan from LIC to built House No. A80, Chittranjan Park, New Delhi19; that she has knowledge that House No. A80, Chittranjan Park, New Delhi was a leasehold property and hypothecated with DDA, requiring payment of 264 installments to DDA; that there was an understanding between her Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.16 of 31husband, Late Sh. B. K. Mitra and Late Sh. R. K. Mazumdar that part of the rent would be paid to DDA and balance would be remitted to Late Sh. R. K. Mazumdar; that the receipts, Ex.PW1/12 and Ex.PW1/13 bear the signatures of her husband, Late Sh. B. K. Mitra at point X; that her son, Sh. Debjyoti Mitra was born, on 24.02.1979; that she has no knowledge if the loan clearance release certificate referred in clause 2 of page 3 of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) has been obtained or not; that she has no knowledge if the necessary permissions etc. referred in clause 3 of page 3 of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) were taken or not; that the payment of Rs.5,65,000/ was made to Late Sh. R.K. Mazumdar through a bank; that she has no knowledge if the balance sale consideration of Rs.3,35,000/, as referred in clause 1 and 2 of page 3 of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) was paid to the DDA or not and that she had received a legal notice but she cannot say with certainty if it was the legal notice dated 22.11.2014, Ex.PW1/15.
16. During examination in chief, DW2 Sh. Subrata Debnath has deposed that he had witnessed the execution of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) and the GPA dated 22.11.1994, Ex.DW1/2(OSR) and that he can identify the signatures of Late Sh. R. K. Mazumdar, Ms. Ranjana Mitra and Sh. Deepak Mitra on the said documents. During cross examination, DW2 Sh. Subrat Debnath has interalia deposed that he was 2425 old when he had witnessed the execution of the aforesaid documents; that he was explained the contents of the aforesaid documents, before he had witnessed their Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.17 of 31execution; that on 22.11.1994, Sh. Debjyoti Mitra was a minor and that it is wrong to suggest that the signatures of Late Sh. R. K. Mazumdar on the said documents are forged.
17. After examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because of multiple reasons.
18. Firstly, this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because the plea made by the Ld. Advocate for the defendant no.1, for the first time 1, during the hearing of final arguments, on 16.09.2019 and 21.09.2019 viz. that defendant no.1 is entitled to the benefit of Section 53A of the Transfer of Property Act, 1882 as the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) was coupled with part performance of the said agreement by Late Sh. R. K. Mazumdar, cannot be entertained in view of the law laid down by the Hon'ble Supreme Court in Shyam Narayan Prasad v Krishna Prasad & Ors., (2018) 7 SCC 646, regarding the manner in which, a defendant is 1 In her written statement, the defendant no.1 has nowhere pleaded that she is entitled to the benefit of Section 53A of the Transfer of Property Act, 1882 because upon execution of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR), she had taken possession of House No. A80, Chittranjan Park, New Delhi19, in part performance of the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR). Instead, the defendant no.1 has pleaded that upon execution the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) and GPA dated 22.11.1994, Ex.DW1/2(OSR), she and her son, Sh. Debjyoti Mitra had become the owners of House No. A80, Chittranjan Park, New Delhi
19. Also, a perusal of the Order dated 03.01.2017, reflects even that during the hearing of arguments on the application under Order XXXIX Rule 1 and 2 of CPC, 1908, the defendant no.1 had not sought benefit of Section 53A of the Transfer of Property Act, 1882.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.18 of 31expected to plead the defence of protection/benefit under Section 53A of the Transfer of Property Act, 1882. The exact observation made in the said judgment, is reproduced below: "The last contention of the learned counsel for the appellant is in relation to application of Section 53A of the TP Act. It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in partperformance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendantappellant to claim the benefit available under Section 53A of the TP Act."
19. Secondly, this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because even it is believed that this Court can entertain the aforesaid plea of the Ld. Advocate for the defendant no.1 qua grant of benefit of Section 53A of the Transfer of Property Act, 1882 to the defendant no.1, the evidence lead by the Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.19 of 31defendant no.1 in this regard, does not pass the muster of the law regarding Section 53A of the Transfer of Property Act, 1882, laid down by the Hon'ble Supreme Court in a recent judgment viz. H. K. Sharma v Ram Lal, (2019) 4 SCC 453. In the said judgment, the Hon'ble Supreme Court while dealing with similar facts and circumstances, has observed as under: "22. The question, which arises for consideration in these appeals, is when the lessor and the lessee enters into an agreement for sale/purchase of the tenanted premises where the lessor agrees to sell the tenanted premises to his lessee for consideration on certain conditions, whether, as a result of entering into such agreement, the jural relationship of lessor and the lessee in relation to the leased property comes to an end and, if so, whether it results in determination of the lease.
23. In other words, the question that arises for consideration is when the lessor enters into an agreement to sell the tenanted property to his lessee during the subsistence of the lease, whether execution of such agreement would ipso facto result in determination of the lease and sever the relationship of lessor and the lessee in relation to the leased property.
24. In our considered opinion, the aforementioned question has to be decided keeping in view the Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.20 of 31provisions of Section 111 of the TP Act and the intention of the parties to the leasewhether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement.
25. Chapter V of the TP Act deals with the leases of immovable property. This chapter consists of Section 105 to Section 117.
26. A lease of an immovable property is a contract between the lessor and the lease. Their rights are governed by Sections 105 to 117 of the TP Act read with the respective State rent laws enacted by the State. Section 111 of the TP Act deals with the determination of lease. Clauses (a) to (h) set out the grounds on which a lease of an immovable property can be determined. Clauses (e) and (f) with which we are concerned here provide that a lease can be determined by an express surrender; in case, the lessee yields up his interest under the lease to the lessor by mutual agreement between them whereas clause (f) provides that the lease can be determined by implied surrender.
27. This Court in Shah Mathuradas Maganlal & Co.
v. Nagappa Shankarappa Malage considered the Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.21 of 31scope of clauses (e) and (f) of Section 111 of the TP Act and laid down the following principle in para 19 as under: (SCC p 665) "19. A surrender under clauses (e) and
(f) of Section 111 of the Transfer of Property Act, is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor.
Relinquishment of possession operates Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.22 of 31as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact."
28. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined.
29. Perusal of agreement to sell dated 1351993 (Annexure P1) shows that though the agreement contains 9 conditions but none of the conditions provides, much less in specific terms, as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement dated 1351993 can be construed for holding that the parties intended to surrender the tenancy rights.
30. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement to sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providing a specific clause in the agreement. It Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.23 of 31was, however, not done. On the other hand, we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act."
In my view, the law laid down in the aforesaid judgment squarely applies to the facts and circumstances of this suit because the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) is completely silent regarding the fate of the undisputed tenancy, which existed between Late Sh. R. K. Mazumdar and the defendant no.1, as per the rent agreement dated 22.01.1992, Ex.PW1/8. In addition, in my view, the defendant no.1 cannot be granted benefit of Section 53A of the Transfer of Property Act, 1882 because in her written statement and during her evidence, the defendant no.1 (DW1 Smt. Ranjana Mitra) has nowhere claimed that she is willing to perform her balance part of the agreement to sell dated 22.11.1994, Ex. DW1/1(OSR) viz. payment of balance consideration of Rs. 3,35,000/, which admittedly, has not been done, till date. In this context, it is relevant to note that a literal reading of Section 53A of the Transfer of Property Act, 1882 reveals that its benefit can be granted only to that agreement purchaser, who has performed or is willing to perform, his/her part of the agreement to sell.
20. Thirdly, this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because the plea of the defendant no. 1 that upon execution of agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) and GPA dated 22.11.1994, Ex. DW1/2 Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.24 of 31(OSR) by Late Sh. R. K. Mazumdar, she and her son, Sh. Debjyoti Mitra had become the owners of House No. A80, Chittranjan Park, New Delhi19, is legally untenable, on account of the law laid down in Saroj Aggarwal v Mehar Singh & Ors., 2018 SCC Online Del 12022 and Jiwan Dass Rawal v Narain Dass & Ors., AIR 1981 Del 291. In Saroj Aggarwal v Mehar Singh & Ors., 2018 SCC Online Del 12022, the Hon'ble High Court of Delhi, relying upon Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2012) 1 SCC 656 has categorically held that there cannot be any transfer of title/ownership through agreement to sell, power of attorney etc. In Jiwan Dass Rawal v Narain Dass & Ors., AIR 1981 Del 291, the Hon'ble High Court of Delhi 1 has held that an agreement to sell does not confer any right, title or interest upon the agreement purchaser, except the right to seek specific performance of the agreement to sell.
21. Fourthly, this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because once the aforesaid mutually inconsistent pleas2 of the defendant no.1 are eliminated from consideration, the undisputed position that emerges is that even if the defendant no.1 was not reinducted as a tenant qua the tenanted premises by Late Sh. R.K. Mazumdar, vide tenancy agreement dated 1 The said judgment has been relied upon in Deewan Arora v Tara Devi Sen, (2009) SCC OnLine Del 3203 and ASV Industry v Surinder Mohan, (2013) SCC OnLine Del 240. 2 I have called the said pleas mutually inconsistent because in my view, just as pleas of 'lawful possession' and 'adverse possession' cannot coexit (re: para 32 of Manmohan Bedi v Rakesh Kumar Guria, 2018 SCC OnLine Del 9948), the pleas of 'ownership' and 'agreement purchaser entitled to benefit of Section 53A of the Transfer of Property Act, 1882', cannot coexist.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.25 of 3130.01.19951, the defendant no.1 had continued to be a tenant of Late Sh. R. K. Mazumdar, on the basis of undisputed tenancy, emanating from the tenancy agreement dated 22.11.1992, Ex.PW1/8, till the said tenancy was determined upon service of legal notice dated 22.11.2014, Ex.PW15(OSR), on the defendant no.1.
22. Fifthly, this issue is liable to be decided in favour of the plaintiff and against the defendant no.1 because by not expressly denying the service of legal notice dated 22.11.2014, Ex.PW15(OSR), in her written statement2 and during her crossexamination 3, the defendant no. 1 (DW1 Smt. Ranjana Mitra) has impliedly accepted the service of the said legal notice and consequent determination of her tenancy qua the tenanted premises and because even otherwise, the unchallenged testimony of the plaintiff viz. PW1 Sh. Ashok Kumar Mazumdar, supported by postal receipt, Ex. PW1/16, courier receipt, Ex. PW1/17, original refused AD cover, Ex.PW1/18 as well as the presumptions provided under Section 114(f) of the Evidence Act, 1872 and Section 27 of the General Clause Act, 1897 4 proves that defendant no.1 was duly 1 A comment regarding the genuineness of the tenancy agreement dated 30.01.1995, Ex. PW1/7, has been made in the parting paragraph of this judgment. 2 For the law regarding 'evasive denial', reference is craved to paragraphs 32 and 33 of the recent judgment of the Hon'ble High Court of Delhi in Ajit Gogna v Jitender Gogna, 2019 SCC OnLine 7517.
3 During her crossexamination, the defendant no.1 viz. DW1 Smt. Ranjana Mitra had deposed that she had received a legal notice, but she cannot say if it was legal notice dated 22.11.2014, Ex.PW1/15 (OSR). In my view, the said testimony of DW1 Smt Rajana Mitra coupled with her inability to produce the legal notice which was actually served upon her, probabalizes the version of the plaintiff that the defendant no.1 was served with the legal notice dated 22.11.2014, Ex. PW1/15 (OSR), through courier. 4 Re: Mention Adambhai Haji Ismail v Bhaiya Ramdas Badiudas and Ors, AIR 1975 Gujarat 54, Sukumar Guha, v Naresh Chandra Ghosh and Anr, AIR 1968 Cal 49, Ganga Ram, v Smi Phulwati, AIR 1970 Allahabad 446 and Om Parkash Bahal, v A. K. Shroff, AIR 1973 Del 79.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.26 of 31served/deemed served with the legal notice dated 22.11.2014, Ex. PW1/15(OSR) and her tenancy qua the tenanted premises had determined upon service of the said legal notice.
23. In view of the aforesaid five reasons, this issue is decided in favor the plaintiff and against the defendant no. 1. It is held that the plaintiff is entitled to recover from the defendant no.1, the possession of the tenanted premises viz. area of House No. A80, Chittranjan Park, New Delhi19, as shown in blue color in the site plan, Ex.PW1/1. 1 ISSUE NO.2
24. In view of (a) the aforesaid finding that the defendant no. 1 was a tenant qua the tenanted premises, till the determination of her tenancy qua the tenanted premises by service of legal notice dated 22.11.2014, Ex.PW15(OSR) and in view of (b) the fact that there is no dispute between the parties qua non payment of rent by the defendant no.1, at the last admitted rate of Rs.4500/ per month (re: the handwritten agreement on the bottom of page 2 of the tenancy agreement dated 22.01.1994, Ex.PW1/8) to the plaintiff, for the period, 1.08.2014 to 31.01.2015, this issue is partly decided in favor of the plaintiff and against the defendant no.1. It is held that the plaintiff is entitled to recover from the defendant no.1, a sum of Rs.27,000/, in 1 At this stage, it is relevant to point that in order to clarify his claim qua relief of possession, the plaintiff had filed an application under Order XXIII Rule 1 of CPC, 1908 of CPC, 1908, on 12.07.2019, expressly abandoning the claim of possession qua the area shown in red color in the site plan, Ex.PW1/1. The said application which was inadvertently not allowed earlier, stands allowed, in view of the aforesaid finding.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.27 of 31respect of arrears of rent for the period, 1.08.2014 to 31.01.2015 along with interest at the rate of 12% per annum.1 ISSUE NO.3
25. In view of (a) the aforesaid finding that upon determination of her tenancy by service of legal notice dated 22.11.2014, Ex.PW15(OSR), the defendant no.1 had become liable to hand over the possession of the tenanted premises to the plaintiff, w.e.f. 01.02.2015 and in view of (b) the failure of the plaintiff to lead any evidence regarding grant of mesne profits/damages, at the rate of Rs.25,000/, this issue is decided, as per the law laid down in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105, State Bank of India v Dr. Meena Luthra & Ors., 2017 SCC OnLine Del 9513 and M/s Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776 2. It is held that the plaintiff shall be entitled to recover from the defendant no.1 mesne profits/damages at the rate of Rs.5175/ per month for the period, 01.02.2015 to 31.01.2016, mesne profits/damages at the rate of Rs.5951/ per month for the period, 01.02.2016 to 31.01.2017, mesne profits/damages at the rate of Rs.6828/ per month for the period, 01.02.2017 to 31.01.2018, mesne profits/damages at the rate of 1 The plaintiff has been granted interest at the rate of 12% per annum because the plaintiff has not lead any evidence to justify the claim of grant of interest at the rate of 18% per annum and because in my view in the facts and circumstances presented by this suit, the ends of justice would be met, if the plaintiff is granted interest at the rate of 12% per annum.
2 In the said judgments, it has been held by the Hon'ble High Court of Delhi that in cases where no evidence is lead by the parties regarding the claim of mesne profits/damages, the Courts can ordinarily grant mesne profits/damages with 15% annual increase in the admitted/proved rent.
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.28 of 31Rs.7852/ per month for the period, 01.02.2018 to 31.01.2019 and mesne profits/damages at the rate of Rs.9029/ per month for the period, 01.02.2019 till the handing over of the tenanted premises by the defendant no.1, to the plaintiff, alongwith interest at the rate of 12% per annum.
ISSUE NO.4
26. In view of the findings given qua the aforesaid issues, this issue is decided in favour of the plaintiff and against the defendant no.1. It is held that the plaintiff shall be entitled to recover from the defendant no.1, the costs of this suit, as permissible under the Delhi High Court Rules and Orders.
RELIEF
27. As a net result of the aforesaid findings qua the issues framed in this suit, on 08.09.2017, this suit is decreed in favour of the plaintiff and against the defendant no.1. It is held that the plaintiff is entitled to recover from the defendant no.1, (a) possession of the tenanted premises viz. area of House No. A80, Chittranjan Park, New Delhi19, as shown in blue color in the site plan, Ex.PW1/1; (b) arrears of rent for the period 01.08.2014 to 31.01.2015, amounting to Rs.27,000/ alongwith interest at the rate of 12% per annum; (c) mesne profits/damages at the rate of Rs.5175/ per month for the period, 01.02.2015 to 31.01.2016, mesne profits/damages at the rate of Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.29 of 31Rs.5951/ per month for the period, 01.02.2016 to 31.01.2017, mesne profits/damages at the rate of Rs.6828/ per month for the period, 01.02.2017 to 31.01.2018, mesne profits/damages at the rate of Rs.7852/ per month for the period, 01.02.2018 to 31.01.2019 and mesne profits/damages at the rate of Rs.9029/ per month for the period, 01.02.2019 till the handing over of the tenanted premises by the defendant no.1, to the plaintiff, alongwith interest at the rate of 12% per annum and (d) costs of this suit.
28. Before parting with this judgment, it is clarified (a) that in this judgment, the dispute between the plaintiff and the defendants no.2 to 5 has not been adjudicated upon because in the replication qua the written statement of the defendant no.1, the plaintiff has admitted that upon the death of Late Sh. R. K. Mazumdar, on 05.12.1998, the plaintiff and the defendants no.2 to 5 had become joint landlords qua the tenanted premises, because the plaintiff has been granted the reliefs, sought by way of this suit, as a nominee/representative of the defendants no.2 to 5 and because the dispute, if any, between the plaintiff and the defendants no.2 to 5, in respect of House No. A80, Chittranjan Park, New Delhi19, can be resolved only by way of a suit for partition; (b) that in my view, the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) and the GPA dated 22.11.1994, Ex.DW1/2(OSR) are genuine documents because they appear to have genuine signatures of Late Sh. R. K. Mazumdar and because their execution has been duly proved by DW2 Sh. Subrata Debnath; (c) that in my view, the tenancy agreement dated 31.01.1995, is an unreliable document because it does not appear to have the genuine signatures of Late Sh. R. K. Mazumdar or the defendant no.1, Civil Suit No. 50607/16 Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
Page No.30 of 31Smt. Ranjana Mitra1; (d) that in my view, the rent receipts, Ex.PW1/X1 to Ex.PW1/X4 are irrelevant for deciding this suit; (e) that in my view, the claim of the plaintiff that Late Sh. R. K. Mazumdar had retained one room and one store room, in House No. A80, Chittranjan Park, New Delhi19 stands proved on account of recital in the tenancy agreement dated 22.01.1992, Ex.PW1/8; (f) that in my view, on account of the law laid down in G. P. Sharma v Hari Shankar Sharma, (2014) SCC OnLine Del 1042, the agreement to sell dated 22.11.1994, Ex.DW1/1(OSR) cannot be said to be hit by the law laid down in Sections 24, 25 and 29 of the Contract Act, 1872 and (g) that the interest awarded to the plaintiff shall be calculated as per the formula given in the judgment of the Hon'ble High Court of Delhi in M/s. Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776.
29. The Reader shall prepare the decree sheet as per this judgment, after supply of additional courtfees by the plaintiff. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. Digitally signed JAY by JAY THAREJA THAREJA Date: 2019.10.01 17:15:25 +0530 Announced in the Open Court (Jay Thareja) On 01.10.2019 JSCC/ASCJ/GJ SOUTHEAST DISTRICT Saket Courts/Delhi 1 The opinion qua the signatures on the said documents, has been expressed, in view of the judgment of the Hon'ble High Court of Delhi in Rajinder Bajaj v The Indian Tanning Industries & Ors., 2008 (100) DRJ 534 (DB).
Civil Suit No. 50607/16Ashok Kumar Mazumdar v Ranjana Mitra & Ors.
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