Delhi District Court
Sh. Kushal Chand Garg vs Suit No. 1634/16 Sh. Kushal Chand Garg & ... on 24 April, 2019
IN THE COURT OF MS. SHUCHI LALER: ADDITIONAL
DISTRICT JUDGE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
Suit No. : 1634/16
In the matter of :
1. Sh. Kushal Chand Garg,
S/o Late Sh. M.L. Garg,
President of Shiv Shakti Sansthan (Regd.)
R/o 1/4, Lalita Park, Laxmi Nagar,
Delhi - 110092.
2. Sh. Raj Kishore Khurana
S/o Late Sh. R.L. Khurana,
General Secretary of Shiv Shakti
Sansthan (Regd.)
R/o 9/353, Lalita Park, Laxmi Nagar,
Delhi - 110092.
3. Sh. Som Dutt Chahal
S/o Sh. B.S. Chahal,
Vice President of Shiv Shakti
Sansthan (Regd.)
R/o 12/437, Lalita Park, Laxmi Nagar,
Delhi - 110092. ..... Plaintiff
Versus
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 1 of 44
Sh. Dalip Kumar Gupta
S/o Sh. Babu Ram Gupta,
At shop at ground floor in
Property No. 3/130, Lalita Park,
Laxmi Nagar, Delhi - 110092 ..... Defendant
Date of institution of the suit : 05.03.2015
Final Arguments Heard on : 18.03.2019
Date of Judgment : 24.04.2019
Suit for recovery of possession and damages.
JUDGMENT :
1. The present is a suit for recovery of possession and damages filed by President, General Secretary and Vice President of Shiv Shakti Sansthan Trust against the defendant.
PLAINT
2. Brief narration of the facts as disclosed, in the plaint, is as under : 2.1 That Shiv Shakti Sansthan is a trust registered under the provisions of Indian Trust Act, 1882 having its office at 7/287, Lalita Park, Laxmi Nagar, Delhi 110 092. The trust is Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 2 of 44 the absolute owner of property bearing no. 3/130, Lalita Park, Laxmi Nagar, New Delhi, ad measuring 110 sq. yards (hereinafter referred to as property in question). 2.2 That the trust acquired the property in question by virtue of sale deed dated 20.11.2014 executed by Sh. Puran Singh Kainth for a valuable consideration of Rs.48 lakhs and an additional sale consideration of Rs. 10 lakhs was paid for furniture, fixtures and fittings.
2.3 That at the time of execution of sale deed, the trust was placed in actual, physical possession of property in question except shop no. 4 (ad measuring 8ft. X 10 ft.) at ground floor and a small portion of first floor comprising of 4 rooms, toilet etc. (hereinafter referred to as suit property) and the same are in possession of the defendant. 2.4 That the defendant is a tenant in respect of shop no. 4 at monthly rent of Rs.3,600/ by virtue of Rent Deed dated 02.03.2010 executed between erstwhile owner Sh. Puran Singh Kainth and defendant. After execution of sale deed dated 20.11.2014, Sh. Puran Singh Kainth issued a letter to defendant to attorn the trust as his landlord and all the past and future rents were payable to trust.
2.5 That the erstwhile owner, Sh. Puran Singh Kainth Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 3 of 44 was residing abroad, so he allowed the defendant to use a small portion of first floor of property in question as a caretaker. The defendant initially paid rent for 3 months, thereafter, he stopped paying the rent from July, 2010 and has been using the suit shop without paying even a single penny. 2.6 That the trust requested the defendant to vacate suit property and surrender the tenancy of the suit shop, however, the defendant became dishonest and started claiming himself to be the owner of suit property and threatened the trust officials with dire consequences. 2.7 That the defendant is liable to pay a sum of Rs.1,29,600/ as arrears of rent with respect to suit shop and Rs.10,000/ per month as use and occupation charges with respect to first floor of suit property w.e.f. 22.11.2014 till filing of the suit. The trust is also entitled to mesne profits / damages @ Rs.15,000/ for use and occupation of suit shop and Rs.10,000/ per month for first floor of property in question.
Hence, the present suit.
WRITTEN STATEMENT
3. Defendant has contested the present suit by filing a detailed written statement wherein he has taken preliminary Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 4 of 44 objections such as suit has been filed without any cause of action and the suit is beyond pecuniary jurisdiction of this court as plaintiff has not valued the suit property as per market value. The averments to the contrary are as under: 3.1 That the defendant came to Delhi in the year 1997 and started doing job in the company of Sh. Puran Singh Kainth. The relations of defendant and Sh. Puran Singh Kainth were friendly and Sh. Puran Singh Kainth was in need of money in January, 2000, thus, it was agreed in the presence of Sh. Hari Ram Gupta, Sh. Ram Raj Gupta and Sh. Hanuman that property in question would be sold to defendant for a total consideration Rs.18 lakhs which was to be paid in installments. 3.2 That the defendant is in peaceful, uninterrupted possession of the suit property since 15.01.2000. The defendant paid the sale consideration amount to Sh. Puran Singh Kainth till the year 2014, but, due to collapse of building in Lalita Park area, the registration of properties in the said area was stopped by Delhi Government.
3.3 That the defendant used to pay money in installments to Sh. Puran Singh Kainth on his visits to Delhi. Sometimes defendant paid Rs. 1 lakhs and sometimes paid Rs. 50,000/ as per requirement of Sh. Puran Singh Kainth. Till January, 2010, the defendant had paid Rs.8 lakhs in Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 5 of 44 installments out of the total sale consideration of Rs.18 lakhs on his visits to Delhi, however, no receipt was issued by Sh. Puran Singh Kainth.
3.4 That on 01.02.2010, the defendant paid an amount of Rs. 10 lakhs in cash to Sh. Puran Singh Kainth in the presence of witnesses and on 02.03.2010, after receiving total sale consideration, Sh. Puran Singh Kainth took the defendant to the Registrar Office at Shastri Nagar and obtained his signatures on some documents stating it to be sale deed. Suddenly, Sh. Puran Singh Kainth stated that the registry of property of Lalita Park has stopped and he wants to re evaluate the sale consideration price.
3.5 That Sh. Puran Singh Kainth became dishonest and started demanding amount of Rs. 60 lakhs from the defendant. Thereafter, a meeting was held in the presence of relatives and it was agreed that the sale consideration amount of the property would be Rs. 40 lakhs and defendant agreed to pay remaining amount of Rs. 22 lakhs in installments to Sh. Puran Singh Kainth by 2014.
3.6 That the defendant paid the amount to Sh. Puran Singh Kainth as and when he visited Delhi and at times the amount was paid through Sh. Narender Singh, Mr. Laxmi Kant, Sh. Tarun, Sh. Santosh and Sh. Som Chatterjee at the Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 6 of 44 instructions of Sh. P.S. Kainth. Certain amount was also adjusted against the goods purchased by Sh. P.S. Kainth against invoices from the defendant.
3.7 That the defendant paid a sum of Rs. 38 lakhs to Sh. Puran Singh Kainth leaving behind balance of Rs. 2 lakhs. Sh. Puran Singh Kainth assured the defendant that he would execute the sale deed as and when registration of property of Lalita Park area is permitted.
3.8 That the gunda elements threatened the defendant on 15.04.2014 and the defendant also saw the hoarding of the trust so he filed a suit for cancellation, declaration, permanent and mandatory injunction against Sh. P.S. Kainth which was withdrawn. The defendant tried to contact Sh. P.S. Kainth, however, he avoided.
Remaining material averments of the plaint have been denied and the defendant prayed for dismissal of the present suit with heavy cost.
REPLICAITON
4. Replication to WS of defendant has been filed wherein the plaintiffs have denied the allegations to the contrary and have reiterated and reaffirmed the averments Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 7 of 44 made in the plaint.
ISSUES
5. Issues were struck by Ld. Predecessor on 04.11.2015 which are as under :
(i). Whether the present suit has been filed by the plaintiff without any cause of action ? OPD
(ii). Whether the suit is beyond the pecuniary jurisdiction of this court ? OPD
(iii). Whether the plaintiff has not valued the suit property as per the market valuation and has malafidely assessed the value of the suit ? OPD
(iv). Whether the plaintiff is entitled for recovery of possession ? OPP
(v). Whether the plaintiff is entitled for mesne profits and damages as claimed in the suit ? OPP
(vi). Whether the defendant is owner of the suit property as claimed by the defendant ? OPD
(vii). Relief.
Parties were directed to lead evidence.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 8 of 44 PLAINTIFF'S EVIDENCE
6. In support of their case, plaintiff no. 1 / Sh. Kushal Chand Garg stepped into witness box as PW1 and tendered his evidence by way of affidavit, which is Ex.PW1/A. He has relied upon the following documents:
1. Site Plan as Ex PW1/1;
2. Copy of Sale Deed as Ex PW1/2 (OSR);
3. Photographs as Mark C;
4. Copy of FIR as Ex PW1/4;
5. Copy of Resolution dated 02/03/2015 as Mark D;
6. Copy of Resolution dated 27/03/2015 as Ex PW1/6;
Another tenant Sh. Naresh Kumar was examined as PW4 who tendered his evidence by way of affidavit Ex PW 4/A and relied upon the documents i.e. Rent Agreement dated 20/04/2011 Ex PW4/1 and Electricity bill Ex PW4/2;
The sub tenant / Sh. Chotey Lal Gupta appeared as PW5 and tendered his evidence by way of affidavit as Ex PW5/A. He has relied upon the telephone bill dated 13/03/2014 Mark A. PW1, PW4 and PW5 were duly crossexamined by ld. counsel for the defendant. Though, the affidavit of plaintiff no. 2 / PW2 and plaintiff no. 3 / PW3 was tendered in Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 9 of 44 evidence but they did not appear for cross examination. After conclusion of cross examination of PW1, PW4 and PW5, plaintiffs closed their evidence.
DEFENDANT'S EVIDENCE
7. In rebuttal, the defendant has examined two witnesses. The defendant / Sh. Dalip Kumar Gupta stepped into the witness box as DW1 and tendered his evidence by way of affidavit which is Ex.DW1/A. He has relied upon the following documents: Copy of Site Plan as Mark A;
Copy of Voter I Card as Ex DW1/1 (OSR);
Copy of Ration Card as Ex DW1/2 (OSR);
Receipt issued by MCD dated 24.06.2007 as
Ex DW1/3 (OSR);
Bank Passbook of Karnataka Bank Ltd. as
Ex DW1/4;
Carbon Copy of Receipt as Ex.DW1/5;
Copy of letter dated 15.11.2011 as Mark B;
Visiting Card as Ex.DW1/6;
Receipts of Bharat Gas Kitchen Care as Ex.DW1/7
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 10 of 44 (colly);
Photographs as Ex.DW1/8 (colly) The brother of defendant / Sh. Lalman appeared as DW2 and tendered his evidence by way of affidavit as Ex.DW2/A. He relied upon two documents i.e. Original Passport as Ex.DW2/1 and Bank Passbook as Ex.DW2/2.
Both these witnesses were crossexamined by ld. counsel for plaintiffs. Thereafter, defendant closed his evidence.
FINAL ARGUMENTS
8. Rival submissions advanced at bar have been heard and record perused. Written submissions have been filed by both the parties and the same have been perused.
JUDICIAL RESOLUTION
9. Issuewise findings are as under :
Issue No. (i). Whether the present suit has been filed by the plaintiff without any cause of action ? OPD
10. The onus to prove the said issue was upon Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 11 of 44 the defendant. The defendant, in para no. 1 of the written statement, has alleged that the present suit is without any cause of action. A meaningful reading of the plaint in toto reveals that it does disclose the material facts giving rise to a cause of action, which can be entertained by a civil court. The expression "cause of action" is defined in Mulla's Code of Civil Procedure as under:
"The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court".
In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendants.
11. The plaintiffs have averred that Shiv Shakhti Sansthan has purchased the property in question from Sh. P.S. Kainth who had inducted the defendant as a tenant in a shop on ground floor and as a licensee in the first floor portion of property in question. It has been alleged that the defendant has failed to vacate the suit property despite repeated requests. A perusal of plaint reveals that the plaintiffs have pleaded all the facts essential in a suit for possession and damages/mesne profits. Therefore, the plaint does disclose a subsisting and Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 12 of 44 valid cause of action.
Issue no. (i) is decided in favour of the plaintiffs and against the defendant.
Issue No.(ii). Whether the suit is beyond the pecuniary jurisdiction of this court ? OPD Issue No. (iii). Whether the plaintiff has not valued the suit property as per the market valuation and has malafidely assessed the value of the suit ? OPD
12. Both these issues are taken up together as they are interconnected and can be disposed off by way of a common discussion. The defendant, in para no. 1 of written statement, has alleged that the plaintiffs have mala fidely assessed the market value of the suit property as Rs.3,25,800/, whereas, the market value of the shop is not less than Rs. 40 lakhs and the market value of the first floor portion of the suit property is Rs.52,08,614/ approximately. No report of any valuer has been filed on record nor any competent witness on valuation aspect has been examined by the defendant.
13. The plaintiff is at liberty to value his suit as per the averments made in the plaint. The plaintiffs have filed the Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 13 of 44 present suit for recovery of possession against the defendant on the ground that he was a tenant in the shop on ground floor and he was a licensee / caretaker of the first floor portion. Section 7 of the Court Fees Act lays down the rules for determination of court fees payable in any suit.
14. The plaintiffs have sought recovery of possession of a shop at ground floor and of first floor portion comprising of 4 rooms, kitchen, toilet etc. For the relief of recovery of possession of shop on ground floor, the plaintiffs had to value the suit according the amount of annual rent as the defendant is alleged to be a tenant therein. Section 7 (xi) (cc) of the Court Fees Act, 1870 provides that in a suit between landlord and tenant for recovery of immovable property from a tenant, the suit has to be valued according to the amount of rent of an immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.
15. The court fees for recovery of possession of immovable property from a tenant would be the annual rent payable. The rent of the suit property as mentioned in the plaint and in the rent agreement Mark B is Rs.3,600/ per month, hence, the suit for possession qua the shop had to be valued for Rs. 43,200/ i.e. Rs. 3,600X12 months.
16. The plaintiff has also sought recovery of portion of Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 14 of 44 first floor wherein the defendant is alleged to be a licensee. The suit of the plaintiff for recovery of first floor portion falls under section 7 (iv)(d) of Court Fees Act, 1870. A suit for mandatory injunction for recovery of possession by a licensor against his licensee is maintainable.1 The plaintiff was not required to value the suit at the market value of the suit property. The plaintiff could have sought the relief of mandatory injunction at Rs.130/ and could have affixed a court fees of Rs.13/ on the same.2
17. The plaintiff for recovery of possession of suit shop and of first floor portion had to cumulatively value the suit at Rs.43,330/ (i.e. Rs.43,200/ for shop + Rs.130/ for first floor portion), whereas, the plaintiff has valued the suit for recovery of possession at Rs.1,63,200/ and has paid court fees in excess.
18. The plaintiff was not required to value the suit for recovery of possession at market value of the suit property but the plaintiff had to value the suit in terms of Section 7 (xi) (cc) and Section 7 (iv) (d) of Court Fees Act, 1870. Hence, it is held 1 Reference may be made to the judgment titled as Jagdish v. Brij Lal, 2006 (4) RCR (Civil) 777, Puran Mal Modi v. Rajasthan Investors Pvt. Ltd., 2005 (2) RCR (Civil) 490, Sh. Rathpavarmaraja v. Smt. Vimla, AIR 1961 SC 129, Conrad Dias of Bombay v. Joseph Dias of Bombay, AIR 1995 Bomb. 2010.
2 Reliance is placed upon the judgment titled as Sunil Sharma & Anr. Vs. Smt. Uma Sharma RSA No. 166 / 2012 decided on 14.03.2014 and Puneet Chadda Vs. B.P. Chadda reported in CRP 152 / 2009 decided on 01.12.2009.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 15 of 44 that the suit has been properly valued for the purpose of court fees and jurisdiction and this court has the pecuniary jurisdiction to try and entertain the present suit.
Issue no. (ii) and (iii) are decided in favour of the plaintiffs and against the defendant.
Issue No. (iv). Whether the plaintiff is entitled for recovery of possession ? OPP
19. The onus to prove the said issue is upon the plaintiffs. The case of the plaintiffs is that Shiv Shakti Sansthan Trust purchased the property in question from Sh. Puran Singh Kainth vide registered sale deed dated 20.11.2014 Ex.PW1/2. The defendant was inducted as a tenant in a shop on ground floor at monthly rent of Rs.3,600/ by erstwhile owner Sh. P.S. Kainth by virtue of rent agreement dated 02.03.2010 Mark B. The plaintiffs have also averred that Sh. P.S. Kainth had permitted defendant to use first floor of property in question as its caretaker. It has been alleged that the tenancy of defendant has terminated and his license has been revoked, but defendant is illegally occupying the suit property.
20. The defendant, per contra, claimed that an oral agreement to sell with respect to property in question was executed with Sh. Puran Singh Kainth in the year 2000 and defendant has already paid a sum of Rs.38,00,000/ in cash to Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 16 of 44 Sh. P.S. Kainth. Only a balance of Rs.2 lakhs was remaining in the year 2014 but Sh. P.S. Kanth failed to execute the sale deed in his favour.
21. The pivotal question involved in the present suit is to ascertain the nature of possession of defendant with respect to the suit property. The plaintiff has claimed the defendant to be a tenant in shop at ground floor and a license with respect to first floor portion. A careful and meaningful reading of WS in toto reveals that the defendant has put forth the defence of part performance for retention of possession.
22. Taking into consideration the facts of the case and the rival submissions, the court is of the opinion that the following points for determination arise in the instant matter: Point No. (i) Whether the defendant is entitled to retain possession of the suit property by invoking the doctrine of part performance?
Point No. (ii) Whether the defendant is a tenant of plaintiff with respect to shop on ground floor and his tenancy stands duly terminated?
Point No. (iii) Whether the defendant is a licensee in the first floor portion and his license has been validly revoked?
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 17 of 44 Now, the court would take up these points in seriatim.
22.1 Point No. (i) Whether the defendant is entitled to retain possession of the suit property by invoking the doctrine of part performance? 22.1.1 The defendant, in his written statement, has claimed that an agreement had taken place on 15.01.2000 with Sh. P.S. Kainth whereby it was agreed that property in question would be sold to defendant for Rs. 18 lakhs. Subsequently, in a meeting, the sale consideration amount was enhanced to Rs. 40 lakhs out of which defendant paid Rs. 38 lakhs in cash and only a balance amount of Rs. 2 lakhs remains unpaid but erstwhile owner Sh. Puran Singh Kainth turned dishonest and has not executed sale deed in his favour. The erstwhile owner Sh. Puran Singh Kainth, in his written statement, filed in another matter between the same parties bearing no. 2138/16 has denied any such oral agreement to sell with defendant.
22.1.2 It is an admitted case of the parties that no title document with respect to the suit property has been executed by the erstwhile owner Sh P.S. Kainth in favour of the defendant till date. The defendant is claiming that on the basis Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 18 of 44 of oral agreement to sell of January, 2000, the defendant along with his family members occupied the suit property in the capacity of prospective purchaser. Thus, the defendant intends to protect his possession by invoking the doctrine of part performance as enunciated in Section 53A of Transfer of Property Act.
22.1.3 The doctrine of part performance furnishes a statutory defense to a person who has no registered title deed in his favour to protect his possession provided the essential conditions contemplated by Section 53A are fulfilled. The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act have been culled out by Hon'ble Supreme Court in Sharimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi AIR 2002 S.C. 960 which are as under: (I) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in partperformance of the contract take possession of the property, or of any part thereof;
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 19 of 44 (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract".
22.1.4 Thus, one of the perrequisites of Section 53A is the existence of a written agreement evidencing the terms of the contract. In the instant case, admittedly, the alleged Agreement executed in January,2000 has not been reduced to writing. The contract in writing is a sine qua non for applicability of the doctrine of part performance. 22.1.5 There is no written agreement evidencing the terms of contract whereby Sh. P.S. Kainth had agreed to execute the title documents qua the property in question in favour of the defendant and the defendant, in part performance of the contract, had taken possession of the suit property. In the absence of any such contract in writing, the defendant cannot be allowed to raise the plea of part performance. The equitable doctrine of part performance as embodied in Section 53A is inapplicable to the present case and the defendant cannot use it as a shield to defend his possession.
22.1.6 Even otherwise, on the touchstone of pre pondrence of probabilities, the defence of oral agreement to sale appears to be false and concocted for the following Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 20 of 44 manifold reasons: (A) The defendant did not examine the erstwhile owner Sh. P.S. Kainth to show that there was an oral agreement to sale executed with respect to property in question between him and Sh. P.S. Kainth and in compliance of the said agreement, the defendant paid an amount of Rs. 38 lakhs to Sh. P.S. Kainth. (B) The defendant has claimed that Sh. P.S. Kainth was in great need of money to pay off his debts in the market so he induced the defendant to purchase the property in question. The agreed sale consideration amount of Rs.18 lakhs was to be paid in installments. When Sh. P.S. Kainth was in dire need of money, no reason is forthcoming as to why he agreed to accept the sale consideration amount in installments and not in lump sum or within a fixed period of 6 months or 1 year. The amount of installment which was fixed has not been specified. The defendant, as per his own convenience, made payment by way of installment of Rs.1 lakh in cash or Rs.50,000/ in cash. The alleged agreement for sale was executed in January, 2000 and the payment of sale consideration amount continued till 2 nd March, 2010. It is inconceivable that a person, who was in dire need of money, would agree to dispose off his immovable property for sale consideration to be paid in future that too after a decade.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 21 of 44 (C) The defendant has not examined a single independent witness to prove the execution of any such oral agreement between Sh. P.S. Kainth and him. In para no. 2 (v) of written statement, the defendant has disclosed that the oral agreement to sell was executed in the presence of witnesses, namely, Sh. Hari Ram Gupta, Sh. Ram Raj Gupta and Sh. Hanuman. The para no. 2 (v) of written statement reads as under: "v. That it was agreed between the defendant and Sh. Puran Singh Kainth that the suit property will be sold out to the defendant for a total sale consideration of Rs. 18,00,000/ (Rupees Eighteen Lacs Only) to be paid in installments in the presence of the witnesses namely Sh. Hari Ram Gupta R/o - Vill & Post - Nagar Bazaar, Distt - Basti, U.P. Sh. Ram Raj Gupta S/o Sh. Ganga Ram Gupta R/o Vill. & Post - Pachvas, Distt. Basti, U.P., Sh. Hanuman S/o Sh. Babu Ram Gupta and others."
Though, the defendant has disclosed the name of independent witnesses in whose presence the alleged oral agreement to sell was executed, he has not preferred to examine any of them in the instant matter. To prove the execution of oral agreement to sell, all that is there on record is Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 22 of 44 the self serving testimony of defendant/DW1 and his brother/DW2 which would not suffice.
(D) No document much less a bank instrument evidencing the payment of huge amount of Rs.38 lakhs by the defendant to Sh. P.S. Kainth has been placed on record. The defendant/DW1 admitted, in his cross examination, that he has no such document. The relevant extract of cross examination of DW1 is as under: ".....It is correct that I have not filed any receipt or any other documents to show that any payment regarding purchasing of the suit property has been made by me to Sh. Puran Singh Kainth. It is wrong to suggest that since no payment was ever made to Sh. Puran Singh Kainth and due to this reason I have not placed any document on record even in the suit filed by me....... ...... It is correct that according to the bank passbook, no amount had been transferred in favour of Sh. P.S. Kainth....."
The defendant, in para no.2 (xiii) of written statement has stated that he had paid Rs. 10 lakhs in cash to Sh. Puran Singh Kainth in the presence of witnesses whom the defendant can produce before this court. Even in para no. 2 (xvi) of written statement, the defendant has stated that some times the amount was paid to Sh. Puran Singh Kainth through Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 23 of 44 Sh. Narender Singh, Sh. Laxmi Kant, Sh. Tarun, Sh. Santosh and Sh. Som Chatterjee. Despite these averments, the aforesaid persons or any other witness in whose presence the alleged cash payment was paid to Sh. Puran Singh Kainth has not been examined by the defendant. Certain sale consideration amount is stated to have been adjusted against goods supplied to Sh. P.S. Kainth by defendant vide invoices, however, said invoices have not been filed on record. Moreover, there is no mention of the specific dates or months when the payment of Rs.38 lakhs was made in installments by the defendant to Sh. Puran Singh Kainth. No prudent person would make payment of huge amount of Rs.38 lakhs in cash without insisting upon execution of any document in writing. The defendant's story seems highly improbable. (E) The relationship between defendant and Sh. P.S. Kainth became strained and the sale consideration amount was subsequently enhanced to Rs.40 lakhs, thus, to contend that thereafter, the defendant paid Rs.22 lakhs to Sh. P.S. Kainth without insisting upon any documentary evidence is totally unbelievable. The defendant, in para no. 2 (xv) has averred that Sh. P.S. Kainth had become dishonest and started demanding Rs.60 lakhs as total sale consideration, thereafter, a meeting was held in the presence of near and dear relatives Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 24 of 44 and total sale consideration was agreed to be Rs.40 lakhs. As per the own averment of defendant, Sh. P.S. Kainth became dishonest so the defendant had no reason to once again repose faith in Sh. P.S. Kainth of such an extent so as to make payment of hefty amount of Rs.20 lakhs in cash without any receipt or document.
(F) The defendant once had an experience with Sh. P.S. Kainth where despite receiving total sale consideration amount of Rs. 18 lakhs, Sh. P.S. Kainth did not execute sale deed in his favour. It is not within the realm of reality that despite such an experience, any prudent person would again enter into another oral agreement to sell and would also agree to enhancement of sale consideration amount without execution of any document in writing. In common parlance whenever there is an agreement to buy an immovable property, the transaction is written and is executed by both the parties. In such sale transactions, no party (particularly the purchaser who is parting with his hard earned money), would enter into an oral agreement, and if a party does so, it does so at its own risk and peril. The result would be, that it would be very difficult to prove the oral agreement before the court of law, and the party who relies upon such an oral agreement, in all probability, would fail.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 25 of 44 (G) The alleged oral agreement was executed in the year 2000 and as per defendant's own case, Sh. P.S. Kainth became dishonest in the year 2010, still the defendant did not pefer to file the suit for specific performance. The first suit has been filed by the defendant against Sh. P.S. Kainth for declaration, cancellation, permanent and mandatory injunction as late as 20.05.2014. The defendant filed the suit for specific performance in January, 2016. Had there been any oral agreement in the year 2000 and the defendant parted with an amount of Rs.38 lakhs, he would have been diligent in pursuing his remedy against Sh. P.S. Kainth which is not so. It is inconceivable that a party would neglect his interest to an immovable property situated in Delhi and not make efforts to safeguard his rights at the earliest possible opportunity. 22.1.7 Keeping in view the foregoing reasons and discussion, the court is of the opinion that the defendant's story regarding an oral agreement to sell is palpably false and is an after thought. Presuming that an oral agreement to sale did take place between the defendant and Sh. P.S. Kainth, the appropriate remedy for the defendant is to seek recovery of the amount paid or specific performance, but, the defendant cannot retain the possession of the suit property as the defence of part performance does not protect him.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 26 of 44 22.2 Point No. (ii) Whether the defendant is a tenant of plaintiff with respect to shop on ground floor and his tenancy stands duly terminated?
22.2.1 The plaintiffs have alleged that the defendant was inducted as a tenant by Sh. P.S. Kainth in a shop on ground floor vide rent agreement dated 02.03.2010 Mark B and his tenancy has been terminated. The defendant has denied his status to be that of a tenant. In a suit for ejectment, the plaintiff has to prove the following :
(a) The existence of landlord and tenant relationship.
(b) The rent was more than Rs.3,500/ per month i.e. the tenancy was beyond the ambit of the Delhi Rent Control Act.
(c) The tenancy has been validly terminated.
22.2.2 The execution of rent agreement dated 02.03.2010 Mark B between the parties stands admitted as the defendant / DW1 has admitted that the rent agreement Mark B bears his signature and thumb impression at point A. The relevant portion of cross examination of DW1 is as under: "....... It is correct that rent deed, Mark B, bears my signature in English at point A and my thumb impression at point A on three pages. It is correct that period in the Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 27 of 44 rent deed has been mentioned 11 months only i.e. from 02.03.2010. It is correct that in the rent deed which is Mark B, the shop in question has been shown the part of property no. 3/130, Lalita Park, Laxmi Nagar, Delhi....... .......On 02.03.2010, Sh. P.S. Kainth took me to the office of Sub Registrar for execution of sale deed in my favour. I was under impression that the sale deed has been executed in my favour on that day as told by Sh. P.S. Kainth but my signatures were obtained on some paper. On the same day, Sh. P.S. Kainth told me that the registry of the Lalita Park Area was stopped due to collpase of a building in the area. It is correct that on the same day, I became aware that registry has not been executed in my favour by Sh. P.S. Kainth and Sh. P.S. Kainth had told me to reevaluate the total sale consideration of the property....."
22.2.3 A perusal of aforesaid cross examination reveals that though the defendant admitted his signature and thumb impression on rent agreement Mark B, but he has set up the defence that his signature and thumb impressions were obtained on the pretext that sale deed was being executed in his favour by Sh. P.S. Kainth. It is difficult to believe that the defendant had signed the rent agreement Mark B without reading its contents and without even knowing the consequences thereof. In Corporation Bank Vs. Sushil Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 28 of 44 Enterprises 2003 VI AD (Delhi) 467 it was observed that nobody is expected to sign the documents without reading it or when it is blank and if he does so, he does at his own risk. 22.2.4 The defendant is residing in a metropolitan city of Delhi and also stayed in South Korea for 5 years so he cannot be presumed to be so naive and gullible as to not discern the consequences of appending signatures on documents without reading its contents. The defendant chose to remain silent about his signatures being taken deceitfully on the rent agreement Mark B till filing of the present suit. The rent agreement Mark B was executed on 02.03.2010. The defendant / DW1 admitted, in his cross examination, that on the same day, he came to know that registry has not been executed in his favour by Sh. P.S. Kainth. No complaint or suit was filed by the defendant regarding his signatures and thumb impressions being procured on the rent agreement Mark B fraudulently. The version of defendant that his signatures and thumb impressions were obtained on rent agreement Mark B by playing fraud does not inspire confidence. 22.2.5 The facts remains that the defendant has categorically and unambiguously admitted his signatures and thumb impression on the rent agreement Mark B. The execution of Rent Agreement Mark B between Sh. Puran Singh Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 29 of 44 Kainth and the defendant stands duly proved. Thus, it is held that the defendant was inducted as a tenant by Sh. Puran Singh Kainth in a shop on ground floor of the property in question. Sh. P.S. Kainth transferred the property in question to Shiv Shakti Sansthan Trust by virtue of registered sale deed dated 20.11.2014 Ex.PW1/2. Section 109 of Transfer of Property Act comes into play on sale of property in question by Sh. P.S. Kainth/lessor to Shiv Shakti Sansthan Trust. The section provides as under:
109. Rights of lessors transferee .If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 30 of 44 what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
22.2.6 In view of section 109 Transfer of Property Act, Shiv Shakti Sansthan Trust became the owner as well as landlord qua the defendant. The tenacy is governed by the Rent Agreement Mark B. In the Rent Agreement Mark B, the rate of rent has been specifically mentioned as Rs.3,600/ per month, consequently, the jurisdiction of Civil Court is not barred by Section 3 (c) and Section 50 of DRC Act.
22.2.7 Now, the court needs to determine the aspect of termination of tenancy. The plaintiffs have admittedly not sent any legal notice under Section 106 of Transfer of Property Act thereby terminating the tenancy of defendant. It is settled proposition of law that even if a legal notice is not sent terminating the tenancy, filing of a suit and service of summons of the suit amounts to termination of tenancy. (Reference may be made to the judgments titled as M/s. Jeevan Diesel Electrical Limited Vs. M/s. Jasbir Singh Chaddha (HUF) & Anr. RFA No. 179/2011 decided on 25.03.2011, Basudev Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 31 of 44 Prasad Vs. Nand Gopal Bachhas RSA No. 146 of 2016, decided on 21.07.2016, Nopany Investments (P) Ltd. Vs. Santokh Singh (2008) 2 SCC 728, Skyland International Pvt. Ltd. Vs. Kavita P. Lalwani 191 (2012) DLT 594 and Ravinder Nath Saha Vs. Sushma Jain 182 (2011) DLT 456). 22.2.8 On the scale of prepronderance of probabilities, the court is inclined to hold that the defendant is a tenant in the shop at ground floor at monthly rent of Rs.3,600/ whose tenancy has been duly terminated. The plaintiffs have established the essential ingredients of a suit for possession and are entitled to a decree of possession with respect to the shop on ground floor of the property in question. 22.3 Point No. (iii) Whether the defendant is a licensee in the first floor portion and his license has been validly revoked?
22.3.1 The plaintiffs have averred that the defendant was given the permission to reside in the first floor portion as a licensee. The defendant, in contrast, has set up the plea of oral agreement to sell which has already been held to be unbelievable. An individual can be in possession of an immovable property as its owner, tenant, licensee or trespasser. The defendant admittedly is neither the owner nor Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 32 of 44 tenant of the first floor portion. It is not even the case of the defendant that he had unauthorizedly entered the first floor portion, so as to have status of trespasser therein.
Consequently, the defendant can be in its possession only in the capacity of a licensee. The plea of creation of license also seems probable for the reason that the defendant admittedly was an employee of the erstwhile owner Sh. P.S. Kainth. Moreover, it is defendant's own case that he was permitted to reside in suit property in pursuance to oral agreement to sell. The defendant is not entitled to protection of Section 53A of Transfer of Property Act, so his nature of possession qua first floor portion automatically becomes that of a licensee. 22.3.2 A license as defined in Section 52 Easement Act does not create or transfer any interest in an immovable property. A licencee's possession is only permissive and he can be thrown out at any time. (Sultan Begum versus Prem Chand AIR 1997 SC 1006).
22.3.3 In the instant case, the erstwhile owner Sh. P.S. Kainth permitted the defendant to reside in the first floor portion of property in question being his employee. Shiv Shakti Sansthan subsequently purchased the property in question from Sh. P.S. Kainth by way of registered sale deed. Once a Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 33 of 44 licensee always remains a licensee. Thus, the status of defendant continues to be that of a licensee even subsequent to the purchase of the property in question by Shiv Shakti Sansthan Trust.
22.3.4 The defendant has failed to establish any legal right on the basis of his continued occupation of the first floor. The defendant, was merely given a right to stay in the first floor portion. A license is created at the Will of the licensor, no separate notice is required to terminate the license, filing of the civil suit by the plaintiffs is itself an express revocation of the license of the defendant by the plaintiffs. 3 Accordingly, the court is of the opinion that the license of the defendant has been duly terminated. The plaintiff is entitled to recover possession even of first floor portion of the property in question.
23 During the course of trial, an attempt was made by the defendant to dispute the spatial extent of the suit property. The plaintiff no.1/PW1, during his cross examination, admitted that the open terrace of the first floor is in possession of the defendant. The plaintiffs, in their site plan Ex.PW1/1, have depicted the suit property comprising of a shop and four rooms 3 Reliance is placed upon the judgment titled as Chiddi Ram Vs. Ram Das Foundation RSA No. 12/2007 dated 06.04.2011 of Hon'ble Delhi High Court.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 34 of 44 on first floor. Merely non inclusion of open terrace in the suit property cannot be a ground to non suit the plaintiff as open terrace is a common area and no party including the defendant can be said to be in its exclusive possession.
24. It is also pertinent to mention that Ld. Counsel for Defendant has raised certain legal objections regarding the maintainbility of the present suit such as Shiv Shakti Sansthan Trust could not have insitituted the present suit without prior permission in terms of Section 53 of Indian Trust Act, Section 18 of Religious Endowment Act, 1863, Order I Rule 8 CPC, Section 92 CPC and suit is also barred under Section 106 of Transfer of Property Act and under Section 14(6) of Delhi Rent Control Act.
25. This argument is without merits and is liable to be rejected. Section 53 of Trust Act bars a trustee from purchasing beneficiary interest without permission of Principal Civil Court of Original Jurisdiction. Section 18 of Religious Endowment Act bars institution of suit under Religious Endowment Act without leave of the court. The Religious Endowment Act deals with the procedure for nomination of trustees, transfer of trustees, procedure as to right of succession to vacated trusteeship etc. The court is of the opinion that Section 53 of Trust Act and Section 18 of Religious Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 35 of 44 Endowment Act do not apply to the present case which is a suit for recovery of possession brought by a landlord as well as licensor against his tenant and licensee. The bar of Section 92 CPC and Order I Rule 8 CPC even does not apply. A suit under Section 92 is of a special nature and the permission to institute the suit is essential only if the relief claimed falls within clauses (a) to (h) of Section 92 (1) CPC. The present suit does not fall within any of the clauses of Section 92 (1) of CPC. Order I Rule 8 CPC has no application as the present is not a representative suit. The bar of Section 14 (6) of DRC Act does not apply as the tenancy in the present case is not protected under DRC Act. So far as, objection regarding non service of statutory notice under Section 106 of Transfer of Property Act is concerned, the same has already been dismissed by this court in para no. 22.2.7 of the judgment.
26. Keeping in view the foregoing reasons and discussion, the court is of the opinion that the plaintiff is entitled to recover the possession of the suit property.
Issue no. (iv) is decided in favour of the plaintiffs and against the defendant.
Issue No. (v). Whether the plaintiff is entitled for mesne profits and damages as claimed in the Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 36 of 44 suit ? OPP
27. A perusal of prayer clause (b) to (e) reveals that the plaintiff has claimed arrears of rent to the tune of Rs. 1,29,600/ with respect to shop on ground floor, damages of Rs.33,000/ for first floor portion w.e.f. 22.11.2014 till filing of the present suit and mesne profits / damages @ Rs.25,000 per month along with interest @ 24% per annum from the date of filing of the present suit till handing over the vacant possession of the suit property.
28. Firstly, the court would take up the plaintiff's claim for arrears of rent. The plaintiff has alleged that the defendant stopped making payment of rent from July, 2010. A landlord is entitled to recover "arrears of rent legally recoverable". The expression "arrears of rent legally recoverable" means arrears of rent which are not barred by limitation. The landlord is entitled to recover rent for a period of three years immediately preceding the filing of the present suit. The date of institution of present suit is 05.03.2015, hence, it needs to be adjudicated whether the defendant has been in arrears of rent since March, 2012. The defendant has not spelledout, in his written statement, about payment of any rent to the plaintiffs or their predecessor in interest Sh. P.S. Kainth. The defendant, admittedly, has not paid rent to the plaintiffs at any point of Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 37 of 44 time. The rate of rent has already been held to be Rs.3,600/ per month. The tenancy in the instant case terminated on 31.07.2015 i.e. after expiry of 15 days from the date of service of summons of the suit on 15.07.2015. The plaintiffs are entitled to recover arrears of rent @ Rs.3,600/ per month w.e.f. 01.03.2012 till 31.07.2015.
29. So far as the relief of damages to the tune of Rs.33,000/ for first floor portion w.e.f 22.11.2014 till filing of the present suit is concerned, the plaintiffs are not entitled to it as the license in the instant suit was revoked on the date of filing the present suit.4 Consequently, the plaintiffs cannot claim pre suit damages for first floor portion.
30. Lastly, the plaintiffs have claimed pendete lite and future mesne profits / damages @ Rs.15,000/ per month for the shop and @ Rs.10,000/ per month for the first floor portion. The plaintiff no. 1 / PW1 has inverbatim deposed, in his affidavit by way of evidence, the contents of the plaint that he is entitled to damages @ Rs.25,000/ per month.
31. The plaintiffs have not led any cogent evidence as to what rental the suit property would have fetched during the pendency of the present suit. The plaintiffs have not examined any person who was well versed with the rentals prevailing in 4 It has been so observed in para no. 22.3.4 of this judgment.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 38 of 44 the area in which the suit property is situated nor the record from Sub Registrar's office has been summoned so that the lease deeds executed during the contemporaneous period could have been brought on record.
32. The aspect of mesne profit permits some guess work. The defendant is in occupation of a shop on ground floor and of four rooms on first floor of a property situated in the area of Laxmi Nagar. In the opinion of the court, the rental of the suit property can be safely assessed to be Rs.8,000/ per month at the time of termination of tenancy and revocation of license of defendant. The mesne profits are, therefore, awarded at the rate of Rs.8,000/ per month w.e.f. 01.08.2015 (as tenancy of defendant terminated on 31.07.2015) with 15% annual increase. Reliance in this regard is placed upon the judgment titled as M/s. M.C. Agarwal HUF Vs. M/s. Sahara India and Ors. 183 (2011) DLT 105 wherein it was observed that courts can take judicial notice of increase of rent and depending on the locality, courts can grant, subject to any other evidence to the contrary, a 15% cumulative increase every year.
33. Even in the case titled as M/s. Basant & Co. Vs. M/s. Osram India Pvt. Ltd. CS(OS) No. 2362/1999, decided on 12.03.2018, Hon'ble High Court of Delhi observed in para Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 39 of 44 no. 8 as under: "8...... In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in connaught place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increae to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 03.04.2005. I rely upon and refer to a Division Bench judgment of this court in the case of S. Kumar Vs. G.R. Kathpalia 1999 RLR 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent......"
34. In the light of the aforesaid judgments, the plaintiffs are held entitled to recover mesne profits @ Rs.8,000/ per Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 40 of 44 month from 01.08.2015 to 31.07.2016 with 15% increase every year till the defendant delivers vacant possession of the suit property. The amount of mesne profits would be as under: At the rate of Rs.8,000/ from 01.08.2015 to 31.07.2016. At the rate of Rs.9,200/ from 01.08.2016 to 31.07.2017 (i.e. with 15% increase in mesne profits of Rs.8,000/); At the rate of Rs.10,580/ from 01.08.2017 to 31.07.2018 (i.e. with 15% increase in mesne profits of Rs..9,200/); At the rate of Rs.12,167/ from 01.08.2018 to 31.07.2019 (i.e. with 15% increase in mesne profits of Rs.10,580/ every year and so on5 till the defendant deliver vacant possession of the suit property to the plaintiffs. The plaintiffs shall furnish appropriate court fees on record.
Issue no. (v) is decided in favour of the plaintiffs and against the defendant.
Issue No. (vi). Whether the defendant is owner of the suit property as claimed by the defendant ? OPD
35. The onus to prove the said issue is upon the defendant. The defendant has denied Shiv Shakti Sansthan Trust to be the owner of suit property rather he has set up a rival title by claiming that prior to trust, he had already 5 With increase of 15% every year.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 41 of 44 purchased the property in question from its erstwhile owner Sh. P.S. Kainth.6
36. Admittedly, no title document was executed by the erstwhile owner Sh. P.S. Kainth in favour of defendant. The defendant has himself averred that Sh. P.S. Kainth turned dishonest and did not execute the sale deed with respect to property in question in favour.
37. Section 54 of Transfer of Property Act, 1882 provides that sale of immovable property can only be made by a registered instrument. Both DW1 and DW2 admitted, in their cross examnation, that there is no ownership / title document in favour of defendant. DW 1/defendant stated that he has filed on record Voter I Card, Ration Card, MCD Receipt, Bank Pass Book and Gas Receipts Ex.DW1/2 to Ex.DW1/10. These documents do not confer title upon the defendant and are merely a proof of his possession qua the suit property. When the defendant, admittedly, does not have any title document qua the suit property in his favour, by no stretch of imagination, he can be presumed to be its owner. Consequently, the defendant has miserably failed to prove his ownership with respect to the property in question.
Issue no. (vi) is decided in favour of plaintiffs 6 The defendant so averred in para no. 29 of reply on merits of WS.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 42 of 44 and against the defendant.
Relief:
In view of findings on aforesaid issues, the suit of plaintiffs is decreed in their favour and against the defendant in the following terms:-
(a) The defendant is directed to handover the vacant and peaceful possession of shop no. 4 (ad measuring 8ft. X 10 ft.) at ground floor and a small portion of first floor comprising of 4 rooms, toilet etc of property bearing no. 3/130, Lalita Park, Laxmi Nagar, New Delhi, ad measuring 110 sq. yards as shown in red colour in the site plan Ex.PW1/1.
(b) The plaintiffs are held entitled to recover mesne profits @ Rs.8,000/ per month from 01.08.2015 to 31.07.2016 with 15% increase every year till the defendant delivers vacant possession of the suit property. The amount of mesne profits would be as under: At the rate of Rs.8,000/ from 01.08.2015 to 31.07.2016.
At the rate of Rs.9,200/ from 01.08.2016 to 31.07.2017 (i.e. with 15% increase in mesne profits of Rs.8,000/); At the rate of Rs.10,580/ from 01.08.2017 to 31.07.2018 (i.e. with 15% increase in mesne profits of Rs..9,200/); At the rate of Rs.12,167/ from 01.08.2018 to 31.07.2019 (i.e. with 15% increase in mesne profits of Rs.10,580/ Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 43 of 44 every year and so on7 till the defendant delivers vacant possession of the suit property to the plaintiffs. The plaintiffs shall furnish appropriate court fees on record.
Costs of the suit is also awarded in favour of the plaintiffs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER) on this day of ADJ-04, East District, 24th April, 2019 KKD Courts, Delhi 7 With increase of 15% every year.
Suit No. 1634/16 Sh. Kushal Chand Garg & Ors. Vs Sh. Dalip Kumar Gupta Page No. 44 of 44