Delhi District Court
Ashish Kumar vs Amar Singh on 15 May, 2025
IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
CS No. 143/20
CNR No. DLNE01-002754-2020
Sh. Ashish Kumar
S/o Sh. Ganga Dass,
R/o D-553, Gokalpuri,
Delhi-110094 ..... Plaintiff
versus
Sh. Amar Singh
S/o Sh. Rama,
R/o H. No. B-66-A,
II floor & III floor,
Gali No. 2, B-Block,
Ganga Vihar,
Delhi-110094
IInd Address:-
A-353, Gokalpur,
Delhi-110094 ..... Defendant
Date of institution : 26.10.2020
Reserved on : 24.04.2025
Date of Decision : 15.05.2025
JUDGMENT
1. Plaintiff has sued the defendant on the ground that he and defendant entered into an unregistered written rent agreement dated Digitally signed by AASHISH AASHISH GUPTA CS No. 143/20 Ashish Kumar Vs. Amar Singh 1 of 26 GUPTA Date:
2025.05.15 17:03:03 +0530 27.08.2016 whereby entire second and third floor of property bearing no. B-66-A, Gali no. 2, B-Block, Ganga Vihar, Illaqa Shahdara, Delhi-110094 (hereinafter referred to as `suit property').
2. For ease of reference, the entire property described above shall be referred to as `property in question' as distinguished from the suit property which only encompasses two floors of the property in question.
3. Plaintiff claims that the said rent agreement was for a period of 11 months beginning from 01.09.2016 to 31.07.2017. As per plaintiff, after expiry of aforesaid period, the rent agreement was orally extended by him and defendant continued in possession of the suit property thereafter as a tenant. As per plaintiff, while initially rate of rent was Rs.10,000/- per month, it eventually stood enhanced to Rs.11,000/- per month.
4. He claims that defendant is in arrears of rent w.e.f. 01.03.2019 and he is before this court seeking possession, recovery of arrears of rent (with pendente lite and future interest) along with decree of permanent injunction restraining the defendant from creating third party interest in the suit property.
5. It is pertinent to note that plaintiff herein has not sought any mesne profits/damages from the defendant.
6. It is further pertinent to note that as per documents placed on record Digitally signed by the plaintiff, plaintiff purchased the entire property (of which suit by AASHISH GUPTA AASHISH GUPTA Date:
2025.05.15 property is a part) from one Vimlesh through GPA, agreement to sell 17:03:13 +0530 CS No. 143/20 Ashish Kumar Vs. Amar Singh 2 of 26 etc dated 27.08.2016. This is the same date on which defendant is claimed to have been inducted as a tenant in the property. Thus, as per plaintiff, defendant was inducted as a tenant in the property on the same day on which, plaintiff purchased it from one Vimlesh.
7. It is also pertinent to note that before filing of this suit, plaintiff claims that he had sent a legal notice dated 15.09.2020 to defendant (thereby terminating the tenancy) which was replied back by defendant vide his reply dated 28.09.2020.
8. In response to the present suit, defendant has out-rightly denied the claim of his tenancy. It is his case that he is actually owner of the entire property (of which suit property is part) and had purchased the same from its erstwhile owner Vimlesh in 2016 by paying an amount of Rs.15.11 lacs to her.
9. It is his specific case that in the transaction between him and Vimlesh, plaintiff was a mediator/property dealer who had assisted the parties in the said transaction. In order to support the said contention, defendant has relied upon a certified copy of an agreement to sell (ikrarnama/bayana) dated 03.08.2016. This agreement is qua the property in question and is between one Vijay Kumar (who as per record is the brother of Vimlesh/erstwhile owner of the aforesaid property) and Parwati/wife of defendant.
10. A perusal of the said agreement would show that the aforesaid individuals entered into an agreement to sell qua property in question on 03.08.2016 and an amount of Rs.50,000/- was also Digitally CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 3 of 26 AASHISH AASHISH GUPTA GUPTA Date:
2025.05.15 17:03:21 +0530 exchanged on the said date. Thereafter, another sum of Rs.3.5 lacs appears to have been paid by defendant to Vijay Kumar on 06.08.2016.
11. It is pertinent to note that as per this agreement, plaintiff herein was a mediator between the parties assisting them in the said transaction and he even signed the said agreement as an attesting witness on 03.08.2016 and again as a witness to the transaction of Rs.3.5 lacs on 06.08.2016.
12. It is the specific case of the defendant before this court that on 03.08.2016 and 06.08.2016, he, through his wife, was purchasing the property in question and eventually money was also paid to Vijay Kumar (who is brother of Vimlesh) under the said agreement. It is defendant's case that plaintiff was mediator in the said transaction and even witnessed exchange of money between the parties.
13. Defendant claims that he was short of money at the time of said deal and he took a sum of Rs.1 lac in cash from plaintiff to complete the said deal. It was in lieu of the said money that plaintiff had taken all the property papers in his possession and also took defendant's thumb impression and signatures on blank papers along with two blank signed cheques as security. Plaintiff had assured the defendant that when defendant shall return the money, the said document and cheques shall be returned.
Digitally signed by AASHISH AASHISH GUPTA GUPTA Date:
2025.05.15 17:03:28 CS No. 143/20 Ashish Kumar Vs. Amar Singh +0530 4 of 26
14. Defendant claims that on 15.10.2020, he had returned the said loan amount and at that time plaintiff started demanding a further sum of Rs.2 lac in lieu of the property papers and security cheques. He claims that it was then that, for the first time, plaintiff started referring to him as tenant.
15. It is his case that he entered possession of the suit property as its owner and not as tenant of the plaintiff. He specifically disputes the ownership of the plaintiff qua the suit property. It is his case that he has been in possession of the entire property ( including two floors claimed to be the property of plaintiff/suit property) since 2016. On the said count, he prays for dismissal of the suit.
16. In replication, plaintiff has reiterated his case.
17. Based on pleadings, following issues were framed :
i) Whether the plaintiff is entitled to decree of permanent injunction, restraining the defendant from subletting, transferring and creating third party interest in the suit property? OPP
ii) Whether the plaintiff is entitled to a decree of possession in respect of the suit property? OPP
iii) Whether the plaintiff is entitled to a decree of recovery of Rs.2,20,000/-? OPP
iv) Whether the plaintiff is entitled to cost of the suit? OPD
v) Whether the suit of the plaintiff is without any cause of action?
OPD
vi) Relief.
Digitally signed
18. Plaintiff led his evidence, detailed below:- by AASHISH
GUPTA
AASHISH Date:
GUPTA 2025.05.15
17:03:35
+0530
CS No. 143/20 Ashish Kumar Vs. Amar Singh 5 of 26
S. No. Particulars of witness Nature of witness
1. PW-1/Plaintiff /Sh. Ashish Plaintiff himself. He reiterated his case by way of Kumar. his affidavit in evidence Ex.PW1/A. He relied upon the following documents:
1. Original site plan (Ex.PW1/1).
2. Legal notice dated 15.09.2020 (Ex.PW1/2).
3. Postal and courier receipts (Ex.PW1/3) (colly.).
4. Reply to legal notice (Mark A).
5. Original rent agreement dated 27.08.2016 (Ex.PW1/4).
6. Original GPA, agreement to sell, receipt, possession letter, Deed of Will, affidavit, all dated 27.08.2016 (Ex.PW1/5) (colly.).
7. Original GPA, agreement to sell, receipt, possession letter, Deed of Will, affidavit, all dated 17.12.2012 (Ex.PW1/6) (colly.).
2. PW-2/Sh. Hari Singh. He was a summoned witness and son of defendant.
3. PW-3/Sh. Ramesh Mavi. He was a summoned witness. He was witness to rent agreement Ex.PW1/4.
4. PW-4/Sh. Rajesh Kumar, He was a summoned witness. He proved the copy Notary Public. of relevant entry regarding attestation of rent agreement between the parties (i.e. Ex.PW4/1).
19. PW-1 to PW-4 were duly cross-examined by the counsel for the defendant. After plaintiffs' evidence, defendant examined himself as his only witness detailed below:-
S. No. Particulars of witness Nature of witness
1. DW-1/defendant/Sh. Amar He reiterated his case by way of his affidavit in evidence Singh.
Ex.DW1/A and relied upon certified copy of ikrarnama/bayana dated 03.08.2016 (Ex.DW1/1A).
20. Defendant/DW-1 was duly cross-examined by the counsel for plaintiff.
Digitally
signed by
AASHISH
AASHISH GUPTA
GUPTA Date:
CS No. 143/20 Ashish Kumar Vs. Amar Singh 2025.05.15 6 of 26
17:03:46
+0530
21. Final arguments heard. Record perused.
Issue No. (i), (ii) & (iii)
i) Whether the plaintiff is entitled to decree of permanent injunction, restraining the defendant from subletting, transferring and creating third party interest in the suit property? OPP
ii) Whether the plaintiff is entitled to a decree of possession in respect of the suit property? OPP
iii) Whether the plaintiff is entitled to a decree of recovery of Rs.2,20,000/-? OPP
22. The entire case of the plaintiff is premised on the contention that defendant is his tenant. The outcome of all the aforesaid three issues shall depend on the finding as to whether plaintiff, based on his evidence, has been able to establish the said relationship between the parties or not.
23. Counsel for plaintiff had argued that plaintiff has produced the original rent agreement before this court as Ex.PW1/4. He argued that defendant's son/PW-2, the other attesting witness/PW-3, the notary public who attested the said agreement/PW-4 and even the defendant (during his cross-examination) admitted the fact that defendant is signatory to the said rent agreement. He claims that once defendant himself admits to be the signatory to the said agreement and it is shown from the evidence of notary public concerned that the said document was attested by the concerned notary public (after execution of the same between the parties), it Digitally signed by AASHISH CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH GUPTA 7 of 26 GUPTA Date:
2025.05.15 17:03:52 +0530 shall conclusively prove the rent agreement Ex.PW1/4 on record and thus, it would show that plaintiff and defendant are in landlord-tenant relationship and their relationship shall be governed by the terms of Ex.PW1/4.
24. On the other hand, counsel for defendant argued that merely because defendant's son or defendant has admitted his signatures on the said document, it shall not mean that plaintiff and defendant are in landlord-tenant relationship. It was argued on his behalf that defendant has placed on record a prior agreement Ex.DW1/1A which shows that defendant/his wife were in talks with the earlier owner of the property in question i.e. Vimlesh/her brother Vijay Kumar qua the purchase of same property. As per the said document, it was argued on behalf of defendant, defendant/his wife paid a sum of Rs.4 lacs to Vijay Kumar (brother of Vimlesh). The said document bears the signatures of plaintiff as an attesting witness and the name of plaintiff also finds mention within the agreement as mediator who was assisting the parties in completing the said sale transaction. Again, plaintiff was also witness to transaction of Rs.3.5 lacs made by defendant to Vijay Kumar. This, as per counsel for defendant, proves the fact that defendant was interested in purchasing the property in question and in fact had paid substantial money to Vijay Kumar/Vimlesh at the instance of plaintiff.
Digitally signed by AASHISH AASHISH GUPTA CS No. 143/20 Ashish Kumar Vs. Amar Singh GUPTA Date: 8 of 26 2025.05.15 17:04:01 +0530
25. It was argued that plaintiff's signatures on the said agreement Ex.DW1/1A would show that plaintiff was aware and had complete knowledge about the aforesaid transaction as he himself was acting as a mediator/property dealer qua the said deal. It was argued that if the same be taken as true, why would suddenly plaintiff himself purchase the same property (without insisting on rescinding/canceling the said agreement) and why would he then induct defendant as tenant in the property? It was argued that it is beyond logic that if defendant/his wife themselves had paid substantial consideration qua the same property to its previous owner/her close relative i.e. brother, then why the defendant would himself become a tenant in the same property? This is more so when as per record, plaintiff purportedly purchased the suit property on 27.08.2016 and on the same day itself defendant is shown to have entered into the rent agreement Ex.PW1/4. It was argued that the aforesaid facts raises a strong suspicion on the case being set up by the plaintiff and this is not a simple case of landlord-tenant relationship.
26. It was argued that the aforesaid suspicion would tilt the scales of probabilities in favour of the defendant to allow him to argue that actually the case being set up by the plaintiff is false and in fact defendant was occupying the property in question since 2016 as its owner. It was argued that at no point of time, plaintiff was paid any rent by defendant and in this case plaintiff and defendant had Digitally signed by CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 9 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:04:09 +0530 a money transaction of Rs.1 lac qua which some papers were got signed from the defendant and the same have been misused.
27. It was further argued that the entire testimony of defendant on the aforesaid aspects have gone unrebutted and unchallenged during the cross-examination and therefore, even if it is taken that the scales of probabilities had tilted in favour of plaintiff (based on his evidence), they again tilted in favour of defendant, based on the aforesaid facts. On the aforesaid contention, counsel for defendant prayed for dismissal of the suit.
28. As is evident from the above, while plaintiff relies upon the rent agreement Ex.PW1/4 to argue that there is a landlord-tenant relationship between the parties, the same is sought to be repulsed by defendant on the basis of his unrebutted oral testimony read with a prior agreement to sell Ex.DW1/1A.
29. I have given thoughtful consideration to the rival arguments of the parties and have gone through the entire record and the evidence before me.
30. As far as the rent agreement Ex.PW1/4 is concerned, plaintiff has led sufficient evidence on record to show that the said document was signed by defendant. This is on account of the evidence of defendant's son/PW-2 (who was one of the attesting witness to the said agreement); the other attesting witness/PW-3; the notary public who attested the said document; and defendant's own testimony (wherein he admits to have signed the said document).
Digitally
signed by
AASHISH
CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH GUPTA 10 of 26
GUPTA Date:
2025.05.15
17:04:16
+0530
31. If I peruse the said evidence, plaintiff has been able to establish that the said rent agreement Ex.PW1/4 was entered between the parties on 27.08.2016. This would raise a strong presumption in favour of the plaintiff that he and defendant have a landlord- tenant relationship between them as the said document so records.
32. This would shift the onus of proof to the defendant to rebut the said presumption from his own evidence.
33. Now, in order to rebut the said presumption and in order to shift back the onus on the plaintiff qua the same, defendant has brought on record his oral testimony along with a sale agreement Ex.DW1/1A. In the said oral testimony, defendant claims that his wife Parvati on one hand and Vimlesh's brother/Vijay Singh had entered into an agreement to sell Ex.DW1/1A qua the property in question and the blanks on the said agreement were filled by plaintiff in his own handwriting. It has also come in his oral testimony that as per the said agreement, an amount of Rs.4 lacs was paid by defendant/his wife to Vimlesh and plaintiff signed the said agreement as an attesting witness and also as a witness to the payment of Rs.3.5 lacs made subsequently on 06.08.2016. This noting qua payment of Rs.3.5 lacs is made on the back side of the second page of the said agreement Ex.DW1/1A.
34. I may note that the original of the said agreement is stated to have been filed by defendant in a separate criminal case initiated by defendant against the plaintiff bearing CT no. 1386/2020 and defendant proved on record the certified copy of the same. The Digitally signed by CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 11 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:04:24 +0530 said certified copy was duly led in evidence by defendant as Ex.DW1/1A and on objection on the mode and manner of proof was taken by plaintiff when the same was led in evidence. Thus, the same, in my humble opinion, is not only admissible in evidence, but also can be read in evidence as plaintiff does not dispute the facts stated by the defendant in any manner.
35. Now, if I consider the aforesaid document Ex.DW1/1A, it shows that defendant/his wife Parvati were interested in purchasing the property in question from Vimlesh/her brother Vijay at least since 03.08.2016. As per Ex.DW1/1A, an amount of Rs.50,000/- was paid on the said date to Vijay by defendant's wife. Plaintiff was an attesting witness to the said document.
36. Three days thereafter, on 06.08.2016, defendant paid a sum of Rs.3.5 lacs to Vijay (which Vijay received on behalf of owner/Vimlesh) and an endorsement of the said payment is made on the back side of the first page of the said Ex.DW1/1A. Plaintiff is witness to the said payment also.
37. It is pertinent to note that the entire oral testimony of defendant qua the said transaction and the fact that plaintiff was witness to the said document Ex.DW1/1A; and that plaintiff was also witness to the payment of Rs.3.5 lacs on 06.08.2016; and the blanks in the said agreement are in the handwriting of plaintiff; and the endorsement on the back side of the second page of the said agreement is in the hand of plaintiff has been allowed to go unrebutted and unchallenged by the plaintiff during the cross-
Digitally
CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 12 of 26
AASHISH
AASHISH GUPTA
GUPTA Date:
2025.05.15
17:04:31
+0530
examination of defendant. It means, that plaintiff does not dispute, and by necessary inference, admits to the aforesaid oral evidence of defendant.
38. This would mean that plaintiff was aware and had necessary knowledge that defendant/his wife was interested in purchasing the property in question and as late as 06.08.2016 an amount of Rs.4 lacs had been paid by them as earnest money to the owner Vimlesh/her brother Vijay. Plaintiff, as per Ex.DW1/1A was the mediator/property dealer in the said deal.
39. It can be argued that Ex.DW1/1A is not a document between defendant and Vimlesh (who as per defendant is the original owner of the suit property); and therefore, even if some agreement was entered between defendant's wife and Vijay (brother of Vimlesh), the same would not effect the property in question in any manner. The said argument would be of no help to the plaintiff, if made. This is because, the said agreement is being looked at by this court to assess as to whether there was any incidental talks/agreement qua the property in question during the contemporary time and the same was in the knowledge of plaintiff. This court is not considering the question as to whether, in law, the said agreement would actually be enough to give any title to defendant or not. If I consider the aforesaid document, it appears that plaintiff was well aware about the existence of talks qua the property in question between defendant/his wife and Vimlesh/her brother. Money had been Digitally signed by AASHISH CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH GUPTA 13 of 26 GUPTA Date:
2025.05.15 17:04:47 +0530 exchanged between the parties with plaintiff playing an active role in the said deal.
40. Now, within 20 days i.e. on or about 27.08.2016, plaintiff claims that he himself purchased the property in question from Vimlesh by way of GPA, agreement to sell Ex.PW1/5. And, on the same day, he inducted defendant as a tenant in two floors of the same property by executing the disputed document/rent agreement Ex.PW1/4. It is very surprising that if defendant/his wife were themselves trying to purchase the property in question about 20 days back and they had paid substantial money qua the said property; and plaintiff was aware of the said fact with he himself assisting the parties in the said deal; why would defendant agreed to become a tenant in the same property without insisting on cancellation of the earlier agreement Ex.DW1/1A?
41. This raises a strong suspicion in the mind of the court and does not appeal to logic. The case being set up by the plaintiff of a simple landlord-tenant relationship has come in doubt in view of the aforesaid evidence. Even if I take that after the proving of the aforesaid rent agreement Ex.PW1/4, the onus of proving the said relationship had shifted to the defendant, the aforesaid evidence of defendant is sufficient to bring in doubt the said relationship and the onus, therefore, would again shift to plaintiff. Now, it is for the plaintiff to explain the aforesaid facts and demonstrate from the record that the said sale agreement Ex.DW1/1A was Digitally signed by AASHISH AASHISH GUPTA CS No. 143/20 Ashish Kumar Vs. Amar Singh GUPTA Date: 14 of 26 2025.05.15 17:04:57 +0530 unrelated to the property in question or it does not effect his relationship with the defendant.
42. Plaintiff has not led any evidence in that regard. He does not deny to have been witness of Ex.DW1/1A or to have been aware of the said transaction with he himself playing an active role therein. Despite specific query of this court in this regard, during arguments, no explanation was even orally offered to this court.
43. Counsel for the plaintiff argued that u/s 91/92 of Indian Evidence Act, the oral evidence of defendant qua the earlier transaction or the document itself Ex.DW1/1A be looked at by this court.
44. I am not inclined to accept the said argument raised by the counsel for plaintiff. The bar of section 91/92 Indian Evidence Act shall not apply to the facts of this case. Before coming to the reasons of the said conclusion, I may fruitfully rely upon a couple of judgments on the said issue which shall be a complete answer to the said contention made by the counsel for plaintiff.
45. In Gangabai vs Chhabubai AIR 1982 SUPREME COURT 20, 1982 (1) SCC 4, the Hon'ble Supreme Court of India was dealing with a case wherein the appellant was relying upon a sale deed; while the respondent was contending that the said document was never an actual sale and in fact, she had taken a loan from appellant with an understanding that she should execute a nominal document of sale with the rent note. In the said case, the Hon'ble Supreme Court of India was presented with the argument Digitally signed by AASHISH CS No. 143/20 Ashish Kumar Vs. Amar Singh 15 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:05 +0530 that u/s 92(1) of Indian Evidence Act, the respondent therein was restrained from contending that there was no sale and no oral evidence to the contrary should be admitted in evidence. While answering the said contention, the Hon'ble Supreme Court held as follows:
"The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties ( Tyagaraja Mudaliyar and another v. Vedathanni AIR 1936 PC 70, 1936 All Digitally CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 16 of 26 AASHISH AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:11 +0530 LJ 136). The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail."
(emphasis supplied)
46. In the aforesaid judgment, the Hon'ble Supreme Court of India placed reliance on the judgment of Tyagaraja Mudaliyar vs Vedathanni (1936) 38 BOMLR 373. The said judgment further elaborates upon the admissibility of parol evidence admissible u/s 92 of Indian Evidence Act. In the said judgment passed by the Ld. Privy Council, was called upon to decide the question as to whether under the provisions of Sections 91 and 92 of the Indian Evidence Act, oral evidence was inadmissible to establish that it had been agreed that the provisions for the plaintiff's maintenance were not to be acted on, as the document was only intended to create evidence of the undivided status of the family. It was a case where one of the parties was trying to give oral evidence to show that the written agreement between the parties was no agreement in reality and therefore, there was no contract between them. While dealing with the said issue, the Ld. Privy Council noted section 91 and 92 of Indian Evidence Act and laid as under:
"10. The two relevant sections are as follows, the exceptions and explanations in Section 91 being omitted as having no bearing on the question :
91. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a Digitally CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 17 of 26 AASHISH AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:17 +0530 document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, or mistake in fact or law, Proviso (2),-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved :
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Digitally
signed by
CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 18 of 26
AASHISH GUPTA
GUPTA Date:
2025.05.15
17:05:32
+0530
xxxxxxxx
12. When a contract has been reduced to the form of a document, Section 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself unless otherwise expressly provided in the Act, and Section 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore be based on Section 91 which only excludes oral evidence as to the terms of a written contract.
Clearly under that section a defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships' opinion oral evidence in disproof of the agreement ( 1) that, as in Pym v. Campbell (1856) 6 E. & B. 370, the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter stands exactly on the same footing as evidence that the defendant's signature was forged.
13. In Pym v. Campbell the defendants were sued upon a written contract to purchase an invention, and Lord Campbell had ruled at the trial that on the plea denying the agreement oral evidence was admissible that it had been agreed between the parties before they signed that there was to be no agreement until the invention was approved by A. In his judgment discharging the rule nisi for a new trial, Lord Campbell said (p. 375) :
It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till A had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient for the defendants to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement.
Erie, J., who gave judgment first had dealt more fully with this question (p. 373) :
The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to shew it was conditional : and if that had been so it would have been wrong. But I am of opinion that the evidence shewed that in fact there was never any agreement at all. The production of a paper purporting to be an agreement by a party, with his signature Digitally CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 19 of 26 AASHISH AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:37 +0530 attached, affords a strong presumption that it is his written agreement; and, if in fact he did sign the paper animo contrahendi, the terms contained in it are conclusive, and cannot be varied by parol evidence : . . . but, if it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those so signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible.
14. The Indian legislature has thought well to give statutory effect decision in Pym V. Campbell in proviso 3 to Section 92 :-" The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract. . . may be proved "; and in Mottayappan v. Palani Goundan (1913) I.L.R. 38 Mad. 226, Benson and Sundara Ayyar JJ. have expressed the opinion that oral evidence to show that a document was never intended to operate according to its terms, 'but was brought into existence, as in the present case, solely for the purpose of creating evidence about some other matter is admissible under proviso 1 to Section 92, " any fact may be proved which would invalidate any document". This may well be so, but in their Lordships' opinion, even if there were no provisos to either section, the result in the present case would be the same, because there is nothing in either section to exclude oral evidence that there was no agreement between the parties and therefore no contract."
(emphasis supplied)
47. A bare perusal of the aforesaid decisions would show that in cases where there is a written agreement between the parties, the oral evidence to vary the terms of a contract is barred to be received in evidence u/s 92 of Indian Evidence Act. But, the said principle of law is not applicable where parole evidence is sought to be led to show that there is no agreement at all. Again, it is settled principle of law that oral evidence to show that a document was never intended to operate according to its terms, but was brought into existence, solely for the purpose of creating evidence about some other matter is also admissible under Digitally signed by CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 20 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:44 +0530 proviso 1 of section 92 of Indian Evidence Act as the same would be evidence to prove a fact which would invalidate a document.
48. Now, in the present case, even if it is taken that a rent agreement was executed between plaintiff and defendant on 27.08.2016, still, defendant, in law, can lead oral evidence to show that the said agreement is not the actual agreement which was agreed between the parties. Defendant has led oral evidence to show that he never intended to sign the rent agreement Ex.PW1/4 as a rent agreement per se. He had claimed before this court that he was made to sign some blank papers. Even if the said contention of the defendant is not taken to have been proved, still, his evidence demonstrates that just prior to the said agreement Ex.PW1/4, he himself was negotiating with the owner Vimlesh and/or Vijay/brother of Vimlesh qua the same property and therefore, there is no question of he having signed Ex.PW1/4 as a rent agreement. This would mean that defendant has been able to show that there was no consensus ad idem between plaintiff and defendant when Ex.PW1/4 was signed. It appears from the evidence of defendant that possibly there was some other arrangement between the parties and the case being set up by the plaintiff of landlord-tenant dispute on the basis of Ex.PW1/4 is not so. In other words, from the evidence of defendant, it appears that there was no actual agreement/contract of rent between the parties and the rent agreement is essentially a sham document entered to cover for some other transaction. In my humble Digitally signed by CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 21 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:05:50 +0530 opinion, the oral evidence of defendant read with Ex.DW1/1A would be admissible under proviso (1) of section 92 of Indian Evidence Act, 1872 and the same essentially points out and makes it a fair possibility that the rent agreement Ex.PW1/4 is not a legal contract binding the parties and was created a ruse for some other purpose. Even though, the said purpose is not clearly established on record by either of the parties, still, there is sufficient evidence to say that Ex.PW1/4 is not what it is being canvassed by the plaintiff.
49. Even if it is taken that the said proviso does not cover the case in hand, still, the said provision does not bar the defendant to demonstrate from his evidence that there was no agreement in reality, amongst the parties.
50. In my humble opinion, evidence of the defendant is not only admissible, but is sufficient to shift back the onus of proving the landlord-tenant relationship on the plaintiff. As already noted, with the plaintiff not explaining the aforesaid questions raised by the defendant, it would mean that he has failed to discharge the onus qua the said relationship.
51. Now if plaintiff fails to prove that there was an actual landlord-
tenant relationship between him and the defendant, the question of he be given possession of the suit property; or any arrears of rent; or any decree of permanent injunction does not arise.
Digitally
signed by
AASHISH
AASHISH GUPTA
GUPTA Date:
2025.05.15
CS No. 143/20 Ashish Kumar Vs. Amar Singh 17:05:57 22 of 26
+0530
52. At this stage, I may note to other interesting facts about the case. Firstly, it is very surprising that plaintiff herein has not sought any mesne profits/damages for purported illegal occupation of suit property. If plaintiff was an actual owner and landlord of defendant, why would he not seek any mesne profits from the defendant (since the date of termination of tenancy till possession). Plaintiff has only sought arrear of rent for the period of 20 months w.e.f. 01.03.2019 till filing of this suit in October, 2020 at the alleged rate of Rs.11,000/- per month. This omission on the part of plaintiff also raises a doubt on the credibility of the plaintiff's claim. Can it be reasonably expected that a landlord would forego mesne profits in toto in a suit for eviction?
53. Secondly, plaintiff, in the plaint has claimed that defendant is tenant at second and third floor of the suit property. But, surprisingly, when plaintiff stepped in the witness box, he claims in his affidavit in evidence that "in locality, ground floor is known as first floor, first floor is known as second floor and second floor is known as third floor". It is pertinent to note that this claim in the evidence Ex.PW1/A, appears to have been aimed at to cover the contrary fact that the suit property does not have any third floor at all and comprises of ground floor, first floor and second floor only.
54. When the plaintiff realized the said mistake, he sought to cover it in his evidence by claiming that the floors in the area are called Digitally signed by CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH 23 of 26 AASHISH GUPTA GUPTA Date:
2025.05.15 17:06:05 +0530 differently with ground floor known as first floor; first floor known as second floor; and second floor known as third floor.
55. I may note that the site plan Ex.PW1/1 does not show any third floor in the property.
56. This again raises a doubt about the authenticity of claim of the plaintiff and it is highly unlikely that a true owner and landlord would not be aware about the correct status/number of floors of his own property.
57. Be that as it may, with the plaintiff failing to discharge the burden of proof qua landlord-tenant relationship between the parties, in my humble opinion, all the issues under consideration are liable to be decided against the plaintiff and in favour of defendant. It is ordered accordingly.
58. Before parting with the issue in hand, I may note that the principle of estoppel, as laid in section 116 Indian Evidence Act, 1872 was not available in this case as the said principle estops a tenant from challenging the title of his landlord during the continuance of the tenancy. The said principle shall not apply in this case as it has been found that the relationship itself is doubtful.
59. Again, I may note that an argument was made on behalf of plaintiff that son of defendant/PW-2 had admitted in his examination-in-chief that his father/defendant "is residing in the suit property on rent". This, it was argued, was sufficient to Digitally signed by AASHISH CS No. 143/20 Ashish Kumar Vs. Amar Singh AASHISH GUPTA 24 of 26 GUPTA Date:
2025.05.15 17:06:21 +0530 establish that relationship between the parties was of landlord and tenant. The said contention of the plaintiff is without merit as the plaintiff wants this court to read one stray statement of PW-2 in isolation without looking at his entire testimony. If one reads the entire testimony of PW-2, he has supported the case of defendant by saying that his father was made to sign some blank papers by plaintiff when his father/defendant took money from plaintiff to the tune of Rs.1 lac. Thus, the said stray statement of PW-2 would not be sufficient to discharge the burden of proof placed on plaintiff's shoulders.
Issue no. (iv)
iv) Whether the plaintiff is entitled to cost of the suit? OPD
60. In view of the findings returned while deciding issue no. (i), (ii) and (iii) above, this issue is also decided against the plaintiff and in favour of defendant.
Issue no. (v)
v) Whether the suit of the plaintiff is without any cause of action?
OPD
61. No evidence has been led by defendant to demonstrate that the plaintiff sued him without any cause of action. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
Digitally
CS No. 143/20 Ashish Kumar Vs. Amar Singh signed by 25 of 26
AASHISH
AASHISH GUPTA
GUPTA Date:
2025.05.15
17:06:35
+0530
Conclusion
62. In view of the findings returned above, the suit fails. It is dismissed.
63. Parties to bear their own cost.
Digitally signed64. Let a decree sheet be prepared accordingly. by AASHISH GUPTA AASHISH Date:
GUPTA 2025.05.15
17:06:40
+0530
Announced in the Aashish Gupta
open Court on 15.05.2025 District Judge-01, North-East District,
Karkardooma Courts, Delhi
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