Delhi District Court
Ritesh Jain & Ors. V. Seema Khan vs Smt. Seema Khan on 25 August, 2018
Ritesh Jain & Ors. V. Seema Khan
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 517/2017
UNIQUE CASE ID NO.: 612676/16
IN THE MATTER OF :
1. Sh. Ritesh Jain
S/o Late Sh. J.D. Jain
R/o Old Gur Mandi, Samalkha,
Panipat, Haryana.
2. Sh. Vinod Jain (Expired on 17/11/2013)
Through his L.Rs namely:
A) Smt. Kamla Devi, Mother
B) Smt. Rekha Jain, Widow
C) Sh. Vinal Jain, Son
D) Ms. Sakshi Jain, Unmarried daughter
E) Master Namal Jain, Minor Son
through natural guardian and mother
Smt. Rekha JainMinor
All R/o C2, IBlock,
Sidhi Vinayak Apartment,
Part of buildup on Khasra No. 766,
Near Hoowar Apartment,
Situated in Extended Lal Dora of
Village Burari, Delhi110084.
Suit No. 517/2017 Page 1 of 54
Ritesh Jain & Ors. V. Seema Khan
3. Smt. Nidhi Jain
W/o Sh. Vikas Deep Jain
R/o 2325, Sector15,
Sonepat, Haryana. ....Plaintiffs
VERSUS
Smt. Seema Khan
W/o Sh. Asho Khan
R/o C2, Ground Floor,
Balaji Apartment (behind Hoowar Apartment),
Part of buildup on Khasra No. 784/1,
situated in the Extended Lal Dora of
Village Burari, Delhi110084. ...Defendant
SUIT FOR POSSESSION, MESNE PROFIT, MANDATORY &
PERMANENT INJUNCTION
Date of institution of the Suit : 13/01/2012
Date on which Judgment was reserved : 01/08/2018
Date of Judgment : 25/08/2018
Suit No. 517/2017 Page 2 of 54
Ritesh Jain & Ors. V. Seema Khan
JUDGMENT
By way of present judgment, this court shall adjudicate suit for possession, mesne profit, mandatory and permanent injunction filed by the plaintiffs against the defendant. CASE OF THE PLAINTIFFS AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under: (1) Smt. Manju Aggarwal, W/o Sh. Pawan Kumar Aggarwal, R/o 15, B.D. Estate, Timarpur, Delhi was the absolute owner of the plot measuring 01 Bigha, 3.1/2 Biswas i.e. 1183 sq. yards out of Khasra No. 784/1 situated in Extended Lal Dora in Revenue Estate of Village Burari, Delhi110084. Smt. Manju Aggarwal sold this land jointly to (i) Sh. Vinod Kumar Jain (plaintiff no.2), (ii) Sh. Bharat Bhushan, S/o Sh. H.R. Bhatla, R/o 142, N.G.M. Samalkha, Panipat, Haryana, (iii) Sh. Suit No. 517/2017 Page 3 of 54
Ritesh Jain & Ors. V. Seema Khan Sandeep Bansal, S/o Sh. Satya Narayan Bansal, R/o Bansal Iron Foundary, Samalkha, Panipat, Haryana, (iv) Sh.Satparkash Mittal, S/o Sh. Ram Narain, R/o Sonepat, Haryana by way of Sale Deed registered at no. 5611, in Addl. Book no.1, Volume no. 1567, on pages no. 140 to 150, registered on 22/08/2005 with the office of SubRegistrar, Sub. Distt.1, Delhi. Therefore all these persons became the coowners and cosharers of their respective 1/4th undivided share. Later on, they all raised construction of 24 flats over the said land by their own funds, which is known as Balaji Apartment.
(2) On 01/09/2006, Sh. Bharat Bhushan, one of the coowner of the flats had given the flat no. C2, Ground Floor, Balaji Apartment, Burari, Delhi110084 to the defendant on the oral tenancy, on monthly rent of Rs.5,000/for eight months w.e.f. 01/09/2006 and rent was payable monthly. The defendant paid rent only for three months and thereafter, neither paid Suit No. 517/2017 Page 4 of 54 Ritesh Jain & Ors. V. Seema Khan rent nor vacated the flat. Sh. Bharat Bhushan persisted in demanding the arrears of rent as well as rent for the current period and also for vacation of flat but she delayed the matter on one pretext or the other.
(3) The defendant had filed a false and frivolous suit no. 502/2007 for permanent injunction against Sh .Subhash Chander, Sh. Rajesh,Sh. Pappu @ Kulbhushan Batla, Sh. Bharat Bhushan and Sh. Hansraj Batla. It has further been stated that defendant nos. 1, 2, 3 and 5 of the suit had nothing to do with the flat in question and only defendant no.4 Sh. Bharat Bhushan was one of the coowner of the flat. The abovesaid suit was dismissed by the court of Sh. Jitender Singh, the then Ld. Civil Judge, Delhi vide order dated 23/07/2009. The owners had made repeated request since 2007 to the defendant to vacate the said flat but the defendant has not vacated the same and had been postponing the matter on one pretext or the other. In the meanwhile, Suit No. 517/2017 Page 5 of 54 Ritesh Jain & Ors. V. Seema Khan plaintiff no.2 Sh. Vinod Jain became ill and went to the stage of coma since May 2010. The other coowners were residing in Haryana and the defendant took full benefit of this situation and had been promising to them that she will vacate this flat very soon but she had no intentions to vacate the same. (4) Thereafter, the three coowners namely S/Sh. Bharat Bhushan, Sandeep Bansal and Sh. Satparkash Mittal seeing the conduct of the defendant and her dishonest intentions, sold their portion of the flat to the plaintiffs on 24/11/2011 by Sale Deed No.11,166 registered with SubRegistrar1, Delhi. Hence, the plaintiff no.1 became the owner of 60% undivided portion, 25% remained with plaintiff no.2 and 15% share went to plaintiff no.3. The 75% portion of the said flat was purchased for a sale consideration of Rs.3,37,500/. They handedover the symbolic possession of the said flat to the plaintiffs. The plaintiff nos. 2 and 3 asked the defendant to vacate the flat but she refused to vacate the same. On this, Suit No. 517/2017 Page 6 of 54 Ritesh Jain & Ors. V. Seema Khan the plaintiffs got issued a legal notice upon the defendant dated 15/12/2011 by means of which the defendant was called upon to vacate the said flat and claimed the damages @ Rs.10,000/ p.m. for using this flat, which is prevalent rate of rent of this flat but the said notice was neither replied not complied by the defendant despite service of the said notice. CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT Summons was issued to the defendant and the defendant has filed the written statement in the present case. Succinctly, the case of the defendant is as under:
(i) The present suit filed by the plaintiffs is liable to be dismissed since the same has been filed beyond limitation and simply created a right by taking the symbolic possession of the suit property.
Suit No. 517/2017 Page 7 of 54
Ritesh Jain & Ors. V. Seema Khan
(ii) The present suit is not maintainable in the present form and is liable to be dismissed as the plaint does not disclose any cause of action ever accrued in favour of the plaintiffs and against the defendant and hence, the suit of the plaintiffs is liable to be rejected under Order 7 Rule 11 CPC.
(iii) The suit of the plaintiffs is undervalued as the property in question is more than Rs.30 Lakhs. This court has no pecuniary jurisdiction to try, entertain and decide the present suit.
(iv) On merits, the contents of the plaint have been denied and it is stated that defendant has been in possession of the suit property since February 2007 and has never been inducted as a tenant in it. It has been stated that in Jan/Feb., 2006 one Sh. Subhash Chand, Sh. Rajesh, Sh. Pappu, Sh. Bharat Bhushan @ Titu & Sh. Hans Raj Bhatla of Samalakha, Distt. Panipat, all being the property dealers had given an offer to the defendant to purchase the flat no. A3, Suit No. 517/2017 Page 8 of 54 Ritesh Jain & Ors. V. Seema Khan Balaji Apartments and also received Rs.4.00 Lakhs as advance money of the total consideration amount of Rs.13.00 Lakhs, out of which Rs.9.00 Lakhs, the aforesaid persons assured the defendant to finance from their own pockets and the said persons showed their reluctance to handover the possession at that time over the said flat and till the final and complete construction of the said flat, the aforesaid persons handedover the possession of the suit property to the defendant and assured the completion of construction work within six months.
(v) Further, it has been stated that in between that time, the MCD officials sealed the flat no. A3, Balaji Apartments, Burari, Delhi and Sh. Subhash Chand alongwith other aforesaid persons demanded Rs.One Lakh for settlement with the MCD officials and then a cheque of Rs.1,00,000/ got issued from the account of defendant's husband. The aforesaid persons had then in security of the total Rs.5.00 Suit No. 517/2017 Page 9 of 54 Ritesh Jain & Ors. V. Seema Khan Lakhs handedover four cheques no. 205283, 205284, 205285 and 205286, dated 12/02/2007, 09/04/2007, 30/03/2007 and 11/07/2007 and assured that in case the aforesaid persons failed to handover the physical possession of the abovesaid flat, in such event, the defendant could then demand back Rs.5.00 Lakhs with interest and those cheques shall be returned by the defendant to Sh. Subhash Chand and other persons. However, the aforesaid persons had neither handedover the possession nor completed the construction of the said flat within the agreed period and rather sold the said flat to some third party without returning the amount paid to them and rather made stop payment of the above mentioned cheques.
(vi) Sh. Subhash Chander, Sh. Rajesh, Sh. Pappu @ Kulbhushan Batla, Sh. Bharat Bhusan and Sh. Hans Raj Batla are/were the renowned property dealers/ owners of the entire flats including the suit property. It has been stated Suit No. 517/2017 Page 10 of 54 Ritesh Jain & Ors. V. Seema Khan that besides the aforesaid persons filed their written statement beyond prescribed time in law, however, the said suit was dismissed for nonprosecution for the defendant's prolonged illness due to her advance stage of pregnancy.
(vii) The defendant has been occupying the suit property as owner and further since she had no connection whatsoever with the plaintiffs, hence, the question of vacating the flat does not arise at all.
(viii) The plaintiffs in connivance with S/Sh. Bharat Bhusan, Subhash Chand, Hans Raj Bathla, Papoo etc. had manipulated into the papers and hence, they did not take the physical possession of the suit property. Further, the plaintiffs, by entering into illegal transaction of the suit property, have tried to save the aforesaid persons by not returning the amounts collected from the defendant and also tried to cover their misdeeds by creating fresh limitation in the Suit No. 517/2017 Page 11 of 54 Ritesh Jain & Ors. V. Seema Khan matter. The present suit of the plaintiffs has been prayed to be dismissed with exemplary costs.
REPLICATION AND ISSUES Plaintiffs have filed the replication controverting the allegations/ contentions in the written statement of the defendant and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 25/07/2012: ISSUES
1) Whether the plaintiff is entitled to decree of possession of Flat C2, Ground Floor, Balaji Apartment, behind Hoowar Apartment, part of buildup on Khasra no. 784/1, Situated in the Extended Lal Dora of Village Burari, Delhi against the defendant, as alleged? OPP
2) Whether the plaintiff is entitled to damages @ Rs.10,000/ p.m. from the defendant from the date of filing of suit, as alleged? OPP
3) Whether the plaintiff is entitled to decree of mandatory injunction directing defendant to deposit the electricity and water charges, as alleged? OPP Suit No. 517/2017 Page 12 of 54 Ritesh Jain & Ors. V. Seema Khan
4) Whether the plaintiff is entitled to decree to restraining defendant from creating third party interest in the suit property? OPP
5) Whether the suit of the plaintiff is not maintainable? OPD
6) Whether the suit of the plaintiff is barred by limitation?
OPD
7) Whether this Court has no pecuniary jurisdiction to try the suit? OPD
8) Whether the plaintiff has not approached the Court with clean hands and has concealed material facts? OPD EVIDENCE OF THE PLAINTIFFS AND DEFENDANT AND DOCUMENTS RELIED UPON BY THEM:
The plaintiffs, in order to prove their case, led plaintiff evidence and got examined the following summoned witness:
(a) Sh.Manoj, Ahlmad in the court of Ms. Ruchi Aggarwal, CJ/Central, Tis Hazari Courts, Delhi as PW1, who placed on record copies of plaint and order dated 23/07/2009 passed in the case file bearing Suit no. 502/07 titled as Seema Khan Vs. Suit No. 517/2017 Page 13 of 54 Ritesh Jain & Ors. V. Seema Khan Subhash Chand & Ors. as Ex.PW1/1 and Ex.PW1/2 respectively.
(b) Sh. Satbir Singh, UDC, SubRegistrarI, Kashmere Gate, Delhi as PW2, who placed on record copies of sale deed dated 22/08/2005 registered at no. 5611 in additional book no. 1, Volume no. 1567 on pages 140150 and sale deed dated 24/11/2011 registered at no. 11 in additional book no.1, volume no. 4125 page no. 917 as Ex.PW2/1 and Ex.PW2/2 respectively.
Plaintiffs also got examined plaintiff No.1 Sh. Ritesh Jain as PW3, who relied upon the following documents:
1. Medical reports of Sh. Vinod Jain as Ex.PW3/1.
2. Notice dated 15/12/2011 Ex.PW3/2.
3. Postal slip Ex.PW3/3.
4. Envelope Ex.PW3/4.
Suit No. 517/2017 Page 14 of 54
Ritesh Jain & Ors. V. Seema Khan Plaintiffs also got examined Sh. Sandeep Gambir as PW4, partner of M/s. Gambhir Properties & Builders in order to prove the rent of Rs.10,000/ per month.
On the other hand, defendant has led defendant evidence and examined herself as DW1. The DW1 has filed her evidence by way of affidavit wherein she reiterated and reaffirmed the contents of the written statement. DW1 was crossexamined by counsel for the plaintiffs. DW1 in her testimony has relied upon the following documents:
(i) Ex. DW1/1 four cheques and
(ii) Ex DW1/2 - Copy of Written Statement filed in Suit No. 520/2007.
The defendant also got examined her husband Sh. Ashu Khan as DW2. The DW2 has filed his evidence by way of affidavit. DW2 was crossexamined by counsel for the plaintiffs. Suit No. 517/2017 Page 15 of 54
Ritesh Jain & Ors. V. Seema Khan This court heard the final arguments as advanced by Ld. counsel for the plaintiffs and defendant and perused the material available on record.
ISSUE WISE FINDINGS:
ISSUE NO.6:
6) Whether the suit of the plaintiff is barred by limitation? OPD The onus to prove this issue was upon the defendant.
The defendant except making bald allegation regarding suit is barred by Limitation has failed to show how come the suit of the Plaintiff is time barred. The Plaintiff has claimed oral tenancy. The defendant has denied the Oral Tenancy and claimed her ownership in the suit property. It is well settled law that the tenant will remain tenant and he cannot claim ownership inspite of long possession or even decades of possession. The plaintiffs claim even if considered to be on the basis of ownership/title still it is within period of Limitation. The defendant admittedly claiming herself to be in Suit No. 517/2017 Page 16 of 54 Ritesh Jain & Ors. V. Seema Khan possession of the suit property from February, 2007 and the suit has been filed by the Plaintiffs on 12.1.2012 and in terms of Article 65 of the Limitation Act, the prescribed period of Limitation is 12 years when the defendant claims adverse possession. In the present case the defendant is not claiming any adverse possession or hostile possession qua the Plaintiffs but claiming ownership rights from other persons and moreover the period of the said possession although not the adverse possession was also about 5 years prior to filing of the suit.
Considered from any view point the suit filed by the Plaintiffs is well within the prescribed period of Limitation and suit of the plaintiff is not barred by Limitation. Accordingly, this issue is decided in favour of the Plaintiffs and against the defendant. ISSUE NOS.1 TO 5 AND 8:
1) Whether the plaintiff is entitled to decree of possession of Flat C2, Ground Floor, Balaji Apartment, behind Hoowar Apartment, part of buildup on Khasra no. 784/1, Suit No. 517/2017 Page 17 of 54 Ritesh Jain & Ors. V. Seema Khan Situated in the Extended Lal Dora of Village Burari, Delhi against the defendant, as alleged? OPP
2) Whether the plaintiff is entitled to damages @ Rs.10,000/ p.m. from the defendant from the date of filing of suit, as alleged? OPP
3) Whether the plaintiff is entitled to decree of mandatory injunction directing defendant to deposit the electricity and water charges, as alleged? OPP
4) Whether the plaintiff is entitled to decree to restraining defendant from creating third party interest in the suit property? OPP
5) Whether the suit of the plaintiff is not maintainable? OPD
8) Whether the plaintiff has not approached the Court with clean hands and has concealed material facts? OPD The aforesaid issue nos.1 to 5 and 8 are interrelated and interconnected to each other and accordingly they are decided to gether.
CLAIM OF OWNERSHIP OF DEFENDANT ON THE BASIS OF ORAL AGREEMENT:
The defendant has made the following contentions to claim her ownership in the property in question: Suit No. 517/2017 Page 18 of 54 Ritesh Jain & Ors. V. Seema Khan In Jan/Feb., 2006 one Sh. Subhash Chand, Sh. Rajesh, Sh. Pappu, Sh. Bharat Bhushan @ Titu & Sh. Hans Raj Bhatla of Samalakha, Distt. Panipat, all being the property dealers had given an offer to the defendant to purchase the flat no. A3, Balaji Apartments and also received Rs.4.00 Lakhs as advance money of the total consideration amount of Rs.13.00 Lakhs, out of which Rs.9.00 Lakhs, the aforesaid persons assured the defendant to finance from their own pockets and the said persons showed their reluctance to handover the possession at that time over the said flat and till the final and complete construction of the said flat, the aforesaid persons handedover the possession of the suit property to the defendant and assured the completion of construction work within six months. In between that time, the MCD officials sealed the flat no. A3, Balaji Apartments, Burari, Delhi and Sh. Subhash Chand alongwith other aforesaid persons demanded Rs.One Lakh for settlement with the MCD officials Suit No. 517/2017 Page 19 of 54 Ritesh Jain & Ors. V. Seema Khan and then a cheque of Rs.1,00,000/ got issued from the account of defendant's husband. The aforesaid persons had then in security of the total Rs.5.00 Lakhs handedover four cheques no. 205283, 205284, 205285 and 205286, dated 12/02/2007, 09/04/2007, 30/03/2007 and 11/07/2007 and assured that in case the aforesaid persons failed to handover the physical possession of the abovesaid flat, in such event, the defendant could then demand back Rs.5.00 Lakhs with interest and those cheques shall be returned by the defendant to Sh. Subhash Chand and other persons. However, the aforesaid persons had neither handedover the possession nor completed the construction of the said flat within the agreed period and rather sold the said flat to some third party without returning the amount paid to them and rather made stop payment of the above mentioned cheques. It is submitted Sh. Subhash Chander, Sh. Rajesh, Sh. Pappu @ Kulbhushan Batla, Sh. Bharat Bhusan and Sh. Hans Raj Suit No. 517/2017 Page 20 of 54 Ritesh Jain & Ors. V. Seema Khan Batla are/were the renowned property dealers/ owners of the entire flats including the suit property. The defendant has been occupying the suit property as owner and further since she had no connection whatsoever with the plaintiffs, hence, the question of vacating the flat does not arise at all.
ARGUMENTS OF THE PLAINTIFFS The defendant is claiming to be in possession being the owner. But she did not produce even a single document to this effect. The defendant has stated that in her W.S. that she entered into oral agreement to sell in respect to another property i.e. Flat No. A3 with one Subhash Chand, Rajesh, Pappu, Bharat Bhushan @ Titu & Hans Raj by paying the advance of 4 lacs. Due to delay in completion, the suit property i.e. flat no .C2 was handed over by them. The PW1 has admitted in her cross 'I did not give any notice Suit No. 517/2017 Page 21 of 54 Ritesh Jain & Ors. V. Seema Khan in writing to one Subhash Chand, Rajesh, Pappu, Hans Raj Bhatla after receiving the summons of this case that they have cheated me nor I demanded my money refunded back in writing' the defendant even failed to produce the receipt of 4 lacs, any entry or income tax record, any single document in this respect. Moreover, the amount as alleged was stated to be given against flat A23 to the persons who have no concern, right, title or any interest in respect to the suit property, except Bharat Bhushan only who was one of the co owner of the flat in question. Admittedly the defendant has not filed any suit for specific performance in respect to property allegedly under agreement to sell. She allegedly received the return cheques of 5 lacs but admittedly did not even present these for encashment. She is claiming to be in possession being the owner of the property on the basis of oral agreement to sell (which was allegedly in respect to another property, not with the owners of suit property, no amount as advance established, no single document produced of transaction in respect to flat A3 or C2, no specific Suit No. 517/2017 Page 22 of 54 Ritesh Jain & Ors. V. Seema Khan performance filed in respect to alleged transaction, filed only injunction suit which finally dismissed, even never offered the remaining amount of agreement). The plea of defendant is barred by law as per Section 53A of Transfer of Property Act, Section 17D Registration Act, Section 92 Indian Evidence Act. The Plaintiffs have relied upon the following Judgments:
i) V.R. Sudhakara Rao Vs. T.V. Kameswari, Civil Appeal 830304/2003 decided on 18/04/2007.
ii) Govind Prasad Dubey Vs. Chandra Mohan, AIR 2009 M.P. 159
iii) Rambhau Namdeo Gajra Vs. Narayan Bapuji, AIR 2004 SC 4342
iv) Col. Inderjeet Singh Vs. Vikram Singh, DHC, dated 13/07/2012
v) Earthtech Enterprises Vs. Kuljeet Singh, RFA 184/2012, dated 06/02/2013.
vi) Legal notice not replied amounts to admission as laid down in '1980 RLR 44 Delhi' Suit No. 517/2017 Page 23 of 54 Ritesh Jain & Ors. V. Seema Khan FINDINGS OF THE COURT The entire case of defendant is based upon the premise that on the basis of the oral agreement/contract the suit property was handed over to her by some third persons and she was enjoying the property in question as owner thereof.
The moot question before this Court is whether on account of such oral agreement the defendant can claim ownership or protection under Section 53A of Transfer of Property Act.
The case of the defendant is based on the premise of oral agreement and as per her pleadings, she came in possession of the suit property on or about Jan/February, 2006 on the basis of the alleged oral agreement. The defendant is seeking ownership rights in the suit property. It is apposite to refer the Judgment passed in Special Leave Petition (C) no.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State Of Haryana & Anr. decided on October 11, 2011.
Suit No. 517/2017 Page 24 of 54
Ritesh Jain & Ors. V. Seema Khan "Scope of an Agreement of sale "11. Section 54 of TP Act makes it clear that a con tract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any in terest in, or charge on, the property. This is ex pressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and an nexed to the ownership of property, but not amounting to an interest or easement therein."
"In India, the word 'transfer' is defined with refer ence to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
"In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held: "Protection provided under Section 53A of the Act to the proposed transferee is a shield only against Suit No. 517/2017 Page 25 of 54 Ritesh Jain & Ors. V. Seema Khan the transferor. It disentitles the transferor from disturbing the possession of the proposed trans feree who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
"It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as re quired by law), no right, title or interest in an im moveable property can be transferred.
"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sec tions 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable prop erty can be made only by a registered instrument and an agreement of sale does not create any in terest or charge on its subject matter.
Suit No. 517/2017 Page 26 of 54
Ritesh Jain & Ors. V. Seema Khan The aforesaid dictum vividly postulates that the Agree ment to Sale/Sell does not confer any right, title or interest in the property. The defendant is also not entitled to benefit of Section 53A of the Transfer of Property Act. I have profit to refer paras No.38 and 39 of the Judgment passed by Hon'ble Division in RFA (OS) 117/2015 titled Anuj Chopra And Ors. Versus Vaneeta Khanna And Ors decided on 25.5.2016:
38. Section 17(1A) of the Registration Act provides as follows: "17. Documents of which registration is com pulsory (1) The following documents shall be regis tered, if the property to which they relate is situate in a district in which, and if they have been exe cuted on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Regis tration Act, 1877 or this Act came or comes into force, namely: instruments of gift of immovable property; ****** ******** ***** "(1A) The documents containing contracts to trans fer for consideration, any immovable property for the purpose of section 53A of the Transfer of Prop erty Act, 1882 (4 of 1882 ) shall be registered if they have been executed on or after the commence Suit No. 517/2017 Page 27 of 54 Ritesh Jain & Ors. V. Seema Khan ment of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A ****** ******** *****
49. Effect of nonregistration of documents required to be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall
(a) affect any immovable property comprised therein,
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affect ing such property or conferring such power; unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property or as evidence of any collateral transaction not required to be effected by registered instrument."
Section 53A of the Transfer of Property Act, 1882 reads as follows: Suit No. 517/2017 Page 28 of 54 Ritesh Jain & Ors. V. Seema Khan "53A. Part performance.--Where any person con tracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable cer tainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part perfor mance of the contract and has done some act in fur therance of the contract, and the transferee has per formed or is willing to perform his part of the con tract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the trans feror or any person claiming under him shall be de barred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right ex pressly provided by the terms of the contract: Pro vided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
"39. The judgment in Som Dev v. Rati Ram AIR 2006 SC 788 holds that after the coming into force of the Registration and Other Related Laws (Amendment) Act, 2001, all documents, "contain ing contracts to transfer for consideration in immov able property for the purpose of Section 53A of the Transfer of Property Act shall be registered if they Suit No. 517/2017 Page 29 of 54 Ritesh Jain & Ors. V. Seema Khan have been created after commencement of subsec tion 1A (of Section 17) of the Transfer of Property Act. (sic)" The effect of this amendment - on a joint reading of Section 17 (1A), Section 49 of the Regis tration Act and Section 53A of the Transfer of Property Actis that the claim to title on the basis of part performance - under Section 53A of the Transfer of Property Act is untenable if the Agree ment to Sell is unregistered.1 In the present case, the Agreement to Sell executed by Judge Chawla in favour of Vaneeta Khanna, first plaintiff clearly did not create any legal right and could not have been even considered; in any event it created no rights under Section 53A and could not have been brought on record by virtue of Section 49 of the Registration Act."
The legislature in its wisdom has amended Section 53A of Transfer of Property Act and it came to force on 2492001. The protection under section 53A can be availed of only under a regis tered agreement. Section 53A of the T.P. Act before amendment recognized part performance of the contract even though the con tract used to be unregistered and the transferee's rights to remain in possession was protected. By the Amendment Act No.48 of 2001, the words "the contract though required to be registered, has not Suit No. 517/2017 Page 30 of 54 Ritesh Jain & Ors. V. Seema Khan been registered, or" have been omitted from the provision. The effect of the amendment is that now if any person takes possession in pursuance to a contract which is required to be registered but has not been registered, the transferee has no right to remain in posses sion of the property. To give effect to this principle, S. 17 (1A) has accordingly been inserted in the Registration Act of 1908, which mandates that such contract is now required to be registered. If such a contract entered into after the amendment is not registered then as per S. 49 of the Act of 1908, the same can neither affect any immovable property comprised therein nor will it be received as evidence of any transaction affecting such property or conferring such power. Moreover, in this case the defendant has pleaded the oral agreement and for invocation of Section 53A after Amendment thereof, the contract must only be in writing but it must also be registered. No person can avail the protection unless the aforesaid requirements were completed in all respect. Suit No. 517/2017 Page 31 of 54
Ritesh Jain & Ors. V. Seema Khan The defendant has further failed to show that in what manner the said Sh. Subhash Chander, Sh. Rajesh, Sh. Pappu @ Kulbhushan Batla, and Sh. Hans Raj Batla were the owners of the entire flats in the Balaji Apartments including the suit property. The defendant has failed to produce even a single document show their ownership in the suit property. She is claiming herself to be the owner of the property without any documentary basis.
From the discussion, as adumbrated hereinabove, the alleged Oral Agreement even with the third persons (who have no right in the suit flat/property) does not confer any right, title and interest in the property in question in favour of the defendant and in this manner the defendant cannot be termed as owner of the suit property.
CLAIM OF OWNERSHIP OF PLAINTIFF ON THE BASIS OF SALE DEEDS EXHIBIT PW2/1 AND PW2/1:
The Plaintiffs have contended that Smt. Manju Aggarwal, W/o Sh. Pawan Kumar Aggarwal, R/o 15, B.D. Estate, Suit No. 517/2017 Page 32 of 54 Ritesh Jain & Ors. V. Seema Khan Timarpur, Delhi was the absolute owner of the plot measuring 01 Bigha, 3.1/2 Biswas i.e. 1183 sq. yards out of Khasra No. 784/1 situated in Extended Lal Dora in Revenue Estate of Village Burari, Delhi110084. Smt. Manju Aggarwal sold this land jointly to (i) Sh. Vinod Kumar Jain (plaintiff no.2), (ii) Sh. Bharat Bhushan, S/o Sh. H.R. Bhatla, R/o 142, N.G.M. Samalkha, Panipat, Haryana, (iii) Sh. Sandeep Bansal, S/o Sh. Satya Narayan Bansal, R/o Bansal Iron Foundary, Samalkha, Panipat, Haryana, (iv) Sh.Satparkash Mittal, S/o Sh. Ram Narain, R/o Sonepat, Haryana by way of Sale Deed registered at no. 5611, in Addl. Book no.1, Volume no. 1567, on pages no. 140 to 150, registered on 22/08/2005 with the office of SubRegistrar, Sub. Distt.1, Delhi. Therefore all these persons became the coowners and cosharers of their respective 1/4th undivided share. The said Sale Deed was exhibited as Ex.PW2/1. Thereafter, the three coowners namely S/Sh. Bharat Bhushan, Sandeep Bansal and Sh. Satparkash Mittal sold their portion of the flat to the plaintiffs on 24/11/2011 by Sale Deed No.11,166 Suit No. 517/2017 Page 33 of 54 Ritesh Jain & Ors. V. Seema Khan registered with SubRegistrar1, Delhi. Accordingly, the plaintiff no.1 became the owner of 60% undivided portion, 25% remained with plaintiff no.2 and 15% share went to plaintiff no.3. The 75% portion of the said flat was purchased for a sale consideration of Rs.3,37,500/. The said Sale Deed was exhibited as Exhibit PW 2/2.
ARGUMENTS OF DEFENDANT ON THE OWNERSHIP OF PLAINTIFFS That it is an established law that the plaintiff should stand on its own legs and should prove the case beyond doubt. It is submitted that from pleading and so as to succeed the plaintiff were to prove following things: (1) Manju Aggarwal was the previous owner of the land as mentioned in para no. 1 of the suit, which the plaintiff failed to prove as no documents have been filed on record showing or proving the ownership of Manju Aggarwal as being the previous owner.
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Ritesh Jain & Ors. V. Seema Khan (2) The flat in question was infact belonging to alleged four co owners as is alleged in para 2 of the suit, and which also never been proved.
FINDINGS OF THE COURT The plaintiffs have proved on record Exhibit PW2/1 i.e. Sale Deed registered on 22.08.2005 executed by Manju Aggarwal in favour of (i) Sh. Vinod Kumar Jain (plaintiff no.2), (ii) Sh. Bharat Bhushan, S/o Sh. H.R. Bhatla, R/o 142, N.G.M. Samalkha, Panipat, Haryana, (iii) Sh. Sandeep Bansal, S/o Sh. Satya Narayan Bansal, R/o Bansal Iron Foundary, Samalkha, Panipat, Haryana,
(iv) Sh.Satparkash Mittal, S/o Sh. Ram Narain, R/o Sonepat, Haryana. The Plaintiffs have also proved on record Sale Deed dated 24.11.2011 executed by S/Sh. Bharat Bhushan, Sandeep Bansal and Sh. Satparkash Mittal in favour of Plaintiff No.1 and Plaintiff No.3 in respect of the suit property.
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Ritesh Jain & Ors. V. Seema Khan It is apposite to mention here that in para No.1 of the Plaint, details of Exhibit PW2/1 were referred and the defendant simply denied the same for want of knowledge and submitted that the plaintiffs may be put to strict proof. Similarly in para No.7 of the Plaint, details of Exhibit PW2/2 were referred and defendant again simply denied for want of knowledge and submitted that the plaintiffs may be put to strict proof. The specific case of the defendant is that Sh. Subhash Chander, Sh. Rajesh, Sh. Pappu @ Kulbhushan Batla, Sh. Bharat Bhusan and Sh. Hans Raj Batla are/were the renowned property dealers/ owners of the entire flats including the suit property. The Plaintiffs also admits the co ownership of Sh. Bharat Bhusan. The said Bharat Bhushan has derived his rights from Manju Aggarwal vide registered Sale Deed dated 22/08/2005 and in this manner the defendant had actually admitted the ownership of Smt. Manju Aggarwal.
Moreover, DW1 i.e. defendant herself and DW2 i.e. the husband of the defendant has categorically admitted in cross Suit No. 517/2017 Page 36 of 54 Ritesh Jain & Ors. V. Seema Khan examination that they are not aware that initially the suit property was in the name of Manju Aggarwal and she had sold the property vide Exhibit PW2/1 to (i) Sh. Vinod Kumar Jain (plaintiff no.2), (ii) Sh. Bharat Bhushan, (iii) Sh. Sandeep Bansal and (iv) Sh.Satparkash Mittal. They have also stated that they are not aware that the said suit property was sold to (i) Sh. Bharat Bhushan, (ii) Sh. Sandeep Bansal and (iii) Sh.Satparkash Mittal to Plaintiff No.1 and Plaintiff No.3 vide Sale Deed Exhibit PW2/2 and the Plaintiffs are the owners of the suit property. The defendant at no point of time challenge the veracity and genuineness of the said Sale Deeds Exhibit PW2/1 or Exhibit PW2/2 either by filing the counter claim and/or by way of separate suit although the same was well within the knowledge after filing of the present suit. The defendant has not even challenged the veracity of the said documents inspite of the fact that she is claiming herself to be owner of the property in question from one Shri Bharat Bhushan who had sold his share in the suit property to the Plaintiffs No.1 and 3. Moreover, as Suit No. 517/2017 Page 37 of 54 Ritesh Jain & Ors. V. Seema Khan adumbrated above, the defendant has failed to bring on record the ownership documents of Sh. Subhash Chander, Sh. Rajesh, Sh. Pappu @ Kulbhushan Batla, and Sh. Hans Raj Batla and further the defendant has failed to show her ownership right in the suit property or the alleged entitlement to claim the protection under Section 53A of Transfer of Property Act.
The defendant has filed written submissions and it is argued that the preparation of the sale deed for a value of Rs.3,75,000/ (Three lakhs seventy five thousand) only goes to root of the matter to the effect that the defendant was not inducted as tenant and that a conspiracy was hatched in between the plaintiff and earlier owners to prepare false document and to file present suit to get the property vacated.
The said arguments itself shows that defendant is admitting the ownership of the earlier owners when it was argued and pleaded that Plaintiff and earlier owners hatched Suit No. 517/2017 Page 38 of 54 Ritesh Jain & Ors. V. Seema Khan the conspiracy. Therefore, the ownership of suit property of earlier owners is apparently admitted by the defendant.
The defendant during the cross examination of Plaintiff No.1 has taken a plea that the said Sale Deeds relied upon by the Plaintiffs are sham and fabricated document (although the said plea was taken for first time) but the defendant has failed to demonstrate how the said Sale Deeds are sham and fabricated document.
Plaintiffs have sufficiently proved the said documents by leading cogent and convincing evidence. From the discussion as ad umbrated hereinabove, the Plaintiffs have able to prove the owner ship rights in the suit Flat/property.
LANDLORD AND TENANT RELATIONSHIP BETWEEN THE PLAINTIFFS AND DEFENDANT The plaintiffs have averred the following contentions as far as Landlord and tenant relationship between the plaintiffs and defendant: Suit No. 517/2017 Page 39 of 54 Ritesh Jain & Ors. V. Seema Khan On 01/09/2006, Sh. Bharat Bhushan, one of the co owner of the flats had given the flat no. C2, Ground Floor, Balaji Apartment, Burari, Delhi110084 to the defendant on the oral tenancy, on monthly rent of Rs.5,000/for eight months w.e.f. 01/09/2006 and rent was payable monthly. The defendant had paid rent only for three months and thereafter, neither paid rent nor vacated the flat. Sh. Bharat Bhushan persisted in demanding the arrears of rent as well as rent for the current period and also for vacation of flat but she delayed the matter on one pretext or the other. The owners had made repeated request since 2007 to the defendant to vacate the said flat but the defendant has not vacated the same and had been postponing the matter on one pretext or the other. In the meanwhile, plaintiff no.2 Sh. Vinod Jain became ill and went to the stage of coma since May 2010. The other coowners were residing in Haryana and the defendant took full benefit of this situation and had been promising to them that she will vacate this flat very soon but she had no intentions to vacate the same. Suit No. 517/2017 Page 40 of 54
Ritesh Jain & Ors. V. Seema Khan ARGUMENTS OF DEFENDANT ON THE QUESTION OF LANDLORD AND TENANT RELATIONSHIP The flat in question was letout by Sh. Bharat Bhushan as alleged in para 3. To prove the same it was incumbent upon the plaintiff to produce Sh. Bharat Bhushan, however the same had not been done and hence, the same could not be proved at all. Neither Bharat Bhushan was produced in support of the claim and nor any stipulation was made in the alleged sale deed favouring plaintiff that the flat in question was in possession of the defendant or the defendant was tenant. The plaintiff no.1 though appears in witness box but during cross examination had deposed as follows: "...The suit flat was given on rent to Seema Khan on an oral agreement on 01/09/2006. I do not have any written document in support of the said tenancy. I do not have any proof in regard to payment of rent by said Seema Khan. I do not have personal knowledge about payment of rent by Seema Khan to Bharat Bhushan but my information is based on court orders. The said court orders is Ex. PW1/1. It is wrong to suggest that Ex. PW1/1 does not disclose about tenancy of Seema Khan or payment of rent. I was not handed over any proof in regard to tenancy or payment of Suit No. 517/2017 Page 41 of 54 Ritesh Jain & Ors. V. Seema Khan rent by Seema Khan by previous owner. I am not aware of any legal notice was issued by the previous owner to Seema Khan for nonpayment of rent it is correct that the said flat was never rented out to Seema Khan in my presence. It is correct that I never have been in flat in question. It is correct that I have no record of allege letting in favour of Seema Khan ... It is correct that no rent was ever paid in my presence. No documentary proof of payment of rent was even shown to me... I have no knowledge that no such documentary proof of payment of rent is there because of that the flat in question was never let out to Seema Khan or it is a false story. It is correct that it is not mentioned in the sale deed executed in my favour that the flat in question is under occupation of Smt. Seema Khan being tenant or that Seema Khan is the tenant of seller or thereafter I shall be entitled to receive rent." Sh. Bharat Bhushan was never be produced as witness, however, even the allegations of plaint were not corroborated in any manner and more surprisingly the plaintiff had deposed during the cross examination in respect of the allegations of alleged rent in para 4 & 6 of the affidavit tendered in evidence that he cannot tell when the rent was demanded and further that when any request or demand was made to the defendant to vacate the flat. In nutshell, Suit No. 517/2017 Page 42 of 54 Ritesh Jain & Ors. V. Seema Khan it is submitted that plaintiff had completely failed to prove that the defendant is a tenant or she is in possession of the property in question being the tenant.
Surprisingly, the date of said sale deed is 24/11/2011 and there is no explanation or pleading that during this period i.e. 01/09/2006 till 24/11/2011 there was any notice or letter requiring the defendant either to pay the rent or to vacate the premises. Again the alleged demand could have been proved only by earlier owner and when out of four owners three were absolutely fine and in proper condition and there was nothing to suggest any impediment in producing them before the Hon'ble court. Needless to say, the plaintiff completely failed to prove that neither any previous owner brought to the witness box nor any attempt was made and most importantly it is not even in pleading that the earlier owner demanded the defendant to pay the rent and this thing acquired substance in view of the fact that the defendant had filed a suit for permanent injunction being no. 502/2007 and one of Suit No. 517/2017 Page 43 of 54 Ritesh Jain & Ors. V. Seema Khan the alleged coowner i.e. Bharat Bhushan was also one of the defendant in the suit. Therefore, it is submitted that had Sh. Bharat Bhushan inducted the defendant as tenant than there should have been pleading or demand of rent by Sh. Bharat Bhushan or there should have been evidences in support of demand of possession or at least Bharat Bhushan ought to have been come before the Hon'ble court in support of the allegation of the plaintiff. The mere factum of no production of Bharat Bhushan before the Hon'ble court, non mentioning that the defendant is a tenant in the sale deed dated 24/11/2011 and the preparation of the sale deed for a value of Rs.3,75,000/ (Three lakhs seventy five thousand) only goes to root of the matter to the effect that the defendant was not inducted as tenant and that a conspiracy was hatched in between the plaintiff and earlier owners to prepare false document and to file present suit to get the property vacated. Suit No. 517/2017 Page 44 of 54
Ritesh Jain & Ors. V. Seema Khan FINDINGS OF THE COURT There is no documentary evidence of landlord and tenant relationship. None of the Plaintiffs have inducted the defendant as tenant in the suit property. However, in the written statement Exhibit DW1/2 (relied upon by the defendant) of Suit No. 502/2007 (filed by defendant for permanent injunction against Sh .Subhash Chander, Sh. Rajesh,Sh. Pappu @ Kulbhushan Batla, Sh. Bharat Bhushan and Sh. Hansraj Batla), Sh. Bharat Bhushan has replied that suit property was given to the defendant on monthly rent of Rs.5,000/ per month and same was given for 8 months. The filing of the written statement has been relied upon by the defendant and the same was exhibited as Exhibit DW1/2 in the evidence of DW1. The suit for injunction filed by the Defendant against the said persons was dismissed for non prosecution and default. The Plaintiff has proved the order dated 23.07.2009 vide Exhibit PW1/2 and the aforesaid fact is also admitted by the defendant in her evidence.
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Ritesh Jain & Ors. V. Seema Khan Shri Bharat Bhushan has taken a specific stand in the said written statement regarding oral tenancy between him and defendant. Shri Bharat Bhushan was the germane of the oral tenancy but the Plaintiffs have failed to produce Shri Bharat Bhushan as witness in the witness box in order to prove the Oral tenancy. Shri Bharat Bhushan is not tested to the anvil of cross examination. The Plaintiffs have failed to produce any cogent and convincing evidence to show that there was oral tenancy which was created between Shri Bharat Bhushan and the defendant. The Plaintiffs have further failed to prove any documentary evidence either in shape of Lease/Rent Agreement, rent receipts etc. to show that there was relationship of tenancy between Shri Bharat Bhushan and the defendant or between the Plaintiffs and defendant. Therefore, the Plaintiffs have failed to prove the tenancy between Shri Bharat Bhushan or defendant or between Plaintiffs and defendant. However, the defendant has no right stay in the premises as the Plaintiffs have proved their ownership in the Suit No. 517/2017 Page 46 of 54 Ritesh Jain & Ors. V. Seema Khan property and as discussed hereinabove the defendant has no right, title and interest in the suit flat/property. Moreover, the Plaintiffs have sought the mesne profits from the date of filing of suit till recovery of possession and they have not claimed any arrears of rent in the suit.
QUESTION OF PREPETUAL AND MANDATORY INJUNCTION The Plaintiffs have examined Plaintiff No.1 as PW3. The defendant is claiming the ownership in respect of the property and in this manner there is definitely threat to the Plaintiffs that the defendant shall not create any third party right or part with the possession of the suit flat/property to some third party. The defendant was not able to shake the testimony of the said witness on material particulars. Considering overall facts and circumstances of the present case and on the discussion made hereinabove, the Plaintiffs have also been able to prove this Issue by cogent and convincing evidence. Furthermore, the defendant cannot Suit No. 517/2017 Page 47 of 54 Ritesh Jain & Ors. V. Seema Khan keep the electricity and water charges on the shoulders of the Plaintiffs and defendant shall be liable to pay electricity and water charges of the suit flat/property till handing over of the possession to the plaintiffs.
QUESTION OF MESNE PROFITS The plaintiffs have claimed a sum of Rs.10,000/ per month from filing of the suit till recovery of the possession by the Plaintiffs. The plaintiffs have examined PW4 who is said to be prop erty dealer and he has deposed that the suit property can fetch an amount of Rs.10,000/ per month. The onus to prove this issue was on the plaintiffs. The plaintiff No.1 in his evidence has deposed that the suit flat/property can fetch an amount of Rs.10,000/ per month. The defendant has not even crossexamined the plaintiff No.1 on this aspect.
In Surinder Singh v. Dr. Davinder Mohan, 2006 (4) R.C.R (Civil) 781, it was held "mesne profits or compensation for Suit No. 517/2017 Page 48 of 54 Ritesh Jain & Ors. V. Seema Khan the use and occupation of the premises has to be assessed at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of the decree."
In this case, the plaintiff No.1 has led her own evidence alongwith PW4 regarding the rate of mesne profits and Plaintiff No.1 was not crossexamined on this aspect. The defendant has given the suggestion to PW4 that the suit flat/property cannot fetch an amount of Rs.10,000/ per month but the defendant has failed to give positive suggestion that how much the rent the prop erty can fetch out.
It has been proved by the plaintiff that the defendant is in unauthorized possession of the suit flat/ property, so, the plain tiffs are entitled to claim mesne profits. Further, the amount so claimed by her seems reasonable and justified in the facts and cir Suit No. 517/2017 Page 49 of 54 Ritesh Jain & Ors. V. Seema Khan cumstances of the case. Thus, the plaintiffs are entitled to sum of Rs.10,000/ per month from filing the suit till recovery of posses sion by the Plaintiffs from defendant.
However, the plaintiffs are directed to pay the differential Court fee on the said amount and only then decree would be drawn up in accordance with law.
From the discussion, as adumbrated hereinabove, the aforesaid issue Nos. 1 to 5 and Issue No.8 are decided in favour of the Plaintiffs and against the defendant.
ISSUE NO.7:
7) Whether this Court has no pecuniary jurisdiction to try the suit?
OPD The onus to prove the issue was upon the defendant and except the self serving statement by defendant and her husband, the defendant has failed to bring any cogent and convincing documentary evidence that the value of the suit property was Suit No. 517/2017 Page 50 of 54 Ritesh Jain & Ors. V. Seema Khan Rs.30,00,000/ at the time of filing of the suit. However, during the crossexamination, plaintiff no.1 has admitted that the suit flat/property may be worth of Rs.30,00,000/ at the time of filing of the suit. The plaintiffs have valued the suit for the purpose of possession for a sum of Rs.4,50,000/.
The claim of the plaintiffs is not only based upon oral tenancy but also upon the ownership. The Plaintiffs are not able to prove oral tenancy than valuation of the property has to be done according to the market value and as per own admission of PW1, the suit flat/property may be worth of Rs.30,00,000/ at the time of filing of the suit, therefore, the valuation of the suit flat/property is taken as Rs.30,00,000/ for the relief of possession. This Court does not lack jurisdiction on the said pecuniary value. However, the plaintiffs have to file the deficient Court fee as the plaintiff has valued Rs.4,50,000/ for the purpose of possession of the suit property. Accordingly, the decree would not be drawn up until and Suit No. 517/2017 Page 51 of 54 Ritesh Jain & Ors. V. Seema Khan unless the plaintiffs do not deposit the deficient Court fee. Accordingly, issue No.7 is decided in the aforesaid terms. RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following: FINAL ORDER
(a) a decree of possession in favour of the plaintiffs and against the defendant is passed, thereby directing the defendant to handover the vacant and peaceful physical possession of the suit flat/property i.e. Flat no. C2, Ground Floor, Balaji Apartment, part of buildup on Khasra No.784/1, situated in extended Lal Dora of Village Burari, Delhi110084;
(b) A decree of recovery of damages/ mesne profits for unlawful and unauthorized use and occupation of the suit property @ Rs.10,000/ from the date of filing of suit till recovery of the Suit No. 517/2017 Page 52 of 54 Ritesh Jain & Ors. V. Seema Khan possession of the suit flat/property by the plaintiffs is also passed in favour of the plaintiffs and against the defendant.
(c) A decree of mandatory injunction is passed in favour of the plaintiffs and against the defendant thereby defendant is directed to deposit electricity and water charges of the suit flat/property till recovery of the possession of the suit flat/property by the plaintiffs.
(d) A decree of permanent injunction is also passed in favour of the plaintiffs and against the defendant thereby restraining the defendant from creating any third party interest, letting out or transferring by any other mode the suit flat/property
(e) The cost of the suit filed by the plaintiffs is also awarded in favour of the plaintiffs and against defendant.
The Decree shall not be drawn up until and unless the Plaintiffs do not deposit the deficient Court fee in terms of Issue No.2 i.e. decision of "Question of Mesne Profits" and Issue No.7 i.e. Suit No. 517/2017 Page 53 of 54 Ritesh Jain & Ors. V. Seema Khan decision on Valuation of suit flat/property. After payment of deficient court fee, the decreesheet be prepared according to terms of this decision.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 25/08/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
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