Delhi District Court
Mr. Abdul Shakir vs Smt. Abda Devi on 7 March, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge-03
(South District) Saket Court Complex, New Delhi.
RCA No. 9/2021
In the matter of :
Mr. Abdul Shakir
S/o Late Abdul Sattar
R/o D-156, 3rd Floor (front side portion)
6, Krishna Park,
New Delhi-110062 ......... Appellant
Versus
Smt. Abda Devi
W/o Sh. Ram Singh
R/o 130/7, Sector-I,
Pushp Vihar,
New Delhi-110017 ........ Respondent
Appeal preferred on : 23.08.2021
Judgment pronounced on : 07.03.2022
JUDGMENT
1. The appellant has preferred the present appeal under section 96 r/w. Order XLI of Code of Civil Procedure, 1908 (herein referred as CPC) against a judgment and decree dated 22.07.2021 passed by the Court of Ld. Additional Senior Civil Judge (South) in Civil Suit No. 82684/2016 titled as 'Abda Devi vs. Nisha & anr' whereby the Ld. Trial Court decreed the suit of respondent (plaintiff therein) against the appellant (defendant therein) whereby the suit of the plaintiff/respondent was decreed for possession in respect of property bearing no. D-156, Third Floor, (Front side), portion no. 6, RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 1 of 18 Krishna Park, New Delhi-110062 alongwith arrears of rent @ Rs.9,500/- per month w.e.f August, 2012 to October, 2014 with 10% interest per annum on said arrears of rent, damages/ mesne profits @ Rs.10,000/- per month w.e.f. November, 2014 till vacation of suit premises with interest @6% per annum from the date of its accrual till its realization and permanent injunction.
2. Brief facts of the case before the Ld. Trial Court were that the plaintiff/respondent is the owner/ landlord of property bearing no. D-156, Third Floor, (Front side), portion no. 6, Krishna Park, New Delhi-110062 (hereinafter referred to as the suit property) which she purchased from Ms. Aruna Kumari Gautam on 25.03.2011. However, earnest money was paid on 24.07.2010. The plaintiff/ respondent had applied for electricity meter in her name vide application no. 1000329241 dated 22.04.2011 and Rs.4,200/- was charged by BSES Rajdhani Power Ltd for said purpose from the plaintiff/ respondent. One Smt. Nisha W/o Rajiv, who was defendant no. 1 in the main suit, was inducted as a tenant in the suit property through a property dealer namely Sh. S.K. Dharma and until the entire consideration amount of suit property was paid by the plaintiff on 25.03.2011 to the seller Ms. Aruna Kumari Gautam, rent of the suit property was being collected by Sh. Balak Ram Gautam, husband of Ms. Aruna Kumari Gautam. On 25.03.2011, the plaintiff was authorized to collected rent from Smt. Nisha, defendant no. 1. The plaintiff/ respondent wanted to get the suit property vacated. However, upon the request of mediation by Sh. S.K. Dharma and Sh. Balak Ram Gautam, Ms. Nisha was allowed to stay in the property as tenant. After a lapse of three months, when the plaintiff/ respondent again asked Ms. Nisha to vacate the suit property, it was informed that Ms. Nisha was residing with RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 2 of 18 Defendant no. 2/ Appellant herein who was demanding a sum of Rs.2 lacs from Sh. Balak Ram Gautam, who was builder of the building where the suit property was situated. The plaintiff/ respondent made a complaint dated 12.03.2012 to PS Neb Sarai. On 07.06.2012, IO/SI Vijay Singh Yadav called the plaintiff/ respondent and all concerned persons to police station where Defendant no. 2/ Appellant produced two fake receipts, which he claimed to be executed by Smt. Aruna Kumari Gautam whereas Smt. Aruna Kumari Gautam refused taking any money or issuing any receipts to Defendant no. 2/ Appellant. The plaintiff/ Respondent also stated that FIR no. 240 dated 17.08.2012 u/s 420/468/471/34 IPC, PS Neb Sarai was registered against the Defendants.
2.1. It is further stated that Defendant no. 2/ Appellant got his police verification done in the capacity of being a tenant on 24.01.2011 and it is stated that Smt. Aruna Kumari was receiving rent from Defendant no. 2/ Appellant till March, 2011 and thereafter, Plaintiff/ Respondent received rent for the suit property from Defendant no. 2/ Appellant from April, 2011 to September, 2011 through property dealer Mr. S.K. Dharma. Thereafter, Defendant no. 2/ Appellant stopped making payment of rent and he stated that rent of October, 2011 to January, 2012 has been adjusted in electricity bill. The Defendant no. 2/ Appellant lastly paid rent for the month of February, 2012 @Rs.9,500/- per month and thereafter, stopped making further payment of rent. The Defendant no. 2/ Appellant refused to vacate the suit property and threatened that till the due amount was not paid by Mr. Balak Ram Gautam, he shall not vacate the suit property. In the meantime, Smt. Aruna Kumari Gautam executed a Sale Deed in favour of Plaintiff/Respondent which was RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 3 of 18 duly registered vide Registration no. 2341 in Book no. 1, Volume no. 11969 on pages 115 to 121 dated 18.02.2012, in the office of Sub-Registrar- V, New Delhi however, since the floor was wrongly mentioned as 'second floor' instead of 'third floor', Smt. Aruna Kumari Gautam executed a Rectification Deed dated 29.08.2013 in favour of the Plaintiff which was also registered vide Registration no. 4468 in Book no. 1,Volume no. 405 on pages 80 to 83 dated 30.08.2013 in office of Sub-Registrar-VA, Hauz Khas, New Delhi. It was further stated that during investigation in complaint given by the Plaintiff/ Respondent, the police officials called Defendant no. 2/ Appellant and Plaintiff/ Respondent to police station wherein Defendant no. 2/ Appellant gave in writing on 14.07.2012 that he had settled the entire dispute with Plaintiff/ Respondent and undertook to handover peaceful vacant possession of suit property within six months i.e. by 15.01.2013 however, the Defendant no. 2/ Appellant failed to vacate the suit property. Legal notice dated 22.10.2014 was sent to the Defendants which could not be served upon them. Therefore, the Plaintiff/ Respondent filed a suit against Ms. Nisha, Defendant no. 1 and Defendant no. 2/ Appellant.
3. Initially vide order dated 30.05.2016, Defendants were proceeded ex- parte and ex-parte judgment/ decree was passed on 12.08.2016 by Ms. Pooja Talwar, Ld. ASCJ. Thereafter, upon application under Order IX Rule 13 CPC was moved on behalf of Appellant/ Defendant no. 2 for setting aside ex-parte judgment/ decree dated 12.08.2016, which was allowed vide order dated 02.07.2018 and suit was restored.
RCA no. 9/21Abdul Shakir vs. Abda Devi Page no. 4 of 18 3.1. The Appellant/ Defendant no. 2 resisted the claim of the Respondent/ Plaintiff and filed written statement inter alia raising various objections including that the Respondent/ Plaintiff has failed to produce on record any rent agreement, rent receipt or any other document to prove landlord-tenant relationship between her and the Appellant/ Defendant no. 2. It was further stated that Plaintiff/ Respondent is not the owner of the suit property as she had purchased the flat at second floor in the building but in order to save Smt. Aruna Kumari Gautam and her husband, the Plaintiff/ Respondent in connivance with them had got Rectification Deed registered in her favour and since the ownership title of the Plaintiff/ Respondent was clouded with doubts, relief of declaration could not be granted.
3.2. It was further stated that the builder of building namely Sh. Balak Ram Gautam had played fraud upon the Plaintiff/ Respondent as well as on Defendant no. 2/ Appellant as an Agreement to Sell the suit property was also entered with Defendant no. 2/ Appellant against advance money of Rs.3 lacs out of total sale consideration of Rs.15 lacs, followed by further payment of Rs.3 lacs. It was further stated that since Defendant no. 2/ Appellant had paid a sum of Rs.6 lacs to the builder Mr. Balak Ram Gautam, he also got possession of the suit property. It was further stated that suit was bad for non- joinder of necessary parties as Smt. Aruna Kumari Gatuam and her husband Sh. Balak Ram Gautam were not made a party. The suit was also challenged on the ground of pecuniary jurisdiction stating that suit has not been properly valued.
RCA no. 9/21Abdul Shakir vs. Abda Devi Page no. 5 of 18
4. The Respondent/ Plaintiff filed her replication to the written statement denying all the pleas raised by the Appellant/ Defendant no. 2 and reaffirming the contents of the plaint.
5. On pleadings of parties, following issues were framed by Ld. Trial Court on 26.11.2018:
1. Whether the plaintiff is not the owner of the suit property? OPD
2. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD
3. Whether the suit of the plaintiff is not properly valued for the purpose of jurisdiction and court fees? OPD
4. Whether plaintiff is entitled to relief of recovery of possession as claimed in prayer no. (a) in the plaint? OPP.
5. Whether the plaintiff is entitled for relief of recovery of arrears of rent as claimed in prayer no. (b) in the plaint? OPP
6. Whether plaintiff is entitled to claim any damages/ mesne profits as stated in prayer no. (c) in the plaint? OPP
7. Whether plaintiff is entitled for relief of permanent injunction as prayed in prayer no. (d) in the plaint? OPP
8. Relief.
6. In support of its case before Ld. Trial court, the Respondent/ Plaintiff has examined herself as PW1. Plaintiff/ Respondent was cross-examined at length by counsel for the Appellant/ Defendant no. 2.
6.1. PW2 SI Vinay Kumar from PS Neb Sarai produced the summoned record.
6.2. PW2/A Dheeraj Kumar, Record Keeper from the office of Sub Registrar-V, Mehrauli, New Delhi and produced Sale Deed registered in the RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 6 of 18 name of Smt. Abda Devi by Smt. Aruna Kumari Gautam.
6.3. PW3, Upender, Record Attendant from office of Sub Registrar-VA, Hauz Khas, Mehrauli, New Delhi and proved Rectification Deed.
7. In defence, the Defendant no. 2/ Appellant got himself examined as D2W1 who tendered his evidence by way of affidavit Ex. D2W1/A. Thereafter DE was closed.
8. After completion of evidence on behalf of the parties, the impugned judgment was thereafter pronounced on 22.07.2021 by the Ld. Trial Court.
9. The Appellant has preferred the present appeal against the impugned judgment dated 22.07.2021 being aggrieved on the ground that the Ld. Trial Court had given a view contrary to evidence led during trial and that the landlord-tenant relationship has not been proved between the parties. By way of present appeal, the Appellant also raised objections that the mesne profits accorded to the Respondent were not proved during trial and it has also challenged the pecuniary jurisdiction of Ld. Trial Court amongst other grounds.
10. Reply has been filed on behalf of the Respondent wherein it has been stated that the Appellant was a trespasser in the suit property as he had himself stated on oath while being cross-examined that the Appellant has no document regarding the suit property. It has been further stated that the Plaintiff has valued the suit as mentioned in the plaint. It has been submitted RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 7 of 18 that in the absence of any rent agreement executed between the parties, the tenancy was deemed to be month to month tenancy. It has been further stated that the Appellant was a trespasser and could not produce even a single document for taking possession of suit property during trial. It is submitted in the reply that the Appellant herein also got his police identification done in the capacity of being tenant on 24.01.2011 and that Smt. Aruna Kumari Gautam was receiving rent till March, 2011 from the Appellant herein and that thereafter the Respondent received rent for suit property from the Appellant herein and thereafter the Respondent received rent for suit property from Appellant since April, 2011 to September, 2011 through property dealer Sh. S.K. Dharma. It is further submitted that the Appellant has failed miserably to show any discrepancy in the judgment passed by Ld. Trial Court in respect of the aforesaid issue. It is further prayed in the reply that the Appeal filed by the Appellant be dismissed.
11. Arguments heard on behalf of both the parties. Record perused. Considered.
12. Delving into the aspect of whether the Ld. Trial Court had the pecuniary jurisdiction to dispose off the present suit, it is seen from the perusal of Trial Court Record that the Ld. Trial Court has observed that though objections had been raised on behalf of the Defendant that the plaint filed before the Ld. Trial Court was undervalued for the purpose of jurisdiction and the requisite ad valorem court-fees had not been affixed on the plaint, no guidelines of Govt. of NCT of Delhi or any record or document were produced during trial by the Appellant to discharge the onus so put on RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 8 of 18 him. It has been rightly observed by Ld. Trial Court in para no. 33 & 34 that:-
"33. On the other hand, the plaintiff in clause 23 of her plaint stated that the valuation of the suit for the purposes of recovery of possession is Rs.1,04,500/- and for recovery of arrears of rent @ Rs.9,500/- p.m. since August, 2012 till October, 2014 and valued the suit at Rs.2,56,000/-. She also added the value of damages/ mesne profits claimed by her in the suit and, thus, paid consolidated Court Fees of Rs.6,740/-. The present suit filed by the plaintiff is for decree of possession of the suit property, which is the front side of the property no. D-156, 3rd Floor, portion no. 6, Krishna Park, New Delhi. The plaintiff has also prayed for the arrears of rent with effect from August, 2012 till October, 2014 besides claiming arrears of electricity, water charges etc, and also damages/ mesne profits from 01.12.2014 onwards till the vacation of the suit property. The plaintiff also prayed for inunction decree to restrain the defendants from creating any third-party interest on the suit property.
34. The plaintiff has stated in her deposition that there was no rent agreement executed between the plaintiff and defendant no. 1. The tenancy of the defendants is thus, deemed to be on month-to-month basis. Neither the plaintiff nor the defendant produced any document on record to show the current or the prevailing rent of the properties similarly situated as the suit property. None of the parties also produced any document regarding the market value of the suit property. The defendant also did not lead any evidence to rebut the averments of the plaint regarding the valuation of the suit property by the plaintiff. The valuation of the suit is a triable issue and if the defendant alleges that the suit has been under-valued, the onus is upon him to bring sufficient evidence on record to prove the same. The defendant no. 2 failed to discharge the said onus in the present suit. Hence, in the absence of any evidence to the contrary, the valuation done by the plaintiff of the present suit property is deemed to be correct and the issue regarding the under-valuation of the suit property is decided against the defendant. The plaintiff shall, however, be liable to pay the deficient court fees, if any remains, upon the final relief granted by this Court."RCA no. 9/21
Abdul Shakir vs. Abda Devi Page no. 9 of 18 Thus, the Ld. Trial Court rightly came to the conclusion on the aforesaid issue in favour of the Respondent as the Appellant despite being given the opportunity during trial had failed to bring on record any evidence to show that the Ld. Trial Court did not have the pecuniary jurisdiction to dispose of the suit before it or that the Court fees was inadequate.
12.1. Coming to the other aspects and grounds of appeal, perusal of the impugned judgment reflects that one of the issues framed by Ld. Trial Court is that 'Whether the plaintiff/ Respondent was the owner of the suit property?' The Ld. Trial Court has on the basis of the documents placed on record during trial by the Respondent i.e. the Registered Sale Deed Ex. PW1/C and Registered Rectification Deed Ex. PW1/D observed that the title of the suit property was in the name of Respondent/ plaintiff herein.
12.2. At this stage, it is worthwhile to mention that the plaintiff/ Respondent herein had filed the suit before Ld. Trial Court seeking possession, recovery of arrears of rent of Rs.2,56,500/- alongwith pendente lite and future interest and damages/ mesne profits @ Rs.1,100/- per day w.e.f. 01.11.2004 till the handing over of peaceful possession of the suit/ tenanted premises by the Appellant and permanent injunction. Therefore, the premise on which the Respondent/ Plaintiff had sought possession of the suit property alongwith arrears of rent by way of the suit before Ld. Trial Court was that there existed a landlord-tenant relationship between the parties for which the Appellant was also purportedly paying a rent of Rs.9,500/- per month to the Respondent/ Plaintiff. In this context, issue no. 4 was framed by RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 10 of 18 the Ld. Trial Court that 'Whether the Plaintiff was entitled for recovery of possession as claimed in prayer (a) of plaint?' Prayer (a) of the plaint filed before Ld. Trial Court is reiterated as under:-
"(a) decree of recovery of possession of suit/ tenanted premises i.e. D-
156, Third Floor (front side), portion no. 6, Krishna Park, New Delhi- 110062 in favour of Plaintiff and against the Defendant."
The Ld. Trial Court has made the following observations in paras 35, 36 and 37 in support of its findings:-
"35. The onus of proving this issue was upon the plaintiff. The plaintiff has claimed herself to be the owner of the suit property which he had purchased from one Sh. Balak Ram Gupta in the year 2010. The sale deed of the suit property was executed on 18.02.2012, which is Ex. PW1/C, and which has also been corroborated by the testimony of PW2A and PW3. A Rectification deed was also entered by the plaintiff with the seller of the suit property, which is also filed on record as Ex. PW1/D, and the said document has also been corroborated by PW2A and PW3. The defendants failed to rebut the said documents of ownership of the plaintiff. The defendant no. 2 urged that h had also agreed with the builder Sh. Balak Ram for purchasing the suit property and that he even paid a part consideration of Rs.6,00,000/-. However, as already observed in issue no. 1 above, the defendant no. 2 failed to produce any such agreement to sell or any receipt of the said payment or to even bring any other witness on record who may have witnessed any such transaction between the defendant no.2 and the said builder. The defendant no. 2 failed to rebut the fact that the plaintiff is the owner of the suit property.
36. Further, as stated by the plaintiff and also corroborated by the testimony of PW2, the defendant no. 2 even admitted in his statement given to PW2 in FIR no. 240/2012 that he was inducted as tenant by the builder Sh. S.K. Gautam. The copy of the said statement is Mark C. Also, the plaintiff has placed on record copy of electricity bill of the year 2011, which is Mark B, whereby the electricity connection of the suit property is also in the name of the plaintiff. The defendant no. 2 failed to RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 11 of 18 rebut the said documents on record.
37. Thus, it is evident from the documents placed on record that the plaintiff has proved her ownership and title of the suit property. The plaintiff is, thus, entitled to recovery of possession of the suit property from the defendants, who are in illegal possession of the property of the plaintiff as trespassers. Hence, issue o. 4 is decided in favour of the plaintiff and against the defendant."
Perusal of the aforesaid paragraphs reflect that the Ld. Trial Court has relied upon FIR no. 240/2012 (Ex. PW1/F) and the complaint (Ex. PW2/A) to come to the conclusion that the Appellant herein was inducted as a tenant in the suit property. The Appellant/ Defendant has asserted that there was no relationship of landlord-tenant that ever existed between the parties. As already reiterated the Ld. Trial Court has observed that the Respondent/ Plaintiff was able to prove during trial that she was the owner of the suit property. The Respondent/ Plaintiff also examined the concerned Sub- Registrar to corroborate her claim. On the other hand, the Appellant/ Defendant has argued that though he had paid Rs.6,00,000/- to the builder/ previous owner qua the same suit property, he has further admitted that he does not have any document to show any receipt of payment or any Agreement of sale of the suit property as claimed. In fact, as already observed by the Ld. Trial Court, no document was ever furnished during trial by the Appellant herein. In this context, in Sangita Mundhra vs Madhurica Mundhra, CS (OS) no. 343/2017 decided on 07.05.2019 by Hon'ble Delhi High Court, it has been held: "There is a presumption that a registered document is validly executed. A registered document therefore, prima facie would be valid in law. The onus of proof, thus would be on a person who leads evidence to rebut the presumption. In Satya Malhotra & ors vs. RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 12 of 18 Mohinder Singh Arora, 81 (1999) DLT 627, Hon'ble Delhi High Court has held:
"I have given my careful consideration to the argument advanced by learned counsel for both the parties. Let me first deal with the plea of ownership which has been disputed by the petitioner. The challenge to the sale deed executed on 10.09.1981 by Dr Diwan Singh in favour of mother of the respondent Smt Harbans Kaur is not open to challenge. The said sale deed was a duly registered document. The rent court is not a court to decide title of the parties. It is a well settled law that a tenant cannot challenge the title of the subsequent purchaser."
The Appellant herein has never challenged the sale deed of the Respondent before any Court of law.
12.3. It is the claim of the Appellant that he was inducted in the said portion by Gautam and he was the owner of the portion D-1/56, 3 rd Floor, front side, Krishan Park, New Delhi but he did not have any ownership documents of the said portion. However, in this context it is relevant to mention Mark 'C' which is the copy of the purported settlement agreement executed between the parties herein placed on record by the Respondent/ Plaintiff during trial. Perusal of the aforesaid document reflects that it has been stated on behalf of the Appellant herein that he was inducted in the suit property as tenant through one S.K. Properties and that during that time he had paid Rs.7,00,000/- to the builder Gautam for purchase of the suit property. It is further stated in the document that the Appellant/ Defendant had agreed that builder Gautam had sold the suit property to Abda Devi who is the Respondent/ Plaintiff herein. Careful perusal of the aforesaid Mark 'C' further reflects that the Appellant herein has stated that he has been staying in the flat of Smt. Abda Devi and would vacate the same within six months. He has RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 13 of 18 further offered to purchase the suit property from the Respondent/ Plaintiff for Rs.31,00,000/-. It would be also relevant to mention at this stage that apart from mere denial of this document during the cross-examination of the Plaintiff as PW1, no evidence was led by the Appellant herein to show that he had not entered into any such purported settlement. Furthermore, the aforesaid document reflects that the Appellant had admitted being inducted as tenant in the suit property. It is immaterial that the Appellant attorns to the Respondent as a landlady or not as law does not require any act of attornment. It is a settled principle that in case the Appellant is admittedly a tenant under earlier owner and once Sale Deed was registered by the earlier owner in favour of the Respondent/ Plaintiff, any attornment by the tenant to the Respondent is not required. Reference may be made to Sanjay Singh vs. M/s Corporate Warranties Pvt Ltd (013) 204 DLT 12; Harvinder Singh vs M/s Paradise Tower Pvt Ltd (2013) 199 DLT (CN) 25; Ambica Prasad vs. Mohd. Alam (2015) 13 SCC 13. Recently, in Harvinder Singh vs. M/s Paradise Towers Pvt Ltd CS (OS) 3260/11, decided on 14.09.2018 by Hon'ble High Court that:-
"Once the title in the property (in occupation of the tenant) is conveyed and which as aforesaid has been conveyed vide Registered Sale Deed, the coming into existence of relationship of landlord and tenant between the purchaser and the tenant in occupation of the property sold/ conveyed is not dependent upon the attornment by the tenant of such purchaser as landlord. On such transfer of the tenanted premises by the landlord, the tansferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and the tenant is not dependent upon the overt act on the part of the tenant. In this light of the matter, the question, whether the defendant no. 1 paid any rent for 2 months or not as pleaded by the plaintiff also becomes irrelevant."RCA no. 9/21
Abdul Shakir vs. Abda Devi Page no. 14 of 18 It is a trite position of law that once a tenant, always a tenant. Furthermore, the vague plea of ownership of the Appellant has been duly controverted by the registered documents of the Respondent, therefore, it has been rightly observed by the Ld. Trial Court that the Appellant was inducted as a tenant to the suit property.
12.4. The next contention raised by the Appellant in the present appeal is the grant of arrears of rent to the Respondent/ Plaintiff. Admittedly, perusal of the Trial Court Record reflects that no rent receipt or rent agreement has been placed on record by the Respondent/ Plaintiff during trial. The Respondent/ Plaintiff has claimed that Rs.9,500/- per month was being paid as rent by the Appellant qua the suit property. Para 38 to 40 of the impugned judgment deal with this issue. The same are reproduced as below:-
"38. The plaintiff had stated in the plaint that when she purchased the said property from builder Sh. Balak Ram Gautam, the said builder had inducted the defendant no. 1 as tenant in the suit property with the consent of the plaintiff in the month of July/August, 2010. She deposed that the sale deed was not executed between her and the builder by that time. She also stated that no rent agreement was executed with the defendant no. 1, and after one month, plaintiff came to know that defendant no. 2 was also in possession of the suit property. The rent of the suit property was given by the defendants to the builder Balak Ram for 2-3 months, and thereafter, the rent was received by the plaintiff, which she collected till September, 2011 and from October, 2011 onwards, no rent was paid by the defendant in respect of the suit property. The plaintiff has also mentioned that in February, 2012, the defendant no. 2 paid a rent of Rs.9,500/- per month, and since then no further payment of any rent has been made by him. The last paid rent as stated by the plaintiff is, thus, Rs.9,500/- per month. The plaintiff has not placed on record any document to show that the rent of the suit property is Rs.9,500/- or that this was the rent paid by the defendant no. 2. She RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 15 of 18 deposed in her testimony that the defendant used to pay the rent in cash. There is also nothing placed on record to show that rental amount of other flats in the same building or any such similarly situated flats is Rs.9,500/-. The prevailing rent of the suit property is also not shown anywhere on the record.
39. However, defendant no. 2 also failed to rebut the said fact and to bring any other contrary evidence to show that the rent of Rs.9,500/- was not the rentals paid by him or that the same is not the rent of any property similarly situated as that the suit property. Thus, in the absence of any evidence to the contrary, and considering the location of the suit property i.e. at Krishna Park, Khanpur, New Delhi, the area of the suit property i.e. admeasuring 214 sq. yds, also assuming the rents of a property similarly situated as the suit property in the area of South Delhi, a rent of Rs.9,500/- in the year 2011-2012 for the suit property is deemed to be a reasonable rent.
40. Hence, the plaintiff is entitled to a decree for recovery of arrears of rent qua the suit property as claimed by her. The plaintiff has prayed that the arrears of rent are payable from August, 2012 to November, 2014. The plaintiff, however, mentioned in the plaint that the last rent was paid by the defendant no. 2 in the month of February, 2012. The plaint is silent as regards the rent from March, 2012 till July, 2012, and the plaintiff has also not claimed any arrears for the said period. Therefore, in view of the prayer of the plaintiff, the arrears of rent w.e.f. August, 2012 to October, 2014 at the rate of Rs.9,500/- per month, are directed to be paid by the defendants to the plaintiff. The plaintiff shall also be entitled to claim interest at the rate of 10% per annum on the said arrears of the rent, until its realization.
41. In view of the foregoing paras, as the defendants continued having illegal possession of the suit property till date, the plaintiff is entitled to claim damages against such illegal and unauthorized usage of the suit property belonging to the plaintiff, against the defendants. The plaintiff has claimed Rs.1,000/- per day as the damages/ mesne profits of the suit property with effect from 01.12.2014 till its vacation by the defendants. Considering the undisputed rent of Rs.9,500/- per month of the suit property as observed in previous paragraphs, the plaintiff is entitled to claim damages/ mesne profits at the rate of Rs.10,000/- per month w.e.f.RCA no. 9/21
Abdul Shakir vs. Abda Devi Page no. 16 of 18 November, 2014 till the vacation and peaceful handing over of the suit premises by the defendants to the plaintiff. The said damages/ mesne profits shall also accrue an interest at the rate of 6% per annum, payable by the defendants to the plaintiff from the date of its accrual till its realization."
Perusal of the entire Trial Court Record reflects that though nothing has been led by the Plaintiff/ Respondent, mere denial of the same by the Appellant/ Defendant does not in any manner corroborate that no rent was being paid by the Appellant herein. Furthermore, perusal of the impugned judgment reflects that the Ld. Trial Court has taken judicial notice of the area in which the suit property is being situated and accordingly, decided as to the arrears of rent to be paid by the Appellant herein. In this regard, reliance is also placed on the judgment of Hon'ble High Court of Delhi in Vinod Khanna & ors vs Bakshi Sachdev AIR 1996 Delhi 32 wherein it was observed that:
"It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property. However, it is well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the Suit no. 728/07 page no. 12/14 premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D.C. Oswal vs. V.K. Subbiah reported in AIR1992 SC 184."RCA no. 9/21
Abdul Shakir vs. Abda Devi Page no. 17 of 18
13. In view of the aforesaid facts and discussion, no grounds are made out to interfere the impugned judgment dated 22.07.2021. In the considered opinion of the Court there is no infirmity in the impugned judgment dated 22.07.2021 of the Ld. Trial Court. Appeal is hereby dismissed. Trial Court Record be sent back. Copy of the order be sent to Ld. Trial Court.
File be consigned to record room.
Pronounced in open Court on 07.03.2022 (Gurmohina Kaur) Additional District Judge-03, South/Saket/New Delhi RCA no. 9/21 Abdul Shakir vs. Abda Devi Page no. 18 of 18