Delhi District Court
Mrs. Krishna Saigal vs Mrs. Kamal Kumar Modi on 31 October, 2007
(1)
IN THE COURT OF PAWAN KUMAR JAIN
ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT, DELHI
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Old Suit No : 896/98
New Suit No : 527/06
Date of institution : 04.05.98
Date of transfer : 02.12.06
Judgment reserved on : 05.10.07
Date of Judgment : 31.10.07
IN THE MATTER :
MRS. KRISHNA SAIGAL
W/O LATE SH. RAM CHAND SAIGAL
R/O W-9-A,
GREATER KAILASH-I,
NEW DELHI-48. ... PLAINTIFF
Versus
1. MRS. KAMAL KUMAR MODI
R/O S-48, PANCHSHILA PARK,
NEW DELHI-17.
2. MRS. ASHA RANI MODI
R/O S-48, PANCHSHILA PARK,
NEW DELHI-17. ....DEFENDANTS
SUIT FOR POSSESSION, EJECTMENT, DAMAGES,
MESNE PROFITS, PENDENTE LITE AND FUTURE
INTEREST AND COUNTER CLAIM FOR THE SPECIFIC
PERFORMANCE OF THE AGREEMENT OF RENEWAL
OF THE LEASE
(2)
Present : Sh. S. S. Rana & Ms. B. Rana Advocates, Ld.
Counsels for plaintiff.
Sh. R. S. Endlaw & Ms. Mandeep Kaur Advocates,
Ld. Counsels for defendants.
*****************
JUDGMENT
1. Succinctly, the admitted facts of the case are that plaintiff is the absolute owner and landlady of the property bearing No. S-48, Panchsila Park, New Delhi comprising of three bed rooms (all with attached bathroom), drawing-cum- dinning hall, kitchen and lobby. Plaintiff had let out the said property to the defendants jointly for a period of three year at the monthly rent of Rs.6000/- vide lease deed dated 09.02.87.
(i) A supplementary agreement was executed between the parties on 26.05.87 wherein plaintiff had permitted the defendants to construct two bed rooms with attached bath and lobby at the first floor of the said property at the cost of Rs. 3 (3) lakh and on completion of the construction, defendants shall pay rent at the rate of Rs.5000/- per month for the first floor portion and the said rent was agreed to be adjusted from the amount of Rs. 3 lakh.
(ii) A fresh lease deed dated 26.12.92 was executed between the parties in respect of suit property comprising of ground floor and first floor of property bearing No. S-48, Panchshila Park as shown in site plan at a monthly rent of Rs.
11,000/- for a period of five years but the said lease deed was not registered.
2. As per the plaintiff's version, the lease deed dated 09.02.87 had expired by efflux of time and lease deed dated 26.12.92 was a lease from month to month as lease deed was not got registered.
(i) It is averred that vide notice dated 27.09.96, the tenancy was terminated w.e.f. 26.12.96 but said notice was returned with the postal remark "refused". Consequently, copy of the notice was again sent through registered post and UPC on 09.11.96. It (4) is further alleged that vide letter dated 26.05.97 plaintiff had informed the defendants that they had become trespassers w.e.f
27.05.97, thus are liable to pay use and occupation charges to the plaintiff @ more than Rs. 1 lakh per month, which was prevalent in the locality in respect of the similar property.
(ii) It is alleged that in August, 1997, defendants had approached the plaintiff and requested to allow them to stay in the suit premises for three more months to which plaintiff had reluctantly agreed and permitted them to stay in the suit premises till 27.10.97 and defendants also paid a sum of Rs.37,950/- to the plaintiff at the rate of Rs.12,650/- per month for the use and occupation charges.
(iii) It is alleged that vide legal notice dated 08.10.97, defendants were asked to vacate the suit premises on 27.10.97 and further informed the defendants that if they considered that their tenancy had not been terminated, they were given notice that their tenancy stood terminated w.e.f 27.10.97 and if failed to vacate the suit premises, action would be taken to evict them by process of law defendants shall be liable to pay use and (5) occupation charges.
(iv) It is further averred that the tenancy was month to month from 27th day of month and ending with 26th day of the next succeeding month, thus tenancy was expired by efflux of time and even no notice was required. It is stated that defendants had received the legal notice dated 08.10.97 but had not sent any reply to the same.
(v) It is averred that since defendants failed to hand over the peaceful and vacant possession of the suit premises, plaintiff filed the present suit for possession and also claim use & occupation charges @ Rs. 1 lakh per month w.e.f 27.10.97. Plaintiff claimed use & occupation charges amounting Rs. 6 lakh for the period 27.10.97 to 26.04.98 and also claimed pendente lite and future mesne profit alongwith interest @24% per annum.
3. In their joint written statement, defendants recited that plaintiff had permitted the defendants to use the suit premises for commercial purpose and for maintaining of the office and further permitted the defendants to demolish the (6) existing garage and to construct a new regular garage with servant quarter with attached bathroom and to carry out all necessary maintenance and alteration. Thereafter, defendants had set up a showroom for sale of some precious stones and artificial jewellery at the ground floor of the suit premises.
(i) It is further recited that as defendants family and business were growing, defendants had expressed their willingness to buy the said property but at that time plaintiff had not made up her mind to sell the same, consequently as a interim measure, plaintiff permitted the defendants to raise construction at the first floor portion. Consequently, supplementary agreement dated 26.05.87 was executed. It is further pleaded that rent in respect of first floor portion was to be payable w.e.f. the date of issuance of occupancy certificate by the Municipal Authorities. It is further alleged that the construction on the first floor was completed in June/July, 1988. Consequently, plaintiff was intimated, who assured that she would take necessary steps to obtain the occupancy certificate and would intimate the same to the defendants.
(7)
(ii) It is alleged that before obtaining the occupancy certificate, plaintiff decided in the month of April/May, 1988 after the completion of construction, to sell the property to the defendants in the sum of Rs. 40 lakhs. Defendants had also included the name of their kids as buyers and consequently plaintiff had executed a receipt and affidavit on 3rd May, 1988 to this effect and handed over the same to the defendants.
(iii) It is further alleged that a sum of Rs. 1 lakh was paid to the plaintiff by M/s Modi Industries Ltd. on behalf of defendants, which was to be adjusted in 36 monthly installments towards the rent. The said amount was adjusted towards earnest money against the sale consideration. The balance amount was agreed to be paid only when plaintiff obtained all necessary permissions to sell the said property from the competent authorities but plaintiff failed to obtain the necessary permissions, thus plaintiff failed to perform the agreement on her part.
(iv) Contrary to the agreement to sell, plaintiff requested the defendants from time to time to pay amount from the balance (8) sale consideration and on her request defendants had paid a sum of Rs.20,000/- to the plaintiff in February, 1992 vide cheque No. 3775 drawn on Central Bank of India.
(v) It is further averred that it was agreed between the parties that defendants would continue to pay the rent at the prevailing rate to the plaintiff and rent would be increased as per mutual agreement, if there was any delay in execution of sale deed.
(vi) It is further averred that defendants had paid a sum of Rs.50,000/- on 12.10.92 through pay order against a receipt.
(vii) It is alleged that as per clause-14 of the lease dated 26.12.92, lease would be renewed after the expiry of five years subject to increase in rent by 15% and if the lessee remained in occupation of the premises, lease shall be deemed to have been automatically renewed. It is stated that plaintiff avoided the registration of said lease deed on the ground that she had already sold the property to the defendants and made a request to the defendants not to drag her being an old lady to the office of Sub- (9) Registrar unnecessarily.
(viii) It is stated that defendants continued to pay the rent to the plaintiff as per the agreement but plaintiff remained silent on the matter of mandatory permissions for the sale of the property. As defendants were already in possession of the property, they were not liable to pay the balance sale consideration till the plaintiff had obtained the requisite permissions.
(ix) It is alleged that defendants had paid Rs.65,000/- in three installments on 01.10.93, 01.02.94 and 31.05.94 through cheque and drafts against receipt towards the sale consideration despite the fact that plaintiff was not entitled for the same as she had not obtained the necessary permissions by that time.
(x) Vide letter dated 12.10.95, plaintiff asked the defendants to pay Rs.5 lakh towards the sale consideration but defendants had paid Rs.20,000/- through pay order against receipt on 19.10.95.
(xi) As sale deed could not be executed within 5 years from (10) the date of lease dated 26.12.92, defendants had started to pay increased rent to the plaintiff in accordance with said lease deed and paid a sum of Rs.47,300/- towards rent for the month of April & May, 1997 @ Rs.11,000/- while rent @ Rs.12,650/- per month for the month of June & July, 1997. The rent for the period August to October, 1997 amounting Rs.37,950/- was paid also through cheque.
(xii) It is stated that on their request, plaintiff had agreed to execute a new lease deed for extension of lease dated 26.12.92 and asked the defendants to purchase the stamp papers and also agreed on 12.08.1997 to renew the lease deed at the time of accepting rent for the month of August to October, 1997.
(xiii) It is alleged that plaintiff had turned dishonest and due to that reason plaintiff had concealed the agreement to sell as well as renewal/extension of lease dated 26.12.92. Defendants had already filed a suit for specific performance of agreement to sell, which is presently pending in the Hon'ble High Court
(xiv) Defendants have also filed a counter-claim for the (11) specific performance of agreement of grant/renewal/extension of lease from 26.05.97 for the period of five years @ Rs. 12,650/- per month with rights of further extension/grant/renewal of the lease for a period of five years each time at a rent increased by 12% over the last paid rent each time at the sole discretion of the defendants till the property is sold by the plaintiff to the defendants. It is stated that defendants are ready and willing to perform the agreement on their part.
(xv) Defendants have specifically denied that they had received any legal notice. It is further stated that notice dated 27.09.96 was superseded vide notice dated 26.05.97. It is denied that defendants had become trespassers w.e.f. 27.05.97. It is also denied that the notice dated 08.10.97 was ever served upon the defendants. It is further denied that defendants are liable to pay damages/use and occupation charges as claimed by the plaintiff.
4. Plaintiff filed the replication to the written statement of the defendants and written statement to the counter-claim of the defendants wherein plaintiff denied the defendants' version and reasserted and affirmed the averments made in the (12) plaint. It is further alleged that defendants had committed forgery by forging the signature of plaintiff on various documents.
(i) It is further stated that on 09.02.87 M/s Modi Industries Ltd. had sent a letter to the plaintiff wherein they agreed to pay rent on behalf of defendants @ Rs.6000/- per month. Another letter was sent to Naresh Saigal son of plaintiff wherein they agreed to pay Rs.3000/- per month for certain items of domestic utility, which were installed in the suit premises.
5. Vide order dated 27.04.2001, following issues were framed :-
(1) Whether the tenancy stands duly
determined by the plaintiff by serving a
valid notice under section 106 of the
Transfer of Property Act ? OPP.
(2) Whether the lease of the premises expired
by efflux of time ? OPP
(3) Whether the suit is barred under section
53A of the Transfer of Property Act ? OPD
(4) Whether the defendant is entitled to
extension/renewal of the lease as per the
counter claim preferred by the defendant ?
OPD
(13)
(5) Whether the plaintiff is entitled to recover
the possession of the suit property ? OPP
(6) Whether the plaintiff is entitled to any
mesne profits/damages, if so, at what rate
and for what period ? OPP
(7) Whether the plaintiff is entitled to any
interest on arrears of mesne profits/
damages, if so at what rate and on what
amount ?
(8) Relief.
6. Vide order dated 07.02.2002 and 02.03.2002, following additional issues were framed :-
(1) Whether the defendants are entitled to continue in possession as a tenant in the premises till the completion of sale of the premises in their favour ? OPD (2) Whether the alleged notice of determination of tenancy stands waived ?
OPD (3) Whether the plaintiff has allowed the defendants to make construction/addition and alteration and building activities of permanent nature in the property leased and if so, to what effect ? OPD (4) Whether the counter-claim of the defendants is barred by the limitation ?
OPP (14)
7. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendants at length, perused the record carefully and gave my thoughtful consideration to their contentions. My issue-wise findings are as under:-
8. ISSUE No.1 Whether the tenancy stands duly determined by the plaintiff by serving a valid notice under section 106 of the Transfer of Property Act ? OPP.
Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for the plaintiff contended that initially plaintiff had terminated the tenancy vide notice dated 27.09.96 (Ex. P-5), which was returned with the remarks "I.D.", means "Information Delivered". It is argued that since none had collected the registered letter, hence presumption will be drawn that the said notice was duly served. However, plaintiff had sent the copy of said notice on 09.11.96 along with a covering letter (Ex.P-7) by UPC, which was not received back, thus it is urged that presumption will be drawn that the same must have been (15) served in due course. It is further argued that another legal notice was sent on 26.05.97 (Ex.P-10) vide postal receipt, which is Ex.P-11. At last, registered letter dated 08.10.97 (Ex.P-12) was sent vide postal receipt, which is Ex.P-13 and Ex.P-14. It is argued that since the same had not received back, hence presumption will be drawn that the same must have been served upon the defendants. It is further argued that defendants failed to lead any admissible evidence to establish that the said notices were not served upon them. To support his contentions, Ld. Counsel for the plaintiff has placed reliance on the judgments reported in AIR 1989 SC 630, AIR 1997 SC 1791 AND 1994 RLR 421.
(ii) Ld. Counsel for the defendants refuted the said contentions by arguing that only the service of notice dated 08.10.97 is relevant in the instant case because under section 113 of Transfer of Property Act, on giving a second notice, the earlier notice is waived of automatically. It is thus argued that the service of notice dated 27.09.96 and 26.05.97 are not relevant in the present case. It is further contended that there is no evidence to prove that the notice dated 08.10.97 was ever (16) served upon the defendants and plaintiff is merely relied upon the presumption, to which plaintiff is not entitled as plaintiff failed to adduce any evidence to establish that the copy of notice was kept in the envelope and correct address was written on the envelope and it was posted. It is argued that there is nothing on record to establish that the postal receipts on record pertained to the said notice. To strength his contentions, Ld. Counsel for defendants has relied upon the judgments reported in AIR 1975 GUJARAT 54, AIR 1978 NOC 112 AND 85 (2000) DLT 478.
9. Deposition of PW1 reveals that the notice dated 08.10.97 (Ex.P-12) and re-exhibited as PW1/10 was sent through registered post and UPC and the postal receipts are Ex. P-13 (Re-Exhibited as PW1/13) and P-14 (Re-Exhibited as PW1/14). Postal receipts showed that the said notice was dispatched on 09.10.97. Admittedly, the AD card was not received back. Now, the question arises as to whether any presumption can be drawn in favour of the plaintiff under section 27 of the General Clauses Act or not?
(i) Ld. Counsel for the defendants has strongly relied upon (17) the judgment Memon Adambhai Haji Ismail v/s Bhaiya Ramdas Badiudas and others AIR 1975 Gujarat 54 wherein it is held:-
"...........Presumption under section 27 can arise only on the proof of the conditions set out in first part of the section. The existence of each of the conditions is to be established by positive evidence and it is only then that the presumption under the section can arise. If the evidence on the record is insufficient to establish any one of the conditions, the presumption cannot arise. The conclusion is that when it is proved that the registered letter with prepaid stamps containing the documents has been posted at the proper address of the addressee a prima facie presumption arises viz that the notice was served, meaning thereby that the letter reached its destination at the proper time according to the regular course of business of the post office and it was received by person to whom it was addressed
(ii) In case M/S Madan & Co. v. Wazir Jaivir Chand AIR 1989 SC 630 it is held:
"...............All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act.(18)
(iii) Ex. P-14 is the postal receipt of UPC, which elucidates that the notice Ex. P-12 was posted at the address " S-48 Panchsila Park, New Delhi". The same address is mentioned in the notice Ex. P-12. It means that the same address was mentioned on the envelope, when it was handed over to the postal authority otherwise postal authority would not issue the receipt Ex.P-14. Similarly, Ex. P-13 is also the postal receipt showing that the said notice was also sent through registered post. According to Ex.P-13 the letter, which was sent against the said receipt was addressed to Mr. Kamal Modi. Both the receipts were issued on 09.10.97, it means that the notice dated 08.10.97 was dispatched only on 09.10.97. PW1 in her deposition categorically deposed that the said notice was sent to Kamal Modi by her advocate at her instance. Admittedly, plaintiff herself had not dispatched the said notice but she deposed that it was sent by her advocate. Thus, presumption will be drawn that her advocate must have dispatched the said notice at the address mentioned in the notice in due course of his professional duty.
This presumption gets support from the postal receipt of UPC Ex.P-14 as it also contained the same address. There is no contrary evidence on record. In these circumstances, I am of the (19) opinion that the notice dated 08.10.97 must had been delivered to the addressee i.e. defendant no.1 by the postal authority in due course of its business.
(iv) Though Ld. Counsel for the defendants has vehemently relied upon the judgment Surender Bala & Another V/s M/S Sandeep Foam Industries (P) Ltd., 85 (2000) DLT 478 yet in my opinion the same is not applicable in the present case. In that case notice was sent on 9th December 1993 and PW1 was appointed as attorney on behalf of the plaintiff only on 30.06.97 and during the trial plaintiff got exhibited the said notice in the deposition of that attorney. Except that no other witness was examined to prove the said notice. In these circumstances, it was held that the testimony of PW1 was not sufficient to prove the said notice as he was appointed as attorney only on 30.06.97, thus the testimony of that witness was treated as a hear-say evidence. On the contrary, in the instant case, plaintiff has appeared in the witness box and categorically deposed that she had instructed her advocate to send the notice and the same was sent at her instance, thus it can not be said that PW1 had no personal knowledge about the said notice. Once, the advocate (20) had shown the postal receipt to the plaintiff, there was no reason for the plaintiff to have a doubt that her advocate had not sent the notice as per her instruction.
(v) Considering the above discussion, I am of the opinion that the notice dated 08.10.97 (Ex.P-12) was duly served upon the defendants.
10. During the course of arguments, Ld. Counsel for the defendants has not pressed about the non-service of earlier notice dated 27.09.96, which is Ex. P-5 (Re-exhibited PW1/5) and notice dated 26.05.97, which is Ex. P-10 (Re-exhibited PW1/10) on the ground that the said notices were waived by notice dated 08.10.97 yet from the record, it reveals that both the said notices were also duly served upon the defendants. Notice Ex.P-5 was sent through registered post vide postal receipt Ex. P-6. However, the registered envelope returned with the report that the same was returned with the remarks "I.D.", it means "information delivered". In other words that defendants failed to collect the registered letter despite the intimation was delivered to them. When the said notice was returned undelivered, plaintiff (21) had sent the copy of the same on 09.11.96 along with a covering letter, which is Ex.P-7 (Re-exhibited PW1/7) through UPC and the postal receipt is Ex. P-8 (Re-exhibited PW1/8) and the same was not received back. Ex. P-8 reveals that the notice was sent at the correct address, thus presumption will be drawn that the same must have been delivered in due course of the business of postal authority.
(i) Similarly, the notice dated 26.05.97, which is Ex. P-10 (Re-exhibited PW1/10) was sent through postal receipt Ex.P-11, the same was not received back, thus presumption will be drawn that the same must have been delivered to the defendants.
(ii) During the trial, defendants failed to lead any admissible evidence to prove why the said notices could not have been delivered to them in due course of the business of the postal authority. In other words, defendants failed to adduce any evidence to rebut the presumption, which further corroborates the plaintiff's version that the said notices were delivered in due course of the business of the postal authority.
11. Ld. Counsel for the defendants has energetically (22) contended that the notice dated 27.09.96 is waived of by subsequent notice dated 26.05.97. In notice dated 27.09.96, which is Ex.P-5 (Re-Ex. PW1/5), the tenancy was terminated w.e.f. 26th December 1996. In the subsequent notice dated 27.05.97, which is Ex.P-10 (Re-Ex.PW1/10), the tenancy was not terminated but defendants were informed that since they failed to vacate the suit premises in compliance of the notice Ex.P-5, thus they would be treated as tress-passer w.e.f. 27th May 1997 itself. Notice dated 27.05.97 is not a fresh notice wherein the tenancy was terminated but an intimation to the defendants that plaintiff would treat them as tress-passer since 27th May 1997. Thus, I am of the considered opinion that the notice dated 27.09.96 was not waived of by the subsequent notice dated 27.05.97.
(i) Similarly, perusal of the notice dated 08.10.97 reveals that in August 1997, defendants had approached the plaintiff and requested her to permit them to stay in the suit property for three more months and on their request, plaintiff had permitted the defendants to stay in the suit property till 27th October 1997. Thus, utmost by virtue of the said notice plaintiff had considered (23) the defendants as licensee instead of tress-passer after 27th May 1997, when the plaintiff declared them as tress-passer. In the said notice it is further recited that if the defendants considered that their tenancy had not been terminated till date, it would stand terminated with immediate effect. The said notice is nothing but the over-cautious approach of the plaintiff. There is nothing in the said notice, which even may suggest that the plaintiff had any intention to waive of the earlier notice dated 27.09.96.
(ii) Pondering the above discussion, I am of the opinion that the earlier notice dated 27.09.96 was not waived of by subsequent notices.
12. In the light of the afore-going discussion, I am of the considered opinion that plaintiff had terminated the tenancy by giving a valid notice under section 106 of the Transfer of the Property Act. Accordingly, I decide this issue in favour of the plaintiff and against the defendants.
13. ISSUE No. 2 (24)
Whether the lease of the premises expired by efflux of time ? OPP Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for the plaintiff contended that initially the suit property was let out to the defendants for a period of three years vide registered lease deed dated 9th February 1987, thereafter lease was not extended through registered document. It is thus, argued that the lease was expired after the expiry of period of three years from 9th February 1987, thus no separate notice was required. In support of his contention, Ld. Counsel for the plaintiff has placed heavy reliance upon the judgments reported in Canara Bank v/s Shanti Vaish 73 (1998) DLT 51 and IOC v/s Alka Aggarwal AIR 2007 Bombay 113.
(ii) Ld. Counsel for the defendants controverted the plea of plaintiff by arguing that since after the expiry of period of three years, plaintiff had accepted the rent without any objection, thus a fresh month to month tenancy was created and the same could be determined only by giving 15 days notice as provided under (25) section 106 of the T.P. Act. It is argued that tenancy can not be terminated vide notice dated 08.10.97. It is further argued that since no registered lease deed was executed after 9th February 1987, thus tenancy can not be terminated by efflux of time and heavily relied upon the judgment reported in Jagat Taran Berry V/s Sardar Sant Singh AIR 1980 DELHI 7.
14. It is undisputed fact that after 9th February 1987, no other registered lease deed was executed between the parties. It is also admitted fact that initially the premises was let out for a period of three years. Thus, the lease was expired on 8th February 1990. Admittedly, thereafter no registered lease deed was executed between the parties. It is also undisputed fact that defendants had not vacated the suit premises on the expiry of lease period.
(i) It is also admitted fact that a fresh lease deed dated 26th December,1992, which is Ex. PW1/D8 was executed between the parties for a period of five years but the same was not got registered.
(26)
(ii) In case IOC V/s Alka Agarwal (supra) it was held:
"...............after expiry of the first 20 years period, though a notice dated 15.09.92 was given by the defendants, they chose to remain silent till they were served with the notice by the plaintiff on 29.08.2000 terminating the lease. They did not call upon the plaintiff to execute the lease deed for further period of 10 years. Admittedly, there is no registered instrument executed between the parties after expiry of 20 years. It is clear from the very language of section 107 of the Act a lease of immovable property from year to year or for any term exceeding one year, or reserving yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be monthly lease. In view of the clear provisions of section 107, in the absence of registered instrument it must be held that it was holding over and not continuation of old tenancy for further period of 10 years. That would be harmonious construction of section 107 read with section 116 in the facts of the present case. The tenancy after the first period of 20 years was automatically determined on the expiry of 20 years period which was stipulated in the lease deed. Thereafter the petitioner-lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month. The present case is squarely covered by judgment of the Supreme Court in Burma Shell Oil Distributing AIR 1988 SC 1470 (supra).
(iii) Even Ld. Counsel for the defendants has not disputed the said preposition of law and also relied upon the judgment (27) AIR 1980 DELHI 7 (supra) wherein the same view was taken.
(iv) Seeking guidance from the above noted judgments, I am of the view that no tenancy for a period of five years was created by virtue of lease deed dated 26th December 1992. Only month to month tenancy was created after the expiry of period of three years i.e. 8th February 1990. Thus, tenancy could be terminated only by giving notice under section 106 of the T.P. Act.
(v) Plaintiff had terminated the tenancy vide notice dated 27.09.96, which is Ex. P-5 w.e.f. 26th December 1996.
Thereafter, vide notice dated 26.05.97, which is Ex. P-10 defendants were intimated that they became tress-passer since 27th May 1997 as they failed to vacate the premises in compliance of notice Ex. P-5. At last, vide notice dated 08.10.97, which is Ex. P-12 defendants were asked to vacate the suit premises on 27th October 1997 and further informed that if defendants were under any impression that their tenancy was not terminated, it stands terminated with effect from 27th October 1997. It is pertinent to mention here that in notice Ex.P-12, it was also recited that only at the request of defendants, plaintiff (28) had permitted them to stay in the suit premises for a period of three month, for which defendants had requested the plaintiff in August 1997. Thus, their possession between August 1997 to October 1997 was not in the capacity of tenant but in the capacity of licensee only. Moreover, it is well settled principal of law that mere acceptance of rent after terminating the lease does not amount waiver of the notice. (Relied upon PNB v/s Riviera Apartments (P) Ltd., 140 (2007) DLT 649). Thus, merely fact that plaintiff had accepted the rent after 26th December 1996 does not mean that the plaintiff had waived of the said notice. To my mind, the tenancy was terminated w.e.f. 26th December 1996, however, plaintiff had permitted the defendants to occupy the suit premises by 27th October 1997. Thus, the status of defendants between 26th December 1996 to 27th October 1997 was that of a licensee only.
(vi) Pondering the on-going discussion, I am of the opinion that the tenancy was not terminated by efflux of time but it was terminated by giving proper notice as provided under section 106 of the T.P. Act. I decide this issue accordingly. (29) 15. ISSUE No. 3
Whether the suit is barred under section 53A of the Transfer of Property Act ? OPD Onus to prove the said issue was upon the defendants.
(i) Ld. Counsel for the defendants contended that as per Clause 14 of Lease deed dated 26.12.1992, which is Ex.PW1/D8, lease was renewable after 5 years on 15% increase in the rent. It is further argued that lease is a form of transfer of property, thus defendants are entitled for the protection provided under section 53(A) of Transfer of Property Act and heavily relied upon the judgment reported in AIR 1950, Supreme Court
1. It is further contended that since plaintiff had agreed to renew the lease in the Lease Deed Ex.PW1/D8, plaintiff is not entitled to seek ejectment of the defendants.
(ii) Ld. Counsel for the plaintiff confuted the said contentions by arguing sagaciously that the protection provided under section 53A T.P. Act is not available to a lessee. It is further contended that since lease deed Ex.PW1/D8 is not a (30) registered lease deed, its terms and conditions cannot be read in evidence as the same is barred under section 49 of the Registration Act. To support his contention, ld counsel for the plaintiff has placed reliance on the judgments St. Marry Educational Society Vs. Dr. Qutubuddin Ahmad, AIR 2007 AP 156, Singer India Limited Vs. Amita Gupta 88(2000) DLT 186(DB) and Modern Food Industries Vs. I.K. Malik 98(2002) DLT 593.
16. From the contentions of both the parties, the polemical issue arises for adjudication is as to whether defendants are entitled for the protection provided under section 53A of Transfer of Property Act or not ?
(i) I have perused the judgment Maneklal Mansukhbhai Vs. H.J. Ginwalla and Sons AIR 1950 Supreme Court 1, upon which Ld. Counsel for the defendant has strongly relied. Perusal of the judgment reveals that the facts of that case were totally different from that of present case. In that case, the plaintiff had applied for a plot on lease for setting of a 'Ginning Factory' and (31) the same was alloted by the Talukdar Settlement Officer on behalf of the Government. Thereafter, the plaintiff had constructed the factory on the said plot after compliance of the condition of the lease deed but subsequently a suit was filed against the plaintiff for possession on the ground that the lease was not registered. In those circumstances, it was held that a formal lease is not necessary to attract the application of section 53A of the T.P. Act. All that his required that an agreement in writing signed by the transferor can be gathered from the evidence. In the present case, the land was not lease out to the defendants to raise any building. On the contrary, the suit premises was initially let out to the defendants vide lease deed dated 9th February, 1987 and later on vide Ex.PW1/D8, thus I am the opinion that the said judgment is not applicable in the facts of the present case, hence not helpful to the defendants in any manner.
(ii) Lease is defined under section 105 of Transfer of Property Act. According to the said section, lease of immovable property is a transfer of a right to enjoy such property. It means that in a lease a right is transferred in favour (32) of lessee to enjoy the immovable property for a certain period against consideration. On the contrary, section 53A applies where a person transferred immovable property through contract in writing against consideration. Thus, the intrinsic distinguish between section 105 and 53A of the Transfer of Property Act is that under a lease a right is transferred in favour of lessee to enjoy immovable property under the lease for a certain period against the consideration while section 53A of the Act applies where a person enters into a contract in writing to transfer the immovable property as such in favour of transferee against the consideration. As in a lease only a right to enjoy the immovable property is transferred by a lessor in favour of lessee, thus I am the opinion that protection provided under section 53A of the Act is not available to a lessee to debar the lessor from seeking possession from him.
(iii) In case St. Marry Educational Society and others (Supra), it is held that :-
Para 24 : "The plea based on Section 53A of the Act, in relation to lease, has its own (33) typical features, when compared to a situation, where it is pressed into service in case of a sale transaction. The question of transferor, in a transaction of sale resuming the possession does not arise, whether the sale had already taken place, or can be brought about through a decree for specific performance. The transferor on a lease, on the other hand, is always vested with the right to resume possession, whether it is on account of expiry of the agreed period of lease, or after termination of the lease, in accordance with law. While resumption of possession from a transferee in the sale is never treated as the part of that transaction, a lease always entails in resumption of possession from the lessee. The uncertainty, if at all; is only as to the point of time, but about the obligation of the lessee to vacate the premises. It is for this reason, that the connotation of Section 53A differs, when it is pressed into the transaction of sale, on the one hand and lease, on the other hand.
Para 25 : "In case of sale, the person, inducted into possession of property, under an agreement, can insist that he is entitled to remain in possession of the property, to the complete inclusion of the transferor, provided he expresses his readiness and willingness to perform his part of the contract, and thereby, avail the benefit of Section 53A. However, a person in possession of immovable property, under an agreement of lease, cannot insist that he is not liable to be evicted at all, by taking recourse to the plea of section 53A. On the extension of such benefit, the maximum that can happens is that, the transaction of lease, which hitherto was incomplete, can be brought about. Even where a lease in accordance with Section 107 of the Act (34) emerges through specific performance, the obligation of the lessee to be evicted, does not cease. It is no doubt true, that the circumstances, under which a lessee can be evicted, would differ, from case to case, depending on the terms of lease. If no definite period of lease is stipulated. Section 106 can be pressed into service by the lessor, and if the lease is for a specific period. Section 111 of the Act would govern the field.
(iv) In case Singer India Limited (Supra), it is held that:-
"Original lease deed executed between the parties is admittedly unregistered. The appellant is relying upon the clause of this very lease deed, which relates to renewal of the lease agreement by offering enhanced rent at the rate of 15% over the original rent. When the lease deed is unregistered the aforesaid term in the lease deed is not admissible in evidence. The appellant cannot rely upon the same and contend that merely by offering enhanced rent after the expiry of original period, lease got extended by a period of three years. Accepting the contention of the appellant would amount to ignoring the provisions of Section 49 of the Registration Act. In fact by claiming renewal for another period of three years appellant is trying to invoke the aforesaid term of unregistered lease. This is not permissible. Invoking such a term of lease cannot be said to be looking at a lease for collateral purpose. Such a case cannot be brought under the proviso to Section
49. It is also held further that no doubt the possession is already with the lessee i.e. Appellant herein and he wants protection thereof. The protection would be (35) available to him only to the extent that he can justify his possession i.e. he is not a trespasser. Section 53A will not enable him to press into service terms of a document which is unregistered though required by law to be registered. Allowing the appellant to enforce the term of an unregistered lease would be illegal Section 53A when used as a shield will at best enable the appellant to show that his possession is that of a tenant and not that of an unauthourised occupant or trespasser. It cannot take him any further. For going further, i.e. to show that he is a tenant in perpetuity, the tenant has to invoke a term of the lease deed which on account of being part of an unregistered document cannot be looked into. Section 53A can at best make him a tenant from month to month and nothing more. This can be the only harmonious construction of the provisions of Section 53A and 107 of the T.P. Act. A lease from month to month will survive so long as notice under section 106 of the T.P. Act terminating the lease is not served. Extending protection for another period of three years means creation of three years lease which under the law can be only through a registered lease deed. You cannot do that indirectly what you cannot do directly. The appellant cannot be permitted to invoke terms of an unregistered lease by invoking Section 53A of the T.P. Act."
(v) In case Modern Food Industries India Limited (Supra), it is held that :-
"After hearing Counsel for the parties and perusing the record, we are of the considered view that the clauses of the lease deed or renewal of deed dated 3.7.1992 cannot be looked into for want of (36) registration. If a document is inadmissible for non registration, all its terms are inadmissible including the one dealing with the landlord's permission for the renewal of the lease and the increase of the rent....................Fazal Ali J in Sachindra Mohan ghose Vs. Ramjash Agarwalla, AIR 1932 Patna 97, observed that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.
Para 13 : "The argument of Mr. Amitabh Narayan is that proviso to Section 49 of the Registration Act protects the appellant to the extent that these unregistered letters can be received in evidence for the purpose of enforcing the right under section 53 A of the Transfer of Property Act. We find no force in this submission. At best the appellant can use this unregistered document for the purpose of proving the nature of possession but it does not create any right in favour of the appellant to continue as tenant for a year or more. The Supreme Court in the case of Rana Vidya Bhushan Singh Vs. Ratiram, Civil Appeal No. 460 of 1966, decided on 28.1.1969 reported in U.J. (SC) 21 (69), page 86 observed that :-
"A document required by law to be registered, unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting of extinguishing a right to immovable property."
Para 14 : "Therefore, a document which requires compulsory registration is not admissible (37) for want of registration to prove the terms of the lease. It is admissible only to prove the character of the possession of the person who holds the property. Therefore, even the proviso to Section 49 of the Registration Act is of no help to the appellant. At best the appellant can prove the nature of his possession but not the terms of the lease. Admittedly creation of lease is not a collateral purpose nor the terms of the lease are collateral within the meaning of Section 49 of the Registration Act as held by Supreme Court the case of Satish Chand Vs. Goverdhan Das, AIR 1984 SC 413.
17. It emerges from the above judgments that if a lease deed is inadmissible for non registration, all its terms are inadmissible and the same cannot be looked into to prove the terms of the lease. However, such unregistered lease deed can be used for collateral purposes under section 49 of the Registration Act but neither a creation of lease nor terms of the lease are the collateral purposes within the meaning of Section 49 of the Registration Act. It further manifests from the above judgments that lessee cannot take the plea that he is not liable to be evicted and is entitled to the protection provided under section 53A of the T.P. Act. At the most, lessee can invoke section 53A of the Act just to show the nature of his possession in the immovable property and at the best lessee can claim (38) tenancy from month to month and nothing more.
18. In the light of the law laid down in the aforesaid judgments, let me examined the facts of the present case to ascertain whether the defendants can claim protection under section 53A of the T.P. Act and whether any weightage can be given to the renewal clause of the lease deed Ex.PW1/D8.
(i) Admittedly lease deed Ex.PW1/D8 is not registered despite the fact that it was for a period of five years. Being unregistered lease deed, in view of the law laid down in the aforesaid judgments, its terms and conditions cannot be looked into to prove the terms of the lease. Accordingly, I am the opinion that renewal clause also cannot be looked into being the part of the unregistered lease deed. Admittedly defendants were in possession of the property since 1987 as initially the plaintiff had let out the suit premises through registered lease deed dated 9.2.1987 for a period of three years but thereafter, no lease deed was executed and at last on 26.12.1992 the lease deed Ex.PW1/D8 was executed but the same was unregistered lease deed. On the basis of said unregistered lease deed, defendants (39) cannot protect their possession from eviction, at the most they can invoke section 53A of the Act just to show the nature of their possession in the suit premises. Accordingly, I am the opinion that defendants are not entitled for the protection provided under section 53A of the Act. Suit is not barred under section 53A of the Act.
19. Pondering the entire on going discussion, I decide this issue against the defendants and in favour of the plaintiff.
20. ISSUE NO. 4 :-
Whether the defendant is entitled to extension/ renewal of the lease as per the counter claim preferred by the defendant ? OPD Onus to prove this issue was upon the defendants.
(i) Ld. Counsel for the defendants contended that agreement of renewal/extension of lease is not compulsory registrable and even section 49 of the Registration Act is not applicable for the suit for specific performance of the agreement.
ld. Counsel has strongly relied upon judgment reported in AIR (40) 1961 Mysore 29 and AIR 1959 Assam 22.
(ii) Ld. Counsel for the plaintiff confuted the said contentions by arguing that the terms and conditions of lease deed Ex.PW1/D8 cannot be looked into being unregistered document and heavily relied upon 98(2002) DLT 593 (DB).
(iii) In case Modern Food Industries(Supra) it is held that a document which requires compulsory registration, is not admissible for want of registration to prove the terms of lease. It is admissible only to prove the nature of possession of the person who holds the property. It is further held that neither creation of lease nor terms of lease are collateral purpose within the meaning of section 49 of Registration Act. In the instant case defendants are relying upon the terms and conditions of the unregistered lease deed Ex.PW1/D8. Since it is an unregistered lease deed, in view of the law laid down in the aforesaid judgment, its terms and conditions cannot be looked into. It is further clear that creation of lease under the said lease deed and the terms & condition mentioned therein are not collateral (41) purpose. At the most, defendants can use the said lease deed to show the character of their possession in the suit premises. Thus, I am the opinion that the terms and conditions of the said lease deed including renewal clause cannot be looked into and no reliance can be placed there upon.
(iv) Perusal of the judgments relied upon by the Ld. Counsel for the defendants reveal that in one case the lease was for a period of five years while in another case it was for ten years with a clause of renewal. From the said judgments, it appears that the lease deeds in question were registered, thus are not helpful to the defendants in the present case in any manner.
(v) Considering the above discussion, I am the opinion that defendants are not entitled to seek extension/renewal of lease deed on the basis of terms & conditions of the unregistered lease deed Ex.PW1/D8. Accordingly, I decide this issue against the defendants and in favour of the plaintiff. (42) 21. ADDITIONAL ISSUE NO. 1
Whether the defendants are entitled to continue in possession as a tenant in the premises till the completion of sale of the premises in their favour ? OPD Onus to prove the said issue was upon the defendants.
(i) Ld. Counsel for the defendants vigorously contended that to decide this issue, this Court is required to decide whether any agreement to sell was executed by the plaintiff in favour of defendants in respect of the suit property or not. It is argued that from the documents relied upon by the defendants, it becomes clear that plaintiff had executed the agreement to sell. It is further urged that in pursuance of the agreement to sell, plaintiff had also received the part payment towards sale consideration. It is further contended that even the renewal clause in lease deed Ex. PW1/D8 also corroborates the version of defendants that agreement to sell was executed.
(ii) Ld. Counsel for the plaintiff countered the said contentions by arguing sagaciously that defendants themselves (43) had moved an application dated 29th March 2004 stating therein that the enquiry relating to agreement to sell is beyond the scope of the present suit and is subject matter of the suit for specific performance, which is pending in the Hon'ble High Court. It is further contended that even parties have not led necessary evidence to decide the controversy as to whether plaintiff had executed any agreement to sell or not. It is also urged that plaintiff had not executed any agreement to sell.
22. First question arises as to whether this Court is competent to decide the controversy as to whether plaintiff had executed any agreement to sell or not ?
(i) It is admitted case of the defendants that they had already filed a suit for specific for performance of the alleged agreement to sell against the plaintiff and same is still pending in the Hon'ble High Court. It is further admitted case of the defendants that in the present case, defendants have not prayed for the specific performance of the alleged agreement to sell in their counter claim as but only prayed for the specific performance of the lease deed Ex.PW1/D8. Thus, it becomes (44) clear that the alleged agreement to sell dated 3rd May 1988, which is Ex. PW1/D2 is not subject matter before this Court. It is the exclusive domain of the Hon'ble High Court to decide whether any agreement to sell was executed between the parties and whether present defendants are entitled for the specific performance of the said agreement to sell or not. Giving of any finding on the said agreement to sell in the present suit would amount judicial impropriety on the part of this Court. Further, it is also undisputed fact that during the trial, defendants have not led any evidence to establish that they were and are ready any willing to perform the agreement on their behalf and also had and have sufficient fund to make the balance payment. This further corroborates that even defendants knew very well that the execution of agreement to sell is not the subject matter before this Court and it not within the purview of this Court to give any finding on the said agreement to sell.
(ii) Admittedly, defendants had moved an application vide I.A. No. 2956/03 before the Hon'ble High Court requesting to consolidate both the suits but the same was dismissed by the Hon'ble High Court on 23.10.03. Thereafter, defendants had (45) moved another application under section 151 CPC before this Court for stay of the proceedings on the basis of this additional issue but the same was also dismissed vide order dated 03.07.04. At the time of dismissing the application for consolidation of both the suits, it was also held by the Hon'ble High Court that subject matter in both the case is different.
(iii) Considering the above discussion, I am of the opinion that the alleged agreement to sell is not subject matter before this Court, thus this Court is not competent to give any finding on the alleged agreement to sell.
23. Next conundrum issue arises for adjudication is as to whether defendants are entitled for any protection provided under section 53A of the T.P. Act in the facts & circumstances of the present case ?
(i) It is admitted case of the defendants that they had not obtained the possession of the suit property in pursuance of the alleged agreement to sell as they were already in possession of the property being lessee thereof. It is also admitted case of the (46) defendants that it was agreed between the parties that till the plaintiff executes the sale deed in their favour, defendants would remain in possession of the property being tenant and would continue to pay rent to the plaintiff. Thus, as per defendants, their status in the suit property was that of lessee.
(ii) To seek the protection under section 53A of the Act, defendants were bound to prove that after execution of the alleged agreement to sell, they continued in the possession of the suit property in part performance of the alleged agreement to sell. In their written statements, defendants unambiguously admitted that it was agreed that till the execution of sale deed, they would be liable to pay rent to the plaintiff at the prevailing market rent. Accordingly, an unregistered lease deed Ex. PW1/D8 was executed between the parties on 26th December 1992. This itself proves that defendants were not in possession of the suit property in pursuance of the alleged agreement to sell but were in the possession of the same being the lessee. Since the defendants did not continue in possession of the suit property in part performance of the alleged agreement to sell, I am of the considered opinion that defendants are not entitled for the (47) protection provided under section 53A of the Act.
(iii) As already discussed that being the unregistered lease deed, the clauses of Ex.PW1/D8 can not be looked into to decide whether the lease was renewable at the option of the defendants or not.
24. Mulling over the afore-going discussion, I am of the considered opinion that defendants are not entitled to continue in possession of the suit property till the completion of the sale in their favour. Accordingly, I decide this issue against the defendants and in favour of the plaintiff.
25. ADDITIONAL ISSUE No.2 Whether the alleged notice of determination of tenancy stands waived ?
Onus to prove the said issue was upon the defendants.
(i) Ld. Counsel for the defendants contended that the notices issued by the plaintiff from time to time are waived of as plaintiff had accepted the rent for the entire month of October, (48) 1997 while as per notice dated 08.10.97, tenancy was terminated w.e.f. 27.10.97.
(ii) Ld. Counsel for the plaintiff opposed the said contention by arguing that plaintiff had not waived of the notice issued from time to time. Merely fact that plaintiff had received rent for the entire month of October, 1997 does not prove that plaintiff had waived of the notice. It is argued that defendants were liable to pay use and occupation charges for the month of October, 1997 as defendants had not vacated the suit premises on or before 27.10.97. It is further argued that after filing the present suit plaintiff is receiving the use and occupation charges in pursuance of order of Hon'ble High Court dated 06.10.99 and 21.10.2002.
(iii) It is well settled principle of law that mere acceptance of rent by the landlord after terminating the tenancy, does not sufficient in itself to conclude that the notice was waived of by the landlord. (Reliance placed on AIR 2006 Supreme Court 1734). It is admitted case of defendants that they had not vacated the suit premises on 27.10.1997. In the notice dated 08.10.97, it is categorically mentioned that defendants had approached the (49) plaintiff in August, 1997 and requested the plaintiff to permit them to stay in the suit premises for a period of three months and on their request, plaintiff had permitted them to stay in the premises till 27.10.97. Thus, defendants were supposed to pay the use & occupation charges for the month of October, 1997. From order dated 06.10.99 and 21.10.2002 passed by the Hon'ble High Court, it becomes abundantly clear that plaintiff was permitted to accept the rent without prejudice to her right and contention. There is no other evidence on record, which may show that plaintiff had any intention to waive of the notice.
(iv) Considering all these facts, I am of the opinion that there is nothing on record to prove that plaintiff had waived of notice of termination of tenancy at any point of time. Accordingly, I decide this issue in favour of defendants and in favour of plaintiff.
26. ADDITIONAL ISSUE No.3 Whether the plaintiff has allowed the defendants to make construction/addition and alteration and building activities of permanent nature in the property leased and if so, to what effect ? OPD (50) Onus to prove the said issue was upon the defendants.
(i) Ld. Counsel for the defendants contended that defendants had reconstructed the garage and servant quarter block at the ground floor portion while first floor was also constructed by the defendants by their own fund with the consent of plaintiff, thus it is argued that the intention of the parties was of a permanent lease. Ld. Counsel for the defendants has strongly relied upon the judgments reported in AIR 1962 Supreme Court 413, AIR 1971 Supreme Court 1878 and AIR 1967 Punjab 159.
(ii) Ld. Counsel for the plaintiff refuted the said contention by arguing that first floor portion was constructed by the defendants as per the supplementary agreement dated 26.05.87 and the cost of said construction had already been deducted from the monthly rent. It is further argued that plaintiff had permitted the defendants to make addition and alteration by demolishing the old garage. It is argued that merely fact that defendants had raised a new garage in place old one does not mean that plaintiff (51) had intention of permanent lease as argued by the defendants.
(iii) It is undisputed fact that the first floor portion was constructed by the defendants as per supplementary agreement dated 26.05.87, which is Ex.D4. It emerges from the said document that plaintiff had permitted the defendants to construct two rooms with attached bathroom and lobby having a built-up area of 1228 sq. ft. at the first floor portion at the cost of Rs.3 lakh only. Thus, it becomes clear that plaintiff had not not only fixed the nature of construction but also the amount, which was to be spent on the construction. It is further agreed between the parties that the amount of Rs.3 lakh would be adjusted towards the rent of the said constructed portion. Defendants had agreed to pay Rs.5000/- per month for the first floor portion. In other words, the amount of Rs.3 lakh was adjusted against the monthly rent of Rs.5000/- and this fact has been admitted by the defendant in his testimony.
(iv) It is also admitted case of defendants that on the request of defendants, plaintiff had permitted vide Ex.D3 to demolish the existing garage and to construct a new garage with servant (52) quarters with attached bath rooms and also authorised the defendants to carry out all necessary repair, alteration and addition, which were required by the defendants from time to time at their own cost. This only shows that plaintiff was cooperative to the defendants. Merely fact that plaintiff had permitted the defendants to construct a new garage after demolishing the existing one does not prove that plaintiff had any intentions of executing a permanent lease in favour of defendants.
(v) I have perused the judgments cited by ld. Counsel for the defendants. In all the judgments, the land was given on lease to the parties to raise construction/building. While in the present case, constructed property was leased out to the defendants and the amount spent by the defendants to raise construction at the first floor had already been adjusted towards the rent of the said portion. Thus, it becomes clear that the facts of the above said case were totally different from that of the present case, thus in my opinion the said judgments are not helpful to the defendants in any manner.
(53)
(vi) Pondering the above-going discussion, I do not find any substance in the contention of Ld. Counsel for the defendants. Accordingly, I decide this issue against the defendants and in favour of plaintiff.
27. ADDITIONAL ISSUE No.4 (framed on 22.03.2002) Whether the counter-claim if the defendants is barred by the limitation ? OPP Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for the plaintiff contended that the defendants had filed the counter claim in May, 1999 while the lease deed Ex.PW1/D8 was executed on 26.12.1992. It is contended that under Registration Act, four months time is prescribed for presentation of documents for registration. Admittedly, plaintiff had never presented said documents for registration, thus defendants came to know that plaintiff was not accepting the said lease deed. It is argued that if limitation is started after four months from 26.12.92, even then the counter claim is barred by the period of limitation.
(54)
(ii) Ld. Counsel for the defendants opposed the said contention by arguing that under article 54 of the Limitation Act, limitation would start from the date when defendants had noticed that plaintiff were refusing to accept the lease deed. It is argued that in the present case defendants first time came to about the intention of the plaintiff when the notice dated 27.09.96 was sent wherein the tenancy was terminated w.e.f. 26.12.96.
(iii) It is admitted case of the plaintiff that no time was prescribed in the lease deed for its performance and plaintiff was also accepting the rent in pursuance of the said lease deed without any kind of objection. It is also admitted case of the plaintiff that first time plaintiff had sent the legal notice dated 27.09.96, which is Ex.P5, wherein the tenancy was terminated w.e.f. 26.12.96. Thus, first time plaintiff had informed the defendants that plaintiff is not accepting the said lease deed.
(iv) No doubt the lease deed was not presented for registration by either of the parties within four months from the date of its execution. As plaintiff was accepting the rent in (55) accordance with the lease deed Ex.PW1/D8, defendants may have reason to believe that plaintiff would honour the said lease deed. Thus, merely fact that the lease deed was not presented within four months for registration does not prove that plaintiff had conveyed her intention that she will not accept the terms and condition of lease deed Ex.PW1/D8. To my mind, the limitation period would start from the date, when the plaintiff had first time sent the legal notice dated 27.09.96 Ex.P5. If we count the limitation from said date, counter claim is well within the period of limitation.
(v) In view of above discussion, I decide this issue against the plaintiff and in favour of the defendants.
28. ISSUE No.6 Whether the plaintiff is entitled to any mesne profits/ damages, if so, at what rate and for what period ? OPP Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for the plaintiff energetically contended (56) that defendants are liable to pay use and occupation charges at the rate of Rs.1 Lac per month, which was prevalent in the same locality. Ld. Counsel for the plaintiff has strongly placed reliance on the testimony of PW3, who filed the certified copy of lease deed of another property, which was let out at the monthly rent of Rs.2 Lac.
(ii) Ld. Counsel for the defendants has countered the said contention by arguing that there is no evidence on record to prove that the suit property could fetch Rs.1 Lac per month in the year 1997. It is also argued that no reliance can be placed on the Ex.PW3/1 as plaintiff failed to bring lessee in the witness box. Ld. Counsel for the defendants has strongly relied upon the judgment reported in 2005 (VI) AD 515.
(iii) PW3 who is relative of the plaintiff deposed in his testimony that he is one of the co-owners of the property bearing no. N-130 Panchshila Park, New Delhi. He further deposed that Sh. Amarjit Singh Garewal had let out first floor portion of his property bearing no. N-121 Panchshila Park at the monthly rent of Rs.2 Lac per month vide lease deed Ex. PW3/1. He further (57) deposed that Mr. Palinder Singh Bedi had let out front portion of his property bearing no. S-285A Panchshila Park in the sum of Rs.80,000/- per month in July 2000 and further deposed that the property in question could fetch more than Rs.1 Lac per month. In his cross-examination, he admitted that the ground floor of the suit property was constructed in 1975-76 and he had no idea when the property bearing no. N-121 was constructed and he had never visited the first floor portion, which was let out at the rate of Rs.2 Lac per month. Similarly, he deposed that he had not visited the property bearing no. S-285A and also deposed that he is not aware about the fitting and fixtures provided in the said properties to the tenants.
(iv) No doubt area in which property is situated, plays a significant role in ascertaining the rent of the property. Property situated in a posh area or in the heart of the city may fetch more rent than the property situated in other areas of the city. Admittedly, Panchshila Park is one of the posh area of the Delhi. But simultaneously, it is also true that the location of the property, its quality of construction, interior and other factors also play major role in ascertaining the rent of the property. This (58) may be the reason that the property bearing No. S-285A was fetching rent @ Rs.80,000/- per month while another property was fetching rent at the rate of Rs.2 Lac. Further, PW3 admitted in his cross-examination that he had never visited the said properties, thus he can not say about the quality of construction and interior provided by the landlords to their tenants in the said property. Thus, I am of the opinion that the testimony of PW3 is not sufficient to hold that the suit property could fetch rent more than Rs.1 Lac per month in the October 1997.
(v) But the testimony of PW3 shows that the properties situated in the Panchshila Park may fetch rent between Rs.80,000 to Rs.2,00,000 per month, which depends property to property. In other words, if situation and construction of property is good then property may even fetch rent up to Rs.2 Lac per month. In the present case, defendants have not led any evidence to prove how much rent suit property could fetch either in October 1997 or today.
(vi) Considering all the above facts and the fact that defendants have not led any evidence contrary to the testimony (59) of PW3 and also the fact that defendants are also using the suit property for commercial purpose, I am of the considered opinion that the suit property could fetch rent @ Rs.50,000/- per month easily in October 1997. But use & occupation charges is granted from 1st November 1997 as plaintiff had permitted the defendants to occupy the suit premises till 27th October 1997. As defendants had also agreed to increase the rent @ 15% after every five years in the lease deed Ex.PW1/D8, thus on the basis analogy defendants are liable to pay use & occupation charges at the increased rate @ Rs.57,500/- per month w.e.f. 1st November 2002 and Rs.66,125/- per month w.e.f. 1st November 2007. It is pertinent to mention here that defendants shall be entitled to deduct the amount, which they had already paid under the order of the Court from time to time, from the said amount.
(vii) It is argued on behalf of plaintiff that plaintiff had adjusted Rs.1 Lac towards the security of domestic utility items as defendants had not returned the said items. Admittedly, in the present suit plaintiff had not claimed any amount towards the arrears of domestic utility items, thus plaintiff is not entitled to seek any relief in this regard. Further, defendants' plea is that the (60) amount of Rs.1 lac was paid as part sale consideration at the time of execution of alleged agreement to sell. Thus, the fate of amount of Rs.1 lac can be decided only in a suit for specific performance of the agreement to sell, which is pending in the Hon'ble High Court.
(viii) Considering the on-going discussion, I decide this issue in favour of the plaintiff and against the defendants. 29. ISSUE No. 7
Whether the plaintiff is entitled to any interest on arrears of mesne profits/damages, if so at what rate and on what amount ?
Onus to prove the said issue was upon the plaintiff.
(i) Though Ld. Counsel for the plaintiff has claimed interest @ 24% per annum on the arrears of use & occupation charges yet plaintiff failed to lead any evidence to establish on what basis plaintiff has claimed interest at the said rate. In the absence on any evidence, I am of the opinion that plaintiff is not entitled for interest @ 24% per annum. But keeping in view that (61) defendants have not paid the use & occupation charges to the plaintiff in time, thus deprived the plaintiff from using the said amount. Hence, I am of view that defendants are liable to compensate the plaintiff by paying interest on the amount of arrear of use & occupation charges. Considering the relationship between the parties and nature of dispute, I feel that the interest at the rate of 10% per annum from the date of decree till the realization of amount of arrears will meet the ends of justice. I decide this issue accordingly.
30. ISSUE No. 5
Whether the plaintiff is entitled to recover the possession of the suit property ? OPP Onus to prove the said issue was upon the plaintiff.
(i) In view of my finding on issue Nos. 1 to 4 and on the additional issue Nos. 1 to 3, I am of the view that plaintiff is entitled to recover the possession of the suit property. Thus, I decide this issue in favour of the plaintiff and against the defendants.
(62)
31. RELIEF In the light of my findings on the issues above, a decree of possession of suit property comprising of ground & first floor of property bearing No. S-48 Panchshila Park, New Delhi as shown in the site plan Ex. P-3 is passed in favour of the plaintiff and against the defendants. Site plaint Ex. P-3 shall become the part of the decree.
A money decree of Rs.64,50,000/- (from 1st November 97 to 31st October 2002, total 60 months @ Rs.50,000/- p.m. & since 1st November 2002 to 31st October 2007, total 60 months @ Rs.57,500/- p.m.) and since 1st November 2007 @ Rs.66,125/- per month till the defendants hand over the peaceful and vacant possession of the suit property to the plaintiff is passed in favour of plaintiff and against both the defendants jointly and severally liable. It is pertinent to mention here that defendants shall be entitled to deduct the amount, which they had already paid towards use & occupation charges/rent during the trial. Decree for the amount of pendente lite use & occupation charges will be executable on the payment of court fee by the plaintiff. (63)
A money decree of the amount towards interest @ 10% per annum on the arrears of use & occupation charges i.e. (Rs.64,50,000/- - the actual amount already paid by the defendants to the plaintiff during the trial) from the date of decree till the realization of the amount is passed in favour of the plaintiff and against the defendants jointly & severally liable.
Defendants shall also pay full cost of the suit to the plaintiff.
Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in the open court on this 31st day of October, 2007 (Pawan Kumar Jain) Additional District Judge Fast Track Court, Delhi