Delhi District Court
Smt. Rainawati vs Sh. Vikas Dahiya on 6 May, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.55677 OF 2016
Date of institution: 05.12.2015
Arguments heard on: 21.03.2023
Date of judgment: 06.05.2023
Smt. Rainawati
w/o Sh. Subhash
r/o K-312, Mahipal Pur Extension
New Delhi
........Plaintiff
VS
Sh. Vikas Dahiya
s/o Sh. Raj Singh Dahiya
K-814, K-2 Block,
Main Vasant Kunj Road
Mahipal Pur
New Delhi
..........Defendant
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for possession, arrears of rent, mesne profits, and permanent injunction.
2. The case of the plaintiff as pleaded in the plaint as follows. It is stated in the plaint that the plaintiff is the owner of shop bearing no. K-814, K-2, Block, Main Road, Mahipalpur, Vasant Kunj, New Delhi (hereinafter referred to as the suit property) as shown in red colour in the site plan attached to the plaint. There was a dispute between the plaintiff and her brother-in-law namely Sh. Jai Singh in relation to property and the same was ultimately settled by way of a compromise.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.1 The plaintiff had filed a civil suit against Sh. Jai Singh. A compromise/settlement was arrived in mediation proceedings which was accepted by the civil court and the suit was decreed in terms of the settlement. In terms of the settlement, it was agreed that certain properties including the suit property belonged to the share of the plaintiff. The suit property had earlier been let out in the year 2010 by Sh. Jai Singh to the defendant at a monthly rent of Rs. 11,000/- plus electricity charges. Since there was a settlement between the plaintiff and Sh. Jai Singh by which the suit property was agreed to be belonging to the share of the plaintiff, the plaintiff stepped into the shoes of Sh. Jai Singh in respect of the tenancy. The plaintiff sent a legal notice dated 23/07/2015 to the defendant calling upon the defendant to pay the arrears of rent and terminating the oral tenancy. The arrears of rent came to Rs.3,30,000/- at the rate of Rs.11,000/- per month excluding the electricity charges for the period from January 2013 upto the month of June 2013. Sh. Jai Singh had also served a notice of attornment upon the defendant informing the defendant that the plaintiff was the owner of the suit property in view of the settlement and that the defendant ought to pay the rent as also arrears of rent to the plaintiff. The defendant replied to the legal notice sent by the plaintiff vide reply letter dated 18/08/2015. In his reply, the defendant stated that he was tenant in the suit shop but denied the rent of Rs.11,000/- and falsely claimed rent of Rs.2,000/- per month. It is stated in the plaint that as on date of filing of the suit, the rent of the suit shop would not be lower than Rs. 20,000/- per month and the plaintiff by way of legal notice asked the defendant to pay damages at the rate of Rs.20,000/- per month. The notice of attornment sent by Sh. Jai Singh was received by the defendant but the defendant failed to CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.2 respond to the same. The defendant failed to comply with the notice of the plaintiff and failed to pay the arrears of rent and to hand over the possession of the suit shop. The defendant on 26/09/2015 also threatened the plaintiff that in case the plaintiff initiated any legal proceedings against the defendant in respect of the suit property, then the defendant would transfer the possession of the suit shop to a third person.
3. On this basis, the plaintiff has filed the present suit seeking the following reliefs in the prayer clause:
"i) Pass a decree of possession in favour of the plaintiff and against the defendant thereby directing the defendant to vacate and handover the vacant peaceful physical possession of the suit shop being Shop No. K-814, K-2, Block, Main Road, Mahipal Pur, Vasant Kunj, New Delhi, as shown in red colour in the site plan attached, to the plaintiff;
ii) Pass a decree for recovery of Rs.3,30,000/- being arrears of rent for the period from January 2013 to June 2015 at the rate of Rs.11,000/- per month, in respect of the suit ship being Shop No. K-814, K-2, Block, Main Road, Mahipal Pur, Vasant Kunj, New Delhi, as shown in red colour in the site plan attached;
iii) Pass a decree of mesne profits @ Rs.20,000/-
per month in respect of the suit shop being Shop No. K-814, K-2, Block, Main Road, Mahipal Pur, Vasant Kunj, New Delhi, as shown in red colour in the site plan attached, from 01.07.2015 till the date of handing over possession by the defendantj to the plaintiff, in favour of the plaintiff aginst the defendant;
iv) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his legal heirs, assigns, nominees and whosoever CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.3 on his behalf from parting with possession, sub-letting, in any manner creating thrid party interest in respect of or transferring the suit shop being shop no. K-814, K-2, Block, Main Road, Mahipal Pur, Vasant Kunj, New Delhi, as shown in red clolour in the site plan attached, to any other person, except the plaintiff herein;
v) Award costs of the present suit in favour of the plaintiff and against the defendant; and
vi) Pass any such other or further orders as this Hon'ble Court may deem fit and proper on the facts and in the circumstances of the case, in favour of the plaintiff and against the defendant."
4. The defendant has filed written statement in his defence. It is stated in the written statement that the State Government/Gaon Sabha was the owner of the suit property in the revenue records. It is stated that since State Government/Gaon Sabha was the owner of the suit property, the compromise entered into between Sh. Jai Singh and the plaintiff was void. It is stated that neither Sh. Jai Singh nor the plaintiff were the owners of the suit property. It is stated that the suit which resulted in a compromise between the plaintiff and Sh. Jai Singh was a collusive suit. It is denied that the suit property was let out in the year 2010 by Sh. Jai Singh to the defendant on a monthly rent of Rs.11,000/- plus electricity charges. It is stated that the notice of attornment had no legal sanctity. The defendant has denied in general the case of the plaintiff and has sought dismissal of the suit.
5. The plaintiff has filed replication in which she has denied the averments made in the written statement and has reiterated the averments made in the plaint. It is stated that the defendant was barred CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.4 by estoppel from questioning the ownership of the plaintiff over the suit property. It is further stated that the Gaon Sabha had no concern with the suit property.
6. On the pleadings of the parties, the following issues were framed in the suit vide order dated 06/03/2018:
"1. Whether the plaintiff is owner of the property in question? OPP.
2. Whether the land in question belong to Govt. of NCT? (OPD).
3. Whether in the Revenue record Gaon Sabha / Govt is the owner of the property? OPD
4. Whether the compromise of erstwhile suit No.CS 12/2012 (Old. No. CS No.232/2006) titled as Smt. Rainawati Vs. Jai Singh and Anr. is null and void and not binding on the parties in the present suit? OPD.
5. Whether the suit is bad for non-joinder of parties (Gaon Sabha/ Govt.)? OPD.
6. Whether the defendant is barred u/s 116 of Evidence Act to dispute the title of the plaintiff? OPP.
7. Whether the plaintiff is entitled to the relief claimed?
8. Relief."
7. In support of her case the plaintiff has led evidence, both oral as well as documentary. The plaintiff examined herself as PW-1 and has tendered her affidavit in evidence Ex. PW-1/A in which she has CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.5 deposed along with lines of the plaint. The plaintiff was cross- examined by the defendant. The plaintiff has relied upon the following documents:
i) Site plan of suit property as Ex. PW1/1,
ii) Certified copy of settlement dated 31.01.2015 arrived at between the plaintiff and Sh. Jai Singh as Ex. PW1/2,
iii) Certified copy of statement made before the Ld. ADJ, Central, Delhi regarding settlement as Ex. PW1/3,
iv) Certified copy of order and decree dated 19.02.2015 passed by Ld. ADJ, Central, Delhi on the basis of the settlement as Ex. PW1/4 (colly),
v) Legal notice dated 23.07.2015 from plaintiff to defendant as Ex. PW1/5,
vi) Legal notice dated 04.07.2015 from Sh. Jai Singh to the defendant as Ex. PW1/6,
vii) Reply sent by the defendant dated 18.08.2015 as Ex. PW1/7.
8. In support of his case, the defendant has examined himself as DW-1 and has tendered his affidavit in evidence Ex. DW-1/A in which he has deposed along with lines of the written statement. The defendant was cross-examined by the plaintiff.
9. The ld. Counsel for the plaintiff has relied upon the pleadings and evidence in support of the plaintiff and has submitted that the plaintiff is entitled to decree in terms of the prayer clause of the plaint. It is submitted earlier there was a dispute in respect of family properties between the plaintiff and her brother-in-law i.e. Sh. Jai Singh and that the plaintiff had filed civil suit before the Ld. Additional District Judge, CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.6 Tis Hazari Courts entitled as "Smt. Rainawati v. Sh. Jai Singh". It is submitted that the plaintiff, the plaintiff's husband and the defendant had entered into a settlement and the suit was compromised and as per the settlement it was agreed that the properties as shown in the Annexures to the settlement belonged to the plaintiff including the suit property herein. It is submitted that even in the present suit, Sh. Jai Singh had been summoned and he had appeared and made a statement that as per the compromise the suit property belonged to the plaintiff.
10. It is further submitted by the ld. counsel for the plaintiff that the defendant has clearly admitted in the suit that he had entered into the tenancy through Sh. Jai Singh. It is further submitted that Sh. Jai Singh had given notice of attornment to the defendant and had informed the defendant that as the plaintiff was the owner of the suit property in view of the compromise, the arrears of rent and future rent was to be paid to the plaintiff only. It is submitted that the defendant has also admitted the receipt of the said notice of attornment. It is submitted that as such the defendant is estopped from denying the title of the plaintiff.
11. The ld. counsel for the plaintiff has submitted that the defendant could not claim ownership of the Gaon Sabha in as much as the defendant being a tenant was barred by estoppel u/s. 116 Evidence Act to take such plea. It is submitted that once the plaintiff was landlord of the defendant, then she did not have to prove her ownership in order to claim possession. The ld. counsel for the plaintiff has relied upon:
Payal Vision Limited Vs. Radhika Choudhary (2012) 11 SCC 405, Mohd Buran Vs. Triloki Nath Nirmal 268 (2020) DLT, Sheela v. Firm CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.7 Prahlad Rai Prem Prakash (2002) 3 SCC 375, and Ranjeet Singh Kalra Vs. Paramjit Kaur 239 (2017) DLT 529.
12. The ld. counsel for the plaintiff has submitted that there was no requirement for attornment by the defendant who was the lessee in favour of the plaintiff who was the new landlord having derived title from the earlier landlord Sh. Jai Singh. It is submitted that section 109 of Transfer of Property Act applies in the present case and the plaintiff entered into the shoes of Sh. Jai Singh and there was no requirement for attornment by the defendant. The ld. counsel for the plaintiff has relied upon Ambica Prasad Vs. Mohd. Aslam (2015) 13 SCC 13.
13. The ld. counsel for the plaintiff has submitted that the compromise decree between the plaintiff and Sh. Jai Singh in the civil suit was not registrable in view of section 17(2)(vi) of the Registration Act. In this regard, reliance is placed upon Mohammade Yusuf v. Raj Kumar (2020) 10 SCC 264.
14. The ld. counsel for the plaintiff has further submitted that even otherwise the compromise decree between the plaintiff and Sh. Jai Singh, who is the plaintiff's brother-in-law, was based on a family settlement and as such there was no requirement of registration of the compromise decree. In this regard, reliance is placed upon Ripu Daman Singh Vs. Tika Maheshwar Chand (2021) 7 SCC 446.
15. It is further submitted that the defendant has taken a false defence that the rate of rent of the suit property was Rs. 2000/- only. It is submitted that the defendant has not led any evidence in proof of this contention. It is submitted that the plaintiff has been able to prove that the rate of CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.8 rent was Rs. 11,000/- per month. It is submitted that accordingly, the plaintiff would be entitled to decree for possession and arrears of rent and mesne profits.
16. On the other hand, the ld. Counsel for the defendant has relied upon the pleadings and evidence in support of the defendant and has submitted that the suit is liable to be dismissed. The ld. counsel for the defendant has submitted that the plaintiff has failed to prove her ownership over the suit property. It is submitted that there is no documentary evidence showing the title of the plaintiff over the suit property. It is further submitted that the compromise between the plaintiff and Sh. Jai Singh in the Suit No. 122/2012 was a fraud played on the court as the owner of the suit property was the Gaon Sabha as per the revenue records. It is submitted that since the plaintiff was not the owner of the suit property, the compromise was bad. It is further submitted that the Gaon Sabha was the owner of the suit property as per the revenue record and the compromise entered into between the plaintiff and Sh. Jai Singh in Ex.PW-1/DX was void for non-joinder of necessary party since the Gaon Sabha was not a party in the suit. It is further submitted that the defendant was inducted as a defendant into the suit property by Sh. Jai Singh in the month of June, 2010 on rent of Rs. 2,000/- per month. It is submitted that the defendant had filed suit No. 305/14 against Sh. Jai Singh for permanent injunction and Sh. Jai Singh contested the suit. Ultimately, the said suit was dismissed as withdrawn on 07/01/2015 with the undertaking given by Sh. Jai Singh that he would not dispossess the defendant without due process of law.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.9
17. It is further submitted that Ex.PW1/6 being the letter of attornment was not proved in accordance of law as the author of the letter i.e. Sh. Jai Singh was not produced as a witness. It is further submitted that Sh. Jai Singh on the date of the termination i.e. on 04/07/2015 was not the owner of the premises, as he ceased to be the owner of the suit property as per the own case of the plaintiff after the compromise decree dated 19.02.2015. It is submitted that hence, the law of estoppel u/s 116 of Evidence Act would not apply in the facts of the case.
18. It is further submitted that u/s 111(g) of Transfer of Property Act, the tenancy is terminated/determined when the tenant comes to know or prove that the landlord is not the owner and some other person is the owner. It is submitted that in the present case, there was no relationship of landlord and tenant between the plaintiff and defendant. It is submitted that as per the case of the plaintiff, Sh. Jai Singh had terminated the tenancy and therefore, the plaintiff had also terminated tenancy. It is submitted that the defendant has proved that the Gaon Sabha was the owner of the suit property and hence there was no question of estoppel u/s 116 of the Evidence Act.
19. The ld. counsel for the defendant has submitted that the title of the plaintiff was seriously disputed by the defendant in the present case and that the plaintiff ought to have filed a suit for declaration of title. Reliance is place upon Anathula Sudhakar Vs. P.B Reddy, AIR 2008 SC 2033.
20. The ld. counsel for defendant has further submitted that the Gaon Sabha is a necessary party when the interest of Gaon Sabha is affected. Reliance in this regard is placed upon Raja Ram Vs. Jt. Dir.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.10 Consolidation, AIR 1993 A1l. 72. The ld. counsel for the defendant has relied upon Naruli Devi Vs. Jeet Ram, AIR 2019 UK 91 for the proposition that revenue entries are presumed to be true.
21. The ld. counsel for the defendant has submitted that a compromise decree is to be compulsory registered if value of immoveable property is more than Rs. 100/-. In this regard, reliance is placed upon K.K Mohanty Vs. S.K. Mohanty, AIR 201 NOC 578 (ORI).
22. The ld. counsel for the defendant has submitted that the rule of estoppel u/s. 116 of Evidence Act does not apply if tenant disclaims the title of landlord and shows that the land belongs to some third person. In this regard, reliance is placed upon Sheela Vs. firm Prachlad, (2002) 3 SCC 375 and Narang M.C. Vs. S.L. Aggarwal, 208 (2017) DLT 301.
23. It is further submitted that the relief of recovery of arrears of rent was not maintainable as the plaintiff had been unable to prove that the rate of rent was Rs. 11,000/- per month. It is further submitted that in any case, the plaintiff cannot claim arrears of rent from the defendant as the arrears of rent was an actionable claim and the plaintiff had not taken the necessary steps in accordance with Sections 130 to 132 of the Transfer of Property Act. On this basis, it is submitted that the suit is liable to be dismissed.
24. The ld. counsel for the defendant has submitted that even if transferor authorizes the transferee to collect arrears of rent, the transferee could recover as actionable claim u/s. 130 Transfer of Property Act and not as arrears of rent and as debt. In this regard, reliance is placed upon Babu B.H B. Vs. Bhagwan Dass, AIR 1967 MP 143, S.V. Peria Sawamy Vs. CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.11 R.S. Kumar, MLJR (1997) 420, and Girdhari Lal Vs. Hukum Singh, AIR 1997 SC 129.
25. The ld. counsel for the defendant has finally argued that any weakness in the defence of the defendant would not assist the plaintiff and the case of the plaintiff has to stand on its own legs. In this regard, reliance is placed upon Ram Pratap Vs. Pushottam, 237 (2017) DLT 708.
26. I have considered the submissions of the ld. Counsels for the parties and I have perused the record.
27. My issue-wise findings are as follows.
Issue No.1: Whether the plaintiff is owner of the property in question? OPP.
Issue No.2: Whether the land in question belong to Govt. of NCT? (OPD).
Issue No.3: Whether in the Revenue record Gaon Sabha / Govt is the owner of the property? OPD Issue No.4: Whether the compromise of erstwhile suit No.CS 12/2012 (Old. No. CS No.232/2006) titled as Smt. Rainawati Vs. Jai Singh and Anr. is null and void and not binding on the parties in the present suit? OPD.
Issue No.5: Whether the suit is bad for non-joinder of parties (Gaon Sabha/ Govt.)? OPD.
Issue No.6: Whether the defendant is barred u/s 116 of Evidence Act to dispute the title of the plaintiff? OPP.
28. The aforesaid issues are taken up together for discussion.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.12
29. The case of the plaintiff in the plaint is that Sh. Jai Singh, who was the brother-in-law of the plaintiff, had inducted the defendant as a tenant in the suit property in 2010 at monthly rent of Rs. 11,000/-. It is further the case of the plaintiff that there was some dispute regarding family properties between the plaintiff and Sh. Jai Singh and that the plaintiff had filed a civil suit against Sh. Jai Singh which was ultimately compromised between the parties and the suit was disposed of in terms of the compromise. It is the plaintiff's case that under the compromise, the suit property had come to her share and she became owner thereof. The defendant has in his written statement denied the ownership of the plaintiff. The defendant has also denied that the suit property had been let out to him by Sh. Jai Singh in the year 2010. The defendant has claimed that the State Government/Gaon Sabha was the owner of the property in the revenue records and that the plaintiff had no locus to file the present suit.
30. In so far as the relationship between Sh. Jai Singh and the defendant is concerned, I find from the evidence on record that the defendant has clearly admitted the relationship of landlord-tenant between Sh. Jai Singh and himself. In his cross-examination on 28/02/2020, the defendant has admitted that he had taken the shop on rent in 2010. He has also deposed that he had been informed that Sh. Jai Singh was the owner of the shop. He has also deposed that different persons on behalf of Sh. Jai Singh used to collect the rent from the defendant. He has deposed that the rate of rent was settled with Sh. Jai Singh.
31. Even during the cross-examination of the plaintiff as PW-1, the defendant has put the suggestion to the plaintiff that the defendant was CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.13 paying rent to Sh. Jai Singh, albeit at the monthly rate of Rs. 2000/-. Thus, it was the defendant's own case put to the plaintiff in evidence that the defendant was paying rent to Sh. Jai Singh.
32. The defendant had sent reply letter dated 18/08/2015 Ex.PW-1/7 in response to the notice dated 23/07/2015 Ex.PW-1/5 from the plaintiff to the defendant. In his reply letter Ex.PW-1/7, although the defendant stated that he did not recognize the plaintiff as the owner/landlord, the defendant has admitted that he was paying the monthly rent to Sh. Jai Singh. The defendant did not dispute that Sh. Jai Singh was not the owner or landlord and the defendant did not claim ownership in any third party.
33. Thus, the defendant has clearly admitted the landlord-tenant relationship between Sh. Jai Singh and himself in respect of the suit property. The logical corollary of this admission is that the defendant is estopped from denying the title of Sh. Jai Singh to the suit property. The defendant has sought to raise the defence that the State Government/Gaon Sabha was the owner of the suit property. I am afraid this defence is not available to the defendant in as much as he has admitted that he was a tenant under Sh. Jai Singh. The defendant is estopped from claiming title in a third party other than Sh. Jai Singh.
34. It is the plaintiff's case that the defendant is also estopped under section 116 from denying the title of the plaintiff as the plaintiff has derived her title from Sh. Jai Singh. The learned counsel for the defendant has disputed this and it is the defendant's case that the defendant is not estopped from denying the title of the plaintiff. I am in agreement with the submissions of the learned counsel for the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.14 defendant in this regard. The case of the plaintiff is essentially that she has derived the title from Sh. Jai Singh. I do not find from the evidence on record that the defendant had ever recognized the plaintiff as the landlord, either expressly or impliedly by conduct. The defendant had never paid any rents to the plaintiff. In response to the notice dated 23/07/2015 Ex.PW-1/6 from the plaintiff, the defendant had in his reply letter dated 18/08/2015 Ex.PW-1/7 clearly refused to recognize the plaintiff as the owner/landlord. Thus, the defendant would not be estopped from disputing the derivative title of the plaintiff from Sh. Jai Singh.
35. However, although the defendant is not estopped from denying the derivative title of the plaintiff, since the defendant has admitted that he had entered the tenancy through Sh. Jai Singh and has admitted the landlord-tenant relationship with Sh. Jai Singh, the defendant is estopped from denying the title of Sh. Jai Singh. The case of the defendant is not that Sh. Jai Singh initially had title at the time of commencement of tenancy but subsequently lost the title, rather the case set up by the defendant is that Sh. Jai Singh never had the title and that the title was with the Gaon Sabha/State Government. This plea would not be available to the defendant in view of the bar of estoppel section 116 Evidence Act.
36. It would be appropriate to refer to the judgment of the Hon'ble Supreme Court in Subhash Chandra v. Mohd. Sharif, (1990) 1 SCC 252 on the issue of estoppel with regard to derivative title of the transferee. The relevant portion whereof is extracted as follows:
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.15 "7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff.
Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non- existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.
8. Coming to the facts of the present case, it may be recalled that fresh tenancy had been created in favour of Misri Lal, father of the present appellant, under Navinchand by deed Ex. P-20, and this fact was fully established by the decree, Ex. P-22. The CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.16 appellant, in the shoes of his father, is as much bound by these documents as Misri Lal was, and he cannot be allowed to deny the relationship of landlord and tenant between Navinchand and himself. It has not been the case of the appellant that Navinchand later lost the title or that he had transferred the same to another person, nor does the appellant say that there has been any defect in the sale deed executed in favour of the present plaintiffs. In other words, the acquisition of title by the plaintiffs from Navinchand, if he be presumed to be the rightful owner, is not impugned, that is, the derivative title of the plaintiffs is not under challenge. What the appellant wants is to deny their title by challenging the title of their vendor Navinchand which he is not entitled to do.
9. None of the decisions relied upon by Mr Rohatgi assists him. On the other hand, the judgments in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. [AIR 1937 PC 251 : 64 IA 311 : 1937 ALJ 1389] , and Tej Bhan Madan v. II Addl. District Judge [(1988) 3 SCC 137] , demonstrate that the plea of estoppel of the plaintiffs is well founded. The Privy Council case arose out of a suit for realisation of royalties due on coal raised by the lessee defendant company. The original lease was granted by the father of the plaintiff, the Raja of Panchkote, in favour of one Radha Ballav Mukherjee. The defendant was sued as assignee. The original lease contained a clause giving the lessor a charge for royalties upon the collieries and its plant which was sought to be enforced. Since there was some dispute about the ownership of the colliery, the defendant company by way of abundant caution obtained a second assignment from another source, being the Official Assignee. The plaintiff's claim was denied by the company on the grounds that (i) his father the Raja was not the owner of the colliery and the company was in possession of the colliery as a lessee on the strength of the other assignment from the Official Assignee, and
(ii) the company, being merely a transferee from the original lessee Radha Ballav Mukherjee and not being itself the original lessee, could not be estopped from challenging the Raja's or his son's title. While rejecting the defendant's stand the Privy Council observed thus: (AIR p. 255) "What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.17 no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
The expression "derivative title" was referable to the plaintiff, and the Privy Council concluded by observing that the case did not raise any difficulty as there was "no dispute as to the plaintiff's derivative title". While rejecting the argument on the basis that the company was not the original lessee and being merely an assignee was free to challenge the lessor's title, it was said that "the tenancy under Section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment." The circumstances in the case before us are similar. The appellant does not contend that Navinchand had subsequently lost his title or that there is any defect in the derivative title of the plaintiffs. His defence is that Navinchand did not own the property at all at any point of time, and this he cannot be allowed to do. He cannot be permitted to question his title at the time of the commencement of the tenancy created by Ex. P-20.
10. In Tej Bhan Madan v. II Addl. District Judge [(1988) 3 SCC 137], the question was whether there was a disclaimer of the landlord's title on the part of the appellant-tenant so as to incur forfeiture of the tenancy. The premises in question originally belonged to one Shambhoolal Jain, who died leaving behind his wife, two sons and a daughter by the name of Mainawati. The property was sold in execution of a money decree and was purchased by Mainawati in 1956. Mainawati conveyed the property to one Gopinath Agarwal and the appellant who was in possession as tenant attorned the tenancy in his favour. Subsequently Gopinath sold the same in favour of CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.18 the third respondent, Chhaya Gupta, and both Gopinath and Chayya Gupta asked the appellant to attorn the tenancy in favour of Chayya Gupta. The appellant declined to do so and challenged not only the title of Chayya Gupta but also the validity of the sale in favour of Gopinath. This led to the filing of the case for his eviction on the ground of disclaimer. It is significant to note that the foundation of the proceeding for ejectment was the appellant's denial of the title of Gopinath in whose favour he had earlier attorned the tenancy, and not the challenge of the derivative title of the third respondent. Overruling the objections of the appellant, a decree for eviction was passed against him and his writ petition before the High Court was dismissed. In this background he came to this Court and an argument similar to the one pressed in the case before us. Rejecting the appellant's point, this Court observed thus: (SCC p. 144, para 16) "The stance of the appellant against the third respondent's title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latter's vendor-Mainawati herself had no title. The derivative title of the third respondent is not denied on any ground other than the one that the vendor, Gopinath -- to whom appellant had attorned -- had himself no title, the implication of which is that if appellant could not have denied Gopinath's title by virtue of the inhibitions of the attornment, he could not question third respondent's title either. Appellant did himself no service by this stand."
The case is clearly against the appellant. The above passage as also the last sentence in paragraph 4 of the judgment which is mentioned below also indicates as to what can be termed as a derivative title which a tenant may be free to challenge: (SCC p. 140, para 4) "But appellant-tenant declined to do so and assailed not only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself.""
(Emphasis supplied by me) CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.19
37. Thus, although the defendant would not be estopped from disputing the derivative title of the plaintiff from Sh. Jai Singh, the defendant would be estopped from denying the title of Sh. Jai Singh himself. The result is that the defendant cannot claim that any third party other than Sh. Jai Singh was the owner of the suit property. The defendant is barred by estoppel from claiming that the State Government or Gaon Sabha was the owner of the suit property. The defence raised by the defendant that the State Government or Gaon Sabha was the owner of the suit property is, thus, rejected being barred by estoppel. However, the defence raised by the defendant challenging the derivative title of the plaintiff from Sh. Jai Singh would not be barred by estoppel u/s. 116 Transfer of Property Act in as much as the defendant had never acknowledged the plaintiff as his landlord.
38. The Issue No.6 (Whether the defendant is barred u/s 116 of Evidence Act to dispute the title of the plaintiff? OPP) is decided accordingly. The defendant is not estopped from denying the derivative title of the plaintiff from Sh. Jai Singh. However, the defendant is estopped from denying the title of Sh. Jai Singh and claiming title in a third party being the State Government/Gaon Sabha.
39. In respect of Issue No.2 (Whether the land in question belong to Govt.
of NCT? OPD) and Issue No.3 (Whether in the Revenue record Gaon Sabha / Govt is the owner of the property? OPD), it is held that the defendant is estopped from denying the title of Sh. Jai Singh and claiming title in a third party being the State Government/Gaon Sabha. The present suit is a suit simpliciter for eviction of a tenant filed by the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.20 plaintiff on the basis of being a transferee of the original landlord. This is not a suit for declaration of title. The defendant as tenant is estopped u/s. 116 Evidence Act from disputing the title of the original landlord Sh. Jai Singh. Hence, the decision in the present suit would not concern itself with respect to title of any third party such as Gaon Sabha or State Government.
40. The Issue No.5 (Whether the suit is bad for non-joinder of parties (Gaon Sabha/Govt.)? OPD) is also decided in favour of the plaintiff and against the defendant. I have already held that the defendant was estopped from challenging the title of Sh. Jai Singh and claim title in a third party being State Govt./Gaon Sabha. The defendant could only challenge the derivative title of the plaintiff as derived from Sh. Jai Singh. It is to be remembered that the present suit is a suit for ejection simpliciter filed by the plaintiff on the basis that she had derived title from the erstwhile landlord Sh. Jai Singh. The present suit is not a suit for declaration of title. As such, the Gaon Sabha or the State Government were not be necessary parties to the present suit. This issue is answered accordingly.
41. Now, coming to the question of the derivative title of the plaintiff from Sh. Jai Singh.
42. It is the case of the plaintiff that as per the settlement entered into between the plaintiff and Sh. Jai Singh, it was agreed that certain properties including the suit property belonged to the plaintiff. It is the plaintiff's case that it is on the basis of this settlement that Ex.PW-1/4 compromise decree dated 19/02/2015 was passed by the Ld. Additional CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.21 District Judge-03, Central Delhi in CS No.122/2012 and the terms of settlement formed part of the compromise decree Ex.PW-1/4.
43. The sole defence taken by the defendant in his written statement against the derivative title of the plaintiff from Sh. Jai Singh was that the State Government/Gaon Sabha was the owner of the suit property, and as such Sh. Jai Singh and the plaintiff could not have entered into the compromise in the civil suit CS No.122/2012. As already held, the defendant is estopped from denying the title of Sh. Jai Singh to the suit property and is also estopped from claiming ownership in a third party. It is not the case of the defendant that Sh. Jai Singh was earlier the owner but subsequently lost ownership. Rather the case put forward by the defendant is that Sh. Jai Singh was never the owner and thus could not pass on title to the plaintiff. I am afraid this defence would not be available to the defendant due to the bar of estoppel having admitted the tenancy under Sh. Jai Singh. Thus, the defence that the plaintiff could not have derived title from Sh. Jai Singh as Sh. Jai Singh himself did not have valid title would not be available to the defendant due to the bar of estoppel. In the result, the defendant cannot challenge the compromise decree on the plea that there could not have been any compromise since Sh. Jai Singh was not the owner.
44. The only other argument with respect to the derivative title of the plaintiff which has been made by the learned counsel for the defendant was that the compromise decree Ex.PW-1/4 was an unregistered document and that in the absence of registration, Ex.PW-1/4 did not create any title in favour of the plaintiff in view of the Registration Act, 1908 and that Ex.PW-1/4 was inadmissible in evidence. The ld.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.22 counsel for the defendant has submitted that the compromise decree Ex.PW-1/4 was compulsorily registrable since it created a right, title and interest in immoveable property in favour of the plaintiff. It is submitted that in the absence of registration there could have been no transfer effected by Ex.PW-1/4.
45. The learned counsel for the plaintiff has on the other hand argued that the compromise decree Ex.PW-1/4 was not compulsorily registrable. The ld. counsel for the plaintiff has submitted that the compromise decree between the plaintiff and Sh. Jai Singh, who is the plaintiff's brother-in-law, was based on a family settlement and as such there was no requirement of registration of the compromise decree. In this regard, reliance is placed upon Ripu Daman Singh Vs. Tika Maheshwar Chand (2021) 7 SCC 446.
46. I have considered the submissions of the ld. counsels for the parties on the issue of registration of the compromise decree Ex.PW-1/4.
47. The plaintiff has filed the certified copy of the record of the suit being CS No.122/2012 (old CS No.232/2006) entitled Smt. Rainawati v. Sh. Jai Singh & Anr. in which the compromise decree Ex.PW-1/4 was passed. I have perused the same.
48. The case of the plaintiff herein in the aforesaid suit being CS No.122/2012 was as follows. In the plaint in the said suit, the plaintiff herein had pleaded that the father-in-law of the plaintiff namely Sh. Noratan Singh had purchased property admeasuring 1000 sq. yds. in Khasra No. 814 in the revenue estate of Village Mahipalpur, New Delhi in the name of the mother-in-law of the plaintiff. After purchase, CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.23 the property was developed and improvements were made and reconstruction was done. The mother-in-law had two surviving sons being Sh. Subhash Singh who was husband of the plaintiff and Sh. Jai Singh who was the brother-in-law of the plaintiff. The mother-in-law had partitioned the property between her two sons. Even full and complete demarcation had been made by drawing of site plan and the respective portions were given to the two sons. The property was admeasuring 1000 sq. yds, and after leaving the passage in the property, the area came to 890 sq. yds. which was partitioned between the two sons. To completely identify the shares a site plan was also drawn and the specifications were mentioned as to the areas belonging to the two brothers. The area which came to the share of the husband of the plaintiff was 386.70 sq. yds and the area which came to the share of Sh. Jai Singh was 380.63 sq. yds. and the remaining area was left out for the passage in the property. There was complete partition of the property between the two brothers and they were enjoying the same and also had made improvements and some portions were let out to tenants. The site plan attached to the suit by the plaintiff showed the portion belonging to the husband of the plaintiff in red colour and the portion belonging to Sh. Jai Singh in green colour. It was further stated that there was an area of 70.83 sq. yds. which formed part of the share of the plaintiff's husband in the area of 386.70 sq. yds. This area of 70.83 sq. yds. was shown in dotted lines in the red colour portion in the site plan. It was further stated that the husband of the plaintiff was suffering from various ailments and the plaintiff as his wife was looking after him. The plaintiff's husband executed a power of attorney in favour of the plaintiff and the plaintiff was in possession of and was enjoying the property as owner. It was further stated in the plaint that CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.24 taking advantage of the ill health of the plaintiff's husband, Sh. Jai Singh had encroached upon the portion of 70.38 sq. yds. area. Sh. Jai Singh had also encroached upon portion of the passage area. On the basis of the aforesaid pleadings, the plaintiff had filed the suit for possession of the area admeasuring 70.83 sq. yds. and for mandatory injunction for removal of the construction in the passage area.
49. The defendants in the said suit filed by the plaintiff being CS No.122/2012 (old CS No.232/2006) were Sh. Jai Singh and Smt. Ram Murti Devi, who were the brother-in-law and the mother-in-law of the plaintiff, respectively. In their written statements, both the defendants had stated that the mother-in-law i.e. Smt. Ram Murti Devi was the owner of the property admeasuring 1000 sq. yds. During the course of the suit, Smt. Ram Murti Devi expired and the suit abated with respect to her. The parties were referred to the Delhi Mediation Centre and ultimately a settlement was arrived at between the plaintiff, the plaintiff's husband and Sh. Jai Singh.
50. The settlement which is recorded in the document dated 31/01/2015 is extracted hereunder in extenso:
"31.01.2015 Present: Smt. Rainawati, plaintiff with her husband Sh. Subhash Singh, Sh. Jai Singh, defendant no.1 in person alongwitih counsel Sh. Naresh Kumar, Advocate.
This suit for declaration, possession & injunction has been referred by the Court of Dr. Archana Sinha, Ld. ADJ, Tis Hazari Courts, Delhi and assigned to me for mediation. Process of mediation explained to the parties. Single and joint sessions were held.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.25 After due discussions, both parties have agreed to settle their disputes in full and final on the following terms and conditions:-
1. The parties have determine their share as per the site plan as Annexure-A, enclosed with this settlement.
2. It has been settled the portion marked with Green measuring 58ft. x 59.6 ft. belongs to Smt. Rainawati, plaintiff of the case.
3. That the portion marked with Red will belong to respondent Sh. Jai Singh meauring area 570 sq. yds.
4. Both have also agreed to leave a common passage of 10ft. width with yellow colour.
5. There shall be no past, present and future claim on this property of both the parties.
6. It has also been agreed that cancellation of GPA dated 19.04.2006 executed in favour of husband of petitioner shall not be challenged or claimed by plaintiff or his LRs.
7. It has also been agreed that both the parties shall not interfere in the portion/area determine as per the site plan and they shall be free to sale/construct independently their separate areas.
8. The plaintiff will withdraw the present suit on 19.02.2015 i.e. date already fixed and the parties will be left with no claim against each other in respect of present matter in dispute.
Since the matter is settled in mediation. Plaintiff is entitled to get refund the court fee under section 16 of Court Fees Act.
This settlement has been voluntarily arrived at between the parties with their own free will and without any force, pressure or coercion and both the parties are bound by the terms and conditions mentioned herein above. The contents of the settlement have been explained to the parties in vernacular and CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.26 they have understood the same and have admitted the same to be correct.
(Rainawati) (Jai Singh)
plaintiff Repondent no.1
(Subhash Singh) (Naresh Kumar)
Husband of plaintiff Advocate for plaintiff no.1
Parties are directed to appear before the court concerned on 19.02.20115 i.e date already fixed for necessary orders.
(T.V.S Dua) Mediator, Mediation Center Tis Hazari Courts, Delhi/31.01.2015"
(Emphasis supplied by me)
51. The statements of the plaintiff and Sh. Jai Singh were recorded in the suit as under:
"19.02.2015 Present: Sh. N.S Dalal, Ld. Counsel alongwith the plaintiff. Sh. Naresh Kumar, Ld. Counsel alongwith Sh. Jai Singh defendant no.1.The proceedings against defendant no.2 are abated vide order dated 25.08.2014.
The matter is settled in Mediation Center, THC, Delhi on 31.01.2015. The parties/counsels want the disposal in terms of settlement.
Let the statement be recorded.
(Dr. Archana Singh) ADJ-03/Central/Delhi 19.02.2015"
"Statement of Sh. Rainawati, plaintiff in the presence of Sh. N.S Dalal, Ld. Counsel for the plaintiff.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.27 on SA I am the plaintiff in the present suit.
The matter is settled in Mediation Center, THC, Delhi on 31.01.2015 vide settlement Ex.C-1 bears my signatures at point A, my husband at point B, of defendant no.1 at point C and of his counsel at point D. It is correct that the matter has been amicably settled vide settlement Ex.C-1 as per clauses 1 to 7 of the settlement Ex.C-1. In terms of clause 8 of Ex.C-1, I want to withdraw the present suit as after settlement no claim is left against each other in respect of the present matter in dispute, to be adjudicated upon, I may be permitted to withdraw the present suit.
RO & AC (Dr. Archana Singh)
ADJ-03/Central/Delhi
19.02.2015"
"Statement of Sh. N.S Dalal, Ld. Counsel for plaintiff. At bar I am the counsel for the plaintiff in the present suit. I have been authorized and instructed to make the present statement on behalf of the plaintiff.
The matter is settled in Mediation Center, THC, Delhi on 31.01.2015 vide settlement Ex.C-1 bears the signatures of plaintiff at point A, her husband at point B, of defendant no.1 at point C and of his counsel at point D. It is correct that the matter has been amicably settled vide settlement Ex.C-1 as per clauses 1 to 7 of the settlement Ex.C-1. In terms of clause 8 of Ex.C-1, the plaintiff wants to withdraw the present suit as after settlement no claim is left against each other in respect of the present matter in dispute, to be adjudicated upon. Plaintiff may be permitted to withdraw the present suit.
RO & AC (Dr. Archana Singh)
ADJ-03/Central/Delhi
19.02.2015"
"Statement of Sh. Jai Singh defendant no.1 in the presence of Sh. Naresh Kumar, Ld. Counsel for defendant no.1. on SA I am the defendant no.1 in the present suit.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.28 It is correct that the matter is settled in Mediation Center, THC, Delhi on 31.01.2015 vide settlement Ex.C-1 bears the signatures of plaintiff at point A, her husband at point B, my signatures at point C and of my counsel at point D. It is correct that the matter has been amicably settled vide settlement Ex.C-1 as per clauses 1 to 7 of the settlement Ex.C-1. In terms of clause 8 of Ex.C-1. I have no objection, if the plaintiff is permitted to withdraw the present suit as after settlement no claim is left against each other in respect of the present matter in dispute, to be adjudicated upon.
RO & AC (Dr. Archana Singh)
ADJ-03/Central/Delhi
19.02.2015"
52. Ultimately, the Ld. ADJ-02, Central, Delhi passed order dated 19/02/2015 decreeing the suit in terms of the settlement. The order dated 19/02/2015 is extracted hereunder:
"Order In view of settlement of Smt. Rainawati, plaintiff Sh. N.S Dalal, Ld. Counsel for the plaintiff and Sh. Jai Singh defendant no.1 in the presence of Sh. Naresh Kumar, Ld. counsel for defendant no.1, the matter is settled in Mediation Center, THC, Delhi on 31.01.2015 vide settlement Ex.C-1 bears the signatures of plaintiff at point A, her husband at point B, of defendant no.1 at point C and of his counsel at point D. As the matter has been amicably settled vide settlement Ex.C-1 as per clauses 1 to 7 of the settlement Ex.C-1. In terms of clause 8 of Ex.C-1. I have no objection, if the plaintiff is permitted to withdraw the present suit as after settlement no claim is left against each other in respect of the present matter in dispute, to be adjudicated upon. The parties shall be bound by their statement and the terms of the settlement Ex.C-1.
Thus, the suit of the plaintiff is dismissed as withdrawn or disposed of as settled. In terms of settlement the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.29 consent decree be drawn. The statement of the parties shall be part and parcel of the decree.
File be consigned to record room.
(Dr. Archana Singh) ADJ-03/Central/Delhi 19.02.2015"
(Emphasis supplied by me)
53. Now, the question which arises is whether the compromise decree Ex.PW-1/4 was compulsorily registrable. I have given thoughtful consideration to this point and in my view the compromise decree Ex.PW-1/4 was not compulsorily registrable.
54. In the suit CS No.122/2012 (old CS No.232/2006), the case of the plaintiff appears to be that the entire property of 1000 sq. yds. was purchased by the father-in-law in the name of the mother-in-law. Upon leaving out the passage in the property, there was area of 890 sq. yds. There was a family arrangement whereby the mother-in-law had partitioned the 890 sq. yds. between her two sons, who were the husband of the plaintiff and Sh. Jai Singh who was the brother-in-law. The shares were clearly demarcated and both the brothers were enjoying their shares and also had made improvements. The plaintiff's husband had 386.70 sq. yds., whereas the defendant had 380.63 sq. yds. The plaintiff's husband was suffering from ill health and was looked after by the plaintiff. By a family arrangement between the plaintiff and her husband, the plaintiff's husband had executed a power of attorney in favour of the plaintiff and the plaintiff was enjoying the property as owner. Due to the ill health of the plaintiff's husband, Sh. Jai Singh had encroached upon an area of 70.83 sq. yds. which had CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.30 fallen to the share of the plaintiff's husband. Sh. Jai Singh had also encroached upon portion of the passage. This was in brief the case of the plaintiff in the aforesaid suit. The plaintiff had prayed for possession of the area of 70.83 sq. yds. and for mandatory injunction for removal of the construction in the passage area.
55. The suit property in the present case is a shop which falls within the area which was claimed by the plaintiff in the suit CS No.122/2012 (old CS No.232/2006) to have fallen to the share of her husband (total admeasuring 386.70 sq. yds.). The suit property in the present case was also part of the compromise which was entered into in the suit CS No.122/2012.
56. The plaintiff, the plaintiff's husband and Sh. Jai Singh had entered into a compromise in the mediation proceedings. The language of the settlement document dated 31/01/2015 shows that it was a document recording the settlement arrived at between the parties during the process of mediation. It is noted that single and joint sessions of mediation had been held and that after due discussions the parties had agreed to settle their disputes in full and final. Hence, what appears is that the parties had entered into a family settlement in the course of the mediation proceedings which was ultimately recorded in writing in the settlement document dated 31/01/2015 which was signed by the meditator Sh. T.V. S. Dua, and by the plaintiff and her husband Sh. Subhash Singh, and by Sh. Jai Singh.
57. The plaintiff had in her suit already claimed rights in the portion which ultimately was agreed to as belonging to her in the settlement document. In Clause 1 of the settlement document, it is stated that the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.31 parties had "determined" their shares as per the site plan enclosed as Annexure-A to the settlement document. In Clause 2 it is stated that it was settled that the portion marked in Green measuring 58 ft. x 59.6 ft. belonged to the plaintiff. The settlement was a case of acknowledgment of pre-existing rights by the parties and the settlement did not create any new or fresh rights in favour of the plaintiff. In respect of the portion which was ultimately determined and settled as belonging to the plaintiff, the plaintiff had claimed in her suit that the same had come to her husband by way of a family arrangement and then to her through her husband also by way of some family arrangement. Thus, the settlement document was only an acknowledgement of the plaintiff's pre-existing rights in the property through family arrangements which was settled as belonging to the plaintiff in the settlement document. Apart from the plaintiff, the settlement document was also signed by the plaintiff's husband as well as Sh. Jai Singh.
58. Thus, the settlement document was recording a family settlement which was arrived at in the mediation proceedings and entered into between the plaintiff, her husband and Sh. Jai Singh who was brother- in-law of the plaintiff. The family settlement acknowledged the pre- existing rights of the plaintiff in the property based on the earlier family arrangements and did not create any fresh or new rights in favour of the plaintiff. It was this family settlement recorded in the settlement document dated 31/01/2015 which formed the basis of the compromise decree Ex.PW-1/4.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.32
59. At this stage, it would be appropriate to refer to Ripudaman Singh (supra), the relevant portion whereof is extracted hereunder:
"6. The only question in the present appeal is whether a compromise decree in respect of land which is not the subject- matter of suit but is part of the settlement between the family members requires compulsory registration in terms of Section 17(2)(vi) of the Registration Act, 1908. The relevant provision of clause (v) and clause (vi) of sub-section (2) of Section 17 of the said Act reads as under:
"17. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--
***
(v) any document other than the documents specified in sub-section (1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding];"
7. We find that the judgment [Tikka Maheshwar Chand v. Ripudaman Singh, 2016 SCC OnLine HP 3808] and decree passed by the High Court is clearly erroneous and cannot be sustained in law. The parties are the sons of late Vijendra Singh. As an heir of the deceased, the appellant had a right in the estate left by the deceased. Therefore, it was not a new right being created for the first time when the parties entered into a compromise before the civil court but rather a pre-existing right in the property was recognised by way of settlement in court proceedings.
8. Though, the gair mumkin land (non-cultivable land) was not subject-matter of the suit, but the compromise entered CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.33 between the parties before the learned trial court leading to decree on 3-11-1981 included such non-cultivable land. It is to be noted that compromise decree can be passed even if the subject-matter of the agreement, compromise or satisfaction is not the same as the subject-matter of the suit in terms of the provisions of Order 23 Rule 3 of the Code of Civil Procedure, 1908.
9. Order 23 Rule 3 of the Code of Civil Procedure, 1908 reads thus:
"3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit."
10. Therefore, the compromise decree entered into between the parties in respect of land which was not the subject-matter of the suit is valid and is thus a legal settlement. It would be relevant to notice that the respondent-defendant has not disputed such settlement on any admissible grounds before any forum.
11. The question whether such settlement between the members of the family would require registration or not has come up for consideration before this Court in a judgment reported in Kale v. Director of Consolidation [Kale v. Director of Consolidation, (1976) 3 SCC 119] which reads as under :
(SCC pp. 125-27, paras 9-10) "9. ... The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.34 unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ...
***
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
'(1)-(3)*** (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.35 memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.' "
(emphasis in original)
12. The said judgment has come up for consideration recently in Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706] . It may be stated that this was not a case of compromise decree but of a family settlement which was sought to be enforced in a suit for declaration as one of the parties to the settlement wanted to resile from it. Such family settlement was held to be a document as per clause (v) of sub-section (2) of Section 17 of the Registration Act, 1908.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.36
13. An aggrieved person can seek enforcement of family settlement in a suit for declaration wherein the family members have some semblance of right in property or any pre-existing right in the property. The family members could enter into settlement during the pendency of the proceedings before the civil court as well. Such settlement would be binding within the members of the family. If a document is sought to be enforced which is not recognised by a decree, the provision of clause (v) of sub-section (2) of Section 17 of the Registration Act, 1908 would be applicable. However, where the decree has been passed in respect of family property, clause (vi) of sub-section (2) of Section 17 of the Registration Act, 1908 would be applicable. The principle is based on the fact that family settlement only declares the rights which are already possessed by the parties.
14. In respect of a question whether the decree requires registration or not, this Court in Bhoop Singh v. Ram Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] held that decree or order including compromise decree creating new right, title or interest in praesenti in immovable property of value of Rs 100 or above is compulsory for registration. It was not the case of any pre-existing right but right that has been created by the decree alone. This Court explained both the situation, where a party has pre-existing right and where no such right exists. It was observed as under : (SCC pp. 714-16, paras 13, 16 & 18-19) "13. In other words, the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and included the essential terms of the same; if the document, including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, relating to immovable property of the value of Rs 100 and upwards, the document or record or compromise memo shall be compulsorily registered.
*** CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.37
16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
***
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.38 (5) If the property dealt with by the decree be not the "subject-matter of the suit or proceeding", clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.
19. Now, let us see whether on the strength of the decree passed in Suit No. 215 of 1973, the petitioner could sustain his case as put up in his written statement in the present suit, despite the decree not having been registered. According to us, it cannot for two reasons:
(1) The decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre-existing right, did require registration. It may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise, as the suit was decreed "in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct".
Decreeing of suit in such a situation is covered by Order 12 Rule 6, and not by Order 23 Rule 3, which deals with compromise of suit, whereas the former is on the subject of judgment on admissions."
(emphasis in original)
15. In K. Raghunandan v. Ali Hussain Sabir [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102], a decree was passed in respect of disputes between the two neighbours over passage. It was held that such decree would require registration: (SCC p. 113, para 38) "38. A statute must be construed having regard to the purpose and object thereof. Sub-section (1) of Section 17 of the Act makes registration of the documents compulsory. Sub-section (2) of Section 17 of the Act excludes only the applications of clauses (b) and (c) and CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.39 not clause (e) of sub-section (1) of Section 17. If a right is created by a compromise decree or is extinguished, it must compulsorily be registered if the compromise decree comprises immovable property which was not the subject- matter of the suit or proceeding. Clause (vi) is an exception to the exception. If the latter part of clause (vi) of sub-section (2) of Section 17 of the Act applies, the first part thereof shall not apply. As in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage, itself, having not found the part of the compromise, we do not find any infirmity in the impugned judgment."
16. The judgments of this Court in Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] and K. Raghunandan [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] were found to be inconsistent in an order reported in Phool Patti v. Ram Singh [Phool Patti v. Ram Singh, (2009) 13 SCC 22] and the matter was thus referred to a larger Bench. The larger Bench in the judgment reported as Phool Patti v. Ram Singh [Phool Patti v. Ram Singh, (2015) 3 SCC 465 : (2015) 2 SCC (Civ) 312] did not find inconsistencies between the two judgments.
17. Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] was a case dealing with both the situations, decree between the parties where the decree-holder does not have any pre- existing right in the property and also the situation where decree-holder has a pre-existing right. It was the second situation where the decree-holder has a pre-existing right in the property, it was found that decree does not require registration. In K. Raghunandan case [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] , the dispute was not amongst the family members but between neighbours regarding right over passage. Obviously, none of them had any pre-existing right over the immovable property in question.
18. In view of enunciation of law in Bhoop Singh case [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] , we find that the judgment [Tikka Maheshwar Chand v. Ripudaman Singh, 2016 SCC OnLine HP 3808] and decree of the High Court holding CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.40 that the decree requires compulsory registration is erroneous in law. The compromise was between the two brothers consequent to death of their father and no right was being created in praesenti for the first time, thus not requiring compulsory registration. Consequently, the appeal is allowed and the suit is decreed."
(Emphasis supplied by me)
60. It would also be appropriate to refer to the judgment in Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706: 2020 SCC OnLine SC 612, in which the Hon'ble Supreme Court relied upon Kale v. Director of Consolidation, (1976) 3 SCC 119, with respect to the law on family settlements and held as under:
"25. Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long-drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale [Kale v. Director of Consolidation, (1976) 3 SCC 119] . In the said reported decision, a three-Judge Bench of this Court had observed thus: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC pp. 125-26, para 9) "9. ... A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.41 understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits."
(emphasis supplied)
26. In para 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC pp. 126-27) "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
'(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.42 (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.'"
(emphasis supplied)"
(Emphasis supplied by me)
61. The ratio of the decision in Ripudaman Singh (supra) is that when the compromise decree is based on a family settlement which does not create rights in praesenti for the first time, then such compromise CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.43 decree would not require registration. In the present case, the family settlement did not create any new rights but was only an acknowledgment of pre-existing rights on the basis of previous family arrangements. Hence, the compromise decree Ex.PW-1/4 in the present case would not be compulsorily registrable.
62. In the result, I would hold that the compromise decree Ex.PW-1/4 was not compulsorily registrable under the Registration Act.
63. The sole basis for the defendant to claim that the compromise was null and void was that the State Govt./Gaon Sabha was the actual owner of the land. I have already held that the defendant was estopped from challenging the title of Sh. Jai Singh and claim title in a third party being State Govt./Gaon Sabha. As such, the defendant could not claim the compromise to be null and void on the basis that the suit property belonged to a third party. The defendant has admitted the landlord- tenant relationship between Sh. Jai Singh and himself. Sh. Jai Singh has admitted the compromise decree Ex.PW-1/4. The defendant has been unable to show that the compromise was null or void in any manner. The compromise decree Ex.PW-1/4 was also not compulsorily registrable. Sh. Jai Singh has himself never challenged the compromise decree. Rather, he admits to being bound by the compromise decree. The defendant who is not a party to the compromise decree cannot challenge the same as null and void when the parties to the compromise decree themselves admit to being bound by the same. The Issue No.4 (Whether the compromise of erstwhile suit CS No. 12/2012 (Old. No. CS No.232/2006) titled as Smt. Rainawati Vs. Jai Singh and CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.44 Anr. is null and void and not binding on the parties in the present suit? OPD) is decided in favour of the plaintiff and against the defendant.
64. There is another aspect of the matter. The plaintiff had filed an application for impleadment of Sh. Jai Singh as defendant no.2, which was allowed vide order dated 15/01/2016 and notice in the suit was issued to Sh. Jai Singh. On 02/08/2016, Sh. Jai Singh appeared in the suit and made the following statement on oath which was recorded:
"I am the defendant no. 2 in this case, I have already compromised the matter with the plaintiff Smt. Rainawati as per settlement 31-01-2015 before the Mediation Cell, Tis Hazari Courts, in the suit titled as Rainawati Vs. Jai Singh Etc bearing suit no.: CS 122/2012. Certified copy of the settlement is C1. As per the settlement the suit property has come into the share and possession of the plaintiff Smt. Rainawati and further the information in this regard was sent to the defendant Vikas Dahiya vide letter of atonement dated 4-7-2015 and hence I have no concern with the suit property in the present suit."
(Emphasis supplied by me) In view of the aforesaid statement made by Sh. Jai Singh in Court on 02/08/2016, Sh. Jai Singh was deleted from the array of parties vide order dated 02/08/2016.
65. Thus, Sh. Jai Singh has in the present suit himself admitted the compromise entered into between himself, the plaintiff and the plaintiff's husband in the civil suit CS No. 122/2012 and has admitted CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.45 that as per the settlement, the suit property came into the share and possession of the plaintiff. He has also stated that he had also informed the defendant in this regard vide letter of attornment dated 04/07/2015. He has stated that in view of the compromise with the plaintiff, he no longer had any concern with the property. Thus, the compromise decree based on the family settlement has been acted upon by the parties to the compromise decree. Sh. Jai Singh has admitted the compromise decree Ex.PW-1/4 and has also admitted that he is bound by the settlement under Ex.PW-1/4.
66. It is well settled that a compromise decree acts as an estoppel by judgment. In respect of estoppel by compromise decree, it was held in Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31, as under:
"42. S.R. Das, C.J., in Sailendra Narayan Bhanja Deo v. State of Orissa [AIR 1956 SC 346 : 1956 SCR 72] , states : (AIR p.
351) "... a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case ...."
43. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. As stated by Spencer- Bower and Turner in Res Judicata, (2nd edn., page 37):
"Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .... Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders, or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.46 in such cases is not representation by conduct, rather than res judicata.
***."
See also Mohanlal Goenka v. Benoy Kishna Mukherjee [(1952) 2 SCC 648 : AIR 1953 SC 65 : 1953 SCR 377] ."
(Emphasis supplied by me)
67. It was held in Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa, 1956 SCR 72: AIR 1956 SC 346, as under:
"8. The plea of estoppel is sought to be founded on the compromise decree, Ex. 'O' passed by the Patna High Court on 2nd May, 1945 in FA, No. 15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In In re, South American and Mexican Company, Ex parte Bank of England [LR (1895) 1 Ch. 37] it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at p. 50--
"The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action."
To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott [LR 1929 AC 482, 493] :
"First of all Their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the court made otherwise than by consent and not discharged on appeal."
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.47 The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the case of Secretary of State for India-in- Council v. Ateendranath Das [(1935) ILR 63 Cal. 550, 558] , Bhaishanker Nanabhai v. Morarji KeKeshavji and Co. [(1911) ILR 36 Bom 283] and Raja Kumara Venkata Perumal Raja Bahadur, Minor by guardian Mr W.A. Varadachariar Bhanja v. Thatha Ramasamy Chetty [(1911) ILR 35 Mad 75] . In the Calcutta case after referring to the English decisions the High Court observed as follows:
"On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say "every step in the reasoning" we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment.""
(Emphasis supplied by me)
68. The Hon'ble High Court of Delhi has held in Uma Devi Yadav v. Lt.
Col. Gaj Singh Yadav (Retd) 2000 SCC OnLine Del 437 : 2000 Supp (56) DRJ 734 (DB) : AIR 2000 Del 424 : (2000) 87 DLT 15 (DB), with respect to operation of estoppel under a compromise decree based on a family settlement as under:
"Before parting with the matter another aspect needs to be noticed. A compromise decree or a decree based on family settlement operates as an estoppel. Such a decree is binding on the parties and must be given effect to unless it is proved that the same was obtained by fraud, misrepresentation, coercion, or undue influence (see V.N. Sreedharan v. Bhaskaran, AIR 1986 CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.48 Kerala 49, and Kale and Others v. Deputy Director of Consolidation and Others, AIR 1976 SC 807). The appellants have not been able to show that the arrangement between the family members, which is the basis of preliminary decree, was induced by fraud misrepresentation, coercion or undue influence. Therefore, their request for redetermination of shares in the properties was rightly rejected by the learned Single Judge."
(Emphasis supplied by me)
69. It would be appropriate to again refer to the judgment in Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706 : 2020 SCC OnLine SC 612, in which the Hon'ble Supreme Court relied upon Kale v. Director of Consolidation, (1976) 3 SCC 119, and held as under:
"27. Again, in para 24, this Court restated that a family arrangement being binding on the parties, clearly operates as an estoppel, so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. In para 35, the Court noted as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC p. 136) "35. ... We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title."
And again, in para 36, the Court noted as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC p. 137) "36. ... Yet having regard to the near relationship which the brother and the son-in-law bore to the widow the Privy CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.49 Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents 4 and 5 at the highest, the position is that Lachman died leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement."
28. While rejecting the argument regarding inapplicability of principle of estoppel, the Court observed as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC p. 138, para 38) "38. ... Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it."
(emphasis supplied) And in para 42, the Court observed as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC p. 140) "42. ... In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against Respondents 4 and
5. Respondent 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases."
(emphasis supplied)"
(Emphasis supplied by me) CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.50
70. The parties to the family settlement and compromise decree Ex.PW-
1/4, including Sh. Jai Singh, have never challenged or disputed the compromise decree Ex.PW-1/4. In fact, Sh. Jai Singh has even in the present suit admitted that he was bound by the compromise decree Ex.PW-1/4. The parties to the compromise decree have also acted upon the compromise. Thus, the doctrine of estoppel in view of the compromise decree also comes into play. The compromise decree would be binding upon the parties thereto.
71. As already held, the defendant has in the present case admitted to having been inducted into the tenancy by Sh. Jai Singh and has admitted the landlord-tenant relationship between Sh. Jai Singh and himself. Thus, whatever interest the defendant had in the suit property as tenant was derived from Sh. Jai Singh only. The rights and interest of the defendant in the suit property could not be higher than that of Sh. Jai Singh from whom he has derived the interest. The estoppel binding Sh. Jai Singh to the compromise decree Ex.PW-1/4 would also preclude the defendant from challenging the title of the plaintiff, since the defendant himself is claiming his interest as tenant through Sh. Jai Singh. Any other view would lead to absurd results. It would be absurd to hold that whereas Sh. Jai Singh was estopped from denying the title of the plaintiff, the defendant herein who himself claims as tenant under Sh. Jai Singh could deny the title of the plaintiff.
72. It is also to be remembered that the present suit is a suit for eviction filed by the plaintiff on the basis of derivative title derived from the erstwhile landlord Sh. Jai Singh. The present suit is not a suit for declaration of title. The onus upon the plaintiff to prove his/her title in CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.51 a suit for eviction is not the same as in a suit for declaration. In Vinay Eknath Lad v. Chiu Mao Chen, (2019) 20 SCC 182 : 2019 SCC OnLine SC 1668, it was held as under:
"16. The plaintiffs' argument on law is that in an eviction suit, title need not be proved in a manner required in a suit for declaration of title. On this count, the following passage from Apollo Zipper [Apollo Zipper (India) Ltd. v. W. Newman & Co. Ltd., (2018) 6 SCC 744 : (2018) 3 SCC (Civ) 807] has been cited : (SCC p. 754, para 40) "40. ... It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit."
Two earlier authorities, Sheela v. Firm Prahlad Rai Prem Prakash [Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375] and Boorugu Mahadev & Sons v. Sirigiri Narasing Rao [Boorugu Mahadev & Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343 : (2016) 2 SCC (Civ) 344] broadly lay down the same principle of law. It is not the law that in a landlord-tenant suit the landlord cannot be called upon at all to prove his ownership of a premises, but onus is not on him to establish perfect title of the suit property."
(Emphasis supplied by me)
73. In Apollo Zipper India Ltd. v. W. Newman & Co. Ltd., (2018) 6 SCC 744, it was held as under:
"40. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.52
41. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela v. Firm Prahlad Rai Prem Prakash [Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375] , para 10 at SCC p. 383 and also Boorugu Mahadev & Sons v. Sirigiri Narasing Rao [Boorugu Mahadev & Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343 : (2016) 2 SCC (Civ) 344] , para 18 at SCC p. 349.)"
(Emphasis supplied by me)
74. I would hold that on the basis of the evidence on record the plaintiff has been satisfactorily able to discharge the onus to prove her ownership over the suit property. Accordingly, the Issue No.1 (Whether the plaintiff is owner of the property in question? OPP) is decided in favour of the plaintiff and against the defendant.
Issue No.7: Whether the plaintiff is entitled to the relief claimed?
75. Section 109 of the Transfer of Property Act, 1882 deals with the rights of the lessor's transferee, and the same is extracted hereunder:
"109. Rights of lessor's transferee.--
If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.53 believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."
(Emphasis supplied by me)
76. As per section 109 of the Transfer of Property Act, 1882, upon transfer of the property by the lessor, the transferee possesses all the rights of the lessor as to the property. The plaintiff has proved that she has derived title from Sh. Jai Singh under the compromise decree Ex.PW- 1/4. Accordingly, by virtue of section 109 of the Transfer of Property Act, 1882, she has stepped into the shoes of the lessor and has all the rights of the lessor.
77. The lease in the present case is not in writing and is oral in nature. The lease is, accordingly, on a month-to-month basis terminable by 15 days' notice under section 106 Transfer of Property Act. In as much as the plaintiff had stepped into the shoes of the lessor under section 109 Transfer of Property Act, the plaintiff was entitled to terminate the tenancy by a 15 days' notice under section 106. The plaintiff had issued the notice dated 23/07/2015 Ex.PW-1/5 to the defendant terminating the lease and directing the defendant to vacate the suit property in 15 days. The legal notice Ex.PW-1/5 was admittedly received by the defendant. As per the speed post receipts annexed to the notice Ex.PW-
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.54 1/5, the notice was sent on 30/07/2015. Although, it is not clear when the notice was received by the defendant, it would be safe to presume that in the ordinary course the defendant would have received the notice within a week, i.e. not later than 07/08/2015. The 15 days' notice period would then commence from 07/08/2015 and the tenancy would be deemed to have been terminated with effect from 22/08/2015.
78. Since, the tenancy of the defendant stood terminated, the plaintiff would be entitled to decree of possession against the defendant.
79. Now, coming to the question of arrears of rent and mesne profits.
80. It is the case of the defendant that the plaintiff cannot seek to claim the arrears of rent in as much as arrears of rent can only be claimed as an actionable claim and that the provisions of sections 130 and 131 of Tranfer of Property Act in respect of transfer of actionable claims have not been complied with in as much as no notice was issued by Sh. Jai Singh regarding arrears of rent.
81. Section 130 of the Act is extracted hereunder:
"130. Transfer of actionable claim.--
(1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.55 Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.
(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor's consent to such suit or proceeding and without making him a party thereto.
(Exception) --Nothing in this section applies to the transfer of a marine or fire policy of insurance 3[or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938)]."
"131. Notice to be in writing, signed.--
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee."
82. I do not find any merit in this contention of the defendant. The defendant has already admitted in his cross-examination that Sh. Jai Singh had sent a notice to him attorning the rent of the shop to the plaintiff and informing that the plaintiff had become the owner of the shop. He was further stated that he did not give the rent to the plaintiff after receiving the notice. Thus, the defendant has admitted that he had received the notice dated 04/07/2015 Ex.PW-1/6 from Sh. Jai Singh. Ex.PW-1/6 was a letter in writing and signed by Sh. Jai Singh addressed to the defendant informing that the suit property was in the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.56 ownership of the plaintiff herein under the settlement entered into between Sh. Jai Singh and the plaintiff, and also informing that the entire arrears of rent from 01/01/2013 till date was to be paid @ Rs. 11,000/- per month to the plaintiff as well as the future rent was to be paid to the plaintiff. Thus, clearly, the defendant had received notice from Sh. Jai Singh regarding the arrears of rent to be paid to the plaintiff. The objection of the defendant based on sections 130 and 131 of the Transfer of Property Act is therefore rejected.
83. It would also be appropriate to refer to the judgment of the Hon'ble Supreme Court in Sk. Noor v. Sk. G.S. Ibrahim, (2003) 7 SCC 321, in which it was held that if there was an assignment of the arrears then the same could be recovered as arrears of rent by the transferee landlord. The relevant portion of the judgment is extracted hereunder:
"12. The substantive part of Section 109 of the Transfer of Property Act read with the proviso necessarily indicates that the arrears of rent due is one of lessor's right as to the property transferred. Right to recover the arrears of rent vested with the original owner and on transfer of all his rights, the same vests in the transferee as per provisions of Section 109 of the Transfer of Property Act. Proviso to Section 109 clearly indicates that if there is an assignment of rent due then the transferee landlord would be entitled to recover the same from the tenant as arrears of rent.
13. In Ramchander Narsey & Co. v. Wamanrao Shenoy [1969 UJ (SC) 333 : AIR 1969 NSC 72] this Court approved the judgment of the High Court of Bombay in ordering ejectment of a tenant, inter alia, on the ground that the tenant had failed to pay to the transferee landlord arrears of rent including the arrears prior to the transfer of the property in his favour. Incidentally, the provisions of the statute considered in that case and in the present case are the same. This Court noticed the ratio of the judgment of the Calcutta High Court in Daya CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.57 Debi v. Chapala Debi [AIR 1960 Cal 378 : 63 CWN 976] wherein it was held that when the assignment of arrears of rent ceased to be rent, they became debt in law and therefore there was no question of paying the same or tendering them in court for payment to the landlord in eviction proceedings. This Court did not go into the correctness or otherwise of the said view. The contention raised by the counsel for the tenant was not accepted although the view expressed by the Calcutta High Court was not specifically disapproved.
14. The judgment of the Calcutta High Court in Daya Debi case [AIR 1960 Cal 378 : 63 CWN 976] was taken note of in a subsequent judgment by this Court in Satti Krishna Reddy v. Nallamilli Venkata Reddy [(1982) 3 SCC 364] . It was held that the view expressed in Daya Debi case [AIR 1960 Cal 378 : 63 CWN 976] was not correct. It was held that arrears of rent assigned to the transferee landlord do not lose their character and become an actionable claim and eviction proceedings can be maintained by the successor landlord on the ground of arrears of rent. It was held: (SCC pp. 364-65, para 1) "I do not see any reason to interfere with the order passed by the High Court, but there is one point to which I must refer, and that arises out of a decision of the Calcutta High Court in Daya Debi v. Chapala Debi [AIR 1960 Cal 378 : 63 CWN 976] . That decision has taken the view that when a claim for arrears of rent is assigned by A to B, it loses the character of a claim for rent as soon as it is assigned and it becomes merely an actionable claim. This view is, of course, not shared by most of the other High Courts and even the Calcutta High Court itself in other decisions has not accepted this view. It does appear to me that this view is not correct because it is difficult to see how a claim for arrears of rent ceases to be such when it is assigned by the owner when he transfers his properties to another. So far as the tenant is concerned, the amount remains payable by him to the successor landlord as arrears of rent because that is his own liability and it does not acquire any other character. And so also when the successor landlord claims the amount assigned to him his cause of action against the tenant would be for arrears of CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.58 rent because there is no other basis on which he found his cause of action against the tenant. There is, therefore, no doubt that in the present case the 1st respondent who was the assignee of the claim for arrears of rent from the predecessor landlady was entitled to recover the arrears of rent from the petitioner and the arrears of rent were due from the petitioner to the 1st respondent at the date when the application was made before the Rent Controller by the 1st respondent for an order of eviction against the petitioner. The special leave petition is accordingly rejected...."
15. In Girdhari Lal v. Hukam Singh [(1977) 3 SCC 347 : AIR 1977 SC 129] the point as to whether the transferee is entitled to the rent due before the transfer of the property in his favour was considered. Interpretation put by the Rajasthan High Court of the proviso to Section 109 of the Transfer of Property Act, to the effect that usually the transferee is not entitled to the arrears unless there is a contract to the contrary was approved. If there was an assignment of arrears then certainly the transferee landlord could maintain the petition for eviction on the ground of arrears of rent including the arrears due prior to the transfer in his favour. It was held: (SCC p. 350, para 9) "9. An objection based upon the proviso to Section 109 of the Transfer of Property Act was, we think rightly, disposed of by the High Court as follows:
'The next objection is that under the proviso to Section 109 of the Transfer of Property Act the transferee is not entitled to arrears of rent due before the transfer. In our opinion he is ordinarily not so entitled unless there is a contract to the contrary. There was an express contract to the contrary contained in the compromise petition which was incorporated in the compromise decree passed by the Court.' "
16. In N.M. Engineer v. Narendra Singh Virdi [(1994) 5 SCC 261 : AIR 1995 SC 448] this Court again held that in the absence of any assignment of the rent in favour of the transferee, the assignee is not entitled to the rent due before the assignment.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.59 Negatively, it means that if there was an assignment of the arrears then the same could be recovered as arrears of rent by the subsequent transferee landlord.
17. Similar is the view taken by a Division Bench of the Allahabad High Court in Ram Prakash Ghai v. Karam Chand [AIR 1963 All 47 : 1962 All LJ 828] , Full Bench in Champaklal Dahyabhai Natali v. Saraswatiben [AIR 1977 Guj 48 : 18 Guj LR 186 (FB)] and by a Single-Judge Bench in Pratap Muktassa Tak v. Vishnu Gopal Pathak [1997 Bom RC 416] . We are not referring to what has been held in these decisions as they are in conformity with the decisions of this Court referred to above.
18. In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee landlord can recover those arrears as rent and if not paid, maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. If that period is taken into consideration then the appellant tenants were certainly in arrears of rent for more than six months and became liable to be evicted from the premises in dispute on the ground of default on their part in payment of rent for more than six months on the date of filing the suit."
(Emphasis supplied by me)
84. As already mentioned, the defendant has admitted that he had received the notice dated 04/07/2015 Ex.PW-1/6 from Sh. Jai Singh informing that the suit property was in the ownership of the plaintiff herein under the settlement entered into between Sh. Jai Singh and the plaintiff, and also informing that the entire arrears of rent from 01/01/2013 till date was to be paid @ Rs. 11,000/- per month to the plaintiff as well as the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.60 future rent was to be paid to the plaintiff. Thus, clearly, Sh. Jai Singh had given notice to the defendant of assignment of the arrears of rent in favour of the plaintiff. Thus, under section 109 of Transfer of Property Act, the plaintiff was entitled to claim arrears of rent from the defendant.
85. It is the case of the plaintiff that the defendant had been in arrears of rent since January 2013. It is the plaintiff's case that the rent was Rs. 11,000/- per month and that the plaintiff was liable to make payment of arrears of rent from January 2013 till the termination of tenancy.
86. It is further the case of the plaintiff that the defendant was also liable to make payment of mesne profits for the period subsequent to the termination of the tenancy till the date of handing over of possession. The plaintiff has claimed mesne profits @ Rs. 20,000/- per month on the basis that this was the prevailing market rate of rent.
87. It is the case of the plaintiff in the plaint that the suit shop was let out in the year 2010 by Sh. Jai Singh to the defendant at monthly rent of Rs. 11,000/-. The relevant paragraph 3 of the plaint is extracted hereunder:
"3. It is worthy to mention herein that the suit shop was let out in the year 2010 by Sh. Jai Singh at a monthly rent of Rs.11,000/- plus electricity charges."
88. In response, the defendant has stated as under in the written statement:
"3. It is wrong to mention herein that the suit shop was let out in the year 2010 by Sh. Jai Singh at a monthly rent of Rs.11000/- plus electricity charges. The plaintiff should be put to strict proof to prove the same."
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.61
89. In the written statement, the defendant had simply denied that he had taken the suit property on rent from Sh. Jai Singh. He had also denied the monthly rate of rent @ Rs. 11000/- per month in the written statement. However, in his cross-examination the defendant has clearly admitted that he had taken the suit shop on rent from Sh. Jai Singh in 2010. Thus, the pleading of the defendant regarding the monthly rate of rent was evasive. Although, the defendant had denied the monthly rate of rent as Rs. 11,000/- in his written statement, the defendant had not mentioned what was the rate of rent as per the defendant. The stand that the defendant was paying Rs. 2,000/- was not taken by the defendant in his written statement. This stand was taken only during evidence, when the defendant put the suggestion to the plaintiff and during the defendant's cross-examination.
90. The defendant has admitted in his cross-examination that the suit shop was taken on tenancy in the year 2010 from Sh. Jai Singh. It seems highly improbable that any landlord in Delhi would in the year 2010 give a property on tenancy at such a monthly rent so as to bring the tenancy under the Delhi Rent Control Act. Also, the defendant has in the present case never raised the defence that the suit was barred under the Delhi Rent Control Act as the rate of rent was below Rs. 3,500/-. It again appears highly improbable that a tenant would not take the defence of bar of the Delhi Rent Control Act, in case the rent was actually below Rs. 3,500/-. In the present case, the defendant has not stated in his written statement that the rent was Rs. 2,000/-. The defendant has not raised any defence of bar of the Delhi Rent Control Act in his written statement. It seems highly unlikely that the rate of rent was Rs. 2,000/-, otherwise the defendant would definitely have CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.62 raised the defence of bar to the suit in view of the Delhi Rent Control Act.
91. In support of her case that the rate of rent was Rs. 11,000/- per month, the plaintiff has relied upon the letter of attornment dated 04/07/2015 Ex.PW-1/6 from Sh. Jai Singh to the defendant. In the letter Ex.PW- 1/6, Sh. Jai Singh has clearly mentioned that the defendant was in arrears of rent since 01/01/2013 at the rate of Rs. 11,000/- per month. The defendant has admitted in his cross-examination that he had received the letter Ex.PW-1/6 from Sh. Jai Singh. The defendant has not placed on record any communication in response made by him to Sh. Jai Singh disputing the monthly rent @ Rs. 11,000/- per month or disputing that the defendant was in arrears of rent since 01/01/2013. It is highly unlikely that the defendant would not have responded to the letter Ex.PW-1/6 in case the rate of rent was actually was not Rs. 11,000/- but was Rs. 2,000/- only. In the absence of any reply by the defendant to the Ex.PW1/6 letter from Sh. Jai Singh disputing the rate of rent @ Rs.11,000/-p.m. an adverse inference would be drawn against the defendant.
92. The plaintiff has also examined PW-2 Sh. Ravinder Singh. PW-2 has deposed in his affidavit in evidence Ex.PW-2 that he was tenant in the shop adjacent to the suit property in the present case. He has deposed that he had taken the shop on rent in the month of February 2011 from Sh. Jai Singh on a monthly rent of Rs. 11,500/- plus other charges. He has deposed that he had opened a sweets shop in the rented premise. He has deposed that before March 2015, he was paying rent to Sh. Jai Singh and since March 2015 he was paying rent to the plaintiff herein.
CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.63 He has deposed that Sh. Jai Singh had informed him in the month of February 2015 that from March 2015 he had to pay rent to the plaintiff as she had become owner and that he was since then paying rent to the plaintiff. He has further deposed that he was currently paying monthly rent of Rs. 24,500/- to the plaintiff. He has also relied upon rent agreement dated 18/09/2018 Ex.PW-2/1 between PW-2 and the plaintiff. In his cross-examination he had stated that the rent he was paying was the prevalent rate of rent. The evidence of PW2 regarding the rent of the adjacent property also supports the case of the plaintiff regarding the rate of rent.
93. The defendant has failed to produce any documentary evidence in support of his stand that the rate of rent of the suit shop was Rs. 2,000/- only. In his cross-examination, the defendant has stated that in the year 2010 all the shops in his line of shops, the prevailing rent was Rs. 2,000/- per month. However, he has not produced any documentary evidence to show that the rate of rent in 2010 was Rs. 2,000/- per month. The defendant has admitted in his cross-examination that since he had taken the shop on rent, the rentals in the area had gone up. He has further admitted that the shops on the left and right of his shop had the same area. He has also admitted that on the right side of his shop was a samosa-jalebi shop.
94. On a balance of probabilities, I would hold that the plaintiff has discharged the onus to prove that the rent was Rs. 11,000/- per month and that the defendant had not paid arrears since 01/01/2013. The defendant has failed to show that he had paid the rent from 01/01/2013 onwards. In the result, it is held that the plaintiff would be entitled to CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.64 the arrears of rent @ Rs. 11,000/- per month for the period from 01/01/2013 till 22/08/2015. It would be reasonable to also award interest on the arrears of rent @ 12% p.a. accruing on a monthly basis since the suit shop had been taken on rent for a commercial purpose.
95. The plaintiff would also be entitled to mesne profits, which I think reasonable to calculate by giving increase of 10% every year. Accordingly, for the period from 23/08/2015 till 22/08/2016, the mesne profits would be calculated @ Rs. 12,100/-. The mesne profits for the period from 22/08/2016 till the date of vacating the suit shop would be calculated in similar manner by giving increase of 10% every year. It would be reasonable to award interest on the mesne profits @ 12% p.a. on monthly basis since the suit shop had been taken on rent for a commercial purpose.
96. The Issue No.7 (Whether the plaintiff is entitled to the relief claimed?
OPP) is answered accordingly.
97. Accordingly, the following decree is passed in favour of the plaintiff and against the defendant:
i) Decree is passed in favour of the plaintiff and against the defendant for possession of the suit property being shop bearing no. K-814, K-2, Block, Main Road, Mahipalpur, Vasant Kunj, New Delhi as shown in red colour in the site plan attached to the plaint; and
ii) Decree is passed in favour of the plaintiff and against the defendant for arrears of rent @ Rs. 11,000/- per month for the CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.65 period from 01/01/2013 till 22/08/2015 along with interest @ 12% p.a. accruing on a monthly basis; and
iii) Decree is passed in favour of the plaintiff and against the defendant for mesne profits. The mesne profits shall be calculated by giving increase of 10% every year. Accordingly, for the period from 23/08/2015 till 22/08/2016, the mesne profits would be calculated @ Rs. 12,100/-. The mesne profits for the period from 22/08/2016 till the date of vacating the suit shop would be calculated in similar manner by giving increase of 10% every year. The mesne profits shall also carry interest @ 12% p.a. on monthly basis.
iv) Costs are decreed in favour of the plaintiff and against the defendant. The pleader's fees is calculated @ Rs. 50,000/-.
98. Let the decree-sheet be drawn up accordingly.
File be consigned to record room.
Judgment pronounced in open Court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/21.04.2023 CS no.55677 of 2016 Rainawati Vs. Vikas Dahiya page no.66