Delhi District Court
Sanjay vs Dinesh Rwat on 25 July, 2024
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil
Judge of South West District at Dwarka Courts, New Delhi
CS SCJ. 2051/2018
CNR No.DLSW03-002153-2018
In the matter of :-
Sh Sanjay
s/o Chand Ram
Through SPA Sh. Omveer
r/o H.No. 54A, First Floor, Vipin Garden,
North Block, Uttam Nagar
New Delhi-110059
........Plaintiff
VERSUS
Mr. Dinesh Rawat
r/o H.No. 54A, First Floor, Vipin Garden,
North Block, Uttam Nagar
New Delhi-110059
.....Defendant
Date of institution : 20.11.2018
Reserved for Judgment : 10.05.2024
Date of decision : 25.07.2024
Suit for Eviction of tenant u/s 106 of T.P. Act r/w Section 151 CPC
alongwith Recovery of Rent of Rs. 1,00,000/- and Permanent Injunction
JUDGMENT
1. This is a suit for recovery of possession in favour of plaintiff and against the defendant directing the defendant to handover/restore the vacant and peaceful physical possession of property i.e. H.No. 54A, First Floor, Vipin Garden, North Block, Uttam Nagar, New Delhi (hereinafter referred CS No. 2051/2018 Page no. 1 of 12 to as suit property), decree of recovery of Rs. 1,00,000/- as arrear of rent for a period of 20 months upto August 2018 & to pass a decree of permanent injunction in favour of plaintiff and against defendant thereby restraining defendant, his attorney(s), representative, family members from selling, alienating, transferring parting with possession thereby creating any third party interest and any construction or destruction in the suit property and for mesne profits.
Plaintiff's Case
2. Plaintiff states that he is the owner of suit property and the present suit is filed through his brother & SPA Mr. Omveer who is acquainted with all the circumstances of the case. It is stated that defendant took the suit property on rent for a period of one year at the rent of Rs. 5,000/- per month by an oral communication between the parties. It is stated that the tenancy commenced from September 2016 for a period of one year. It is stated that defendant paid rent timely upto December 2016 but later refused to pay the rent on time under the influence of one Sh Satbir Singh Yadav and always sought more time to pay the rent. Plaintiff asked the defendant to either pay the rent on time or vacate the premises but defendant on the pretext of financial crunch sought time from plaintiff to pay all dues viz. monthly rental security deposit and other charges. Plaintiff allowed the defendant to stay in the house but defendant did not pay any single penny towards his liability. It is stated that as per orally agreed terms it was agreed that in the event of non payment of monthly rent for two months by the tenant, the owner shall have right to evict the tenant by following due process of law. It is stated that the arrear of rent upto August 2018 is CS No. 2051/2018 Page no. 2 of 12 around Rs. 1,00,000/-. Defendant failed to pay the rent as well as the amount towards security, hence plaintiff was forced to terminate the tenancy vide legal notice dated 21.08.2018. It is stated that plaintiff is the lawful owner of the suit property and is legally entitled to recover and retain the actual physical possession of the suit property. It is stated that despite request, defendant did not handover the vacant possession of the suit property to the plaintiff. It is stated that despite service of notice dated 21.08.2018 defendant has avoided to make the payment and defendant is trying to create third party interest in the suit property. Hence, the present case.
Defendant's Case
3. Written statement has been filed on behalf of defendant wherein it has been contended that there is no cause of action against the defendant. It is stated that plaintiff is neither the absolute owner of the suit property nor in possession of whole property. It is stated that plaintiff had sold the said premises to Sh Satvir Singh Yadav and Sh Satvir Singh Yadav had sold the said premises to the defendant. It is stated that no tenancy is made out between the plaintiff and defendant.
4. Replication has been filed by the plaintiff to the written statement of the defendant wherein the contents of the plaint has been reiterated and the contentions of the defendant in his written statement has been denied except the admissions made.
Issues
5. After completion of pleadings, vide order dated 21.05.2019, the CS No. 2051/2018 Page no. 3 of 12 following issues were framed by my learned Predecessor for trial :
i. Whether the plaintiff is entitled for decree of possession in his favour and against the defendant, as prayed for ? OPP ii. Whether plaintiff is entitled for decree of recovery for a amount of Rs. 1,00,000/- in his favour and against the defendant alongwith interest, as prayed for? OPP.
iii. Whether the plaintiff is entitled for decree of permanent injunction in his favour and against the defendant, as prayed for ? OPP iv. Whether the plaintiff is entitled for damages and mesne profit in his favour and against the defendant, as prayed for ? OPP v. Whether defendant has purchased the suit property and plaintiff is not owner of the suit property ? OPD vi Relief Plaintiff's Evidence
6. Sh Omvir was examined as PW1, who in his affidavit in evidence Ex. PW-1/1 has stated and reiterated on oath the contents of the plaint. He has relied upon following documents :
a. Ex.PW1/A (OSR) is SPA b. Ex.PW1/B (OSR) is title documents of suit property. c. Ex.PW1/C is electricity bill, d. Ex.PW1/D (colly) is legal notice along with postal receipts. e. Ex.PW1/E is tracking report along with certificate u/s 65B of Indian Evidence Act. f. Ex.PW1/F (OSR) are construction bills.
7. Plaintiff failed to examine any other witness in his evidence, despite opportunity. Hence, PE was closed by the court vide order dated CS No. 2051/2018 Page no. 4 of 12 27.09.2023.
Defendant's Evidence
8. Defendant Dinesh Rawat examined himself as DW-1, who in his affidavit in evidence Ex. DW-1/A has stated and reiterated on oath the contents of the WS. He has relied upon following documents :
a. Ex.DW1/1 (OSR) is photocopy of GPA dated 12.11.2016. b. Ex.DW1/2(OSR) is photocopy of Agreement to sell dated 12.11.2016.
c. Ex.DW1/3 (OSR) is photocopy of affidavit dated 12.11.2016. d. Ex.DW1/4 (OSR) is photocopy of Possession letter dated 12.11.2016.
e. Ex.DW1/5 (OSR) is Photocopy of receipt dated 12.11.2016. f. Ex.DW1/6 (OSR) is photocopy of Will dated 12.11.2016.
9. Sh Rajesh Popli, Ahlmad was examined as DW-2. He was a summoned witness who had brought the judicial file of case bearing no. 1083/2018 titled as Satbir Singh Yadav Vs Sanjay & Ors. containing Mark DW2/A which is the collaboration agreement executed between Sh Sanjay Kumar & Sh Satbir Singh Yadav (which is already marked as Mark A in the said file).
10. Defendant closed his evidence on 06.05.2024 and thereafter, matter was listed for final arguments.
11. Final arguments have been heard. I have gone through the judicial record.
CS No. 2051/2018 Page no. 5 of 12
12. Now I shall give my issue-wise findings on the following issues:
i. Whether the plaintiff is entitled for decree of possession in his favour and against the defendant, as prayed for ? OPP ii. Whether plaintiff is entitled for decree of recovery for a amount of Rs. 1,00,000/- in his favour and against the defendant alongwith interest, as prayed for? OPP.
iii. Whether the plaintiff is entitled for decree of permanent injunction in his favour and against the defendant, as prayed for ? OPP iv. Whether the plaintiff is entitled for damages and mesne profit in his favour and against the defendant, as prayed for ? OPP v. Whether defendant has purchased the suit property and plaintiff is not owner of the suit property ? OPD
(a) Issue no. (i) and (iii) i. Whether the plaintiff is entitled for decree of possession in his favour and against the defendant, as prayed for ? OPP iii. Whether the plaintiff is entitled for decree of permanent injunction in his favour and against the defendant, as prayed for ? OPP Issue no. (i) and (iii) are taken up together as they are inter connected. The onus to prove issue no. (i) and (iii) was upon plaintiff. In order to discharge his onus the plaintiff got himself examined as PW-1.
During the course of evidence plaintiff/PW-1 claimed ownership of plot no. 54, measuring 50 sq. yards out of Khasra no. 234, Village Nawada, colony known as Vipin Garden Extension, North Block, New Delhi-59 vide unregistered documents dated 13.07.2007 comprising of General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will CS No. 2051/2018 Page no. 6 of 12 and also placed on record the copy of electricity bill in the name of plaintiff Sanjay vide CA no. 103155524 having energisation date as 21.11.2007 and the electricity bill specifically mentions plot no. 54. PW-1 also proved the construction bills with regard to the plot no. A-54, Vipin Garden where the suit property is situated. During cross examination of PW-1 specific suggestions were given by defendant wherein defendant himself suggested that plaintiff was having the vacant plot which was given to builder Satbir Singh Yadav for purpose of construction which shows that defendant himself admits the ownership of the plot in the name of plaintiff. During cross examination of DW1 the defendant himself admitted that suit property belongs to Sh Sanjay and he was not party or witness to collaboration agreement between Sanjay and Satbir Singh Yadav. He also not made any payment to Sanjay or his SPA Omveer for purchasing of first floor out of impugned property which shows that the defendant himself admitted the ownership of the suit property in the name of plaintiff Sanjay and also to the fact that he had not made any payment to plaintiff Sanjay or his SPA Omveer for purchasing of first floor. DW-1 also admitted that electricity bill of the flat in which he is residing is in the name of Sh Sanjay and the water bill is also not in the name of defendant. DW-1 further positively affirmed the suggestion that no sale deed executed in his presence between Sanjay and Satbir Singh Yadav i.e. the plaintiff and said builder respectively. DW-1 further affirmed the suggestion that no document got executed in front of him between plaintiff Sanjay and builder Satbir Singh Yadav.
From the statement of DW-1 it is clear that the builder Satbir Singh Yadav has done the construction on the plot of 50 sq. yards in one year and CS No. 2051/2018 Page no. 7 of 12 the owner of plot is plaintiff Sanjay. PW-1 also proved that electricity bill Ex. PW-1/C in the name of plaintiff and the title document in his favour from erstwhile owner Mr. Sanjeev Kumar s/o Sh Kapoor Singh whereas defendant relied upon GPA, Agreement to sell, Affidavit, Possession letter executed in his favour by builder Satbir Singh Yadav but there are no documents on record to show that Satbir Singh Yadav was the owner of the first floor/suit property at any point of time. DW-1 also failed to bring on record that by virtue of which proprietary right builder Satbir Singh Yadav got capacitated to execute the sale deed of first floor in favour of defendant so as to give the ownership right of first floor to the defendant. It is admitted case of defendant that Sh Satbir Singh Yadav was only the builder and not the owner of plot of 50 sq. yards but it is plaintiff Sanjay who is the owner of suit property. Further, when Satbir Singh Yadav was not the owner of property at any point of time then he cannot transfer better title than he himself had to defendant Dinesh Rawat. Therefore, ownership of suit property in the name of defendant Dinesh Rawat does not exist and on the other hand defendant Dinesh Rawat himself claims that he is not the tenant of plaintiff Sanjay. Defendant himself failed to explain the nature of his possession over the suit property and facts admitted by other party need not be proved by opposite party. On the other hand, the plaintiff has successfully brought on record that the defendant came into possession of suit property by intervention of builder Satbir Singh Yadav at the time when the building was raised by builder Satbir Singh Yadav on the plot of plaintiff and no sale deed exists in favour of Satbir Singh Yadav so as to entitle him to further execute any sale deed of suit property in favour of defendant. In view of above discussion, the plaintiff has successfully CS No. 2051/2018 Page no. 8 of 12 established his ownership over suit property thereby entitling him to have possession of suit property. During entire course of evidence, the defendant failed to give any dent to the averments of plaintiff and defendant failed to bring on record that how Satbir Singh Yadav was entitled to execute any sale deed of suit property in favour of defendant. Thus, plaintiff has successfully discharged his onus to prove issue no. (i) and (iii), hence issue no. (i) and (iii) are decided in favour of plaintiff and against defendant. Plaintiff is entitled to decree of possession of suit property in his favour and permanent injunction is granted against the defendant thereby restraining the defendant from selling, alienating, transferring or creating any third party interest in the suit property.
(b) Issue no. (ii) and (iv) ii. Whether plaintiff is entitled for decree of recovery for a amount of Rs. 1,00,000/- in his favour and against the defendant alongwith interest, as prayed for? OPP.
iv. Whether the plaintiff is entitled for damages and mesne profit in his favour and against the defendant, as prayed for ? OPP Issue no. (ii) and (iv) are taken up together as they are inter connected. The onus to prove issue no. (ii) and (iv) was upon plaintiff. In order to discharge his onus the plaintiff got examined two witnesses. Plaintiff himself got examined as PW-1. During the course of evidence plaintiff/PW-1 claimed ownership of plot no. 54, measuring 50 sq. yards out of Khasra no. 234, Village Nawada, colony known as Vipin Garden Extension, North Block, New Delhi-59 vide documents dated 13.07.2007 comprising of General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will and also placed on record the copy of CS No. 2051/2018 Page no. 9 of 12 electricity bill in the name of plaintiff Sanjay vide CA no. 103155524 having energisation date as 21.11.2007 and the electricity bill specifically mentions plot no. 54. PW-1 also proved the construction bills with regard to the plot no. A-54, Vipin Garden where the suit property is situated. During cross examination of PW-1 specific suggestions were given by defendant wherein defendant himself suggested that plaintiff was having the vacant plot which was given to builder Satbir Singh Yadav for purpose of construction which shows that defendant himself admits the ownership of the plot in the name of plaintiff. During cross examination of DW-1 the defendant himself admitted that suit property belongs to Sh Sanjay and he was not party or witness to collaboration agreement between Sanjay and Satbir Singh Yadav. He also not made any payment to Mr. Sanjay or his SPA Omveer for purchasing of first floor out of impugned property which shows that the defendant himself admitted the ownership of the suit property in the name of plaintiff Sanjay and also to the fact that he had not made any payment to plaintiff Sanjay or his SPA Omveer for purchasing of first floor. DW-1 also admitted that electricity bill of the flat in which he is residing is in the name of Sh. Sanjay and the water bill is also not in the name of defendant. DW-1 further positively affirmed the suggestion that no sale deed executed in his presence between Sanjay and Satbir Singh Yadav i.e. the plaintiff and said builder respectively. DW-1 further affirmed the suggestion that no document got executed in front of him between plaintiff Sanjay and builder Satbir Singh Yadav.
From the statement of DW-1 it is clear that the builder Satbir Singh Yadav has done the construction on the plot of 50 sq. yards in one year and the owner of plot is plaintiff Sanjay. PW-1 also proved that electricity bill CS No. 2051/2018 Page no. 10 of 12 Ex. PW-1/C is in the name of plaintiff and the title document in his favour from erstwhile owner Sh. Sanjeev Kumar s/o Sh Kapoor Singh whereas defendant relied upon GPA, Agreement to sell, Affidavit, Possession letter executed in his favour by builder Satbir Singh Yadav but there are no documents on record to show that Satbir Singh Yadav was the owner of the first floor/suit property at any point of time. Defendant Dinesh Rawat himself claims that he is not the tenant of plaintiff Sanjay. Defendant himself failed to explain the nature of his possession over the suit property and facts admitted by other party need not be proved by opposite party. So in view of above discussion, the plaintiff has successfully established his ownership over suit property. Since the defendant has admitted his possession over the suit property but has failed to explain the nature of his possession over the suit property as well as any ownership by Satbir Singh Yadav whereas he has admitted the ownership of plot in the name of plaintiff Sanjay. So facts admitted by defendant need not be further strengthened by plaintiff as the plaintiff is owner of suit property wherein defendant is residing at First Floor from September 2016 and has paid the rent upto December 2016 only so on the golden scale of preponderance of probability, the plaintiff has successfully discharged his onus to prove issue no. (ii) and (iv). Hence, issue no. (ii) and ( iv) are decided in favour of plaintiff. The plaintiff is entitled for decree for recovery of Rs. 1,00,000/- as arrear of rent for the period of 20 months upto August 2018. The plaintiff is also entitled for damages/mesne profit @ Rs. 5,000/- per month from September 2018 till its recovery. The plaintiff is also entitled to simple interest @ 12% p.a. on the arrears of rent and also on damages/mesne profit.
CS No. 2051/2018 Page no. 11 of 12 (c) Issue no. (v)
v. Whether defendant has purchased the suit property and plaintiff is not owner of the suit property ? OPD The onus to prove issue no. (v) was upon defendant and defendant got examined two witnesses to discharge his onus. Defendant got examined himself as DW-1 and brought on record the documents Ex. DW-1/1, Ex. DW-1/2, Ex. DW-1/3, Ex. DW-1/4, Ex. DW-1/5 and Ex.DW-1/6 but the documents relied upon by the defendant are unregistered documents. The defendant has also sought the negative injunction that plaintiff is not the owner of the suit property which cannot be granted as per Section 42 of Specific Relief Act, except in the cases of Personal Performance. Hence, no such injunction can be granted in favour of defendant. The defendant has failed to discharge his onus to prove issue no. (v). Hence, the issue no. (v) is decided against defendant.
13. Relief In view of my aforesaid findings, the suit is decreed in favour of plaintiff. Cost of suit is awarded in favour of plaintiff.
Decree sheet be prepared.
File be consigned to the record room after due compliance.
Ajay Digitally signed
by Ajay Kumar
Kumar Malik
Date: 2024.07.25
Announced in the Open Court Malik 16:34:00 +0530
on 25.07.2024 (Ajay Kumar Malik)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS No. 2051/2018 Page no. 12 of 12