* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 56/2016
% 18th April, 2017
ANJALI BANSAL AND ANR. ..... Appellants
Through: Mr. Ram Lal Roy and Mr.
N.A.Tyagi, Advocates.
versus
INDRA RANI ..... Respondent
Through: Mr. Devinder Chaudhary,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellants/defendants against the concurrent judgments of the courts below; of the First Appellate Court dated 23.12.2015 and the Trial Court dated 10.7.2015; by which the courts below have decreed the suit for possession, recovery of rent and damages/mesne profits filed by the respondent/plaintiff against the appellants/defendants with respect to the basement of the property bearing no. B-181-A, admeasuring 70 sq. yds. Khasra no. 464, Village Khanpur now known as B-Block, Duggal Colony, Devli Road, Khanpur, New Delhi RSA No. 56/2016 Page 1 of 10 (hereinafter referred to as the 'suit property'). It may be noted that appellants/defendants are wife and husband.
2. The facts of the case are that the respondent/plaintiff filed the subject suit for possession, recovery of rent and damages with respect to the suit property pleading that the rights in the suit property were transferred in favour of the respondent/plaintiff by the appellant no.1/defendant no.1 in terms of the documents dated 28.12.2010 being the Agreement to Sell, General Power of Attorney, Affidavit receipt and Will. The consideration paid for the suit property under these documents proved collectively as Ex. PW1/A, was a sum of Rs.3 lacs. The case of the respondent/plaintiff was that since some goods of the appellant no.2/defendant no.2, and who was the husband of the appellant no.1/defendant no.1/seller, were lying in the suit property, accordingly, the basement/suit property was given on rent to the appellant no.2/defendant no.2 at rent of Rs.8000/- per month. Appellants after expiry of lease period however refused to vacate the suit property, and therefore, the tenancy was terminated by the legal notice dated 2.12.2012, Ex.PW1/D, and which since did not have the desired effect, the subject suit came to be filed.
3. Appellants/defendants contested the suit by pleading that the appellant no.1/defendant no.1 had signed the documents Ex.PW1/A RSA No. 56/2016 Page 2 of 10 (colly) in favour of the respondent/plaintiff in blank because respondent/plaintiff wanted to take a bank loan. Since this bank loan did not come through, the documents were treated as finished and appellants/defendants believed the explanation of the respondent/plaintiff that the documents in question with respect to the basement remained with the bank. This happened in the year 2010. The case of the appellants/defendants further was that since the basement being the suit property could not be sold to the respondent/plaintiff, the respondent/plaintiff then proposed to purchase one shop out of the three shops on the ground floor of the suit property and that once again for the shop the appellants/defendants executed blank documents in favour of the respondent/plaintiff for the purpose of the respondent/plaintiff obtaining a bank loan. Again this bank loan could not be obtained for the shop, and therefore, the blank documents executed with respect to the shop became of no use and effect. It is further pleaded that the respondent/plaintiff had paid a sum of Rs.50,000/- in terms of the receipt dated 5.12.2010 for the basement of the suit property as advance, and a cheque of Rs.30,000/- dated 28.7.2012 was given by the appellant no.1/defendant no.1 in favour of the respondent/plaintiff for a sum of Rs. 30,000/- for returning of the part of the amount of Rs.50,000/- received by the appellant RSA No. 56/2016 Page 3 of 10 no.1/defendant no.1 under the receipt dated 5.12.2010. Accordingly, it was contended that the appellant no.1/defendant no.1 continued to be the owner of the basement/suit property, as also the shop in the property and that the subject suit had to be dismissed because there was no tenancy between the appellant no.2/defendant no.2 and the respondent/plaintiff for the suit property.
4. The courts below have arrived at the following valid and salient conclusions for decreeing the suit of the respondent/plaintiff for recovery of possession, arrears of rent and damages.
(i) The appellant no.2/defendant no.2, husband of the appellant no.1/defendant no.1, was admittedly a property dealer and a builder in view of the cross-examination of the appellant no.1/defendant no.1/wife who appeared in the witness box as DW-1. Appellant no.1/defendant no.1 was also an educated person because appellant no.1/defendant no.1 had a B.Ed. degree and was fully conversant with English. Accordingly, the courts below held that persons such as the appellants/defendants could never have been signed blank documents dated 28.12.2010, Ex. PW1/A (colly) with respect to the suit property being executed allegedly for the respondent/plaintiff to obtain a bank loan. Accordingly, the documents Ex.PW1/A (colly) were held to be RSA No. 56/2016 Page 4 of 10 documents for transferring rights in the suit property in favour of the respondent/plaintiff by the appellant no.1/defendant no.1.
(ii) If blank documents were executed in the year 2010 only for the purpose of obtaining a bank loan by the respondent/plaintiff, so far as the basement/suit property is concerned, then there is no reason why persons such as the appellants/defendants who are worldly wise should have not sought return of the blank documents, Ex.PW1/A (colly), and it is not possible to believe that appellants/defendants agreed that the alleged blank documents Ex.PW1/A (colly) remained with the bank only.
(iii) As per the cross-examination of the appellants/defendants who appeared as DW-1 and DW-2, it was the admitted case that the possession of the shop on the ground floor was with the respondent/plaintiff, and which respondent/plaintiff had purchased separately by separate set of documents of the year 2010. If the case of the appellants/defendants was that the shop on the ground floor was illegally with the respondent/plaintiff from the year 2010, then it was very surprising that till date no suit for possession was filed by the appellants/defendants for seeking recovery back of possession of the shop with the fact that even a police complaint was not filed with respect to the alleged illegal possession of the shop on the ground floor RSA No. 56/2016 Page 5 of 10 by the respondent/plaintiff. Obviously, if the respondent/plaintiff had no rights in the shop on the ground floor by separate set of documents, then there was no reason why appellants/defendants allowed the respondent/plaintiff to remain in alleged illegal possession of the shop from 2010 till date, and thus the case of the appellants/defendants of their signing blank documents cannot be believed.
(iv) No weightage can be given to the receipt dated 5.12.2010 filed by the appellants/defendants, and which was only a photocopy, and only a marked document and not proved. Once a document being the receipt dated 5.12.2010 was only a marked document, that too a photocopy, hence such document could not be treated as evidence and be relied upon in favour of the appellants/defendants. I may also note that courts below have rightly arrived at a conclusion that it is not possible to believe that the cheque of Rs.30,000/- was not given by the appellant no.2/defendant no.2 to the respondent/plaintiff as rent and allegedly for part return of loan of Rs.50,000/- because firstly the amount of Rs.30,000/- is different than the alleged amount of Rs.50,000/- received by the appellant no.1/defendant no.1 under the receipt dated 5.12.2010, and also that it is not possible to believe that the appellant no.2/defendant no.2 who is a property dealer and a worldly wise man in spite of transaction of the basement not going RSA No. 56/2016 Page 6 of 10 through, and for which the advance amount of Rs.50,000/- was received, would have simply returned back the amount of Rs.30,000/- out of the advance amount of Rs.50,000/- allegedly said to have been received as advance for the suit property by the appellant no.1/defendant no.1 from the respondent/plaintiff. I may also at this stage note that there are admittedly no signatures of the respondent/plaintiff on receipt dated 5.12.2010, and which is only signed by the appellant no.1/defendant no.1 and the deposition of the witness Sh. Ravinder Kumar as DW-3 can be of no help to the appellants/defendants since the said witness was a procured witness and a co-accused with the appellant no.2/defendant no.2 in a criminal case.
5. I completely agree with the aforesaid conclusions of the courts below, and therefore, since there is no illegality and perversity in these findings of the courts below, no substantial question of law arises for this second appeal to be entertained under Section 100 CPC.
6. No doubt, there is no rent agreement or rent receipt with respect to the basement/suit property whereby the appellant no.2/defendant no.2 was allowed to be continued by the respondent/plaintiff as a tenant as articles of the appellant no.2/defendant no.2 were lying in the basement/suit property, however, RSA No. 56/2016 Page 7 of 10 in facts such as the present the non-existence of rent receipt or rent agreement cannot take away the finality to the documents Ex.PW1/A (colly) whereby the respondent/plaintiff purchased rights in the basement/suit property from the appellant no.1/defendant no.1. In any case, in my opinion if the appellant no.2/defendant no.2 was not a tenant, once the respondent/plaintiff had a better entitlement and right to possession of the suit property, appellants/defendants could not have continued in the possession of the basement/suit property because they would only be illegal occupants in the basement/suit property, and there would thus not be required any decision in fact of existence of relationship of landlord and tenant.
7. Learned counsel for the appellants/defendants argued that documents Ex.PW1/A(colly) are illegal documents because they have not been registered and hence they cannot be looked into in view of the amendment to Section 53A of the Transfer of Property Act, 1882 w.e.f 24.9.2001 by Act 48 of 2001, and however no doubt that this argument is legally correct because technically the respondent/plaintiff cannot become the owner of the basement/suit property by virtue of the documents Ex.PW1/A (colly), but, surely these documents can show transfer of possessory title by the appellant no.1/defendant no.1 in favour of the respondent/plaintiff, and therefore, the RSA No. 56/2016 Page 8 of 10 respondent/plaintiff would have a better entitlement to possession of basement/suit property than the appellants/defendants, and therefore the appellants/defendants were bound to handover possession of the basement/suit property to the respondent/plaintiff.
8. The facts of the present case show that appellants/defendants are trying to clever by half. Appellant
no.1/defendant no.1 is the wife of appellant no.2/defendant no.2 who is a property dealer and builder. Courts below have rightly held that persons such as the present could never have signed blank documents and that too twice and that too without asking for return of the same allegedly even once admittedly when the bank loan transaction of the respondent/plaintiff failed with the bank. Also, the possession of the shop on the ground floor which the respondent/plaintiff has purchased continues to be in possession of the respondent/plaintiff, and leave aside filing of a suit by the appellant no.1/defendant no.1 against the respondent/plaintiff for the shop, in fact even a police complaint has not been registered, and to which issue I may add that even a legal notice has not been sent to the respondent/plaintiff for returning of the shop on the ground floor. The entire litigation therefore contested by the appellants/defendants is a fraud upon the respondent/plaintiff and who has been duped by persons such as the appellants/defendants. RSA No. 56/2016 Page 9 of 10
9. In view of the above, since no substantial questions of law arise for this Regular Second Appeal to be entertained, the same is dismissed. In view of the facts of the case however the appeal is dismissed with costs of Rs. 2 lacs which will be paid by the appellants/defendants to the respondent/plaintiff within a period of six weeks from today.
APRIL 18, 2017/ib VALMIKI J. MEHTA, J
RSA No. 56/2016 Page 10 of 10