Ziauddin vs Bansi Lal And Ors.
1994 Latest Caselaw 450 Del

JUDGMENT

R.C. Lahoti, J.

(1) This revision is directed against a decree of Small Cause Court, Delhi, dismissing a suit for recovery of rent filed by the plaintiff-petitioner.It appears that the defendant non-petitioner was in possession of a part of the property of the plaintiff-petitioner. The possession was unauthorised. The defendant-non-petitioner agreed to convert its possession into that of a tenant by executing a rent note in favor of the petitioner. The rent having fallen in arrears,a suit for recovery was filed based on the rent note.

(2) The defendant-non-petitioner in its written statement admitted the execution of the rent note. It was however further submitted that subsequent to the execution of the rent note, one Shri Kishan Gupta set up his title in the property and that is why rent was not paid.

(3) A perusal of the judgment of the Trial Court indicates that the claim has been rejected for three reasons: firstly, the Trial Court was not convinced of the circumstances under which the defendant-non-petitioner had chosen to execute the rent note in respect of the property in its possession and so in the opinion of the Trial Court mere execution of rent deed would not make the defendant-non-petitioner a tenant and the plaintiff-petitioner a landlord; secondly, that the rent note Ex. P2 appeared to be a highly suspicious document to the Trial Court andthirdly,that the plaintiff himself had not appeared in the witness box and had instead examined his son alone.

(4) In the opinion of this Court the disposal of the suit by the Trial Court has been far from satisfactory. The Trial Court has totally lost sight of the fact that the rent note was admitted by the defendant to have been executed by him. Once the execution of a document is admitted or proved, unless there are circumstances vitiating the same, the deed binds the executant and the legal consequences flowthere from. The son of the plaintiff, who appeared in the witness box, deposed to the relevant facts from his personal knowledge and so the non-examination of the plaintiff was not so material as to entail dismissal of the suit for non-examination of the plaintiff. If a person, an unauthorised occupant of the property, executes a deed of rent so as to convert his unauthorised possession into that of a tenant, actual delivery of possession over the subject matter of the transaction is not necessary and conversion of the nature of possession would amount to delivery of possession of the property under the deed of rent. The defendant having admitted the execution of the rent deed, so long as he remains in possession of the property under the deed, by operation of Section 116 of the Evidence Act, he would be stopped from challenging the title of the plaintiff and his right to recover the rent by taking a plea of jus terti. Thus, none of the reasons assigned by the Trial Court for holding against the plaintiff did exist on the record. The Trial Court could not have dismissed the suit. Its findings are vitiated by perversity.

(5) For the foregoing reasons, the revision is allowed. Judgment and decree of the Trial Court are set aside.The suit filed by the plaintiff is directed to be decreed with costs. The plaintiff shall be entitled to recover Rs. 600.00 from the defendant with interest calculated at the rate of 6 % p.a.from the date of the suit till realisation.The plaintiff shall be entitled to his costs in both the Courts. Counsel fee Rs. 100.00 in each of the courts.