Birinder Singh Sabarwal vs Sardarni Satpal Kaur & Ors
2016 Latest Caselaw 3457 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 10th May, 2016

+                                RFANo.21/2016

       BIRINDER SINGH SABARWAL                   ..... Appellant
                    Through: Mr. S.S. Dahiya, Mr. K.L. Jinjani,
                             Ms. Sangeeta Gour and Ms. Padmini
                             Bemra, Advs.

                                    Versus

    SARDARNI SATPAL KAUR & ORS              ..... Respondents

Through: Mr. Hardik Luthra and Mr. Rahul Kumar, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) impugns the judgment and decree dated 30th November, 2015 of

the Court of Additional District Judge (ADJ)-05, Saket Courts, New Delhi in

Suit No.204/14 bearing case ID No.02406C0099382013 of recovery of

possession of 34 Malviya Nagar corner New Delhi and of recovery of

mesne profits / damages for use and occupation at the rate of Rs.4,373 per

month w.e.f. 1st April, 2010 to 31st December, 2012, at the rate of Rs.5,028/-

per month w.e.f. 1st January, 2013 till delivery of possession.

2. The appeal was admitted for hearing, notice thereof issued to the

respondents, trial court record requisitioned and execution stayed subject to

the appellant depositing the past and future mesne profits in this Court and

which are reported to have been deposited.

3. The counsel for the respondents appears and the counsels have been

finally heard on the appeal and the Trial Court record has been perused.

4. The respondents/plaintiffs instituted the suit from which this appeal

arises pleading (i) that their predecessor Sh. Vijay Singh was the owner of

Shop No.34, Malviya Nagar Corner, Malviya Nagar, New Delhi and had on

16th August, 1990 entered into a partnership with the appellant/defendant

vide a written partnership deed for carrying on the business of battery works,

sale of new batteries and for carrying out repairs of all electrical faults of all

types of cars in the name and style of M/s Sabarwal Auto Electric Works

from the said shop; (ii) that Sh. Vijay Singh died on 7 th March, 2010 leaving

the respondents/plaintiffs as his Class-I heirs; (iii) that on the death of Sh.

Vijay Singh, the partnership in the name and style of M/s Sabarwal Auto

Electric Works stood dissolved and though it was incumbent upon the

appellant/defendant to hand over possession of the shop to the

respondents/plaintiffs but did not do so inspite of repeated requests and

reminders.

5. The appellant/defendant contested the suit by filing a written

statement pleading (a) that though the appellant/defendant had commenced

the business in the name and style of M/s Sabarwal Auto Electric Works in

partnership with Sh. Vijay Singh but the said partnership was dissolved in

the year 1997 and Sh. Vijay Singh allowed the appellant/defendant to

continue running his business from the same shop by inducting him as a

tenant therein on a rent of Rs.2,500/- per month, besides Rs.300/- towards

electricity charges; (b) that in the year 2000, a basement was added

underneath the said shop and the shop/business was shifted to the basement

and the appellant/defendant continued to pay rent @ Rs.2,500/- per month;

(c) that on 10th December, 2008, Sh. Vijay Singh sold the said shop in the

basement to the appellant/defendant for a consideration of Rs.1,50,000/- and

executed agreement to sell, general power of attorney, affidavit, receipt and

Will in favour of the appellant/defendant; (d) that the appellant/defendant on

the asking of the respondents/plaintiffs on 28th January, 2013 showed the

original documents executed by Sh. Vijay Singh in his favour but the

respondents/plaintiffs tore the said documents and took the pieces of paper

with them; (e) that the appellant/defendant on 29th January, 2013 made a

report to the police; (f) that the appellant/defendant is as such in possession

of the said shop as owner thereof.

6. Though the respondents/plaintiffs filed a replication but need to refer

thereto is not felt.

7. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 6th May, 2014:

"1. Whether the partnership between Late Sh. Vijay Singh, husband of plaintiff No.1 and father of plaintiff No.2&3 and defendant, was dissolved in his lifetime, in the year 1997. If so, its effect. OPD

2. Whether the partnership between Late Sh. Vijay Singh, husband of plaintiff No.1 and father of plaintiff No.2 & 3 and defendant, was dissolved in his lifetime, in the year 1997. If so, its effect. OPD

2. Whether Late Sh. Vijay Singh during his lifetime sold his interest in the property or any part thereof in favour of defendant. If so its effect? OPD

3. Whether the plaintiff is entitled for a decree for recovery of possession of suit property as prayed? OPP

4. Whether the plaintiff is entitled for a decree of mesne profit/damages, if so at what rate and for which period? OPP

5. Relief."

8. The learned Additional District Judge (ADJ) on the basis of the

evidence led before him has found / observed / held:

(I) that the appellant/defendant had failed to discharge the onus of

Issues No.1&2 that the partnership was dissolved in the year 1997;

(II) rather, there was inconsistency in the evidence of the

appellant/defendant in the said respect; while in the written statement

the plea was that the partnership was dissolved in the year 1997 but

the appellant/defendant in a complaint to the police proved as DW1/1

stated that though the appellant/defendant was having a partnership

with Sh. Vijay Singh but in the year 2008 accounts were settled and

Sh. Vijay Singh sold the shop to the appellant/defendant;

(III) though the appellant/defendant claims to have become tenant

under Sh. Vijay Singh but has not produced any document in that

regard also;

(IV) that even in the plea of the appellant/defendant of the

respondents/plaintiffs having torn original documents, there is no

mention of rent agreement;

(V) Issues No.1 & 2 were was accordingly decided in favour of the

respondents/plaintiffs and against the appellant/defendant;

(VI) that the claim of the appellant/defendant of having become

owner without registered documents in his favour was contrary to the

dicta of the Supreme Court in Suraj Lamp and Industries Private

Limited Vs. State of Haryana (2012) 1 SCC 656;

(VII) that though the appellant/defendant pleaded the property having

been mutated in his favour in the house tax records but the house tax

receipt relied upon was dated 8th June, 2013 i.e. of a date after the

service of summons of the suit on the appellant/defendant;

(VIII) that the respondents/plaintiffs had proved the partnership and

were accordingly entitled to the relief of possession;

(IX) that taking into consideration the statement of the

appellant/defendant himself of being a tenant since long back @

Rs.2,500/- per month, computing 15% increase every three years, the

mesne profits were computed and decreed.

9. The counsel for the appellant/defendant before me has firstly

contended that the property which is mentioned in the partnership deed

proved and the property with respect to which decree for possession has

been passed are entirely different.

10. The same however, in my view, is explained by the

appellant/defendant himself. It is the case of the appellant/defendant himself

that earlier the shop as described in the partnership was put in the

partnership by the predecessor of the respondents/plaintiffs and subsequently

on basement being constructed underneath the shop, the shop business was

transferred to the basement. Though according to the appellant/defendant, at

the time of so shifting he was carrying on business in the shop as tenant and

not as a partner but the appellant/defendant has been unable to prove

dissolution of partnership in the lifetime of Sh. Vijay Singh or his tenancy.

The necessary corollary thereof is that the premises under the partnership

deed were substituted by the premises presently in possession of the

appellant/defendant and with respect whereto the decree for ejectment has

been passed.

11. The counsel for the appellant/defendant has next contended that the

appellant/defendant had become the owner by virtue of agreement to sell,

general power of attorney, affidavit, Will etc. in his favour.

12. The counsel for the respondents/plaintiffs contends that no such

documents also have been proved.

13. The counsel for the appellant/defendant then states that though such

documents were executed in favour of the appellant/defendant by Sh. Vijay

Singh but were torn by the respondents/plaintiffs and thus the

appellant/defendant could not have proved the same.

14. I am of the view that the appellant/defendant has utterly failed to

prove that any such documents were executed or that the same were torn. In

the written statement though the said documents are stated to have been torn

by the respondents/plaintiffs on 28th January, 2013, the police complaint

with respect thereto is claimed to have been made on the next date and it has

not been proved as to how the said complaint was pursued. The said

documents in any case claimed to be an agreement to sell only and if Sh.

Vijay Singh the respondents/plaintiffs as the legal heirs were disputing their

obligation thereunder, the appellant/defendant ought to have instituted a suit

for specific performance of the agreement to sell. No such suit is stated to

have been instituted. The plea of being in possession in part performance is

also not available to the appellant/defendant, as the agreement to sell is

stated to be of 10th December, 2008 and after 24th September, 2001, to be

entitled to the benefit of the defence of part performance under Section 53A

of the Transfer of Property Act, 1882, the agreement to sell has to be

registered. Thus, the appellant/defendant, even if having any agreement to

sell in his favour could not have resisted the claim for recovery of possession

on the ground of being in possession of the shop as an agreement purchaser.

Reference in this regard can be made to Hari Gopal Manu Vs. B.S. Ojha

MANU/DE/0384/2016.

15. Though the counsel for the appellant/defendant states that a receipt of

money has been proved before the Trial Court but what is on record in the

trial court record is only a photocopy and not the original.

16. The counsel is unable to give any explanation for the original.

17. No other argument has been made.

18. I have otherwise perused the trial court record and do not find any

ground to interfere with the findings returned in the impugned judgment on

the pleadings and evidence on record.

19. For all the aforesaid reasons, no merit is found in the appeal, the same

is dismissed.

20. The stay earlier granted axiomatically stands vacated. The amounts

deposited by the appellant/defendant in this Court be released in favour of

the respondents/plaintiffs. The appellant/defendant is also burdened with

costs of this appeal.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

May 10, 2016 'bs'..