Anjali Bansal And Anr. vs Indra Rani
2017 Latest Caselaw 1872 Del

*            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

(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

(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

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

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

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

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,

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

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.

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