Naveen Kumar vs K Ganpati Subrmanyam
2017 Latest Caselaw 6367 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 259/2017
                          RSA No. 260/2017
%                                                13th November, 2017

+     RSA No. 259/2017

NAVEEN KUMAR                                            ..... Appellant

                          Through:       Mr. M.K. Vashishta and Mr.
                                         S.K. Atri, Advocates.

                          versus

K GANPATI SUBRMANYAM                                   ..... Respondent

+     RSA No. 260/2017

NAVEEN KUMAR                                            ..... Appellant

                          Through:       Mr. M.K. Vashishta and Mr.
                                         S.K. Atri, Advocates.

                          versus

K GANPATI SUBRMANYAM                                   ..... Respondent

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 40775/2017 (for exemption) in RSA No. 259/2017 C.M. Appl. No. 40873/2017 (for exemption) in RSA No. 260/2017

Exemptions allowed, subject to all just exceptions.

The applications stand disposed of.

C.M. Appl. No. 40776/2017 (for condonation of 5 days delay in re- filing) in RSA No. 259/2017 C.M. Appl. No. 40874/2017 (for condonation of 5 days delay in re- filing) in RSA No. 260/2017

For the reasons stated therein the delays are condoned subject to

just exceptions.

The applications stand disposed of.

RSA No. 259/2017 and C.M. Appl. No. 40774/2017 (for stay) RSA No. 260/2017 and C.M. Appl. No. 40872/2017 (for stay)

1. These Regular Second Appeals under Section 100 of

Code of Civil Procedure, 1908 (CPC) are filed by the plaintiff in the

suit against the self-same concurrent judgments of the courts below; of

the trial court dated 27.1.2017 and the first appellate court dated

19.7.2017; dismissing the suit for injunction filed by the

appellant/plaintiff and decreeing the suit for possession and mesne

profits filed by the respondent/defendant/counter-

claimant/owner/landlord. The appellant/plaintiff/tenant has been

directed to handover vacant physical possession of the suit property to

the respondent/defendant/owner/landlord/counter-claimant and

appellant/plaintiff has been directed to pay arrears of rent and mesne

profits from 1.12.2014 till the premises are vacated. Two appeals are

filed as the impugned judgment disposes two matters, one the suit of

the appellant/plaintiff and second the counter-claim of the

respondent/defendant/landlord.

2. The facts of the case are that the appellant/plaintiff

pleaded that he came into possession of the suit premises being flat no.

5, first floor, Sadbhawna Apartment, Neb Sarai, New Delhi, in terms

of a rent agreement dated 17.7.2012 executed by the

respondent/defendant/owner/landlord and that immediately within a

week thereafter the respondent/defendant/owner/landlord transferred

the rights in the suit property to the appellant/plaintiff in terms of the

documents being the agreement to sell, power of attorney, etc dated

25.7.2012. Appellant/plaintiff pleaded to have paid a consideration of

Rs.6,50,000/- to the respondent/defendant for the execution of the

documents dated 25.7.2012.

3. The respondent/defendant/counter-claimant contested the

suit and denied that the alleged documents dated 25.7.2012 were ever

executed in favour of the appellant/plaintiff by the

respondent/defendant. Respondent/defendant also denied that he ever

received a sum of Rs.6,50,000/- from the appellant/plaintiff. The

documents relied upon by the appellant/plaintiff dated 25.7.2012 were

pleaded to be forged and fabricated.

4. After pleadings in the suit and counter-claim were

completed, the following issues were framed:-

"On the basis of the pleadings of the parties, following issues were framed vide order dated 19.10.2015 in main suit:-

1. Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause (a)? OPP

2. Relief.

On the basis of pleadings of the parties, following issues were framed vide order dated 19.10.2015 in counter claim:-

1. Whether the suit is not maintainable in its present form? OPD

2. Whether the plaintiff is entitled to decree of possession in respect to suit premises as prayed in clause (a)? OPP

3. Whether the plaintiff is entitled to decree of arrears of rent of Rs.1,20,000/- as prayed in clause (b)? OPP.

4. Whether plaintiff is entitled to decree of damage/mesne profits @ Rs.15,000/- per month whichever from 01.12.2014.

5. Relief."

5. Both the courts below have held that the documents

which are relied upon by the appellant/plaintiff being the documents

dated 25.7.2012, Ex.PW1/1 to Ex.PW1/7 are not documents which

have been proved to have been executed by the

respondent/defendant/owner/landlord in favour of the

appellant/plaintiff/tenant. Courts below have held that the

appellant/plaintiff had sought to get the signatures proved through

handwriting expert but that request was belated being after the

evidence being led by the respondent/defendant/landlord, and thus was

dismissed by the trial court vide order dated 26.10.2016 and the

challenge to that order also stood dismissed by the appellate court's

order dated 24.12.2016. Trial court has also held that

appellant/plaintiff has completely failed to prove that consideration of

Rs.6,50,000/- was ever been paid by the appellant/plaintiff to the

respondent/defendant. The courts below, accordingly, held that once

appellant/plaintiff was inducted as a tenant and appellant/plaintiff has

failed to prove that he had any rights in the suit property as there were

no documents dated 25.7.2012 executed in favour of the

appellant/plaintiff by the respondent/defendant, accordingly, the

counter-claim for possession had to be decreed as also the counter-

claim towards arrears of rent and mesne profits. It may be noted that

the appellant/plaintiff admitted that he had not paid rent of the suit

premises since 1.12.2014. Mesne profit was only granted at the rate of

Rs.6,000/- per month in view of the admitted rate of rent of Rs.5,000/-

per month.

6. I do not find any reason to interfere with the impugned

judgments of the courts below, inasmuch as, onus was upon the

appellant/plaintiff to prove that the respondent/defendant had executed

in favour of the appellant/plaintiff the documentation dated 25.7.2012

being the agreement to sell, power of attorney, etc. Ex.PW1/1 to

Ex.PW1/7. As already stated above, the appellant/plaintiff had sought

to get the signatures proved through handwriting expert but that

request was rejected and which rejection became final on an appeal

against the order also being dismissed. Most importantly, the

documents Ex.PW1/1 to Ex.PW1/7 cannot be relied upon because the

appellant/plaintiff has failed to prove that any consideration of

Rs.6,50,000/- was passed from the appellant/plaintiff to the

respondent/defendant. Admittedly and conveniently this consideration

of Rs.6,50,000/- is alleged to be paid in cash by the appellant/plaintiff

to the respondent/defendant. Also, it is seen that the courts below

have held that the appellant/plaintiff admittedly issued cheques of

Rs.20,000/- and Rs.60,000/- in the year 2013 to the

respondent/defendant/landlord/counter-claimant and which would not

have been if there was no liability of the appellant/plaintiff towards

rent and the appellant/plaintiff as claimed by him had already

purchased rights in the suit property on 25.7.2012.

7. It may also be noted that the respondent/defendant/

landlord had become desperate because he was to sell the suit property

to a third person, namely one Sh. Purshottam Chaudhary with whom

documents dated 30.3.2013 were executed, but the

respondent/defendant/owner could not go ahead with selling of the

suit property to Sh. Purshottam Chaudhary under the documentation

dated 30.3.2013 as the appellant/plaintiff failed to vacate the suit

property inspite of the respondent/defendant giving a cheque of Rs. 4

lacs to the appellant/plaintiff to vacate the suit property and which

cheque was not encashed.

8. In my opinion, de hors any of the reasons given by the

courts below, the suit for injunction filed by the appellant/plaintiff was

liable to be dismissed and the counter-claim of the

respondent/defendant was bound to be decreed because the set of

documentation dated 25.7.2012 being agreement to sell, power of

attorney, etc relied upon by the appellant/plaintiff are unregistered and

unstamped and thus hit by Section 53A of the Transfer of Property

Act, 1882. Section 53A of the Transfer of Property Act was amended

by Act 48 of 2001 with effect from 24.9.2001 by which an agreement

to sell in the nature of part performance under Section 53A of the

Transfer of Property Act was directed by the Legislature not to create

rights of part performance under Section 53A of the Transfer of

Property Act unless such an agreement to sell is duly stamped and

registered i.e stamp duty paid at 90% of the value/price of the property

and also the agreement to sell being compulsorily registered under the

Registration Act, 1908, and the documents dated 25.7.2012 relied

upon are neither stamped nor registered. Admittedly,

appellant/plaintiff has not filed a suit for specific performance on the

basis of the agreement to sell, etc dated 25.7.2012 but he only claims

rights in the suit property on the basis of these documents and which

rights clearly cannot be asserted or granted to the appellant/plaintiff

because these documents fall foul of the amended Section 53A of the

Transfer of Property Act which came into effect with effect from

24.9.2001. Therefore, the best case of the appellant/plaintiff of

placing reliance on the documents dated 25.7.2012 fails, and

consequently the appellant/plaintiff was bound to hand over the

possession of the suit property as also pay rent/mesne profits to the

respondent/landlord/counter-claimant in terms of the impugned

judgments.

9. It is clear that the person like the appellant/plaintiff has

no connection whatsoever to any scruples and principles. The

appellant/plaintiff has gone to the extent of manufacturing documents

so as to continue his illegal possession of the suit premises in which he

was admittedly inducted as a tenant with rent of Rs.5,000/- per month

i.e the tenancy was outside the protection of the Delhi Rent Control

Act. As already stated above, the alleged consideration paid by the

appellant/plaintiff to the respondent/defendant was conveniently said

to be in cash and which even could not be proved and in such a case

the documents dated 25.7.2012 are illegal and to be discarded because

the documents dated 25.7.2012 are hit by the amended of Section 53A

of the Transfer of Property Act.

10. Therefore, while observing that not only no substantial

question of law arises for entertaining of these Regular Second

Appeals, it is seen that these second appeals are completely frivolous

and a complete abuse of process of law, and the same are therefore

dismissed with costs of Rs.15,000/- for each of the appeal and which

will be deposited by the appellant/plaintiff with the website

www.bharatkeveer.gov.in within a period of six weeks from today. In

case the said costs are not deposited, the Registry will list these

matters in Court for directions against the appellant/plaintiff so as to

ensure compliance of the order of deposit of costs.

NOVEMBER 13, 2017                          VALMIKI J. MEHTA, J
AK