Delhi High Court
Shekhar Pillai vs Ashok Khetrapal & Ors on 2 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 904/2018
% 2nd November, 2018
SHEKHAR PILLAI ..... Appellant
Through: Mr. Satish Kumar, Advocate
(Mobile No. 9811053833).
versus
ASHOK KHETRAPAL & ORS ..... Respondents
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. 46039/2018 (for exemption)
1. Exemption allowed, subject to just exceptions.
C.M. stands disposed of.
C.M. Appl. No. 46038/2018 (for delay)
2. For the reasons stated in the application the delay of 18
days in filing the appeal stands condoned, subject to just exceptions.
C.M. stands disposed of.
RFA No. 904/2018 and C.M. Appl. No. 46040/2018 (for stay)
3. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant
no.3/tenant impugning the Judgment of the Trial Court dated
29.05.2018 by which the trial court has decreed the suit for possession
and mesne profits filed by the respondent no.1/plaintiff/landlord.
4. The facts of the case are that respondent no.1/plaintiff
pleaded that a Lease Deed dated 01.07.2008 was entered into between
the appellant & respondents no. 2-4 with the respondent no. 1, and
which was duly registered before the Sub-Registrar on 04.09.2008.
The rent of the suit premises was Rs. 13,950/- per month. The Rent
Deed was for a period of thirty six months and this Rent Deed expired
by efflux of time on 30.06.2011. Since the appellant and respondent
no. 2-4 in the suit failed to vacate the suit property in spite of
termination of the tenancy vide Notice dated 29.07.2012, the subject
suit for possession and mesne profits was filed.
5. Appellant and respondent no. 3 filed a joint written
statement and pleaded that the appellant was in fact the owner of the
suit property as the earlier owner being the father of the respondent
no. 1 treated appellant as his son because he was working as a
domestic help in the house of the father of the respondent no.1. It was
pleaded by appellant that the suit property was gifted to him by the
father of the respondent no.1. It was also pleaded that the appellant
was allowed to induct tenants and therefore he had inducted the
appellant and respondent no. 3-4 in the suit property. Respondent no.
4 filed the written statement and pleaded that he had already vacated
the suit premises and therefore the suit for possession could neither be
decreed as against him nor was he liable for damages.
6. After pleadings were complete the trial court framed
issues and parties led evidence, and these aspects are recorded in paras
7-12 of the impugned judgment and these paras read as under:-
7. From the pleadings of the parties, the following issues were
framed on 31.03.2015:
1. Whether Vishan Singh and defendants no.2 to 4 were
inducted as tenants by the plaintiff in shop bearing private no.3 on
ground floor out of property no.E-47, Hauz Khas Market, New
Delhi i.e. the suit premises? OPP.
2. Whether the plaintiff is entitled for recovery of rent as
prayed in the plaint and if so, at what rate and for what period?
OPP.
3. Whether the plaintiff is entitled for the relief of ejectment as
prayed for? OPP.
4. Whether the plaintiff is entitled for recovery of
damages/mesne profit/user charges as prayed for and if so, at what
rate and for and if so, at what rate and for what period?
5. Whether the suit premises was gifted to the defendant no.3
Shekhar Pillae by the parents of the plaintiff Sh. Ruchiram and
Smt. Rajrani? OPD3.
6. Whether the defendant no.4 Noor Mobeen had paid the rent
till March 2012 and had already handed over the vacant possession
of the suit premises in the month of March, 2012 with
all his belongings? OPD4.
7. Whether the defendant no.3 has given leave to the plaintiff
to let out the suit premises on rent to the defendant no.1, 2 and 4
for some income? OPD3.
8. Whether the suit has not been properly valued for the
purpose for court-fees and jurisdiction? OPD.
9. Whether the plaintiff is entitled to any relief.
8. In support of his evidence, the plaintiff examined himself as
PW-1 and tendered his affidavit as Ex.PW1/A. He reiterated and
reaffirmed the contents of the plaint and replication and
has relied upon following documents:
1. Site Plan of the suit premises Ex.P-1.
2. Original Lease Deed dated 01.07.2008 registered on
04.09.2008 Ex.P-2.
3. Copy of Notice dated 29.07.2012 Ex.P-3.
4. Postal Receipts Ex.P-4 and Ex.P-12.
5. AD Card confirming the service of notice upon Vishan
Singh Ex.P-13.
6. Envelops and AD Cards sent to defendant no.2 to 4 Ex.P-14
to Ex.P-17.
9. No other PW was examined by the plaintiff in support of
his case and PE was closed vide order dated 03.03.2016.
10. In support of their evidence, defendants examined 3
witnesses in all. Defendant no.3 examined himself as D3/W1.
Defendant no.4 is the second witness of the defendants and Sultan
Ahmad is examined as third witness of defendants. Defendant no.3
examined himself as D3/W1 and tendered his Affidavit as
Ex.D3W1/A. He reiterated and reaffirmed the contents of the
Written Statement and has relied upon following
documents:
1. Copy of my Passport (original seen and returned) Ex.
D3W1/1.
2. Copy of Election-I-Card of defendant no.3 (original
seen and returned) Ex.D3W1/2.
3. Income tax returns of defendant no.3 for the financial year
2004-05 and 2005-06 respectively Ex. D3W1/3 and Ex. D3W1/4.
4. LIC Policy of defendant no.3 Ex. D3W1/5 and Receipt of
this LIC policy Ex. D3W1/5A.
5. Letter dated 08.03.2006 issued by Panchsheel Enclave
Residents Welfare Association Ex. D3W1/6.
6. Copy of Delivery Challan dated 21.12.2003 Mark A.
7. Copy of photograph of the suit premises Mark B.
11. In support of his evidence, defendant no.4 Noor Mobeen
examined himself as D4/W1 and tendered his affidavit as
Ex.D4/1A. He reiterated and reaffirmed the contents of the Written
Statement filed by him.
12. Defendant no.4 Noor Mobeen also examined Sultan
Ahmad in support of his case as D4/W-3, who tendered his
Affidavit as Ex.D4/3A. He deposed that he is the Manager
of "Bobby Textiles" Firm and running a business of Ladies
Garments from shop situated at Lajpat Nagar, Central
Market, New Delhi. Noor Mobeen/defendant no.4 is
working with "Bobby Textiles" as Salesman from April, 2012 till
date. He relied on photocopy of his Driving Licence (OSR)
Ex.D4/W3."
7. In my opinion, the trial court has committed no error in
decreeing the suit for possession and mesne profits by holding
appellant & respondent no. 2-4 to be the tenants, because the
execution of the registered Lease Deed by the appellant & respondent
no. 2-4 dated 01.07.2008 was admitted. Once the Lease Deed is
admitted, the provisions of Sections 91 and 92 of the Evidence Act,
1872 come in and consequently the terms and conditions of the Lease
Deed are final and will operate. Therefore there was a relationship of
landlord and tenant between the parties, and the rate of rent of Rs.
13,950/- per month takes the premises outside the protection of the
Delhi Rent Control Act, 1958. The service of the Legal Notice was
also proved by the respondent no.1 along with postal receipts Ex.P-3
to P-17.
8. The case of the appellant that he had become owner of
the suit property by virtue of the fact that suit shop was gifted in
favour of appellant, has been rightly disbelieved and rejected by the
trial court because a gift of an immovable property can only be by a
registered Gift Deed under Section 123 of the Transfer of Property
Act, 1882 and admittedly there is no registered Gift Deed in favour of
the appellant. The trial court in my opinion has also committed no
error in granting mesne profits at Rs. 15,000/- per month from
01.07.2011 to 31.12.2015 and Rs.16,000/- from 01.01.2016 till
possession is handed over inasmuch as it has been held by this Court
in the judgment in the case of M.C. Agrawal Huf v. M/s Sahara India
& Ors. 2011 (183) DLT 105 that unless there is an evidence to the
contrary Courts can always grant increase of rent by 10% ever year.
9. In view of the aforesaid discussion, I do not find any
merit in the appeal and the same is hereby dismissed.
NOVEMBER 02, 2018 VALMIKI J. MEHTA, J
AK
