Delhi High Court
Rahul Wadhwani vs Rajesh Anand on 12 January, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: January 12, 2022
+ RFA 204/2021, CM No. 12490/2021
RAHUL WADHWANI & ANR. ..... Appellants
Through: Mr. Shalabh Gupta, Adv.
versus
RAJESH ANAND ..... Respondent
Through: Mr. S K Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. This appeal arises out of the judgment dated December 11, 2020
passed by the Ld. ADJ-07 (South East), Saket Courts, New Delhi in t he
suit numbered CS No. 8259/2016 ('impugned judgment', for short).
The appellants have made the following prayers:
"It is, therefore, most respectfully prayed that in the
interest of justice this Hon'ble Court may graciously be
pleased to:
(a) set aside the impugned judgment & decree
dated 11.12.2020 passed by Ms. Vandana Jain, Ld.
ADJ- 07, (South East), Saket Courts, New Delhi in
CS No. 8259/2016 titled as "Rajesh Anand Vs.
Rahul Wadhwani & Anr."; and
(b) pass any other order(s) as this Hon'ble Court
may deem fit and proper under the facts and
circumstances of the present case."
2. The respondent / plaintiff had filed a su it before t he Ld. Trial
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Court seeking possession and recovery of a sum of ₹24,07,500/- towards
arrears of rent, mesne profits and permanent injunction along with
interest. Before going into the merits of the controversy, I deem it
appropriate to briefly reproduce the factual background pertaining to the
instant matter as under:
i) The respondent/plaintiff is the owner / lan dlord of
Shop No. 6 (Private No. 6A), adjoining to Shop No. 5,
Central Market, Lajpat Nagar, New Delhi consisting of a
basement and ground floor ('suit property' for short).
The respondent had bought the property from his
predecessor-in-interest, i.e., Pushpa Kapoor, who became
the owner of the suit property vide registered partition
deed dated June 17, 2015. This partition is stated to have
been done between Pushpa Kapoor and Mangal Sen
Kapoor, after which the shop at No. 6, Lajpat Nagar was
divided into two equal shares and the suit property came
into the share of Pushpa Kapoor and the remaining half of
the shop at No. 6, Lajpat Nagar went to the share of
Mangal Sen Kapoor.
ii) Pushpa Kapoor sold her entire share in the suit
property to the respondent vide sale deed dated
September 7, 2015 as registered on September 9, 2015.
Respondent admits that he was informed by his
predecessor-in-interest, i.e., Pushpa Kapoor about the suit
property being occupied by the appellants/defendants as
tenants since February 1, 2013 through an oral t enancy
agreement with a monthly rent of ₹1,50,000/-. The
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appellants were carrying out a business of selling foot
wear under the name 'Sukanya Foot Wear' from t he su it
property. The respondent had been informed by his
predecessor-in-interest that the appellants h ad n ot paid
rent for 10 months, i.e., from November 01, 2014 t ill t he
date of execution of sale deed and as per clau se 2 of t h e
said sale deed, the respondent was given the right to
recover arrears of rent from the appellants.
iii. The predecessor-in-interest of the respondent h ad
also sent a legal notice dated October 10, 2015, to the
appellants informing them about the sale of the suit
property to the respondent. This notice was served u pon
the appellants on October 13, 2015. The appellants
refused to pay the amount due to the respondent after
which the respondent terminated the tenancy of the
appellants vide legal notice dated January 7, 2016. After
which the respondent filed the suit before t he Ld. Trial
Court.
3. The respondent in the plaint had st ated t hat h e is t h e righ tful
owner of the suit property which has been purchased from his
predecessor-in-interest, who in turn possessed a clear title over t h e suit
property being party to the partition deed dated June 17, 2015. In t h e
replication, the chain of ownership regarding the suit property was
clarified by the respondent. The stand of the respondent before the Ld.
Trial Court was as follows:
i) The respondent stated that t he absolute owner of
the shop No. 6, Lajpat Nagar was Bansi Lal, who had
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acquired the property by virtue of a registered lease deed
dated May 14, 1962. After the demise of Ban si Lal h is
successors became the co-owners of the estate left by
Bansi Lal including the suit property wh ich was in t h e
possession of Pushpa Kapoor, widow of the son of Ban si
Lal namely Jaswant Lal Kapoor.
ii) There was a partition suit numbered CS(OS)
490/2006 between the legal heirs of Bansi Lal, t h e sam e
was settled through a memorandum of family settlement
dated December 24, 2010. The suit property fell in t o t he
share of Pushpa Kapoor who used to carry out business of
selling dairy products from the said property, h owever,
she stopped her business due to old age.
iii) In the year 2000 the appellant No.1 is stated to
have approached Pushpa Kapoor, and requested that he be
given the suit property to carry on bu siness t hrough an
oral tenancy agreement, the user charges of which were to
be paid to Pushpa Kapoor as per sale of articles on a daily
basis. Issues arose as to the quantum of act ual sale an d
the user charges being paid.
iv) After the memorandum of family settlement dated
December 24, 2010, shop No. 6, Central Market, Lajpat
Nagar was mutated in favour of Pushpa Kapoor and
Mangal Sen Kapoor.
v) The terms of the user charges to be paid by the
appellants were amended and the appellants t hrough an
orally executed tenancy agreement agreed to pay monthly
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rent of ₹1,50,000/- from February 1, 2013 onwards. Th e
appellants were stated to be truant in paying user charges
and it was for this reason that Pushpa Kapoor decided t o
effect the sale deed dated September 9, 2015 in favou r of
the respondent.
4. It may be noted from the impugned judgment that the defence of
the appellants was struck off, however, the stand of the appellants is on
record through the written statement and sur-rejoinder, wherein the
appellants have claimed title through adverse possession and stated t hat
the title of the suit property as claimed by the respondent is unclear an d
that the said property belongs to the other family members of the
respondent's predecessor-in-interest, since the partition was n ot done
properly and there exists an inter se dispute between the family
members. The appellants had also urged t he issu es of lim it ation and
valuation of suit (deficient court fees) in their written statement.
5. The Ld. Trial Court proceeded to frame the following issues on
May 11, 2016 and an additional issue was framed on May 23, 2018:
"1. Whether the plaintiff is entitled to a decree of
possession of suit property bearing no. 6 (private no. 6A),
Central Market, Lajpat Nagar, New Delhi? OPP
2. Whether plaintiff is entitled to a decree towards
arrears of rent of Rs. 24,07,500/- from 01.11.2014 till
31.01.2016? OPP.
3. Whether the plaintiff is entitled to any interest, if so, at
what rate and for which period? OPP
4. Whether plaintiff is entitled to any damages/mesne
profits/user charges if so, at what rate and for which
period? OPP
5. Whether there is no relationship of landlord and tenant
between the parties? OPD
6. Whether the defendant no.1 has become the owner of
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the suit property by way of adverse possession? OPD
7. Whether the suit has not been properly value for the
purpose of jurisdiction as well as for the purpose of court
fee? OPD
8. Whether the suit is barred by limitation? OPD
9. Relief"
"1-A. Whether the erstwhile owner of the suit property
Ms. Pushpa Kapoor had orally licensed the suit shop to
defendant no. 1 in the year 2000? OPP"
6. An application under Order XXXIX Rule 10 Code of Civil
Procedure, 1908 ('CPC' for short) was dismissed by the Ld. Trial Cou rt
which order was set aside by this Court and interim orders were passed
for payment of rent / arrears of rent at ₹1,50,000/- per m onth an d t hat
the defence of the appellants was struck off vide order dated Sept ember
8, 2020 even an SLP before the Supreme Court was disposed of wit h
the direction that the interim arrangement so made by t h is Court sh all
continue and that the Trial Court was directed to dispose of t h e su it by
December 2020.
7. The respondent led evidence and examined himself as PW1 an d
tendered his evidence by way of an affidavit and produced t he origin al
sale deed dated September 9, 2015, the certified copy of which has been
exhibited as Ex.PW1/2. He was further called for examination in ch ief
after February 22, 2017 on November 14, 2018. Th e respondent was
cross-examined on November 14, 2018 and October 14, 2020. Pushpa
Kapoor was produced as PW2 and tendered her evidence by way of an
affidavit exhibited as Ex.PW2/A, bearing her signatures at points A an d
B and she was cross-examined on October 19, 2020. She had referred to
the application under Order XXIII Rule 3 CPC which was exh ibited as
PW5/2. She also relied on the following documents:
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a) Copy of order dated February 9, 2011 exhibited as
Ex.PW2/3 and as mentioned in the affidavit of eviden ce
as Ex.PW5/3.
b) The legal notice sent to the appellants informing t hem
about the sale of suit property to the respondent exhibited
as Ex.PW1/3.
c) Copy of the postal receipts as Ex.PW1/4.
d) Photocopy of certificate from department of posts
India as Ex.PW1/5.
e) Photocopy of courier receipts as Ex.PW1/6.
f) Print out of tracking report as Ex.PW1/7.
8. On November 20, 2020 PW3, i.e., Charchal Dawar tendered h is
evidence by way of an affidavit exhibited as PW3/A, bearing his
signatures at Points A & B and was cross-examined on t he sam e date.
Sanjay Goswami, Record Attendant from Office of Su b-Registrar-V,
Mehrauli appeared as PW4, who produced the registered lease deeds of
shop No. 9, Central Market, Lajpat Nagar in the vicinity of the suit
property for the years 2008 and 2015. Ravi Kumar, JJA from Record
Keeping Department of this Court appeared as PW5 along with the
memorandum of family settlement between Pushpa Kapoor and the
siblings of her late husband. Thereafter, the Ld. Trial Court proceeded
to close the respondent's / plaintiff's evidence and since the defen ce of
the appellants / defendants had been struck off, listed the matter for final
hearing.
9. The Ld. Trial Court proceeded to give fin dings on Issu e No.1
and Issue No.1A. The onus to prove these issues was upon the
respondent. The Ld. Trial Court stated that these issues if proven,
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would alone be sufficient to grant the prayers in the suit. In its
judgment, the Court below recorded that the statements of the
respondent were consistent. It was recorded, t hat only t he appellant
No.1 was inducted as a tenant in the suit property and that his wife,
appellant No. 2 (who was arrayed as defendant No.2 in the suit) was
running the shop from the suit property on his behalf; thereby there was
no need for Pushpa Kapoor to give notice to defendant No.2. Th e sale
deed dated September 9, 2015 clearly stipulates that at the time of filin g
the suit, the suit property was under the tenancy of t h e appellants an d
Pushpa Kapoor had given the right to recover the rent for t he previous
10 months to the respondent. The Trial Court recorded that through t he
testimony of PW2, i.e., the sale deed dated September 9, 2015 stood
proved.
10. As per the impugned judgment, PW2 Pushpa Kapoor had
testified to the effect that her father-in-law Bansi Lal was t h e owner of
the shop comprising of the suit property and Pushpa Kapoor being
widow of one of the sons of Bansi Lal was in possession of h alf of t h e
shop, i.e., the suit property whereas the other half belonged to t he ot her
legal heir of Mangal Sen Kapoor. The documents of ownership filed by
the respondent including those of his predecessor-in-interest, i.e., PW2,
Pushpa Kapoor are undisputed and formed a part of the con sent decree
passed by this Court in favour of PW2, Pushpa Kapoor. The statement
of PW2, Pushpa Kapoor that she had sent a lett er t o t he appellants on
October 10, 2015, the postal receipt / report of which has been exhibited
has not been denied by the appellants. The Ld. Trial Cou rt formed an
opinion that in light of the tracking report which is not denied, t he plea
of the appellants that they were n ot in formed abou t t he sale was n ot
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considered to be tenable. As per the Ld. Trial Court it is a matter of
record that no reply was sent by the appellants to the said letter, denying
the relationship of landlord and tenant. The appellants as per the written
statement claimed ownership through adverse possession. The Ld. Trial
Court did not go into the merits of this argument as there was no
evidence to show whether the parameters for adverse possession were
met. The Ld. Trial Court noted that even after receiving the legal
notice dated October 10, 2015, the appellants did not reply t o t h e sam e
and thereby lost the opportunity to put forth their case. As per the
appellants, who took a stand that they were in open and hostile
possession of the suit property and that there is no evidence to show that
they were inducted as licensees. The Ld. Trial Cou rt observed t hat as
per the joint written statement of the appellants / defendants, wh erein it
was stated that they came into possession of the suit property in the year
2000, this statement only fortified the case of the respondent as narrated
by PW2, Pushpa Kapoor. Once the inter se dispute between the family
of PW2, Pushpa Kapoor was settled and the suit property was m u tated,
the appellants were asked to vacate the property, however on the
intervention of PW3, Charchal Dawar the suit property was let out to the
appellants on a rent of ₹1,50,000/- on a monthly basis. The Ld. Trial
Court recorded that though there is no written rent agreement or any rent
receipt to prove the same, her deposition was likely to be true as the
respondent had been able to establish the fact that there was a propert y
dispute in the family of the erstwhile owner PW2, Pushpa Kapoor. As
per the reasoning of the Ld. Trial Court, the respondent was able to
produce the best evidence available with him in order to prove the fact s.
An argument was advanced before the Ld. Trial Court on beh alf of t h e
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appellants that there was a discrepancy between the testimonies of PW2
and PW3, Ld. Trial Court reasoned that the discrepancies in the
testimonies were minor and not to the extent that t he said t estimonies
should be discredited more so when they did not alter the basic case as
pleaded by the respondent, that too when the basic principle governing a
civil suit is preponderance of probabilities. The Ld. Trial Court also
noted the situation prevailing due to the COVID-19 pandemic when t he
testimony of PW2, Pushpa Kapoor was recorded and being a senior
citizen she could not have been expected t o give a clearer deposit ion
than what she gave. Even though the rent agreement was oral, the
impugned judgment records that at the time of deposition n either PW2
nor PW3 had any interest in the suit property.
11. Regarding the issue of appellants' / defendants' tenancy t he Ld.
Trial Court noted that the FIR No. 831/2015 registered u nder Section
354 of the Indian Penal Code, 1860 on the complaint (Ex.PW1/A) made
by defendant No.2, i.e., appellant No.2 had admitted that she was a
tenant in the suit property since the last 15 years and her husband came
into possession of the shop in the year 2000. Su ch an adm ission was
neither disputed nor denied. Even during her cross-examination, she did
not deny that her husband was not a tenant and even stated in her cross-
examination that the complaint exhibited as Ex.PW1/A was in her
handwriting and that her husband was sitting beside her, when she wrote
the said complaint though, he had not gone through the complaint. Th e
statement of the appellant No.1 was also recorded in the said FIR
which was also placed on record and during his cross-examination h e
stated that he was not aware who wrote the complaint Ex.PW1/A. Th is
statement according to the Ld. Trial Court was clearly at varian ce wit h
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each other, however the Ld. Trial Court proceeded to note that t his was
an indirect admission on behalf of the appellant No.1 that appellant No.2
wrote the complaint, Ex.PW1/A. Further he stated in his cross-
examination "possession of the suit shop in which I am a tenant was
given to me by Smt Pushpa Kapoor", thereby supporting the t estimony
of PW2 Pushpa Kapoor. The Ld. Trial Court differentiated the
judgment of Kishan Singh (D) Through LRs Vs. Gurpal Singh (Crl
Appeal No. 1500 of 2010) by relying on the finding of the Supreme
Court in the judgment of Union of India Vs. Moksh Builders and
Financiers Ltd. and Others Etc. AIR 1977 SC 409. The Cou rt below
proceeded to decide issue Nos. 1 and 1A in favour of the respondent
since the testimony of PW2, Pushpa Kapoor had supported t he case of
the respondent along with the admissions made by the appellant(s).
12. As per the proven sale deed dated September 9, 2015, which
stated that the appellants had not paid rent from November 1, 2014
onwards and the suit being filed within limitation, t he Ld. Trial Cou rt
proceeded to give a finding on Issue No.2 wherein the respondent was
granted user charges w.e.f. November 1, 2014 till January 31, 2016.
Issue No. 4 pertaining to grant of damages / mesne profits / user charges
was also decided in favour of the respondent based on the t estimony of
PW4 Sanjay Goswami who had brought along with him three registered
lease agreements of October 24, 2008 pertaining to shop No. 9 n ear t h e
suit property. The said lease agreements exhibited as Ex.PW4/5,
Ex.PW4/6 and Ex.PW4/7 showed that the monthly rent of 1/3rd
undivided share of shop No. 9 was ₹85,000/- coming to a combined
total of rent being ₹2,55,000 per month. The market rent of a proximat e
shop in the same market pertaining to the sam e t ime period h ad been
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proved by the respondent. The Ld. Trial Court awarded mesne profit s
@ ₹2,55,000/- per month w.e.f. February 1, 2016 till the date of handing
over of possession. Issue No.3 pertaining to interest was also decided in
favour of the respondent and the Ld. Trial Court granted simple interest
@ 7% per annum on the total arrears of rent till the date of filin g of t h e
suit and further simple interest @ 5% was granted from January 1, 2020.
Mesne profits were also granted along with sim ple in terest of 7% per
annum. As per findings given in issue Nos. 1 and 1A and in absence of
any evidence by the defendants, issue Nos. 5, 6, 7 an d 8 were decided
against the appellants and the suit was deemed to be properly valued and
within limitation.
13. The said suit was decreed in favour of t h e respondent an d t he
Ld. Trial Court granted possession and recovery of rent of ₹1,50,000/-,
with arrears of rent w.e.f. November 1, 2014 till January 31, 2016 alon g
with mesne profits to the tune of ₹2,55,000/- per month w.e.f. February
1, 2016 till handing over of possession. The Ld. Trial Court also
granted simple interest @ 7% per annum on the total arrears of ren t on
the date of filing of the suit till December 31, 2019 an d fu rther sim ple
interest @ 5% was granted from January 1, 2020 in light of the situation
prevailing due to the COVID-19 Pandemic. Mesne profits were also
granted along with simple interest of 7% per annum wh ich would be
calculated from February 1, 2016.
SUBMISSIONS
14. Mr. Shalabh Gupta, learned Counsel for the appellants has at the
outset stated that the claim of the respondent has t o be decided on t h e
strength of his own case and not on the weakness of the case of the
appellants / defendants. He went on to state that there is no lan dlord -
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tenant relationship between the parties and that t he sam e h as n ot been
proved by the respondent and has argued the following:
I. The alleged legal notice dated October 10, 2015 by
Pushpa Kapoor was only served upon the appellant No.1
and not his wife, i.e., appellant No.2 therein an d t hat h er
status as a tenant was not pleaded before the Ld. Trial
Court. The notice dated January 7, 2016 was sen t t o t he
appellant No.1 for termination of the alleged tenancy,
however, much prior to that the respondent had lodged a
complaint dated October 07, 2015 to the SHO, PS-Lajpat
Nagar against the appellants stating that they are
unauthorised occupants in the suit property. Even in t he
earlier complaints dated October 9, 2015, October 10,
2015 and October 11, 2015 (which are of the period prior
to the notice for termination of tenancy, i.e., January 7,
2016) the appellants have been referred to as
unauthorised occupants. The respondent based on t his
document has admitted that no landlord-tenant
relationship existed between the parties. According to
Mr. Gupta, PW1 in his cross-examination has admitted t o
his knowledge being hearsay and therefore his testimony
cannot be taken into consideration.
II. As per Mr. Gupta, the cross-examination of PW1
dated October 14, 2020 would reveal h is st atement t hat
PW1 had neither seen the appellant No.1 n or h is wife /
appellant No.2 pay rent including the alleged rent of
₹1,50,000/- to PW2, Pushpa Kapoor or anyone else. PW1
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had also stated that he had never seen any rent agreement
or any rent receipt in the name of the appellants. Th ere
is also a statement by PW1 that he was told by PW2,
Pushpa Kapoor that the appellants came in to possession
of suit property in January, 2013.
II. Another argument advanced by Mr. Gupta that t he
suit has not been valued properly. The suit has been
valued currently at ₹18,00,000/- which amount is
equivalent to the rent for 12 months. This t oo is on t h e
basis of a landlord- tenant relationship which h as been
argued by Mr. Gupta to be contrary to t he ground t aken
by the respondent. Neither the suit was valued for the
relief claimed in the suit, i.e., damages / mesne profit /
user charges of ₹3,00,000/- per month, nor any Court Fee
was affixed in this regard. As per Mr. Gupta paragraph 6
of the respondent's plaint mentions t hat t he appellants
were occupying the suit property as tenants of Pushpa
Kapoor with monthly rent of ₹1,50,000/- since February
1, 2013. This stand has been controverted in his own
replication wherein he alleged that in t he year 2000 t h e
appellants were inducted as licensees by Push pa Kapoor
and that the appellants kept paying ₹300 to ₹500 on a
daily basis depending on the sales of the shop running
from the suit property. Therefore, there has been a
change of stance by the respondent, i.e., on ly aft er t he
appellants took a stand in their written statement that they
are in uninterrupted, peaceful, open and hostile
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possession of the suit property since January 15, 2000 and
have become the owners of the said property through
adverse possession. This contradictory plea on beh alf of
the respondent is sufficient alone to disbelieve t he case
put forth by the respondent. If the respondent has
purchased the suit property for a sum of ₹6 Crores, t h en
he is liable to affix ad valorem court fees on t h e m arket
value of the suit property. This fact has been admitted by
PW1 during his cross-examination dated October 14,
2020 wherein he had stated that it may be correct that t he
market value of the suit property at the time of execu tion
of sale deed on September 9, 2015 was and even at
present not less than ₹6 Crores. Neither the appellant
No.1 nor his wife, appellant No.2 were party to the
alleged sale deed and that the same was executed without
knowledge and consent of the appellants and therefore is
not binding on them.
III. Mr. Gupta argued that t he cross-examination of
PW1 is important and demands a closer scrutiny. As
during the cross-examination on October 14, 2020, PW1
admitted that the appellants had n ever paid t he alleged
rent of ₹1,50,000/- per month to Pushpa Kapoor an d t hat
he was also not present in the alleged m eeting wherein
the appellants agreed to pay such sum. PW1 h as on on e
hand taken a stand that he can bring the lease deed on
record, whereas in the pleading it has been averred t hat
there existed an oral agreement between t he respondent
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and the appellants. Subsequently on the next date of
cross-examination, he failed to bring the said lease deed.
The entire evidence so led by the respondent, is
embedded with contradictions and is contradictory t o t he
pleadings. As per Mr. Gupta, the rent as alleged as
₹1,50,000/- could not have been agreed to without
execution of any rent deed or any other document ,
specially when as per the case of the respondent, the
appellants were not even paying the license fees of ₹200-
₹500 per day.
IV. He argued that the testimony of PW2 Pushpa
Kapoor is also contrary to the pleadings and to the
testimony of the other witnesses. She stated that the
appellant No.1 approached her around 20 years ago an d
had agreed to pay half of the profit from the sales of t h e
shop as rent. She went on to state that the appellants kept
paying her amounts of ₹200, ₹300 and ₹500 till t h e year
2013. As per her testimony the appellant No.1 along with
Charchal Dawar met her and asked her to allow the
appellants to continue running his business from t he su it
property with a rent of ₹1,50,000/- per month. According
to Mr. Gupta during the cross-examination dated October
19, 2020 she stated that she asked the appellant No.1 t o
prepare a rent agreement whereas the appellant No.1 h ad
said that she ought to believe him. This testimony is
contradicted by the statement of PW3, Ch archal Dawar
who in his cross-examination dated November 20, 2020
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stated that he had asked them to prepare a written
agreement but both of them had stated that it is with their
mutual understanding that a writ ten agreement will be
executed. Mr. Gupta stated that this is a contradiction in
the statements of PW2 and PW3 wherein it has been
pointed out that the alleged meeting never took place.
Even so, PW2 on October 19, 2020 further stated that t he
appellants have paid rent only for 3-4 months of
₹1,50,000/-. However, in the plaint an averment has been
made that rent has not been paid since November 1, 2014.
This too only goes to show the contrary st and t aken by
the respondent.
V. Further he stated, PW3, Charchal Dawar on
November 20, 2020 made another contradictory statement
wherein he testified that he does not know Pushpa
Kapoor, rather only her husband. As per the testimony he
was not aware of the family members of Push pa Kapoor
as he was not in constant touch with them and knew them
only by virtue of being located in t he sam e m arket. He
was also not aware of the address of Pushpa Kapoor.
Thereby the cross-examination has clearly established
that PW3, Charchal Dawar, had either committed perjury
or that his evidence by way of affidavit has been proven
as false. PW3 has further stated in his cross-examination
that he was not aware of the family members of the
appellant No.1 (Rahul Wadhwani). PW3 further went on
to state that it was the appellant No.1 who approached
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him and not any other person from the market for the
purpose of arriving at a settlement with PW2, Pushpa
Kapoor since PW3, Charchal Dawar had good relat ions
with the appellant No.1 and had visited t he sh op of t h e
appellants. In a subsequent statement, h e st ated t hat h e
had never visited the suit property. As per Mr. Gupta
many contradictory statements have been made by PW3,
which only goes to show that PW3 was not aware abou t
the facts of the present case and was also not a witness t o
the alleged settlement between the appellants an d PW2,
Pushpa Kapoor. He had in his statement admitted t hat
the respondent (Rajesh Anand) is his frien d an d t hat t he
respondent had asked PW3 to give evidence in the present
case. Upon being cross-examined on this aspect,
enquiring about his relation to PW2, Pushpa Kapoor, h e
stated that he does not know PW2, Pushpa Kapoor much,
but only knows her husband. Later on a subsequent
cross-examination he stated that he is neither aware of the
family details of PW2, Pushpa Kapoor, i.e., including t he
names of children of PW2 nor of the date, month or year
of death of husband of PW2, Pushpa Kapoor. This he had
stated as he is not in constant touch wit h t hem an d on ly
knows them by virtue of being in t he sam e m arket. As
per Mr. Gupta when PW3, Charchal Dawar is not well
acquainted with the appellants or the appellants' fam ily
members, then the question remains as to why he was
approached for a settlement. That apart the notice given
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by PW2, Pushpa Kapoor was in the year 2015, which
contradicts the statement of PW3, wherein he h ad st ated
that after the meeting taking place in the end of Jan uary,
2013, PW2 gave a notice to the appellants after which
PW3 was approached for settlement.
VI. It is the case of Mr. Gupta that neither the
respondent nor his predecessor-in-interest, i.e., PW2
Pushpa Kapoor were able to produce any document in
order to show that the appellants were the licensees of
PW2, Pushpa Kapoor or that they became t enant w.e.f.
February 1, 2013. According to Mr. Gupta, PW1 had
earlier stated that PW2, Pushpa Kapoor was the proprietor
of the business, 'Sukanya Footwear' and that the
appellant No.1 was a salesman there, a st an d wh ich h as
been changed in tune with the pleadings. The st atement
given by PW3, Charchal Dawar that the appellants are
tenants is contradicted by t h e st atement given by PW2
wherein it was stated that the appellants were inducted as
a licensees.
VII. Mr. Gupta contended that the Ld. Trial Court erred
in holding that the complaint dat ed Oct ober 9, 2015 on
the basis of which FIR No. 831/2015 registered proved
that appellant No.2, stated herself to be tenant of t h e su it
property. Further the impugned ju dgment is wron g in
holding that, in the sale deed it has been recorded that t he
appellants have not paid rent from November 1, 2014 and
further gives the right to recover the said ren t an d in t he
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light of the fact that the appellants were n ot sign atories
and / or parties and / or witnesses to t he said agreement
which was executed without their knowledge and consent
and therefore they are not bound by the same.
VIII. While seeking the reliefs as prayed for in the
appeal, Mr. Gupta in support of his arguments above h as
placed reliance on the following judgments:
a. Biswanath Agarwalla v. Sabitri Bera and
Ors., (2009) 15 SCC 693;
b. Kailash Paliwal v. Subhash Chandra
Agrawal, (2013) 9 SCC 372;
c. Nazir Mohamed v. J. Kamala and Ors., AIR
2020 SC 4321;
d. Shalu v. Sandeep Soni, (2016) 228 DLT 257
(DB);
e. Messrs Bansidhar Ganga Pershad Agency
v. Chanan Lal and Ors., ILR (1975) 1 Del 445;
f. Kashi Nath (Dead) through Lrs. v.
Jaganath, (2003) 8 SCC 740.
15. Mr. S. K. Sharma, learned Counsel who appeared on behalf of
the respondent has argued that PW2 Pushpa Kapoor became t he owner
of the suit property after a settlement which took place before this Cou rt
between different owners. The said settlement deed h as already been
exhibited as Ex.PW2/1 to Ex.PW2/3. He stated that the partition deed
dated June 17, 2015 between PW2, Pushpa Kapoor and others, has been
exhibited as Ex.PW4/1. Mr. Sharma contended as follows:
I. According to him, the respondent / landlord
purchased the suit property vide sale deed dated September
9, 2015 from PW2 Pushpa Kapoor, wherein paragraph 2 at
internal page 6 it is clearly stated that the appellant No.1 is
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the tenant in the suit property and is liable to pay a ren t of
₹1,50,000/- per month which rent has not been paid for t h e
last 10 months. The previous landlady vide legal n otice
dated October 10, 2015 (Ex.PW1/3) informed the then
tenant, i.e., the appellant No.1 regarding t he sale of su it
property to the respondent.
II. Mr. Sharma stated that the appellant No.2, filed a
complaint before PS-Lajpat Nagar against t he respondent
stating that they are the tenants in the su it property. This
statement of the appellant No.2 was recorded by a
Coordinate Bench of this Court on December 5, 2019 in
CM(Main) 1375/2018, wherein the appellant No.2
admitted to the correctness and contents of the said
complaint.
III. According to Mr. Sharma, since the order for
depositing of monthly user charges was from December,
2019 and no arrears were granted by this Cou rt, t he same
were directed to be decided by the Ld. Trial Court an d t he
respondent / landlord approached the Supreme Court
through an SLP seeking payment of arrears as well.
Similarly, the appellants also filed an SLP challenging t he
order passed by this Court CM(Main) 1375/2018.
Mr. Sharma stated that both these petitions were h eard on
July 14, 2020 and through a consent order, it was direct ed
that the appellants / tenants were to pay damages /
occupation charges of ₹1,00,000/- from September 7, 2015
and pay the arrears in six equal instalments.
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IV. It is the case of the respondent that t he appellants
failed to pay any amount in terms of the order of the
Supreme Court, due to which the Ld. Trial Court on
September 8, 2020 passed an order under Order XV-A
CPC and the defence of the appellants was struck off. The
order wherein the defence of the appellants had been struck
off, attained finality as the same had not been ch allenged
anywhere. Whereas the respondent being aggrieved by the
arrears of rent not being paid, filed a contempt petition
before the Supreme Court wherein the Supreme Court was
pleased to issue notice.
V. As per Mr. Sharma, even though the appellants in
their written statement took a plea of adverse possession ,
but did not lead evidence in support of t h is plea. In t his
regard, Mr. Sharma has placed reliance on t he st atement
recorded by the Ld. MM on October 13, 2015, wherein it
had been recorded that there is a clear admission by the
appellant No.1 that the possession of the suit property was
given to him by PW2 Pushpa Kapoor.
VI. As per Mr. Sharma, the respondent who is the
landlord of the suit property examined himself as PW1 an d
proved the documents PW1/1 to PW1/16 as referred t o in
his affidavit of evidence. Thereafter, the respondent
examined his predecessor-in-interest, i.e., PW2, Pushpa
Kapoor and proved the documents exhibited as Ex.PW2/1
to Ex.PW2/3 and PW1/3 to PW1/7. Thereafter PW3,
Charchal Dawar was produced as a witness to prove the
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fact of creation of tenancy in the suit property and in order
to prove market rent and quantum of damages. The
respondent proved on record the registered lease agreement
in respect of the shop in the vicin ity of t h e su it property
being in the same lane; these documents have been
exhibited and proved as Ex.PW4/2 to PW4/7 by the
officials of the office of the Sub-Registrar.
VII. Mr. Sharma argued that the Ld. Trial Court has
examined each and every aspect of the case and has passed
a well-reasoned judgment which has been impugned in this
appeal. The reasoning given by the Trial Court while
deciding Issue No. 1 and Issue No.1A is also clear an d t h e
Trial Court had found veracity in the case put forth by t h e
respondent which is also his case before t h is Cou rt. He
argued that the appellants are not en titled t o be h eard in
this appeal in light of the fact that t he appellants despite
having consent orders from the Su preme Cou rt h ave n ot
paid any amount to the respondent as damages in t erms of
the orders of the Supreme Court in addition to the
impugned judgment / decree (again st which n o st ay h as
been granted) of more than ₹2 Crores along with
possession.
VIII. In support of his submissions, Mr. Sharma has also
placed reliance on the following judgments in the cases of:
a. Modula India v. Kamakshya Singh Deo,
(1988) 4 SCC 619;
b. Nagindas Ramdas v. Dalpatram Ichharam
alias Brijram and Ors., (1974) 1 SCC 242;
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c. Seth Ramdayal Jat v. Laxmi Prasad, (2009)
11 SCC 545.
FINDINGS
16. Having heard the learned counsel for the parties and perused t he
record including written submissions filed by them, it is noted that
Pushpa Kapoor (PW2) the predecessor-in-interest of the respondent
became the owner of the suit property of shop No.6 (private No.6A)
consisting of ground floor and basement in t erms of m emorandum of
family settlement dated December 24, 2010, and order dat ed February
09, 2011 in CS(OS) 490/2006 and partition deed dated June 17, 2015.
17. Accordingly, she executed the sale deed dated September 07,
2015 as registered on September 09, 2015 and on the strength of the sale
deed, the respondent became the owner of the su it property. Th e sale
deed in paragraph 2 records as under:
"2. That the Vendor has told to the Vendee that the said
Half Portion of the said Shop is under tenancy of Mr.
Rahul Wadhwani S/o Smt. Jyoti Wadhwani, where no Rent
Agreement was executed and it was a oral tenancy, but the
tenancy was started from 1st day of February, 2013, at the
monthly rent of Rs.1,50,000/- (Rupees one lakh fifty
thousand only) which was payable in cash by the tenant
and the tenant has not paid rent since the last ten months,
and therefore Vendor has handed over the possession of
the said Half portion of the said Shop on as is where is
basis to the Vendee at the time of signing of this Sale Deed
and also Vendor hereby gives the right to the Vendee to
recover rent for the last ten months from the tenant and to
deal with the tenant and get the tenant evicted from the
said Half Portion of the said Shop."
18. The case of the respondent before the Trial Court was t h at h e is
the owner of the suit property having purchased from Pu shpa Kapoor.
The plea of the appellants as advanced by Mr. Gupta is that the
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relationship of landlord-tenant between the appellants and the
respondent has not been proved. In this regard, his pleas were; (i) t h e
legal notice dated October 10, 2015 by Pushpa Kapoor (PW2) h as on ly
been served upon the appellant No.1 and not on appellant No.2 an d h er
status as tenant has not been pleaded; (ii) the complaints of the
respondents dated October 07, 2015, October 10, 2015 an d Oct ober 1,
2015 refer to the appellants as unauthorised occupants and not as
tenants; (iii) the respondent admitted in his cross-examination t hat h is
knowledge of tenancy between Pushpa Kapoor and the appellants is
based on hearsay as he has not seen the appellants tendering t he rent t o
Pushpa Kapoor nor has he seen the rent deed / rent receipt.
19. The submissions of Mr. Gupta are unmerited, this I say so, as the
appellants have not contested the sale deed dat ed Sept ember 9, 2015,
whereby the suit property has been sold to the respondent. The sale
deed incorporates clause 2 (reproduced above), which clearly states t hat
the appellant No.1 is a tenant and the oral tenancy has started from
February 01, 2013 at the monthly rent of ₹1,50,000/- and Pushpa
Kapoor has given the right to the Vendee (respondent herein) to recover
rent for the last ten months from the said tenant / appellant(s).
20. Mr. Gupta's plea was that the appellants were not associated
with the execution of the sale deed and as such not bound by t h e same.
The said submission is not appealing, such factum of t h e execution of
the sale deed was informed to the appellants by Pushpa Kapoor vide h er
legal notice dated October 10, 2015 wherein the following has been
stated:
"2. This property has since been sold, conveyed and
transferred in favour of Shri Rajesh Anand son of Shri
Krishan Lal Anand r/o M-56, Lajpat Nagai-II, New Delhi-
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110024 by virtue of sale deed dated 7th September 2015.
3. Notice is hereby given to you that you are to attorn in
favour of Shri Rajesh Anand as owner-landlord and pay
rent to him after the date of purchase of the property by
him and deal with him as your landlord.
4. You have neither paid nor tendered arrears of rent to
my client for the last 10 months i.e. with effect from
01.11.2014.
5. You are hereto asked to pay the said arrears of rent to
my client within 15 days of the receipt of this
communication by you. In case you fail to do so, you will
be responsible for all the consequences and the
costs incurred in recovering the said arrears of rent from
you.
This communication is without prejudice to all the legal
rights, claims and demands which my client may have
against you in this behalf."
21. The case of the appellant as contended by Mr. Gu pt a was t h at
the said notice dated October 10, 2015 has not been received by t h em.
This stand was disbelieved by the Trial Court by holding that the
tracking report being on record, the plea is unacceptable. No
submission has been made by Mr. Gupta, before this Cou rt, con testing
the said finding. Suffice to state, the notice having not been replied t o,
the contents are deemed to have been accepted including the rate of ren t
being ₹1,50,000/- per month and the same being in arrears for t he last
ten months i.e., from November 01, 2014 till September 30, 2015.
22. That apart, there is no counter claim or a separat e su it by t he
appellants seeking a declaration that they are neither the tenants n or t he
rent is ₹1,50,000/- and also that they are not in arrears. No dou bt, t he
appellants had contended that they have become t he owner of t h e su it
property by way of an adverse possession, this stand of the appellants of
adverse possession has not been proved as the defence of the appellants
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was struck off.
23. Even, I find that it is the case of the appellants themselves, t hat
they are tenants in the suit property and the same is clear from the
complaint dated October 09, 2015 of the appellant No.2, to t he SHO of
Lajpat Nagar, Police Station wherein she has clearly st ated t hat sh e is
running a shop No. 6, Central Market, Lajpat Nagar for the last 15 years
as a tenant. I find that this aspect of the complaint and the effect
thereof has been dealt with by the Trial Court in paragraphs 55 and 56 in
the following manner:
"55...... It is pertinent to mention here that apart from
leading all possible and best evidence which could be led
by the plaintiff, plaintiff has also brought on record
certified copy of complaint made by defendant no. 2
against plaintiff on the basis of which FIR No. 831/15 u/s
354 IPC was registered. The complaint made by defendant
no. 2 was exhibited as Ex PW1/A in the said FIR. In the
opening lines of said complaint Ex PW1/A, she has stated
that she is running business from shop no. 6, Central
Market, Lajpat Nagar, New Delhi as Sukanya Footwear
from 15 years as a tenant. Her evidence which was
recorded in the said FIR has also been placed on record
by the plaintiff wherein she admitted that she had filed the
said complaint and admitted her signatures on the same.
During her cross examination, she was put a question by
plaintiffs counsel that "Q: Can you tell when you came to
know that the shop under the tenancy of your husband has
been purchased by accused Rajesh Anand?". In this also,
she did not deny that her husband was not a tenant. She
stated in the later part of her cross examination that
complaint Ex PW1/A is in her handwriting and when she
wrote the complaint her husband was also present though
he had not gone through complaint. Statement of her
husband (Defendant no. 1 herein) was also recorded in
that FIR which is also placed on record. During his cross
examination he stated that he was not aware who wrote
the complaint Ex PW1/A, however, when his wife wrote the
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complaint Ex PW1/A, he was sitting beside her. Indirectly,
he admitted that his wife wrote the complaint. He has also
stated during his cross examination that "possession of the
suit shop in which 1 am a tenant was given to me by Smt
Pushpa Kapoor" thereby supporting the testimony of PW-2
Smt Pushpa Kapoor.
xxx xxx xxx
56. This admission of defendant no. 2 is not disputed
anywhere......"
24. Insofar as the plea of Mr. Gupta that the respondent in his
complaints dated October 07, 2015, October 10, 2015 an d October 11,
2015 has referred to the appellants as unauthorised occu pants and n ot
tenants and as such they cannot be construed as tenan ts is also
unmerited. The identical plea taken before the Trial Cou rt is an swered
by the said Court in the following manner:
"50. Ld counsel for defendant has pointed out that in the
complaints filed by plaintiff and his wife in October 2015,
before SHO, PS Lajpat Nagar, they have addressed
defendants to be unauthorized occupants. This argument
is completely frivolous in view of the recitals of the sale
deed reproduced above. Smt. Pushpa Kapoor in the sale
deed of a prior date had already clarified that defendant
no. 1 is her tenant. So any layman's language/words in a
self drafted complaint of harassment cannot be read in a
hyper technical manner. It is not at all expected out of a
common person having no knowledge of principles of law
to choose words and write in the complaint. They cannot,
be expected to know the difference between an
unauthorized occupant and tenant/licensee and the effect
of writing so in their complaint. Plaintiff being a layman
would have only been concerned with the property he had
purchased for a valuable consideration. Any objection on
handing over the same back from the opposite side would
make that party an unauthorized occupant. Plaintiff has
stated in the plaint itself that defendant no. 1 was asked
to vacate the property orally. So this argument is not at
all tenable."
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25. I am in agreement with the aforesaid conclusion of t h e learn ed
Trial Court. This is apart from my finding above, t hat t he appellants
have admitted that they are the tenants in shop No.6 (private No.6A).
Hence, this plea is also rejected.
26. Further, referring to the appellants as u nauthorised occu pants
does not mean that they are / were not tenants. The purport of the
expression in the said notice is, the appellants though tenants, their
continuance in the suit property, has become unauthorised.
27. The plea of Mr. Gupta that the respondent h aving n ot seen t he
appellants paying rent to Pushpa Kapoor and also the rent deed and rent
receipt and the knowledge of tenancy being hearsay, the tenancy
between the appellants and Pushpa Kapoor and also between appellants
and respondent as not having been proved is misplaced / unmerited. My
conclusion above, clearly depicts that the tenancy between the
appellants and Pushpa Kapoor, having been at torned in favour of t h e
respondent vide her notice dated October 10, 2015, thenceforth, the
respondent has become the landlord with regard to t enancy of t h e su it
property of which the appellant(s) was the tenant.
28. Insofar as the plea of Mr. Gupta that there is contradiction in t he
testimonies of respondent, PW2 and PW3 is concerned, the same is
unmerited. I agree with the following conclusion of t h e learned Trial
Court that minor discrepancy in the testimony of PW2 and PW3 in
paragraph 55 as under is minor, but has no bearing on the case set u p by
the respondent:
"55. Defendant no. 1 chose to remain silent despite
receiving the aforesaid notice wherein Smt Pushpa Kapoor
had clearly stated that he was a tenant and he should
attorn to the plaintiff now. It is worthwhile to note here
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that the defendant knew that this was the only
letter/document in his knowledge where it was documented
that defendant no. 1 was a tenant of Smt Pushpa Kapoor.
Had he been in the occupation of suit shop as an
unauthorized occupant and was claiming himself to be the
owner by way of adverse possession, he ought to have
rebutted the contents of the notice and should have put
forth his case. Choosing to remain silent cannot at all be
interpreted to be in his favour. Smt Pushpa Kapoor has
deposed that she inducted defendant no. 1 as a licensee in
the year 2000 as she could not openly rent out the shop to
anyone owing to the property dispute amongst the family.
It is a matter of record that no document has been
produced in order to show that defendant no 1 was
inducted as a licensee. Therefore, the evidence and
pleadings of the parties have to be referred in order to
assess the same. The stand of the defendant since the
beginning was that he was in open and hostile possession
of the suit shop w.e.f. 15.01.2000. The own stand of the
defendants which is a joint written statement of the
defendants shows that they also say that they came into the
possession of the suit shop in the year 2000 which fortifies
the version of PW-2 that defendant no. 1 was inducted as a
licensee in the year 2000. The testimony of PW-2 inspires
confidence as she had narrated the entire sequence of facts
explaining why she was compelled to allow the defendant
no. 1 to enter into suit shop as licensee. She had explained
that there was a dispute with other siblings of her
deceased husband and she had a threat of being
dispossessed by other LRs of Sh. Bansi Lai. In order to
save the suit shop from the other LRs, she found it as a
best option to induct defendant no. 1 to carry on his
business at the suit shop and thereafter when the matter
was settled in the year 2010 and property was mutated in
the year 2012 she had asked the defendant to vacate the
suit shop but with the intervention of PW-3 Mr. Charchal
Dawar, she agreed to let out the suit shop at a monthly
rent of Rs. 1,50,000/- , though there is no rent agreement
or any rent receipt to prove the same. The deposition of
PW-2 is probable as she has been able to establish that
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there was a property dispute in the family. The plaintiff
has produced the best evidence available with him in order
to prove the facts pleaded by him, Ld counsel for
defendants though has argued that there is some
discrepancy in the testimony of PW-2 & PW-3 with respect
to certain facts, however, it is to be kept in mind that the
testimony of these witnesses were recorded during the
Covid-19 Pandemic wherein witnesses had the threat of
contacting the deadly disease while coming to the court
and specially the lady being more than 70 years old could
not have been expected to depose more clearly as she did,
in the witness box. There are certain minor discrepancies
in the statement of PW-2 & PW-3 on some points but they
do not even touch the basic case pleaded by plaintiff. Both
the witnesses have confirmed that meeting had taken place
at the residence of Smt Pushpa Kapoor, defendant no. 1
agreed to pay Rs. 1,50,000/- per month as rent and there
was no rent agreement. It is also to be borne in mind that
neither PW-2 nor PW-3 had any interest in the case at the
time when they came to depose in the court. I do not find
any kind of discrepancy in the testimony of these
witnesses, to an extent that it should be discredited. A
minor discrepancy which has been pointed out by the
counsel for defendant are of no relevance as it is a civil
suit and civil suits are decided on the basis of scales of
preponderance of probabilities. Plaintiff has supported his
case with the testimony of his predecessor in interest who
was the most important witness and was the best evidence
available with him. She had undergone test of cross
examination very beautifully and had testified to the
hilt......"
29. The above shall also answer the plea of Mr. Gu pt a t hat n either
the respondent nor his predecessor-in-interest i.e. PW2, Pushpa Kapoor
were able to produce any document nor to show that the appellants were
licensees of PW2, Pushpa Kapoor or that they became tenant w.e.f.
February 01, 2013.
30. Additionally, I must state that the case of t h e respondent, wh o
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was the plaintiff before the Trial Court was based on the registered sale
deed dated September 9, 2015 purchasing the suit property. Having
become the owner of the suit property and the appellants being the
(undisputed / admitted) tenant(s) and tenancy not being a statutory on e,
it must follow that, the respondent was within his right to seek the
possession of the same along with rent / arrears of rent.
31. The plea of Mr. Gupta that the notice of termination of t en ancy
was not given to appellant No.2 by Pushpa Kapoor is also unsustainable
in view of the finding of the Trial Court in paragraph 47 which I
reproduce hereunder:
"47. Therefore, it is clear that there is no anomaly in the
pleadings. The consistent statement of plaintiff is that
only defendant no. 1 was inducted in the suit shop by Smt
Pushpa Kapoor and not defendant no. 2. In any case
defendant no. 2 was married to defendant no. 1 later on.
Its just that she is running the suit shop with her husband.
So the objection of the defendants counsel that defendant
no. 2 was not given notice by Smt Pushpa Kapoor is
inconsequential."
32. It is also a matter of record that notice dated January 07, 2016 of
the respondent was addressed to both the appellants wherein he has
asked the appellants to vacate the suit property and pay him t he arrears
of rent. So, the suit was rightly filed against the appellants.
33. Insofar as the relief of mesne profits granted by the Trial Cou rt
is concerned, Mr. Gupta has not made any submission both on the gran t
of mesne profits per se and also on the quantum of mesne profits
awarded. The only ground taken in the appeal with regard to mesne
profits is ground JJJ wherein the appellants h ave st ated t hat t he Trial
Court has erred in granting mesne profits against the appellant No.1 at
₹2,55,000/- per month without any plausible reason. The said ground is
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unmerited as the Trial Court while granting the said relief has given t he
following findings:
"60. In order to prove market rate of rent, plaintiff has
examined PW-4 Sh Sanjay Goswami from Sub Register
Office, Mehrauli who has brought the partition deed with
respect to the suit shop, three registered lease agreements
pertaining to shop no, 9 which is near the suit shop of
24.10.2008 with respect to 1/3rd undivided share of the
basement and ground floor of shop no. 9 and also three
lease agreements with respect to same shop no. 9 of
07.07.2015. As per the said lease deed of 2015 Ex PW4/5,
Ex PW4/6 and Ex PW4/7 on record. the monthly rent of
1/3rd undivided share of shop no. 9 was Rs. 85,000/-.
Therefore, entire shop no. 9 which was let out by way of
three separate registered lease deed was let out for a
monthly rent of Rs. 2,55,000/- per month. Shop no. 9 un-
disputingly is in the vicinity of suit shop. The market rent
of the contemporary period has been proved on record.
Plaintiff has claimed damages from 01.02.2016. There is
no reason to disbelive the testimony of plaintiffs witness.
Therefore, mesne profits from defendant no. 1 @ Rs.
2,55,000/- per month is granted w.e.f from 01.02.2016 till
date of handing over the possession of suit shop by
defendants to plaintiff."
34. The above reveals that the learned Trial Court h as relied u pon
the monthly rent as being payable in shop No.9 which is in t h e vicinity
of the suit property for granting the relief. There is basis for t h e Trial
Court to grant the mesne profits and the same cannot be set aside.
35. A plea that the suit has not been properly valued for the purpose
of jurisdiction as well as for the purpose of Court fee is con cerned, t he
Trial Court was of the view that the onus to prove t his issue was u pon
the appellants. However, the defence of the appellants was st ruck-off.
Even otherwise, the Trial Court held that the court fee has been properly
filed on the amount of 12 months rent sought for by t h e respondent. It
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was also of the view that the suit has been properly valued for the
purpose of jurisdiction and court fee. There is no illegality in such
finding.
36. Insofar as the judgments relied upon by Mr. Gupta in support of
his submissions are concerned, in Biswanath Agarwalla (supra), the
Supreme Court held that the landlord tenant relationship was not proved.
The plaintiff was permitted to amend his original suit and make it a su it
on the basis of title by paying ad-valorem cou rt fee. Th is case can be
differentiated on facts, as in that case the issue of the appellant t herein
acquiring title through adverse possession was fou nd t o be plau sible,
however no issue had been framed in that regard, which is n ot t he case
in the present appeal. The learned Trial Court had framed an issu e, bu t
the appellants failed to lead evidence on this aspect. Hence reliance on
this judgement is misplaced.
37. Similarly, in Kailash Paliwal (supra) the Su preme Cou rt h eld
that the suit seeking possession on the basis of landlord and tenant
relationship was disallowed due to the failure of establishing t he same.
A fresh suit based on title was allowed to be filed. Th is ju dgment t oo
does not aid the case of the appellants as an issu e was fram ed on t his
facet, however in absence of any evidence and in light of the admission
of the appellants, being tenants in t erms of Ex. PW1/A, Mr. Gu pta's
reliance on this judgment is of no avail. Reliance has also been placed
by Mr. Gupta on the judgment in the case of Nazir Mohamed (supra),
to state that the plaintiff's claim to relief has to be decided on t h e basis
of strength of his case and not on the weakness of the defendant's case;
and in a suit for possession, limitation has t o be dealt with an d if it is
barred by limitation, the same need to be dismissed. Mr. Gupta's case is
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not bolstered by relying on this judgment, as this judgement is based on
a different factual background. Furthermore, there is a categorical
finding of the learned Trial Court on the issue of lim itation in ligh t of
the landlord-tenant relationship that exists between the part ies an d t his
Court with reference to the reasoning given above, fin ds n o in firmity
with the conclusion of the learned Trial Court.
38. In Shalu (supra), the Court held that the parties are requ ired t o
present best evidence available with them. If any document is withheld,
adverse inference should be taken. The Division Bench of this Cou rt in
the said case had dealt with an issue pertaining to maintenance, which is
not the issue at hand. Similarly, in Messrs Bansidhar Ganga Pershad
Agency (supra) on similar lines, the Court while dealing wit h an issue
pertaining to sale of goods held adverse inference h as t o be drawn , if
relevant documents have not been brought on record or wit hheld by a
party. Needless to state, both these judgments are differentiable on facts.
Be that as it may, in the instant case the respondent has presented
adequate evidence and it is in fact the appellants who have not led
evidence. Therefore, the reliance placed by Mr. Gupta on these
judgments does not aid his case. In Kashi Nath (Dead) through Lrs.
(supra), it is held if the evidence presented before t he Cou rt is n ot in
line with pleadings or at variance with it, then the same cannot be
looked into. The Supreme Court in that case had dealt with issues
arising out of adoption pertaining to personal laws. I am afraid t h at t he
judgment as relied upon by Mr. Gupta for the propositions as noted
above, have no applicability in the facts of this case as being
distinguishable of facts, more so, in view of my conclusion above.
39. No submission has been made by Mr. Gupta on the qu antum of
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interest granted. The appeal by the appellants is bereft of m erit an d is
dismissed.
40. There is one aspect, which this Court is of the view, n eed t o be
highlighted, inasmuch as the learn ed Trial Cou rt h aving granted t he
mesne profits w.e.f. February 01, 2016, till the handing over of the
possession, but has not directed the respondent to pay t h e cou rt fee on
the mesne profits, this Court directs that the respondent is liable t o pay
the court fee on the mesne profits thereon granted by t h e learned Trial
Court and the same shall be paid within a period of six weeks from
today.
41. Modified decree shall be prepared.
CM No. 12490/2021 (for stay)
In light of the fact that I have heard the parties finally on merits
and dismissed the appeal, this application is also dismissed.
V. KAMESWAR RAO, J
JANUARY 12, 2022 /jg
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