Rahul Arora vs Ashok Chadha
2022 Latest Caselaw 95 Del

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                                                        Digitally Signed By:Devanshu
                                                        Signing Date:16.01.2022
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 11th January, 2022
+              RSA 238/2019 & CM APPLs. 51836/2019, 51837/2019
       RAHUL ARORA                                       ..... Appellant
                    Through:          Ms. Parul Yadav, Advocate
                    versus
       ASHOK CHADHA                            ..... Respondent
                    Through: Mr. Vikas Chadha, Advocate
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This hearing has been done through video conferencing.

2. In the present appeal, the Appellant/Defendant/Tenant (hereinafter "Defendant") assails the judgment dated 31st August, 2019 passed in RCA NO. 82/2018 titled Sh. Rahul Arora v. Sh. Ashok Chadha passed by the ld. ADJ-01, Karkardooma, Delhi (hereinafter "Appellate Court") by which the Appellate Court upheld the decree/ judgment dated 12th April 2018 in C.S. No. 9270/2016 titled Sh. Ashok Chadha v. Sh. Rahul Arora passed by the ld. JSCC/ASCJ/GJ (Shahdra) Karkardooma Courts Delhi (hereinafter "Trial Court").

3. The Trial Court had directed eviction of the Defendant from the shop bearing no. 7/73, Bhim Gali, Vishwas Nagar, Shahdara, Delhi-110032 measuring 60 sq. yards (hereinafter "suit property"). In the suit, the following issues were framed by the Trial Court vide order dated 18th December 2015:

"1. Whether the plaintiff is entitled for a decree of possession of suit property bearing no. 7/73, Bhim

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Gali, Vishwas Nagar, Shahdara, Delhi as prayed for? OPP

2. Whether the plaintiff is entitled for a decree of arrear of rent as prayed for? OPP

3. Whether the plaintiff is entitled for a decree for damages/mesne profit for use and occupation of the suit property as prayed for? OPP

4. Relief"

4. The Trial Court had, vide its judgment dated 12th April, 2018, qua issue no.1 held that the Respondent/Plaintiff (hereinafter "Plaintiff") had established his title to the suit property. The Trial Court held that the Defendant was the tenant of one Smt. Maya Devi who had transferred the suit property to one Sh. Anil Bansal vide various registered documents including the registered General Power of Attorney (GPA) in favour of Anil Bansal on 1st November 1999, Will and Agreement to Sell. The said Sh. Anil Bansal had then sold the property to Sh. Ashok Chadha again on 10th March, 2000 by means of a registered GPA, Will, Agreement to Sell and receipt. These two chains of documents were recognised by the Trial Court and it found no merit in Defendant's argument that the ownership document filed by the Plaintiff were false and fabricated. The Trial Court held the fact that the Plaintiff had purchased the suit property and is able to trace back the title to Smt. Maya Devi is not in dispute. As per the case of Defendant, the tenant in the suit property was the father of the present Defendant.

5. The Defendant raised a submission that there was no attornment by his late father in favour of the Plaintiff herein. In respect of this submission, the Trial Court held that in view of Section 109 of the Transfer of Property Act, 1882 (hereinafter "Act") the relationship of landlord and tenant cannot be disputed by the Defendant. Another issue agitated by the Defendant

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before the Trial Court was that the suit was filed outside of the limitation period provided under article 65 to Schedule 1 of the Limitation Act, 1963 as the Plaintiff allegedly got the ownership of the suit property in 1999 but the suit was filed only in 2015. On this issue the Trial Court held that the Defendant had come into the property as a tenant only in 2012 and one Sh. Manish Sharma, had been the tenant on the suit property prior to him. This was disputed by the Defendant. However, the Trial Court in its judgment observes that in the cross-examination of PW-1 the suggestion was put by the Defendant about PW2-Sh. Manish Sharma despite there being no reference to him in the evidence by way of affidavit. On this basis, knowledge of the connection of Sh. Manish Sharma with the suit property was attributed to the Defendant and inference was drawn against him.

6. The Trial Court judgment also shows that the Defendant himself admitted having another shop on rent of similar nature which was situated at Vishwas Nagar, Shahdara, Delhi for a monthly rent of Rs.7,100/-. In view thereof, the Trial Court fixed the arrears on rent, sought by the Plaintiff in the suit, at Rs.7,000/- per month to be paid by the Defendant to the Plaintiff for the period from 01st November, 2012 till 31st May, 2012 and directed the Defendant to pay the arrears. After assessing the prevalent market rent in the area, the Trial Court fixed the mesne profit at Rs. 12,000/- per month for the period commencing from 01st June, 2015 till the date suit property is vacated by the Defendant to be paid to the Plaintiff. The observations of the Trial Court are set out below:

"13. The plaintiff has claimed the mesne profit @ Rs.12,000/- per month w.e.f. 01.06,2015 stating that it is the prevalent market rate, of rent. However, no evidence has been adduced by the plaintiff to show that

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the prevalent market rate of rent is Rs.12,000/- per month. However, I am taking judicial notice of the evidence of defendant recorded in suit no. 78/12 Ex.DW2/1 wherein he has stated that the other property which he took on rent was taken on rent by one Sh. Dinesh Chopra @ Rs.9,000/- per month after he vacated the same in February 2011. Therefore, the similar situated property in the same area where the suit property is situated was fetching the rent @ Rs.9,000/- per month in February 2011. The defendant is in unauthorized occupant of the suit property as he continued in the possession of the suit property after his tenancy was terminated vide legal notice Ex. PW1/3. Accordingly, the plaintiff is entitled to mesne profit/damages @ Rs. 12,000/- per month for the period 01.06.2015 till the suit property is vacated by the defendant."

7. In so far as the Appellate Court is concerned, it upheld the judgement of the Trial Court and merely modified the mesne profit fixed by the Trial Court in appeal to Rs.9,000/- per month with an increase of 10% once in every three years with effect from 01st June, 2015. The said order of the Appellate Court is set out below:

"Vide my separate judgment announced in the open court, the impugned judgment dated 12.04.2018 is affirmed and upheld and calls for no interference except to the extent of granting mesne profit/damages @ Rs.12,000/- by the Ld. Trial Court, which now stands modified.

The respondent/plaintiff is now granted mesne profit @ Rs.9000/- per month with an increase of 10% once in three years w.e.f. 01.06.2015 till the suit property is vacated by the appellant/defendant. Appeal is accordingly disposed off. Any other application pending on record is also disposed off. Parties to bear their own costs. Decree sheet be prepare accordingly.

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TCR be sent back to the concerned court alongwith copy of this judgment. Appeal file be consigned to record room."

8. The present second appeal before this Court challenges the said order of the Appellate Court. In the present second appeal, vide order dated 2nd December, 2019, the execution of the judgment and decree was stayed by this Court subject to the Defendant depositing upto date mesne profit in terms of the directions of the Appellate Court. The directions of this Court read as under:

"Issue notice to the respondent, on appropriate steps, returnable for 24th April, 2020.

The appellant claims to be in continued possession after the demise of his predecessor-in-interest who was considered to be a tenant in the subject property. The execution of the impugned judgment and decree to the extent thereby the appellant is to be evicted from the subject property shall remain stayed till next date of hearing subject to the appellant depositing the upto date mesne profit in terms of the directions of the first appellate court with the executing court, in the form of fixed deposit receipt taken out from a nationalised bank initially for a period of six months, within four weeks hereof.

Dasti under the signatures of Court Master."

9. According to the ld. Counsel for the Plaintiff, the awarded mesne profit till the date of February, 2021 was to the tune of Rs.9,07,000/-. Therefore, in view of the directions of the Appellate Court's order, mesne profit ought to have been paid to the Plaintiff at the rate of Rs.9,000/- per month, which has not been done by the Defendant. Further, in view of the interim order passed by this Court, only amount till 2nd December, 2019 was submitted with this Court to the tune of Rs.5 lacs and thereafter no

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subsequent payment was made by the Defendant to the Plaintiff. Taking note of the said fact, vide order dated 17th February, 2021 following directions were issued to the Defendant-

"1. Although Mr. Vikas Chaddha, Advocate, is present on behalf of the respondent, there is no representation on behalf of the appellant.

2. Given the fact that the appellant has been enjoying the interim order since 02.12.2019, and the mesne profits, I am told, have been deposited in the form of FDR, only up-until the said date i.e., 02.12.2019, the appellant is directed to deposit the mesne profits between the aforementioned date and up-until today. 2.1. Additional amount, as directed, will be deposited within two weeks from today.

3. List the matter on 04.08.2021.

4. The Registry will transmit a copy of the order passed today to the appellant as well as his counsel- on-record."

10. Ld. Counsel for the Plaintiff submits that in terms of the Appellate Court's order the use and occupation charges are Rs.9,900/- per month for the period 1st June, 2018 to 31st May, 2021 in view of 10% increment contemplated by the Appellate Court after a period of 3 years. It is the admitted position that apart from the sum of Rs.5 lakhs which is deposited with the Executing Court, no other amounts have been deposited by the Defendant and no other amounts have been paid to the Plaintiff.

11. Today, the Court has heard ld. Counsels for both the parties. Ms. Yadav appearing for the Defendant contends that following questions of law arise in the present second appeal:

i) The title deeds in favour of Sh. Anil Bansal and Sh. Ashok Chadha are not registered.

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                                                            Digitally Signed By:Devanshu
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       ii)     The suit is barred by limitation.
       iii)    The plea of adverse possession has not been properly

considered by the courts below inasmuch as the Defendant has been in possession of the suit property for more than 12 years. Though the Plaintiff has purchased the property in 2000, the suit was filed much later in 2015, i.e., beyond the limitation period under article 65 to Schedule 1 of the Limitation Act, 1963. According to her, therefore, the suit was barred by limitation and adverse possession would be triggered.

iv) The landlord tenant relationship between the Plaintiff and the Defendant is not established and is disputed.

12. Mr. Chadha on the other hand submitted that dispute to ownership cannot be raised in this appeal. The documents in favour of Sh. Anil Bansal and Sh. Ashok Chadha from the original owner Smt. Maya Devi are registered. Further, he submits that the plea challenging the ownership of the Plaintiff and the claim of adverse possession are themselves contradictory. It is his argument that the defence of adverse possession cannot be raised on the one hand while challenging ownership on the other hand. It is further submitted by him that there is complete non-compliance of the direction as per order dated 17th February 2021 passed by this Court. He thus submits that no further indulgence ought to be shown to the Appellant.

13. After hearing ld. Counsel for both the parties, the issues of law which are raised by the Appellant are dealt with herein below:

(i) In so far as the issue of ownership of the Plaintiff over the suit property is concerned, the Trial Court's findings are absolutely categorical and clear that the chain of documents showing that

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the property was first purchased by Anil Bansal and then by Ashok Chadha have been duly registered. Even before this Court, it is not disputed that the Will and GPA dated 1st November 1999 executed by Maya Devi to Anil Bansal are registered. The payment of consideration was also through banking channels. Secondly the GPA and Will dated 10th March 2000 executed by Anil Bansal to Ashok Chadha are also registered. Even in this transaction, the payment of Rs. 1.6 lakhs is through banking channels. Thus, no question of law as to the registration of documents relating to the ownership of the plaintiff over the suit property arises.

(ii) Secondly, in so far as the period of limitation is concerned, the Trial Court's order records clearly state that one Sh. Manish Sharma was the tenant in this property till 2012 and it is only thereafter that the Defendant herein came to become the tenant of the Plaintiff directly. On this issue, the Trial Court's findings are set out below:

"The perusal of the case file reflects that in the plaint, nowhere the plaintiff has mentioned the name of PW2 Manish and that he was tenant in the suit property prior to the defendant as alleged. Even in his affidavit of evidence Ex. PW1/A, the plaintiff has not mentioned the name of PW2 Manish. It is in the cross examination that the plaintiff told that he know one person Manish Sharma. It is not the voluntarily statement being made by the plaintiff. In fact, during the cross examination, the questions have been asked by the ld. Counsel for defendant with respect to Manish Sharma. If Manish Sharma is a planted witness as

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alleged by the defendant, then how come, the defendant had the knowledge of the so called planted witness so that the question was put to the plaintiff with respect to Manish Sharma. When the pleadings of the plaintiff alongwith his affidavit of evidence is completely silent about Manish Sharma, then how come the defendant got the knowledge about Manish Sharma is unexplained by the defendant. Therefore, the inference is drawn against the defendant that he had knowledge of Manish Sharma and knew that he is connected to the suit property."

This being a question of fact, the Trial Court having arrived at the above conclusions, no question of law would arise on this aspect. This Court if of the opinion that it cannot be held that the suit is barred by limitation as per article 65 to Schedule 1 of the Limitation Act, 1963.

(iii) In so far as the issue of adverse possession is concerned, it is clear that adverse possession is a defence which would have to be taken categorically and the party taking the said defence would have to be in possession of the property in a manner which is hostile to the owner. It is the settled position in law that plea relating to title and adverse possession are mutually inconsistent and the later does not operate until the former is renounced as has been consistently held by the Supreme Court in Mohan Lal v Mirza Abdul Gaffar (1996) SCC 639; L.N. Aswathama v. P. Prakash (2009) 13 SCC 229; Prabhakar Gones Prabhu v. Sardarchandra Suria in Civil Appeal No. 10501-10502 of 2014 decided on 21st August 2019. This view also

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finds place in the judgment passed by this Court in Amonchit Suriya Kiran v National Restaurant 258 (2019) DLT 652 wherein the Court observed as under:

"23. Moreover, the Defendant has also repeatedly pleaded adverse possession and is therefore attempting to set up a conflicting title with the Plaintiffs. The law on adverse possession is settled. Recently, the Supreme Court in Ram Nagina Rai & Anr. Vs. Deo Kumar Rai (Deceased) by LRs. & Anr. MANU/SC/1003/2018: 2018 (10) Scale 630 observed as under:

"6. ...Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another's title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other's title, make his possession adverse so as to give himself the benefit of the statute of limitation. ... ... ... ... ... ... ... ...

9. Until the Defendants 'possession becomes adverse to that of the real owner, the Defendants continue in permissive possession of the property.

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Only if the Defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed Under Article 65 of the Limitation Act, from the point of time the possession by the Defendants becomes adverse to the Plaintiffs, the real owner loses his title over the property."

24. The Defendant has taken contradictory pleas all along. First, he admits that Shri Tarjit Singh gave the possession on an oral tenancy and the rent was Rs. 500/-. He then denies the relationship of landlord- tenant on the ground that rent has not been paid for more than 20 years. Curiously, he then pleads that he is protected under the provisions of the Delhi Rent Control Act. To obfuscate matters further, he pleads adverse possession. When admittedly, various eviction petitions have been filed by the owner and his son, the plea of adverse possession is untenable as the possession is not hostile. There being no tenancy in favour of the Defendant, the rent having not been paid for more than 20 years and the Plaintiffs having always asserted ownership against the Defendant, both pleas i.e., the protection under the Delhi Rent Control Act and the plea of adverse possession fail.

25. A feeble attempt is made by the Defendant to challenge the ownership of the Plaintiffs. The ownership of Shri Tarjit Singh is admitted. His wife and son are the Plaintiffs in the present suit. The Defendant is estopped from challenging their title inasmuch as they have established on record, that they are the legal heirs of Shri Tarjit Singh. None of the legal heirs have come forward challenging the rights of the Plaintiffs."

Thus, the plea of adverse possession raised by the Defendant is also liable to be rejected as it has not been established as to in

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what manner the possession of the Defendant was hostile to the owner and it is also impermissible to claim adverse possession while simultaneously disputing the title of the Plaintiff.

(iv) The final submission of the Defendant that there was no landlord tenant relationship also does not hold ground in the opinion of this Court. The said averment of the Defendant has been dealt with by the Trial Court by invoking Section 109 of the Act. The findings of the Trial Court on this issue are as under:

"11.4 The other defence taken by the defendant is that his father never attorned the plaintiff as his landlord. It is argued by the Id. counsel for defendant that plaintiff has not placed on record any document to show that father of defendant ever attorned the plaintiff as a landlord. However, argument of the Id counsel holds no ground in view of section 109 for Transfer of Property Act, 1882.

"109. Rights of lessor's transferee.- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason, to believe that such transfer has

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been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having Jurisdiction to entertain a suit for the possession of the property leased,"

11.5 Ld. counsel for plaintiff has relied upon judgement of Hon'ble Patna High Court in case Smt. Kalawati Tripathi and others Vs Smt. Damayanti Devi and others, civil revision no. 1882 of 1990, wherein, it has been held the transferee of the lessee steps into the shoes and possesses all the rights which the transferor has. The attornment by the tenant is not essential to give validity to the transfer made in favour of the transferee. The submissions tirade on behalf of the tenant that suit for eviction was not maintainable, as there was no attornment by the tenant, therefore is without any substance.

11.6 Similar proposition has been held by Hon'ble Kerala High Court in case M/S Hajee K. Assainar & Co, Vs Chacko Joseph AIR 1984 Kerala

11.7 In case Ambica Prasad Vs Mohammad Alam and another 2015(3) CU 357 S.C. Hon'ble Supreme Court of India has held that it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor

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landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the-tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights, Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment.

11.8 Therefore, in view of Section 109 of Transfer of Property Act, the argument of Id. Counsel for defendant that plaintiff has failed to show any attornment by the late father of the defendant accepting the plaintiff as the landlord holds no ground.

11.9 It is proved that plaintiff is the landlord of the suit property and there exists relationship of landlord and tenant between plaintiff and defendant. The second defence raised by the defendant is that he is the old tenant in the suit property and the tenancy was devolved upon him through his late father, who was kept as tenant by Smt. Maya Devi. However, the plaintiff has stated he let out the suit property to the defendant in the beginning of year 2012 vide oral tenancy @ Rs.7000 per month."

The law with regard to Section 109 of the Act is settled that transferee gets all the rights and liabilities of the landlord in respect of the subsisting tenancy and attornment by the tenant is not necessary to confer validity to the transfer. In D.N. Joshi (D) thr. L.Rs and Ors v. D.C. Harris & Ors. (2017) SCC 624 the Supreme Court has held as under:

"27. As a matter of fact, the Appellants-Defendants have not questioned the validity of the sale deed in

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favour of the Respondents-Plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the Plaintiff (Respondents) by way of a sale deed. It is not open to the Appellants Defendants to question the ownership of the Respondents-Plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (Defendant) to attorn to the donee (Plaintiff), is also devoid of substance. For, this Court in the case of Ambica Prasad v. Mohd. Alam and Anr.

MANU/SC/0393/2015: (2015) 13 SCC 13 has enunciated that it is well settled that after the transfer of the landlord's right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlord's rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant."

Since there is no dispute that Sh. Anil Bansal purchased the suit property from Smt. Maya Devi, the original landlord, and thereafter the Plaintiff purchased the same from Sh. Anil Bansal, the Plaintiff would be entitled to claim rights the suit property as contemplated under Section 109 of the Act. In view thereof, the

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landlord tenant relationship also cannot be disputed by the Defendant.

14. Thus, in the present second appeal, this Court is of the opinion that there is no substantial question of law that arises. The appeal would also not be liable to be entertained due to non-deposit of the complete up-to-date mesne profits, as directed by this Court vide order dated 2 nd December 2019 read with order dated 17th February, 2021. Only a sum of Rs.5 lakhs has been admittedly deposited, as against the dues of over Rs. 10 lakhs. The Defendant has not paid any monthly use and occupation charges, post the interim order granted by this Court. Thus, the Defendant has enjoyed the property in question for the last more than two years, without payment of any occupation charges.

15. Ld. Counsel for the Defendant, upon being queried, sought instructions as to by what time her client would be able to pay the arrears and also vacate the suit property inasmuch this Court is not inclined to entertain the present second appeal.

16. After seeking instructions, Ld. Counsel for the Defendant submits that her client is willing to pay the entire arrears by 31st March, 2022 and she also undertakes that her client would also vacate the suit property by 15th April, 2022.

17. In view of the submissions by the ld. Counsel appearing for the Defendant that her client would clear the entire outstanding amount by 31st March, 2022 and vacate the property by 15th April, 2022 as also considering the pandemic period, the undertaking given on behalf of the Defendant is accepted. The Defendant is thus given time to vacate the property. The following directions are accordingly issued:

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i) The tenant shall pay the entire use and occupation charges as directed by the Appellate Court on or before 31st March, 2022, without payment of any interest. If the said amount is paid by 31st March, 2022 the tenant shall be entitled to retain the property till 15th April, 2022, by which time the Defendant shall hand over the vacant and peaceful possession to the landlord, failing which the Executing Court shall proceed in accordance with law.

ii) If the said amounts are not paid by 31st March, 2022, the Plaintiff/ Decree Holder shall be entitled to execute the decree in accordance with law. In such a case, the landlord shall also be entitled to recover interest at the rate of 6% per annum on the amount due and payable by the tenant.

iii) The amount deposited by the tenant before the Trial/Executing Court to the tune of Rs.5 lakhs along with the interest accrued thereon be released to the landlord within two weeks. If any other sums are lying deposited by the tenant, the same shall also be released by the Trial/Executing Court within the same period.

18. The present appeal along with all pending application are disposed of in the above terms. The Executing Court is directed to ensure strict compliance of this order.

PRATHIBA M. SINGH JUDGE JANUARY 11, 2022 mw/SK (Corrected and released on 15th January, 2022)