Delhi District Court
Vinod Kumar Punjani And Ors vs Rajiv Arora on 29 April, 2025
IN THE COURT OF SH. SACHIN SOOD DISTRICT JUDGE-01 (CENTRAL), THC, DELHI CS No. 780/19 CNR No : DLCT01-010817 2019 1. Shri Vinod Kumar Punjani Son of Late Shri Pritam Lal Punjani R/o 27/341, Near Rajender School, Asha Ganj, Ajmer, Rajasthan 2. Shrimati Pushpa Sapra Wife of Shri Narinder Sapra, Daughter of Late Shri Pritam Lal Punjani R/o E-217, Budh Vihar, Alwar, Rajasthan 3. Shrimati Sharda Soni Wife of Shri Gurmeet Soni D/o Late Pritam Lal Punjani R/o 1845, Prakash Road, Nagra, Ajmer, Rajasthan. 4. Shrimati Roma Manwani Wife of Shri Kamal Manwani D/o Late Pritam Lal Punjani Resident of Shiv Colony, Paharganj, Ajmer, Rajasthan. PLAINTIFFS VERSUS Shri Rajiv Arora S/o Not Known R/o DDA LIG Flat No 127-A, Ground Floor, Motia Khan Residential Scheme, Motia Khan, Paharganj, New Delhi-110055. DEFENDANT Date of Institution: 09.08.2019 Date of Judgment: 29.04.2025 CS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 1/29 JUDGMENT
1. The present suit has been filed by the plaintiff seeking possession,
payment of arrears of rent, mesne profits/damages and for permanent
injunction pleading inter alia as follows :-
(a) That the father of plaintiffs Shri Pritam Lal Punjani son of late Tota
Ram Punjani had purchased the LIG DDA built flat bearing flat No. 127-
A, situated at ground floor at Motia Khan Residential Scheme, Paharganj,
New Delhi.110055 from Shri Jag Parvesh Anand son of Shri Maharaj
Krishan Anand, r/o 21-D, DDA SFS Category II flats, Moti Khan,
Paharganj, New Delhi.110055 on 16.02.2001 for valid consideration on
the basis of General Power of Attorney, Agreement to sell and purchase,
Special power of attorney etc duly executed by said Shri Jag Parvesh
Anand in favour of Shri Pritam Lal Punjani, the husband plaintiff on
16.02.2001 and notarized on 05.03.2001.
(b) That the defendant was inducted as a tenant by the father of plaintiffs
into the aforesaid property No.127-A, situated at ground floor at Motia
Khan Residential Scheme, Paharganj, New Delhi.110055 on a monthly
rental of Rs 4,500/- p.m. besides other charges in the year 2006 and the
said rent of the aforesaid leased property had been enhanced to Rs.5,500/-
per month w.e.f. May, 2010.
(c) That the father of the plaintiffs had a paralytic attack in the year 2008
and had been bed ridden and he died on 10.12.2015 and the plaintiffs
have able to lay hands on original documents of the purchase of the
property No.127-A, situated at ground floor at Motia Khan Residential
Scheme, Paharganj, New Delhi-110055 and also the pass book of the
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savings bank account of late Shri Pritam Lal Punjani with Punjab
National Bank, Paharganj, New Delhi.110055.
(d) That on scrutiny of the pass book of the savings bank account No.
36677, new No. 013000010366776 with Punjab National Bank,
Paharganj, New Delhi- 55, it has been noticed that the defendant was
depositing the rent from time to time from his account No.01211351135
by way of transfer into the account of Shri Pritam Lal Punjani and that
the last payment of Rs.5,500/- has been transferred into the savings
account of Shri Pritam Lal Panjani on 11.08.2010 and thereafter no
amount towards rent has either been deposited by the defendant into the
said savings bank account of Pritam Lal Punjani nor has paid the said rent
in cash. Now the defendant is in arrears of rent amounting to
Rs.5,77,500/- for the period w.e.f.August, 2010 upto May, 2019 and the
plaintiffs are entitled to claim the arrears of rent for the last three years
i.e. w.e.f. 01.06.2016 till date of filing of the suit, which amounts to
Rs.1,98,000/. Shri Pritam Lal Punjani has expire on 10.12.2015 and has
left behind the following legal heirs:
S No Name Relation Age/Other remark 1 Smt Sudesh Kumari Wife Died on 07.04.2019 2 Shri Vinod Kumar Panjani Son 51 years 3 Ms Roma Manwani Daughter 45 years 4 Smt Sharda Soni Daughter 48 years 5 Smt Pushpa Daughter 52 years
(e) That Shri Vinod Kumar Punjani approached the defendant on
01.12.2018 for realization of the arrears for rent when the defendant flatly
refused to pay or discharge his legitimate liability towards rent in respect
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the lease premises i.e. DDA MIG Flat No.127-A, situated at ground floor
at Motia Khan Residential Scheme, Paharganj, New Delhi.110055.
(f) That the plaintiff including his mother who was then alive had
terminated the tenancy of the defendant vide legal notice dated
02.01.2019 sent by registered AD and speed post dated 03.01.2019 w.e.f.
the midnight of 09.02.2019 and requiring the defendant to:
(i) Vacate the aforesaid suit property No.127-A, situated at ground floor at
Motia Khan Residential Scheme, Paharganj, New Delhi.110055, forthwith
and hand over its vacant physical and peaceful possession of the above
said leased premises to the plaintiff latest by the midnight of
9/10.02.2019, failing which he will be treated unauthorised occupant and
a trespasser and shall be liable to pay damages Rs., 1,000/- per day w.e.f.
10.02.2019 till date of actual vacant physical possession for such
unauthorised and illegal use and occupation;
(ii) To pay all arrears of rent amounting to Rs. 5,50,000/- covering the
period w.e.f. August, 2010 and upto December, 2018 by way and of
depositing/ transferring the said amount in the SB Account No.
4118000100017944 in the account of Shri Vinod Kumar Punjani with
Punjab National Bank, Ajmer, Rajasthan by way of demand draft on or
before 09.02.2019, failing which legal proceedings against the defendant
before the appropriate court of law seeking the above reliefs, shall be
initiated entirely at his cost, risk and consequences.
(g) That Shrimati Sudesh Kumari wife of Shri Pritam Lal Punjani and
mother of the plaintiffs died on 07.04.2019.
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(h) That the plaintiff No.1 herein approached the defendant on 18.03.2019
and requested him to clear all the arrears of rent and also vacate and hand
over the actual vacant physical possession of suit premises to the plaintiff
in terms of the legal notice duly served on him but the defendant
threatened to create sublet, assign or otherwise create third party interest,
charge and lien over the suit property and thus the plaintiff has filed the
present suit seeking the following reliefs:
a) Pass a decree for possession in respect of LIG DDA-built flat bearing
flat No. 127-A, floor situated at ground level at Motia Khan Residential
Scheme, Paharganj, New Delhi, 110055, as shown red in site plan
attached, in favor of the plaintiffs and against the defendant, his family
members, associates, agents, etc., directing defendant to vacate and hand
over possession of the above-said flat to the plaintiffs forthwith.
b) Pass a decree of arrears of rent w.e.f 10.2.2016 to 9.2.2019 @ Rs.
5,500/- p.m. amounting to Rs. 1,98,000/p.m. in favor of plaintiffs and
against the defendant in respect of LIG DDA-built flat bearing flat No.
127-A, situated at the ground floor at Motia Khan Residential Scheme,
Paharganj, New Delhi-110055.
c) Pass a decree for Rs. 90,000/p.m. as damages in favor of plaintiffs and
against the defendant w.e.f. 10.2.2019 till 9.5.2019 with further direction
to defendant to continue to pay the damages of the use and occupation of
the above-mentioned premises @ Rs. 1,000/p.m. per day w.e.f. 10.5.2019
onwards till date of actual handing over vacant physical possession of the
above said flat in question to the plaintiffs.
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d) Pass a decree of permanent injunction in favor of plaintiffs and against
the defendant restraining the defendant, his family members, associates,
agents, or anybody else on his behalf from subletting, assigning or
otherwise part with possession of the above said LIG DDA built flat
bearing flat No. 127-A, situated at ground floor at Motia Khan Residential
Scheme Paharganj, New Delhi 110055 (as shown red in site plan
attached) and also from creating third party charge, lien or interest over
the suit property in any manner whatsoever with costs of the suit.
SERVICE OF DEFENDANT AND EX-PARTE PROCEEDINGS
2. The summons of the suit were sent to the defendant but the defendant
could not be served on his last known/available address by the way of
ordinary process as well as by way of registered post. Thereafter the
plaintiff moved an application under Order V Rule 20 seeking substituted
service of the defendant and thus the defendant was served by way of
publication in Newspaper ‘The Stateman’ dt 09.04.2019 and ‘Veer Arjun’
dt 10.04.2021, as recorded in the Order dated 08.11.2021. However the
defendant failed to appear and thus vide order dated 08.11.2021, the
defendant was proceeded Ex-Parte and following issue was framed:
“Whether plaintiff is entitled for recovery alongwith interest as prayed
for?’
3. Thereafter Ld counsel for the defendant has moved an application for
setting aside ex-parte proceedings and the same was allowed subject to
cost of Rs 4,000/-.
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WRITTEN STATEMENT
4. The defendant filed his written statement denying the contents of the
plaint pleading inter alia as under :-
(i) That the present suit is without any cause of action.
(ii) That the plaintiffs have not approached this Hon’ble Court with clean
hands and is guilty of suppressing the basic and material facts from this
Hon’ble Court. It is submitted that the father of plaintiff’s namely Sh.
Pritam Lal Punjani has entered into a Bayana Receipt (Agreement to Sell)
qua the property in question bearing Flat Νο. 127-A, Under Lig Category
On Ground Floor, Situated In Motia Khan Residential Scheme. Motia
Khan, New Delhi, for a total sale consideration of Rs. 7,50,000/- (Rupees
Seven Lakh Fifty Thousand) out of which a total sum of Rs. 5,00,000/-
(Rupees Five Lakh) has already been paid by the defendant to the father
of plaintiff’s namely Sh. Pritam Lal Punjani and the father of plaintiff’s
also handed over to the defendant, the possession of the suit property on
dated 09-04-2007 itself.
(iii) That the defendant requested the father of plaintiff’s namely Sh.
Pritam Lal Punjani to pay the balance amount in installments and the
father of plaintiff’s namely Sh. Pritam Lal Punjani accepted request of the
defendant and said whenever the balance amount was completed, he
(father of plaintiff’s namely Sh. Pritam Lal Punjani) will execute the
documents of the property in question in the name of the defendant and
hand over all the relevant original documents in regard the suit property
and previous chain documents of the suit property to the defendant. That
the defendant paid an amount Rs. 92,000/- by way of installments
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through bank to the father of plaintiffs’ namely Sh. Pritam Lal Punjani. It
is submitted that after the payment of Rs 5,92,000/- only the balance of
Rs. 1,58,000/- is left.
(iv) It is further submitted that there is no relationship of the tenant and
landlord allegedly between the defendant and the plaintiffs rather the
possession of the suit property has been handed over by the father of
plaintiffs’ namely Sh. Pritam Lal Punjani to the defendant as a part of the
Agreement to Sell/Bayana Receipt and as such the defendant cannot be
evicted from the suit property and his possession of the suit is protected
under the provisions of Transfer of Property Act.
(v) That the suit is defective and deficient as the plaintiffs have not
supplied the backside copy of the property documents of the suit property
i.e. the General Power of Attorney, Special Power of Attorney, Agreement
to Sell, Rent Agreement, Agreement to appoint Arbitrator, Affidavit,
Possession Letter and Indemnity Bond to the answering defendant and
also not filed the complete chain documents of the suit property.
(vi) That the suit is defective, the Affidavits of the plaintiffs and
verification page of the plaint were prepared on dated 03-06-2019 much
prior to the plaint, Index, Memo of Parties and Application prepared on
dated 08-08-2019 and later on the affidavits dated i.e. 03-06-2019 were
inserted/written above the date mentioned in the plaint, Index and Memo
of Parties as well as the application. Moreover, the affidavits supporting
the plaint as well as affidavits supporting the application and
Vakalatnama was not signed by the plaintiffs in the presence of the
Counsel of the plaintiffs and the affidavits were also not attested by the
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Oath Commissioner. It is submitted that the affidavits of the plaintiffs
were attested by the Notary Public at Ajmer on Dated 03-06- 2019 and on
the affidavits the signature of the deponents were also not affixed in the
presence of Notary Public. It clearly shows that the signatures of the
plaintiffs are forged on the Plaint, Vakalatnama and the Application and
the same were not in the presence of the counsel on the Affidavit,
Possession Letter and Indemnity Bond. The plaintiff has also not filed the
complete chain documents of the suit property and as such the answering
defendant reserves his right to file a detailed reply on receipt thereof.
REPLICATION
5. The plaintiffs filed their replication to the written statement of the
defendants by denying each and every allegation raised by the defendant
and reiterated the contents of the plaint.
ISSUES
6. Vide order dated 28.11.2023, the following issues were framed:-
1. Whether the plaintiff is entitled to possession of the suit property
bearing no. 127-A, Ground Floor, Motia Khan, Residential Scheme,
Paharganj, New Delhi-55? OPP
2.Whether the plaintiff is entitled to a decree for an amount of Rs.
5,50,000/- towards arrears of rent? If so, for what period and at what
rate? OPP
3. Whether the plaintiff is entitled to interest upon the amount of Rs.
5,50,000/- i.e. on arrears of rent, if so at what period and at what
rate? OPP
4. Whether the plaintiff is entitled to a decree of damages for the use
and occupation of the suit property? If so, for what period and at
what rate? OPP
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5. Whether the plaintiff is entitled to a decree of permanent
injunction, as prayed for? OPP
6. Relief, if any.
EVIDENCE
7. The plaintiff in order to prove his case has examined himself as PW-1,
who tendered in evidence his duly sworn affidavit i.e. Ex. PW1/A
reiterating the contents of the plaint which are not reproduced here for
the sake of brevity. In his testimony the PW-1 relied upon the following
documents:-
S N. Ex No Documents 1 ExPW 1/1 (OSR) Receipt of Rs. 1,95,000/- dated 16.02.2001 2 Ex PW 1/ 2 (OSR) Copy of Will of Sh. Jag Parvesh Anand, S/o Sh. Maharaj Kishan Anand, R/o 21-D, DDA, SFS, Col- II 3 Ex PW 1/3(OSR) Copy of GPA dated 16.02.2001 4 Ex PW 1/4 (OSR) Copy of SPA datd 16.02.2001. 5 Ex PW 1/5(OSR) Copy of SPA dated 16.02.2001 to sell the suit property either in part of or whole to receive the final consideration amount of earnest money from the intended purchase(s). 6 Ex PW 1/6(OSR) Copy of Agreement to Sell and Purchase dated 16.02.2001. 7 Ex PW 1/7(OSR) Copy of Rent Agreement dated 16.02.2001. 8 Ex PW 1/8(OSR) Copy of Agreement to Appoint Arbitrator dated 16.02.2001. 9 Ex PW 1/9(OSR) Copy of affidavit dated 16.02.2001 affirming the execution of above documents and also affirming that he shall not cancel the said documents. CS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 10/29 10 Ex PW 1/10(OSR) Copy of Possession Letter of the suit dated 16.02.2001. 11 Ex PW 1/11(OSR) Copy of Indemnity Bond dated 16.02.2001. 12 Ex PW 1/12(OSR) Copy of Pass Book of S.B Account being Old No. 36677 and 013007-0100366776 where rent in respect of suit property @ Rs. 5500/- per month was deposited by the defendant through his account no. 0121135135 w.e.f 10.08.2009 and upto 11.08.2010. 13 Mark A Copy of the ledger account enquiry showing the status of the aforesaid S.B Account as Dormant. 14 Ex PW 1/13 Death certificate of Shri Pritam Lal Punjani. 15 Ex PW 1/14 (colly) Medical proofs and prescriptions of said Shri Pritam Lal Punjani. 16 Ex PW 1/15 Legal notice dated 02.01.2019 served on the defendant by the plaintiffs through his counsel. 17 Ex PW 1/16 & Ex Postal receipt no. RD 021459327IN dated PW 1/17 03.01.2019 & Postal receipt No ED 068742978IN dated 02.01.2019. 18 Ex PW 1/18 Death certificate of Smt. Sudesh Kumari, W/o Shri. Pritam Lal Punjani. 19 Ex PW 1/19 Site plan. 20 Ex PW 1/20 Statesman Delhi Edition dated 09.04.2021 containing Proclamation published under order V Rule 20 CPC dated 20.03.2021. 21 Ex PW 1/21 Veer Arjun Delhi Edition dated 10.04.2021. 22 Mark B Copy of valuation report for Rs. 23,68,800/- which is not mentioned in the evidence by way of affidavit.
8. PW-1 was cross examined at length by the Ld counsel for the defendant
and thereafter PE was closed vide order dt 03.07.2024.
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9. The defendant in order to prove his case has examined 2 witnesses i.e.
Sh Rajiv Arora as DW-1 and Smt Deepa Bhatia as DW-2. DW-1, Sh
Rajiv Arora tendered his evidence by way of affidavit i.e. Ex. DW1/A
and he relied upon the following documents:
S no Ex No Documents 1 Ex DW 1/1 (OSR) Bayana receipt dt 20.12.2006. 2 Ex DW 1/2 (OSR) Receipt dt 09.04.2007. 3 Ex DW 1/3 (OSR) possession letter dt 09.04.2007. 4 Ex DW 1/ 4 Site plan of the suit property.
10. Smt Deepa Bhatia was examined as DW-2 who also relied upon Ex DW
1/1, Ex DW 1/ 2 & Ex DW 1/ 3.
11. Both the witnesses were duly cross examined by Ld counsel for the
plaintiff and thereafter DE was closed on 27.01.2025.
12. I have heard the arguments from both the sides and perused the records
carefully and my issue wise findings are as under:
ANALYSIS AND FINDINGS
13 ISSUE No 1. Whether the plaintiff is entitled to possession of the suit
property bearing no. 127-A, Ground Floor, Motia Khan, Residential
Scheme, Paharganj, New Delhi-55? OPP
14. As per the plaint, the father of plaintiffs Shri Pritam Lal Punjani son of
late Tota Ram Punjani had purchased the LIG DDA built flat bearing flat
No. 127-A, situated at ground floor at Motia Khan Residential Scheme,
Paharganj, New Delhi.110055 from Shri Jag Parvesh Anand on
16.02.2001 for valid consideration on the basis of General Power of
Attorney, Agreement to sell and purchase, Special power of attorney etc
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duly executed by said Shri Jag Parvesh Anand in favour of Shri Pritam
Lal Punjani, the husband plaintiff on 16.02.2001 and notarized on
05.03.2001.That the defendant was inducted as a tenant by the father of
plaintiffs into the suit property on a monthly rental of Rs 4,500/- p.m.
besides other charges in the year 2006 and the said rent of the aforesaid
leased property had been enhanced to Rs.5,500/- per month w.e.f. May,
2010. The father of the plaintiff expired on 10.12.2015 and is survived by
his wife Smt Sudesh Kumari, Son plaintiff no 1 and 3 daughters i.e.
plaintiff no 2 to 4. As per the plaintiff, the defendant last paid rent to the
father of the plaintiff @ 5,500/- till 11.08.2010 and thereafter no rent is
being paid by the defendant. Upon the plaintiff no 1 approaching the
defendant on 01.12.2018 for the realization of arrears of rent the same
was refused by the defendant aggrieved by which a legal notice dt
02.01.2019 was issued claiming eviction and arrears of rent which
despite the service has not been complied with the defendant.
15. The plaintiff has relied upon the testimony of PW-1 and have proved on
record Ex PW 1/ 1 to Ex PW 1/ 11 besides proving on record Ex PW 1/
12 which is a copy of passbook of the father of the plaintiff. Thus the
plaintiff has by proving such documents i.e. Ex PW 1/ 1 to Ex PW 1/ 11
has proved on record that father of the plaintiff Sh Pritam Lal Punjani had
in fact purchased the suit property from its previous owner i.e. Sh Jag
Pravesh Anand who was handed over its possession in the year 2001.
Nothing substantial could be extracted from PW -1 to contradict that the
facts that the father of the plaintiff had been vested with the
proprietary/ownership rights with respect to the suit property under Ex
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PW 1/1 to Ex PW 1/ 11. Thus in the considered opinion of the court, the
father of the plaintiff pursuant to execution of Ex PW 1/1 to Ex PW 1/ 11
was in possession of the suit property which fact even in the WS has not
been denied by the defendant. PW-1 in his testimony has deposed that the
defendant was inducted as a tenant in the year 2006 on a monthly rent of
Rs 3,500/- which was enhanced to Rs 5,500/- in August 2009. PW-1 in
support of the aforesaid has placed reliance upon Ex PW 1/ 12 which
entries from A to N shows that periodic payments @ 5,200/- being made
by the defendant to the plaintiff w.e.f 09.02.2009 to 10.07.2009 and
thereafter @ 5,500/- w.e.f. 10.08.2009 to 11.08.2010. It is the defence of
the defendant that there is no relationship of landlord and tenant between
the plaintiff’s father and the defendant and the possession of the suit
property has been handed over to the defendant under the agreement to
sell and thus the defendant’s status is akin to that of an owner.
16. DW-1 in Ex DW 1/A has categorically denied having been inducted as a
tenant by the father of the plaintiff on a monthly rent of Rs 4,500/- pm
which was later enhanced to 5,500/- in May 2010 or his depositing the
rent in the bank account of the father of the plaintiff. However in his
cross examination, DW-1 has clearly admitted his taking the suit property
on rent from the deceased Sh Pritam Lal in the following terms:
“Prior to taking the suit property on rent from the deceased Pritam
Lal I was living in my mothers property at flat no 208A, Motia
Khan.”
17. Thus from the aforesaid, it is clear that the defendant was inducted as a
tenant in the suit property by the father of the plaintiff. Thus the stand of
the defendant taken by him in the WS the effect that there is no
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relationship of landlord and tenant between the parties is clearly belied
by the admission made by DW-1 in his cross examination.
18. It is further the defence of the defendant that he was handed over
possession under Ex DW 1/1 to Ex DW 1/3 i.e. bayana receipt (as per
which the balance sale consideration was to be paid on or before
20.12.2007), receipt vide which an amount of Rs 3,50,000/- was paid by
the defendant to the plaintiff and possession letter. However none of the
documents relied upon by the defendant contains even a reference to the
surrender of the tenancy rights of the defendant and the forfeiture of
tenancy rights of the defendant. Moreover as per Ex DW 1/1, the balance
sale consideration was to be paid on or before 20.12.2007 which even as
per the stand of the defendant in the WS has not been paid till the filing
of the WS i.e. 02.04.2022. Even if the stand of the defendant is to be
believed nothing prevented the defendant from depositing the balance
sale consideration in the bank account of the father of the plaintiff when
the defendant was admittedly depositing the alleged sale consideration in
installments directly in the bank account of the father of the plaintiff as
per Ex PW 1/12. The defendant has not placed on record any
document/notice to substantiate or prove on record the fact that the father
of the plaintiff was ever called upon to accept the balance sale
consideration and to execute the title documents in favour of the
defendant and neither any suit for specific performance has been
instituted by the defendant against the father of the plaintiff, right from
the year 2006 till the present day. So much so, the defendant has not even
filed any counter claim in the present suit seeking specific performance.
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Moreover from the contents of para 5 of the Preliminary objections in the
written statement, it is clear that the defendant was not even aware about
the demise of the father of the plaintiff since he clearly stated that he
gained knowledge about the said fact only from the plaint. In his cross
examination, DW-1 has admitted that he used to fill up the pay in slip of
PNB while depositing the money who when confronted with the bank
pay in slip dt 10.07.2009 has admitted that his wife has stated in such pay
in slip i.e. Ex DW 1/P that the said amount is being deposited towards
rent of the house. Thus Ex DW 1/P demolished the entire story being put
forward by the defendant since the amount being deposited was towards
rent and not towards the balance sale consideration which has been the
stand of the defendant all through out. Moreover, it was unnatural on the
part of the defendant to have not replied to the legal notice i.e. Ex PW 1/
15 having been received by the defendant or to have kept quiet even after
receiving the said legal notice whereby he has been called upon to vacate
the suit property and to clear all the arrears of rent.
19. Thus from the aforesaid facts and testimony of the witnesses, it is
apparent that the jural relationship between the parties remained as
landlord and tenant and the defendant last paid rent on 11.08.2010 @ Rs
5,500/- per month. A perusal of the bank account statement of the father
of the plaintiff i.e. Ex PW 1/12 goes to show that consistent payment of
an amount of Rs 5,200/- & 5,500/- have been made on or before 10 th day
of every month which too have been admittedly paid by the defendant
from his bank account. Thus from the afroesaid, it is clear that tenancy
continued between the parties and rent was being deposited even post the
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execution of Ex DW 1/1 to Ex DW 1/3 as is evident from Ex DW1/P.
The tenancy of the defendant was terminated by the plaintiffs vide Ex
PW 1/ 15 i.e. the legal notice who despite the same has not handed over
possession to the plaintiffs and have neither paid arrears of rent.
20. The only question which requires determination is as to whether the
defendant pursuant to the execution of Ex DW 1/1 to Ex DW 1/3 have
any right to retain possession with respect to the suit property and
whether the relationship between the parties as landlord and tenant stands
terminated by the execution of Ex DW 1/1 to Ex DW 1/3 given the fact
that Ex DW1/1 is unregistered and it was executed on 20.12.2006 i.e.
post the amendment to Section 53 A of the Transfer and Property Act
w.e.f. 24.09.2001 and the insertion of Section 17 (1-A) in the Registration
Act.
21. The position of law with respect to the scope of agreement of sale has
been discussed by the Hon’ble Apex Court in the matter of Suraj Lamp
and Industries Pvt Ltd Vs State of Haryana & Ors
(MANU/SC/1222/2011) as follows:
“Scope of an Agreement of sale
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an
agreement of sale does not, of itself, create any interest in or charge on
such property. This Court in Narandas Karsondas v. S.A. Kamtam and
Anr(1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on,
the property. This is expressly declared in Section 54of the Transfer of
Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR
293. The fiduciary character of the personal obligation created by a
contract for sale is recognised in Section 3 of the Specific Relief Act,
1963, and in Section 91 of the Trusts Act. The personal obligation createdCS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 17/29
by a contract of sale is described in Section 40 of the Transfer of Property
Act as an obligation arising out of contract and annexed to the ownership
of property, but not amounting to an interest or easement therein.”
In India, the word `transfer’ is defined with reference to the word
`convey’. The word `conveys’ in Section 5 of Transfer of Property Act is
used in the wider sense of conveying ownership… …that only on
execution of conveyance ownership passes from one party to another….”
In Rambhau Namdeo Gajre Vs Narayan Bapuji Dhotra [2004 (8) SCC
614] this Court held:
“Protection provided under Section 53A of the Act to the proposed
transferee is a shield only against the transferor. It disentitles the
transferor from disturbing the possession of the proposed transferee who
is put in possession in pursuance to such an agreement. It has nothing to
do with the ownership of the proposed transferor who remains full owner
of the property till it is legally conveyed by executing a registered sale
deed in favour of the transferee. Such a right to protect possession against
the proposed vendor cannot be pressed in service against a third party.”
It is thus clear that a transfer of immoveable property by way of sale can
only be by a deed of conveyance (sale deed). In the absence of a deed of
conveyance (duly stamped and registered as required by law), no right,
title or interest in an immoveable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed
of conveyance (deed of sale) would fall short of the requirements of
sections 54 and 55 of TP Act and will not confer any title nor transfer any
interest in an immovable property (except to the limited right granted
under section 53A of TP Act). According to TP Act, an agreement of sale,
whether with possession or without possession, is not a conveyance.
Section 54 of TP Act enacts that sale of immoveable property can be
made only by a registered instrument and an agreement of sale does not
create any interest or charge on its subject matter.”
22. Thus from the aforesaid judgment it is clear that the Agreement to
Sale/Sell does not confer any right, title or interest in the property.
23. The question as to whether the defendant is entitled to the benefit of
Section 53A of the Transfer of Property Act has been answered by the
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Hon’ble High Court of Delhi in the matter of Anju Chopra & Ors Vs
Vaneeta Khanna & Ors RFA (OS) 117/2015 decided on 25.05.2016:-
“38. Section 17(1A) of the Registration Act provides as follows:
“17. Documents of which registration is compulsory(1) The following
documents shall be registered, if the property to which they relate is
situate in a district in which, and if they have been executed on or after
the date on which, Act No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the Indian Registration Act,
1877 or this Act came or comes into force, namely:-
instruments of gift of immovable property;
******
(1A) The documents containing contracts to transfer for consideration,
any immovable property for the purpose of section 53A of the Transfer of
Property Act, 1882 (4 of 1882 ) shall be registered if they have been
executed on or after the commencement of the Registration and Other
Related Laws (Amendment) Act, 2001 and if such documents are not
registered on or after such commencement, then, they shall have no effect
for the purposes of the said section 53A ******
49. Effect of non-registration of documents required to be registered.–
No document required by Section 17 or by any provision of the Transfer
of Property Act, 1882 to be registered shall-
(a) affect any immovable property comprised therein,
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or
conferring such power; unless it has been registered:
Provided that an unregistered document affecting immovable property
and required by this Act or the Transfer of Property Act 1882, to be
registered may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877, or as
evidence of part performance of a contract for the purposes of Section
53A of the Transfer of Property or as evidence of any collateral
transaction not required to be effected by registered instrument.”
Section 53A of the Transfer of Property Act, 1882 reads as follows:
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“53A. Part performance.–Where any person contracts to transfer for
consideration any immoveable property by writing signed by him or on
his behalf from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty, and the transferee has, in part
performance of the contract, taken possession of the property or any part
thereof, or the transferee, being already in possession, continues in
possession in part performance of the contract and has done some act in
furtherance of the contract, and the transferee has performed or is willing
to perform his part of the contract, then, notwithstanding that 2[***]
where there is an instrument of transfer, that the transfer has not been
completed in the manner prescribed therefor by the law for the time being
in force, the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and persons claiming
under him any right in respect of the property of which the transferee has
taken or continued in possession, other than a right expressly provided by
the terms of the contract: Provided that nothing in this section shall affect
the rights of a transferee for consideration who has no notice of the
contract or of the part performance thereof.”
39. The judgment in Som Dev v. Rati Ram AIR 2006 SC 788 holds that
after the coming into force of the Registration and Other Related Laws
(Amendment) Act, 2001, all documents, “containing contracts to transfer
for consideration in immovable property for the purpose of Section 53A
of the Transfer of Property Act shall be registered if they have been
created after commencement of sub-section 1A (of Section 17) of the
Transfer of Property Act. (sic)” The effect of this amendment – on a joint
reading of Section 17 (1A), Section 49 of the Registration Act and
Section 53A of the Transfer of Property Act-is that the claim to title on
the basis of part performance – under Section 53A of the Transfer of
Property Act is untenable if the Agreement to Sell is unregistered. In the
present case, the Agreement to Sell executed by Judge Chawla in favour
of Vaneeta Khanna, first plaintiff clearly did not create any legal right and
could not have been even considered; in any event it created no rights
under Section 53A and could not have been brought on record by virtue
of Section 49 of the Registration Act.”
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24. The legislature in its wisdom has amended Section 53A of Transfer of
Property Act Act and it came into force on 24.9.2001. The protection
under Section 53A can be availed of only under a registered agreement.
Section 53A of the T.P. Act before amendment recognized part
performance of the contract even though the contract used to be
unregistered and the transferee’s rights to remain in possession was
protected. By the Amendment Act No.48 of 2001, the words “the contract
though required to be registered, has not been registered, or” have been
omitted from the provision. The effect of the amendment is that now if
any person takes possession in pursuance to a contract which is required
to be registered but has not been registered, the transferee has no right to
remain in possession of the property. To give effect to this principle, S. 17
(1A) has accordingly been inserted in the Registration Act of 1908, which
mandates that such contract is now required to be registered. If such a
contract entered into after the amendment is not registered then as per
S.49 of the Act of 1908, the same can neither affect any immovable
property comprised therein nor will it be received as evidence of any
transaction affecting such property or conferring such power. Moreover,
in the present case the defendant has pleaded unregistered agreement and
for invocation of Section 53A after Amendment thereof, the contract must
only be in writing but it must also be registered. Thus, the defendant is not
entitled to the protection afforded under Section 53A of the Transfer of
Property Act.
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25. The Hon’ble High Court of Delhi in the matter of Prashant Goyal Vs
Indranil Wadhwa in AIRONLINE 2020 Del 1771 in identical set of facts
has elaborately dealt with the effect of agreement to sell and has also
elaborately discussed Section 53 A of the Transfer of Property Act
including Section 17 of the Registration Act. Para 12, 16 & 17 of the said
judgment are reproduced for ready reference as follows:
’12. I have perused the judgment of the Trial Court. Trial Court
has decreed the suit on the ground that in the written statement the
Appellant admitted payment of rental amount from time to time and
did not claim that the status of the Appellant was severed as a
tenant completely. Even assuming that the Appellant had entered
into an agreement to sell for purchasing the suit property from the
Respondent and had paid part consideration, at best, the Appellant
could rely on the agreement for two purposes i.e. (i) file a suit for
specific performance seeking execution of the sale deed; and (ii)
claim protection under Section 53A of the Act. It was also an
admitted case that there was no written Agreement to Sell ever
executed between the parties and the defence of the Appellant was
based on an oral agreement. Based on the amendment to Section
17 of the Registration Act, whereby the Registration of an
Agreement to Sell has been made compulsory as well as
amendment to Section 53Aof the Act and the Indian Stamp Act,
1899, the Trial Court concluded that in the absence of a registered
Agreement to Sell the Appellant could not claim protection under
Section 53A of the Act. Based on the proposition of law laid down
in Sudhir Sabharwal vs Rajesh Pruthi 2014 AIR CC 2850 by this
Court that mere Agreement to Sell of immovable property will not
terminate the landlord-tenant relationship, the Trial Court was of
the view that no purpose would be served to put the matter to trial
and passed the judgment, noting that while there was no
admission, however, if the defendant has no legal defence, then
under Order XIV Rule 1(6 CPC, judgment can be straightaway
passed.
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16. The answer to the above question in my view can only be
against the Appellant. The legal position on this aspect is no
longer res integra. Section 17 of the Registration Act was amended
by the Registration and other Related Laws (Amendment) Act,
2001, Act No.48 of 2001, by insertion of Section 1(A) therein and
by virtue of the Amendment, registration of an Agreement to Sell
has been made compulsory with effect from 24.09.2001. Section
17(1-A) reads as follows:-
“Section (1A). The documents containing contracts to transfer for
consideration, any immovable property for the purpose of Section
53A of the Transfer of Property Act, 1882 (4 of 1882) shall be
registered if they have been executed on or after the
commencement of the Registration and other Related Laws
(Amendment) Act 2001 and if such documents are not registered on
or after such commencement (i.e. w.e.f. 24.09.2001), then, they
shall have no effect for the purposes of the said Section 53A.”
17. Therefore, a buyer cannot avail the benefit of Section 53A of
the Act if the agreement to sell is not registered. When a tenant
enters into an agreement to sell for buying the tenanted premises
but the agreement to sell is not in conformity with law, the
relationship continues as landlord- tenant and while the tenant can
seek specific performance, but he acquires no right to retain
possession, till a sale deed is registered in his favour. This has been
clearly held by this Court in Sudhir Sabharwal (supra). The
relevant portion of which is as follows :-
“The plaintiff had filed a suit seeking decree of possession against
the defendant in respect of the premises in dispute. The application
sought decree on the basis of admissions made by the defendant in
his written statement. The plaintiff is a landlord of property No. G-
27/4, Rajouri Garden, New Delhi and its ground floor was let out
to the defendant at the rent of Rs. 25,000/- per month. The plaintiff
issued notice to the tenant on 29.6.2011 followed by a reminder on
11.1.2012 asking them to vacate the premises. But there was no
compliance of the plaintiff’s request therefore the suit was filed to
seek possession as well as damages. The defendant had admitted
the enhanced rent of Rs. 27.500/- from 1.7.2011 and that theCS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 23/29
tenancy period had been extended by another seven months by the
plaintiff. But he also claimed in the written statement that the
plaintiff had agreed to sell the rental premises to the defendant for
a total consideration of Rs. 2,10,00,000/- for which the defendant
had paid bayana/advance payment of Rs. 21,20,000/- i.e. 10% of
the total sale consideration and that the plaintiff had duly executed
receipt in this regard. What follows is that even if the defendant
were to succeed in his suit for specific performance of agreement
to sell, till the execution of a conveyance deed in pursuance to the
decree, if any, in favour of the defendant, the defendant has no
ground in law to save his possession of the premises. The status of
the defendant would continue to be as before i.e. of a tenant whose
tenancy has been determined. In view of the legal position that
“mere agreement to sell of immovable property does not create any
right in the property save the right to enforce the said agreement”
and in view of the preceding discussion that “mere agreement of
sale will not terminate landlord- tenant relationship unless there is
specification to that effect in agreement itself, this court is of the
view that the defendant has no right to occupy the said property”.
26. In view of the elaborate discussion made in the foregoing paras, this
Court is of the view that pursuant to the termination of tenancy carried
out vide Ex PW 1/15 by the plaintiff, the defendant is not entitled to the
protection afforded under Section 53A of the Transfer of Property Act
and accordingly a decree of possession with respect to the suit property
bearing no 127A, Ground Floor, Motia Khan Residential Scheme,
Paharganj, New Delhi-55 is passed in favour of the plaintiffs. Hence, this
issue is decided in favour of the plaintiffs and against the defendant.
27. ISSUE No 2 & 3:
Whether the plaintiff is entitled to a decree for an amount of Rs.
5,50,000/- towards arrears of rent? If so, for what period and atCS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 24/29
what rate?OPPWhether the plaintiff is entitled to interest upon the amount of Rs.
5,50,000/- i.e. on arrears of rent, if so at what period and at what
rate? OPP
28. The onus to prove these issue is upon the plaintiff. While returning
findings on issue no 1 it was held that the jural relationship between the
parties remained as landlord and tenant and the defendant last paid rent
on 11.08.2010 @ Rs 5,500/- per month. The tenancy continued between
the parties and rent was being deposited till the time of execution of Ex
DW 1/P which is post the execution of Ex DW 1/1 to Ex DW 1/3. The
tenancy of the defendant was terminated by the plaintiffs vide Ex PW 1/
15 i.e. the legal notice who despite the same has not handed over
possession to the plaintiffs and have neither paid arrears of rent.
29. The plaintiff in his plaint has stated that the defendant last paid rent @
Rs. 5,500/- per month by way of transfer in the bank account of his
father i.e. Sh Pritam Lal Punjani on 11.08.2010 and thereafter has
neither paid nor tendered the rent and is in arrears thereof. In support of
aforesaid contentions the plaintiff has duly proved Ex PW 1/12 whereby
at points E to N an amount of Rs 5,500/- is being deposited w.e.f.
10.08.2009 every month in the bank account of the father of the
plaintiff. In the cross examination it has been admitted by DW-1 that the
transfer at the aforesaid rate of Rs 5,500/- has been effected from his
bank account bearing no 021135135. During cross examination upon
being confronted with DW-1/P1, it was admitted by DW-1 that the pay
CS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 25/29
in slip was in the handwriting of his wife whereby the deposit is being
made towards house rent. No payment whatsoever has been made by
the defendant after 11.08.2010. Thus the defendant remained in arrears
of rent. Consequent upon the termination of tenancy effected vide Ex
PW 1/15 w.e.f. 10.02.2019, the present suit has been filed by the
plaintiff on 09.08.2019 vide which the plaintiff sought a recovery of
arrears of rent @ 5,500/- w.e.f 10.02.2016 to 09.02.2019. However,
since the suit was filed only on 09.08.2019, the plaintiff is entitled to
arrears of rent for a period of 3 years prior to filing of the present suit
i.e. w.e.f. 07.08.2016 @ 5,500/- as per Article 52 of the Limitation Act
prescribes the period of limitation for arrears of rent to be 3 years from
the date when the arrears become due. Thus, the plaintiff is entitled to
an amount of Rs 1,98,000/- towards arrear of rent for a period of 3 years
prior to the filing of the suit i.e. w.e.f 07.08.2016.
30. Section 34 of CPC provides for grant of interest pendente-lite at any
rate not exceeding 6% and future interest at any rate not exceeding
contractual rate and if there is no contractual rate than not exceeding the
rate at which nationalized banks advance loan.
31. Thus keeping in mind the said provision, interest of justice would be
served if plaintiff is granted simple interest @ 6% per annum w.e.f.
07.08.2016 till the date of passing of the decree. The plaintiff shall also
be entitled to simple interest at the rate of 9% per annum towards future
interest from the date of the passing of the decree till its actual
realization. Hence, these issues are decided in favour of the plaintiffs
and against the defendant.
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32. ISSUE No: 4
Whether the plaintiff is entitled to a decree of damages for the use
and occupation of the suit property? If so, for what period and at
what rate? OPP
33. The onus to prove this issue is upon the plaintiff. The plaintiff in the
plaint has claimed damages calculated at the rate of Rs 90,000/- @ Rs
1,000/- per day w.e.f. 10.02.2019 till the date of actual handing over of
the vacant physical possession of the suit property to the plaintiff. In
support of the aforesaid claim for damages, the PW-1 has placed
reliance upon Mark B i.e. valuation report of the suit property. However
the said report is only qua the valuation of the suit property and does
not mention anything about the letting out value of the same. Even the
plaintiff has failed to prove the said valuation report by calling any
witness. The plaintiff has not led the evidence of any witness nor has
produced on record any lease deed of similar property situated in the
vicinity of the suit property. Thus the plaintiff has failed to prove that
consequent upon the termination of lease effected vide Ex PW 1/ 15
w.e.f. 10.02.2019, the plaintiff is entitled to damages @ 1,000/- per day.
However in view of the termination of the tenancy carried out vide legal
notice dt 02.01.2019 (Ex PW 1/15) and since the defendant despite the
same since continues to remain in possession and occupation of the
tenanted premises, the plaintiff is entitled to mense profits.
34. In view of the authoritive pronouncement made in the case of State
Bank of Bikaner & Jaipur Vs I S Ratta & Ors 120 (2005) DLT 407,
National Radio & Electrical Ltd Vs Motion Pictures Association 122
CS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 27/29
(2005) DLT 629 and Motor & General Finance Ltd vs Nirulas & Ors
92 (2001) DLT 97 where the proposition of law has been settled to the
effect that the courts are well entitled to take judicial notice of increase
of rentals of the area in which the property is situated.
35. In M/s M C Agrawal HUF vs M/s Sahara India & Ors 183 ( 2011) DLT
105 it has been held that in case of commercial tenancy, unless there is
evidence to show to the contrary, an increase of 15% per year can
ordinarily be taken to show the mesne profits payable although the
landlord does not lead any credible evidence to prove the rate of rent
during the period for which mesne profits have to calculated. In the
case at hand, the tenancy of the defendant came to an end on
10.02.2019. Thus the defendant became an unauthorized occupantant in
respect of the tenanted premises w.e.f. 10.02.2019 who is accordingly
liable to pay mesne profit till the time he actually vacates the tenanted
premises. Keeping in view the overall facts and circumstances interest
of justice would be served in case the plaintiff is granted mense profit
@ 10% increase of rent per year. Accordingly, this issue is decided in
favour of the plaintiff and against the defendant.
36. Issue no 5 :
Whether the plaintiff is entitled to a decree of permanent
injunction, as prayed for? OPP
37. In view of the findings returned on issue no 1, the plaintiff is entitled to
a decree of permanent injunction and the present issue is decided in
favour of the plaintiff and against the defendant.
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38. Accordingly, the suit of the plaintiff stands decreed and the plaintiff is
held entitle to a decree of possession in respect of LIG Flat no 127A,
Situated at Ground Floor, Motia Khan Residential Scheme, Pahar Ganj,
New Delhi 110055 as per the site plan Ex PW 1/19 since there is no
dispute with respect to the identity of the property. The plaintiff is also
entitled to a decree of arrears of rent w.e.f. 07.08.2016 together with
interest @ 6% per annum from the said date till the date of passing of the
decree. The plaintiff is also entitled to interest @ 9% per annum from the
date of passing of a decree till its actual realization. The plaintiff also
held entitled to a decree of damages @ 10% increase of rent per year
w.e.f. 10.02.2019 till the date of handing over the actual possession of the
suit property to the plaintiff together with interest thereupon @ 9% per
annum. The plaintiff also held entitled to a decree of permanent
injunction and defendant is restrained from sub letting, assigning or
parting with possession of the suit property or creating 3 rd party rights etc
in the suit property in any manner.
39. Cost of the suit is also awarded to the plaintiff.
40. Decree sheet be prepared accordingly on filing of deficient court fees, if
any.
41. File be consigned to record room after due compliance.
Digitally signed by SACHIN Announced in the Open Court (Sachin Sood) SACHIN SOOD SOOD Date: 2025.04.29 17:29:46 on 29.04.2025. DJ-01 (Central) +0530 THC, Delhi. CS No 780/2019 Vinod Kumar Punjani Vs Shri Rajiv Arora Page No 29/29