Delhi District Court
Dharamvir Sharma vs Ashu Bansal on 21 May, 2025
-1-
IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT SAKET
COURTS, NEW DELHI
In the matter of:
CS DJ : 11827/2016
SHRI DHARAMVIR SHARMA
S/o Late Sh. Nem Chand Sharma
R/o A-118, First Floor,
New Friends Colony,
New Delhi- 110 065. ......Plaintiff
Versus
SHRI ASHU BANSAL
S/o Late Sh. Babu Ram
Address of the 'premises in suit":
Shop Bearing Private No. 2,
House no. 2/27C, Sarai Jullena,
Okhla Road, New Delhi-110 025
Residential Address:
1198/13, Govind Puri,
Near Kalkaji,
New Delhi- 110 019. .....Defendant
Date of Institution : 06.10.2016
Date reserved for judgment : 09.05.2025
Date of judgment : 21.05.2025
DECISION : DECREED
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
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SUIT FOR POSSESSION, RECOVERY OF ARREARS OF
RENT AND MESNE PROFITS/ DAMAGES FOR USE AND
OCCUPATION WITH COSTS
JUDGMENT
1. This is a suit filed by plaintiff against the defendant
for possession, recovery of arrears of rent and mesne
profits.
2. CASE OF PLAINTIFF
Brief facts of the case, as culled out from the plaint
are as follows:
2.1) That the plaintiff is the owner / landlord of the
property bearing no.2/27-C, Sarai Julena, Okhla Road,
Near Surya Hotel, New Delhi-110025 (hereinafter referred
to as “said property”).
2.2) The defendant was inducted as a tenant by the father
of the plaintiff for commercial purposes in one shop
admeasuring 220 sq. fts bearing Private no. 2, in the
building bearing municipal no. 2/27-C, Saria Julena, Okhla
Road, Near Surya Hotel, New Delhi-110 025 (hereinafter
referred to the “suit property”).
2.3) On the death of the father of the plaintiff Sh. Nem
Chand Sharma, the plaintiff became the owner/landlord of
the said property including the suit property.
CS DJ 11827/2016
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2.4) After death of the father of the plaintiff, the
defendant started paying the rental in the suit property to
the plaintiff which was also enhanced from time to time by
mutual consent. The defendant paid the last rent in the
month of April 2016 to the plaintiff @ Rs.9,460/- per
month by way of cheque bearing no. 566462 dated
30.04.2016 drawn on SBI, New Delhi.
2.5) The defendant was running his business under the
name and style of M/s Bansal Stores from the suit
property. The tenancy commenced on first day of each
calender month.
2.6) Despite repeated requests of the plaintiff, the
defendant has failed to pay the rent for the period
01.05.2016 onwards.
2.7) The plaintiff sent a legal notice to the defendant on
13.06.2016 terminating the tenancy and demanding arrears
of rent. Despite receiving the notice, the defendant failed
to pay the rent and to vacate the property and is in illegal
occupation of the said property. Hence, the present suit
filed by plaintiff against the defendant claiming arrears of
rent of Rs.18,920/- @ Rs.9460/- from 01.05.2016 till
30.06.2016 i.e. the date of termination of tenancy, mesne
profits at market rate of Rs.20,000/- per month from
01.07.2016 till the handing over the possession of the
property and injunction against the defendant fromSHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
-4-creating third party rights in the suit property.
3. CASE OF THE DEFENDANT
The defendant filed his Written Statement denying
the averments in the suit and stating as follows :
3.1) The plaintiff is not the landlord or the owner of the
suit premises. The suit is bad for non-joinder of necessary
parties as property was let out to M/s Babu Ram & Sons,
which is sole proprietorship of the father of defendant, by
M/s Kendri Sons Pvt. Ltd. through its Director Smt.
Kendri Devi and therefore, all the LRs and successors of
Kendri Devi and Directors of M/s Kendri Sons Pvt. Ltd.
are the necessary parties to the suit. It is averred that since
the suit property was rented out by M/s. Kendri Sons Pvt.
Ltd. through its Director Smt. Kendi Devi Sharma to M/s.
Babu Ram and Sons, the plaintiff has no right, title or
interest in the suit property.
3.2). Since the plaintiff has averred that Sh. Nem
Chand was the owner of the property, the Lrs of Sh. Nem
Chand are necessary parties to the present suit. It is
averred that Sh. Nem Chand Sharma died leaving behind
his two sons i.e. the plaintiff and his brother Sh. Pawan
Kumar Sharma and one daughter. Sh. Pawan Kumar
Sharma also expired and left behind his wife, sons and
three daughters and thus they are necessary parties to the
present suit. It is averred that the legal heirs of the brother
CS DJ 11827/2016
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of the plaintiff as well as the sister of the plaintiff have
staked their claims in the suit property.
3.3). The suit is liable to be dismissed for non
impleadment of M/s Babu Ram & Sons i.e. the
proprietorship firm of deceased father of the defendant to
whom the property was let out vide lease agreement dated
10.02.1987. It is stated that the suit property was originally
rented out to M/s. Babu Ram and Sons and now the
defendant is carrying his business from the said shop.
3.4). The site plan filed by the plaintiff is incorrect
as the shop no.2 stated to be suit shop is not shown in the
site plan. It is stated the site plan does not show the correct
measurement and specification of the suit shop as well as
the adjoining shops.
3.5) The plaintiff was receiving rent from the
defendant by harassing and threatening him against which
several complaints were made by the defendant, however,
due to the influence of the plaintiff, no action was taken.
The defendant paid the amount to the plaintiff without
admitting him as landlord or owner. Even the amount was
increased by the plaintiff by threatening the defendant.
3.6) The tenancy of the defendant is not month to
month but a substantial amount was paid by M/s Babu
Ram and Sons to M/s Kendri Sons Pvt. Ltd. as Pagri
therefore the defendant continued to use, occupy and
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
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possess the suit property till date without paying any rent.
The plaintiff was collecting ‘hafta’ from the defendant and
not rent.
3.7). Since, the legal heirs of the brother of the
plaintiff also started raising objections for payment of the
amount to the plaintiff and raising their claims over the
suit property, the the defendant stopped paying any amount
to the plaintiff. Even the sister of the plaintiff is raising
claims in the suit property.
4. REPLICATION :
The plaintiff filed replication denying the averments in
the WS and reiterating the contents of the plaint. It is averred
that on the death of Sh. Babu Ram, the defendant became
tenant of the suit property being the successor to the
tenancy rights of his deceased father. It is averred that the
defendant is therefore estopped u/s 116 of the Evidence
Act. Rest of the contents of the replication are merely
argumentative.
5. ISSUES:
From the pleadings of the parties following issues
were framed by the Ld. Predecessor of this Court vide order
dt 02.08.2017:
1. Whether the plaintiff is entitled to recover
possession of shop measuring 220 sq feet bearing
municipal no: 2/27C located at Sarai Jullena, OkhlaCS DJ 11827/2016
-7-Road, New Delhi as shown in red color in the site plan
from the defendant on the basis of the grounds taken in
the plaint ? OPP
2. Whether the plaintiff is entitled to recover an amount
of Rs. 8920 on account of arrears of rent or any other
amount from the defendant on the basis of the grounds
taken in the plaint ? OPP
3. Whether the plaintiff is entitled to recover from the
defendant mesne profits / damages for unauthorized
user and occupation of property described as shop
measuring 220 sq feet bearing municipal no: 2/27C
located at Sarai Jullena, Okhla Road, New Delhi @
20,000/ per month or at any other rate w.e.f.
01.07.2016 till the institution of the suit ? OPP
4. Whether the plaintiff is entitled to mesne profits /
damages @ Rs. 20,000/ per month or at any other rate
for unauthorized user and occupation of the property
from the defendant after the institution of the suit and
till handing over of the actual physical vacant peaceful
possession of the property described as shop measuring
220 sq feet bearing municipal no: 2/27C located at
Sarai Jullena, Okhla Road, New Delhi ? OPP
5. Whether the plaintiff is entitled to interest @ 12%
per annum with quarterly rests or at any other rate
pendent lite and future on the decreetal amount ? OPPSHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
-8-
6. Whether the suit of the plaintiff is bad for nonjoinder
of necessary party i.e. M/s Kendri Sons Pvt Ltd
including the legal heirs of Smt Kendri Devi & M/s
Babu Ram & Sons ? OPD
7. Whether the suit for possession, arrears of rent and
mesne profits is not maintainable against the defendant
as the plaintiff is neither the landlord nor the owner of
the property described as ? OPD
8. Whether the suit is instituted for possession and
recovery as instituted against the defendant is without
any cause of action ? OPD
9.Relief.
6. EVIDENCE LED BY PLAINTIFF
Plaintiff in support of his case examined himself as
PW-1. He tendered his evidence by way of affidavit
EX.PW1/X. He relied on the following documents :
i. Site plan of property -Ex.PW1/A
ii. Office copy of notice dated 13.06.2016- -Ex.PW1/B
iii. Postal Receipt -Ex.PW1/C
iv. Copy of notice u/O 7 R 5 CPC -Ex.PW1/D
v. Copy of notice u/O 7 R 8 CPC -Ex.PW1/E
vi. Postal receipts -Ex.PW1/F
vii. Postal receipts -Ex.PW1/G
CS DJ 11827/2016
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He was duly cross-examined by Ld. Counsel for
defendants at length.
7. EVIDENCE LED BY THE DEFENDANT
Defendant in support of his case examined himself
as DW-1. He tendered his evidence by way of affidavit
EX.DW1/A. He relied upon the following documents:
i. The agreement dt 10.02.1987 -Ex.DW1/1
ii. Various Rent Receipts -Ex.DW1/2 to
-Ex.DW1/15
iii. MCD receipt for registration of shop -Ex.DW1/16
He was cross-examined by Ld. Counsel for plaintiff
at length.
8. Defendant also examined Sh. Kamal Bansal as
DW2. He tendered his evidence by way of affidavit
EX.DW2/A.
He was duly cross-examined by Ld. Counsel for
plaintiff.
9. ARGUMENTS OF LD. COUNSEL FOR PLAINTIFF
9.1) It is argued by Ld. Counsel for plaintiff that the
defendant has admitted that he has been paying rent to the
plaintiff qua the suit property. It is submitted that in the reply
dated 23.09.2017, in response to the notice of the plaintiff
issued u/O 12 Rule 5 CPC, the defendant has categorically
admitted the payment of rent to the plaintiff by cheques. It is
further submitted that even in the cross-examination dated
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
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03.07.2019, the defendant has admitted the payment of rent
by cash and by cheque to the plaintiff between 2011 to 2016.
It is argued that the W.S states that the defendant continued in
possession of the suit property after the demise of his father
and, therefore, by admitting the payment of rent to the
plaintiff, the defendant in effect admits that he had attorned to
the plaintiff as the landlord. It is submitted that admissions
made in pleadings are admissible u/s. 58 of Indian Evidence
Act, 1872 and are binding on the party and no proof is
required qua such admitted facts. It is further submitted that
the burden of proof, if any lay on the defendant to displace the
admissions made by him, however, no such evidence was led
by him. In support of his contention, the Ld. Counsel for
plaintiff has placed reliance upon the judgment titled as
Nagindas Ramdas Vs Dalpatram Ichharam, (1974) 1 SSC 242
and Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal
Vinayak Gosavi, AIR 1960 SC 100.
9.2) The counsel further argues that the contention of the
defendant that the suit is not maintainable as the plaintiff is
not sole owner of the property, is also of no merit as in a suit
between landlord and tenant, the imperfect title of the plaintiff
in the suit property is irrelevant in a suit for eviction and the
defendant cannot be allowed to raise such a plea and if it is
proved that the plaintiff is the landlord, the suit is liable to be
decreed. He further argues that by virtue of section 116 of the
CS DJ 11827/2016
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Evidence Act 1872, the defendant is estopped from denying
that the plaintiff is his landlord. In support of his contention,
the Ld. Counsel for plaintiff has placed reliance upon the
Judgment titled as Puran Chand Aggarwal Vs. Lekh Raj,
(2014) 6HCC (Del) 233 and Sanjay Singh Vs. Corporate Vs.
M/s. Corporate Warranties Pvt. Ltd., 2013 SCC Online Del
3535.
9.3) The counsel submits that the defendant has falsely
alleged that the legal heirs of the brother of the plaintiff and
the other legal heirs of the father of the plaintiff are raising
claims in the suit property. The defendant has failed to lead
any evidence to prove his claims. He further submits that
though the said allegations are denied by the plaintiff yet it is a
settled law that consent of the co-owners to file the suit is to
be presumed to have been obtained unless it is shown that no
co-owners are not agreeable. He argues that since the
defendant has failed to lead any evidence in this regard, the
consent of other co-owners, if any, is to be presumed to have
been given. In support of his contention, the Ld. Counsel for
plaintiff has placed reliance upon the judgment titled as Pal
Singh Vs. Sunder Singh (1989) 1SCC 444 and India
Umbrella Mfg. Co. Vs. Bhagabandei Agarwalla, (2004) 3
DCC 178.
9.4) It is further argued that the defendant has relied upon
the unregistered lease deed dated 10.02.1987 executed
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
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between M/s Kendri Sons Pvt. Ltd. & M/s Babu Ram & sons.
However, in the cross-examination dated 03.10.2017, it was
stated by the plaintiff that the said lease deed as well as the
other receipt of rent do not bear the signatures of Smt. Kendri
Devi. The said fact remain unrebutted by the defendant. The
defendant failed to prove the said receipts and the lease
agreement as no evidence was led in this regard. It is
submitted that even otherwise an unregistered lease deed
cannot be looked into as evidence and therefore, the
objections of the defendant qua the non impleadment of
necessary parties i.e. the company and L.Rs of Kendri Devi,
is liable to be dismissed. In support of his contention, the Ld.
Counsel for plaintiff has placed reliance upon the judgment
titled as Chander Mohan Arora Vs. Sunil Jain 2004 (111) DLT
462.
9.5) It is further argued that the defendant has disputed the
correctness of the site plan filed by the plaintiff as Ex.PW1/A,
however, has failed to file any site plan to rebut site plan of
the plaintiff. In fact it was admitted by defendant no.1 in his
cross-examination dated 03.07.2019 that the defendant has not
got any site plan prepared nor has got the site measured. It is
argued that in these circumstances, the site plan filed by the
plaintiff is to be deemed to be correct. In support of his
contention, the Ld. Counsel for plaintiff has placed reliance
upon the judgment titled as R.K. Bhatnagar Vs. Sushila
CS DJ 11827/2016
– 13 –
Bharwava, 1986 SCC OnLine Del 69.
9.6) It is further argued that the defendant has denied the
landlord tenant relationship with the plaintiff, however, has
failed to cross-examine the plaintiff in this regard. It is
submitted that failure of the defendant to cross-examine the
plaintiff on the material points of defence of the defendant
would lead to the conclusion that he believed that the
testimony of the defendant cannot be disputed at all. In
support of his contention, the Ld. Counsel for plaintiff has
placed reliance upon the judgment in case titled as Vinod
Singh Vs. Phutori Devi, 2006 SCC OnLine Del 182.
9.7) It is submitted that the defendant has denied the receipt
of the legal notice of termination of tenancy. He submits that
an application u/s 151 CPC was filed to bring the said legal
notice and the postal receipts on record, which is still pending
adjudication. Ld. Counsel for plaintiff submits that the address
on which the notice was served is the same address on which
the summons in the present suit was served upon the
defendant and therefore, there is no possibility of non service
of the said legal notice. It is submitted that section 27 of the
General Clauses Act, applied in the present case and the
presumption is to be raised that the legal notice was duly
served and the burden was on the defendant to show that it
was not received. In support of his contention, the Ld.
Counsel for plaintiff has placed reliance upon the judgment
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
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titled as Kulbhushan Goel and Ors. Vs. Brij Mohan Goel,
(2009) ILR 7 Delhi 661.
9.8) It is further argued that even if it is assumed that the
defendant is not served with the legal notice, the service and
the summons in the suit itself is deemed to be a notice of
termination. It is submitted that in the cross-examination dated
03.07.2019, the defendant has admitted receipt of summons
on his shop. In support of his contention, the Ld. Counsel for
plaintiff has placed reliance upon the judgment titled as
Jeevan Diesels & Electrical Ltd. Vs. Jasbir Singh Chadha
(HUF) 2011 (182) DLT 402.
9.9) It is further argued that the defendant has not
denied the non payment of rent and even the last payment of
Rs.9,640/- for the month of April 2016 is not denied. He
submits that since the plaintiff is proved to be the landlord and
the tenancy stands lawfully terminated and further since last
paid rent is Rs.9,640/-, the plaintiff is entitled to recover the
possession of the suit property and the plaintiff is entitled the
arrears of rent amounting to Rs.18,920/- from 01.05.2016 up
till 30.06.2016 (date of termination of tenancy).
9.10) He submitted that since the tenancy was duly
terminated w.e.f. 01.07.2016, therefore, the plaintiff is entitled
to mesne profits/ damages for unauthorized use @
Rs.20,000/- per month from 01.07.2016 onwards. It is
submitted that in the cross-examination dated 26.07.2019, the
CS DJ 11827/2016
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plaintiff has put various questions to the defendant qua the
location of the suit property and has proved that the suit
property is located near the famous hospitals and hotels,
therefore, it is clear that the same could be easily rented out @
Rs.20,000/- per month. It is further submitted that even
judicial notice of the increase in the rent amount can be taken
by the court. In support of his contention, the Ld. Counsel for
plaintiff has placed reliance upon the judgment titled as M.C.
Agarwal HUF Vs. Sahara India 183 (2011)DLT 105 and Sneh
Vaish Vs. State Bank of Patiala, 2012 SCC Online Del 1194.
9.11). Lastly as regards the claim of interest @ 12%
per annum, the Ld. Counsel has placed reliance upon the
judgment in Sneh Vaish Vs. State Bank of Patiala, 2012 SCC
Online Del 1194.
10. ARGUMENTS OF LD. COUNSEL FOR
DEFENDANT
10.1) It was argued by Ld. Counsel for defendant
that the plaintiff has miserably failed to prove his
ownership of the suit property or that there is any landlord
or tenant relationship between the Plaintiff and the
defendant. No document or evidence has been led in this
regard nor any other witness is examined to prove the
same. He argues that no document has been filed by the
Plaintiff to prove his ownership in the property No. 2/27-
C, Sarai Jullena, Okhla New Delhi. In this regard, Ld.
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 16 –
Counsel for defendant has placed reliance upon the cross-
examination of the plaintiff dt 03.10.2017.
10.2). It was argued that the suit is not maintainable at
the instance of the plaintiff as the property in question was
rented by M/s. Kendri Sons Pvt. Ltd and the defendant has
proved the lease deed dt 10.02.1987 Ex.DW1/1 and rent
receipts DW1/2 to Ex.DW1/13, in this regard. He further
argued that the plaintiff has not put even a single question to
the defendant with regard to the lease deed dt 10.20.1987
Ex.DW1/1 and the rent receipts Ex.DW1/2 to Ex.DW1/13,
despite specific statement made in this regard in his chief
examination.
10.3). It is further argued that even if the father of the
plaintiff Sh. Nem Chand Sharma is believed to be the original
owner of the suit property, even then, the suit is not
maintainable at the instance of the plaintiff as the other L.Rs
of Sh. Nem Chand Sharma have been claiming stakes in the
suit property and since they are the co-heirs of Sh. Nem
Chand Sharma, they are the necessary parties in the suit. He
submits that even no partition deed or family settlement was
produced by him to show his exclusive right in the suit
property.
10.4). It is further submitted that even the site plan of
the suit property filed by the plaintiff is incorrect as the shop
no. 2, as alleged in the plaint, is not shown in the site plan. It is
CS DJ 11827/2016
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submitted that the site plan shows the property no. 2/1 and
2/27, whereas the plaintiff claims his right in the property no.
2/27C. He further argues that even the measurement of the
suit property as mentioned by the plaintiff in his plaint are
incorrect. He argues that different measurements of the suit
property have been stated by the plaintiff in his plaint,
legal notice dt 13.06.2016 and application u/o. 39 rule 10
CPC and thus the plaintiff has failed to establish the
identity of the suit property.
10.5) He further argued that the legal notice
Ex.PWI/B relied upon by the plaintiff, was issued to one
Rajender Aggarwal and not to the defendant and, therefore,
the plaintiff has failed to prove the legal notice dt
13.06.2016 and, therefore, has failed to prove the
termination of the tenancy as alleged.
10.6) He argues that the Plaintiff has further failed
to prove the fact that any rent was payable or paid by the
defendant to the Plaintiff. It is submitted that the plaintiff
has failed to prove any rent receipts qua the suit property
and since no rent has been paid by the defendant, the
plaintiff cannot be said to be the landlord of the defendant.
10.7). It is further argued that the plaintiff has also
failed to prove the prevailing rate of rent and, therefore, is not
entitled to recover the mesne profits at the rate claimed in the
plaint. He argues that even as to the rate of interest, the
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 18 –
plaintiff has claimed different rates of interest in his legal
notice and the plaint and no proper answer was given by the
plaintiff when question was put to him in his cross-
examination and, therefore, he has even failed to prove that he
is entitled to interest @ 12% p.a.
10.8). It is further argued that the Plaintiff also failed
to prove the fact that the defendant is liable to pay
damages @ Rs. 20,000/- or 50,000/- p.m. for use of the
shop. He submits that no notice was ever served to the
Defendant.
10.9). It is further argued by Ld. Counsel for the
defendant that the plaintiff has to stand on his own legs and
cannot rely on the weakness of the case of the defendant. In
support of his contentions, he has relied upon the judgments
titled as Dhapu Bai and Others vs. Kundu Mg (Joint Venture),
Delhi and Another – 2023 SCC OnLine MP 6880 and Ajit
Singh vs. Prem Singh – 2011 SCC OnLine P&H 1552.
10.10). It was argued by Ld. Counsel for defendant that
the suit property is a piece of encroached land and the
property no. 2/27-C does not exists in papers.
11. I have heard the arguments of Ld. Counsel for both the
sides and gone through the record including the judgments
cited by both the sides and given my thoughtful consideration
to the same.
CS DJ 11827/2016
– 19 –
12. ISSUE WISE FINDINGS:
12.1. Issue No. 1: Whether the plaintiff is entitled to recover
possession of shop measuring 220 sq feet bearing
municipal no: 2/27C located at Sarai Jullena, Okhla
Road, New Delhi as shown in red color in the site plan
from the defendant on the basis of the grounds taken in
the plaint ? OPP
Issue no. 6. Whether the suit of the plaintiff is
bad for nonjoinder of necessary party i.e. M/s Kendri
Sons Pvt Ltd including the legal heirs of Smt Kendri
Devi & M/s Babu Ram & Sons ? OPD
Issue no.7. Whether the suit for possession,
arrears of rent and mesne profits is not maintainable
against the defendant as the plaintiff is neither the
landlord nor the owner of the property described as ?
OPD
Issue no. 8. Whether the suit is instituted for
possession and recovery as instituted against the
defendant is without any cause of action ? OPD
Since the above issues are interconnected and can be
decided by common reasoning, the same are dealt with
together hereunder:
12.1.1). It is the case of the plaintiff that he is
owner of the suit property by virtue of inheritance from hisSHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 20 –
father, who was originally the owner thereof. It is his case that
after the demise of his father, defendant started paying rent to
him by way of cheques which was also periodically increased,
however, from 01.05.2016 onwards, the defendant stopped
paying the rent whereafter the legal notice of termination of
tenancy dt 13.06.2016 was served upon him but despite
receipt of the same, the defendant neither paid the rent nor
vacated the suit property.
12.1.2). On the other hand, the defence of the defendant is
as follows:
i). Sh. Nem Chand Sharma i.e. father of the plaintiff was
not the owner of the suit property and the suit property was
leased out by M/s. Kendri Sons Pvt. Ltd through its Director
Smt. Kendri Sharma to the proprietorship firm of the father of
the defendant namely M/s. Babu Ram and Sons and,
therefore, the plaintiff has no locus to file the present suit.
ii). Without prejudice to his above grounds of defence, it
has been averred that the other L.Rs of Sh. Nem Chand
Sharma are also staking claims in the suit property and,
therefore, the present suit is not maintainable at the instance
of the plaintiff alone as the other L.Rs are necessary parties to
the suit.
iii). His father i.e. Sh. Babu Ram had paid a substantial
amount to M/s. Kendri Devi and Sons Pvt. Ltd as ‘Pagri’ due
to which the defendant continued to use, occupy and possessCS DJ 11827/2016
– 21 –
the premises till date without paying any rent.
iv). The defendant has not paid rent to the plaintiff but the
plaintiff was collecting the same as ‘Hafta’ under threat.
v). The plaintiff has filed the incorrect site plan of the suit
property and there is no shop shown as shop no.2 in the site
plan. Also the measurement of the suit property are incorrect.
12.1.3). As regards the locus of the plaintiff to file the
present suit, the defendant has averred that the plaintiff is not
the owner of the suit property and the property was leased out
by M/s. Kendri Devi and Sons Pvt. Ltd. In support of his
defence, the defendant has relied upon Ex.DW1/1 i.e. Copy of
the lease deed dt 10.02.1987 and rent receipts DW1/2 to
Ex.DW1/13. However, the said lease agreement and rent
receipts were denied by the plaintiff and no evidence was led
by the defendant to prove the same. A question was put to the
plaintiff in his cross-examination dt 03.10.2017 as to the
signatures of Smt. Kendri Sharma on the said lease deed.
However, the plaintiff has categorically denied the same and
stated that the signatures are not that of his mother-Smt.
Kendri Devi. Despite that the defendant did not lead any
evidence to prove the signatures of Smt. Kendri Devi Sharma,
nor the original of the same was produced before the Court.
Further the rent receipts Ex. DW1/2 to Ex.DW1/7, Ex.DW1/9,
Ex.DW1/10 and Ex.DW1/11, filed by the defendant are in the
name of M/s. Kendri Devi and Sons Pvt. Ltd whereas
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 22 –
Ex.DW1/8, Ex.DW1/12 & Ex.DW1/13 are in the name of
Smt. Kendri Sharma and the execution of the receipts in
different names remains unexplained. Also, the plaintiff in his
cross-examination dt 03.10.2017 has denied the signatures of
Smt. Kendri Sharma on the said receipts. No evidence has
been led by the defendant to prove the said receipts. Thus it is
clear that the defendant has failed to prove that the suit
property was leased out by M/s. Kendri Sons Pvt. Ltd to M/s.
Babu Ram and Sons.
12.1.4). With respect to the second leg of arguments of
the defendant, which has been presented in defence without
without prejudice to the above contentions, it is important to
take note of the law laid down by Hon’ble High Court of
Delhi in the judgement cited as Puran Chand Aggarwal Vs.
Lekh Raj, (2014) 6 HCC (Del) 233 and Sanjay Singh Vs.
Corporate Vs. M/s. Corporate Warranties Pvt. Ltd., 2013 SCC
Online Del 3535. It was held that a suit filed by co-owner/co-
heir of property against a tenant, is maintainable even if the
same has been filed by only one of the co-heir of the property.
It was further held that the consent of the co-owners is to be
presumed to have been obtained unless it is shown that co-
owners are not agreeable. It was also observed by the Hon’ble
Court that the imperfect title of the plaintiff cannot be raised
as a defence by the tenant in an eviction case unless a
declaration of title has been sought by the plaintiff. The
CS DJ 11827/2016
– 23 –
relevant part of the judgment in Puran Chand Aggarwal
(supra) is reproduced hereunder:
“23. Another plea raised by the petitioner is that the other LRs
of the deceased father Sh.Ramji Lal have not become parties.
It is settled law that it is not necessary for them to become
parties in the eviction petition as they have no interest in the
tenanted shops which have come into the share of the
respondent. There is no affidavit on behalf of other co-owners
to contradict the claim of the respondent. It is sufficient if the
LRs of the deceased, by virtue of title become owner and
landlord in the tenanted premises and it is not necessary to
bring on record each and every legal heir of the deceased in the
absence of contrary evidence produced by the tenant. In the
present case, neither any such document is available nor is any
argument addressed in this regard. Therefore, this issue is also
not a triable issue.
24. (i) xxxxxx
(ii) xxxxxx
(iii) In India Umbrella Manufacturing Co. and Ors. v.
Bhagabandei Agarwalla (Dead) by L.R.s and Ors., AIR 2004
Supreme Court 1321, the Supreme Court observed that one of
the co-owners can file a suit for eviction of a tenant in the
property generally owned by the co-owners and this principle
was based on doctrine of agency. One co-owner filing a suit
for eviction against the tenant does so, on his own behalf in his
own right and as an agent of the other co-owners. The consent
of other co-owners is assumed as taken unless it is shown that
the other co-owners were not agreeable to eject the tenant.
(iv) In Col. Inderjeet Singh v. Mr. Vikram Singh & Anr., 194
(2012) DLT 209, it was observed that it is a settled principle of
law that one of the co-owners can file a suit for eviction of
tenant in a property generally owned by the co-owners. (also
see M/s. India Umbrella Manufacturing Co. and Others vs.
Bhagabendei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla
and Ors. AIR 2004 SC 1321, paragraph 6 cited Sri Ram
Pasricha vs. Jagannath and Others, 1977 1 SCR 395;
Dhannalal vs. Kalawatibai and Others, AIR 2002 SC 2572). A
co-owner filing a suit for eviction does so on his own behalf
and in his own right and as an agent of other co-owners. The
consent of other co-owners is assumed to be taken unless, it is
shown that other co-owners were not agreeable to eject the
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 24 –
tenant and the suit was filed in disagreement.
In the present case, the suit was preferred by the plaintiff
himself. One of the co-owners, cannot withdraw his consent so
as to prejudice the other co-owner. The suit once filed, the
rights of the parties stand crystallized on the date of the suit
and the entitlement of the co-owners to seek ejectment must be
adjudged by reference to the date of institution of the suit. (See
also Mohinder Prasad Jain vs. Manohar Lal Jain, AIR 2006 SC
1471, paragraphs-7 & 8).
(v). xxxxx
(vi).xxxxx
(vii).xxxx
25-33. xxxx
34. It is settled law that in the context of the Act what appears
to be the meaning of the term “owner” is that vis-à-vis the
tenant the owner should be something more than the tenant.
The position in law is that the “ownership” of the landlord for
the purpose of maintaining a petition under Section 14(1)(e) of
the Act is not required to be an absolute ownership of the
property, and that it is sufficient if the landlord is a person who
is collecting the rent on his own behalf. The imperfectness of
the title of the premises can neither stand in the way of an
eviction petition under Section 14(1)(e) of the Act, nor can the
tenant be allowed to raise the plea of imperfect title or title not
vesting in the landlord and that too when the tenant has been
paying the rent to the landlord. The tenant inducted by landlord
is estopped and cannot dispute the title of his landlord in view
of the provisions of Section 116 of the Indian Evidence Act
without there being any subsequent change in the situation…..”
The relevant part of the judgment in Sanjay Singh
(supra) is reproduced hereunder:
“28. ……….Similarly, it is the settled position in law that in
a suit between landlord and tenant, it is only the title as
landlord which is relevant and not the title as owner. As far
back as in Sri Ram Pasricha Vs. Jagannath (1976) 4 SCC 184
it was held that under the general law, in a suit between
landlord and tenant, the question of title to the leased
property is irrelevant. Recently also, in State of Andhra
Pradesh Vs. D. Raghukul Pershad (2012) 8 SCC 584 it was
held that relief of eviction of a tenant is not based on the title
CS DJ 11827/2016
– 25 –
of the landlord to the leased premises and even if an
averment to the said effect, of landlord being owner, is made
in the plaint, as long as no relief of declaration of title is
claimed and only the relief of eviction of tenant on the
ground that lease has come to an end is claimed, the Court is
not called upon to decide the question of title.”
12.1.5) Though the defendant pleads that the other
L.Rs of Sh. Nem Chand Sharma are staking their claims in the
suit property and are demanding rent from him, no evidence
to that effect has been led. In the cross-examination dt
26.07.2019, the defendant i.e. DW1 has also denied the
receipt of any written communication or notice of demand
from anybody other hand plaintiff in respect of the premises
in suit.
12.1.6) The testimony of DW2-Sh. Kamal Bansal, who
the defendant has examined to prove that the other L.Rs of
Sh. Nem Chand Sharma were also staking the claims in the
suit property, is not trusthworthy and cannot be relied upon as
the said witness has admitted that his affidavit Ex.DW2/A was
brought to him in ready form for signatures by the defendant
and he has asked the defendant (his brother) about the facts
and circumstances stated in the affidavit before drafting the
same.
12.1.7). Thus the defendant has failed to prove that the
other L.Rs of Sh. Nem Chand Sharma are staking their claims
in the suit property or that co-owners are not agreeable to the
termination of tenancy. Thus the non-impleadment of the L.Rs
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 26 –
of Sh. Nem Chand & Sons is not fatal to the case of the
plaintiff and the present suit is maintainable at the instance of
the plaintiff alone.
12.1.8). Since, the defendant has failed to prove his case
that the property was rented out by M/s. Kendri Sons Pvt. Ltd
and also has failed to prove that the other Legal Heirs of Sh.
Nem Chand Sharma are not agreeable to termination of
tenancy, it is held that the present suit is maintainable at the
instance of the plaintiff.
12.1.9). Now this court shall discuss whether the plaintiff
has successfully proved the defendant has paid rent to him
and whether the plaintiff is the landlord qua the suit property.
Though the payments to the plaintiff have not been denied, it
has been averred by the defendant that he had paid the same
as ‘Hafta’ due to threatening of the plaintiff. However, again
no evidence was led in this regard. The said averment is vague
and unsubstantiated one. No basis/facts whatsoever have
been disclosed in the W.S to show that the plaintiff was
indulging in any such activities. There is not even a single
piece of evidence to show that any complaint was filed
against the plaintiff in this regard. Relevant part of the cross-
examination of DW1 is reproduced hereunder:
Cross-examination dt 26.07.2019
“Q. Did you ever write or lodge any FIR with the police
regarding the (alleged) tale of man handling by the plaintiff?
Ans. No.
Q. Did you ever approach the Ld. CMM by way of
complaint under Sedition 156(3) Cr.P.C. alleging man handling
CS DJ 11827/2016
– 27 –
by the plaintiff ?
Ans. No.
Cross-examination dt 03.07.2019
“Q. You have deposed/ mentioned in your written statement
that you were paying user charger/ Hafta to plaintiff. Please tell
as what rate and for which period such payments were made by
you to the plaintiff ?
Ans. I do not remember.
Q. You had instructed your counsel to record in the written
statement about the user charger/ hafta that you ware paying to
the plaintiff and on that basis of what documents and records did
you instruct to your counsel to wright in text in written statement
about this payment of user charger/Hafta?
Ans. Nothing
Q. How many time did you pay user chargers/ HAFTA to
plaintiff and what rate?
Ans. I do not remember.”
12.1.10) It is also pertinent to mention here that it has
been averred in the W/S that the defendant stopped paying the
amount to the plaintiff as other L.Rs were also staking their
claims in the suit property, however, there is no explanation as
to why the same could not have been done earlier when the
plaintiff was threatening the defendant to pay ‘Hafta’. When
the defendant had the courage to stop paying the amount
alleged to be “Hafta” merely because the other L.Rs are
staking claims, then why the same courage could not have
been shown at the time of demand of the amount as ‘Hafta’
and why it has been alleged that the payments were being
made due to threats. Thus in a way the pleas of the defendant
are contradicatory as on one hand he claims that he was
paying the amount on threats and on the other hand, he claims
that he stopped paying the same because the other L.Rs were
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 28 –
claiming the same from him.
12.1.11) It is also pertinent to mention that the defendant
has admitted the payment of amount to the plaintiff as ‘rent’
in his reply to notice of the plaintiff u/o. 12 Rule 5 CPC dt
23.09.2017, served upon the defendant during pendency of the
suit. In this regard, Ld. Counsel for defendant has argued that
the said reply cannot be looked into as the same was not relied
upon by the plaintiff in his evidence. However, it is important
to note that the said reply to the notice was considered by Ld.
Predecessor of this court in the order dt 03.10.2018 while
dismissing the application of the plaintiff u/o. 12 Rule 6 CPC.
The relevant part of the said order is reproduced hereunder:
“2. …Infact, he has now in his reply to the notice dt
23.09.2017 has admitted having made such payments to the
plaintiff…”
12.1.12). The said order was never challenged by the
defendant to this extent and the same became final.
Thereafter an application u/s. 151 CPC was filed by the
plaintiff to place on record the copy of same as during final
arguments, the same was not found on record. Vide order dt
01.05.2024, the said application was allowed and the copy of
the said reply was taken on record. It was categorically noted
in the said order that the application u/o. 12 Rule 6 CPC was
filed by the plaintiff on the basis of the reply dt 23.09.2017
issued by the defendant and the admissions made therein. It
was noted that the defendant has not denied the issuance of
CS DJ 11827/2016
– 29 –
the said reply to the notice, in his reply to the application u/o.
12 Rule 6 CPC. The relevant part of the said order is
reproduced hereunder:
“In view of the above submissions, this court has gone
through the application u/o. 12 Rule 6 CPC filed by the plaintiff
and also the reply to the said application filed by defendant.
Perusal of the para 9 of the application shows that the
plaintiff has categorically relied upon the reply dt 23.09.2017 of
the defendant in his application and the admissions made in the
said reply qua the factum of payments and issuance of cheques.
In reply to the said application, the defendant has not
denied the issuance of the reply by the defendant to the said legal
notice and has admitted the factum of payments to the plaintiff
being made by it, though setting up her own defence. No where
in the reply any objection has been taken as to the non-filing of
the reply by the plaintiff. Further on 22.11.2023, it was also
admitted that the said reply was a part of the record.
Even in the order dt 03.10.2018, the Ld. Predecessor of this
Court, while disposing off the application u/o. 12 Rule 6 CPC had
noted as follows:
“2. …Infact, he has now in his reply to the notice dt
23.09.2017 has admitted having made such payments to the
plaintiff…”
Further there is no observation in the said order that the reply
has not been filed. Infact, no order could have been passed on an
application u/o. 12 rule 6 CPC without the reply to the legal notice
being on record and without perusing the same.”
12.11.13) The said order also was never challenged by the
defendant and has also become final.
12.1.14). The defendant has never denied that the said
reply dt 23.09.2017 was never issued by the defendant, it is
deemed to be admitted. Since no evidence is required to be
led on admitted facts, the plaintiff was never required to lead
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 30 –
any evidence qua the same.
12.1.15). Further, it is the case of the plaintiff that the
defendant was making monthly payment of rent to the
plaintiff by way of cheques. In the cross-examination dt
03.07.2019, the defendant has stated that he cannot produce
his cheque book and that he does not possess any passbook of
his bank account. Even the bank account number was not
provided by the defendant. The relevant part of his cross-
examination is reproduced hereunder:-
“Q. Kindly tell me your name of the bank and your
account number which you were operating during the
period 2011 to 2016.
Ans. My account with the State Bank of India, Branch of
Masjid moth. I do not remember the bank account number.
Q. Do have in your possession any passbook or
cheque book issued by your banker’s to you.
A. I got only cheque book but not pass book.”
Q. Whether your account with your is saving account or
currect account.
A. It is Current Account.
Q. I put it to you that your banker regularly sent to you
statement of account regarding the bank account.
A. It is incorrect.
Q. Can you bring your cheque book ?
A. I can to produce.
Q. Have you destroyed them or concealing them from the
Ld. Court ?
A. I have destroyed them.
That account is still operating. I am in possession of current
cheque book. I cannot bring the said cheque book. I will
disclose the bank account number with SBI after I have bseen
my current cheque book.”
12.1.16). Thus clearly the defendant has deliberately not
produced his bank account statement and has withheld the
details of his bank account and, therefore, an adverse
CS DJ 11827/2016
– 31 –
inference is required to be drawn that if the same would have
been provided, it would have shown payment of rent to the
plaintiff.
12.1.17) Thus the defendant has failed to prove that he
was paying Hafta to the plaintiff and the only conclusion that
can be drawn is that the defendant was paying rent to the
plaintiff in respect of the suit premises. Since the defendant
admits that his father was a tenant in the suit property and he
continued in possession of the same after his demise and since
he was paying rent to the plaintiff, it is clear that the
defendant attorned the plaintiff as his landlord and is now
estopped u/s. 116 of Indian Evidence Act (Section 122 of
BSA, 2023) from denying the title of the landlord.
12.1.18) It is pertinent to mention here that the plaintiff
has stated himself to be the landlord and owner of the suit
property. The defendant while denying the onwership and
landlorship of plaintiff has merely averred that the suit
property was leased out by M/s. Kendri Sons Pvt. Ltd but has
maintained silence as to who is the owner of the suit property,
if not the plaintiff.
12.1.19). In the cross-examination dt 26.07.2019, the
defendant has pleaded ignorance as to the ownership of the
suit property and the details of the landlord. The relevant part
of the cross-examination is reproduced hereunder:
” Q.No.2. Who according to you is/are the owner(s) of the
building which is reference in this action and in particular that in
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 32 –
which you are carrying on business (on Opposite Hotel Surey
Sofitel) ? Please specify names.
Ans. I cannot say.
Q.No.3. Who according to you is/are the Landlord(s) of
the building which is reference in this action and in particular
that in which you are carrying on business (on Opposite Hotel
Surey Sofitel) ? Please specify names.
Ans. I cannot say.
Q.No.4. When did your father leave for his heavenly
abode? Who, ever since/after the death of your father, has been
/is in possession of the premises in suit?
Ans. My father expired in 1999 and I am in possession of the
suit premises after death of my father.”
12.1.20) Further, in the lease agreement dt 10.02.1987
Ex.DW1/1, it is also mentioned that M/s. Kendri Sons Pvt.
Ltd is the tenant of the shop bearing no. 2/27-C, Sarai Jullena,
Nem chand Complex, Okhla Road, New Delhi-110025 and
thus even as per the document of the defendant, M/s. Kendri
Sons Pvt. Ltd was not the owner of the suit property.
12.1.21) It has come on record by virtue of cross-
examination of PW1 dt 03.10.2017 that Smt. Kendri Sharma
was the mother of the plaintiff and his father Sh. Nem Chand
Sharma expired two years after the date of death of the mother
and, therefore, clearly the plaintiff has succeeded to the said
property as a legal heir of his parents.
12.1.22) In these circumstances, on preponderence of
probablities, the only conclusion that can be drawn is that
Late Sh. Nem Chand Sharma was the owner of the suit
property and the plaintiff is now the owner by inheritence. In
fact, the mention of the word “Nem Chand Complex” in
CS DJ 11827/2016
– 33 –
Ex.DW1/1, lends some support to the above finding.
12.1.23) It is pertinent to mention here that the defendant
has not proved any better title in his favour to show his right
to continue in the suit property, though, it has averred that
M/s. Babu Ram and Sons had paid a substantial amount to
M/s. Kendri Sons Pvt. Ltd as ‘Pagri’. No evidence has been
led to that effect. The relevant part of cross-examination dt
26.07.2019 of DW1 is reproduced hereunder:-
“Q15. Who paid ‘Pugree’, when and to whom and how much?
Ans. My father has paid Pugree. I cannot say when and to
whom it was paid. The amount was Rs. 2-3 Lakhs as told by my
parents.
Q16. Any document to establish this (alleged) payment of
Pugree?
Ans. No.
Q17. Was any legal action initiated against the ‘landlord’ in
respect of this (alleged) payment of ‘Pugree’?
Ans. No.
Q18. Who handed over the actual physical possession of the
premises in suit to your father, Babu Ram?
Ans. I do not know.”
12.1.24). It is the own case of the defendant that suit
property was let out on rent to M/s. Babu Ram and Sons
which was the Proprietorship firm of his father and he
continued in the property after his demise. It is his case that
the property was rented out by M/s. Kendri Sons Pvt. Ltd
through its Director Smt. Kendri Sharma, however, it has
already been discussed above that the plaintiff has failed to
prove the same. Thus admittedly, the defendant is a tenant in
the suit property.
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 34 –
12.1.25) As far as the objection to the site plan Ex.PW1/A,
is concerned, in the considered opinion of this Court, the same
is baseless and without merits. In the present case, there is no
dispute as to the identity of the suit property and both the
parties are at consensus as to the same. The suit property is
clearly identified by Municipal No. i.e. 2/27-C, Sarai Jullena,
New Delhi-25,
In this regard, the following part of the cross-
examination of the defendant is important to be taken note of:
“I have not read the affidavit Ex.DW1/A. The complete
postal address of shop in dispute is 2/27, Sarai Juliena, New
Delhi 25. There are four more tenants in the aforesaid property
but I do not know their names. I do not know as to how many
room, shops or verandas are in actual physical possession in
plaintiff. In this building there was a tenant by the name of
Rajender Aggarwal who is no more a tenant, as he has vacated. I
do not know when he vacated, I do not know to whom he handed
over the possession of premises in which he was a tenant. I do
not know who is in possession of that shop now. That shop is
adjacent to my shop.
*****
Q. Where did you receive the summon at your residence or
shop? (Defendant counsel has objected to the said question
being a mater of record.)
Ans. I have received the notice at my shop.”
12.1.26) Thus from the above, it is clear that the defendant
is running his shop at 2/27-C, Sarai Jullena, New Delhi-25,
which is also the address as mentioned in the lease agreement
dt 10.02.1987-Ex.DW1/1 and rent receipts DW1/2 to
Ex.DW1/13, which have been relied upon by the defendant
himself. The same address is also mentioned by the plaintiff
CS DJ 11827/2016
– 35 –
in his plaint. It has also been admitted by the defendant in his
cross-examination that he received summons of the suit at his
shop and the address on which summons were issued is shop
bearing bearing Private No.2, House no. 2/27-C, Sarai Jullena,
Okhla, New Delhi-25, as per record. Further, it is not the case
of the defendant that he is in possession of some property
other than the property claimed by the plaintiff, rather, his
only defence was that the suit property was leased out to his
father by M/s. Kendri Sons Pvt. Ltd and in the alternative that
the other L.RS of Sh. Nem Chand Sharma are staking their
claims in the suit property. Thus there is no confusion as to
the identity of the suit property. Also it is pertinent to mention
here that for the first time it was argued during the course of
arguments that the suit property is a land encroached by the
defendant and property no. 27-C does not exists on papers,
however, the said argument was beyond pleadings and was
even otherwise not supported by any evidence.
12.1.27) Since the defendant is in possession of only one
shop at the said address, the suit property is clearly identified.
As regard the area, also there is no dispute in the considered
opinion of this court, as the defendant though had disputed the
site plan and measurements in his defence but has himself
neither filed any correct site plan nor has led any evidence to
show the correct measurement of the suit property. It is the
admitted case of the defendant that the property in which he
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 36 –
runs his shop was occupied by him in continuation of the
tenancy in the name of his father, after demise of his father.
Thus the entire property occupied by the defendant is the suit
property irrespective of its measurement. It is pertinent to
mention that the plaintiff had categorically stated in his cross-
examination dt 03.10.2017 that the suit property admeasures
220 sq ft and the defendant in his cross-examination dt
03.07.2019 stated that he does not know the measurements of
the same. Further, no evidence has been led by the defendant
to prove the exact area of the suit property.
12.1.28) In fact in Ex.DW1/1 i,.e. the lease agreement,
the suit property is stated to be admeasuring 220 sq ft and thus
the only conclusion that can be drawn is that the suit property
admeasures 220 sq ft. However, as already discussed above,
the defendant is liable to handover the suit property to the
plaintiff irrespective of its measurement as it is not the case of
the defendant that the suit property to any extent whatsoever
belonged to him or was not a part of the lease.
12.1.29) Now this court shall discuss, whether the tenancy
of the defendant stood terminated and if so, when.
12.1.30) As per the case of the plaintiff, the lease deed
was terminated vide notice dt 13.06.2016. In the affidavit of
evidence Ex.PW1/X, the plaintiff has relied upon the legal
notice of termination dt 13.02.2016-Ex.PW1/B and its postal
receipts Ex.PW1/C (colly). However, during the evidence of
CS DJ 11827/2016
– 37 –
the plaintiff, an application u/s. 151 CPC was filed by the
plaintiff to bring on record the notice of termination of
tenancy issued to the defendant and its postal receipts on
record, on the ground that while marking the documents, legal
notice issued in favour of some other person, has been
tendered in evidence.
12.1.31) In the application, it has been categorically stated
in para 9 that the photocopy of the legal notice issued to the
defendant was filed with the plaint as annexure B at the time
of filing of the suit and are available on the judicial record. In
his reply to the application, the defendant has not denied the
same and has stated that the photocopy of the legal notice has
no relevance in the eyes of law. Even the defendant was
cross-examined on this aspect on 03.07.2019 and the same is
reproduced hereunder:
“I had received the court notice/suumons regarding the
instituion of this case. I can not say what was the number of
document that I received along with aforesaid summons. After
receiving the summons I had the document annexed thereto read
over to me. I had understood the same.
Q. At the time you understood the contents of the palint that
was served upon you along with aforesaid summons by this Ld.
Court did you in the text present plaint come across any
reference in the text to any notice sent by the plaintiff to you ?
If so what was the date there off as menion in the plaint ?
(Defendant counsel has objected to the said question being a
matter of record.)
(Again Ld. Court Commissioner express his inability to
disallowed this question.)
Ans. I do not remember.
Q. After received of the notice/summons, did you
inspection the judicial file.
Ans. No.
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 38 –
Q. Are you aware as to whether and on what date the
judical file was inspected on you behalf by your learned counsel
before filing the written statement ?
(Defendant counsel has objected to the said question being a
matter of record).
(Again Ld. Court Commissioner express his inability to dis-
allowed this question).
Ans. I am not aware.
xxxxxxxxxx
Q. I put it to you that before the institution of the action the
plaintiff through his counsel had served upon you notice to quit
being the notice referred to in para 13 of the present plaint and
you opted not to reply thereto.?
Ans. No. Again said I did not receive the notice.
Q. I put it to you that alongwith summons/Notice received
that was served upon the you about the pendency of this action
you had also received copy of the notice dt 13.06.2016 annexure
B to the present plaint (Vide Para 13)
Ans. It is a matter of record.”
12.1.32) However, thereafter the said application could
not be taken up for disposal by the Ld. Predecessor of this
court. On 16.11.2018, directions were passed to conclude the
plaintiff’s evidence before the Ld. L.C. On the said date, no
one had appeared on behalf of the plaintiff. On 23.03.2019,
the plaintiff pressed his application u/s. 151 CPC, however,
without disposal of the said application, it was directed that
the Court Commissioner shall proceed with the evidence and
thus the application is pending till date and has become
infructuous. On perusal of the record, the original receipts
and legal notice were found on record and therefore, it is to be
presumed that the legal notice dt 13.06.2016 was served upon
the defendant in due course.
12.1.33) However, even if the legal notice is presumed to
CS DJ 11827/2016
– 39 –
be not proved, the service of summons in the suit is a deemed
notice of termination of the tenancy.
12.1.34) Lastly, it is important to note that in his evidence,
the defendant has stated that he has not read his evidence
affidavit Ex.DW1/A and thus it cannot be said that the
defendant is even aware of the contents of the statement made
in his evidence affidavit.
12.1.35) From the above discussion, it is clear that the
plaintiff has successfully proved his case on the scale of
preponderence of probablities.
12.1.36) In view of the above discussion and reasons, the
plaintiff is held entitled to recovery of possession of the suit
property from the defendant. The above issues are accordingly
decided in favour of plaintiff and against the defendants.
12.2 Issue no. 2. Whether the plaintiff is entitled to
recover an amount of Rs. 8920 on account of arrears of
rent or any other amount from the defendant on the basis
of the grounds taken in the plaint ? OPP
Issue no. 3. Whether the plaintiff is entitled to
recover from the defendant mesne profits / damages for
unauthorized user and occupation of property described as
shop measuring 220 sq feet bearing municipal no: 2/27C
located at Sarai Jullena, Okhla Road, New Delhi @
20,000/ per month or at any other rate w.e.f. 01.07.2016
till the institution of the suit ? OPP
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 40 –
Issue no. 4. Whether the plaintiff is entitled to
mesne profits / damages @ Rs. 20,000/ per month or at
any other rate for unauthorized user and occupation of the
property from the defendant after the institution of the suit
and till handing over of the actual physical vacant peaceful
possession of the property described as shop measuring
220 sq feet bearing municipal no: 2/27C located at Sarai
Jullena, Okhla Road, New Delhi ? OPP
Issue no. 5. Whether the plaintiff is entitled to
interest @ 12% per annum with quarterly rests or at any
other rate pendent lite and future on the decreetal amount ?
OPP
The above issues being interconnected are dealt with
together hereunder:
12.2.1) In view of the discussion in issue no. 1,6,7, 8 above,
it is held that the plaintiff is entitled to recover arrears of rent as
well as mesne profits from the defendant. As per the affidavit of
plaintiff, the rent was being paid by the defendant @ Rs.
9460/- p.m as on 28.04.2016. However, the defendant did
not deny the said fact and in fact, in his cross-examination dt
03.07.2019 has admitted the payment of rent @ Rs. 9460/-.
Relevant part of the cross-examination is reproduced
hereunder:
” Q. I put it to you that you ware paying user charges/hafta to
plaintiff at the rate of Rupees 9460/- per month by Cross
cheque and the last such payments was made by you to plaintiff
by cheque no. 566462 vide date 30.04.2016 for the month of
CS DJ 11827/2016
– 41 –
April 2016 ?
Ans. I might have paid but I do not remember.”
12.2.2) Thus, the plaintiff is held entitled to arrears of
rent from 01.05.2016 uptil 30.06.2016 @ Rs.9460/- p.m.
12.2.3) The plaintiff is claiming mesne profits @ Rs.
20,000/- p.m. but the defendant has denied that the suit
property can fetch the rent @ Rs. 20,000/- per month but has
not specified in his defence as to what was the rate of rent
prevailing at the relevant time. When specific questions were
put to the defendant in this regard, it was stated that the
prevailing rate of rent is around Rs.4,000/- to Rs.5,000/-.
12.2.4) It is pertinent to note that the defendant was
already paying Rs. 9460/- as rent in the month of April, 2016
and, therefore, to no extent of imagination, the rent mentioned
by defendant can be correct.
12.2.5) Thus considering the prime location of the
property and further considering that it was a shop used for
commercial purposes, in the considered opinion of this court,
Rs 20,000/- p.m. is reasonable amount claimed by the
plaintiff, which the suit property could have easily fetched if a
new tenancy would have been created after termination of the
tenancy of the defendant as the defendant’s tenancy was very
old and only periodical enhancements were done.
12.2.6) In view of the above, the plaintiff is held entitled
to recover mesne profits @ Rs. 20,000/- per month from
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016
– 42 –
01.07.2016 uptil handing over of possession of the suit
property.
12.2.7) The plaintiff has claimed interest @ 12% p.a.
however, the same is exorbitant in the considerred opinion of
this court and therefore, the plaintiff is held entitled to
pendentelite and future interest on the decreetal amount @ 7%
p.a.
The above issues are accordingly decided.
13. RELIEF:
13.1) In view of the reasons and finding on the above
issues, the suit of the plaintiff is decreed and the plaintiff is
held entitled to the following:
i). The plaintiff is held entitiled to recover
possession of the suit property from the defendant. The
defendant is directed to handover vacant and peaceful
possession of the same to the plaintiff within three months.
ii). The plaintiff is also held entitiled to arrears
of rent @ Rs. 9460/- p.m. from 01.05.2016 to 30.06.2016 and
mesne profits @ Rs.20,000/- per month from 01.07.2016 till
the date of handing over of possession alongwith pendentelite
and future interest @ 7% p.a. Costs of the suit is also awarded
in favour of the plaintiff.
Decree sheet be drawn accordingly.
Consequently, the pending applications u/o 39
Rule 1 and 2 CPC, 39 Rule 10 CPC, u/s. 151 CPC also stands
CS DJ 11827/2016
– 43 –
disposed off.
File be consigned to Record Room.
Announced in open court
Digitally signed
by GUNJAN
GUNJAN GUPTA
Date:
GUPTA 2025.05.28
on 21.05.2025. 17:47:50
+0530
(GUNJAN GUPTA)
DJ-04/South-East,Saket Courts,
New Delhi
SHRI DHARAMVIR SHARMA VS. SHRI ASHU BANSAL CS DJ 11827/2016