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Aas Mohammad vs Sabiha Akhtar on 15 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 54/2019 CM No.10906/2019

Judgment reserved on :19.03.2019
Date of decision : 15.07.2019.

AAS MOHAMMAD ….. Petitioner
Through: Mr.Abhishek K. Goyal, Adv.

versus

SABIHA AKHTAR ….. Respondent
Through:

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. The appellant vide the present Regular Second Appeal
No.54/2019 assails the impugned judgment dated 22.01.2019 of the
learned ADJ-04, South District, Saket Courts in Regular Civil Appeal
No.71/2018 vide which the appeal RCA 71/2018 against the judgment
and decree dated 31.07.2018 of the learned trial Court of the ASCJ-
JSCC-GJ (South), Saket Courts in CS No.83348/2016,- was dismissed
holding it to be not maintainable.

2. Vide judgment dated 31.07.2018 in a suit filed by the plaintiff
i.e. the respondent herein against the defendant i.e. the appellant
herein contending to the effect that he is the absolute owner of the
property i.e. 3rd floor of property bearing no. 59-C, measuring 26 Sq.
meters in Khasra No. 288/249/2 in the Abadi of Lal Dora in village

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Kalu Sarai, Tehsil Hauz Khas, New Delhi (herein after referred as ‘suit
property’) specifically shown in red colour in the site plan attached to
the said plaint and that the suit property was built up with first floor to
fourth floor with roof right comprising of one bedroom, one bathroom
cum one kitchen on each floor and the plaintiff/ respondent herein was
the owner of the 1st, 2nd, 3rd and 4th floor along with terrace right and
that the plaintiff/ respondent herein was contended to be already in use
and possession of 1st, 2nd, and 4th floor and that the suit property had
been let out to the defendant and the plaintiff/ respondent herein had
purchased the suit property with roof rights from the
defendant/appellant herein on 28.10.2014 for a total sale consideration
of Rs.7 lakhs vide a sale deed dated 28.10.2014 duly registered with
Sub Registrar-V, New Delhi vide registration no.6285 in Book No. 1,
Volume No. 853 and page no. 105 to 110 and ratification deed dated
28.10.2014 vide registration no. 5970 in book no. 1, volume no. 832
and page no. 31 to 33 and after purchase of the property, the peaceful
possession of the suit property was handed over to the plaintiff/
respondent herein.

3. The further facts as set forth by the learned trial Court in its
judgment dated 31.07.2018 are to the effect:

“2. The defendant requested the plaintiff to give the suit
property to him on monthly rent of Rs. 5,000/- as he
required the suit property for the purpose of marriage of his
daughter. The plaintiff let out the suit premises to the
defendant on a monthly rent of Rs. 5,000/- for a period of 11
months and a rent agreement between the parties was
executed on 10.08.2015, however the tenancy was already
commenced from 28.10.2014. After the expiry of tenancy

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period i.e. on 29.09.2015, the plaintiff requested the
defendant to vacate and handover the physical, vacant and
peaceful possession of the suit property. The defendant
assured the plaintiff that he will hand over possession of the
suit property on or before 03.10.2015 Thereafter, on
03.10.2015, the plaintiff requested the defendant to vacate
and handover the possession of the suit property but the
defendant turned dishonest and flatly refused to vacate the
suit property. The defendant harassed the plaintiff . The
matter was reported to the police and an FIR No. 1879 was
registered against the defendant U/s 354 SectionIPC. Thereafter the
defendant with dishonest and malafide intention to grab the
suit property filed a false and frivolous suit for cancellation
of sale deed and permanent injunction which is pending
adjudication.

3. At the time of registration of the sale deed, Rs. 13,000/-
was found due towards the electricity charges, which were
paid by the plaintiff through her bank account. The
defendant after induction as a tenant in the suit property has
paid Rs. 5,000/- per month towards the rental amount in
cash excluding electricity charges up to the month of March
2015 only. The defendant assured to vacate the suit property
and clear arrears of rent as well as the electricity charges
but of no avail. The plaintiff has been regularly paying the
electricity charges from her account for the suit property
which the defendant is illegally and unauthorizedly
occupying.

4. The defendant after expiry of tenancy is in illegal and
unauthorized possession of the suit property. Although the
contractual tenancy with regard to the suit property stood
determined by afflux of time and after the expiry of the
tenancy period, the plaintiff orally also terminated the
tenancy. However, in spite of requests the defendant failed
and neglected to deliver the possession of the suit property.
The defendant is in arrears of rent of Rs. 35,000/- w.e.f April
2015 to October 2015 @ Rs. 5,000/- per month. The

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defendant has also not paid the monthly rent since April
2015 and electricity charges since induction of the tenancy.
At the time of execution of sale deed, there was previous
backlog of arrears of electricity charges to the tune of Rs
13,000/- which the plaintiff paid from her own account. The
defendant is liable to pay damages as he has not vacated the
suit property despite termination of tenancy orally. The
defendant is also liable to pay the interest @ 18 % per
annum from the date of rent fell due till actual payment. The
plaintiff has no other efficacious remedy available, hence
the present suit.

5. The plaintiff has prayed to pass the following reliefs in
her favour and against the defendant :-

(a) A decree for possession with respect to the suit property
i.e property bearing no. 59-C,3rd Floor, measuring 26
square meter in Khasra No. 288/249/2 in the Abadi of Lal
Dora and Village Kalu Sarai, Tehsil Hauz Khas, New Delhi
specifically shown in red colour in the site plan;

(b) A decree for permanent injunction thereby restraining
the defendant, her agent, etc., from alienating, selling,
creating third party interest in the suit property;

(c) A decree for recovery of arrears of rent of Rs. 35,000/-
w.e.f
April 2015 to October 2015 @ Rs. 5,000/- per month;

(d) A decree for recovery of electricity charges of Rs.
15,160/- pending since June 2015;

(e) A decree for damages till the handing over of the
peaceful, physical and vacant possession of the suit
property;

(f) A decree for interest @ 18 % per annum;

(g) Cost of the suit.

(h) Any other order which the court deems fit and proper in
the facts and circumstances of the case and in the interest of
justice.

6. The defendant contested the suit by filing the written
statement on the following grounds:

RSA 54/2019 Page 4 of 21

(a) The plaintiff has not approached with clean hands and
suppressed the material facts; no cause of action ever arose
in favour of the plaintiff to file the present suit; the plaintiff
has filed the present suit on the basis of false and concocted
story with the intention to harass and torture the defendant
and to extort money from him.

(b) The plaintiff was owner of the third floor which is the
suit property and fourth floor of the property out of which
the defendant sold the fourth floor to the plaintiff and the
third floor is still in possession of the defendant. The
plaintiff with the influence of the deed writer got executed
papers of third floor and also got signed the same from the
defendant without reading contents of the same.

(c) The defendant is in possession of the suit property and
residing there in the capacity of owner. The defendant has
filed a suit for cancellation of sale deed in respect of the suit
property which is pending adjudication.

(d) The defendant had not given any assurance to the
plaintiff to hand over possession of the suit property at any
point of time. Therefore, the question of handing over of
possession of the plaintiff does not arise at all.

(e) The plaintiff has an evil eye over the property of the
defendant. When the defendant is the owner of the suit
property the question of payment of rent does not arise.

(f) The suit of plaintiff may be dismissed with heavy cost.

7. The plaintiff filed replication denying all the defences
taken by the defendant and re-iterated and re-affirmed the
contents of the plaint.

4. Issues were framed vide order dated 31.05.2016 by the learned
trial Court to the effect:

“(1) Whether the plaintiff is entitled to a decree of
possession in respect of suit property as prayed for? OPP.
(2) Whether the plaintiff is entitled to a decree for recovery
of arrears of rent of Rs. 35,000/- as prayed? OPP

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(3) Whether the plaintiff is entitled to recovery of arrears
of electricity charges of Rs. 15,160/-? OPP
(4) Whether the plaintiff is entitled to damages , if so at
what rate? OPP
(5) Whether the plaintiff is entitled to a decree of
permanent injunction thereby restraining the defendant
from creating third party interest in any manner in the suit
property as prayed for? OPP
(6) Relief.”

5. The plaintiff/ respondent herein examined herself as PW-1, Sh.
Faiyaz Akhtar as PW-2, Ms. Nishi Sejwal, Asstt. Accounts Officer,
BSES Rajdhani Power Ltd. as PW-3, Head Constable Naveen Kumar
as PW-4, Shri Jagpal Singh Malik, Sr. Asstt., Office of Sub-Registrar-
V, Hauz Khas, Mehrauli as PW-5. The witness PW-1 i.e. the
plaintiff/respondent herein as PW-5 Jagpal Singh Malik were the only
persons cross-examined on behalf of the defendant/appellant.

6. The defendant/appellant herein is indicated to have led evidence
in defence and the evidentiary affidavits of Smt. Hazara and Shri Aas
Mohammad (appellant/defendant) were filed and though examination-
in-chief of Shri Aas Mohammad, defendant/appellant herein was
tendered as Ex.DW-1/A, the cross-examination of this witness was
deferred at his request and thereafter neither DW-1 i.e.
defendant/appellant herein nor Smt. Hazara stepped into the witness
box for their evidence despite the repeated opportunities and the
defence evidence was closed vide order dated 02.07.2018 and that
DW-1 i.e. defendant/appellant herein did not make himself available
for cross-examination and thus it was rightly observed by the learned
trial Court to the effect that their examination in chief became

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redundant and were not readable in evidence.

7. The learned trial Court vide its impugned judgment dated
31.07.2018 gave its findings on issues as under:

“16. The issue-wise findings of the court are discussed as
under :

Issue no. 1: Whether the plaintiff is entitled to a decree of
possession in respect of suit property as prayed for? OPP
AND
Issue No. 5:- Whether the plaintiff is entitled to a decree of
permanent injunction thereby restraining the defendant from
creating third party interest in any manner in the suit
property as prayed for? OPP

17. Issue No. 1 5 are being taken up together being
interlinked and can be decided through common discussion.
The onus to prove these issue was fixed upon the plaintiff.

18. Let us now examine whether the plaintiff is entitled to the
decree of possession and permanent injunction in respect of
the suit property on the basis of materials placed on record.

19. In order to prove the case of the plaintiff, PW-1 2 have
deposed in consonance with the contents of the plaint and
also exhibited relevant documents as mentioned in the
depositions of plaintiff’s witnesses. On the other hand, the
defendant has not led any evidence in support of the defences
taken however, tried to impeach the version of the plaintiff by
cross examining the plaintiff/PW-1 PW-5.

20. Ex. PW-1/A is the Site plan which details out description
and identity of the suit property. The defendant has otherwise
not disputed the identity and description of the suit property.
Ex.PW-1/B is the Election I card of the plaintiff which proves
identity and address of the plaintiff. Ex.PW-1/C (Colly) /

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Ex.PW-5/A (Colly) Ex.PW-5/B (Colly) are the registered
sale deed and rectification deed. The sale deed proves that
the suit property was sold by the defendant to the plaintiff for
a consideration of Rs. 7,00,000/- out of which 50% of the
amount was paid by cheque and rest amount by cash and the
suit property stood transferred and registered in the name of
the plaintiff. The rectification deed proves rectification of
mistake in mentioning the name of vendee which appears to
have accidentally crept into the E-Stamp Certificate used for
preparing the sale deed in respect of the suit property. It is
specifically mentioned in the deed that rectified and modified
E-Stamp Certificate shall remain in full force and effect.
These documents also disclose that the same were registered
before the office of Sub-Registrar concerned. Ex. PW1/D is
the copy of rent agreement dated 10.08.2015 which records
that a rent agreement was executed by the plaintiff in favour
of the defendant in respect of the suit property for his tenancy
for 11 months w.e.f. 28.10.2014 on payment of rent of Rs.
5,000/- per month.

21. Ex.PW-1/E(colly) and Ex.PW-4/A(colly) are the copy of
tenant verification report and identity proofs of the parties
which record that tenancy of the defendant was verified at
local police station. Ex. PW 1/F(colly), Ex.PW-1/H(colly)
and Mark (Colly), are the electricity bills of the suit property
raised from time to time. Ex. PW-1/K, Mark-A to Mark-D are
the copies of cheques and bank statement of the plaintiff
which record that the electricity bills of the suit property
were paid by the plaintiff from her own pocket. Ex.PW-1/G is
the copy of FIR which records that a case under Sectionsection 354
IPC was registered against the defendant on the complaint of
the plaintiff. Ex.PW-3/A (Colly) are the cheque of Rs.13,000/-
issued by the plaintiff for the payment of electricity bills of
the suit property and both old and new C.A. No. in the name
of the plaintiff.

22. A signed document carries presumption that the
document was signed after the same was written and contents

RSA 54/2019 Page 8 of 21
thereof were understood by its signatory. Moreover, where a
document has been registered there is the presumption that
the document is duly executed(Reference: Prem Singh Vs.
Birbal 2006 SCR 692). The Hon’ble Supreme Court in
Ranganayakamma Vs. K.S. Prakash(D) by LRs.2008(9) SCR
297 observed that ” Section 16 of the Indian Contract Act
provides that any transaction which is an outcome of any
undue misrepresentation, coercion or fraud shall be
voidable. If , however, a document is prima facie valid, a
presumption arises in regard to its genuineness”.

23. Pleadings of the defendant say that the sale deed Ex.PW-
1/C (colly)/ Ex.PW-5/A (Colly) was got executed by the
plaintiff by influencing the deed writer. However, the said
fact has not been proved by way of evidence. In cross
examination of the PW-1, neither any question nor necessary
suggestion was put to the plaintiff to prove that sale deed was
prepared fraudulently. The defendant has not led any
evidence to prove that the same was got prepared or
registered fraudulently. The defendant has not pleaded that
he is an illiterate person and could not understand the
contents of sale deed. Therefore, the sale deed and
rectification deed Ex.PW-1/C(colly)/ Ex.PW-5/A(colly) and
Ex.PW-5/B (Colly) are prima-facie valid in law in view of
mandate of Hon’ble Supreme Court of India.

24. The defendant has not adduced any evidence to prove
that he had to execute Ex.PW-1/C(colly)/ Ex.PW-5/A(colly)
under the undue influence of the plaintiff and not with own
free will. There is no explanation as to how Ex.PW-
1/C(colly)/ Ex.PW-5/A(colly) was registered. There is not
only the presumption that said deeds are valid but in view of
Section 114, illustration(e) of the SectionEvidence Act there is
presumption that the official acts were regularly performed.
The executants had appeared in person before the Registrar
and affirmed that the document was signed by them and it
was only after completing the necessary formalities that
Ex.PW-1/C(colly)/ Ex.PW-5/A(colly) were registered.

RSA 54/2019 Page 9 of 21

25. There are no cross examination of the plaintiff on the
material particulars. There are also no necessary suggestion
given in support of the defences taken and the given
suggestions have not been proved by leading rebuttal
evidence. The testimonies of PW-2 to 4 are unrebutted
therefore deemed to have been accepted as true and correct
by the defendant. The plaintiff has thus successfully
discharge the onus to prove her case and she is held entitled
to decree of possession and permanent injunction in respect
of the suit property as prayed for. Issue no.1 and 5 are
accordingly decided in favour of the plaintiff and against the
defendant.

Issue No. 2: Whether the plaintiff is entitled to a decree for
recovery of arrears of rent of Rs. 35,000/- as prayed ? OPP
AND
Issue No.3: Whether the plaintiff is entitled to recovery of
arrears of electricity charges of Rs. 15,160/-? OPP

26. Issue no.2 and 3 are also being taken up together as they
can also be decided through common discussion. The onus to
prove these issues was also fixed upon the plaintiff. Rent deed
Ex. PW1/D records that a rent agreement was executed by
the plaintiff in favour of the defendant in respect of the suit
property for tenancy for 11 months w.e.f. 28.10.2014 on
payment of rent of Rs. 5,000/- per month. It is specifically
mentioned in para no.6 of the plaint and deposed by PW-12
that though rent agreement Ex.PW-1/D (Colly) was executed
on 10.08.2015 but the tenancy had already commenced from
28.10.2014 and continued till 28.09.2015. It is also on record
that the rent remained unpaid since April,2015 till the
termination of tenancy. Similar is the case for electricity
charges. The electricity bills Ex. PW-1/F(colly), Ex.PW-
1/H(colly) and Mark E(Colly) are of the suit property raised
from time to time. Ex. PW-1/K, Mark- A to Mark-D are the
copies of cheques and bank statement of the plaintiff which
record that the electricity bills of the suit property were paid
by the plaintiff from her own pocket.

RSA 54/2019 Page 10 of 21

27. The defendant has disputed the landlord-tenant
relationship with the plaintiff, however, there is no evidence
produced by him to disprove that he is residing in the suit
property in the capacity of owner. The rent agreement
Ex.PW-1/D (Colly) and tenant verification report of the
defendant which is Ex.PW-1/E (Colly) clearly prove his
status in the suit property of a tenant. There is no cross
examination and rebuttal evidence to disprove.
The tenancy of the defendant has already stood terminated by
afflux of time and also on filing of the present suit October,
2015. Consequently, the plaintiff is held entitled to a decree
for recovery of arrears of rent of Rs.35,000/- from w.e.f.
April, 2015 to October,2015 @ Rs.5000/- per month which is
the date of filing the present suit and also for arrears of
electricity charges of Rs. 15,160/- These issues are
accordingly also decided in favour of the plaintiff and
against the defendant.

Issue No.4: Whether the plaintiff is entitled to damages , if so
at what rate? OPP

28. The onus to prove this issue was also fixed upon the
plaintiff. The plaintiff has terminated the tenancy of the
defendant by filing the present suit. The defendant is in
admitted possession of the suit property even after
termination of rent agreement and so is liable to pay
damages for use and occupation of the suit property. The
plaintiff has not quantified the rate of damages and has also
not adduced any evidence to prove the same. In the
judgments titled as SectionSh. Sriram Pistons and Rings Ltd. vs.
Basant Khatri, 1990 (2002) DLT 769 and SectionM/s M.C Aggarwal
(HUF) vs. M/s Sahara India ors., 2011 (183) DLT 105 it
has been held that if a landlord has failed to lead evidence
with respect to the prevalent rent, the court can take judicial
notice of increase in rent of metropolitan cities, more so, in
commercial areas that a 15% increase of rent every year
should be payable by a tenant to a landlord.”

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8. The learned trial Court thus decreed the suit in favour of the
plaintiff/respondent herein and against the defendant/appellant herein
as per the following terms:

“(a) The defendant shall vacate and hand over peaceful,
vacant and physical possession of the suit property i.e.
property bearing no. 59-C, 3rd floor, measuring 26 Sq.
meters in Khasra No. 288/249/2 in the Abadi of Lal Dora in
village Kalu Sarai, Tehsil Hauz Khas, New Delhi;

(b) The defendant, his assignees, agents, servants and legal
heirs etc. shall not create any third party interest in any
manner in the suit property;

(c) The defendant shall pay arrears of rent @ Rs.35,000/-
per month w.e.f. April,2015 to October,2015;

(d) The defendant shall pay mesne profits commencing from
November, 2015 with 15% increase which will be payable
from second year, third year, fourth year etc and 15%
increase of the mesne profits will be calculated on the total
of mesne profits which are payable at the end of the first
year, second year, etc respectively till handing over of the
possession of the suit property by the defendant;

(e) The defendant shall also pay cost of the suit to the
plaintiff.

(f) The plaintiff shall pay deficient court fees.”

9. The first Appellate Court vide its impugned order dated
22.01.2019 observed to the effect:

“3. The appellant/defendant primarily contested the suit on
the plea that he never sold the suit property to the
respondent/plaintiff and in fact sold the fourth floor of the
aforesaid property to the respondent/plaintiff. He also
alleged collusion between with the deed writer and
the respondent/plaintiff. It is stated that the
respondent/plaintiff fraudulently got the Sale Deed executed
with respect to third floor of the aforesaid property in
collusion with deed writer and the appellant/defendant
signed the Sale Deed without going through the

RSA 54/2019 Page 12 of 21
contents of the same. The appellant/defendant has filed
suit for Cancellation of Sale Deed in respect of suit
property which is pending adjudication.

4. After recording of the evidence, Ld. Trial Court
adjudicated the case in favour of the
respondent/plaintiff. Before the Trial Court, the
appellant/defendant filed evidentiary affidavit of
himself and one Smt. Hazara. The appellant/defendant
was examined-in-chief and thereafter, he failed to step into
the witness box for his cross-examination. Even Smt.
Hazara has not stepped into the witness box
despite sufficient opportunities. The appellant/ defendant
thus failed to lead any evidence to prove his case. It is
settled law that testimony of a witness can be relied on only
unless it is tested on anvil of cross-examination. The
testimony of DW1 in absence of his cross-examination was
rightly not read by Ld. Trial Court. The court also
observed that the appellant/defendant failed to
disprove the version of the respondent/plaintiff. Further, it
was held that the sale consideration of suit property was
paid by cheque as well as cash. Therefore, there is no
question of forgery or fabrication of Sale Deed Ex.PW1/C
(colly). The Sale Deed was duly registered and appellant
failed to prove element of fraud and misrepresentation.
Further, the suit of the appellant/defendant seeking
Cancellation of Sale Deed has already been dismissed in
default and has not been challenged. The court also held
that the respondent/plaintiff also succeeded in
proving the case of the respondent/plaintiff that the
appellant/defendant was inducted as a tenant in the suit
property as the respondent/plaintiff duly proved Rent
Agreement Ex.PW1/D (colly) and Tenant Verification
Report Ex.PW1/E (colly). The respondent/plaintiff also
proved that the electricity bill of suit property were also
paid by the respondent.”

and held to the effect:

RSA 54/2019 Page 13 of 21

“In the appeal, the appellant/defendant has primarily taken
the ground that the Civil Court did not take into
consideration that the appellant has already filed suit for
declaring the Sale Deed in question as null and void and
without awaiting the decision of the said suit, the
impugned judgment has been passed in favour of the
respondent/plaintiff. Further, the Trial Court has not
appreciated and analyzed the evidence properly and the
finding of the Ld. Trial Court are perverse and
not sustainable.”

10. The First Appellate Court further concluded to the effect:

“7. The clarification was sought from the Ld.
Counsel for the appellant during the hearing and
appellant made statement on oath that the suit filed by the
appellant herein challenging the Sale Deed in question was
dismissed in default. Thereafter, the application filed by the
appellant under Order IX Rule 9 was also dismissed in
October, 2017. The appellant has not challenged the said
order passed in October, 2017 till date. So, the order by
which the application filed by the respondent/plaintiff
seeking restoration of the said suit was dismissed
has attained finality. In the circumstances, there is no
question of the Ld. Trial Court to defer the decision of
the present suit as the said suit filed by the
appellant for Cancellation of Sale Deed was already
dismissed in default on the date of pronouncement of
impugned judgment on 31.07.2018. The Ld. Trial Judge has
passed detailed judgment appreciating the evidence and
facts on record as per law and I find no infirmity in the
reasoning given by the Ld. Trial Court. No ground made
out for issuing notice of the present appeal to the
respondent/plaintiff. The present appeal is not maintainable
and same is ordered to be dismissed accordingly. Copy of
this order be sent to the Ld. Trial Court. File be
consigned to record room after due compliance.”

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11. Significantly, the registered sale deed dated 28.10.2014
executed by the plaintiff/respondent herein in favour of the
defendant/appellant herein states as under:

“That the above said property has not been notified u/s 4
6 of SectionLand Acquisition Act, 1894, and has not been
acquired by the Government for any public purpose.

And whereas the Vendor have agreed to sell, transfer and
convey his rights interests, lines and cities in the Entire
Third Floor (with roof rights), measuring approx.26 sq.
mtr, consisting of one bedroom, one bathroom-cum-toilet,
one kitchen, along with undivided proportionate,
indivisible impartible ownership rights in the land
underneath with all fir tings fixtures, connection, structure
standing thereon and all common facilities, like staircase,
common passage, (hereinafter called the demised portion)
of the said Property No.59-C, in Khasra No.288/249/2,
situated in abadi of Lai Dora in Village Kalu Sarai, Tehsil
Hauz Khas (Mehrauli), New Delhi, by virtue of ‘Sale Deed,
which is registered in the office of the Sub-Registrar-V,
Mehrauli, New Delhi, unto the Vendee, for a total
consideration of Rs.7,0,0000/- (Rupees Seven Lac only)
and the Vendee has agreed to purchase the said demised
portion from the Vendor for the said consideration amount
of Rs.7,00,000/-. (Rupees Seven Lac only).” ,

thus, making it clear that the plaintiff/respondent herein agreed to
purchase the rights and interest of the appellant herein rights and title
in the entire third Floor (with roof rights).

12. The appellant thus contended that the judgment of the First
Appellate Court affirming the judgment of the learned trial Court was
erroneous and had been passed mechanically without appreciating the
facts and documents on the record and that the judgment of the First

RSA 54/2019 Page 15 of 21
Appellate Court in view of the facts that the sale deed dated
28.10.2014 of the suit property and the tenancy of the appellant was
stated to be on the same date, which meant that the vacant physical
possession of the suit property had been handed over by the appellant
malafidely which according to the plaintiff/respondent only showed
that the appellant/defendant had only sold the 4th and 5th floor and not
the 3rd floor as well as the appellant had never parted with the suit
property.

13. The appellant thus seeks to submit the following questions of
law, which the appellant submits arise out of the impugned orders,
which read to the effect:

“(a) Whether the appellant / defendant has sold the fourth
floor with terrace or the third floor to the respondent /
plaintiff?

(b). Whether the physical possession of the suit property
was ever handed over to the respondent / plaintiff by the
appellant I defendant when the respondent / plaintiff herself
has stated that the alleged tenancy has started on
28.10.2014?

(c) Whether the disputed facts in the two sets of documents
filed by the respondent / plaintiff i.e. with the plaint and
documents filed on 10.05.2016 wherein in both the sets of
documents states that the terrace has been sold to the
respondent / plaintiff are self contradictory and therefore it
can safely presumed that the appellant/ plaintiff has only
sold the fourth floor with terrace vide Sale Deed dated
28.10.2014 and not the third floor?”

14. The appellant thus contended that the two learned Courts failed
to take into account that the defendant/appellant had denied the
existence of execution of any tenancy. The appellant also submits that

RSA 54/2019 Page 16 of 21
the plaintiff/respondent had failed to prove its ownership qua the
property in question and to bring forth any independent witness to the
alleged sale transaction. The appellant also submitted that the First
Appellate Court had also erred in ignoring the fact that the payment of
rent of the alleged tenancy was always paid in cash which means there
was no way to prove the tenancy without leading any evidence, when
the appellant / defendant has denied the execution of the rent
agreement and has stated it to be a forged and fabricated document.

15. On a consideration of the rival submissions that have been
made on behalf of either side, it is apparent on a bare perusal of the
registered sale deed dated 28.10.2014 executed by the appellant herein
in favour of the plaintiff/respondent herein that the appellant/
defendant had agreed to sell/convey his rights with interest, lines and
titled in the 3rd floor (with roof rights) measuring approx.. 26 sq. mtr.
consisting of one bedroom, one bathroom-cum-toilet, one kitchen,
along with the undivided proportionate, indivisible impartible
ownership rights in the land underneath with all fittings fixtures,
connection, structure standing thereon and all common facilities, like
staircase, common passage of the said Property No.59-C, in Khasra
No.288/249/2, situated in the abadi of Lal Dora in Village Kalu Sarai,
Tehsil Hauz Khas (Mehrauli), New Delhi, which was thus sold for a
sale consideration of Rs.7 lakhs of which Rs.3,50,000/- were paid by a
cheque no.145786 dated 07.11.2014 drawn on the OBC Bank, Kalu
Sarai, New Delhi and Rs.3,50,000/- was stated to be paid in cash
which had already been received by the appellant/defendant from the
plaintiff/respondent herein. The sale deed itself indicates that the

RSA 54/2019 Page 17 of 21
entire 3rd floor with roof rights of the premises in question of the
property bearing no.59-C, in Khasra No.288/249/2, situated in the
abadi of the Lal Dora in Village Kalu Sarai, Tehsil Hauz Khas
(Mehrauli), New Delhi had been sold by the appellant to the
respondent, to thus contend as sought to be contended by the appellant
that an issue to the effect that ‘(a) Whether the appellant /
defendant has sold the fourth floor with terrace or the third floor
to the respondent / plaintiff?’ arose is apparently inappropriate in as
much as it was the 3rd floor with roof rights which had been sold to the
respondent by the appellant herein vide the registered sale deed dated
28.10.2014 with the plaintiff/ respondent herein being already in
possession of the 4th floor as per the impugned order of the learned
trial Court dated 31.07.2018 with the prayer clauses in the suit only
seeking to the effect:

“(a) A decree for possession with respect to the suit
property i.e. property bearing no. 59-C,3rd Floor,
measuring 26 square meter in Khasra No. 288/249/2 in the
Abadi of Lal Dora and Village Kalu Sarai, Tehsil Hauz
Khas, New Delhi specifically shown in red colour in the
site plan;

(b) A decree for permanent injunction thereby restraining
the defendant, her agent, etc., from alienating, selling,
creating third party interest in the suit property;

(c) A decree for recovery of arrears of rent of Rs. 35,000/-
w.e.f
April 2015 to October 2015 @ Rs. 5,000/- per month;

(d) A decree for recovery of electricity charges of Rs.
15,160/- pending since June 2015;

(e) A decree for damages till the handing over of the
peaceful, physical and vacant possession of the suit
property;

RSA 54/2019 Page 18 of 21

(f) A decree for interest @ 18 % per annum;

(g) Cost of the suit.

(h) Any other order which the court deems fit and proper
in the
facts and circumstances of the case and in the interest of
justice.”

Apparently, the appellant/defendant is thus only trying to confuse the
issue and to raise a purported question of law which in fact does not
arise.

16. As regards the issue no.(b), which reads to the effect:

(b). Whether the physical possession of the suit property was
ever handed over to the respondent / plaintiff by the appellant I
defendant when the respondent / plaintiff herself has stated
that the alleged tenancy has started on 28.10.2014?

sought to be raised on behalf of the appellant/defendant, the
defendant/appellant herein chose not to put in appearance for cross-
examination during the trial of the suit and the evidence led by the
plaintiff/respondent herein stands established that the plaintiff/
respondent was in possession of the suit premises and that even if it be
presumed that de jure possession of the suit property had been handed
over to the respondent by the appellant by virtue of the registered sale
deed in view of the commencement of the tenancy between the
plaintiff/respondent and the defendant/appellant herein on 28.10.2014,
the same in any manner does not call for any consideration for in any
event, the plaintiff/respondent herein was in de jure possession of the
suit property w.e.f. 28.10.2014 in view of the registered sale deed
executed by the appellant/defendant and the respondent/plaintiff.

17. As regards the issue no.(c), which reads to the effect:

RSA 54/2019 Page 19 of 21

“(c) Whether the disputed facts in the two sets of documents
filed by the respondent / plaintiff i.e. with the plaint and
documents filed on 10.05.2016 wherein in both the sets of
documents states that the terrace has been sold to the
respondent / plaintiff are self contradictory and therefore it
can safely presumed that the appellant/ plaintiff has only
sold the fourth floor with terrace vide Sale Deed dated
28.10.2014 and not the third floor?”

Taking into account the factum that the suit filed by the
appellant/defendant seeking cancellation of the registered sale deed on
the premise that the sale deed had been executed erroneously in
connivance with the deed writer, the said suit having already been
dismissed in default, which aspect had not been challenged, the First
Appellate Court has rightly held that the plaintiff/respondent herein
has succeeded in proving his case that the appellant/defendant was
inducted as a tenant in the suit property as the respondent/plaintiff
duly proved the Rent Agreement Ex.PW1/D (colly) and Tenant
Verification Report Ex.PW1/E (colly) and that the appellant failed to
establish that the sale deed had been registered pursuant to any
element of fraud and any misrepresentation and that there had been
any forgery and fabrication thereof.

18. Reliance was placed on behalf of the petitioner on the verdict of
the Hon’ble Supreme Court in Prem Singh and Ors. Vs. Birbal and
Ors. (2006) 5 SCC 353 to contend that in view of the fraudulent
misrepresentation at the time of execution of the sale deed between the
appellant and the respondent, the rights of the appellant to seek
redressal in relation thereto were not extinguished. It is essential to
observe that the suit filed by the appellant/defendant seeking

RSA 54/2019 Page 20 of 21
cancellation of the registered sale deed and a permanent injunction in
relation thereto has already been dismissed, whether dismissed in
default or otherwise and the same has not been set aside and thus
cannot now be sought to be challenged and the execution of the said
registered sale deed can thus now not be assailed through the filing of
the present regular second appeal in as much as no substantial
question of law in terms of Section 100 of the CPC arises in the facts
and circumstances of the instant case and thus the reliance placed by
the appellant in Prem Singh and Ors. (supra) is wholly misplaced.

19. In the circumstances in as much as there is no substantial
question of law that arises in as much as there is no infirmity in the
impugned judgment of the First Appellate Court dated 22.10.2019 and
as there is no infirmity in the judgment and decree dated 31.07.2018 of
the trial Court in Suit No.83348/2016, the present Regular Second
Appeal no.54/2019 and the accompanying application are thus
dismissed.

ANU MALHOTRA, J.

TH
JULY 15 , 2019/vm

RSA 54/2019 Page 21 of 21

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