Triloki Nath v. Sarita

15. It was asserted that the Defendant's father, Sh. Murari, had expired on 03.05.1998 and, therefore, the averment of the Plaintiff that he had fallen ill in March, 2017, was wholly incorrect. It was further denied that any Rent Agreement had ever been executed either with the erstwhile owners or the Plaintiff, in respect of the Suit Property.

16. The Defendant asserted that there was no relationship of landlord and tenant between the Plaintiff and the Defendant. It was claimed that the Defendant has been the absolute owner of the suit property since the year 1980, the same having been purchased by his father, Sh. Murari from Sh. Bishamber Dayal, on the basis of General Power of Attorney, Agreement to Sell, Receipt, etc. It was, therefore, contended that the question of payment of rent to the Plaintiff, did not arise. It was further asserted that the Plaintiff had failed to place on record any document to establish the relationship of landlord and tenant between the parties.

17. The Defendant, however, admitted having filed a Civil Suit bearing CS DJ No. 810/2021, wherein, he had clearly stated that he was the owner of the suit property. The Defendant further admitted having received a Legal Notice dated 12.10.2022, to which he had given a Reply dated 31.10.2022, wherein he clearly stated that Plaintiff has no legal right, title, interest in the suit property.

18. The Defendant further denied having sub-let the ground floor of the suit property to Sh. Laxman or that he was getting a monthly rent of Rs.4,000/- from him. It was thus, prayed that the present Suit is without any merit and is liable to be dismissed.

19. The Plaintiff in her Replication reaffirmed the assertions as made in the Plaint and denied the averments as made by the Defendant in his Written Statement.

20. The learned District Judge vide Order 01.08.2023 framed the following issues, which are as under: “1. Whether plaintiff is owner/ landlord of the property in question? OPP.

2. Whether plaintiff is entitled to a decree of possession, as prayed for? OPP.

3. Whether plaintiff is entitled to a recovery of Rs.1,44,000/-, as prayed for? OPP.

4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.

5. Relief.”

21. The Plaintiff in support of her case examined, PW-1, Ms. Manju, Senior Assistant, Office of Sub-Registrar, who produced the registered Sale Deed dated 01.02.2022 as Ex.PW1/1.

22. PW-2, Sh. Pankaj Prasad, JSA, Property Tax Department, who produced the copy of Mutation dated 01.02.2022 in the name of the Plaintiff as Ex.PW2/1.

23. PW-3 Smt. Sarita, plaintiff reiterated the assertions as made in the plaint.

24. PW-4, Sh. Fateh Chand, who was the attesting witness, proved the Sale Deed dated 01.02.2022. He also deposed about the Civil Suit bearing CS DJ 810/2021 filed by the Defendant. He further corroborated with the testimony of the Plaintiff that the ground floor of the suit property had been sub-let to Sh. Laxman.

25. The Defendant, Sh. Triloki Nath examined himself as DW-1, who deposed on similar lines as the defence taken by him in the Written Statement.

26. DW-2, Smt. Chandra Kala, sister of the Defendant and DW-3, Smt. Geeta, neighbor of the Defendant, corroborated the testimony of Defendant in regard to the purchase of the Suit Property by the father of the Defendant, Sh. Murari from Sh. Bishamber Dayal in the year, 1980.

27. DW-4, Smt. Savitri Devi, wife of Sh. Mithan Lal, who was one of the attesting witnesses on the GPA Ex.DW1/A (colly), identified the signatures of her husband on the said document.

28. The learned District Judge after appreciating the rival contentions and the evidence led by the parties, observed that the Plaintiff had proved her ownership in the Suit Property by virtue of the registered Sale Deed dated 01.02.2022 Ex.PW1/1.

29. It was further observed that the defense taken by the Defendant that, neither he nor his father, Sh. Murari were ever tenants in the suit property and that the suit property had been purchased by the father of the Defendant from Sh. Bishamber Dayal in the year 1980, was disbelieved. It was held that the documents i.e., Agreement to Sell, GPA, Will and Receipt exhibited as Ex. DW1/A (colly) did not create any ownership of the Defendant in the

30. Consequently, vide the impugned Judgment, the Suit filed by the Plaintiff was decreed and mesne profits at the rate of Rs.5,000/- per month, were awarded to the Plaintiff with effect from 01.02.2022 till the handing over of the possession to the Plaintiff. The Defendant was also restrained from creating third party rights in the Suit Property.

31. Aggrieved by the Judgment and Decree dated 28.01.2025, the Defendant has filed the present First Regular Appeal under Section 96 read with Order XLI Rule 1 of the CPC.

32. The grounds of challenge are that merely a reference has been made to the preliminary objections taken by the Defendant, but no findings any findings are recorded on them. The findings in regard to the relationship of landlord and tenant between the parties, is patently not substantiated by the evidence.

33. It has not been appreciated that the Defendant had filed a Suit for Permanent Injunction bearing CS DJ 810/2021 against Smt. Rani, relative of the Plaintiff, wherein he had clearly asserted that he was the owner of the

34. It was submitted that the father of the Defendant, Sh. Murari, had purchased the suit property from Sh. Bishamber Dayal, in year 1980. In fact, the sons of Bishamber Dayal were well aware that the suit property had been sold to the father of the Defendant, despite which they entered into a Sale Deed dated 01.02.2022 Ex. PW1/1 with the Plaintiff, in respect of the Suit Property.

35. It was further asserted that there was no question of demanding rent from the Defendant by serving a Legal Notice dated 12.10.2022 Ex. PW3/5, as there existed no relationship of landlord-tenant between the parties. It was submitted that false allegations have been made against the Defendant that he had sub-let the ground floor of the suit property to one, Sh. Laxman, at a monthly rent of Rs. 4,000/-.

36. It was submitted that the possession of the Defendant is protected under Section 53A of the Transfer of Property Act, 1882. Reliance is placed on Giriyappa v. Kamalamma 2024 SCC OnLine SC 3849, wherein the conditions for invoking protection under 53A of the Transfer of Property Act, 1882, has been explained. It has been held that Section 53A TPA is principally for the protection of ignorant transferee who takes possession or spend money in investments, relying on the documents which are ineffective as transfer of property, on such contracts cannot be proved for want of registration.

37. It was further submitted that if there was any reservation about the authenticity of the signatures on GPA, Agreement to Sell, Receipt Ex. DW1/A (colly), the documents could have sent to FSL and the opinion sought in regard to the authenticity, which has not been done.

38. It is therefore, submitted that the impugned judgement, be set aside. Submissions heard and record perused.

39. The Plaintiff had filed a Suit for Possession, Recovery of Rent, Mesne Profits and Permanent Injunction against the Defendant, on the ground that she was the owner of the suit property, in which the Defendant was a tenant.

40. In order to prove her ownership, the Plaintiff, PW-3 had deposed that the erstwhile owners of the suit property was Sh. Bishamber Dayal. After the demise of Sh. Bishamber Dayal, the suit property devolved upon his five sons, Sh. Laxmi Narain, Sh. Kishan Lal, Sh. Jiya Lal, Sh. Mahender Kumar and Sh. Devanand.

41. The Plaintiff in her testimony as PW-1, further explained that she had purchased the suit property from Sh. Laxmi Narain and his brothers, vide registered Sale Deed dated 01.02.2022 Ex. PW1/1. Thereafter, she got the suit property mutated in her name.

42. These facts have also been collaborated by PW-1, Ms. Manju from the Office of Sub-Registrar who proved the copy of the Sale Deed dated 01.02.2022 Ex.PW1/1. Likewise, PW-2, Sh. Pankaj Prasad, JSA, Property Tax Department produced records Ex.PW2/1 vide which the property is mutated in the name of the Plaintiff.

43. It is pertinent to note that, the authenticity of the Sale Deed dated 01.02.2022 Ex. PW1/1 has not been questioned, by the Defendant. The Defendant, DW-1, admitted in his testimony that the Sale Deed has been executed in the name of Plaintiff. It is thus, proved that the Plaintiff had acquired ownership in the suit property by virtue of the aforesaid Sale Deed.

44. The Defendant, however had asserted that they were living as owners, since 1980. The Defendant as DW-1, deposed that he has been living in the suit property since birth, peacefully without any intervention or objection from the son of Sh. Bishamber Dayal. He and his father have been in possession of the suit property since 1965, which was subsequently purchased from Sh. Bishamber Dayal, in the year 1980 by virtue of GPA, Agreement of Sell, Will, Receipt, all dated 18.04.1980, Ex.DW1/A (colly). He deposed that it was constructed by him and his other family members.

45. Likewise, DW-2, Smt. Chandra Kala, sister of the Defendant, in her testimony deposed that her father, Sh. Murari, had been in continuous occupation and possession of the suit property, having purchased the same from Sh. Bishamber Dayal, in the year 1980.

46. It is pertinent to note that none of these documents had the signatures of the Defendant. He admitted that Sh. Bishamber Dayal had not put his signatures on these documents in his presence. He further admitted that he did not produce these documents in the earlier Suit bearing CS DJ 810/2021. His only explanation to this was that he did not know whether he was required to produce these documents in the said Suit.

47. Thus, the Defendant when confronted with the big question of proving and identifying the signatures of Sh. Bishamber Dayal, was unable to do so, and admitted in his cross-examination that he had never seen Sh. Bishamber Dayal sign on any of the papers.

48. The truth has a very uncanny way of manifesting itself. The Defendant in order to wriggle out of this difficulty of proving the signatures of Sh. Bishamber Dayal, deposed that he was a tenant in the suit property and Sh. Bishamber Dayal was his landlord, who used to issue the rent receipts, in favor of himself and his father, and that he had seen him signing. He deposed that he was in possession of the Receipts. However, no rent receipt whatsoever has been produced by the Defendant. The Defendant could not identify the signatures of Bishamber Dayal on the GPA, etc. to establish the ownership rights.

49. Furthermore, in order to prove the GPA, Agreement to Sell, Receipt Ex. DW1/A (colly), the Defendant examined his sister DW-2, Smt. Chandra Kala, who deposed that the aforesaid documents Ex.DW1/A (colly), had been executed in her presence. However, in her cross-examination, she admitted that these documents do not bear her signature and further admitted that these documents had not been signed in her presence.

50. The next witness examined by the Defendant was her neighbor DW- 3, Smt. Geeta, who deposed that she along with her father and some other persons from the society, were present at the time of execution of these documents between the father of the Defendant and Sh. Bishamber Dayal, who had signed the Bayana Agreement in their presence. However, in her cross-examination, admitted that “no such agreement was executed in her presence. I have stated this falsely.”

51. The other witness examined by the Defendant was his sister, DW-4, Smt. Sarita Devi, who deposed that the sale documents Ex. DW1/A (colly) have been executed in the presence of the competent witnesses. One such witness was Sh. Mithan Lal, her husband and that she can identify his signatures on the aforesaid documents. However, in her cross-examination, she admitted that the Agreement to Sell, Will as well as the Receipts, do not bear the signatures of her husband. She further admitted that the property was not purchased in her presence and that she had only heard about it from her father, Sh. Murari.

52. Thus, though the Defendant had claimed that his father had purchased the suit property from its erstwhile owner, Sh. Bishamber Dayal on the basis of GPA, Agreement to Sell, Receipt etc., Ex.DW1/A (colly), however, he has failed to prove their authenticity and the signatures on these documents, during the course of trial. Moreover, no attesting witness had been examined, in proof of these aforesaid documents.

53. The defendant failed to prove that he had ever acquired ownership rights in the suit property. The Plaintiff, however, has proved his ownership on the basis of registered Sale Deed dated 01.02.2022 Ex. PW1/1. The learned District Judge, has rightly observed that the Defendant was unable to prove the signatures of Sh. Bishamber Dayal, on the documents exhibited as Ex. DW1/A (colly).

54. The next question is the status of the defendant in the suit property, once it is established that he is not the owner of the suit property. It is significant to observe, that while the Defendant had denied his tendency in the suit property in toto, however, from his cross-examination, it has emerged that his father, Sh. Murari, was indeed a tenant in the suit property and Bishamber Dayal was issuing rent receipts in his name.

55. Pertinently, the Defendant had asserted that there were rent receipts being issued by late Sh. Bishamber Dayal in favour of his father as well as himself, though no rent receipts had been produced. However, there is a clear admission regarding the tenancy of the father of the Defendant, Sh. Murari.

56. Furthermore, it has been rightly observed by the learned District Judge that the testimony of DW-1 was contradictory. The rent receipts in favour of the father of the Defendant could only have been executed by Sh. Bishamber Dayal and if he had already purchased the suit property during his lifetime, then where was the question of any rent receipt being issued in his favour.

57. Furthermore, DW-2, Smt. Chandra Kala, sister of the Defendant, in her cross-examination admitted that “it is correct that my father and brother remained tenant of Bishamber Dayal, till 1980”.

58. It is clearly established that the father of the Defendant, Sh. Murari, was a tenant under Sh. Bishamber Dayal and after the demise of his father, the Defendant became the tenant in the suit property. There is no proof acquisition of ownership by the Defendant in the suit property through any sale documents, at any point of time.

59. The learned District Judge on the full appreciation of the evidence, has rightly concluded that the Defendant is a tenant in the suit premises initially, through his father under Sh. Bishamber Dayal, whereafter, under the Plaintiff, who had purchased the Suit Property vide Sale Deed dated 01.02.2022 Ex.PW1/1.

60. The next essential component which remained to be ascertained is the rate of rent. The Plaintiff, PW-3, in her testimony had deposed that the Defendant was paying a monthly rent of Rs.5,000/-. She further deposed that no rent has been paid by the Defendant since 01.02.2022.

61. The Defendant, in the present case, has not refuted the rate of rent. Moreover, he has neither challenged the testimony of the Plaintiff in regard to non-payment of rent and has also not deposed in this regard in his testimony. Rather, he was claiming ownership since 1980 and thus, there was no question of payment of rent and therefore, there was no rent being paid.

62. The Plaintiff further claimed that after purchase of suit property, she was entitled to enhanced rent at the rate of Rs.12,000/- per month and therefore, claimed arrears of rent as Rs.1,44,000/- for the period between 01.02.2022 and 31.01.2023, i.e. when the Suit was filed.

63. Significantly, as per the Plaintiff, the last paid rent was Rs.5,000/per month. There is no basis explained by the Plaintiff for claiming enhanced rent of Rs.12,000/- per month. Therefore, arrears of rent to which the Plaintiff is entitled, for the period between 01.02.2022 and 31.01.2023, is Rs.5,000/- per month, which comes to Rs.60,000/-.

64. The Plaintiff also claimed mesne profits for unauthorized occupation of the suit property. Since, there was no evidence whatsoever, led by the Plaintiff in regard to the prevailing market rate, the mesne profits as granted by the learned District Judge at the rate of Rs.5,000/- per month from 01.02.2022 till the possession of the Suit Property is handed over, is justified.

65. The learned District Judge has rightly granted mesne profits and the same do not merit any interference.

66. In view of the aforesaid discussion, all the three requisites for a Suit of possession, i.e., (i) the relationship of landlord-tenant, (ii) the rent being more than Rs.5,000/-, and (iii) the termination of the tenancy vide Legal Notice dated 12.10.2022 Ex.PW3/5, has been proved by the Plaintiff. Conclusion:

67. The learned District Judge has rightly granted the decree of possession vide the impugned judgment. For the same reasons, mesne profits at the rate of Rs.5,000/- per month w.e.f. 01.02.2022 till the possession is handed over to the Plaintiff, has been rightly awarded by the learned District Judge. There is no infirmity in the impugned Judgment and Decree.

68. In view of the aforesaid discussion, there is no merit in the present Appeal, which is hereby dismissed. Pending Application(s), if any, also stand disposed of.

JUDGE JULY 27, 2026 N