Rahul Wadhwani & Anr. v. Rajesh Anand

8. On November 20, 2020 PW[3], i.e., Charchal Dawar tendered his evidence by way of an affidavit exhibited as PW3/A, bearing his signatures at Points A & B and was cross-examined on the same date. Sanjay Goswami,Record Attendant from Office of Sub-Registrar-V, Mehrauli appeared as PW[4], who produced the registered lease deeds of shop No. 9, Central Market, Lajpat Nagar in the vicinity of the suit property for the years 2008 and 2015. Ravi Kumar, JJA from Record Keeping Department of this Court appeared as PW[5] along with the memorandum of family settlement between Pushpa Kapoor and the siblings of her late husband. Thereafter, the Ld. Trial Court proceeded to close the respondent’s/ plaintiff’s evidence andsince the defence of the appellants / defendants had been struckoff, listed the matter for final hearing.

9. The Ld. Trial Court proceededto give findings on Issue No.1 and Issue No.1A. The onus to prove these issues was upon the respondent. The Ld. Trial Court stated that these issues if proven, would alone be sufficient to grant the prayers in the suit. In its judgment, the Court below recorded that the statements of the respondent were consistent. It was recorded, that only the appellant No.1 was inducted as a tenant in the suit property and that his wife, appellant No. 2 (who was arrayed as defendant No.2 in the suit) was runningthe shop from the suit property on his behalf; thereby there was no need for Pushpa Kapoorto give notice to defendantNo.2. The sale deed dated September 9, 2015 clearly stipulates that at the time of filing the suit,the suit propertywas under the tenancy of the appellants and Pushpa Kapoorhad given the right to recover the rent for the previous 10 monthsto the respondent. The Trial Court recorded that through the testimony of PW[2], i.e., the sale deed dated September 9, 2015 stood proved.

10. As per the impugned judgment, PW[2] Pushpa Kapoor had testifiedto the effect that her father-in-lawBansi Lal was the owner of the shop comprising of the suit property and Pushpa Kapoor being widow of one of the sonsof Bansi Lal was in possession of half of the shop, i.e., thesuit property whereasthe otherhalf belonged to the other legal heir of Mangal Sen Kapoor. The documentsof ownership filed by the respondent including thoseof his predecessor-in-interest,i.e., PW[2], Pushpa Kapoorare undisputedand formed a part of the consent decree passed by this Court in favourof PW[2], Pushpa Kapoor. The statement of PW[2], Pushpa Kapoor that shehad sent a letter to the appellants on October 10, 2015, the postal receipt / report of which hasbeen exhibited has not been deniedby the appellants. The Ld. Trial Court formed an opinion that in light of the tracking report which is not denied, the plea of the appellants that they were not informed about the sale was not considered to be tenable. As per the Ld. Trial Court it is a matter of record that no reply was sent by theappellants to thesaid letter, denying the relationshipof landlord and tenant. The appellantsas per the written statement claimed ownership through adverse possession.The Ld. Trial Court did not go into the merits of this argument as there was no evidence to showwhether the parameters for adverse possession were met. The Ld. Trial Court noted that even after receiving the legal notice dated October 10, 2015, the appellants did not reply to the same and thereby lost the opportunity to put forth their case. As per the appellants, who took a stand that they were in open and hostile possession of the suit property and that there is no evidence to showthat they were inducted as licensees. The Ld. Trial Court observed that as per the joint written statement of the appellants / defendants, wherein it was statedthat they came intopossession of thesuit property in theyear 2000, this statementonly fortified thecase of the respondent as narrated by PW[2], Pushpa Kapoor. Once the inter se dispute between the family of PW[2], Pushpa Kapoor was settled andthe suit propertywas mutated, the appellants were asked to vacate the property, however on the intervention of PW[3], Charchal Dawar the suit property was let out to the appellants on a rent of ₹1,50,000/- on a monthly basis. The Ld. Trial Court recordedthat though thereis no written rent agreement or any rent receipt to prove the same, her deposition was likely to be true as the respondent hadbeen able to establish the fact that therewas a property dispute in thefamilyof the erstwhile owner PW[2],Pushpa Kapoor. As per the reasoning of the Ld. Trial Court, the respondent was able to produce the best evidence available with him in order to prove the facts. An argument was advanced before the Ld. Trial Court on behalf of the appellants that there was a discrepancy between the testimonies of PW[2] and PW[3], Ld. Trial Court reasoned that the discrepancies in the testimonies were minor and not to theextent that the said testimonies should be discredited more so when they did not alter the basic case as pleaded by the respondent, that too when the basic principle governing a civil suit is preponderance of probabilities. The Ld. Trial Court also noted the situation prevailing due to the COVID-19 pandemic when the testimony of PW[2], Pushpa Kapoor was recorded and being a senior citizen shecould not have been expected to give a clearer deposition than what she gave. Even though the rent agreement was oral, the impugned judgmentrecords that at the time of deposition neither PW[2] nor PW[3] had any interest in the suit property.

11. Regarding the issue of appellants’ / defendants’tenancy the Ld. Trial Court noted that the FIR No. 831/2015 registered under Section 354 of the Indian Penal Code, 1860 on the complaint (Ex.PW1/A) made by defendant No.2, i.e., appellant No.2 had admitted that she was a tenant in the suit property since the last 15 years and her husband came into possession of the shop in theyear 2000. Such an admission was neither disputednor denied. Even during her cross-examination,she did not deny that her husband was not a tenantand even stated in her crossexamination that the complaint exhibited as Ex.PW1/A was in her handwriting and that her husbandwas sitting beside her,when she wrote the said complaint though, he had not gonethrough the complaint. The statement of the appellant No.1 was also recorded in the said FIR which was also placed on record and during his cross-examination he stated that he was not aware whowrote thecomplaint Ex.PW1/A. This statement accordingto the Ld. Trial Court was clearly at variance with each other, howeverthe Ld. Trial Court proceeded to note that this was an indirect admission on behalf of theappellant No.1 that appellant No.2 wrote the complaint, Ex.PW1/A. Further he stated in his crossexamination “possession of the suit shop in which I am a tenant was given to me by Smt Pushpa Kapoor”, thereby supporting the testimony of PW[2] Pushpa Kapoor. The Ld. Trial Court differentiated the judgment of Kishan Singh (D) Through LRs Vs. Gurpal Singh (Crl Appeal No. 1500 of 2010) by relying on the finding of the Supreme Court in the judgment of Union of India Vs. Moksh Builders and Financiers Ltd. and Others Etc. AIR 1977 SC 409. The Court below proceeded to decide issue Nos. 1 and 1A in favour of the respondent since the testimony of PW[2], Pushpa Kapoor hadsupported the case of the respondent along with the admissions madeby the appellant(s).

12. As per the proven sale deed dated September 9, 2015, which stated that the appellants had not paid rent from November 1, 2014 onwards and the suit being filed within limitation, the Ld. Trial Court proceeded to give a findingon Issue No.2 wherein the respondent was granted user charges w.e.f. November 1, 2014 till January 31, 2016. Issue No. 4 pertaining to grant of damages/ mesne profits / user charges was also decided in favour of the respondentbased on thetestimony of PW[4] Sanjay Goswamiwho had broughtalong with him three registered lease agreements of October 24, 2008 pertaining to shop No. 9 near the suit property. The said lease agreements exhibited as Ex.PW4/5, Ex.PW4/6 and Ex.PW4/7 showed that the monthly rent of 1/3rd undivided share of shop No. 9 was ₹85,000/- coming to a combined total of rent being ₹2,55,000per month. Themarket rent of a proximate shop in the same market pertainingto the same time period had been proved by the respondent. The Ld. Trial Court awarded mesne profits @ ₹2,55,000/- per month w.e.f. February[1], 2016 till the date of handing over of possession. Issue No.3 pertaining to interest was also decided in favour of the respondent and the Ld. Trial Court granted simple interest @ 7% per annum on the total arrears of rent till the date of filing of the suit and further simple interest @ 5% was grantedfrom January 1, 2020. Mesne profits were also granted along with simple interest of 7% per annum. As per findings given in issue Nos. 1 and 1A and in absence of any evidence by thedefendants,issueNos. 5, 6, 7 and 8 were decided against theappellants andthe suit was deemed to be properly valued and within limitation.

13. The said suit was decreed in favour of the respondent and the Ld. Trial Court grantedpossession and recovery of rent of ₹1,50,000/-, with arrears of rent w.e.f.November 1, 2014 till January 31, 2016 along with mesne profits to the tune of ₹2,55,000/- per monthw.e.f. February 1, 2016 till handing over of possession. The Ld. Trial Court also grantedsimple interest @ 7% per annum on the totalarrears of rent on the date of filing of the suit till December 31, 2019 and further simple interest @ 5% was granted from January[1], 2020 in light of thesituation prevailing due to the COVID-19 Pandemic. Mesne profits were also grantedalong with simple interest of 7% per annum which would be calculated from February 1, 2016.

SUBMISSIONS

14. Mr. Shalabh Gupta,learned Counsel for the appellantshas at the outset stated that theclaim of therespondenthas to be decided on the strength of his own case and not on the weakness of the case of the appellants / defendants. He went on to state that thereis no landlord tenant relationship between the parties and that the same has not been proved by the respondentand has argued thefollowing:

I. The alleged legal notice dated October 10, 2015 by

Pushpa Kapoorwas only served upon the appellant No.1 and not his wife, i.e., appellant No.2 therein and that her status as a tenant was not pleaded before the Ld. Trial Court. The noticedated January[7], 2016 was sent to the appellant No.1 for termination of the alleged tenancy, however, much prior to that the respondent had lodged a complaint datedOctober 07, 2015 to theSHO, PS-Lajpat Nagar against the appellants stating that they are unauthorisedoccupants in thesuit property. Even in the earlier complaints dated October 9, 2015, October 10, 2015 and October 11, 2015 (which are of the period prior to the notice for termination of tenancy, i.e., January 7,

2016) the appellants have been referred to as unauthorisedoccupants. The respondent based on this document has admitted that no landlord–tenant relationship existed between the parties. According to Mr. Gupta,PW[1] in his cross-examination has admittedto his knowledge being hearsay andtherefore his testimony cannot be taken intoconsideration.

II. As per Mr. Gupta, the cross-examination of PW[1] dated October 14, 2020 wouldreveal his statement that PW[1] had neither seen the appellant No.1 nor his wife / appellant No.2 pay rent including the alleged rent of ₹1,50,000/- to PW[2],PushpaKapoor or anyone else. PW[1] had also stated that he had neverseen any rent agreement or any rent receipt in the name of the appellants. There is also a statement by PW[1] that he was told by PW[2], Pushpa Kapoorthat the appellants cameinto possession of suit property in January,2013.

II. Anotherargument advancedby Mr. Guptathat the suit has not been valued properly. The suit has been valued currently at ₹18,00,000/- which amount is equivalent to the rent for 12 months. This too is on the basis of a landlord– tenant relationship which has been argued by Mr. Gupta to be contraryto the ground taken by the respondent. Neither the suit was valued for the relief claimed in the suit, i.e., damages / mesne profit / user charges of ₹3,00,000/- per month,nor any Court Fee was affixed in this regard. As per Mr. Gupta paragraph 6 of the respondent’s plaint mentions that the appellants were occupying the suit property as tenants of Pushpa Kapoor with monthly rent of ₹1,50,000/- since February 1, 2013. This stand has been controverted in his own replication wherein healleged that in the year 2000 the appellants were inducted as licenseesby Pushpa Kapoor and that the appellants kept paying ₹300 to ₹500 on a daily basis depending on the sales of the shop running from the suit property. Therefore, there has been a change of stance by the respondent, i.e., only after the appellants tooka stand in their written statement that they are in uninterrupted, peaceful, open and hostile possession of the suit property since January 15, 2000 and have become the owners of the said property through adverse possession. This contradictory plea on behalf of the respondent is sufficient aloneto disbelieve the case put forth by the respondent. If the respondent has purchased the suit property for a sum of ₹6 Crores, then he is liable to affix ad valorem court fees on the market value of the suit property. This fact hasbeen admitted by PW[1] during his cross-examination dated October 14, 2020 wherein he hadstatedthat it may be correct that the market value of the suit property at the time of execution of sale deed on September 9, 2015 was and even at present not less than ₹6 Crores. Neither the appellant No.1 nor his wife, appellant No.2 were party to the alleged sale deed and that the same was executed without knowledge andconsent of the appellants and therefore is not binding on them.

III. Mr. Guptaarguedthat the cross-examination of

PW[1] is important and demands a closer scrutiny. As during thecross-examination on October 14, 2020, PW[1] admitted that the appellants had never paid the alleged rent of ₹1,50,000/- per month to Pushpa Kapoor and that he was also not present in the alleged meeting wherein the appellants agreed to pay such sum. PW[1] has on one hand taken a stand that he can bring the lease deed on record, whereas in the pleading it has been averred that there existed an oral agreement between the respondent and the appellants. Subsequently on the next date of cross-examination, he failed to bring the said lease deed. The entire evidence so led by the respondent, is embedded with contradictions and is contradictory to the pleadings. As per Mr. Gupta, the rent as alleged as ₹1,50,000/- could not have been agreed to without execution of any rent deed or any other document, specially when as per the case of the respondent, the appellants were not even payingthe license fees of ₹200- ₹500 per day.

IV. He argued that the testimony of PW[2] Pushpa

Kapoor is also contrary to the pleadings and to the testimony of the other witnesses. She stated that the appellant No.1 approached her around 20 years ago and had agreed to pay half of the profit from the sales of the shop as rent. She went on to state that the appellantskept paying her amounts of ₹200, ₹300 and ₹500 till the year

2013. As per her testimonythe appellant No.1 along with Charchal Dawar met her and asked her to allow the appellants to continue runninghis business from the suit property with a rent of ₹1,50,000/- per month. According to Mr. Gupta during the cross-examination dated October 19, 2020 she stated that sheasked theappellant No.1 to prepare a rent agreementwhereas the appellantNo.1 had said that she ought to believe him. This testimony is contradictedby the statement of PW[3], Charchal Dawar who in his cross-examination dated November 20, 2020 stated that he had asked them to prepare a written agreement but both of them had statedthat it is with their mutual understanding that a written agreement will be executed. Mr. Gupta statedthat this is a contradiction in the statements of PW[2] and PW[3] wherein it has been pointed out that the alleged meeting never took place. Even so, PW[2] on October 19, 2020 further stated that the appellants have paid rent only for 3-4 months of ₹1,50,000/-. However,in the plaint an averment hasbeen made that rent has not been paid since November 1, 2014. This too only goes to show the contrary stand taken by the respondent.

V. Further he stated, PW[3], Charchal Dawar on

November 20, 2020 made another contradictorystatement wherein he testified that he does not know Pushpa Kapoor, rather only her husband. As per the testimonyhe was not aware of the family membersof Pushpa Kapoor as he was not in constanttouch with them and knew them only by virtue of being locatedin the same market. He was also not aware of the address of Pushpa Kapoor. Thereby the cross-examination has clearly established that PW[3], Charchal Dawar,had either committed perjury or that his evidence by way of affidavit has been proven as false. PW[3] has further stated in his cross-examination that he was not aware of the family members of the appellant No.1 (Rahul Wadhwani). PW[3] further went on to state that it was the appellant No.1 who approached him and not any other person from the market for the purpose of arriving at a settlement with PW[2], Pushpa Kapoor since PW[3], Charchal Dawar had good relations with the appellantNo.1 and had visited the shop of the appellants.In a subsequent statement, he stated that he had never visited the suit property. As per Mr. Gupta many contradictory statements have been made by PW[3], which onlygoes to show that PW[3] was not aware about the facts of thepresent case and was also not a witness to the alleged settlement between the appellants and PW[2], Pushpa Kapoor. He had in his statement admitted that the respondent (Rajesh Anand) is his friend and that the respondent hadasked PW[3] to give evidence in the present case. Upon being cross-examined on this aspect, enquiring about his relation to PW[2], Pushpa Kapoor, he stated that he does not know PW[2], PushpaKapoor much, but only knows her husband. Later on a subsequent cross-examination he statedthat he is neither aware of the family details of PW[2], PushpaKapoor, i.e., including the names of children of PW[2] nor of the date,month or year of death of husband of PW[2], Pushpa Kapoor. This he had stated as he is not in constant touch with them and only knows them by virtue of being in the same market. As per Mr. Gupta when PW[3], Charchal Dawar is not well acquainted with the appellantsor the appellants’ family members, then the question remains as to why he was approached for a settlement. That apart the notice given by PW[2], Pushpa Kapoor was in the year 2015, which contradicts the statement of PW[3], wherein he had stated that after themeeting takingplace in theend of January, 2013, PW[2] gave a notice to the appellants after which PW[3] was approached for settlement.

VI. It is the case of Mr. Gupta that neither the respondent nor his predecessor-in-interest, i.e., PW[2] Pushpa Kapoor were able to produce any document in order to show that the appellants were the licensees of PW[2], PushpaKapoor or that they became tenant w.e.f. February 1, 2013. According to Mr. Gupta, PW[1] had earlier stated that PW[2], Pushpa Kapoor was theproprietor of the business, ‘Sukanya Footwear’ and that the appellant No.1 was a salesman there, a stand which has been changed in tune with thepleadings. The statement given by PW[3], Charchal Dawar that the appellants are tenants is contradictedby the statement given by PW[2] wherein it was stated that the appellants were inducted as a licensees.

VII. Mr. Gupta contended that the Ld. Trial Court erred in holdingthat the complaint dated October 9, 2015 on the basis of which FIR No. 831/2015 registered proved that appellant No.2,stated herself to be tenant of the suit property. Further the impugned judgment is wrong in holdingthat,in the sale deed it has been recorded that the appellants havenot paid rent from November 1, 2014 and further gives the right to recover the said rent and in the light of the fact that the appellants were not signatories and / or parties and / or witnesses to the said agreement which was executed without their knowledgeand consent and therefore theyare not bound by the same.

VIII. While seeking the reliefs as prayed for in the appeal, Mr. Guptain support of his arguments above has placed reliance on the followingjudgments: a. Biswanath Agarwalla v. Sabitri Bera and Ors., (2009) 15 SCC 693; b. Kailash Paliwal v. Subhash Chandra Agrawal, (2013) 9 SCC 372; c. Nazir Mohamed v. J. Kamala and Ors., AIR 2020 SC 4321; d. Shalu v. Sandeep Soni, (2016) 228 DLT 257 (DB); e. Messrs Bansidhar Ganga Pershad Agency v. Chanan Lal and Ors., ILR (1975) 1 Del 445; f. Kashi Nath (Dead) through Lrs. v. Jaganath, (2003) 8 SCC 740.

15. Mr. S. K. Sharma,learned Counsel whoappeared on behalf of the respondent has argued that PW[2] Pushpa Kapoor became the owner of the suit property after a settlement which took place before this Court between different owners.The said settlement deed has already been exhibited as Ex.PW2/1 to Ex.PW2/3. He statedthat the partition deed dated June17, 2015 between PW[2],PushpaKapoor and others,has been exhibited as Ex.PW4/1. Mr. Sharma contended as follows:

I. According to him, the respondent / landlord purchased the suit property vide sale deed dated September 9, 2015 from PW[2] Pushpa Kapoor,wherein paragraph 2 at internalpage 6 it is clearly statedthat the appellant No.1 is the tenant in the suit property and is liable to pay a rent of ₹1,50,000/- per month which rent has not been paid for the last 10 months. Theprevious landlady vide legal notice dated October 10, 2015 (Ex.PW1/3) informed the then tenant,i.e.,the appellant No.1 regarding the sale of suit property to the respondent.

II. Mr. Sharma stated that the appellant No.2, filed a complaint before PS-Lajpat Nagar against the respondent stating that they are thetenants in the suit property. This statement of the appellant No.2 was recorded by a Coordinate Bench of thisCourt on December 5, 2019 in CM(Main) 1375/2018, wherein the appellant No.2 admitted to the correctness and contents of the said complaint.

III. According to Mr. Sharma, since the order for depositing of monthly user charges was from December, 2019 and no arrears were granted by this Court, the same were directed to be decided by the Ld. Trial Court and the respondent / landlord approached the Supreme Court through an SLP seeking payment of arrears as well. Similarly, theappellants also filed an SLP challenging the order passed by this Court CM(Main) 1375/2018. Mr. Sharma stated that both these petitions were heard on July 14, 2020 and through a consent order, it was directed that the appellants / tenants were to pay damages / occupation charges of ₹1,00,000/- from September 7, 2015 and pay the arrears in six equal instalments.

IV. It is the case of the respondent that the appellants failed to pay any amount in terms of the order of the Supreme Court, due to which the Ld. Trial Court on September 8, 2020 passed an order under Order XV-A CPC and the defence of the appellants was struck off. The order wherein thedefence of the appellants had been struck off, attained finalityas the same had not been challenged anywhere. Whereasthe respondent being aggrieved by the arrears of rent not being paid, filed a contempt petition before the Supreme Court wherein the SupremeCourt was pleased to issue notice.

V. As per Mr. Sharma, even though the appellants in their written statementtook a plea of adverse possession, but did not lead evidence in support of this plea. In this regard, Mr. Sharma has placed reliance on the statement recorded by the Ld. MM on October 13, 2015, wherein it had been recorded that there is a clear admission by the appellant No.1 that thepossession of thesuit property was given to him by PW[2] Pushpa Kapoor.

VI. As per Mr. Sharma, the respondent who is the landlord of the suit propertyexamined himself as PW[1] and proved the documents PW1/1 to PW1/16as referred to in his affidavit of evidence. Thereafter, the respondent examined his predecessor-in-interest, i.e., PW[2], Pushpa Kapoor and proved the documents exhibited as Ex.PW2/1 to Ex.PW2/3 and PW1/3 to PW1/7. Thereafter PW[3], Charchal Dawar was produced as a witness to prove the fact of creation of tenancy in thesuit property andin order to prove market rent and quantum of damages. The respondent proved on record theregistered lease agreement in respect of the shop in thevicinity of the suit property being in the same lane; these documents have been exhibited and proved as Ex.PW4/2 to PW4/7 by the officials of the office of the Sub-Registrar.

VII. Mr. Sharma argued that the Ld. Trial Court has examined each and every aspect of the case and has passed a well-reasonedjudgment which has been impugnedin this appeal. The reasoning given by the Trial Court while deciding Issue No. 1 and Issue No.1Ais also clear and the Trial Court had found veracity in the case put forth by the respondent which is also his case before this Court. He argued that the appellants are not entitled to be heard in this appeal in light of thefact that the appellants despite having consentorders from the Supreme Court have not paid any amount to therespondent as damages in terms of the orders of the Supreme Court in addition to the impugned judgment/ decree (against which no stay has been granted) of more than ₹2 Crores along with possession.

VIII. In support of his submissions, Mr. Sharma has also placed reliance on the followingjudgments in thecases of: a. Modula India v. Kamakshya Singh Deo, b. Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Ors., (1974) 1 SCC 242; c. Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545.

FINDINGS

16. Having heard the learnedcounsel for the parties andperused the record including written submissions filed by them, it is noted that Pushpa Kapoor (PW[2]) the predecessor-in-interest of the respondent became the owner of the suit property of shop No.6 (private No.6A) consisting of ground floor and basement in terms of memorandum of family settlement datedDecember 24, 2010, and order dated February 09, 2011 in CS(OS) 490/2006 and partition deed dated June 17, 2015.

17. Accordingly, she executed the sale deed dated September 07, 2015 as registered on September09, 2015 and on thestrength of the sale deed, the respondent became the owner of the suit property. The sale deed in paragraph 2 records as under: “2. That the Vendor has told to the Vendee that the said Half Portion of the said Shop is under tenancy of Mr. Rahul Wadhwani S/o Smt. Jyoti Wadhwani, where no Rent Agreement was executed and it was a oral tenancy, but the tenancy was started from 1st day of February, 2013, at the monthly rent of Rs.1,50,000/- (Rupees one lakh fifty thousand only) which was payable in cash by the tenant and the tenant has not paid rent since the last ten months, and therefore Vendor has handed over the possession of the said Half portion of the said Shop on as is where is basis to the Vendee at the time of signing of this Sale Deed and also Vendor hereby gives the right to the Vendee to recover rent for the last ten months from the tenant and to deal with the tenant and get the tenant evicted from the said Half Portion of the said Shop.”

18. The case of the respondent before theTrial Court was that he is the ownerof the suit property having purchased from Pushpa Kapoor. The plea of the appellants as advanced by Mr. Gupta is that the relationship of landlord-tenant between the appellants and the respondent hasnot been proved. In this regard,his pleas were; (i) the legal notice datedOctober 10, 2015 by Pushpa Kapoor(PW[2]) has only been served upon the appellant No.1 andnot on appellantNo.2 and her status as tenant has not been pleaded; (ii) the complaints of the respondents dated October 07, 2015, October10, 2015 and October 1, 2015 refer to the appellants as unauthorised occupants and not as tenants;(iii) the respondent admitted in hiscross-examination that his knowledge of tenancy between Pushpa Kapoor and the appellants is based on hearsay as he has not seen the appellantstendering the rent to Pushpa Kapoornor has he seen the rent deed / rent receipt.

19. The submissions of Mr. Guptaare unmerited, thisI say so, as the appellants havenot contested thesale deed dated September 9, 2015, whereby the suit property has been sold to the respondent. The sale deed incorporates clause 2 (reproduced above),which clearly states that the appellant No.1 is a tenant and the oral tenancy has started from February 01, 2013 at the monthly rent of ₹1,50,000/- and Pushpa Kapoor has given the right to theVendee (respondent herein) to recover rent for the last ten months from the said tenant / appellant(s).

20. Mr. Gupta’s plea was that the appellants were not associated with the execution of the sale deed and as such not bound by the same. The said submission is not appealing,such factum of the execution of the sale deed was informedto the appellants by PushpaKapoor vide her legal notice dated October 10, 2015 wherein the following has been stated:

21. The case of the appellant as contended by Mr. Gupta was that the said notice datedOctober 10, 2015 has not been received by them. This stand was disbelieved by the Trial Court by holding that the tracking report being on record, the plea is unacceptable. No submission hasbeen made by Mr. Gupta, before thisCourt, contesting the said finding. Suffice to state,the notice having not been replied t o, the contents are deemed to have been accepted includingthe rate of rent being ₹1,50,000/- per month andthe samebeing in arrears for the last ten months i.e.,from November 01, 2014 till September 30, 2015.

22. That apart, there is no counter claim or a separate suit by the appellants seeking a declaration that they are neither the tenants nor the rent is ₹1,50,000/- and also that they are not in arrears. No doubt, the appellants had contended that they havebecome the owner of the suit property by way of an adverse possession,this stand of the appellants of adverse possession hasnot been proved as the defence of the appellants was struckoff.

23. Even, I find that it is the case of the appellants themselves, that they are tenants in the suit property and the same is clear from the complaint datedOctober 09, 2015 of the appellant No.2,to the SHO of Lajpat Nagar, Police Station wherein she hasclearly stated that she is runninga shop No. 6, Central Market, Lajpat Nagar for the last 15 years as a tenant. I find that this aspect of the complaint and the effect thereof has been dealt with by the Trial Court in paragraphs 55 and 56 in the following manner: “55…… It is pertinent to mention here that apart from leading all possible and best evidence which could be led by the plaintiff, plaintiff has also brought on record certified copy of complaint made by defendant no. 2 against plaintiff on the basis of which FIR No. 831/15 u/s 354 IPC was registered. The complaint made by defendant no. 2 was exhibited as Ex PW1/A in the said FIR. In the opening lines of said complaint Ex PW1/A, she has stated that she is running business from shop no. 6, Central Market, Lajpat Nagar, New Delhi as Sukanya Footwear from 15 years as a tenant. Her evidence which was recorded in the said FIR has also been placed on record by the plaintiff wherein she admitted that she had filed the said complaint and admitted her signatures on the same. During her cross examination, she was put a question by plaintiffs counsel that "Q: Can you tell when you came to know that the shop under the tenancy of your husband has been purchased by accused Rajesh Anand?".In this also, she did not deny that her husband was not a tenant. She stated in the later part of her cross examination that complaint Ex PW1/A is in her handwriting and when she wrote the complaint her husband was also present though he had not gone through complaint. Statement of her husband (Defendant no. 1 herein) was also recorded in that FIR which is also placed on record. During his cross examination he stated that he was not aware who wrote the complaint Ex PW1/A, however, when his wife wrote the complaint Ex PW1/A, he was sitting beside her. Indirectly, he admitted that his wife wrote the complaint. He has also stated during his cross examination that "possession of the suit shop in which 1 am a tenant was given to me by Smt Pushpa Kapoor" thereby supporting the testimony of PW-2 Smt Pushpa Kapoor. xxx xxx xxx

56. This admission of defendant no. 2 is not disputed anywhere……”

24. Insofar as the plea of Mr. Gupta that the respondent in his complaints dated October 07, 2015, October 10, 2015 and October 11, 2015 has referred to the appellants as unauthorised occupants and not tenants and as such they cannot be construed as tenants is also unmerited.The identical plea taken before the Trial Court is answered by the said Court in the following manner: “50. Ld counsel for defendant has pointed out that in the complaints filed by plaintiff and his wife in October 2015, before SHO, PS Lajpat Nagar, they have addressed defendants to be unauthorized occupants.This argument is completely frivolous in view of the recitals of the sale deed reproduced above. Smt. Pushpa Kapoor in the sale deed of a prior date had already clarified that defendant no. 1 is her tenant. So any layman's language/words in a self drafted complaint of harassment cannot be read in a hyper technical manner. It is not at all expected out of a common person having no knowledge of principles of law to choose words and write in the complaint. They cannot, be expected to know the difference between an unauthorized occupant and tenant/licensee and the effect of writing so in their complaint. Plaintiff being a layman would have only been concerned with the property he had purchased for a valuable consideration.Any objection on handing over the same back from the opposite side would make that party an unauthorized occupant.Plaintiff has stated in the plaint itself that defendant no. 1 was asked to vacate the property orally. So this argument is not at all tenable.”

25. I am in agreement with the aforesaid conclusion of the learned Trial Court. This is apart from my finding above, that the appellants have admitted that they are the tenants in shop No.6 (private No.6A). Hence, this plea is also rejected.

26. Further,referringto the appellants as unauthorised occupants does not mean that they are / were not tenants. The purport of the expression in the said notice is, the appellants though tenants, their continuance in thesuit property,has becomeunauthorised.

27. The plea of Mr. Gupta that therespondenthaving not seen the appellants paying rent to PushpaKapoor and also therent deed and rent receipt and the knowledge of tenancy being hearsay, the tenancy between the appellantsand Pushpa Kapoor andalso between appellants and respondentas not having been proved is misplaced / unmerited. My conclusion above, clearly depicts that the tenancy between the appellants and Pushpa Kapoor, having been attorned in favour of the respondent vide her notice dated October 10, 2015, thenceforth, the respondent hasbecomethe landlord with regard to tenancy of the suit property of which the appellant(s) was thetenant.

28. Insofar as the plea of Mr. Gupta that there is contradiction in the testimonies of respondent, PW[2] and PW[3] is concerned, the same is unmerited. I agree with thefollowing conclusion of the learned Trial Court that minor discrepancy in the testimony of PW[2] and PW[3] in paragraph 55 as under is minor, but has no bearing on thecase set up by the respondent: “55. Defendant no. 1 chose to remain silent despite receiving the aforesaid notice wherein Smt Pushpa Kapoor had clearly stated that he was a tenant and he should attorn to the plaintiff now. It is worthwhile to note here that the defendant knew that this was the only letter/document in his knowledge where it was documented that defendant no. 1 was a tenant of Smt Pushpa Kapoor. Had he been in the occupation of suit shop as an unauthorized occupant and was claiming himself to be the owner by way of adverse possession, he ought to have rebutted the contents of the notice and should have put forth his case. Choosing to remain silent cannot at all be interpreted to be in his favour. Smt Pushpa Kapoor has deposed that she inducted defendant no. 1 as a licensee in the year 2000 as she could not openly rent out the shop to anyone owing to the property dispute amongst the family. It is a matter of record that no document has been produced in order to show that defendant no 1 was inducted as a licensee. Therefore, the evidence and pleadings of the parties have to be referred in order to assess the same. The stand of the defendant since the beginning was that he was in open and hostile possession of the suit shop w.e.f. 15.01.2000. The own stand of the defendants which is a joint written statement of the defendants shows that they also say that they came into the possession of the suit shop in the year 2000 which fortifies the version of PW-2 that defendant no. 1 was inducted as a licensee in the year 2000. The testimony of PW-2 inspires confidence as she had narrated the entire sequence of facts explaining why she was compelled to allow the defendant no. 1 to enter into suit shop as licensee. She had explained that there was a dispute with other siblings of her deceased husband and she had a threat of being dispossessed by other LRs of Sh. Bansi Lai. In order to save the suit shop from the other LRs, she found it as a best option to induct defendant no. 1 to carry on his business at the suit shop and thereafter when the matter was settled in the year 2010 and property was mutated in the year 2012 she had asked the defendant to vacate the suit shop but with the intervention of PW-3 Mr. Charchal Dawar, she agreed to let out the suit shop at a monthly rent of Rs. 1,50,000/-, though there is no rent agreement or any rent receipt to prove the same. The deposition of PW-2 is probable as she has been able to establish that there was a property dispute in the family. The plaintiff has produced the best evidence available with him in order to prove the facts pleaded by him, Ld counsel for defendants though has argued that there is some discrepancy in the testimony of PW-2 & PW-3 with respect to certain facts, however, it is to be kept in mind that the testimony of these witnesses were recorded during the Covid-19 Pandemic wherein witnesses had the threat of contacting the deadly disease while coming to the court and specially the lady being more than 70 years old could not have been expected to depose more clearly as she did, in the witness box. There are certain minor discrepancies in the statement of PW-2 & PW-3 on some points but they do not even touch the basic case pleaded by plaintiff. Both the witnesses have confirmed that meeting had taken place at the residence of Smt Pushpa Kapoor, defendant no. 1 agreed to pay Rs. 1,50,000/- per month as rent and there was no rent agreement. It is also to be borne in mind that neither PW-2 nor PW-3 had any interest in the case at the time when they came to depose in the court. I do not find any kind of discrepancy in the testimony of these witnesses, to an extent that it should be discredited. A minor discrepancy which has been pointed out by the counsel for defendant are of no relevance as it is a civil suit and civil suits are decided on the basis of scales of preponderance of probabilities. Plaintiff has supported his case with the testimony of his predecessor in interest who was the most important witness and was the best evidence available with him. She had undergone test of cross examination very beautifully and had testified to the hilt……”

29. The above shall also answer the plea of Mr. Gupta that neither the respondent nor his predecessor-in-interest i.e. PW[2],Pushpa Kapoor were able to produce any document nor to showthat the appellants were licensees of PW[2], Pushpa Kapoor or that they became tenant w.e.f. February 01, 2013.

30. Additionally, I must state that thecase of the respondent, who was the plaintiff before the Trial Court was based on the registered sale deed dated September 9, 2015 purchasing the suit property. Having become the owner of the suit property and the appellants being the (undisputed / admitted) tenant(s) and tenancynot beinga statutory one, it must follow that, the respondent was within his right to seek the possession of the same along with rent / arrears of rent.

31. The plea of Mr. Gupta that thenoticeof termination of tenancy was not given to appellant No.2 by PushpaKapoor is also unsustainable in view of the finding of the Trial Court in paragraph 47 which I reproduce hereunder: “47. Therefore, it is clear that there is no anomaly in the pleadings. The consistent statement of plaintiff is that only defendant no. 1 was inducted in the suit shop by Smt Pushpa Kapoor and not defendant no. 2. In any case defendant no. 2 was married to defendant no. 1 later on. Its just that she is running the suit shop with her husband. So the objection of the defendants counsel that defendant no. 2 was not given notice by Smt Pushpa Kapoor is inconsequential.”

32. It is also a matter of record that noticedated January07, 2016 of the respondent was addressed to both the appellants wherein he has asked the appellants to vacate the suit property and pay him the arrears of rent. So, the suit was rightly filed against theappellants.

33. Insofar as the relief of mesne profits granted by the Trial Court is concerned,Mr. Gupta has not madeany submission both on the grant of mesne profits per se and also on the quantum of mesne profits awarded. The only ground taken in the appeal with regard to mesne profits is ground JJJ wherein the appellants have stated that the Trial Court has erred in granting mesne profits against theappellant No.1 at ₹2,55,000/- per month without any plausible reason. The said ground is unmerited as the Trial Court while granting the said relief has given the following findings: “60. In order to prove market rate of rent, plaintiff has examined PW-4 Sh Sanjay Goswami from Sub Register Office, Mehrauli who has brought the partition deed with respect to the suit shop, three registered lease agreements pertaining to shop no, 9 which is near the suit shop of 24.10.2008 with respect to 1/3rd undivided share of the basement and ground floor of shop no. 9 and also three lease agreements with respect to same shop no. 9 of 07.07.2015.As per the said lease deed of 2015 Ex PW4/5, Ex PW4/6 and Ex PW4/7 on record. the monthly rent of 1/3rd undivided share of shop no. 9 was Rs. 85,000/-. Therefore, entire shop no. 9 which was let out by way of three separate registered lease deed was let out for a monthly rent of Rs. 2,55,000/-per month. Shop no. 9 undisputingly is in the vicinity of suit shop. The market rent of the contemporary period has been proved on record. Plaintiff has claimed damages from 01.02.2016. There is no reason to disbelive the testimony of plaintiffs witness. Therefore, mesne profits from defendant no. 1 @ Rs. 2,55,000/- per month is granted w.e.f from 01.02.2016 till date of handing over the possession of suit shop by defendants to plaintiff.”

34. The above reveals that the learned Trial Court has relied upon the monthly rent as being payable in shop No.9 which is in the vicinity of the suit property for granting the relief. There is basis for the Trial Court to grant the mesne profits and the same cannot be set aside.

35. A plea that the suit has not been properly valued for the purpose of jurisdiction as well as for the purposeof Court fee is concerned, the Trial Court was of the view that theonus to prove this issue was upon the appellants.However,the defenceof the appellants was struck-off. Even otherwise, theTrial Court held that the court fee has been properly filed on the amount of 12 months rent sought for by the respondent. It was also of the view that the suit has been properly valued for the purpose of jurisdiction and court fee. There is no illegality in such finding.

36. Insofar as the judgments relied upon by Mr. Guptain support of his submissions are concerned, in Biswanath Agarwalla (supra), the Supreme Court held that thelandlord tenant relationship was not proved. The plaintiff was permitted to amend his original suit and make it a suit on the basis of title by paying ad-valorem court fee. This case can be differentiatedon facts,as in that case the issue of the appellant therein acquiring title through adverse possession was found to be plausible, however no issue had been framedin that regard, which is not the case in the present appeal. Thelearned Trial Court hadframed an issue, but the appellants failed to lead evidence on this aspect.Hence reliance on this judgement is misplaced.

37. Similarly, in KailashPaliwal (supra) the Supreme Court held that the suit seeking possession on the basis of landlord and tenant relationship was disalloweddue to the failure of establishing the same. A fresh suit based on titlewas allowed to be filed. This judgment too does not aid the case of the appellants as an issue was framed on this facet, however in absence of any evidence and in light of the admission of the appellants,beingtenants in terms of Ex. PW1/A, Mr. Gupta’s reliance on this judgmentis of no avail. Reliance has also been placed by Mr. Gupta on thejudgment in the case of Nazir Mohamed (supra), to state that theplaintiff’s claim to relief has to be decided on the basis of strengthof his case and not on the weakness of the defendant’s case; and in a suit for possession,limitation has to be dealt with and if it is barred by limitation,the sameneed to be dismissed. Mr. Gupta’scase is not bolstered by relying on this judgment,as this judgement is based on a different factual background. Furthermore, there is a categorical finding of the learned Trial Court on theissue of limitation in light of the landlord-tenant relationship that exists between the parties and this Court with reference to the reasoning given above, finds no infirmity with the conclusion of the learned Trial Court.

38. In Shalu (supra), the Court held that the parties are required to present best evidence available with them. If any document is withheld, adverse inference should be taken.The Division Bench of this Court in the said case had dealt with an issue pertaining to maintenance, which is not the issueat hand.Similarly,in Messrs Bansidhar Ganga Pershad Agency (supra) on similar lines,the Court while dealing with an issue pertaining to sale of goods held adverse inference has to be drawn, if relevant documents have not been brought on record or withheld by a party. Needless to state, both these judgments are differentiable on facts. Be that as it may, in the instant case the respondent has presented adequate evidence and it is in fact the appellants who have not led evidence. Therefore, the reliance placed by Mr. Gupta on these judgments does not aid his case. In Kashi Nath (Dead) through Lrs. (supra), it is held if the evidence presented before the Court is not in line with pleadings or at variance with it, then the same cannot be looked into. The Supreme Court in that case had dealt with issues arising out of adoption pertainingto personal laws. I am afraid that the judgment as relied upon by Mr. Gupta for the propositions as noted above, have no applicability in the facts of this case as being distinguishable of facts, more so, in view of my conclusion above.

39. No submission has been made by Mr. Gupta on the quantum of interest granted. Theappeal by the appellants is bereft of merit and is dismissed.

40. There is one aspect, which this Court is of the view, need to be highlighted,inasmuch as the learned Trial Court having granted the mesne profits w.e.f. February 01, 2016, till the handing over of the possession,but has not directed the respondent to pay the court fee on the mesne profits,this Court directs that the respondent is liable to pay the court fee on the mesne profits thereon granted by the learned Trial Court and the same shall be paid within a period of six weeks from today.

41. Modified decree shall be prepared. CM No. 12490/2021 (for stay) In light of the fact that I have heard the parties finally on merits and dismissed theappeal, this application is also dismissed.

V. KAMESWAR RAO, J

JANUARY 12, 2022 /jg