Harinder Pal Singh v. Krishak Bharti Cooperative Ltd

1. The present appeal arises out of a suit for possession and mesne profits filed by the Appellant/Plaintiff (hereinafter „Plaintiff‟) against the Respondent/ Defendant (hereinafter, „Defendant‟). Lease deed dated 12th January, 1982 was entered into between the predecessors of the Plaintiff with the Defendant. The admitted rent as per the lease deed was Rs.5,911/per month. The Defendant was paying rent to the predecessors of the Plaintiff. The Plaintiff had purchased the property from the predecessors in 1996 but the mutation in his favour took place only in 2006. Since the Defendant did not pay the rent to the Plaintiff even after intimation, but continued to pay the same to the predecessors of the Plaintiff, the Plaintiff wanted to terminate the tenancy. He demanded that the rent be paid in his name vide notice dated 27th November, 2007. However, despite the receipt of the said letter, it is the allegation of the Plaintiff that the rent was not paid. The Plaintiff, vide notice dated 20th September, 2008, terminated the tenancy 2018:DHC:1456 and demanded the arrears of rent be paid within 15 days.

2. The Defendant did not hand over vacant and peaceful possession of the property. A suit was then filed seeking possession, recovery of rent and mesne profits. The said suit being No.05/2008 was withdrawn due to technical objections. The Plaintiff thereafter served a statutory notice dated 1st April, 2009 under Sections 106 and 111 of the Transfer of Property Act, 1882 read with Section 115 of the Multi State Cooperative Societies Act,

2002. The amounts due were quantified. Despite service of the said notice, the Defendant did not vacate the property. Hence the subject suit came to be filed on 22nd August, 2009 where the following reliefs were prayed for: “(a) Pass a judgement and decree for possession in favour of the plaintiff and against the defendant society in respect of Flat No.303, Red Rose House, 49-50, Nehru Place, New Delhi more particularly described and marked in red colour in the site plan annexed herewith. (b) Pass a further decree for future mesne profits/damages in favour of the plaintiff and against the defendant society awarding damages/mesne profit Rs. 80,000/- from July 2009 or any other higher rate this Hon'ble Court may determine in favour of the plaintiff and against the defendant society till the possession is handed over by the defendant society alongwith pendent lite and future interest calculated@18% p.a. or higher as is prevailing in the market.

(c) Pass a further judgement and decree in favour of the plaintiff and against the defendant society awarding a sum of Rs.15,84,395/-(Fifteen Lakh Eighty Four Thousand Three Hundred Ninety Five Only) towards arrears of rent as mentioned in the plaint alongwith pendent lite and future interest calculated @18% p.a.

(d) award costs of the suit in favour of the plaintiff‟s and against the defendant, and (e) pass such other or further orders as may be deemed fit and proper by this Hon'ble Court on the facts and in the circumstances of the case.”

3. The stand of the Defendant was that the Plaintiff was not the owner of the property and that the Plaintiff had not issued any notice intimating the ownership or the sale of the property in favour of the Plaintiff. Objections under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter, „CPC‟) were also raised. The following issues were framed in the suit: “1. Whether the plaintiff is the owner of the suit premises ?

2. Whether the plaintiff is entitled to possession of the suit premises or not?

3. Whether the plaintiff is entitled to recovery of rent, mesne profit. If so, at what rate and for which period ?

4. Whether the plaintiff is entitled to interest on the amount as due and at what rate ?

5. Whether the suit as filed by the plaintiff is not maintainable for want of notice U/Sec.111 of Multi Cooperative Societies Act? If so, its effect?

6. Relief.”

4. During the pendency of the suit, the Defendant deposited the keys of the property in the Trial Court on 26th October, 2013. However, possession was handed over to the Plaintiff only on 2nd May, 2015 when the impugned judgment was passed. The Trial Court came to the conclusion, after perusing the evidence, that the Plaintiff had no reason to remain silent for 11 years after purchase of the property. The Trial Court also observed that there is a serious doubt which was raised as to the title of the Plaintiff to the suit property. However, the final conclusion of the Trial Court was on the basis of preponderance of probability. The Plaintiff was held to be the owner of the property. In so far as possession is concerned, no issue was to be adjudicated before the Trial Court as the key stood deposited with the Trial Court on 26th October, 2013.

5. For determination of mesne profits, the Plaintiff had placed on record one lease deed with respect to property no.26, Deepak Building, 13, Nehru Place, Delhi measuring 609 sq. ft. which was let out January, 2008, @ Rs.61,000/- per month for two years with an escalation clause of 20% increase. However, the Trial Court simply rejected the said agreement on the ground that the condition of the said property was not disclosed and held that this agreement cannot be made the basis for determining mesne profits, merely because it was located in the same area,. The Defendant had not led any evidence on the issue of mesne profits. Under the said circumstances, the Trial Court merely gave a 15% increase on the last paid rent of Rs.5,911/- in the following manner: Sr. No. Last Paid Rent Period Rate of Mesne Protif

1. Rs.5,911/- 01.05.2009 to 30.04.2010 Rs. 6,800/-x 12

2. Rs.6,800/- 01.05.2010 to 30.04.2011 Rs. 7,820/-X12