Aas Mohammad vs Sabiha Akhtar

Anu Malhotra, J

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.

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 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.

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 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 IPC. 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.

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.

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 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.

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.

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

(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.

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

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

(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.â€​

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.

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 redundant and were not readable in evidence.

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

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.

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.

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.

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) /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.

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

section 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.

A signed document carries presumption that the document was signed after the same was written and contents 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 29 7observed 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 genuinenessâ€​.

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.

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 Evidence 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.

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

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-1&2 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.

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

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 Sh. Sriram Pistons and Rings Ltd. vs. Basant Khatri, 1990 (2002) DLT 769 and M/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.â€​

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.â€​

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 contents of the same. The

appellant/defendant has filed suit for Cancellation of Sale Deed in respect of suit property which is pending adjudication.

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.â€​

and held to the effect:

“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.â€​

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.â€​

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 Land 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).â€​ ,

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).

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 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.

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?â€​

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 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.

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 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;

(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.â€​

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.

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 deedexecuted by the appellant/defendant and the respondent/plaintiff.

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

“(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?â€​

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.

Reliance was placed on behalf of the petitioner on the verdict of the Hon’ble Supreme Court in Prem Singh and Ors. Vs. Birbal andOrs.

(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 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.

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.