Delhi High Court
Anju Sharma vs Deepak Oberoi on 29 July, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 07th May, 2026
Pronounced on: 29th July, 2026
+ RFA 534/2024
ANJU SHARMA
W/O SHRI RAJESH GANDHI,
R/O 101, PANNA VIHAR,
MALAVIYA ROAD,
VILE PARLE (EAST),
MUMBAI-400 047
.....Appellant
Through: Mr. Ateev Mathur, Mr. Amol Sharma,
Mr. Sanjay Gupta and Mr. Kanishak
Ahuja, Advocates
versus
DR. DEEPAK OBEROI
S/O LATE SHRI G.R. OBEROI
R/O 4/19, 1ST FLOOR,
WEST PATEL NAGAR,
NEW DELHI- 110008
.....Respondent
Through: Ms. Pinky Anand, Sr. Advocate with
Ms. Saudamini Sharma, Mr. Ajay
Gupta, Mr. Samrat Pasriccha,
Ms. Adeti Salooja, Mr. Shashank
Chamoli, Mr. Mohd. Shakir and
Mohd. Saifan, Advocates
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular First Appeal under Order XLI read with Section 96 of the
Code of Civil Procedure, 1908 (hereinafter referred to as “CPC“) has been
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filed on behalf of the Appellant against the Judgment and Decree dated
13.05.2024 whereby the Suit of the Plaintiff for recovery of possession,
arrears of rent, damages and mesne profits, was dismissed.
2. The Plaintiff Anju Sharma filed a Suit bearing No. 7671/16 for
recovery of possession, arrears of rent, damages and mesne profits.
3. The brief facts as narrated in the Plaint are that Sh. Ram Nath
Nijhawan, son of Sh. Jessa Ram was the owner of the property bearing No.
4/19, West Patel Nagar, New Delhi, by virtue of a registered Perpetual Lease
Deed dated 29.04.1960. Sh. Ram Nath Nijhawan expired on 13.03.1965 and
his wife Smt. Basanti Devi succeeded to the property. However, she also
died on 09.02.1992.
4. Sh. Ram Nath Nijhawan and Smt. Basanti Nijhawan were survived by
two sons, Sh. Yogesh Kumar Nijhawan and Sh. Ashok Kumar Nijhawan and
two daughters, Smt. Suraksha Malik and Smt. Sanjokta Vij. Sh. Ashok
Kumar Nijhawan had been missing and not traceable since 1972. Therefore,
he was presumed to be dead. The second son Yogesh Kumar Nijhawan, who
was unmarried, died on 17.12.1998. The daughter Smt. Sanjokta Vij
executed a Relinquishment Deed dated 26.03.2002 in favour of her sister,
Smt. Suraksha Malik. Therefore, Suraksha Malik became the exclusive
owner of the suit property.
5. Smt. Suraksha Malik sold the property to the Plaintiff Anju Sharma
vide registered Agreement to Sell, GPA, Receipt, etc., dated 21.03.2005, for
a sale consideration of Rs.10,50,000/-.
6. It was explained that Sh. Yogesh Kumar Nijhawan as the landlord,
had inducted Defendant, Sh. Deepak Oberoi as a tenant, in respect of first
floor of the suit property (hereinafter referred to as the “Suit Property”)
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vide Lease Deed dated 01.11.1994 and 01.10.1995 and the last rent paid to
Yogesh Kumar Nijhawan was Rs.3,000/- per month.
7. The Plaintiff stated that she served a Notice dated 27.07.2009 upon
the Defendant explaining how she has acquired the ownership of the
property and demanded arrears of rent for the last three years, to be paid
within two months of receipt of Notice. She also enhanced the rent by 10%
which was due after three years under Section 6A of the Delhi Rent Control
Act (hereinafter referred to as the “DRC Act“). The tenancy of the
Defendant was also determined. The Defendant gave a reply dated
10.08.2009. Therefore, the defendant became liable to pay rent @ Rs.3,300/-
per month.
8. The Plaintiff again served a Notice dated 31.07.2012 enhancing the
rent by 10%, i.e. to Rs.3,630/- after the expiry of month of service of Legal
Notice. The Defendant gave a Reply dated 18.08.2012 to the Legal Notice,
but he did not pay the arrears of rent.
9. The Plaintiff asserted that with the two Legal Notices, the rent has got
enhanced to Rs.3,630/- w.e.f. 04.09.2012 and the protection of DRC Act
ceased to exist. The Plaintiff thus, filed the Suit claiming possession, arrears
of rent in the sum of Rs.1,22,430/- along with interest @ 15% p.a. and also
served damages/mesne profits @ Rs.40,000/- per month w.e.f. 04.10.2012
till the handing over of the possession.
10. The Defendant Deepak Oberoi in his Written Statement took the
preliminary objections that the Suit is based on false and concocted
documents, through which the Plaintiff is claiming herself to be the owner.
She in fact, is a stranger qua the Defendant and he does not recognize the
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Plaintiff as a lawful legal purchaser owner of the suit property. All the
documents of sale, were claimed to be false and fabricated.
11. Further objection was taken that the Suit was grossly undervalued.
The material fact had been concealed from the Court. The Suit was barred
by the limitation under Section 111(a) of the Transfer of Property Act, 1882
(hereinafter referred to as the “TPA Act”). The lease of the Defendant was
determined by efflux of time since Lease Deed dated 01.10.1996, which was
for the duration of 11 months. Further, from September 1997 till December
1998, while Sh. Yogesh Kumar Nijhawan, owner of the property was still
alive, but he made no attempt to get the property vacated from the
Defendant upon his demise.
12. His sisters, Suraksha and Sanjokta claimed themselves to be the
owner of the suit property, in equal share. However, neither of the two
sisters took any steps for seeking possession. They slept over their
proprietary rights, which led to the expiry of statutory period of 12 years,
i.e., during which the sisters could legally have claimed their rights over the
suit property, in terms of Section 27 Limitation Act. The Defendant claimed
that the Plaintiff has thus, lost the right to claim suit property from the
Defendant.
13. It is further submitted that Smt. Suraksha Malik had filed a Suit No.
125/1995 for partition against her brother late Yogesh Kumar Nijhawan and
her sister Smt. Sanjokta Vij. However, on demise of Yogesh Kumar
Nijhawan, the property devolved upon the two sisters, but neither of them
took any step to seek possession of the suit property.
14. The Plaintiff Anju Sharma has based her claim to the property on the
basis of an Agreement to Sell, GPA, Will, etc. However, the Plaintiff has
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failed to implead Smt. Suraksha Malik, who was necessary party for
adjudicating the matter in dispute in the present Suit.
15. The Defendant further claimed that the sale documents relied upon by
the Plaintiff, were forged and fabricated. The falsity of the claim can be
demonstrated from the Letter of Attornment dated 21.03.2003 purportedly
written by Smt. Suraksha Malik to the Defendants, wherein she had stated
that she had sold the suit property to the Plaintiff, vide the documents dated
21.03.2005.
16. The Defendant had asserted that in the Letter of Notice of Attornment
dated 21.03.2003, the date of Agreement to Sell is mentioned as 21.03.2003
when in fact, the documents bear the date of 21.03.2005; it all reflects the
manipulation and the fabrication of the documents. Moreover, the Plaintiff
herself has asserted that she had purchased the property on 21.03.2005,
thereby indicating that the purported Attornment Letter dated 21.03.2003,
i.e., two years prior to the date of the purchase of the property by the
Plaintiff, is a false and fabricated document.
17. The extent of conspiracy between the Plaintiff and her sister Suraksha
Malik, can also be understood from the fact that even the Relinquishment
Deed executed between the sisters, has been signed by purported Power of
Attorney holder of Smt. Sanjokta Vij, while no copy of the Power of
Attorney has been filed along with the Relinquishment Deed. The Plaintiff
and Suraksha Malik have attempted to take advantage of the fact that
Sanjokta Vij is resident of outside India and has no information about the
misdeeds of her sister and her illegal desires to take over the suit property.
18. The Relinquishment Deed is void ab initio and is of no legal
consequence, since no Power of Attorney of P.K. Mullick has been filed to
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show that he had an authority to execute the Relinquishment Deed on behalf
of Sanjokta Vij.
19. The Defendant has further asserted that the substitution letter dated
13.10.2004 issued by L&DO, is an unsigned typed copy, while the original
has not been placed on record.
20. The Defendant further claimed that he has acquired the title in the suit
property by way of adverse possession in terms of Article 65 Limitation
Act. The tenancy got determined in September, 1997 and no steps were
taken to recover the possession of the suit property, and the time of 12 years
stand expired. Moreover, it is the Defendant who has been paying for the
maintenance and upkeep of the suit property. The payment of taxes in
respect of suit property by the Defendant, establishes his occupation in the
suit property in his own right, which also corroborates the plea of adverse
possession. The Suit is barred by limitation within the meaning of Section
27 read with Article 65 Limitation Act.
21. The Defendant has made a reference to Vasantiben Prahladji Nayak
and Ors. v. Somnath Mulji Bhai Nayak and Ors. AIR 2004 SC 1893 wherein
it was held that in case of the adverse possession, the static point of
limitation does not commence from the day when the Plaintiff acquires the
ownership, but from the day when the Defendant’s possession becomes
adverse, which in the instant case is September, 1997.
22. Further, the Supreme Court in the case of Commissioner of Customs,
Kandala v. Essar Oil Ltd. and Others, (2004) 11 SCC 364 held that fraud is
well known to vitiate every solemn conduct. In fact, fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be perpetuated
or saved by application of any equitable doctrine including res judicata.
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Similarly, in Hazma Haji v. State of Kerala & Anr. AIR 2006 SC 3028, the
Supreme Court held that no Court would allow itself to be an instrument of
fraud.
23. In O.P. Kurechia v. Manju & Ors. RFA No. 293/1997 decided on
02.09.1998, it was held that where the purchaser is unable to prove with
cogent evidence that he is a bona fide purchaser, he cannot file any Suit on
the basis of such documents.
24. It is further asserted that even though Plaintiff has claimed that all the
documents were registered, but since Smt. Suraksha Malik herself did not
have any proper title, she could not have conferred a better and a valid title
on the Plaintiff.
25. The doctrine of privity of contract is the fundamental assumption of
formal law. There is no privity of contract with the Plaintiff, who has no
locus standi to file the Suit. Moreover, though the Plaintiff has made a
reference to Delhi Rent Control Act, but the Suit is in the purview of the
Delhi Rent Control Act. The present Suit is, therefore, liable to be
dismissed.
26. On merits, it is admitted that the defendant came into the property by
virtue of Lease Deed in 1989, entered into with late Yogesh Kumar
Nijhawan, which was renewed from time to time for a period of 11 months.
The Defendant stated that the last license fee was executed by Yogesh
Kumar Nijhawan on 01.10.1996, which was only for a period of 11 months,
i.e., till 31.08.1997, after the expiry of the said 11 months. The tenancy
automatically came to an end by virtue of Clause 4 of Lease Deed. However,
despite determination of the tenancy, the Defendant continued in possession
of the suit property without renewal of Lease Deed and without paying any
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rent, in view of his possession. He managed to set up a title hostile to that
against the owner of the suit property.
27. It is further stated that after expiry of Sh. Yogesh Kumar Nijhawan,
his sister Suraksha Malik was contesting the Suit for partition against him at
that time and during the course of the Suit, Smt. Suraksha Malik was well
aware about the possession of the Defendant in the suit property.
28. Insofar as the ownership of Plaintiff is concerned, it was claimed that
the Agreement to Sell, etc., dated 21.03.2003 were forged and fabricated.
The service of the two Legal Notices sent in the year 2009 and 31.07.2012,
was admitted.
29. It is claimed that had the Plaintiff been a genuine owner/buyer of the
suit property, she would not have remained silent in seeking possession of
the suit property and let her claims be barred under Limitation, as per
Section 27 Limitation Act.
30. The Defendant has been enjoying continuous and unhindered
possession over the property, since the termination of Lease Deed dated
01.10.1996. He has become owner of the suit property by way of adverse
possession. Hence, it was submitted that the Suit of the Plaintiff is liable
to be dismissed.
31. The Plaintiff in the Replication, reaffirmed her assertions made in the
plaint and denied the objections and the grounds taken by the Defendant in
the Written Statement. It was asserted that it was immaterial that whether the
Defendant recognizes the Plaintiff as owner or not, but she is the owner of
the suit property, in accordance with the law, having stepped into the shoes
of erstwhile owner from whom the property has been purchased for valuable
consideration.
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32. It is further asserted that after the termination of tenancy by efflux of
time in the year 1997, he became a statutory tenant on month-to-month
basis, till his tenancy was terminated by the Plaintiff by serving Notice dated
27.07.2009. It was further submitted that the rent had been enhanced by 10%
under Section 6A DRC Act, vide two Legal Notices and the protection of
DRC Act is not available to the Defendant.
33. The learned District Judge vide Order dated 17.11.2015 framed the
issues as under:-
“i) Whether the defendant is entitled to raise the
defence of ownership by way of adverse
possession? OPD.
ii) Whether the suit filed by the plaintiff is based
upon false, fabricated and manipulated docum
ents? IPD.
iii) Whether the plaintiff has not properly valued
the suit for the purpose of court fees and jurisdict
ion? OPD.
iv) Whether the suit filed by the plaintiff is bad for
nonjoinder or necessary parties: OPD.
v) Whether the suit filed by the plaintiff is barred
by Delhi Rent Control Act? OPD.
vi) Whether the plaintiff IS entitled for recovery of
possession of the suit premises as prayed for ?
OPD.
vii) Whether the plaintiff is entitled for decree for
a sum of Rs.l ,22,430/- along with interest @ 15%
p.a. as prayed for ? OPD.
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viii) Whether the plaintiff is entitled for money
decree for damages/mesne profits @Rs 40,000/-
per month w.e.f. 04.03.20 12. OPP.
ix) Relief.”
34. The Plaintiff in support of her case examined PW1 Rakesh Sharma,
Superintendent Land and Development Officer, who produced the original
record dated 13.10.2004 whereby the name of Smt. Suraksha Malik was
substituted/mutated. The copy of the document is Ex.PW1/1. He also
produced the Lease Deed dated 29.04.2016 in respect of the property in
question in the name of Ram Nath Nijhawan.
35. PW2- Anju Sharma, the Appellant deposed about the facts as
narrated in the plaint. She proved the documents Ex.PW2/1.
36. DW1-Rabi Shankar, Data Processing Assistant, Census
Commissioner, who proved the Notifications dated 07.09.2000, 26.09.2012
which are Ex.DW1/1 to DW1/3.
37. DW2-Kishor Kumar from the Office of Sub-Registrar, brought a
death record register Ex.DW2/A pertaining to the year 1990 and deposed
that the death record of Sh. Ashok Kumar Nijhawan vide Registration No. 4
dated 29.02.1990, is not mentioned in the Report.
38. DW3 Rakesh Sharma, Superintendent Land and Development
Officer, produced the record pertaining to the Suit Property, which is
Ex.DW3/1.
39. DW4-Deepak Oberoi, the Defendant deposed on similar lines as the
defence taken in the Written Statement.
40. The learned District Judge, in the impugned judgement dated
13.05.2024 observed that admittedly the Defendant had entered into the suit
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property as a tenant and even after the termination of tenancy by efflux of
time, he acquires the status of statutory tenant, under the Delhi Rent Control
Act and in any case, he becomes a tenant at sufferance. Mere expiry of the
term of license or lease, would not entitle the Defendant to claim adverse
possession. The person who is in permissive possession, can never raise a
plea of adverse possession against a person who had permitted him to enter
the premises. It was thus, concluded that the plea of adverse possession as
claimed by the Defendant, was not tenable against the Plaintiff.
41. It was, however, held that the Plaintiff had no right, title or ownership
in the suit property on the basis of Agreement to Sell, etc., dated 21.03.2005.
Furthermore, there was no Letter of Attornment giving her an authority to
collect the rent from the Defendant. It was thus, held that the
Plaintiff/Appellant were was not entitled to receive the rent or mesne profit
from the Defendant. The Suit of the Plaintiff was, therefore, dismissed.
42. Aggrieved by the said judgment, the Appellant has preferred the
present Appeal.
43. The grounds of challenge are that it has been erroneously held that
the Appellant was unable to establish her ownership in accordance with law.
It has not been appreciated that the Plaintiff had valid documents of sale,
namely, registered Agreement to Sell, etc., executed in her favor by Smt.
Suraksha Malik by virtue of which she acquired the ownership in the Suit
Property.
44. Pertinently, no defence had been raised on the confirmation of title on
the basis of the aforesaid set of title documents and no issue had been
framed in this regard. Once no issue was framed, the Court could not have
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questioned the ownership of the Appellant on the basis of these title
documents.
45. The Respondent had claimed in his Written Statement that the title
document was fabricated, but failed to lead any evidence whatsoever in this
regard. No fabrication of the documents could be proved.
46. The Suit for possession was for eviction of a tenant and there was no
dispute of title amongst the owners and thus, the Plaintiff could not have
been ousted on this ground. Merely because the name of the Appellant has
not been substituted in the records of L&DO, is of no consequence as it is
established law that mutation of a property in favor of the person, does not
confer the ownership or the title. The Appellant indeed had applied for
getting the property in question converted from lease hold to free hold,
which could not be processed on account of various illegalities committed
by the tenant on the other floors of the property in question.
47. The reliance on Suraj Lamp & Industries Pvt. Ltd. v. State of
Haryana & Anr., AIR 2012 SC 206, is misplaced as in the said judgment
itself, the Supreme Court made it clear that the ownership of the person
based on Agreement to Sell, etc., cannot be doubted if they are executed
prior to the date of decision.
48. The judgment of Shakeel Ahmad v. Sayed Akhlaq Hussain Civil
Appeal No. 1598/2023 dated 01.11.2023 is based on its own fact and is not
applicable to the case of the Appellant. Likewise, the judgment of
Ganshyam v. Yoginder Rathi is in respect of unregistered documents, while
the documents of the Plaintiff are registered.
49. It is further explained that there was a typographical error in
mentioning the Attornment Letter as dated 21.03.2003, instead of
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21.03.2005. Even if it is assumed that this Attornment Letter had not been
sent, it does not make any difference once the Appellant became the owner
of the suit property, which stood transferred to her by operation of law.
50. Section 109 TPA would apply and successor in interest would be
entitled to the rights of the predecessor. It has not been appreciated that the
Appellant had a better title than the Respondent and the relief could not have
been denied to her.
51. The prayer was, therefore, made that the impugned judgment be set
aside and the Suit of the Plaintiff for possession, arrears of rent and mesne
profits be decreed.
52. The Appellant had filed the Written Submissions, which were
essentially on the same lines, as the grounds of appeal.
53. The Respondent in the Written Submissions asserted that the alleged
Agreement to Sell on which the reliance was placed by the Plaintiff was
illegal and unenforceable since the Plaintiff had no right, title and interest in
the Suit Property. The Relinquishment Deed was also illegal, unenforceable
and deficient in the stamp duty.
54. It was claimed that the Attornment Letter mentioned the date as
21.03.2003, when in fact the same transaction had allegedly taken place vide
documents dated 21.03.2005 thereby reflecting that the Attornment Letter
has been fabricated.
55. The Respondent is in adverse possession of the suit property since
October 1997 and as his possession has been peaceful, undisturbed and
continuous till date, the suit of the Plaintiff for possession is barred under
Section 54 TPA, as he has no registered Sale Deed in her name. The
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Agreement to Sell, etc., does not confer any right, title or ownership in the
suit property.
Submissions heard and record perused.
56. The Plaintiff/Appellant had sought possession of the suit property
from the Defendant/tenant, being the owner/landlord of the suit property,
having purchased it from the erstwhile owner Smt. Suraksha Malik, by
virtue of agreement to Sell, etc. dated 21.03.2005 for a sum of Rs.
10,50,000/-.
I. Whether the Plaintiff/ Appellant is the Owner/Land-Lord of the Suit
Property:
57. The Plaintiff has explained that originally, the suit property was
owned by Sh. Ram Nath Nijhawan, in whose favour, the Lease had been
executed by the L&DO in the year 1960. After his demise in 1965, the
Property devolved upon his wife, Smt. Basanti Nijhawan, two sons, Sh.
Yogesh Kumar and Sh. Ashok Kumar and two daughters, Ms. Sanjokta Vij
and Ms. Suraksha Malik. The son, Sh. Ashok Kumar Nijhawan had gone
missing since 1972 and was never found or his whereabouts traced.
Consequently, in terms of Section 108 of the Evidence Act, he is presumed
to be dead.
58. Sh. Yogesh Kumar Nijhawan, the son of Smt. Basanti Nijhawan,
acting as a landlord, had rented out the suit premises to the Defendant in
1989 and admittedly, the Defendant continued to be a tenant in the Suit
premises. The last Lease Deed was executed on 01.10.1996, which not only
recorded the relationship between the parties, but also mentioned that the
rate of rent was Rs.3,000/- per month.
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59. As stated by the Defendant, Ms. Suraksha Malik had instituted a Suit
for Partition and rendition of accounts vide Suit No. 125/1995 against her
brother Sh. Yogesh Kumar Nijhawan and Ms. Sanjokta Vij. However, Sh.
Yogesh Kumar Nijhawan died on 17.12.1998, while Smt. Basanti Nijhawan
died on 09.02.1992. Thus, the two sisters became the owner of the property
in question.
60. Smt. Sanjokta Vij (who was based in US), executed a registered
Relinquishment Deed dated 26.03.2002, Ex. PW2/2, through her Power of
Attorney holder, Sh. P.C. Malik in favour of Smt. Suraksha, her sister, who
then became the absolute owner of the suit property.
61. The Defendant/tenant has questioned the registered Relinquishment
Deed dated 26.03.2002, on the ground that the SPA of Sh. P.C. Malik, who
on behalf of Ms. Sanjokta Vij, had executed the Relinquishment Deed, was
not placed on record. However, the Relinquishment Deed is a registered
document and also it was never ever challenged by Ms. Sanjokta Vij. There
is no basis for challenge of the validity of this Relinquishment Deed by the
Defendant. Moreover, the suit property was mutated in the name of Smt.
Suraksha Malik, vide Letter dated 13.10.2004, Ex.PW1/1, issued by the
Office Department of L&DO. Ms. Suraksha Malik is, therefore, proved to
be the absolute owner of the suit property.
62. The Appellant has questioned the long quietude of Ms. Sanjokta Vij
and Ms. Suraksha Malik, in not seeking eviction of the tenant despite being
well aware of the fact that the Defendant was in possession of the suit
property. As is evident from the aforesaid discussion, the erstwhile owners
were interse trying to settle the title of the property, but that would not
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change the status of the tenant, to that of ownership nor would the delay in
seeking the eviction confer any ownership rights on the tenant.
63. Furthermore, the Appellant, the subsequent buyers, had served two
Legal Notices for enhancement of rent over a period of time, to overcome
the bar of Delhi Rent Control Act.
64. Ms. Suraksha Malik, on acquiring absolute ownership, sold the suit
property to Ms. Anju Sharma vide Registered Agreement to Sell, GPA, Will
dated 21.03.2005, which are Ex.PW2/3 (colly.). The entire edifice of
challenge to the present Suit and resistance to possession of the Defendant,
is essentially based on the challenge to the ownership of the Plaintiff, by
virtue of these documents.
65. The first objection taken is the Agreement to Sell, is merely an
Agreement to Sell and does not create any right title, interest in the suit
property, as has been held by the Hon’ble Supreme Court of India in the
case of Suraj Lamps & Industries Pvt. Ltd. vs. State of Haryana & Anr. AIR
2012 SC 206.
66. First and foremost, what emerges, is that though these documents
may not create an absolute title and may entitle the Plaintiff, to get the
document. The Property mutated in her name or to get a Sale Deed executed
from the concerned Department, as has been observed in the case of Suraj
Lamp (supra), but it definitely creates a title superior to that of the defendant
who entered in the suit property as a tenant.
67. It may be mentioned that in the Agreement to Sell, it was specifically
mentioned that the Plaintiff shall have a right to collect the rent from the
tenants, thereby reflecting that the Plaintiff stepped into the shoes of
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erstwhile owner and became the landlord with a right to collect the rent from
the Defendant.
68. Moreover, the GPA dated 21.03.2005 also authorised the Plaintiff to
let out the Property, whole or in part, to execute the Lease Deed get the same
registered, to receive the rent, to issue receipts and to get the tenants evicted,
through the process of law or by negotiation, to take the possession, etc.
69. These documents are sufficient not only to confer rights in the nature
of ownership where the third party is concerned, but even otherwise,
specifically authorised the Plaintiff, to collect the rent and to affect the
tenants. It is quite evident that the Plaintiff stepped into the shoes of
erstwhile owner and became the landlord vis-Ã -vis the suit property.
70. Much has been contended on behalf of the Defendant that these
documents are fraudulent because the Letter of Attornment, Ex.PW2/4 is
dated 21.03.2003 and in the said Letter of Attornment, it is mentioned that
Smt. Suraksha Malik has sold the Property to the Plaintiff, Smt. Anju
Sharma, by virtue of Agreement to Sell etc. dated 21.03.2003. It is asserted
that the sale documents were admittedly executed on 21.03.2005, while the
Letter of Attornment is dated 21.03.2003, which clearly reflects that the
Letter of Attornment was a manipulated document, as it could not have been
written in 2003 i.e. two years prior to the execution of the documents which
are dated 21.03.2005.
71. It is significant to observe that the bare perusal of the Agreement to
Sell, etc., reflects that the stamp paper was purchased on 13.05.2005 and the
registration of the documents has been done on 21.03.2005.
72. What emerges from the perusal of the Agreement to Sell, etc., is that
the date of execution of the documents, has been mentioned in hand and the
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date 2005, has been misread as 2003, which is possible from the manner in
which, the year 2003 has been mentioned in the documents. The relevant
paragraph of Agreement to Sell, reads thus:
73. Likewise, in the GPA as well, the date of execution of document, has
been mentioned in hand, as stated above. While there may have been a
misreading of the date on which the document got executed by the Plaintiff,
but it cannot be overlooked that there were written executed and a registered
document/agreement to Sell, etc. that would prevail over the Letter of
Attornment, Ex.PW2/4 in which the date of purchase of property has been
mentioned erroneously.
74. Another contention raised by the Defendant was that no Letter of
Attornment, dated 21.03.2003, Ex.PW2/4 issued by the erstwhile owner,
was ever received by him. Even if this contention is accepted that the
contents of the Attornment Letter, are contrary to the documents of purchase
of Property by the Plaintiff, but merely because the Attornment Letter is not
a reliable document, would not make the entire sale transaction in favour of
the Plaintiff, as void. It is evident that the Plaintiff acquired the ownership
rights by virtue of Agreement to Sell etc. collectively, Ex.PW2/3.
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75. The learned District Judge fell in error in questioning the ownership,
in terms of Section 54 of TPA and by observing that no Sale Deed has been
executed, but it is a settled law that in the absence of the absolute document
of sale, the proprietary rights assumed significance and they prevail against
the entire world except the true owners. In the present case, Ms. Suraksha
Malik has not challenged the execution of the Agreement to Sell, etc.
Therefore, the learned District Judge erroneously held that the Plaintiff was
not able to prove her ownership to maintain the Suit for possession.
76. In this context, it is also significant to mention that the Plaintiff, Ms.
Anju Sharma had filed a Suit for eviction under Section 14(1)(e) against Dr.
B.S. Sirohi, who was the tenant in the Ground Floor and the Leave to
Defend had been allowed vide Order dated 21.12.2013 by learned ARC
wherein also, the title of the Plaintiff, was considered and it was found that
she had become the owner/landlord in respect of the suit premises.
77. In the light of aforesaid discussion, it is concluded that the Plaintiff
has successfully established that she stepped into the shoes of the erstwhile
owner and became the landlord/owner of the suit property by virtue of the
registered Agreement to Sell, General Power of Attorney, etc. dated
21.03.2005.
78. She stepped into the shoes of erstwhile owner and became the
landlord in respect of the suit property.
II. Whether the Respondent is a Tenant in the Suit Premises:
79. The next aspect is the status of the Defendant, in the suit premises.
He himself has admitted that he was inducted in the suit premises as a
tenant, by Late Sh. Yogesh Kumar Nijhawan, who was his landlord and that
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he had been paying rent to him. He further admitted that the last Lease
Agreement was executed on 01.10.1996, under which the rate of rent was
specified as Rs.3,000/- per month, which he had been paying.
80. The Defendant in his two Replies to the Legal Notice dated
10.08.2009, Ex.PW2/7 and 18.08.2012, Ex.PW2/9, has admitted not only
that there existed a landlord tenant relationship between him and Sh. Yogesh
Kumar Nijhawan, but stated that he had no knowledge of the property
having been sold to the Plaintiff. The status of the Defendant, is admittedly
that of a tenant, who had been inducted by the erstwhile owner. He is
estopped under Section 116 of the Indian Evidence Act, to challenge the title
of the landlord.
81. It is, therefore, proved that there exists a relationship of landlord
and tenant between the parties on the basis of the evidence led by both the
parties.
III. Whether the Defendant Became the Owner by Adverse Possession:
82. The next plea, which has been taken by the Defendant, is that he
has become the owner by adverse possession. His claim is that his tenancy
expired on September, 1997 on expiry of the Lease Deed dated 01.10.1996.
He is in adverse possession since then and has acquired ownership by a
virtue of adverse possession.
83. The Defendant/Appellant has admitted that he had been inducted as a
tenant by Yogesh Kumar Nijhawan, one of the co-owners/landlord of the
suit property, as has already been held that the Defendant/Appellant is
inducted as tenant and there existed the relationship of landlord and tenant
between the parties.
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84. It is a well settled law that once a person is inducted as a tenant, his
status continues to be that of a tenant, as held in M. R. Sawhney v. Doris
Randhawa, AIR 2008 Delhi 110. He cannot claim that he was in adverse
possession of the Suit Property merely because he continued in the premises
after the expiry of the tenancy.
85. The very concept underlying adverse possession is that the person in
possession must claim to be so of right as against the true owner. It must be
nec vi, nec claim, nec precario. It must be adequate in continuity and
publicity to the extent of showing that it is averse to the competitor. It must
be hostile and under a claim or colour of title. It must be actual, open,
uninterrupted notorious, exclusive and continuous and it must run over the
entire statutory period of 12 years. Any person who bases his claim to title
by adverse possession should be hostile to the real owner with the attributes
of notoriety, exclusivity and continuity over the statutory period.
86. In Konda Lakshmana Bapuji v. Govt. of A.P. and others, 2002 (3)
SCC 258 the Apex Court declared that onus of proof to establish acquisition
of title try prescription lies on the party who makes any such assertion. The
court explained that mere possession of land, however, long it may be,
would not ripen into title unless the possessor has animus possidendi to hold
the land adverse to the title of the true owner and that an assertion of title by
adverse to the title of clear and unequivocal through, not necessarily
addressed to the real owner. It was held that “Where, however; at the
commencement of the possession there is no animus possidendi, the period
for the purpose of reckoning adverse possession will commence from the
date when both, the actual possession and assertion of title by the possessor
are shown to exist”.
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87. To the same effect is the decision of Supreme Court in Karnataka
Board of Wakf v. Government of India and others, 2004 (970) SCC 779
wherein the Apex Court reiterated the same principles. It was held:
“Therefore, a person who claims adverse possession
should show: (a) on what date he came into
possession, (b) what was the nature of his
possession, (c ) whether the factum of possession
was known to the other party, (d) how long his
possession has continued, and (e) his possession was
open and undisturbed. A person pleading adverse
possession has no equities in his favour. Since, he is
trying to defeat the rights of the true owner it is for
him to clearly plead and establish all facts necessary
to establish his adverse possession”.
88. In this regard, reliance may also be placed upon the decision of the
Apex Court in Ravinder Kaur Grewal & Ors. V. Manjit Kaur & Ors., (2019)
8 SCC 729, wherein the Court held that a claim of adverse possession can
succeed when the claimant establishes the essential ingredients of nec vi, nec
clam and nec precario, i.e., possession must be continuous, open and
notorious, and hostile to the title of the true owner.
89. In the present case, there is nothing to show that the Defendant ever
claimed ownership against the rightful owners or that his possession was
open, adverse or hostile, to that of the owners of the property. The defendant
has not been able to prove his title having been perfected to that of the
owner, by way of adverse possession.
90. It may also be relevant to refer to the two Replies to the Legal Notice,
dated 10.08.2009, Ex.PW2/7 and 18.08.2012, Ex.PW2/9, wherein the
Defendant himself admitted that he had been inducted into the suit property
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as a tenant by Late Sh. Yogesh Kumar Nijhawan and merely asserted that he
had no knowledge if the suit property has been sold to the Plaintiff.
Significantly, there was no assertion of ownership in himself or any denial
of the title of the true owner.
91. The Defendant has failed to substantiate his challenge to the
Plaintiff’s title or his plea of adverse possession. The learned District Judge
fell in error in application of law and the findings on the facts, are perverse,
for the reasons stated hereinabove.
IV. Whether the Appellant is entitled to Arrears of Rent and at what Rate:
92. The Defendant/Respondent in the Written Statement stated that he
was inducted in the premises by Sh. Yogesh Kumar Nijhawan and the last
Lease Deed dated 01.10.1996 by Yogesh Kumar Nijhawan wherein the rate
of rent was Rs.3,000/- per month. There was no suo moto escalation either
provided in the Lease Deed, nor is it contemplated in the Delhi Rent Control
Act. Likewise, in his Reply dated 10.08.2009 Ex.PW2/7 the Defendant had
stated that he has been residing in the premises since 1989, and has always
duly paid the rent to the landlord and has been in peaceful possession of the
suit premises.
93. The Defendant, therefore, admitted his status in the suit property as
that of a tenant since 1989 and he also admitted the execution of the Lease
Deed dated 01.10.1996, and that the rate of rent was Rs.3,000/- per month.
94. The Plaintiff/landlord had sent Legal Notice dated 27.07.2009
Ex.PW2/C, whereby she had claimed 10% escalation of rent i.e. Rs.3,300/-
per month, being the 10% enhancement as contemplated under Section 6A
of the Delhi Rent Control Act. Thereafter, after three years, the
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Plaintiff/Landlord again sent another Legal Notice dated 31.07.2012
Ex.PW2/A, wherein the rent was further enhanced by 10% to Rs.3,630/-
w.e.f. 04.09.2012. The service of the two Legal Notices is admitted, as the
Defendant had given a Reply to both the Legal Notices respectively.
95. Therefore, by virtue of these two Legal Notices the Rent was
enhanced to Rs.3,630/- w.e.f. 04.09.2012. The Defendant has admitted not
paying the rent after the demise of Yogesh Kumar Nijhawan.
96. The Appellant had proved her ownership in the Suit property by
virtue of Agreement to Sell etc. dated 21.03.2005, Ex.PW2/3. Therefore,
having acquired the status of landlord, she became entitled to the arrears of
rent. However, the Suit has been instituted on 06.11.2012 and she can claim
arrears only which are legally permissible i.e. for three years prior to the
institution of the Suit.
97. She is entitled to arrears of rent w.e.f. November, 2009 at the rate of
Rs.3,300/- per month (as enhanced by the Legal Notice dated 27.07.2009
Ex.PW2/C) and thereafter, at the rate of Rs.3,630/- per month w.e.f.
04.09.2012 (as further enhanced by the Legal Notice dated 31.07.2012
Ex.PW2/A). The Appellant is, therefore, entitled to arrears of rent from
November, 2009 till August 2012 when the Notice of Termination of
tenancy was served, in the sum of Rs.1,12,200/- with interest @ 6% per
annum.
V. Whether the Appellant is entitled to Mesne Profits and at what Rate:
98. As has been discussed above, after the termination of Tenancy vide
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is in regard to the Mesne Profits that are payable by the Defendant. Section
2(12) CPC defines Mesne Profits as under:
“mesne profits” of property means those profits which
the person in wrongful possession of such property
actually received or might with ordinary diligence have
received therefrom, together with interest on such profits,
but shall not include profits due to improvements made by
the person in wrongful possession”
99. Mesne Profits are in the nature of compensation on account of breach
of a liability of the Tenant to vacate the premises, once the tenancy is
terminated. The fundamental principle for calculation of the Mesne Profits is
in terms of Section 73 and 74 of the Contract Act. Section 73 of the Contract
Act reads as under:
“Section 73. Compensation for loss or damage caused
by breach of contract.– When a contract has been
broken, the party who suffers by such breach is entitled to
receive, as compensation for any loss or damage caused
to him thereby, such amount as would, in the ordinary
course of events, have been received by him had the
contract been fulfilled, or which the parties knew, when
they made the contract, to be likely to result from the
breach of it.”
100. Thus, the measure of compensation under Section 73 is the loss or
damage which naturally arose in the usual course of things from the breach,
or which the parties knew, when they made the contract, to be the likely
result of the breach thereof. In the context of a tenancy, the loss naturally
arising from the tenant’s failure to vacate after termination, is the rent which
the landlord could have received had the premises been vacated and let out.
101. The complementary provision is Section 74, which reads as:
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“Section 74. Compensation for breach of contract where
penalty stipulated for. When a contract has been broken,
if a sum is named in the contract as the amount to be paid
in case of such breach, or if the contract contains any
other stipulation by way of penalty, the party complaining
of the breach is entitled, whether or not actual damage or
loss is proved to have been caused thereby, to receive
from the party who has broken the contract reasonable
compensation not exceeding the amount so named or, as
the case may be, the penalty stipulated for.”
102. The Supreme Court in the case of Fateh Chand v. Balkishan Das, AIR
1963 SC 1405, while considering Sections 73 and 74 of the Contract Act,
observed that the jurisdiction of the Court to award compensation in cases of
breach of Contract is unqualified except as to the maximum stipulated in the
Contract, but the compensation has to be reasonable and imposes a duty
upon the Court to award compensation according to the settled principles.
The expression “whether or not actual damage or loss is proved to have
been caused thereby” merely dispenses with proof of actual loss or damages;
it does not justify the award of compensation when in consequence of the
breach, no legal injury at all has resulted, because compensation for the
breach of Contract can be awarded to make good loss or damage which
naturally arose in the usual course of things which the parties knew when
they made the Contract to be likely to result from the breach.
103. It was further held that Section 74 does not confer a special benefit
upon any party. It merely declares the law that notwithstanding any terms of
the Contract pre-determining damages or providing for forfeiture of any
property by way of penalty, the Court would award to the party aggrieved
only reasonable compensation not exceeding the amount named or penalty
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stipulated. The Court has to adjudge in every case reasonable compensation
to which the Plaintiff is entitled from the Defendant on breach of the
Contract. Such compensation has to be ascertained having regard to the
conditions existing at the time of breach. Similar observations were made by
the Supreme Court in the case of Maula Bux v. Union of India, (1969) 2
SCC 554.
104. In the case of ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, while
referring to the principles laid down in the case of Fateh Chand (supra), it
was observed that on the conjoint reading of Sections 73 and 74 of the
Contract Act, it emerges that the emphasis is on reasonable compensation.
If it is by way of a penalty, considerations would be different and the party
would be entitled only to reasonable compensation for the loss suffered. But
if the compensation named in the Contract for such breach is a genuine pre-
estimate of loss which the parties knew when they made the Contract, to
result from the breach, then there is no question of proving such loss or such
party is not required to lead evidence to prove actual loss suffered by him.
105. This was again revisited in the case of Kailash Nath Associates v.
Delhi Development Authority and Anr., (2015) 4 SCC 136, wherein it was
observed that in case of breach of some Contract, in some cases it is
impossible for the Court to assess compensation arising from the breach,
while in other cases compensation can be calculated in accordance with the
established rules. Where the Court is unable to assess the compensation, the
sum named by the parties, if regarded as a genuine pre-estimate, may be
taken into consideration as a measure of reasonable compensation, but not if
the sum named is in the nature of a penalty. Where loss in terms of money
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can be determined, the party claiming compensation must prove the loss
suffered by him.
106. In the case of Atma Ram Properties Pvt. Ltd. v. Federal Motors (Pvt.)
Ltd., (2005) 1 SCC 705, while considering the user and occupation charges
to be paid by the tenant after termination of the tenancy, it was observed that
for the period for which the tenant continues to occupy the premises, he
becomes liable to pay damages for the use and occupation charges at the
rate at which the landlord could have let out the premises on being vacated
by the tenant.
107. It was further observed that if the real value of the property is higher
than the rent earned, then the amount of compensation for continued use and
occupation of the property by the tenant, can be assessed at the higher value.
It was additionally observed that the value of real estate and rent rates have
sky rocketed. The factors like the location of the suit property being in a
commercial locality and the duration of the tenancy are the relevant factors
for assessing the user and occupation charges.
108. In M/s Sahara India v. M.C. Agrawal HUF, 2011 SCC OnLine Del
3715, this Court had occasion to consider the question of assessment of
mesne profits payable by an erstwhile tenant who continued in occupation
after termination of the tenancy. It was observed that the entitlement of a
landlord to claim mesne profits is governed by Section 2(12) of the CPC,
and that the mesne profits which a landlord is entitled to recover against a
tenant who continues to stay in the tenanted premises after the termination
of the tenancy, is the amount which the premises can fetch if let out on rent
during the period of its illegal occupation by the tenant.
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109. It was further held that “What is the rent which the premises can fetch
during the period of the illegal occupation by the erstwhile tenant is a fact
which can be easily proved in a suit for possession and mesne profits
against the tenants by leading evidence with respect to rents of similar
premises within the locality. The Court, on considering such evidence, with
respect to rent of similar premises thereafter awards mesne profits to the
landlord.”
110. It was further observed that where the landlord has not led any
evidence with respect to the rent of similar premises in the locality during
the relevant period, the Court may nonetheless take judicial notice of the
increase of rent in the urban areas, by applying the provisions of Sections
114 and 57 of the Indian Evidence Act, 1872, and award mesne profits at the
last-paid contractual rent with an appropriate annual compounded
enhancement. The Court accordingly, assessed mesne profits by applying
an annual compounded enhancement of 15% over the contractual rent
for each year of unauthorised occupation.
111. In the recent judgment in M/s Mehra Jewel Palace Ltd. v. Miniso
Lifestyle Pvt. Ltd. and Anr., 2025 SCC OnLine Del 6132, all the aforesaid
judgments were revisited and it was concluded that a person whose tenancy
is terminated, would be liable to pay the user and occupation charges and in
the least, the Lease rentals as per the Lease Deed are definitely payable.
112. In the present case, no evidence has been led by the landlord to prove
the actual prevailing market rate. However, as has been discussed above, the
minimum loss that is suffered by the landlord is the rate of rent which was
payable at the time of termination of tenancy.
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113. The Plaintiff had claimed mesne profits @ Rs.40,000/- per month
without leading any corroborative evidence, in support thereof. The case
therefore, squarely falls within the class of cases contemplated in Sahara
India (supra), where, in the absence of such evidence, the Court may assess
mesne profits by applying the last-paid contractual rent with an
appropriate annual enhancement.
114. The last rent payable by the Defendant was Rs.3,630/- per month. As
has already been pointed out, the tenancy was created in 1989. Since then
30 years have gone by and the tenant has been enjoying the property
practically without paying anything. Considering the present prevailing real
estate prices and the market rate of the premises and its location which is in
West Patel Nagar, New Delhi, the Mesne Profits are awarded @ Rs.3,630/-
per month (the last determined rent) w.e.f. 01.09.2012, with an annual
enhancement of 15% per annum, along with interest @ 6% per annum, till
the date the possession is handed over to the Plaintiff.
Conclusion:
115. Accordingly, the Suit of the Plaintiff is decreed for Possession as well
as arrears of rent in the sum of Rs.1,12,200/- along with pendente lite and
future interest @ 6% per annum. The Plaintiff is further entitled to mesne
profits/unauthorised user and occupation charges at the last-paid rent of
Rs.3,630/- per month w.e.f. 01.09.2012, with an annual increase of 15% per
annum, till the date the possession is handed over, along with interest @ 6%
per annum.
116. The Suit of the Plaintiff for possession in respect of the suit
property, arrears of rent and mesne profits, is hereby decreed.
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117. Accordingly, the impugned Judgment and Decree dated 13.05.2024 is
set aside and the present Regular First Appeal is allowed, in the aforesaid
terms.
118. Pending Application(s), if any, also stand disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
JULY 29, 2026
N/RS
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