Delhi District Court
Brijesh And Anr vs Mam Chand And Anr on 7 March, 2026
IN THE COURT OF A.S.J.(SFTC)
(PRESIDED OVER BY: ANIL CHANDHEL)
EAST DISTRICT, KKD COURTS, DELHI
CNR No. DLET01-000894-2026
(Old CNR No. DLWT01-007920-2016)
RCA DJ No.12/2026
(Old RCA No. 61225/2016)
1. Mr. Brijesh
S/o Late Balbir Singh
R/o 2246-A, Guru Nanak Nagar,
Abadi Village Khampur,
New Delhi-110008.
2. Mr. Shekhar,
S/o Late Shri Balbir Singh
R/o 2246-A, Guru Nanak Nagar,
Abadi Village Khampur,
New Delhi-110008.
3. Ms. Urmila
D/o Late Shri Balbir Singh
R/o 2246-A, Guru Nanak Nagar,
Abadi Village Khampur,
New Delhi-110008
4. Ms. Geeta
D/o Late Shri Balbir Singh
R/o 2246-A, Guru Nanak Nagar,
Abadi Village Khampur,
New Delhi-110008
5. Ms. Shanti
W/o Late Balbir Singh
R/o 2246-A, Guru Nanak Nagar,
Abadi Village Khampur,
New Delhi-110008 ....Appellants
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 1 of 48
Versus
1. Mr. Mam Chand
S/o Mr. Ram Dass Rajput.
R/o WZ-79, Village Khampur,
New Delhi
2. Mr. Naresh Kumar,
S/o Mr. Ram Dass Rajput,
R/o WZ-79, Village Khampur,
New Delhi ...Respondent
REGULAR CIVIL APPEAL UNDER
SECTION 96 OF CODE OF CIVIL
PROCEDURE, 1908, AGAINST THE
JUDGMENT/DECREE DATED 12.08.2016,
PASSED BY LD. CIVIL JUDGE-07, WEST,
TIS HAZARI COURTS, DELHI IN CS NO.
612506/2016.
APPEAL INSTITUTED ON : 18.10.2016
JUDGMENT RESERVED ON : 09.01.2026
JUDGMENT PRONOUNCED ON : 07.03.2026
Appearances:
Counsel for the Appellants : Mr. R.P.Sharma & Mr. Nishant
Sharma, Advocates.
Counsel for the Respondents : Mr. Sumit Rajput & Mr. Aashu Pali,
Advocates.
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 2 of 48
JUDGMENT
1. The Appellants have preferred the present regular first appeal
under Section 96 of the Code of Civil Procedure, 1908
against the judgment/decree dated 12.08.2016, passed by Ld.
Civil Judge-07, West, Tis Hazari Courts, Delhi in CS
No.612506/2016, whereby the suit, filed by the Respondents,
was decreed against the Appellant for the prayer of
possession and mesne profits.
Proceedings in suit before the Court of Ld. Civil Judge:
2. It will be appropriate to recapitulate the proceedings in the
suit before the Court of Ld. Civil Judge and the same are
being summed up in brief in the paras hereinafter.
3. The Respondents filed the civil suit for the prayers of
possession, arrears of rent and mesne profits with regard to
the suit property, i.e., land ad-measuring 500 square yards in
Khasara No.291, Village Khampur and bearing Municipal
No. 2246A, Guru Nanak Nagar, Village Khampur, New
Delhi – 110008, as shown in the site plan attached with the
plaint. The averments made in the plaint by the Respondents/
Plaintiffs, are summed in sub-paras hereinbelow:
i. The Plaintiffs and their mother (for herself & on
behalf of the Plaintiff No.2), namely late Ms. Natho,
executed a registered lease deed dated 30.05.1970 in
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favour of late Balbir Singh, with regard to the suit
property, i.e., land measuring 500 sq. yards in Khasra
No. 291, Village Khampur, New Delhi-110008 and
now bearing 2246/A, Guru Nanak Nagar, Khampur,
New Delhi-110008. The Appellants/Defendants were
legal heirs of late Balbir Singh.
ii. Subsequently the mother of the Plaintiffs had died and
the Plaintiffs, being her legal heirs, became absolute
owners of the suit property, i.e., leased land and were
entitled to claim possession of the same.
iii. The said lease had expired by efflux of time long back
but late Balbir Singh continued to occupy the same.
Late Balbir Singh had expired on 5th June, 1996. The
Appellants/Defendants were legal heirs of late Balbir
Singh. Neither Balbir Singh nor the
Appellants/Defendants had any right to continue with
leased land and were liable to hand over the
possession of the same after the lease expired.
iv. Though the Respondents/Plaintiffs were entitled to the
possession of suit land from the
Appellants/Defendants by removal of the
superstructures raised on the land, yet a notice was
served upon the Appellants/Defendants calling upon
them to hand over the peaceful possession of the
above land by the end of 30.04.2003, however, the
Appellants/Defendants failed to comply with the________________________________________________________________
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RCA DJ No. 12/2026 Page No. 4 of 48
notice, therefore, the Plaintiffs/Respondents were
compelled to file the suit for possession.
v. The Appellants/Defendants were liable to pay a sum
of Rs.540/- being the amount of legally recoverable
rent for three years ending on 30.04.2003 @ Rs.180/-
per annum.
vi. The Appellants/Defendants are liable to pay
damages /mesne profits for period 01.05.2003 to
30.06.2003 @ Rs.200/-per day. The total amount of
Rs.12,740/- was due from Appellants/Defendants to
the Respondents/Plaintiffs. Further an inquiry under
Order XX Rule 12 the Code of Civil Procedure, 1908
was also needed to conducted for future
damages/mesne profits.
In terms of the above-mentioned averments, the
Respondents/Plaintiffs had made prayers of possession
of the suit property, arrears of rent and mesne profits.
4. The Appellants/Defendants were duly served with the
summons of the suit and filed a joint written statement and
denied the averments of the plaint. The contentions raised by
the Appellants/Defendants in the written statement and
constituting their defence, are being summed up in brief
hereinbelow:
i. There was no cause of action against the
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Appellants/Defendants and in favour of the
Respondents/Plaintiffs for institution of the suit. The
suit was not properly valued and requisite Court fees
was not paid by the Respondents/Plaintiffs.
ii. The suit property is the ancestral property of the
Appellants/Defendants and Respondents/Plaintiffs
had no rights, title or interest in the same. The
Respondents/Plaintiffs fabricated the documents only
with the view to grab the ancestral property of the
Appellants/Defendants, which is in the possession of
the Appellants/Defendants since more than three
decades.
iii. The Respondents/Plaintiffs were real cousins of
Appellant/Defendant Nos.1 to 4 (Mausere Bhai) and
the Appellants/Defendant No.5 is the maternal aunt
(Mausi) of the Respondents/Plaintiffs. After death of
father of the Respondents/Plaintiffs, the father of the
Appellants/Defendant Nos.1 to 4 looked after the
family of the Respondents/Plaintiffs. The
Appellants/Defendants had been living in the suit
property since long. The Appellant/Defendant No. 5
had been residing in the suit property since her
marriage and the Appellant/Defendants No.1 to 4
were born in the suit property. The electricity meter,
house tax, etc. were in the name of the father of the
Appellants/Defendant No.1 to 4.
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iv. Around 1995, mother of the Respondents/Plaintiffs
died and thereafter father of the
Appellants/Defendant Nos.1 to 4 also died on
05.06.1996 after a prolonged illness. The
Respondent/Plaintiff No.1 had admitted the father of
Appellant/Defendants No.1 to 4 in Ram Manohar
Lohia Hospital, Delhi in Mental Rehabilitation
Centre and obtained his signatures on some blank
papers and also took many papers from the house of
the Appellants/Defendants in good faith. The
Respondents/Plaintiffs started to fabricate the
documents with the ulterior motive to grab the
ancestral property of the Appellants/Defendants and
the aforesaid fact came to knowledge of the
Appellants/Defendants in 1999, when for the first
time, the House Tax Bill was raised in the name of
the Respondents. The Appellants/Defendants
inquired about the same from the
Respondents/Plaintiffs and they informed that after
death of father of the Appellants/Defendant No.1 to
4, the Respondents/Plaintiffs were elder persons to
look after Appellants/Defendants Nos. 1 to 4, who
were of tender aged at that time and that’s why the
Respondents/Plaintiffs had their name in place of late
Balbir Singh. But with the passage of time
Respondents/Plaintiffs started to grab the suit
property from the Appellants/Defendants.
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v. The Respondent/Plaintiff No.1 set a fire in the one
room of Appellants/Defendants on 02.02.2003 and a
complaint was lodged by the Appellants/Defendants
with the Police. When Appellants/Defendants
attempted to reconstruct their room on 07.02.2003,
destroyed by fire, the Respondent/Plaintiff No.1
along his sons, namely Sachin and Nishant, came and
started to assault the Appellants/Defendants with a
view to create pressure over the
Appellants/Defendants. The Respondent/Plaintiff
No.1 also called PCR at No.100 and the local police
recorded the statement of Appellants/Defendants.
The Respondent/Plaintiff No.1 regularly threatened
the Appellants/Defendants to vacate the suit property
and matter was continuously reported to local police
by the Appellants/Defendants. In order to create his
possession, the Respondent/Plaintiff No.1 attempted
to parked his Jeep No. DL-2CB-3820 on 28.02.2003
in the ancestral property of Appellants/Defendants.
The Appellants/Defendants called the local police for
their assistance but local police booked the
Appellant/Defendant No.1 and 2 along with
Respondent/Plaintiff No.1 in one Kalandra case
under Section 107/151 Cr. PC and the
Respondent/Plaintiff No.1 was released from the
Tihar Jail after two days.
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vi. In terms of the remaining averments of the written
statement, the Appellant/Respondents have
generically denied the averments of the plaint.
5. The Respondents/Plaintiffs filed the replication to the written
statement of the Appellant/Defendants and denied that
averments of the same.
6. On the basis of pleadings of the parties, the Court of Ld.
Civil Judge framed the following Issues on 12.02.2004:
i. Whether the Plaintiff is entitled to the decree of
possession, as prayed for? OPP.
ii. Whether the plaintiff is entitled to recover the
arrears of rent? OPP
iii. Whether the Plaintiff is entitled to mesne profits,
as prayed for? OPP
iv. Relief.
7. The Respondents/Plaintiffs led their evidence in the suit and
examined three witnesses. The Plaintiff No.1 examined
himself as PW-1. The PW-1 exhibited and relied upon the
following documents in his examination-in-chief:
i. Exhibit PW-1/1: Certified copy of the Lease Deed
ii. Exhibit PW-1/2: Site Plan.
iii. Exhibit PW-1/3 and PW-1/4: Counterfoils of rent
receipts.
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iv. Exhibit PW-1/5: Copy of Legal Notice
v. Exhibit PW-1/6 to Ex. PW-1/15: Postal receipts and
AD Cards.
vi. Exhibit PW-1/16 & PW-1/17: Certified copies of
revenue record.
The PW-1 was cross-examined on behalf of the
Appellants/Defendants and was discharged upon conclusion
of his cross-examination.
8. The Respondents/Plaintiffs examined the official witness
from the office of concerned Sub-Registrar as PW-2, who
produced the record of registration of the lease deed dated
30.05.1970, i.e., Ex.PW-1/1. The PW-2 was not cross-
examined on behalf of the Appellants/Defendants despite
opportunity being given and was accordingly discharged.
9. The Respondents/Plaintiffs examined Mr. Rana Kamra as
PW-3. The PW-3 stated that he took the property No.WZ-62,
Shadi Khampur, New Delhi from the Plaintiff and the rent of
the same was Rs.2,500/-. He had stated that he had seen the
suit property and it was 100 yards away from his premises.
The PW-3 was not cross-examined on behalf of the
Appellants/Defendants despite opportunity being given and
was accordingly discharged. After examination of the PW-3,
the Respondents closed their evidence.
10. The Appellants/Defendants led their evidence in the suit and
examined seven witnesses. The Appellant/Defendant No.1
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examined himself as the DW-1. The DW-1 exhibited and
relied upon the following documents in her examination-in-
chief:
i. Exhibit DW-1/1: Complaint dated 22.02.2003.
ii. Mark-A: Kalandra dated 28.02.2003.
iii. Exhibit DW-1/2: Electricity Bill of August.
iv. Exhibit DW-1/3 to Exhibit DW-1/5: House tax
receipts.
v. Exhibit DW-1/6: Water bill.
The Court of Ld. Civil Judge observed in the examination in
chief of DW-1 dated 09.03.2006 that the above-mentioned
documents were mentioned in chief and original of the same
were not on record and therefore, the same were re-
exhibited. The aforesaid word ‘re-exhibited’ (instead of ‘de-
exhibited’) appears to be typographical error, however the
same does not affect the overall case of Defendants, as the
aforesaid documents were also relied upon as exhibits in the
testimonies of other witnesses. The DW-1 was cross-
examined on behalf of the Respondents and was discharged
upon conclusion of his cross-examination.
11. The Appellant/Defendant No.2 examined himself as the
DW-2. The affidavit of evidence of the DW-1 and DW-2
were identical. The DW-2 has also relied upon the same
documents, i.e., DW-1/1 to DW-1/6, which were relied upon
by the DW-1 and one additional document Mark-A. The
DW-2 was cross-examined on behalf of the Respondents
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and was discharged upon conclusion of his cross-
examination.
12. The Appellant/Defendant No.5 examined herself as the
DW-3. The affidavit of evidence of the DW-1, DW-2 and
DW-3 were identical. The DW-3 has also relied upon the
same documents, i.e., DW-1/1 to DW-1/6, which were relied
upon by the DW-1 and one additional document Mark-A.
The DW-3 was cross-examined on behalf of the Respondents
and was discharged upon conclusion of her cross-
examination.
13. The Appellants/Defendants examined Mr. Harish Chander
and his wife Ms. Savitri Devi as the DW-4 and the DW-5,
who were maternal uncle (Mausa) and maternal aunt (Mausi)
of the Respondents/Plaintiffs and the Appellants/Defendant
No.1 to 4. The testimonies of DW-4 and DW-5 were oral and
they did not rely upon any documents in their examination in
chief and further their examination in chief was identical.
The DW-4 and DW-5 were cross-examined on behalf of the
Respondents and were discharged upon conclusion of their
cross-examination.
14. The Appellants/Defendants examined Mr. Sushil Kumar as
the DW-6 (mentioned as DW-5), who was cousin of the
Respondents/Plaintiffs and the Appellants/Defendant No.1 to
4. The testimony of DW-6 was oral and he did not rely upon
any document in his examination in chief and further his
examination in chief was identical to the examination in
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chief of the DW-4 and DW-5. The DW-6 was cross-
examined on behalf of the Respondents and was discharged
upon conclusion of his cross-examination.
15. The Appellants/Defendants examined the official witness
from the department of House-Tax as the seventh witness,
however he was mentioned as DW-6, on account of a
typographical error. The aforesaid witness has produced two
documents, Exhibit DW-6/A, i.e., house tax bill No.377704
and Exhibit DW-6/B, i.e., the house tax payment receipt. The
aforesaid witness was cross-examined on behalf of the
Respondents/Plaintiffs and discharged upon conclusion of
his cross-examination.
16. Thereafter the Court of Ld. Civil Judge heard the arguments
and dismissed the suit of the Respondents/Plaintiffs, in terms
of judgment/decree dated 29.08.2014.
17. The Respondents/Plaintiffs preferred an appeal against the
judgment/decree dated 29.08.2014 and the aforesaid
judgment/decree was set aside in terms of Order dated
03.09.2015, passed in RCA No.69/2014 by the Court of the
then Ld. Additional District Judge-06, West, Tis Hazari
Courts, Delhi and the matter was remanded back to the Court
of Ld. Civil Judge for fresh consideration and decision on
merits.
18. Thereafter the final arguments were heard afresh by the
Court of Ld. Civil Judge and the suit in question was decreed
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for prayers of possession and mesne profits by a
judgment/decree dated 12.08.2016 and the same is being
impugned in the present appeal. The Appellants have also
preferred an application under Order XLI Rule 27 of the
Code of Civil Procedure, 1908, which is also being
considered and decided alongwith the appeal.
Notice of the Appeals and Service of the Respondents:
19. The notice of the appeal was issued to the Respondents on
19.10.2016. The Respondents have entered appearance on
12.01.2017.
Grounds of Appeal & Submissions:
20. Ld. Counsels for the parties have addressed their arguments
on the appeal. Ld. Counsel for the Appellant has reiterated
the grounds of appeal to submit that the rate of rent of the
premises in question was less than Rs.3,500/- and therefore,
the Civil Court did not have jurisdiction to entertain and
decide the suit. It is submitted that the lease deed in question,
i.e., Exhibit PW-1/1, pertains to Guru Arjun Nagar, whereas
the suit property is situated in Guru Nanak Nagar and
therefore, the aforesaid lease deed did not pertain to the suit
property and cannot be made basis for decree of possession.
It is submitted that the Appellants are entitled to lead
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additional evidence with regard to the aforesaid fact under
Order XLI Rule 27 of the Code of Civil Procedure, 1908. It
is submitted that the documents dated 30.03.1987 were
wrongly discarded by the Court of Ld. Civil Judge. It is
submitted that the aforesaid documents show that the
possession was taken back by the Respondents/Plaintiffs
from father of the Appellants/Defendant No.1 to 4. It is
submitted that the Respondents/Plaintiffs concealed the
factum of aforesaid documents and possession being taken
by them and therefore, there was no cause of action for suit
for possession. It is submitted that the alleged lease deed and
the documents dated 30.03.1987 are to be read together and
the lease was stated to be created on 30.05.1970, whereas the
possession was obtained back by the Respondents/Plaintiffs
on 30.03.1987 and therefore, the cause of action for suit did
not survive and the suit was also time barred for the
aforesaid reason. It is submitted that the suit of the Plaintiff
was liable to be dismissed in terms of their admissions in the
documents dated 30.03.1987 and further the Respondent
No.2, being party to the aforesaid documents, did not enter
the witness box and therefore, there should be an adverse
inference against the Plaintiffs/Respondents.
21. Ld. Counsel for the Respondents has submitted that the
question of wrong description of the suit property was
neither mentioned in the written statement nor in the
evidence before the Court of Ld. Civil Judge. It is submitted
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that no challenge was made about the description of the suit
property as the same was duly understood to be correct as
being the property in the Khasra No.291, ad-measuring 500
square yards, in Village Khampur, Delhi. It is submitted that
the property mentioned in the Exhibit PW-1/1 and in the
plaint, i.e., situated in Guru Arjun Nagar and Guru Nanak
Nagar was the same property, which previously fell under
Khasra No.291, ad-measuring 500 square yards, in Village
Khampur, Delhi. It is submitted that subsequently change in
revenue districts and names would not make the suit
property any different, when no objection for such
description was raised either in the written statement, cross-
examination and affirmative evidence of the parties. It is
submitted that the lease deed in question was for a plot of
land and therefore, the same did not fall within the purview
of the Delhi Rent Control Act, 1958. It is submitted that the
aforesaid documents dated 30.03.1987 were for the purchase
of the super structure over the suit property and further did
not alter the nature of relationship with regard to the suit
property. It is submitted that the import of the aforesaid
documents further was duly explained by the Ld. First
Appellate Court, while the matter was remanded back and
the Appellants/Defendants cannot agitate the same
contentions, which were decided by the Appellate Court, as
the aforesaid Order was not challenged by them and had
attained finality.
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The points for determination, Conclusions and reasons
for conclusions:
22. I have heard the Ld. Counsels for the parties. I have perused
the record. The Court of Ld. Civil Judge has framed three
Issues in three matter, which are based upon prayers of
possession, arrears of rent and mesne profits. In view of
submissions of the Counsels, the grounds of appeal and after
consideration of the entire material on record, the points for
determination for adjudication of the present appeal can be
culled out in the following manner:
i. Whether the Court of Ld. Civil Judge has correctly
decided the Issues framed in the suit upon due
appreciation of the facts, the evidence and the law
applicable in the matter?
ii. Whether the Appellant is entitled to lead additional
evidence under Order XLI Rule 27 of the Code of Civil
Procedure, 1908?
The above-mentioned points of determination are being
considered and decided in terms of the discussion in the
paras hereinafter.
23. The suit in question is filed for possession on the basis of a
lease deed executed between the Plaintiffs/Respondents and
predecessor in interest of the Appellants/Defendants. The
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Hon’ble High Court of Delhi has laid down the pre
conditions for ejectment of tenant, under the Transfer of
Property Act, 1882 in “Ashok Kumar Bagga vs Rajvinder
Kaur: AIRONline2021Delhi 724″, which are as follows:
i. Relationship of landlord and tenant;
ii. Tenancy is not a protected tenancy under the Delhi
Rent Control Act, 1958;
iii. There is no registered subsisting lease agreement;
iv. Tenancy has been terminated and the Respondent
tenant has failed to hand over possession.
24. It is case of the Plaintiffs/Respondents that the suit property
is a plot of land, which was let out to the father of the
Defendant No.1 to 4 in terms of a registered lease deed dated
30.05.1970 for a period of 20 years. It is stated that the father
of Defendant No.1 to 4 remained in possession of the same,
even subsequent to expiry of period of registered lease deed,
till his death and thereafter the Defendants remained in
possession. It is stated that though the Plaintiffs were entitled
to possession of the suit land from the Defendants by
removal of the super structure, however, the Plaintiffs issued
a notice to the Defendants to hand over the peaceful
possession of the above-said land by the end of 30.04.2003.
It is stated that the Defendants neither replied to the legal
notice nor complied with the same.
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25. The Defendants have denied that the suit property was given
on lease by the Plaintiffs/Respondents to the father of
Defendant No.1 to 4. It is stated in the written statement that
the suit property is ancestral property of the Defendants and
the Plaintiff did not have any right, title or interest in the
same. It is stated in the written statement that the Defendants
are in occupation of the suit property for more than three
decades. It is stated that the Plaintiffs have obtained
signatures of the father of the Defendant No.1 to 4 on blank
pages and have fabricated documents.
26. The Plaintiff has filed on record the certified copy of lease
deed dated 30.05.1970. The same is relied upon and
exhibited in the examination in chief of the PW-1 as Exhibit
PW-1/1, without any objection with regard to mode of proof
or admissibility. The Plaintiff has proved the record of
registration through the official witness PW-3, who has
proved that the aforesaid lease deed was registered vide
Registration No.4275, in Additional Book No. I, Volume
No.2388, on pages 144-145 on 30.05.1970, with the office of
concerned Sub-Registrar. This Court intends to refer to
Section 68 of the Indian Evidence Act, 1872 and the same is
being reproduced hereinbelow:
“68. Proof of execution of document required by law to
be attested.
If a document is required by law to be attested, it
shall not be used as evidence until one attesting
witness at least has been called for the purpose of
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proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and
capable of giving evidence :Provided that it shall not
be necessary to call an attesting witness in proof of
the execution of any document, not being a Will,
which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (XVI
of 1908), unless its execution by the person by whom
it purports to have been executed is specifically
denied.”
In terms of above-referred Section 68, if a document, except
a Will, is registered and its registration is proved, the factum
of proof of registration would also amount to proof of
execution of the document. The lease deed dated 30.05.1970,
i.e., Exhibit PW-1/1 is registered and its registration has been
proved through the PW-3. Therefore, the registration as well
as the execution of the lease deed Exhibit PW-1/1 stood
proved.
27. The lease deed Exhibit PW-1/1 was executed between the
Plaintiffs, their mother and the father of the Defendant No.1
to 4. In terms of Exhibit PW-1/1, the suit property is leased
to the father of the Defendant No.1 to 4 for a period of 20
years at lease rent of Rs.180/- per annum. The lease is for a
plot of land without any superstructure on the same.
28. The Respondents have stated that the tenancy in the present
case falls under the provisions of the Transfer of Property
Act, 1882, whereas the Appellants/Defendants have stated
that the Court did not have jurisdiction as the amount of
monthly rent is less than Rs.3,500/-.
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29. Though the amount of rent of rent is less than Rs.3,500/-,
however the lease is not of a building and is only of vacant
plot of land, which is not covered in the definition of
premises as per the Delhi Rent Control Act, 1958. The
reference in this context is being made to the decision of the
Hon’ble Supreme Court of India in “Kamla Devi vs. Laxmi
Devi (12.05.2000): MANU/SC/0410/2000: 2000 INSC
327″, and the relevant observations of the Hon’ble Court are
being reproduced hereinbelow:
8. Section 50 of the Delhi Act says that except where
the Act so provides, no Civil Court shall entertain
any suit or proceeding in so far as it relates, inter
alia, to eviction of any tenant from any premises. It is
thus clear that if the suit for eviction of tenant relates
to any premises as defined in the Delhi Act, the Civil
Court cannot entertain the same. Therefore, it
becomes necessary to determine whether the suit plot
is premises’ within the meaning of the Delhi Act.
9. To determine this aspect, it will be useful to refer to
the definition of the terms the land ford’, the ‘tenant
and the ‘premises’ as defined in Section 2(e), (I) and
(i) respectively of the Delhi Act. Insofar as they are
relevant for our purposes, they read as under:
2. Definition-In this Act. unless the context otherwise
requires. (e) landlord” means a person who, for the
time being is receiving, or is entitled to receive, the
rent of any premises, whether on his own account or
on account of or on behalf of or for the benefit of any
other person or as a trustee, guardian or receiver for
any other person or who would so receive the rent or
he entitled to receive the rent, if the premises were let
to a tenant:
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(i) “premises” means any building or part of a
building which is. or is intended to be. let
separately for use as a residence or for
commercial use or for any other purpose, and
includes. –
(i) The garden, grounds and outhouses, if any.
appertaining to such building or part of the
building;
(ii) any furniture supplied by the land ford for use
in such building or part of the building:
but does not include a room in a hotel or
lodging house:
(I)” tenant” means any person by whom or on
whose account on behalf the rent of any
premises is. or but for a special contract,
would be, payable, and includes:
***
10. A combined reading of the definitions of the terms,
quoted above, shows that the term ‘premises’ implies
the subject-matter of tenancy in respect of Which
there is juror relationship of land ford and tenant and
in respect of which the quantum of rent is agreed to
between them.
11. When, in any case, the question arises whether an
open plot of land or a plot of land with structures
thereon, was let out, the Court has to determine the
same on the facts of that case. In deciding this
question, it will be useful to bear in mind that if the
plot with structure was let out it will fall within the
meaning of the term “premises’ but if open plot
without any structure was let out then it does not fall
within the meaning of the term premises”. It is
immaterial whether the tenant raised structures
before the creation of tenancy or after he was let in
as a tenant. In either case, the tenant alone will have
the proprietary rights in the structure and not the
landlord.”
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30. The aforesaid judgment has been followed by the Hon’ble
High Court of Delhi in “Ajay Gupta and Ors. vs.
Greenways (03.07.2024) : MANU/DE/4371/2024:
2024/DHC/4913″, wherein it is held that a lease of open
space does not amount to be a lease of building/premises and
is not covered under the provisions of Delhi Rent Control
Act, 1958. The relevant observations of the Hon’ble Court
are being reproduced hereinbelow:
“32. The principles that can be carved out from the above
decisions clearly is that a roof may not be required
for any property to constitute the premises or a
building, however, open spaces cannot constitute
premises. Sense of permanency is required for any
property to be termed as a “premises” or a
“building”. Moreover, it is crucial to consider the
condition and structure of the property at the time of
leasing. This includes assessing whether any
structures existed at the commencement of the
tenancy agreement, or if any were erected after the
agreement was executed. This consideration is
essential for determining what constitutes a
“building” and “premises” under the DRC Act.
Ultimately, it would depend upon facts and
circumstances of each case.
33. In the present case, the parties themselves
understood the property to be a ‘space’. The term
“space” refers to an open area with no specific
boundary or demarcation. The space which was
given is admitted i.e., it is merely 15/6 ft. There is
neither any roof nor any covering. It is just an area
to keep a gen-set or some equipment related to the
Air-conditioning units. Such a space cannot by any
stretch of imagination, be argued as constituting a
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premises or a building. It cannot be used for any
other purpose except for the purposes of placing a
genset or installing some outdoor units connected to
split Air conditioners. It is not even a storage area or
a storage space. The property in question, therefore,
does not fall within the purview of DRC Act.”
31. Therefore, the tenancy in the present case does not fall
within the purview of the Delhi Rent Control Act, 1958 and
falls within purview of the Transfer of Property Act, 1882.
32. The Plaintiff has proved the factum of landlord-tenant
relationship in terms of Exhibit PW-1/1. The
Plaintiffs/Respondents have stated that the tenancy was
determined by a notice for termination, i.e., Exhibit PW-1/5.
Though the Defendants have denied the service of the
aforesaid notice in the written statement, however, the
Plaintiffs have proved the service of the notice in terms of
the AD on record, i.e., Ex.PW-1/11 to Ex.PW-1/15.
33. The Hon’ble Supreme Court in the case of “Nopany
Investments (P)Ltd. Vs. Santokh Singh (HUF) : 2008 (2)
SCC 728″, has held that the tenancy would stand terminated
under general law on filing of a suit for eviction. The
aforesaid proposition have been followed by the Hon’ble
High Court of Delhi in, “M/S. Jeevan Diesels & Electricals
Ltd. vs M/S. Jasbir Singh Chadha (Huf) & Anr.: RFA
No.179/2011 (25 March, 2011)”, to hold that even assuming
the notice terminating the tenancy was not served upon the
tenant, the tenancy would stand terminated on filing of the
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suit for eviction. The Defendants were duly been served with
the summons of the present suit and therefore, even if the
notice for termination of tenancy is considered to be not
served, the tenancy stood terminated upon service of
summons of the suit on the Defendants/Appellants.
34. The Appellants/Defendants have stated that the suit property
is their ancestral property, however the aforesaid contention
has not been established by providing further details as to by
whom, when and how the suit property was acquired. The
entire evidence of the aforesaid contention is oral, which
does not explain the details of acquisition or nature of rights
of the Defendants. In the cross-examination, the DW-1 has
stated that his mother told him about the suit property being
in the name of his father. He further states that his father
might have purchased the suit property. He further states that
he did not have any document with regard to the suit
property. The DW-2 has also stated in the cross-examination
that he did not have any document to show that the suit
property was purchased by his father and he did not know,
whether his father had any document about the aforesaid
purchase. The DW-3 has stated in the cross-examination that
the suit property was purchased by her husband, however,
she did not know as to from whom, when and how the same
was purchased. Thus, the DW-1, DW-2 and DW-3, in terms
of their collective evidence feign ignorance about the manner
of purchase/acquisition of the suit property and therefore
have failed to prove that the suit property was their ancestral
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property or they had any right in the same, other than being
the legal heirs of a lessee.
35. Ld. Counsel for the Appellants has submitted that lease deed
Exhibit PW-1/1 does not pertain to suit property, as the same
pertains to Arjun Nagar and not to Guru Nanak Nagar. The
Appellants have also filed an application under Order XLI
Rule 27 of the Code of Civil Procedure, 1908, wherein it is
stated that Arjun Nagar and Guru Nanak Nagar are two
different localities and the aforesaid fact can be proved by
summoning of the concerned Tehsildar and Patwari and
therefore they should be permitted to lead additional
evidence to prove the aforesaid fact. The Appellant has also
filed another application under Order XXVI Rule 9 of the
Code of Civil Procedure, 1908 for appointment of a Local
Commissioner for ascertaining the aforesaid fact as well as
for ascertaining the identity of the suit property.
36. Ld. Counsel for the Respondents has submitted that the lease
deed pertains to suit property, which has been clearly
identified in the plaint, site plan, counter-foils and evidence
of the parties. It is submitted that the Appellants/Defendants
has not disputed the identity/description of the suit property
before the Ld. Trial Court and therefore, cannot take the
aforesaid objection in the Appeal. It is submitted that the suit
property has been clearly identified as land falling in
Kahasra No.291 of Abadi Village Khampur, Delhi, which
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previously was known as Guru Arjun Nagar and
subsequently as the Guru Nanak Nagar.
37. The right of an Appellant to lead additional evidence in an
appeal is governed strictly by the provisions of Order XLI
Rule 27 of the Code of Civil Procedure, 1908 and the
aforesaid provision is being reproduced hereinbelow:
“27. Production of Additional Evidence in Appellate
Court.
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court, But if:
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or(aa)the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of
due diligence, such evidence was not within his
knowledge or could not, after the exercise of due
diligence, be produced by him at the time when
the decree appealed against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause, the Appellate Court may allow
such evidence or document to be produced, or
witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.”
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The Hon’ble Supreme Court of India has considered the
scope of the aforesaid provision after referring to previous
judgments on the subject in “Union of India (UOI) vs.
Ibrahim Uddin and Ors. (17.07.2012): 2012 INSC 288″,
and the relevant part of the aforesaid discussion is being
reproduced hereinbelow:
25. The general principle is that the Appellate Court
should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as
an exception, Order XLI Rule 27 Code of Civil
Procedure enables the Appellate Court to take
additional evidence in exceptional circumstances. The
Appellate Court may permit additional evidence only
and only if the conditions laid down in this rule are
found to exist. The parties are not entitled, as of right,
to the admission of such evidence. Thus, provision
does not apply, when on the basis of evidence on
record, the Appellate Court can pronounce a
satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly.
Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the rule
itself. (Vide: K. Venkataramiah v. A. Seetharama
Reddy and Ors.MANU/SC/0243/1963 : AIR 1963 SC
1526; The Municipal Corporation of Greater Bombay
v. Lala Pancham and Ors.MANU/SC/0284/1964 : AIR
1965 SC 1008; Soonda Ram and Anr. v.
Rameshwaralal and Anr. MANU/SC/0021/1974 : AIR
1975 SC 479; and Syed Abdul Khader v. Rami Reddy
and Ors. MANU/SC/0329/1978 : AIR 1979 SC 553).
26. The Appellate Court should not, ordinarily allow new
evidence to be adduced in order to enable a party to
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raise a new point in appeal. Similarly, where a party
on whom the onus of proving a certain point lies fails
to discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the Court can, in
such a case, pronounce judgment against him and
does not require any additional evidence to enable it
to pronounce judgment. (Vide: Haji Mohammed Ishaq
Wd. S.K. Mohammed and Ors. v. Mohamed Iqbal and
Mohamed Ali and Company MANU/SC/0032/1978 :
AIR 1978 SC 798).
27. Under Order XLI, Rule 27 Code of Civil Procedure,
the appellate Court has the power to allow a
document to be produced and a witness to be
examined. But the requirement of the said Court must
be limited to those cases where it found it necessary to
obtain such evidence for enabling it to pronounce
judgment. This provision does not entitle the appellate
Court to let in fresh evidence at the appellate stage
where even without such evidence it can pronounce
judgment in a case. It does not entitle the appellate
Court to let in fresh evidence only for the purpose of
pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence
that the appellate Court is empowered to admit
additional evidence. (Vide: Lala Pancham and Ors.
(supra)).
28. It is not the business of the Appellate Court to
supplement the evidence adduced by one party or the
other in the lower Court. Hence, in the absence of
satisfactory reasons for the non-production of the
evidence in the trial court, additional evidence should
not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the
indulgence of being allowed to give further evidence
under this rule. So a party who had ample opportunity
to produce certain evidence in the lower court but
failed to do so or elected not to do so, cannot have it
admitted in appeal. (Vide: State of U.P. v. Manbodhan
Lal Srivastava MANU/SC/0123/1957 : AIR 1957 SC
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912; and S. Rajagopal v. C.M. Armugam and Ors.
MANU/SC/0360/1968 : AIR 1969 SC 101).
29. The inadvertence of the party or his inability to
understand the legal issues involved or the wrong
advice of a pleader or the negligence of a pleader or
that the party did not realise the importance of a
document does not constitute a “substantial cause”
within the meaning of this rule. The mere fact that
certain evidence is important, is not in itself a
sufficient ground for admitting that evidence in
appeal.
30. The words “for any other substantial cause” must be
read with the word “requires” in the beginning of
sentence, so that it is only where, for any other
substantial cause, the Appellate Court requires
additional evidence that this rule will apply, e.g.,
when evidence has been taken by the lower Court so
imperfectly that the Appellate Court cannot pass a
satisfactory judgment.
31. Whenever the appellate Court admits additional
evidence it should record its reasons for doing so.
(Sub-rule 2). It is a salutary provision which operates
as a check against a too easy reception of evidence at
a late stage of litigation and the statement of reasons
may inspire confidence and disarm objection. Another
reason of this requirement is that, where a further
appeal lies from the decision, the record of reasons
will be useful and necessary for the Court of further
appeal to see, if the discretion under this rule has been
properly exercised by the Court below. The omission
to record the reasons must, therefore, be treated as a
serious defect. But this provision is only directory and
not mandatory, if the reception of such evidence can
be justified under the rule.
32. The reasons need not be recorded in a separate order
provided they are embodied in the judgment of the
appellate Court. A mere reference to the peculiar
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circumstances of the case, or mere statement that the
evidence is necessary to pronounce judgment, or that
the additional evidence is required to be admitted in
the interests of justice, or that there is no reason to
reject the prayer for the admission of the additional
evidence, is not enough compliance with the
requirement as to recording of reasons.
33. It is a settled legal proposition that not only
administrative order, but also judicial order must be
supported by reasons, recorded in it. Thus, while
deciding an issue, the Court is bound to give reasons
for its conclusion. It is the duty and obligation on the
part of the Court to record reasons while disposing of
the case. The hallmark of order and exercise of
judicial power by a judicial forum is for the forum to
disclose its reasons by itself and giving of reasons has
always been insisted upon as one of the fundamentals
of sound administration of the justice – delivery
system, to make it known that there had been proper
and due application of mind to the issue before the
Court and also as an essential requisite of the
principles of natural justice. The reason is the
heartbeat of every conclusion. It introduces clarity in
an order and without the same, the order becomes
lifeless. Reasons substitute subjectivity with
objectivity. The absence of reasons renders an order
indefensible/unsustainable particularly when the
order is subject to further challenge before a higher
forum. Recording of reasons is principle of natural
justice and every judicial order must be supported by
reasons recorded in writing. It ensures transparency
and fairness in decision making. The person who is
adversely affected must know why his application has
been rejected. (Vide: State of Orissa v. Dhaniram
Luhar MANU/SC/0082/2004 : AIR 2004 SC 1794;
State of Uttaranchal and Anr. v. Sunil Kumar Singh
Negi MANU/SC/7315/2008 : AIR 2008 SC 2026; The
Secretary & Curator, Victoria Memorial Hall v.
Howrah Ganatantrik Nagrik Samity and Ors.
MANU/SC/0155/2010 : AIR 2010 SC 1285; and Sant
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Lal Gupta and Ors. v. Modern Cooperative Group
Housing Society Limited and Ors.
MANU/SC/0859/2010 : (2010) 13 SCC 336).
34. In The Land Acquisition Officer, City Improvement
Trust Board, Bangalore v. H. Narayanaiah etc. etc.
MANU/SC/0382/1976 : AIR 1976 SC 2403, while
dealing with the issue, a three judge Bench of this
Court held as under:
We are of the opinion that the High Court should
have recorded its reasons to show why it found the
admission of such evidence to be necessary for
some substantial reason. and if it found it necessary
to admit it an opportunity should have been given to
the Appellant to rebut any inference arising from its
insistence by leading other evidence.
(Emphasis added)
A similar view has been reiterated by this Court in
Basayya I. Mathad v. Rudrayya S. Mathad and Ors.
MANU/SC/7006/2008 : AIR 2008 SC 1108.
35. A Constitution Bench of this Court in K.
Venkataramiah (Supra), while dealing with the same
issue held:
It is very much to be desired that the courts of
appeal should not overlook the provisions of cl. (2)
of the Rule and should record their reasons for
admitting additional evidence. …The omission to
record reason must, therefore, be treated as a
serious defect. Even so, we are unable to persuade
ourselves that this provision is mandatory.
(Emphasis added)
In the said case, the court after examining the record
of the case came to the conclusion that the appeal was
heard for a long time and the application for taking
additional evidence on record was filed during the
final hearing of the appeal. In such a fact-situation,________________________________________________________________
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the order allowing such application did not vitiate for
want of reasons.
36. Where the additional evidence sought to be adduced
removes the cloud of doubt over the case and the
evidence has a direct and important bearing on the
main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record such application may be allowed.
37. To sum up on the issue, it may be held that application
for taking additional evidence on record at a belated
stage cannot be filed as a matter of right. The court
can consider such an application with circumspection,
provided it is covered under either of the prerequisite
condition incorporated in the statutory provisions
itself. The discretion is to be exercised by the court
judicially taking into consideration the relevance of
the document in respect of the issues involved in the
case and the circumstances under which such an
evidence could not be led in the court below and as to
whether the applicant had prosecuted his case before
the court below diligently and as to whether such
evidence is required to pronounce the judgment by the
appellate court. In case the court comes to the
conclusion that the application filed comes within the
four corners of the statutory provisions itself, the
evidence may be taken on record, however, the court
must record reasons as on what basis such an
application has been allowed. However, the
application should not be moved at a belated stage.
Stage of Consideration:
38. An application under Order XLI Rule 27 Code of Civil
Procedure is to be considered at the time of hearing of
appeal on merits so as to find whether the documents
and/or the evidence sought to be adduced have any
relevance/bearing on the issues involved. The
admissibility of additional evidence does not depend
upon the relevancy to the issue on hand, or on the fact,
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whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but
it depends upon whether or not the Appellate Court
requires the evidence sought to be adduced to enable
it to pronounce judgment or for any other substantial
cause. The true test, therefore is, whether the
Appellate Court is able to pronounce judgment on the
materials before it without taking into consideration
the additional evidence sought to be adduced. Such
occasion would arise only if on examining the
evidence as it stands the court comes to the conclusion
that some inherent lacuna or defect becomes apparent
to the Court. (Vide: Arjan Singh v. Kartar Singh and
Ors. MANU/SC/0087/1951 : AIR 1951 SC 193; and
Natha Singh and Ors. v. The Financial Commissioner,
Taxation, Punjab and Ors. MANU/SC/0489/1976 :
AIR 1976 SC 1053).
39. In Parsotim Thakur and Ors. v. Lal Mohar Thakur
and Ors. MANU/PR/0037/1931 : AIR 1931 PC 143, it
was held:
The provisions of Section 107 as elucidated by Order 41,
R. 27 are clearly not intended to allow a litigant who has
been unsuccessful in the lower Court to patch up the weak
parts of his case and fill up omissions in the Court of
appeal. Under Rule 27, Cl. (1) (b) it is only where the
appellate Court “requires” it (i.e. finds it needful). …The
legitimate occasion for the exercise of this discretion is not
whenever before the appeal is heard a party applies to
adduce fresh evidence, but “when on examining the
evidence as it stands, some inherent lacuna or defect
becomes apparent”, it may well be that the defect may be
pointed out by a party, or that a party may move the Court
to apply the defect, but the requirement must be the
requirement of the court upon its appreciation of evidence
as it stands. Wherever the Court adopts this procedure it is
bound by Rule 27(2) to record its reasons for so doing,
and under R.29 must specify the points to which the
evidence is to be confined and record on its proceedings
the points so specified. The power so conferred upon the
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and one requirement at least of any new evidence to be
adduced should be that it should have a direct and
important bearing on a main issue in the case.
(Emphasis added)
(See also: Indirajit Pratab Sahi v. Amar Singh
MANU/PR/0132/1927 : AIR 1928 P.C. 128)
40. In Arjan Singh v. Kartar Singh and Ors. (supra), this
Court held:
… If the additional evidence was allowed to be adduced
contrary to the principles governing the reception of such
evidence, it would be a case of improper exercise of
discretion, and the additional evidence so brought on the
record will have to be ignored and the case decided as if it
was non-existent… The order allowing the Appellant to
call the additional evidence is dated 17.8.1942. The
appeal was heard on 24.4.1942. There was thus no
examination of the evidence on the record and a decision
reached that the evidence as it stood disclosed a lacuna
which the court required to be filled up for pronouncing
the judgment
(Emphasis added)
41. Thus, from the above, it is crystal clear that
application for taking additional evidence on record
at an appellate stage, even if filed during the pendency
of the appeal, is to be heard at the time of final
hearing of the appeal at a stage when after
appreciating the evidence on record, the court reaches
the conclusion that additional evidence was required
to be taken on record in order to pronounce the
judgment or for any other substantial cause. In case,
application for taking additional evidence on record
has been considered and allowed prior to the hearing
of the appeal, the order being a product of total and
complete non-application of mind, as to whether such
evidence is required to be taken on record to
pronounce the judgment or not, remains
inconsequential/in executable and is liable to be
ignored.”
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(Underlining Added)
It has been held in the above-referred judgment that an
Application under Order XXI Rule 47 of the Code of Civil
Procedure, 1908 shall be considered alongwith the final
hearing of the appeal and further the additional evidence
cannot be permitted in a routine manner and has to permitted
only if conditions of the provision are satisfied. It is held that
the objective of permitting additional evidence is assist the
Court to render a complete judgment in the matter and is not
to fulfill the lacuna left out in the case of the Appellant.
38. The Respondent/Plaintiffs have identified the suit property in
plaint as land falling within the Khasra No. 291 of the Abadi
Village Khampur, now known as No.2246A, Guru Nanak
Nagar, Khampur, Delhi. The aforesaid property is stated to
leased to the father of the Appellants/Defendants No. 1 to 4
in terms of registered lease deed referred specifically in para
No.1 of the plaint. The Respondents/Plaintiffs have further
identified the lease deed Exhibit PW-1/1 pertaining to the
suit property. The lease deed in question also identified the
leased property as land situated in Khasra No.291 in Village
Khampur, Delhi. The only difference in description of the
property in plaint and the lease deed is that the same is
mentioned to be situated in Guru Nanak Nagar (now) in the
plaint and Arjun Nagar in the lease deed. However, the
consistent description of the suit property remained the land
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situated in Khasra 291 in Village Khampur, Delhi, in the
plaint as well as in the lease deed.
39. The Appellants/Defendants have generically denied the
factum of execution of the lease deed in the written
statement, however the contention of lease deed not
pertaining to the suit property is not specifically stated in the
written statement. The PW-1 has relied upon the Exhibit
PW-1/1 as the lease deed pertaining to the suit property in
his examination-in-chief and the aforesaid document was
exhibited without any objection with regard to mode of proof
or admissibility. The Appellants/Defendants have cross-
examined the PW-1 and in the entire cross-examination,
neither the execution of the lease deed Exhibit PW-1/1 is
challenged nor it is suggested that the lease deed did not
pertain to the suit property.
40. Further it is nowhere denied that the suit property is not
property situated in Khasra No.291 in Village Khampur,
Delhi. The Plaintiffs have specifically averred in the para
No.1, the lease deed dated 30.05.1970 to be a lease deed
pertaining to the suit property. The Defendants did not
specifically aver in the written statement that the lease deed
did not pertain to the suit property. The Defendant did not
challenge or suggest in the cross-examination that the lease
deed did not pertain to the suit property. The Defendants in
their affirmative evidence nowhere raised the plea that the
lease deed did not pertain to the suit property. The Court of
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Ld. Civil Judge heard the final arguments twice, however it
is not contended by the Appellants that the lease deed did not
pertain to the suit property. Therefore, the Defendants cannot
raise the aforesaid plea for the first time in appeal. Even if
the plea was not stated in the written statement, when the
Plaintiff tendered his evidence by stating on oath in
examination in chief that lease deed pertained to the suit
property, the Defendants should have raised the objection or
at least challenged the aforesaid contention in the cross-
examination. The Defendants did not raise any objection and
went ahead with the other pleas. The land in the registered
lease deed, the plaint and evidence, the other documents,
such as counter-foils and revenue records has consistently
been addressed as the land situated in Khasra No.291 of
Abadi Village Khampur. The Defendants have not
challenged that the suit property is not the land situated in
Khasra No.291 of Abadi Village Khampur. Therefore, the
aforesaid belated objection of the Defendants about the
description of the suit property is liable to be rejected.
41. The Appellants in the application under Order XLI Rule 27
of the Code of Civil Procedure, 1908 or in the application
under Order XXVI Rule 9 of the Code of Civil Procedure,
1908 have not stated as to why the aforesaid plea has not
been raised before the Court of first instance. It is also not
the case of the Appellants/Defendants that the aforesaid plea
could not have been raised by them either in their written
statement or in the cross-examination of PW-1 or in their
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affirmative evidence or during the stage of final arguments.
Therefore, the prayers in the applications are attempted to
merely fill in the lacuna left in the trial and the same cannot
be permitted in exercise of powers under Order XLI Rule 27
of the Code of Civil Procedure, 1908. Both the applications
of the Appellants are meritless and are accordingly
dismissed.
42. Ld. Counsel for the Appellants has submitted that the
Respondents have made concealments and did not disclose
that the mutation of the suit property was effected on the
basis of forged and fabricated documents of the suit property,
i.e., the GPA, the agreement to sell, the Will and Affidavit
dated 30.03.1987 stated to be executed by the father of the
Defendant No.1 and 2 in favour of the Respondent No.2 and
son of the Respondent No.1. It is submitted that the aforesaid
documents are forged, however the same contained the
admission against the case set up in the plaint. It is submitted
that there was no need of purchasing the suit property if the
same was leased by the Plaintiff. It is submitted that the
aforesaid documents are admitted to have been executed by
the Plaintiffs and therefore, the admission arising from the
same are binding on the Plaintiffs and in terms of the
aforesaid admission, the possession of the suit property has
already been received by the Plaintiffs in the year 1987 and
there is no cause of action for the suit for possession and
further, the suit for possession is time barred.
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43. After conclusion of evidence and at the stage of final
arguments, on 16.09.2013, the Defendants filed an
application under Section 151 of the Code of Civil
Procedure, 1908 for dismissal of the suit. The Defendants
have also filed the copies of the GPA, Agreement to sell,
Receipt, Will and Affidavit dated 30.03.1987 alongwith the
aforesaid application. It is stated in the aforesaid application
that the aforesaid documents were forged by the Plaintiff to
seek mutation of the suit property in their favour. It is
submitted that the aforesaid documents contained admission
of the Plaintiffs about the suit property being sold to them in
year 1987, which contradicted the case of the Plaintiffs. The
Respondents/Plaintiffs have filed the reply to the aforesaid
application and admitted the execution of the aforesaid
documents and stated that the same were with regard to
rights in the superstructure constructed by the father of the
Appellants/Defendant No.1 to 4. The Application was
disposed of by the Court of Ld. Civil Judge by keeping the
issue open and to be decided in terms of final arguments.
Subsequently, the Court of Ld. Civil Judge dismissed the suit
of the Plaintiffs by observing that the Plaintiffs had
concealed the aforesaid documents and the same negated the
plea of tenancy.
44. The Plaintiff preferred an appeal against the judgment/decree
dated 29.08.2014 and the same was set aside in terms of an
Order dated 03.09.2015 passed in RCA No.69/2014. The
relevant observations of this Court, i.e., the first Appellate
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 40 of 48
Court, while setting aside the judgment/decree dated
29.08.2014, are being reproduced hereinbelow:
“17. Now, turn to the facts of the present suit to ascertain
whether the document dated 30.03.1987 are material
facts for the adjudication of the present suit or not. The
appellants have asserted in para no.1 of the plaint that
the registered lease deed dated 30.05.1970 was
executed by Late Smt. Natho (predecessor in interest of
appellants) in favour of Late Sh. Balbir Singh
(predecessor in interest of respondents). The
respondents in their written statement have simply
denied the execution of the lease deed dated
30.05.1907. On perusal of lease deed dated 30.05.1970
it reveals that it is a registered lease deed with respect
to the suit property being executed by Late Smt. Natho
in favour of Late Sh. Balbir Singh. The lease deed is
registered one so, prima facie the document can be
presumed to be in existence. (Though same is required
to be appreciated by the Ld. Trial Court).
18. So far as the documents dated 20.03.1987 are
concerned, these documents find mention that Sh.
Balbir Singh was having lease hold rights in the suit
property with super structure thereon.
19. For the sake of arguments, if these documents dated
30.03.1987 are taken into consideration then the lessee
(Balbir Singh) could have bequeathed the leasehold
rights in the suit property in faovur of Naresh Kumar
and Monoj Kumar till the date he was having the
leasehold rights in the suit property. And as per
document dated 30.05.1970 a registered lease deed
Late Sh. Balbir Singh was having lease hold rights in
the suit property only for 20 years from the date of
execution of lease deed. It means his leasehold rights
could have been extinguished in the suit property on
29.05.1990. And beyond 29.05.1990 he could not have
transferred his lease hold rights in the suit property.
The rights of the lessor was substantial rights to get
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possession of the property leased out. In that Way the
document dated 30.03.1987 were having no relevance
to adjudication of the dispute involved in the present
suit. The original lessor have bring a cause to the court
relying upon the lease deed dated 30.05.1970.
Subsequently, after the death of lessor her successors
had filed the present suit for possession which is a
substantial right required adjudication. The will and
receipt are registered one, so the plea of the appellants
that these documents were ever executed were not
substantial.
20. Though the Ld. Trial Court has dismissed the suit of
the appellants on the ground that they have concealed
the material documents from the Court and relied upon
the certain judgment as quoted in the judgment of Trial
Court. No doubt law is settled that a suit can be
dismissed where the party comes to the court for any
relief concealed the material facts from the Court
which is necessary for the adjudication of the suit.
21. Even otherwise, the present suit has been filed for
possession based on the substantial. The dismissal of
the suit for withholding of material facts from the court
is generally considered where the court has
discretionary power to grant equitable relief. Here, in
the present suit no equitable relief has been sought by
the appellants rather they have claimed the substantial
relief of possession being lessor of the suit property.
So, I am of the view that the Ld. Trial Court could have
consider the suit of the appellants on merit after
appreciating the evidence. Accordingly, judgment
dated 29.08.2014 is set aside. Case be remanded back
to the Ld. Trial Court to hear the parties afresh on the
merit of the suit and decide the case on merits after
appreciating the evidence being led by the parties.
Copy of order be sent to Ld. Trial Court. Appeal
disposed of accordingly. Trial Court record be sent
back.”
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 42 of 48
45. The aforesaid Order of remand dated 03.09.2015 is not
challenged by the Appellants. The observations given in the
aforesaid Order are given in appeal by this Court and
therefore are binding on this Court, however this Court still
is proceeding to examine the merits of the contentions of the
Appellants with regard to documents dated 30.03.1987,
independent of the aforesaid Order of remand.
46. The Appellants/Defendants have filed the aforesaid
documents at the fag end of the trial and no reasons were
mentioned as to why the same were not filed previously. It is
stated in the application that the Plaintiffs have forged the
aforesaid documents for mutation of the House Tax records.
The Appellants/Defendants have stated in para 7 of the
preliminary objections in the written statement that the
Plaintiff’s name was changed in house tax records and they
have come to know about the same in 1999. No specific
reason has been pointed out as to why the documents were
produced at the very fag end of the matter. Further the
Defendants do not admit the aforesaid documents and
averred the same to be forged and fabricated. The Plaintiffs
have admitted the documents in their reply without any ado
and stated that the same to be pertaining to the superstructure
over the suit property constructed by the father of the
Defendant No.1 to 4. If the aforesaid documents are perused,
the contentions of the Plaintiffs cannot be said to be
implausible altogether. Though some of these documents are
illegible, however it can be read from the copy of the GPA
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RCA DJ No. 12/2026 Page No. 43 of 48
that the executant/transferor did not claim to be an absolute
owner of the property in question and claims only to be a
lessee of the plot. In the first para of recitals, it is mentioned
that the executant is the owner and occupier of the leasehold
rights with structure thereon in respect of property No.
2246A constructed on a piece of land ad-measuring 500
square yards. The second para of recitals mentions that the
executant has got the above-mentioned area on lease and
later on has constructed the above-mentioned property at his
costs and expenses. The tone and tenor of the recitals leave it
open that the property, being subject-matter of the
transaction, is the property constructed on the land by the
transferor and not the plot under lease. The transferor
addresses himself as lessee and nowhere addresses himself
as being the absolute owner. The Defendants have filed
aforesaid documents at the fag end of the trial for selectively
using the same, while terming them forged and fabricated so
that the documents may not be used against their interests.
Even despite claiming the documents to be forged and
fabricated, the Defendants/Appellants have not take any
action against the same since 1999, i.e., the date of their
knowledge in the written statement. Therefore, the
contention of the Plaintiff is more probable on account of
preponderance of probabilities that the aforesaid documents
did not pertain to land and only pertained to the
superstructure.
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 44 of 48
47. Ld. Counsel for the Appellants/Defendants has submitted
that in terms of the documents dated 30.03.1987, the
possession is claimed to be received by the
Plaintiffs/Respondents and therefore, there was no cause of
action for the suit for possession and the suit for possession,
at best, was time barred. The Defendants have not stated in
the written statement that they or their predecessor-in-
interest have in fact handed over the possession of the suit
property to the Respondents/ Plaintiffs. In the written
statement, the Defendants have claimed to be in continuous
possession of the suit property for the last three decades,
prior to institution of the suit. Therefore, the contentions of
the Appellants lacks any merit and the suit cannot be stated
to be time barred on the basis of the aforesaid unproven and
misconceived contention.
48. The Plaintiffs have proved the Exhibit PW-1/1, i.e., the
registered lease deed in question. The aforesaid lease deed
was for a period of 20 years and the lessee did not hand over
the possession of the property upon expiry of the term of the
lease. The Plaintiffs have assented/permitted the lessee and
his legal heirs to remain in possession of the suit property
and sought their eviction by issuance of a legal notice in the
year 2003. The cause of action to recover possession of the
suit property arose, when the Plaintiffs specifically
determined the character of the tenants by issuing a notice
for termination for tenancy. The character of the
Defendants/Predecessor-in-interest did not change from the
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 45 of 48
lessee till the time the Plaintiffs did not issue the notice for
termination and permitted them to occupy the suit property
without any objection. The Defendants remained tenants
holding over on account of such assent of the Plaintiff, which
character came to an end, once the Plaintiffs asked for
possession by issuing a notice for termination/eviction. It is
not the case of the Defendants that they have ever exercised
any hostile title or refuted the rights of the
Plaintiffs/Respondents, any time previously, i.e., 12 years
prior to the institution of the suit. Therefore the suit for
possession cannot be termed to be barred by limitation.
49. In so far as the prayer of arrears of rent is concerned, the
same is claimed and granted at the rate mentioned in the
lease deed, i.e., Rs.180/- per annum. The mesne profits have
also been granted at a minimal rate of Rs.6,000/- per month,
taking into consideration the nature and dimension of the suit
property. Therefore, this Court is in concurrence with the
conclusions on the issues given by the Court of Ld. Civil
Judge as well as the reasons for the same.
50. The points of determination are accordingly answered
against the Appellants and in favour of the Respondents. It is
held that the Court of Ld. Civil Judge has correctly decided
the Issues framed in the matter and the
Appellants/Defendants are not entitled to lead any additional
evidence under Order XLI Rule 27 of the Code of Civil
Procedure, 1908.
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RCA DJ No. 12/2026 Page No. 46 of 48
Final Decision/Conclusion:
51. In terms of the discussion/reasons stated hereinabove, the
present appeal is dismissed and the judgment/decree dated
12.08.2016, passed by Ld. Civil Judge-07, West, Tis Hazari
Courts, Delhi in CS No.612506/2016 is affirmed. The decree
sheet be drawn up accordingly.
52. The Order in the present case was reserved by the
undersigned, when the undersigned was posted as
District Judge-04, West, THC, Delhi and subsequently
before pronouncement of Order, the undersigned was
transferred to this Court in terms of Transfer Order
No.08/D-3/Gaz.IA/DHC/2026 dated 06.02.2026 issued by
the Hon’ble High Court of Delhi and in terms of Note
No.2 of the aforementioned Transfer Order, the present
case was retained for pronouncement of Order and the
same has been pronounced today.
53. The Court Ahlmad is directed to send / handover the files
of the present case along with the TCR to the Court
Ahlmad of the Court of Ld. District Judge-04, West,
THC, Delhi. The Court Ahlmad of Ld. District Judge-04,
West, THC, Delhi is directed to send a copy of this Order
along with the TCR to the Court of Ld. Civil Judge-07,
West, THC, Delhi for information. The appeal files are
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 47 of 48
directed to be consigned to the Record Room after due
compliance by the Court Ahlmad of Ld. District Judge-
04, West, THC, Delhi. Digitally signed
by ANIL
ANIL CHANDHEL
CHANDHEL Date:
2026.03.07
16:52:32 +0530
Announced in the open Court (ANIL CHANDHEL)
today on 7th of March, 2026 ASJ (Special FTC),
East, KKD, Delhi
07.03.2026.
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Brijesh and Anr Vs. Mam Chand and Anr.
RCA DJ No. 12/2026 Page No. 48 of 48
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