Delhi District Court
Mahinder Kumar Khanna And Ors vs M/S Preet Finance Co on 18 July, 2026
CS SCJ 1267/22 MAHINDER KUMAR KHANNA AND
ORS. Vs. M/S PREET FINANCE CO.
IN THE COURT OF SH. MILAN GOEL
CIVIL JUDGE - 08 (CENTRAL), TIS HAZARI COURTS,DELHI
SUIT NO: 1267/2022
CNR NO : DLCT030024002022
IN THE MATTER OF: -
MEMO OF PARTIES
1. SH. MAHINDER KUMAR KHANNA
S/o LATE SH. R.K. KHANNA
R/O 9/65, WEST PUNJABI BAGH,
NEW DELHI - 110026.
2. SH. HARDIK KAKKAR
S/O SH. RAJINDER KUMAR KAKKAR
3. SMT. NEETA KAKKAR
W/O LATE SH. NARINDER KAKKAR
BOTH R/O B-39 INDERPURI
NEW DELHI - 110012 ...PLAINTIFFS
VERSUS
M/S PREET FINANCE CO.
THROUGH SH. SARDUL SINGH
AT XVI/1020, PLOT KHASRA NO. 1135,
BLOCK NO. C, NAIWALA,
GALI NO. 18, KAROL BAGH,
NEW DELHI, DELHI ...DEFENDANT
Date of Institution : 07.05.2022
Date of Judgment : 18.07.2026
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JUDGMENT
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT,
DAMAGES/MESNE PROFITS AND FOR PERMANENT
INJUNCTION
1. By way of the present judgment, I adjudicate the suit instituted by the
plaintiffs seeking a decree for possession, recovery of arrears of rent,
mesne profits/damages, permanent injunction, and other consequential
reliefs in respect of the basement portion, having its entrance from the rear
side, forming part of propesrty bearing Municipal No. XVI/1020, ad-
measuring 111 square yards, situated at Naiwala, Gali No. 18, Karol Bagh,
New Delhi.
PLEADINGS IN THE PLAINT
2. Bereft of unnecessary details, the case of the plaintiffs is that they became
the joint owners of the suit property by virtue of a registered Sale Deed
dated 12.07.2021 executed by the previous owner, Sh. Tejinder Singh
Narang, who had inherited the property under a Will dated 08.12.1994
executed by his mother, late Smt. Harbhajan Kaur/Harbans Kaur, the
erstwhile owner of the property. It is their case that the suit premises had
originally been let out by late Smt. Harbhajan Kaur/Harbans Kaur to the
defendant for commercial purposes under a Lease Deed dated 17.10.1977
at a monthly rent of ₹850/-, with a covenant providing for enhancement of
rent by 10% after every two years. According to the plaintiffs, by the time
they purchased the property, the monthly rent had stood enhanced to
₹6,289/-.
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3. It is further the case of the plaintiffs that upon purchase of the suit property,
both the previous owner as well as the plaintiffs intimated the defendant
about the transfer of ownership and called upon it to attorn the tenancy in
their favour by paying future rent to them. However, despite such
intimation and repeated demands, the defendant allegedly failed to pay rent
with effect from 01.08.2021, resulting in arrears of rent amounting to
₹50,312/- for the period from 01.08.2021 to 31.03.2022. The plaintiffs
have also claimed interest on the said arrears at the rate of 18% per annum.
4. The plaintiffs further aver that the defendant was a monthly tenant and that
its tenancy was terminated by a legal notice dated 16.02.2022 issued under
Section 106 of the Transfer of Property Act, 1882, calling upon the
defendant to vacate and hand over peaceful possession of the suit premises
on or before 31.03.2022. It is alleged that although the defendant replied to
the said notice on 30.03.2022, it neither vacated the suit premises nor
cleared the outstanding dues. Consequently, according to the plaintiffs, the
defendant became an unauthorized occupant with effect from 01.04.2022
and is liable to pay mesne profits/damages at the rate of ₹20,000/- per
month till delivery of vacant possession. It is also alleged that the defendant
has threatened to create third-party rights or interests in the suit property
by subletting or otherwise parting with possession thereof.
5. On the aforesaid averments, the plaintiffs have instituted the present suit
seeking recovery of possession of the suit premises, arrears of rent along
with interest thereon, mesne profits/damages for unauthorized use and
occupation, a decree of permanent injunction restraining the defendant
from creating any third-party interest in the suit property, costs of the suit,
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and such other consequential reliefs as this Court may deem fit and proper
in the facts and circumstances of the case.
PLEADINGS IN THE WRITTEN STATEMENT
6. The defence set up by the defendant is that the present suit is misconceived,
not maintainable, and has been instituted after suppressing material facts.
It is pleaded that the plaintiffs have not approached this Court with clean
hands. A preliminary objection has also been raised that the tenancy in
question is governed by the provisions of the Delhi Rent Control Act, 1958,
as the last paid rent to late Smt. Harbhajan Kaur/Harbans Kaur, the
erstwhile owner of the suit property, was ₹2,000/- per month. It is,
therefore, contended that in view of the bar contained under Section 50 of
the Delhi Rent Control Act, 1958, this Court lacks jurisdiction to entertain
the present suit. The defendant has also sought rejection of the plaint under
Order VII Rule 11 CPC.
7. On merits, the defendant has admitted the execution of the Lease Deed
dated 17.10.1977 between late Smt. Harbhajan Kaur/Harbans Kaur and the
defendant in respect of the suit premises for a period of two years. It is,
however, pleaded that upon expiry of the lease period, late Smt. Harbhajan
Kaur/Harbans Kaur voluntarily continued the tenancy on a month-to-
month basis under an oral arrangement, pursuant to which the defendant
continued to pay rent in cash till her demise on 26.02.2020. According to
the defendant, the last paid monthly rent was ₹2,000/-.
8. It is further the case of the defendant that after the demise of late Smt.
Harbhajan Kaur/Harbans Kaur, neither her son, Sh. Tejinder Singh Narang,
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nor any of her legal heirs ever approached the defendant either for payment
of rent or for vacating the suit premises. The defendant claims that it
became aware of the plaintiffs’ alleged ownership only upon receipt of the
legal notice dated 16.02.2022. The defendant has denied the existence of
any landlord-tenant relationship with the plaintiffs, disputed the alleged
rate of rent of ₹6,289/- per month, denied having committed any default in
payment of rent or having attempted to create any third-party interest in the
suit premises, and has prayed for dismissal of the suit with costs.
REPLICATION
9. In replication, the plaintiffs denied the averments made in the written
statement and reaffirmed the contents of the plaint. It was contended that
the written statement is liable to be struck off for non-compliance with
Order VI Rule 15 CPC. The plaintiffs denied that the suit is barred under
Section 50 of the Delhi Rent Control Act, 1958, and reiterated that the last
paid rent was ₹6,289/- per month.
10.The plaintiffs further reiterated that the suit property devolved upon Sh.
Tejinder Singh Narang under a registered Will and was thereafter sold to
them, whereupon the defendant became their tenant. It was also asserted
that the defendant had been duly informed of the change in ownership and
called upon to attorn the tenancy.
11.The plaintiffs denied the remaining averments made in the written
statement, including the plea regarding the rate of rent, the absence of a
landlord-tenant relationship, and the alleged partnership documents, which
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were stated to be forged and fabricated, and prayed for decree of the suit
as prayed for in the plaint.
ISSUES FRAMED
12.Upon completion of pleadings, the learned predecessor of this Court, vide
order dated 16.05.2023, framed the following issues for adjudication:
a. Whether the plaintiffs are entitled for decree of possession of
the suit property i.e. entire basement portion having entrance
from back side, forming part of property bearing No.
XIV/1020, measuring 111 sq. yards, built on Khasra No.
1135 in Block No. C, Naiwala, Gali No. 18, Karol Bagh, New
Delhi, from the defendant, as prayed for? OPP
b. Whether the plaintiff is entitled for recovery of arrears of
rent i.e. Rs.50,312/-, as prayed for? OPP
c. Whether the plaintiff is entitled to interest on the arrears of
rent @ 18% from the date of accrual till realization, as
prayed for? OPP
d. Whether the plaintiff is entitled to recovery of
damages/mesne profits/occupation charges @ Rs.20,000/-
per month w.e.f. 01.05.2022, as prayed for? OPP
e. Whether the plaintiff is entitled for decree of permanent
injunction, as prayed for? OPP
f. Whether the suit is barred by Sec. 50 of the DRC Act ? OPD
g. Relief.
PLAINTIFF EVIDENCE
13.In order to prove his case, the plaintiff no.1 examined himself as PW1 and
tendered his evidence by way of an affidavit as Ex.PW1/A and relied upon
the following documents:
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S. No. Description of Documents Exhibits/Mark
1. Copy of Sale Deed dated 08.04.2021 Ex. PW1/1 (OSR)
2. Copy of Lease Deed dated 17.10.1997 Mark A
3. Office copy of the legal notice dated Ex. PW1/3
16.02.2022
4. Original Postal receipt Ex. PW1/4
5. Reply dated 30.03.2022 to the aforesaid Ex.PW1/5
legal notice
6. Site plan of the suit property Ex.PW1/6
14.The witness was duly cross examined. During his cross-examination,
PW-1 admitted that the Lease Deed dated 17.10.1977 (Mark A) executed
between late Smt. Harbhajan Kaur/Harbans Kaur and the defendant was
for a fixed period of two years. He further admitted that no subsequent
written lease deed, rent agreement or tenancy document executed between
the defendant and the erstwhile owner after expiry of the said lease period
had been placed on record. He, however, voluntarily stated that the tenancy
continued on the basis of mutual understanding between the parties and
that the same was inherited by Sh. Tejinder Singh Narang after the demise
of late Smt. Harbhajan Kaur/Harbans Kaur.
15.PW-1 further admitted that no rent receipts or other documentary evidence
had been filed to substantiate the alleged rate of rent or the last payment of
rent by the defendant to the erstwhile owner. He stated that the arrears of
rent claimed in the suit were calculated on the basis of the information
provided by the erstwhile owner regarding the rent being paid by the
defendant and the terms contained in the Lease Deed dated 17.10.1977. He
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also admitted that no document evidencing payment of rent by the
defendant to the erstwhile owner or Sh. Tejinder Singh Narang had been
placed on record.
16.PW-1 further admitted that after purchase of the suit property, no fresh rent
agreement or lease deed was executed between the plaintiffs and the
defendant. He stated that the defendant was informed about the change in
ownership and was called upon to pay rent to the plaintiffs. In this regard,
he referred to the legal notice issued to the defendant. However, when
confronted with the pleadings, he admitted that although he had referred to
a legal notice dated 02.08.2021, no such notice had been filed on record
and that the notice available on record was the legal notice dated
16.02.2022 (Ex. PW1/3).
17.With respect to the claim of arrears of rent, PW-1 reiterated that the
calculation was based upon the rent allegedly communicated by the
erstwhile owner. He denied the suggestion that the defendant was not liable
to pay rent to the plaintiffs or that no landlord-tenant relationship existed
between the parties. He also denied the suggestion that no tenancy
relationship existed between the defendant and Sh. Tejinder Singh Narang
or that the defendant had never paid rent to him.
18.PW-1 further denied the suggestion that the defendant had been inducted
in the suit premises by late Smt.Harbhajan Kaur/Harbans Kaur out of love
and affection and that the present proceedings had been initiated without
any subsisting landlord-tenant relationship. He denied the suggestion that
he was deposing falsely.
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19.The plaintiffs thereafter closed their evidence on 28.11.2024, whereafter
the matter was listed for Defendant’s Evidence. Despite being granted
opportunity, the defendant failed to lead any evidence, and accordingly,
DE was closed by the learned predecessor of this Court vide order dated
12.02.2025. Subsequently, upon an application moved by the defendant,
one-two more opportunities were granted to lead DE vide order dated
08.08.2025. However, the defendant again failed to avail the said
opportunity, resulting in closure of DE once again vide order dated
04.11.2025.
ARGUMENTS ADVANCED BY THE PARTIES
20.Learned counsel for the plaintiffs submits that the plaintiffs have
successfully proved their case by leading cogent oral as well as
documentary evidence. It is contended that the plaintiffs have established
their ownership over the suit property by proving the registered Sale Deed
dated 08.04.2021 (Ex. PW1/1), pursuant to which they stepped into the
shoes of the erstwhile owner and became entitled to receive rent as well as
recover possession of the suit premises.
21.It is further submitted that the defendant has admitted the original tenancy
under late Smt. Harbhajan Kaur/Harbans Kaur and has also admitted that
after expiry of the written Lease Deed, it continued to remain in possession
as a month-to-month tenant. Once the tenancy itself is admitted, the only
dispute sought to be raised by the defendant pertains to the rate of rent. It
is argued that the plaintiffs have specifically pleaded and deposed that the
last payable rent was Rs.6,289/- per month, whereas the defendant has
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merely asserted that the rent was Rs.2,000/- per month without producing
a single document in support thereof.
22.Learned counsel further submits that despite repeated opportunities, the
defendant failed to enter the witness box or lead any evidence in support
of the pleas taken in the written statement. Consequently, the averments
made in the written statement remain unsubstantiated and cannot be treated
as evidence. It is argued that pleadings are not evidence and a party which
fails to prove its pleadings cannot derive any benefit therefrom.
23.It is further contended that the defendant has failed to discharge the burden
of proving the applicability of Section 50 of the Delhi Rent Control Act.
The plea that the monthly rent was Rs.2,000/- has remained a bald assertion
unsupported by any rent receipt, ledger, account statement or any other
documentary evidence. On the contrary, the testimony of PW-1 regarding
the rate of rent has remained unshaken during cross-examination, as no
suggestion disputing the said rate was put to the witness.
24.Learned counsel submits that the tenancy of the defendant stood validly
terminated by the legal notice dated 16.02.2022 issued under Section 106
of the Transfer of Property Act. Despite receipt of the said notice, the
defendant neither vacated the suit premises nor tendered the outstanding
rent. The defendant has, therefore, continued in unauthorized occupation
of the suit premises and is liable to hand over vacant possession besides
paying arrears of rent and mesne profits.
25.Lastly, learned counsel submits that the plaintiffs have proved all the
essential ingredients required for grant of the reliefs claimed in the suit,
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whereas the defendant has utterly failed to substantiate any of its defences.
Reliance placed upon Naeem Ahmed v. Yash Pal Malhotra, Vidhyadhar
v. Manikrao & Anr., (1999) 3 SCC 573, and Jaya Nandan v. Suresh
Kumar, in support of his submissions.
26.Per Contra Learned counsel for the defendant submits that the present suit
is not maintainable and deserves to be dismissed as the plaintiffs have
failed to establish the existence of a landlord-tenant relationship between
the parties. It is contended that the defendant was inducted into the suit
property by the erstwhile owner and there is no attornment of tenancy in
favour of the plaintiffs. According to the learned counsel, mere execution
of the Sale Deed in favour of the plaintiffs does not ipso facto entitle them
to seek eviction of the defendant without establishing that the defendant
had accepted them as landlords.
27.It is further submitted that the plaintiffs have failed to prove the agreed rate
of rent. Learned counsel argues that the rent of the suit premises was only
Rs.2,000/- per month and, therefore, the provisions of the Delhi Rent
Control Act, 1958 are attracted. Consequently, the jurisdiction of the Civil
Court is expressly barred under Section 50 of the Delhi Rent Control Act
and the present suit is liable to be rejected on this ground alone.
28.It is further argued that no rent agreement, rent receipts, account statements
or any other contemporaneous record has been produced to establish that
the monthly rent was Rs.6,289/- as alleged in the plaint. In the absence of
such evidence, the oral assertion of the plaintiffs cannot be accepted. It is
argued that the legal notice dated 16.02.2022 does not confer any right
upon the plaintiffs to seek eviction as the defendant has consistently
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disputed the plaintiffs’ status as landlords. It is submitted that where the
title of the transferee landlord is under a bona fide dispute, the Civil Court
is required to examine whether the plaintiffs have established their
entitlement to receive rent and maintain the present proceedings.
29.Learned counsel also submits that the plaintiffs have failed to prove any
default in payment of rent. It is contended that there is no cogent evidence
on record showing the amount allegedly due or the period for which the
defendant is stated to be in arrears. Consequently, the relief for recovery of
arrears of rent and mesne profits is without any factual or legal foundation.
Reliance placed upon S. Thangappan v. P. Padmavathy; Prakash
Bhalotia (D) through LRs v. Indra Chandra Goyal (D) through LRs
and Sat Parkash v. M/s Vijay Printers.
ISSUE WISE ANALYSIS
ISSUE NO. 6
Whether the suit is barred under Section 50 of the Delhi Rent
Control Act? OPD
30.Since the present issue pertains to the jurisdiction of this Court to entertain
the present suit, the same is taken up first. The onus to prove this issue was
specifically cast upon the defendant. It is the categorical case of the
defendant that the last paid rent of the suit premises was ₹2,000/- per month
and, therefore, the tenancy continued to be governed by the provisions of
the Delhi Rent Control Act, 1958. Consequently, according to the
defendant, the jurisdiction of the Civil Court stands barred under Section
50 of the Delhi Rent Control Act.
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31.Before adverting to the evidence on record, it is apposite to refer to the
statutory provision. Section 50 of the Delhi Rent Control Act bars the
jurisdiction of the Civil Court only in respect of matters which are required
to be decided by the Rent Controller under the Act. However, the bar is
attracted only where the tenancy is admittedly governed by the provisions
of the Delhi Rent Control Act. In other words, where the landlord asserts
that the monthly rent exceeds the statutory threshold and the tenant
disputes the same, the applicability of Section 50 itself becomes a question
of fact, the burden whereof lies upon the party asserting such a bar.
32.The law is well settled that the burden of proving a fact lies upon the party
who asserts it. Sections 101 to 103 of the Indian Evidence Act embody
this fundamental principle. Thus, since the defendant seeks dismissal of the
suit by invoking the statutory bar contained in Section 50 of the Delhi Rent
Control Act, the burden squarely rested upon the defendant to establish that
the last payable rent was below the statutory threshold.
33.In the present case, the plaintiffs have consistently pleaded that the original
tenancy commenced at a monthly rent of ₹850/- under the Lease Deed
dated 17.10.1977 with an agreed escalation clause providing enhancement
of rent by 10% after every two years and that by the time the property was
purchased by them, the rent had increased to ₹6,289/- per month. PW-1
reiterated the said facts on oath in his examination-in-chief.
34.During cross-examination, PW-1 candidly admitted that no rent receipts or
independent documentary evidence had been placed on record to establish
the last paid rent. He further admitted that the calculation was based upon
the information furnished by the erstwhile owner and the escalation clause
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contained in the original Lease Deed. These admissions undoubtedly dilute
the documentary foundation of the plaintiffs’ case regarding the exact rate
of rent. However, the matter cannot end there.
35.It is equally significant that the defendant, despite taking a categorical plea
that the last paid rent was ₹2,000/- per month, failed to produce even a
single document in support thereof. No rent receipt, ledger, account book,
income tax record, correspondence, bank statement or any
contemporaneous document reflecting payment of rent at ₹2,000/- per
month has been brought on record. More importantly, despite repeated
opportunities, the defendant chose not to enter the witness box. Defendant’s
evidence was closed not once but twice by orders of the learned
predecessor Court.
36.It is a settled principle of law that pleadings are not a substitute for proof.
The burden lies upon the party asserting a fact to establish the same by
leading cogent and admissible evidence. Mere assertions in the pleadings,
unsupported by evidence, cannot form the basis of a judicial determination.
Further, where a party, despite having pleaded material facts, fails to enter
the witness box or adduce evidence in support thereof, the Court may draw
an adverse inference against such party while appreciating the evidence on
record.
37.In the considered opinion of this Court, the defendant has completely failed
to discharge the burden cast upon it. The plea that the rent was ₹2,000/-
per month has remained a bald assertion contained in the written statement
without any supporting evidence whatsoever. Such an unsubstantiated plea
cannot be accepted merely because the plaintiffs could not produce rent
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receipts. The weakness of the plaintiffs’ documentary evidence regarding
the precise rate of rent cannot absolve the defendant of its independent
burden to prove the jurisdictional bar pleaded by it.
38.Another significant circumstance deserves mention. The defendant has
admitted the original tenancy created under the Lease Deed dated
17.10.1977. It has further admitted that after expiry of the written lease, the
tenancy continued orally on a month-to-month basis. Once the defendant
admits the tenancy, it was incumbent upon it to establish the terms
governing such continued tenancy, particularly the rate of rent relied upon
for invoking Section 50 of the Delhi Rent Control Act. Having failed to
lead any evidence whatsoever, the defendant cannot seek protection under
the statute merely on the basis of unproved pleadings.
39.There is yet another circumstance which substantially undermines the
defence raised by the defendant. Upon receipt of the legal notice dated
16.02.2022 (Ex. PW1/3), the defendant sent a detailed reply dated
30.03.2022 (Ex. PW1/5). In paragraph 3 of the said reply, the defendant
did not claim that it had been paying rent of ₹2,000/- per month to the
erstwhile owner. Rather, the stand taken was that late Smt. Harbhajan
Kaur/Harbans Kaur, during her lifetime, never demanded any rent from the
defendant nor asserted her title or sought possession of the suit property.
The tenor of the reply further suggests that the defendant was occupying
the premises on account of the cordial relationship shared with late Smt.
Harbhajan Kaur/Harbans Kaur and that the premises had been made
available out of love and affection.
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40.Surprisingly, the aforesaid stand underwent a complete change in the
written statement filed before this Court. In the written statement, the
defendant has specifically pleaded that after the expiry of the written lease
deed, the tenancy continued on the basis of a mutual oral arrangement, that
rent was regularly paid in cash to late Smt. Harbhajan Kaur/Harbans Kaur
and that the last paid rent was ₹2,000/- per month. Thus, while in the reply
to the legal notice the defendant projected its possession as one arising out
of love and affection without any assertion of payment of rent, in the
written statement it introduced an altogether different case by alleging
regular payment of rent at the rate of ₹2,000/- per month.
41.These two stands are inherently inconsistent and mutually destructive. If,
as pleaded in the reply to the legal notice, the defendant was permitted to
occupy the premises out of love and affection and no rent was ever
demanded, there was no occasion for the defendant to subsequently plead
payment of rent under an oral tenancy. Conversely, if rent was in fact being
regularly paid at the rate of ₹2,000/- per month under a subsisting tenancy,
the said fact would have found mention in the earliest reply to the legal
notice, particularly when the plaintiffs had specifically asserted that the
monthly rent stood enhanced to ₹6,289/-.
42.It is a settled principle of appreciation of evidence that where a party takes
inconsistent and irreconcilable stands at different stages of the proceedings,
the credibility of its defence stands seriously impaired. The contradictory
pleas taken by the defendant not only diminish the evidentiary value of its
defence but also render its plea regarding the applicability of Section 50 of
the Delhi Rent Control Act wholly unreliable. More importantly, despite
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taking such contradictory pleas, the defendant abstained from entering the
witness box to explain the inconsistency or prove the alleged payment of
rent. The inevitable consequence is that the defendant has failed to
discharge the burden cast upon it to establish that the suit is barred under
Section 50 of the Delhi Rent Control Act.
43.This Court is, therefore, satisfied that the defendant has miserably failed to
establish that the monthly rent of the suit premises was ₹2,000/- or that the
tenancy continued to be governed by the Delhi Rent Control Act.
Consequently, the defendant has failed to prove the applicability of Section
50 of the Delhi Rent Control Act.
44.Accordingly, Issue No. 6 is decided against the defendant and in favour
of the plaintiffs.
ISSUE NO. 1
Whether the plaintiffs are entitled to a decree of possession of the suit
property i.e. the entire basement portion having entrance from the
back side forming part of property bearing No. XVI/1020, Naiwala,
Gali No.18, Karol Bagh, New Delhi, as prayed for?
45.The onus to prove this issue was upon the plaintiffs. In order to succeed in
a suit for possession instituted by a landlord against a tenant under the
Transfer of Property Act, the plaintiffs are required to establish the
following essential ingredients:-
a. that they are entitled to maintain the present suit as landlords/owners
of the suit property;
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b. that the defendant was inducted into the suit property as a tenant;
c. that the tenancy has been validly terminated in accordance with law;
andd. that despite such termination, the defendant continues to remain in
unauthorized occupation of the suit premises.
46.The first requirement stands duly established from the registered Sale Deed
dated 08.04.2021 (Ex. PW1/1). The execution and validity of the said Sale
Deed has never been disputed by the defendant. In fact, there is no
challenge either to the title of the erstwhile owner, namely Sh. Tejinder
Singh Narang, or to the title acquired by the plaintiffs under the registered
conveyance.
47.The defendant has also admitted the execution of the Lease Deed dated
17.10.1977 executed by late Smt. Harbhajan Kaur/Harbans Kaur in favour
of the defendant. The written statement further admits that after expiry of
the written lease, the defendant continued to occupy the premises on a
month-to-month basis. Thus, the origin of possession as a tenant is not in
dispute.
48.The principal contention of the defendant is that there was no relationship
of landlord and tenant between the parties since no fresh tenancy was
created after the plaintiffs purchased the property. The said contention
deserves to be rejected. Section 109 of the Transfer of Property Act
specifically provides that where the lessor transfers the leased property, the
transferee shall possess all the rights of the lessor in respect of the property
transferred. The rights of the lessor automatically vest in the transferee by
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operation of law. Fresh attornment by the tenant or execution of a fresh
lease deed is not a condition precedent for the transfer of landlord’s rights.
49.The Hon’ble Supreme Court, in the case titled as Mahendra
Raghunathdas Gupta v. Vishvanath Bhikaji Mogul, reported in,
(1997) 5 SCC 329 , has held as under:
“6. …….It is well settled that a transferee of the
landlord’s rights steps into the shoes of the
landlord with all the rights and liabilities of the
transferor landlord in respect of the subsisting
tenancy. The section does not require that the
transfer of the right of the landlord can take
effect only if the tenant attorns to him.
Attornment by the tenant is not necessary to
confer validity of the transfer of the landlord’s
rights. Since attornment by the tenant is not
required a notice under Section 106 in terms of
the old terms of lease by the transferor landlord
would be proper and so also the suit for
ejectment. ”
50.Similarly, The Hon’ble Supreme Court, in the case reported in Ambica
Prasad v. Mohd. Alam, reported in (2015) 13 SCC 13, while referring
to Section 109 of transfer of property Act has held as under :
“15…From a perusal of the aforesaid section, it is
manifest that after the transfer of lessor’s right in
favour of the transferee, the latter gets all rights
and liabilities of the lessor in respect of subsisting
tenancy. The section does not insist that transfer
will take effect only when the tenant attorns. It is
well settled that a transferee of the landlord’s
rights steps into the shoes of the landlord with all
the rights and liabilities of the transferor landlord
in respect of the subsisting tenancy. The sectionPage no.19/29 MILAN
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does not require that the transfer of the right of
the landlord can take effect only if the tenant
attorns to him. Attornment by the tenant is not
necessary to confer validity of the transfer of the
landlord’s rights. Since attornment by the tenant
is not required, a notice under Section 106 in
terms of the old terms of lease by the transferor
(sic transferee) landlord would be proper and so
also the suit for ejectment. ”
51.In the present case, PW-1 has categorically deposed that after purchase of
the property the defendant was informed regarding the change in
ownership and was called upon to pay rent to the plaintiffs. The legal notice
dated 16.02.2022 (Ex. PW1/3) also specifically informed the defendant
regarding the transfer of ownership and called upon it to vacate the suit
premises.
52.The receipt of the legal notice is not disputed. Rather, the defendant
admittedly replied to the said notice vide reply dated 30.03.2022 (Ex.
PW1/5). Therefore, the defendant had complete knowledge regarding the
transfer of ownership. The tenancy being admittedly a month-to-month
tenancy stood validly terminated by the aforesaid legal notice issued under
Section 106 of the Transfer of Property Act.
53.Another important aspect deserves mention. The defendant has failed to
lead any evidence whatsoever. Despite repeated opportunities, the
defendant neither entered the witness box nor produced any witness or
document in support of the pleas raised in the written statement.
Consequently, the assertions contained in the written statement remain
unproved.
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54.It is trite law that pleadings are not evidence. A party cannot succeed
merely on the basis of the averments made in the pleadings unless the same
are duly established by leading cogent and admissible evidence. The
burden lies upon the party asserting a fact to prove it in accordance with
law. Where a party abstains from entering the witness box or fails to lead
evidence in support of its own pleadings, the Court is entitled to draw an
adverse inference against such party while appreciating the evidence on
record.
55.The testimony of PW-1 has remained substantially unchallenged on the
material aspects. Though PW-1 admitted during cross-examination that no
fresh lease deed or rent receipts have been placed on record, the said
admissions do not dilute the plaintiffs’ entitlement to possession. The
defendant itself admits the original tenancy as well as its continued
possession. Once the tenancy stood terminated, the defendant was under a
legal obligation to hand over vacant possession. The defendant has failed
to establish any independent right, title or interest entitling it to continue in
possession after termination of tenancy.
56.Accordingly, this Court is satisfied that the plaintiffs have successfully
established all the essential ingredients entitling them to recovery of
possession.
57.Issue No.1 is accordingly decided in favour of the plaintiffs and against
the defendant.
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ISSUE NO. 2
Whether the plaintiffs are entitled to recovery of arrears of rent of
₹50,312/-, as prayed for? OPP
58.The onus to prove this issue was upon the plaintiffs. The plaintiffs have
claimed arrears of rent amounting to ₹50,312/- for the period from
01.08.2021 to 31.03.2022 on the basis that the defendant failed to pay rent
after the plaintiffs became owners of the suit property.
59.As already discussed while deciding Issues No. 6 and 1, the plaintiffs have
successfully established their ownership over the suit property by proving
the registered Sale Deed (Ex. PW1/1). The defendant has admitted the
original tenancy under late Smt.Harbhajan Kaur/Harbans Kaur and has also
admitted that after expiry of the written lease deed, the tenancy continued
on a month-to-month basis. Consequently, upon transfer of ownership, the
plaintiffs became entitled to all the rights of the lessor by virtue of Section
109 of the Transfer of Property Act, including the right to recover rent from
the tenant.
60.The defendant has neither disputed the period for which arrears have been
claimed nor has it produced any material to establish that rent for the said
period stood paid. Although the defendant pleaded that the last paid rent
was ₹2,000/- per month, no evidence whatsoever has been adduced in
support of such plea. The defendant neither entered the witness box nor
produced any rent receipt, account statement, ledger or any documentary
evidence to establish payment of rent.
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61.At the same time, this Court cannot lose sight of the fact that the plaintiffs
have also failed to produce any rent receipts or documentary evidence
reflecting that the last payable rent was ₹6,289/- per month. PW-1 fairly
admitted during his cross-examination that the figure of ₹6,289/- was
calculated on the basis of the escalation clause contained in the original
Lease Deed and the information furnished by the erstwhile owner.
62.Ordinarily, the burden of proving the exact contractual rent lies upon the
landlord. However, in the present case, the defendant has not only failed to
rebut the plaintiffs’ testimony but has also chosen not to enter the witness
box. The oral testimony of PW-1 regarding the agreed rent has remained
substantially unchallenged. Significantly, no specific suggestion disputing
the figure of ₹6,289/- was put to PW-1 during his cross-examination. The
defendant also failed to produce any contrary evidence regarding the
agreed rate of rent.
63.Civil cases are decided on the touchstone of preponderance of probabilities
and not proof beyond reasonable doubt. In the absence of any rebuttal
evidence from the defendant and considering that the plaintiffs’ testimony
has remained substantially unrebutted, this Court finds no reason to
disbelieve the version of PW-1 regarding the amount of rent payable.
64.Accordingly, the plaintiffs have successfully established their entitlement
to recover arrears of rent amounting to ₹50,312/- from the defendant.
65.Issue No.2 is decided in favour of the plaintiffs and against the
defendant.
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ISSUE NO. 3
Whether the plaintiffs are entitled to interest on arrears of rent
@18% per annum from the date of accrual till realization?
66.The onus to prove this issue was upon the plaintiffs. The plaintiffs have
claimed interest at the rate of 18% per annum on the arrears of rent.
However, except making such a claim in the plaint, no agreement,
contractual stipulation or trade usage has been proved which would entitle
the plaintiffs to interest at the aforesaid rate.
67.Section 34 of the Code of Civil Procedure empowers the Court to award
reasonable interest depending upon the facts and circumstances of each
case. The grant of interest is essentially discretionary and has to be guided
by considerations of justice, equity and good conscience. In the absence of
any contractual stipulation providing for payment of interest at 18% per
annum, this Court is of the considered opinion that the said rate is
excessive.
68.Considering the prevailing commercial lending rates and the facts of the
present case, interest at the rate of 9% per annum on the arrears of rent
from the date of filing of the suit till realization would adequately meet the
ends of justice.
69.Accordingly, the plaintiffs are held entitled to interest at the rate of 9% per
annum on the decretal amount of arrears of rent from the date of institution
of the suit till realization.
70.Issue No.3 is partly decided in favour of the plaintiffs.
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ISSUE NO. 4
Whether the plaintiffs are entitled to recovery of damages/mesne
profits/use and occupation charges @₹20,000/- per month with effect
from 01.04.2022?
71.The onus to prove this issue was upon the plaintiffs. Once the tenancy stood
validly terminated by the legal notice dated 16.02.2022 and the defendant
failed to vacate the suit premises, its possession became unauthorized. A
person continuing in possession after lawful determination of tenancy is
liable to compensate the owner by paying mesne profits or damages for use
and occupation.
72.Section 2(12) of the Code of Civil Procedure defines “mesne profits” as
those profits which the person in wrongful possession actually received or
might with ordinary diligence have received together with interest thereon.
73.However, the plaintiffs have claimed damages at the rate of ₹20,000/- per
month without producing any evidence whatsoever regarding the
prevailing market rent of similar properties situated in the locality. Neither
any valuation report nor testimony of a property dealer nor any lease deed
of comparable premises has been produced. The burden of proving the
quantum of mesne profits lies upon the plaintiffs. Mere assertion in the
plaint cannot be accepted as proof of prevailing market rent.
74.Nevertheless, it cannot be disputed that the plaintiffs are entitled to
compensation for unauthorized use and occupation after termination of
tenancy.
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75.There is no dispute that after the valid termination of tenancy, the defendant
has continued to occupy the suit property without any legal authority. It is
well settled that a tenant continuing in possession after determination of
tenancy becomes liable to compensate the landlord by way of mesne profits
or damages for use and occupation. Although the plaintiffs have claimed
mesne profits @ ₹20,000/- per month, no independent evidence, such as
lease deeds of comparable properties, testimony of a property dealer,
valuation report or any other material, has been placed on record to
establish the prevailing market rental value of the suit property.
76.However, merely because the exact market rent has not been proved does
not disentitle the plaintiffs from claiming reasonable compensation. The
Court is competent to determine a fair and reasonable amount of mesne
profits on the basis of the location, nature, size and surrounding
circumstances of the property. The suit property is situated in Karol Bagh,
New Delhi, which is a well-developed commercial-cum-residential
locality, and it cannot be accepted that the defendant should continue to
enjoy the property without paying reasonable compensation merely
because the plaintiffs have not led evidence of the exact market rent.
77.Keeping in view the location of the property, the area under occupation,
the last admitted nature of tenancy, the passage of time and the overall facts
and circumstances of the case, this Court is of the considered opinion that
awarding mesne profits at the claimed rate of ₹20,000/- per month would
not be justified. At the same time, awarding mesne profits equivalent to the
last contractual rent would also fail to adequately compensate the plaintiffs
for the unauthorized occupation of the suit property.
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78.Accordingly, this Court deems it just, fair and reasonable to award mesne
profits/use and occupation charges @ ₹10,000/- (Rupees Ten Thousand
only) per month with effect from 01.04.2022 till the date the defendant
hands over vacant and peaceful possession of the suit property to the
plaintiffs.
79.Issue No. 4 is decided accordingly in favour of the plaintiffs and
against the defendant.
ISSUE NO. 5
Whether the plaintiffs are entitled to a decree of permanent
injunction, as prayed for?
80.The onus to prove this issue was upon the plaintiffs. The plaintiffs have
sought a decree of permanent injunction restraining the defendant from
creating any third-party interest in the suit property or parting with
possession thereof. Once the ownership of the plaintiffs stands established
and the tenancy has been validly terminated, the defendant has no legal
right to induct any third person or create any encumbrance in respect of the
suit property.
81.Although no specific instance of attempted alienation has been proved, the
apprehension expressed by the plaintiffs cannot be said to be wholly
unfounded, particularly when the defendant continues to remain in
unauthorized occupation despite termination of tenancy.
82.In order to protect the subject matter of the suit and to avoid multiplicity of
litigation, the plaintiffs are entitled to the equitable relief of permanent
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injunction. Accordingly, the defendant, its agents, servants, representatives
or any person claiming through it are restrained from transferring,
assigning, subletting, parting with possession or creating any third-party
interest in the suit property in any manner whatsoever.
83.Issue No.5 is decided in favour of the plaintiffs and against the defendant.
RELIEF
84.In view of the foregoing discussion and the findings returned on the issues
framed hereinabove, this Court is of the considered opinion that the
plaintiffs have successfully proved their case on the touchstone of
preponderance of probabilities. The defendant has failed to substantiate the
pleas taken in the written statement by leading any evidence, whereas the
plaintiffs have established their entitlement to the reliefs claimed in the
suit.
85.Accordingly, the suit is decreed in favour of the plaintiffs and against the
defendant in the following terms:
a. A decree of possession is passed in favour of the plaintiffs and
against the defendant in respect of the entire basement portion
having entrance from the back side forming part of property
bearing Municipal No. XVI/1020, Naiwala, Gali No. 18, Karol
Bagh, New Delhi, as shown in red colour in the site plan annexed
with the plaint.
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b. A decree for recovery of ₹50,312/- (Rupees Fifty Thousand Three
Hundred Twelve only) towards arrears of rent is also passed in
favour of the plaintiffs and against the defendant.
c. The plaintiffs shall further be entitled to simple interest @ 9% per
annum on the aforesaid amount of arrears of rent from the date of
institution of the suit till its realization.
d. The plaintiffs are further held entitled to mesne profits/use and
occupation charges @ ₹10,000/- (Rupees Ten Thousand only) per
month with effect from 01.04.2022 till the date the defendant hands
over vacant and peaceful possession of the suit property to the
plaintiffs.
e. A decree of permanent injunction is also passed restraining the
defendant, its agents, representatives, servants or any person
claiming through or under it from transferring, alienating, assigning,
subletting, parting with possession of, or creating any third-party
interest in respect of the suit property in any manner whatsoever.
86.The plaintiffs shall also be entitled to the costs of the suit.
87.Decree sheet be prepared accordingly.
88.File be consigned to the Record Room after due compliance.
(This judgment contains 29 pages
and each page has been signed by me.)
Announced in the open court (MILAN GOEL)
on 18.07.2026 Civil Judge-08
(Central)/Delhi
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