Valmiki J. Mehta, J.
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant against the concurrent Judgments of the courts below; of the Trial Court dated 4.6.2015 and the First Appellate Court dated 26.2.2016; by which the courts below have decreed the suit for possession and mesne profits filed by the respondent/plaintiff with respect to the premises no.A-345-346, J.J. Colony, Khyala, Delhi. This property is constructed on the ground floor, first floor, second floor and third floor with the suit being filed only with respect to ground floor of property no.A-345 and 346 which was in possession of the appellant/defendant. Respondent/plaintiff has also been granted damages/mesne profits at Rs.4,000/- per month from May, 2011 till the date of recovery of possession alongwith interest @ 6% per annum.
2(i) The facts pleaded by the respondent/plaintiff were that the respondent/plaintiff purchased the suit property from Smt. Tarunajeet Kaur by means of documentation dated 20.5.2011. The original allottee of the suit property no.A-345 was one Sh. Ram Avtar and the original allottee of property no.A-346 was Sh. Roshan Lal. The original Demand Letter dated 5.9.1985 from DDA to Sh. Ram Avtar with respect to property no.A-345 has been filed and proved by the respondent/plaintiff as Ex.PW1/5 and the similar letter of the same date in favour of Sh. Roshan Lal with respect to property no.A-346 has been proved as Ex.PW1/16. Sh. Ram Avtar and Sh. Roshan Lal were real brothers. It is not disputed by either of the parties that Sh. Ram Avtar and Sh. Roshan Lal are admittedly the first allottees of the suit property from DDA. Sh. Ram Avtar had firstly executed the documents Ex.PW1/6 to Ex.PW1/10 being general power of attorney, agreement to sell, Will, receipt and affidavit in favour of one Ms. Kiran Kapoor with respect to property no.A-345 on 27.12.1996. On the same date, Sh. Roshan Lal with respect to property no.A-346 executed similar documents in favour of Smt. Rekha Tandon being the documents Ex.PW/17 to Ex.PW1/21 and which are the general power of attorney, agreement to sell, Will, receipt and affidavit. Smt. Kiran Kapoor executed the documents Ex.PW1/11 to Ex.PW1/15 in favour of Smt. Tarunajeet Kaur and the same are dated 19.1.2007. Smt. Rekha Tandon executed the documents Ex.PW1/22 to Ex.PW1/26 being the general power of attorney, agreement to sell, affidavit, receipt and possession letter in favour of Smt. Tarunajeet Kaur on 10.11.2006. Smt. Tarunajeet Kaur tranferred rights in the suit property to the respondent/plaintiff Smt. Neha vide documentation dated 20.5.2011 and which have been proved as Ex.PW1/1 to Ex.PW1/4 being the general power of attorney, agreement to sell, possession letter and receipt.
(ii) As per the case in the plaint, appellant/defendant was inducted as a tenant in the suit property by the earlier owner Smt. Tarunajeet Kaur at a rent of Rs.4,000/- per month w.e.f 1.5.2008. Appellant/defendant is said to have not paid the rent w.e.f 19.5.2011. The subject suit for possession and damages therefore came to be filed against the appellant/defendant by the respondent/plaintiff.
3. Respondent/plaintiff in the suit filed her written statement and pleaded that she was the owner of the suit property because she had purchased rights in the same for a sum of Rs.50,000/- each from the previous owners Sh. Ram Avtar and Sh. Roshan Lal vide Receipts dated 13.1.2003 (Ex.DW1/1, colly). It was pleaded that the chain of documentation executed in favour of the respondent/plaintiff and originating from Sh. Ram Avtar and Sh. Roshan Lal were forged and fabricated documents and that the respondent/plaintiff wants to illegally grab possession of the suit property.
4. After pleadings were completed, trial court on 6.2.2013 framed the following issues:-
1. Whether the plaintiff is entitled to the relief of decree of possession, as prayed? OPP
2. Whether the plaintiff is entitled to the relief of damages and mesne profit, as prayed? OPP
5. The Trial Court vide its Judgment dated 4.6.2015 has given the following valid reasoning and conclusions in support of its decision that the respondent/plaintiff was the owner and the appellant/defendant was a tenant and therefore the suit for possession was bound to be decreed. I agree with the same. The first appellate court has adopted the reasoning given by the trial court. The relevant paras of the judgment of the trial court dealing with the issue no.1 are paras 15 to 26 and these paras read as under:-
15. PW-2 i.e. Smt. Tarunajeet Kaur is the alleged previous owner of the suit property who claims to have inducted the defendant as a tenant in the year 2008. PW-2 has stated in her testimony that the defendant was inducted as a tenant in the suit property at a monthly rent of Rs.4000/- and the defendant paid the same till January, 2009.
16. PW-2 has further deposed that the defendant filed an injunction suit No. 69/2010 before Ld.Civil Judge, Tis Hazari against the husband of PW-2 and stated herself to be a tenant in the suit property. A copy of the said suit is available on record. The defendant has admitted the said suit and has herself placed on record certain documents on 12.01.2012 including the copy of WS filed by the husband of PW-2 and her statement given in Court to withdraw the Suit No.69/10.
17. Thus, the proceedings of Suit No.69/10 are admitted by the parties and are admissible in evidence. A perusal of the record of Suit No.69/10 shows that the present defendant had instituted the said suit claiming herself to be the tenant in the suit property under PW-2, though the rate of rent has been stated to be Rs.1500 per month. The suit was withdrawn by the present defendant vide statement in Court dt. 11.08.2010 stating that she is not a tenant in the property albeit the suit property is her matrimonial home. The defendant had alleged that her Counsel had misguided her.
18. Thus, in Suit No.69/10, the present defendant first claimed herself to be a tenant and later stated the suit property to be her matrimonial home. Interestingly, in the application moved before the Court for seeking permission to withdraw the suit, the defendant stated that the suit property was alloted to her under widow scheme and not as hermatrimonial home. For the entire duration of Suit No.69/10, the defendant did not claim herself to be the owner of the suit property even once.
19. The witness PW-2 has further referred to the Suit No.230/2010 filed by her before Ld. Civil Judge, Tis Hazari against the defendant and BSES with respect to an electricity connection installed by the defendant using forged documents.
20. The factum of Suit No.230/10 has also been stated in the plaint and the defendant has admitted to the same in her WS. The WS filed by the defendant in Suit No.230/10 on 26.10.10 also finds mention in the plaint and has been admitted in the WS of the present suit by the defendant.
21. The said WS dt. 26.10.10 in Suit No.230/10 has been filed on record by the plaintiff. Though, none of the parties has tendered the said WS in evidence, the same is still admissible in evidence being an admitted document by both the parties.
22. A perusal of WS dt. 26.10.10 in Suit No.230/10 shows that the defendant stated in paragraph 3 on the first page itself that she is a tenant at a month rent of Rs.1500/- per month excluding electricity and water charges. Though the defendant has denied the ownership of the PW-2, Smt. Tarunajeet, over the suit property there is no denial that she is a tenant in the property. Interestingly, the defendant has admitted herself to be a tenant but has not disclosed who is her landlord.
23. Thus, from the aforesaid it is clear that the defendant has taken inconsistent pleas before different Civil Courts. While making her statement to withdraw the Suit No.69/10 on 11.08.2010 the defendant put the entire blame on her Counsel for the averment that the defendant is a tenant in the suit property. However, the WS in Suit No.230/10 was filed on 26.10.10 i.e. later to the statement in Suit No.69/10, still the defendant has claimed herself to be a tenant in the suit property. This conduct of the defendant has remained totally unexplained.
24. It is not possible to believe that every Counsel of the defendant made wrong submissions in every proceedings involving the defendant without knowledge of the defendant. Therefore, atleast one of the stand of the defendant has to be considered as false, be it in Suit No.69/10 or in Suit no.230/10.
25. In none of the two earlier Suits i.e. 69/10 or 230/10, the defendant has claimed herself to be the owner of the suit property. In the plaint of Suit No.69/10 the defendant has claimed herself as a tenant in the suit property while in statement to withdraw Suit No.69/10 on 11.08.10, the defendant has claimed the suit property to be her matrimonial home. On the other hand, in the WS of Suit No.230/10 the defendant has claimed herself to be a tenant in the suit property but not under PW-2, Smt. Tarunajeet.
26. As opposed to the stand taken in Suit No.69/10 and 230/10, the defendant has claimed herself to be the owner of the suit property in the present suit. Thus, from the three judicial proceedings of Suit No.69/10, Suit No. 230/10 and the present suit, it is clear that the defendant is making contradictory pleas before different Courts to mislead the Courts. Clearly, the defendant is telling lies before different Courts to serve her purpose in that particular suit. (emphasis is mine)
6. A reading of the aforesaid paras shows that the trial court has given the following valid conclusions:-
(i) There were three earlier suits. In one suit appellant/defendant was a plaintiff. In two other suits one being for injunction and other for possession and mesne profits she was a defendant. The latter two suits were filed by Smt. Tarunajeet Kaur predecessor-in-interest of respondent/plaintiff. In all these three litigations appellant/defendant pleaded that she was a tenant paying rent @ Rs.1500/- per month and she therefore has protection of the Delhi Rent Control Act, 1958.
(ii) In suit for injunction bearing no.69/2010 filed by the appellant/defendant before the civil judge, Delhi, copy of plaint in which suit is Ex.PW1/27 (this document does not exist on the trial court record but counsel for the respondent/plaintiff has filed a certified copy of the same before this Court and the same has been taken on record with no objection of the counsel for the appellant/defendant), it was stated in para 2 of this plaint as under:-
2. That the plaintiff is a tenant in respect of the portion comprising of 2 rooms, 1 kitchen, 1 bathroom, toilet situated on the ground floor and forming part of the property bearing Municipal No.A-345/46, Ground Floor, J.J. Colony, Khyala, New Delhi-110018 on a monthly rent of Rs.1500/- inclusive of water charges under the defendant. The tenanted premises have been shown in red colour in the site plan filed herewith.
(iii) The suit filed by the appellant/defendant Ex.PW1/27 was withdrawn by the appellant/defendant by making a statement before the Civil Judge on 11.8.2010 that she was misguided by her counsel in stating that she was a tenant but the suit is being withdrawn because the suit property is the appellant s/defendant s matrimonial home. This statement of appellant/defendant reads as under:-
The present matter has been filed by my previous counsel by misguiding me and in the present suit I am not a tenant. This is my matrimonial home. In view of the same I may be allowed to withdraw from the present matter as I do not wish to proceed with the matter.
(iv) It is only for the first time in the present suit that the appellant/defendant took up a stand that she has become the owner of the suit property because of the Receipts dated 13.1.2003, Ex.DW1/1 (colly) executed in her favour by the original allottees Sh. Ram Avtar and Sh. Roshan Lal.
(v) In the two suits; one for injunction and other for possession and mesne profits; filed by Smt. Tarunajeet Kaur, predecessor-in-interest of respondent/plaintiff against the appellant/defendant, in her written statement filed, the appellant/defendant only pleaded a case of tenancy, and not ownership, and the trial court has held that it is not enough for the appellant/defendant to blame her counsel for filing of written statements allegedly without instructions inasmuch as there were as many as three different proceedings in which the pleadings being the plaint and the written statement were filed by the appellant/defendant taking up a case that she was a tenant in the suit property i.e there was no case ever set up in these earlier judicial proceedings of the appellant/defendant at all being the owner of the suit property much less by the Receipts dated 13.1.2003 (Ex.DW1/1,colly) allegedly executed by Sh. Ram Avtar and Sh. Roshan Lal in favour of the appellant/defendant.
(vi) Appellant/defendant has thus been taking totally different stands at different points of time in different litigations and thus the appellant/defendant cannot be believed and that the appellant/defendant is guilty of endeavouring to mislead the courts.
7 To the aforesaid conclusions of the trial court, I would like to add as under:-
(i) The appellant/defendant in her Reply dated 7.10.2011 (Ex.PW1/32) sent to the Legal Notice dated 29.9.2011 (Ex.PW1/30) sent by the respondent/plaintiff, took up a case that she/appellant/defendant was first a tenant and had then became the owner, however even there are no facts as to from when the appellant/defendant was the owner and further that in this Reply dated 7.10.2011 there is no reference to the Receipts dated 13.1.2003, proved in the present case to have been executed by Sh. Ram Avtar and Sh. Roshan Lal as Ex.DW1/1 (colly), as being the source of ownership. Obviously, therefore the documents Ex.DW1/1 (colly) had not seen the light of the day at least till 7.10.2011 when the reply Ex.PW1/32 was sent and have only been said to be existing for the first time in the subject suit which was filed by the respondent/plaintiff on 5.12.2011.
(ii) One more important aspect has to be added against the appellant/defendant and which is that the appellant/defendant did not act on the basis of the Receipts dated 13.1.2003 allegedly making her owner by Sh. Ram Avtar and Sh. Roshan Lal, because, she did not act in any manner as owner pursuant to these alleged ownership documents for changing the electricity and water connections of the suit premises in her name, and this was done in around the time of filing of the suit in December, 2011 after disputes arose in 2010 i.e seeking change of electricity and water connections in the name of the appellant/defendant was not sought to be got done from the year 2003 to 2011.
(iii) It is noted that the suit property is constructed on the ground floor, first floor, second floor and third floor. The respondent/plaintiff filed the suit only for possession of the ground floor which was in possession of the appellant/defendant. Appellant/defendant though has claimed to be the owner of the entire suit property including the floors above the ground floor, yet till date the appellant/defendant has not filed any suit for possession with respect to the first floor and above of the suit property bearing nos.A-345 and A-346. Had the appellant/defendant been the owner of the entire suit property with all the floors, there was no reason why if the appellant/defendant had been dispossessed from the first floor and above floors in September, 2011, that she would have till date not filed any suit for possession as against the respondent/plaintiff for the first floor and above of the suit property.
(iv) Admittedly, the appellant/defendant has no original title documents of the property and which she would have had in case the appellant/defendant would have purchased rights in the suit property by means of documentation dated 13.1.2003. No doubt, original allotment letters issued by the DDA in favour of Sh. Ram Avtar and Sh. Roshan Lal have not been filed by either of the parties, however, the respondent/plaintiff has filed at least the original Demand Letters dated 5.9.1985 Ex.PW1/5 and Ex.PW1/16 issued by DDA. Thus, the case of the respondent/plaintiff for being the owner of the suit property has to be believed on preponderance of probabilities than the case of the appellant/defendant on account of appellant/defendant having not even a single document of title of the suit property and which she would have taken had she purchased rights in the suit property vide documentation dated 13.1.2003 from Sh. Ram Avtar and Sh. Roshan Lal.
8. In view of the above it is clear that appellant/defendant has been taking totally contradictory stands in different litigations i.e tenant in as many as three litigations and it is only on this fourth occasion in the present suit filed in the year 2011 that she has pleaded ownership on the basis of documentation dated 13.1.2003 and which too never saw light of the day till the present suit was filed in December, 2011. Further, the appellant/defendant admitted in her Reply dated 7.10.2011 (Ex.PW1/32) that she was a tenant once and thereafter became an owner, however, mischievously and fraudulently even in this reply of October, 2011 the date of becoming the owner and how ownership was claimed on the basis of which documents was not stated in this Reply dated 7.10.2011 given to the Legal Notice of the respondent/plaintiff dated 29.9.2011 (Ex.PW1/30). The ownership documents dated 13.1.2003 were not acted upon by the appellant/defendant from 2003 till 2011 for getting changed the electricity and water connections in the suit property to the name of the appellant/defendant, and which would have been got done if the appellant/defendant had become owner of the suit property way back in 2003, and that the applications for changing of water and electricity connection were filed by the appellant/defendant in around the time of filing of the present suit in December, 2011. Finally, though the appellant/defendant claimed to be the owner of the entire property bearing nos.A-345 and A-346 which had a total of ground plus three floors, and the respondent/plaintiff is admittedly in possession of first floor and above floors allegedly since September, 2011, but the appellant/defendant has till date not filed any suit for recovery of possession of the first floor and above floors from the respondent/plaintiff. I am therefore of the opinion that the courts below have rightly concluded that the respondent/plaintiff was the owner of the suit property and the appellant/defendant did not purchase any rights in the suit property, much less by the documentation dated 13.1.2003, Ex.DW1/1 (colly).
9. I may note that the trial court as per para 13 of its judgment has observed that since the suit is filed by a landlord against a tenant for recovery of possession, the issue of title will only have to be incidentally looked into, however, I may clarify this conclusion of the trial court by observing that in fact what is required and possibly what was intended to be said by the trial court as per para 13 of its judgment is that as between the respondent/plaintiff and the appellant/defendant, it has to be seen that who has a better title and hence right to possession of the suit property.
10. One other aspect which requires to be noted is that whereas the respondent/plaintiff has led evidence and affirmed with respect to the suit property being let out to the appellant/defendant at Rs.4,000/- per month from May, 2008 by the earlier owner Smt. Tarunajeet Kaur, there is no crossexamination which is done by the appellant/defendant of the witnesses of the respondent/plaintiff that rate of rent is not Rs.4,000/- per month and is Rs.1,500/- per month only. The courts below have therefore rightly concluded that the rate of rent of the suit property is Rs.4,000/- per month. Therefore, once the rent of the suit premises was above Rs.3,500/-, the appellant/defendant had no protection under the Delhi Rent Control Act, and hence suit filed in the civil court for possession was not maintainable. That no previous notice is required to file a suit for possession against a tenant who does not have protection of the Delhi Rent Control Act is no longer res integra and decided by this Court in the case of Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) and Anr. 2011 (183) DLT 712. An SLP against the said judgment being SLP (Civil) No.15740/2011 has been dismissed by the Supreme Court on 7.7.2011
11. In view of the above discussion, it is seen that no substantial question of law arises and the courts below have rightly arrived at a finding that the respondent/plaintiff was the owner of the suit property and that the appellant/defendant was a tenant paying rent at Rs.4,000/- per month and hence the suit for possession was rightly decreed along with arrears of rent/damages at Rs.4,000/- per month.
12(i) Learned counsel for the appellant/defendant argues before this Court that there are found various inconsistencies in the title documents filed on behalf of the respondent/plaintiff and consequently the chain of documents as filed by the respondent/plaintiff was liable to be disbelieved. Firstly, it was argued that there is discrepancy in the agreement to sell filed and proved on behalf of the respondent/plaintiff as Ex.PW1/2 and this very document filed and proved on behalf of the appellant/defendant as Ex.PW1/D1 in that para 1 of the agreement to sell of the respondent/plaintiff talks of respondent/plaintiff having received physical possession of first floor and above floors and only a symbolic possession of the ground floor is given which is in occupation of the tenant/appellant/defendant, however in the para 1 of the same agreement Ex.PW1/D1 obtained by the appellant/defendant from the office of Deputy Commissioner it is written that entire vacant possession has been delivered of the suit property to the respondent/plaintiff. It is argued that this gross inconsistency of having received possession of the entire property by the respondent/plaintiff as stated in Ex.PW1/D1 and having received only possession of the first floor and above vide Ex.PW1/2 shows that the documents have been manufactured with the object and the intention of the respondent/plaintiff with her associates so as to take illegal possession of the entire property but they did not succeed because they could only take illegal possession of the first floor and above but could not dispossess the appellant/defendant from the ground floor of the property.
(ii) Secondly, it is argued that the documents being Ex.PW1/6 to Ex.PW1/10, Ex.PW1/17, Ex.PW1/18, Ex.PW1/20 and Ex.PW1/21 are said to be documents which are notarized by one notary Sh. Vinod Kumar Sharma, however, the appellant/defendant relies upon the Letter dated 29.3.2012 issued by the Government of India that the name of Sh. Vinod Kumar Sharma is not found in the list of Central Notary Public, thus showing as per the appellant/defendant that there is no notarization on these documents and hence they are fabricated documents.
(iii) Thirdly, it is sought to be argued that on the document Ex.PW1/7 (agreement to sell of Sh. Ram Avtar in favour of Smt. Kiran Kapoor) there is only thumb impression of Smt. Kiran Kapoor and there is no signature and hence this document should not be believed more so because there are no attesting witnesses on this agreement to sell Ex.PW1/7.
(iv) It is also argued that deposition of DW-6 Sh. Deshbandhu Gosain who appeared from the office of the Sub-Registrar showed that there could not have been registration of the Will dated 27.12.1996 of Sh. Roshan Lal in favour of Smt. Rekha Tandon because as per the deposition of this witness whereas in the serial register mention is made about this Will but at the place where the registered Will ought to be found there is no such Will which has been exhibited as Ex.DW6/1.
(v) DW-7 Sh. Jai Krishan Sharma who is alleged to have notarized the documents Ex.PW1/12 to Ex.PW1/15 and Ex.PW1/23 to Ex.PW1/26 has deposed by stating that these documents do not bear his seal and signatures, thus clearly showing that these documents are forged and fabricated documents.
13. I have minutely examined the arguments urged on behalf of the appellant/defendant. The arguments of the appellant/defendant with respect to there being no notary of the name of Sh. Vinod Kumar Sharma or the notary Sh. Jai Krishan Sharma/DW-7 having deposed that he has not notarized the documents Ex.PW1/12 to Ex.PW1/15 and Ex.PW1/23 to Ex.PW1/26 thus showing that there is no notarization, in my opinion, this argument will not help the appellant/plaintiff to completely overturn the other evidence in favour of the respondent/plaintiff because at best the argument of the appellant/defendant would mean that there is no notarization on the documents Ex.PW1/6 to Ex.PW1/10, Ex.PW1/12 to Ex.PW1/15, Ex.PW1/17, Ex.PW1/18, Ex.PW1/20 and Ex.PW1/21, however, lack of notarization will only mean lack of notarization and will not necessarily mean that the documents are forged and fabricated because the right to question transfer of title by means of entire chain of documents would only be on the original owners Sh. Ram Avtar and Sh. Roshan Lal or the other predecessor-ininterest prior to the respondent/plaintiff and it is seen that none of these persons have ever filed any proceedings and questioned the documents which have been executed in favour of the respondent/plaintiff and her predecessorin-interest from the original owners Sh. Ram Avtar and Sh. Roshan Lal. Therefore, in my opinion, the argument urged on behalf of the appellant/defendant with respect to lack of notarization of documents will not necessarily lead to the conclusion that there was no transfer of rights in the suit property as per such documentation and the only effect would be that the documents are not notarized which is not required in law.
14. So far as the argument on the basis of the Will of Sh. Roshan Lal not existing as a registered document in the records of the Sub-Registrar, it is seen that the serial register however does mention that there is a Will of Sh. Roshan Lal dated 27.12.1996 and therefore if there is any discrepancy with respect to the document not being on record at the serial number where the Will of Sh. Roshan Lal dated 27.12.1996 should have been registered, would not mean that such discrepancy will take away the fact that the Will of Sh. Roshan Lal dated 27.12.1996 exists along with the chain of documents executed by Sh. Roshan Lal in favour of Smt. Rekha Tandon on 27.12.1996 and this is all the more so in the absence of challenge to the chain of title documentation either by Smt. Kiran Kapoor or by Smt. Rekha Tandon or by Smt. Tarunajeet Kaur and which have resulted in the final documentation dated 20.5.2011 by Smt. Tarunajeet Kaur in favour of the respondent/plaintiff.
15. The argument of discrepancy as regards possession given of which part of the suit property by Smt. Tarunajeet Kaur to respondent/plaintiff Smt. Neha in the documents Ex.PW1/2 and Ex.PW1/D1 is correct, but, that will at best show an illegal endeavour to dispossess the appellant/defendant from the ground floor portion of property nos.A-345 and A-346 and this argument will however not prove the ownership of the property nos.A-345 and A-346 in favour of the appellant/defendant.
16. The argument of the appellant/defendant that in the agreement to sell Ex.PW1/7 there are no signatures of buyer Smt. Kiran Kapoor because there is only thumb impression of Smt. Kiran Kapoor and hence it should be held that Smt. Kiran Kapoor has not executed this document Ex.PW1/7, is an argument which is senseless because surely a person can execute a document by putting his/her thumb impression, with the fact that Smt. Kiran Kapoor has not claimed ever that she has not executed Ex.PW1/7. This argument is therefore rejected.
17. In view of the above, no substantial question of law arises for this Regular Second Appeal to be entertained under Section 100 CPC. The second appeal is accordingly dismissed, leaving the parties to bear their own costs.