The main legal point established in the judgment is the liability for possession under the Transfer of Property Act, Section 53A, and the requirements for proving mesne profit and valuation of the suit for court fee and jurisdiction.

MUKTA GUPTA, J. (ORAL)

1. With the consent of parties and the Trial Court Record being available as per practice directions of this Court, we have heard the appeal finally.

2. Sardar Bhag Singh and his wife Smt. Beant Kaur (hereinafter referred as the plaintiffs) instituted a suit being CS(OS) 1143/1996 against the appellant Vikram Sandhu for possession of second floor with terrace forming part of property No.A/11, N.D.S.E. Part-I, New Delhi (in short the suit property) and mesne profit from the date of filing of suit till delivery of possession. In the plaint the plaintiffs claimed to be the owners of the suit property measuring about 428 sq.yds. comprising of basement, ground floor, first floor and terrace on the second floor besides the 3 servant quarters above the garage. It was stated that in the month of August 1994, Vikram Sandhu approached the plaintiffs for purchase of second floor and lower portion along with garage and 3 servant quarters of the suit property. It was agreed that Vikram Sandhu shall purchase the terrace on the second floor along with servant quarters and the garage block while Kevendra Surana would purchase first floor of the property in question. Pursuant to the agreement dated September 09, 1994 the terrace forming part of the suit property was agreed to be sold to Vikram Sandhu for a total sale consideration of Rs.27 lakhs. Vikram Sandhu paid a sum of Rs.1 lakh as earnest money and the balance of Rs.26 lakhs was to be paid at the time of registration of the sale deed which was to be executed within four months from the date of agreement. It is the case in the plaint that the possession of the premises in question which would be thus the terrace alone, was handed-over to Vikram Sandhu. It is pleaded that as per Clause 5 of the agreement, the plaintiffs were required to apply and obtain the income-tax clearance certificate and after obtaining such permission/s by the plaintiffs, the balance amount of sale consideration was to be paid within 30 days of the receipt of the information by Vikram Sandhu and to get the sale deed registered. On Vikram Sandhu writing a letter dated September 28, 1994 asking the plaintiffs to withhold taking the permission as he was to pay further earnest money, the plaintiffs did not file the necessary application for obtaining income-tax clearance. Despite repeated letters of the plaintiffs no reply was received from Vikram Sandhu. The plaintiffs wrote a letter dated December 20, 1994 which stated that in case Vikram Sandhu failed to comply with the conditions laid down in the letter and the agreement on or before January 09, 1995 the agreement would be treated as null and void. According to the plaintiffs since Vikram Sandhu committed breach of the agreement, the agreement stood terminated and the earnest amount so paid was forfeited. Thus in the plaint prayer was made for decree of possession and mesne profit.

3. In the written statement filed, Vikram Sandhu pleaded that the plaintiffs have forged the so-called letters dated November 20 1994, December 20, 1994 and January 15, 2005 allegedly written by them to him. It was stated that no such letter was ever sent to Vikram Sandhu, besides pleading that the suit was barred under Section 53A of the Transfer of Property Act. However the agreement to sell between the parties was not denied and it was stated that the plaintiffs were liable to execute sale deed after taking necessary permissions from the concerned authorities which they avoided and did not perform their contractual obligations. Since Vikram Sandhu was occupying the premises in question i.e. the terrace pursuant to an agreement to sell no damages were liable to be paid.

4. On an application under Order XII Rule 6 CPC filed by the plaintiffs the issue of possession was decided in favour of the plaintiffs. The learned Single Judge vide order dated February 15, 2011 held that Vikram Sandhu was put in possession in terms of the agreement dated September 09,