Rishi Rathi vs Rishi Rathi - 2022 Supreme(Del) 2213

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 2213

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
Rishi Rathi – Appellant
Versus
Ms. Parminder Kaur Khurana – Respondent
R.F.A. No. 167 of 2022, C.M. APPL. Nos. 19608, 19609 of 2022
Decided On : 29-04-2022

Advocates:
Advocate Appeared:
For the Appellants : Medhanshu Tripathi, S. Rana.
For the Respondents: Ankur Sood, Romila Mandal.

Headnote:
POSSESSION - PROPERTY DISPUTE - Code of Civil Procedure, 1908 - Order XII Rule 6 - Limitation Act, 1963 - Transfer of Property Act, 1882 - Registration Act, 1908 - [Legal Notice, Agreement to Sell] - [Order XII Rule 6 of CPC] - The court granted the decree of possession with regard to the suit property in favor of the respondent on an application under Order XII Rule 6 of the CPC. The appellant's claim of adverse possession was not sustainable as it was mutually destructive to the plea of title to the property based on the agreement to sell. The appellant could not rely on the agreement to sell to justify possession, and possession in part performance of the agreement to sell could not be justified in the absence of a registered agreement. The court also held that the appellant's plea of adverse possession was not available as it was inconsistent with the plea of possession as a purchaser. The court dismissed the appeal and the application.
Fact of the Case:

The respondent filed a suit for recovery of possession, arrears of rent, and damages for use of occupation against the appellant. The respondent claimed ownership of the property through a registered Will and alleged that the appellant was inducted as a tenant by her father. The appellant claimed ownership of the property based on an agreement to sell and also raised a plea of adverse possession.
Finding of the Court:

The court found that the Trial Court was justified in granting the decree of possession in favor of the respondent on an application under Order XII Rule 6 of the CPC. The court held that the appellant's claim of adverse possession was not sustainable and that the appellant could not rely on the agreement to sell to justify possession. The court dismissed the appeal and the application.
Issues: The main issue was whether the Trial Court was justified in granting the decree of possession with regard to the suit property in favor of the respondent on an application under Order XII Rule 6 of the CPC. Additionally, the court considered the appellant's claim of adverse possession and ownership based on an agreement to sell.
Ratio Decidendi: The court held that the appellant's claim of adverse possession was not sustainable as it was mutually destructive to the plea of title to the property based on the agreement to sell. The court also found that possession in part performance of the agreement to sell could not be justified in the absence of a registered agreement. Additionally, the court held that the appellant's plea of adverse possession was not available as it was inconsistent with the plea of possession as a purchaser.
Final Decision: The court dismissed the appeal and the application, affirming the Trial Court's decision to grant the decree of possession in favor of the respondent.

JUDGMENT :

V. KAMESWAR RAO, J.

CM APPL. No. 19608/2022

For the reasons stated in the application, the same is allowed and the documents being legal notice dated January 14, 2008, and written agreement to sell dated February 02, 2010, are taken on record.

The application is disposed of.

RFA No. 167/2022

1. This appeal has been filed by the appellant against the judgment/decree dated December 23, 2021, whereby the Trial Court has granted the possession of flat bearing No. 1230/D-1, Vasant Kunj, New Delhi-110070 (for short ‘suit property’) in favour of the respondent herein in an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short ‘CPC’) filed by the respondent/plaintiff (hereinafter referred as ‘respondent’).

2. The facts as noted from the record are that the respondent has filed a suit for recovery of possession, arrears of rent, damages for use of occupation, and for permanent and mandatory injunction against the appellant/defendant (hereinafter referred as ‘appellant’). The case of the respondent in the suit was that the property was originally owned by her father, Late Sardar Sujan Singh, who died on February 08, 2007, leaving behind a registered Will dated August 18, 1998, bequeathing the suit property in favour of the respondent, thereby making her lawful and absolute owner of the same.

3. It was also the case of the respondent that the appellant was inducted as a tenant in the suit property by the father during his lifetime vide lease deed agreement dated January 15, 2007, on a monthly rent of Rs. 12,000/-. The said lease was to remain valid up till January 14, 2010. Pursuant to the death of her father, a fresh Lease Agreement was executed between the appellant and the respondent’s mother Smt. Rajender Kaur on November 06, 2007, on the same terms and conditions as the Lease dated January 15, 2007.

4. It was also the case of the respondent that in the year 2008 her title in the suit property came under challenge and the registered Will left behind by her father came under dispute. This led to the institution of the suit for partition before this Court, being CS (OS) No. 1515/2008. During the pendency of the aforesaid suit, the mother of the respondent had expired on October 18, 2013. The appellant taking undue advantage of aforesaid development did not tender rent. Finally, the suit for partition was disposed of by this Court vide order dated February 03, 2020, confirming the title of the respondent in the suit property.

5. It was the case of the respondent that she served a notice for eviction on the appellant on March 17, 2020, whereby she terminated the monthly tenancy of the appellant w.e.f. midnight of April 30, 2020, and called upon him to deliver the vacant and peaceful possession of the suit property and further called upon him to pay outstanding rent along with penalty as applicable without any further delay. No reply has been received from the appellant despite the service of the said notice, as a result of which, the respondent served him with another notice on May 25, 2020.

6. Finally, as the appellant has failed to vacate the suit property, the respondent filed the suit. The case of the appellant, in the written statement, was that the claim of the respondent in the suit was based upon a forged and fabricated Will. The Authenticity of the said Will, purportedly executed by the respondent’s father was challenged by the respondent’s mother Late Rajender Kaur before the DDA and an inquiry is pending therein.

7. It was also the case of the appellant that the suit is liable to be dismissed for non-joinder of DDA as a party. Further, the respondent is trying to usurp the suit property through forged and fabricated documents since the year 2007-2008 soon after the death of her father. There are number of communications of the mother of the respondent with DDA wherein, she had alleged that her own daughter, i.e. the respondent is trying to illegally grab the property through the forged Will of her l