ID No.02401C0403842008 IN THE COURT OF SHRI [ENTITY] : ADDL. DISTRICT JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI Suit No.122/2009 M/s. [ENTITY] Plaintiff versus Sh. [ENTITY] Defendant O R D E R :
1. By this order, I shall dispose of the application under [SECTION] of [ACT] moved by the plaintiff.
2. Brief facts leading to filing of the present application are that the plaintiff filed the present suit for possession, recovery of Rs. 1,02,000/ and means profit against the defendant claiming himself to be the owner of the property bearing no. A447, Defence Colony, New Delhi (the said property) and the defendant as his tenant w.r.t. three bed rooms with two attached bath rooms, drawing cum dinning room, kitchen, servant bath room with front lawn and back yard except garage on the ground floor of the said property as shown red in the site plan (hereinafter referred to as the "suit premises"). The defendant, despite termination of the tenancy, has failed to vacate the suit premises. Hence, the present suit. The defendant denied the 1/19 M/s. [ENTITY] Vs. Sh. [ENTITY] claim of the plaintiff and prayed for dismissal of the suit. The defendant also made the counter claim against the plaintiff for recovery of Rs.78,000/ along with interest i.e. the amount paid by him to the plaintiff towards rent prior to institution of the present suit. During the proceedings, the plaintiff filed the present application. The defendant contested the said application and prayed for its dismissal.
3. I have heard the ld. counsels for the parties and have perused the material available on record.
4. To succeed in the present application, the plaintiff has to fulfill the following conditions:
(1) that there existed the relationship of landlord and tenant between the parties;
(2) that the tenancy of the defendant was duly terminated by the plaintiff;
and (3) that the defendant failed to vacate the suit premises despite due termination of the tenancy.
5. Admittedly, the property bearing no. A447, Defence Colony, New Delhi i.e. the said property was owned by Late Shri [ENTITY] (GSC) who executed a rent agreement in favour of the plaintiff on 10.04.1993 with respect to the ground floor of the said property and inducted the plaintiff as the tenant therein. GSC expired on 30.06.1995. Subsequently, an 2/19 M/s. [ENTITY] Vs. Sh. [ENTITY] unregistered lease deed was executed between the wife of GSC namely Smt. [ENTITY] ([ENTITY]) and the defendant w.r.t. the suit premises @ monthly rent of Rs. 6,000/ on 01.05.1997. Subsequently, [ENTITY] executed the registered sale deed with respect to the said property in favour of the plaintiff on 16.05.2007 and the same exists as on date. Thereafter, the plaintiff informed the defendant about his ownership w.r.t. the said property. Subsequently, the defendant paid the rent @ Rs. 17,000/ per month after deducting TDS to the plaintiff from May, 2007 to August 2007.
6. Counsel for the defendant pleaded that the plaintiff claimed to have purchased the said property from [ENTITY] vide registered sale deed 16.05.2007, but [ENTITY] had no right to execute the said sale deed in favour of the plaintiff in view of the Will dated 28.04.1973. As such, there existed no relationship of landlord and tenant between the plaintiff and the defendant. He also pleaded that the defendant can challenge the derivative title of the plaintiff and [SECTION] of the [ACT] does not bar him to do so. To support the said submissions, he relied upon the judgment titled as "Subhash Chandra v. Mohammad Shrif" reported in 1990(1) SCC
252. On the contrary, counsel for the plaintiff denied the said pleas and pleaded that the defendant is estopped from denying the plaintiff's title in respect of the suit premises.
7. Before taking up the question as to whether the defendant could object the title of the plaintiff in the suit premises, I propose to take up the issue whether [ENTITY] had right to transfer the said property to the plaintiff in view of the Will dated 28.04.1973. Admittedly, [ENTITY] was the wife of GSC and 3/19 M/s. [ENTITY] Vs. Sh. [ENTITY] on his demise, she executed the lease deed in favour of the defendant on 01.05.1997 which continued till 2007. In the present case, the defendant though challenged the right of [ENTITY] to execute the said sale deed on the ground that she had no right, title and interest in the said property but he has not questioned her right to enter into the lease deed dated 01.05.1997 with him and to receive the rent from him. The defendant has also not challenged the execution of the said sale deed. Rather, he challenges the competency of [ENTITY] to execute the sale deed in favour of the plaintiff. In the judgment "[PRECEDENT] relied upon the defendant, the Hon'ble Supreme Court while dealing with the right of the tenant to challenge the derivative title and plea of estoppel, held:
"8. Coming to the facts of the present case, it may be recalled that fresh tenancy had been created in favour of [ENTITY], fa ther of the present appellant, under [ENTITY] by deed Ext. P20, and this fact was fully established by the decree, Ext. P22. The appellant, in the shoes of his father, is as much bound by these documents as [ENTITY] was and he cannot be allowed to deny the relationship of landlord and tenant be tween [ENTITY] and himself. It has not been the case of the appellant that [ENTITY] later lost the title or that he had transferred the same to another person, nor does the appellant say that there has been any defect in the saledeed executed in favour of the present plaintiffs. In other words, the acquisition of title by the plaintiffs from [ENTITY], if he be presumed to be the rightful owner, is not impugned, that is, the derivative title of the plaintiffs is not under challenge. What the appel lant wants is to title of their deny their title by challenging the vendor [ENTITY] which he is not entitled to do."
8. While arguing the present application, counsel for the defendant pleaded as if only the rent agreement dated 10.04.1993 was executed between 4/19 M/s. [ENTITY] Vs. Sh. [ENTITY] GSC and the defendant and the same is in continuance till date, hence, the defendant could not challenge the right of GSC but can challenge the right of [ENTITY] and the plaintiff. But that is not the case. The rent agreement executed by GSC came to an end on his death. It is not the case of the defendant that he ever questioned the right of [ENTITY] to execute the lease deed dated 01.05.1997 in his favour. Rather, the defendant accepted [ENTITY] as his landlady for the entire period and paid the rent. The defendant has failed to explain if [ENTITY] had no right, title and interest in the said property including the suit premises then why he entered into the lease deed w.r.t. the suit premises with her and paid the rent till 2007. Further, it cannot be accepted that [ENTITY] had the right, title and interest in the said property for the purpose of execu tion of the said lease deed but for execution of the said sale deed, she lost the said right. The defendant has failed to disclose once GSC had already ex pired; [ENTITY] had no right, title and interest in the suit property as pleaded; and the plaintiff is also not his landlord, then who is his landlord as on date under whom he is enjoying the suit premises. It implies that the defendant was satisfied with the claim of [ENTITY] w.r.t. the said property including the suit premises that's why he accepted her as his landlady. In view of the forgoing judgment and discussions, once the defendant accepted [ENTITY] as his land lady and had never questioned her right in the said property, then, he is estopped from questioning the same at this stage. Further, he cannot challenge the right of [ENTITY] w.r.t. the said property including the suit premises in the present suit nor he does so by way of his counter claim.
9. Now the question arises on what basis the defendant has ques tioned the right of [ENTITY] in the said property. Counsel for the defendant plead 5/19 M/s. [ENTITY] Vs. Sh. [ENTITY] ed that in terms of the registered Will dated 28.04.1973, [ENTITY] had no right, ti tle or interest in the said property including the suit premises and therefore, had no right to transfer the same in favour of the plaintiff. Therefore, the said transfer is tainted by fraud.
10. In para 5 (h) of the WS, the defendant reproduced the contents of the said Will wherein GSC wished that after his death, the said property should pass on to his grandson born out of the marriage of his son i.e. Sh. [ENTITY] (MS). Admittedly, no son was born to MS and he had two daughters only. Perusal of the order dated 01.12.2011 passed by the Hon'ble Delhi High Court in [CASE NUMBER], titled as 'Narinder Pal Kaur Chawla Vs. [ENTITY] & Ors' reveals that other LRs of the de ceased GSC executed the relinquishment deed in favour of [ENTITY]. Accordingly, she became the owner of the said property. The defendant has failed to rebut the said facts. The defendant has failed to explain if the Will exists and he has a right to challenge the right of [ENTITY] to execute the sale deed, then, why he has not sought implementation of the said Will and declaration against the said sale deed especially in view of the fact that the defendant has filed the counter claim in the present suit. Further, if the said plea is accepted then upon the death of GSC, the defendant himself had no right to remain in possession of the suit premises. Consequently, the said possession of the de fendant became illegal and unauthorised in the 1997 itself. But that is not the case of the defendant. Admittedly, the said sale deed exists till date. [ENTITY] and/or any other LR of GSC have not challenged the said sale deed. As dis cussed above, the defendant has no right to challenge the right of [ENTITY] in the said property in the present suit. The defendant has also not mentioned 6/19 M/s. [ENTITY] Vs. Sh. [ENTITY] what fraud has been played by whom and upon whom in execution of the sale deed. In fact, the defendant questioned the right of [ENTITY] only at the instance of [ENTITY] who has initiated a chain of litigations against the plaintiff as well as the erstwhile owners of the said property. As such, she had the interest to raise such pleas. But, in the present suit, the question is of satisfaction of the defendant. As discussed in later part of the order, the defendant was satisfied as to the claim of the plaintiff in the suit property and paid the rent also. Therefore, there is no substance in the plea of the defendant that the said transaction was tainted with fraud. Hence, it can be held that [ENTITY] had the right, title and interest in the said property and was also competent to sale the same and execute the sale dated 16.05.1997 in favour of the plaintiff.
11. Regarding the plaintiff, case of the plaintiff is that upon execu tion of the sale deed dated 16.05.2007 by [ENTITY] in his favour, he disclosed his identity before claiming the rent and also showed the sale deed to the defen dant on or about 06.07.2008. Thereafter, the defendant paid the rent @ Rs. 17,000/ per month after deducting TDS to the plaintiff from May, 2007 to August, 2007. Since the defendant neither paid the rent nor vacated the suit premises, hence, his tenancy was terminated vide legal notice dated 12.02.2008. The defendant admitted the same but pleaded that he was not al lowed to examine the said sale deed in detail. Counsel for the defendant pleaded that the defendant sent a letter dated 13.07.2007 to produce the rele vant sale deed and supporting documents as to his title. Vide reply dated 26.07.2007, the plaintiff pleaded that the original documents had already been shown to him and did not produce the said documents. He also denied the receipt of legal notice dated 12.02.2008. But it is the own case of the 7/19 M/s. [ENTITY] Vs. Sh. [ENTITY] defendant that he issued two letters dated 17.11.2007 and 01.04.2008 along with the original cheques towards payment of rent. Though the plaintiff dis puted the same, but the plaintiff admitted receipt of the said two letters. If the plea of the defendant is accepted for the sake of arguments only, then it implies that the defendant tendered the rent from September, 2007 to April, 2008 to the plaintiff. As such, according to the defendant, he paid/tendered the rent to the plaintiff from May 2007 till April 2008.
12. The defendant has failed to explain that if he was so unsatisfied with the claim of the plaintiff and the documents executed in his favour, then instead to protest against the said claim and rebut the said legal notice, why he tendered the rent subsequently including rent of 05 months on 01.04.2008. As such, an adverse inference can be drawn against him. As dis cussed above, though it is a matter of dispute whether the defendant actually sent the original cheques or the photocopies via two letters dated 17.11.2007 and 01.04.2008, but it is an admitted fact that the defendant sent the said two letters to the plaintiff. The said letters do not suggest that the defendant ever called upon the plaintiff to produce his title documents or questioned his ownership right in respect of the suit premises and also his competency to re ceive the rent. The defendant though pleaded that the plaintiff threatened him to dispossess from the suit premises, however, those two letters do not suggest that the same were written and the rent was tendered through them 8/19 M/s. [ENTITY] Vs. Sh. [ENTITY] under pressure of the plaintiff. The defendant has also not produced a sin gle document to show that he ever complained to any authority against the alleged threat of the plaintiff nor produced any document to show that he de posited the said rent under protest. In para 5 (e) of reply on merits of the WS, the word "original" is missing. As such, the story set up by the defendant regarding the demand of the original sale deed and threat does not inspire confidence of this court. It implies that the defendant had no doubt as to the claim of ownership of the plaintiff w.r.t. the said property based upon the said sale deed. Therefore, on being satisfied with the title of the plaintiff w.r.t. the suit premises, the defendant voluntarily paid/tendered the rent to the plaintiff from May 2007 till April 2008 i.e. for 01 year as pleaded by him.
13. Now the question arises when he questioned the ownership of the plaintiff w.r.t. the suit premises. The present suit was filed on 24.04.2008. The defendant has not produced any document to show that till 24.04.2008, he ever questioned the ownership/land lordship right of the plaintiff.
14. In para 5 (h) of the reply on merits of the written statement (WS), the defendant pleaded that on receipt of the summon of the suit on 30.07.2008, he came in contact with Ms. [ENTITY] ([ENTITY]) who informed him that the sale deed dated 16.05.2007 was illegal and fraudulent transac tion in view of the Will dated 28.04.1973 executed by GSC. Hence, it can be held that from May, 2007 till 30.07.2008, the defendant was satisfied with the plaintiff's claim of owner/landlord w.r.t. the suit premises and accepted him as such. Therefore, once the defendant accepted the plaintiff as his land 9/19 M/s. [ENTITY] Vs. Sh. [ENTITY] lord and also tendered the rent for a considerable period without any objec tion whatsoever, then, he is estopped from challenging his right during the continuance of tenancy. Hence, the judgment "[PRECEDENT] is distinguishable on the facts of the present case. Further, the Hon'ble Delhi High Court in case titled as "[PRECEDENT], held:
"17.1 Under [SECTION] of the [ACT], the Lessee is estopped from denying the title of the transferee landlord. [SECTION] of the [ACT] provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny the title of the landlord meaning thereby that so long as the tenant has not surrendered the possession, he cannot dispute the title of the landlord. Howsoever, defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord. It is based upon the salutary principle of law and justice that a tenant who could not have got the possession but for his contract of tenancy admitting the right of the landlord, cannot be allowed to dispute the title of his landlord after taking undue advantage of the possession that he got from the landlord. Of course, he can deny his title after he gives up the possession having thus restored the status quo ante."
15. As such, the defendant's plea disputing the title of the defendant is barred by [SECTION] of the [ACT]. The defendant is estopped from disputing the title of a landlord so long as he is in possession. As such, the objection of the defendant as to the title of the plaintiff cannot be looked into. In view of the foregoing judgments and discussions, it can be held that the plaintiff is the owner and the landlord of the suit premises and 10/19 M/s. [ENTITY] Vs. Sh. [ENTITY] the defendant, having accepted him as his landlord, became tenant under him.
16. Counsel for the defendant pleaded that since the plaintiff has not proved the registered sale deed in his favour and the same could be proved only by way of evidence, hence, no relief can be granted on the basis of the same. Admittedly, the said sale deed is a registered document. The defendant has not disputed the execution of the sale deed. His only plea is that [ENTITY] had no right to execute the same in favour of the plaintiff and therefore, the same is tainted by fraud and deceit. As such, the defendant has admitted execution of the sale deed. Registration of the said sale deed raises presumption as to its authenticity. So far as plea of fraud and deceit is concerned, as discussed above, the defendant is silent as to who played the fraud and upon whom. Further, the defendant has not prayed for setting aside the said sale deed. In his counter claim also, he only prayed for refund of rent already paid on the said ground. As such, if the defendant succeeds in proving the same, he would be held entitled for refund of rent only not setting aside of the said sale deed. But as discussed in later part of this order, in terms of [SECTION] of the [ACT], the defendant is bound to handover the possession of the suit premises to the plaintiff. Hence, there is no substance in the said plea of counsel for the defendant.
17. Counsel for the plaintiff pleaded that since the defendant neither paid the rent nor vacated the suit premises, hence, his tenancy was terminated vide legal notice dated 12.02.2008. Counsel for the defendant pleaded that the defendant has denied receipt of the termination notice dated 11/19 M/s. [ENTITY] Vs. Sh. [ENTITY] 12.02.2008, therefore, the trial is required to prove the said fact. On 15.02.2012, the statement of the defendant was recorded u/[SECTION] of [ACT] wherein he admitted that the address mentioned on the AD card Ex.CW1/1 encircled as 'A' is the same address where he is residing and mentioned in the said statement. It implies that the notice 12.02.2008 was sent through registered post at the correct address of the defendant. The defendant avoided to identify the signature encircled 'B' on the said AD card and stated that he had not come across any person namely [ENTITY]. In the WS, the defendant though pleaded that he had not received the notice but it is nowhere the case of the defendant that the signature on the said AD card is forged and fabricated or no person with such name remained at his residential house. As such, it can be held that the legal notice dated 12.02.2008 was duly received by the defendant. A lease deed for a period of more than one year requires compulsory registration which is absent in the present case. Lease deed dated 01.05.1997 is an unregistered document. Therefore, as per, [SECTION] of [ACT], the tenancy be construed on month to month basis and was duly terminated by the said legal notice. Not the least, as held by the Hon'ble Delhi High Court in [CASE NUMBER], case titled as "[PRECEDENT]", and in case titled as "[PRECEDENT], mere filing of the suit itself amounts to notice of termination of tenancy of the tenant. As such, the tenancy was legally terminated by the plaintiff.
18. In the present case, the defendant challenged the ownership right of the plaintiff regarding the suit premises on the ground that [ENTITY] had 12/19 M/s. [ENTITY] Vs. Sh. [ENTITY] no right, title and interest in the said property to execute the sale deed in favour of the plaintiff. But now it is interesting to see on what basis the defendant is claiming his right to possession in the suit property and to retain the same against the plaintiff.
19. In [PRECEDENT], the Supreme Court held that the person resisting a claim for recovery of possession or claiming a right to continue in possession has to establish that he has such a right. The observations of the Supreme Court are as under: "66. A title suit for possession has two parts first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
13/19 M/s. [ENTITY] Vs. Sh. [ENTITY]
20. In the present case, the defendant disputed the right of the plaintiff to claim possession. But there are no pleadings as to the defendant's right to continue in the suit premises. The defendant claiming the right to continue in possession has to plead with sufficient details on what basis he is claiming right to continue in possession. Until pleadings raised a sufficient case, it will not constitute sufficient claim of defence. On vague pleadings, no issue arises. The pleadings have to be read and construed keeping in view the overall facts and circumstances of the particular case in a pragmatic manner. The WS is silent to this effect.
21. As discussed above, after the death of GSC, the defendant entered into a lease deed with [ENTITY] on 01.05.1997. As such, the defendant claimed his possession in the suit premises under the said lease deed executed with [ENTITY]. Lease deed is a contract. If the plea of the defendant is accepted that [ENTITY] had no right, title or interest in the suit property, then the said lease deed executed between them becomes void. As discussed above, the defendant has obtained the advantage of possession of the suit premises under the said void lease deed. Therefore, once the said lease deed is void, then the defendant is duty bound to restore the possession of the same to [ENTITY] in terms of [SECTION] of [ACT]. But that was not done by the defendant. Once, [ENTITY] executed the said sale deed in favour of the plaintiff, the plaintiff stepped into her shoes. Therefore, in terms of the [SECTION] of the [ACT], the defendant has no right to remain and retain the possession of the suit premises. Rather, the defendant is duty bound to handover the same to the plaintiff.
14/19 M/s. [ENTITY] Vs. Sh. [ENTITY]
22. Counsel for the defendant also pleaded that the admission must be unambiguous and unequivocal. Since the defendant has raised the disputes regarding the title of the plaintiff and service of the notice, the same cannot amount to admission and needs trial. To substantiate the said submissions, the defendant relied upon the judgment passed by Hon'ble Supreme Court in "[PRECEDENT]'. The Hon'ble Supreme Court relying upon the same judgment, in the judgment titled as "[PRECEDENT], held that whether or not there is a clear admission is a matter to be seen in the fact situation prevailing in each case.
23. "[PRECEDENT], the Hon'ble Delhi High Court held: "7. I consider that where the basic facts and the documents are admitted and only their implications are sought to be argued in a different manner, the Court can hear arguments of the parties on the implications of admitted facts and documents and can pass a decree on the basis of admissions if made by the party. The object of [SECTION] of [ACT] is to enable the party to obtain a speedy judgment at least to the extent of relief to which there are admissions in the documents or in the pleadings. The Court cannot unduly narrow down the meaning of this rule merely because the defendant gives a different interpretation to the documents than what law permits. The Court can hear the arguments on the issue of 15/19 M/s. [ENTITY] Vs. Sh. [ENTITY] the interpretation of documents and give its finding on the implications of such documents in view of the settled law. Thus, irrespective of the fact that the defendant though admits the documents and the basic facts but does not admit the claim directly, the Court can pass a decree under [SECTION] of [ACT] if its finds there were sufficient admissions by way of pleadings and documents.
24. In view of the foregoing judgments, it can be held that to come to the conclusion as to whether in a particular case, an admission exists or not, the pleadings and the documents are to read as a whole and then see whether in a particular case, the same amount to admission or not. In view of the foregoing discussions, it can be held that that there existed the relationship of landlord and tenant between the parties; that the tenancy of the defendant was duly terminated by the plaintiff; and that the defendant failed to vacate the suit premises despite termination of the tenancy and has no right to remain in possession of the suit premises.
25. Counsel for the defendant also pleaded that the defendant has challenged the authority of [ENTITY] to sign and institute the suit on behalf of the plaintiff. Therefore, it is a triable issue and no relief can be granted to the plaintiff under the present application. To substantiate the same, he relied upon the judgment titled as "[PRECEDENT] and pleaded that the question of authority to institute a suit on behalf of the plaintiff company is not a technical matter and the plaintiff is to prove the said fact to succeed in the present application. Firstly, the said issue is not relevant to dispose of the present application. Secondly, the defendant though questioned the 16/19 M/s. [ENTITY] Vs. Sh. [ENTITY] authority of the said person to institute the suit in view of resolution dated 29.10.2007 but has not disputed the existence of the plaintiff company. Thirdly, in the present suit, the plaintiff relied upon the resolution dated 29.10.2007 and tendered the copy of the said resolution in his examination in chief and produced the original minute book at that time and the same was returned. At that time, the defendant only objected as to the mode of proof of the said document. Fourthly, in the judgment titled as "[PRECEDENT], the Hon'ble Supreme Court, while dealing with [SECTION] of [ACT], held that a substantiate right should not be allowed to be defeated on account of a procedural irregularities which is curable. In view of the foregoing judgment and discussions, it can be held that the plaint was signed by the said person as an officer of the plaintiff company by virtue of his office. The plaintiff has also filed the resolution dated 29.10.2007 to substantiate the same. Therefore, it can be held that the pleadings have been signed and verified by the authorized official of the plaintiff company. Even otherwise, the defect if any, to this effect is procedural irregularity which is curable. Therefore, the judgment relied upon by the defendant is not applicable in view of the judgment passed by the Hon'ble Supreme Court.
26. [ENTITY] who residing on second floor of the said property initiated a series of litigations involving the said property and also claimed her right therein. The plaintiff filed a separate suit i.e. [CASE NUMBER] against her which was decreed in his favour on 05.06.2012. Being aggrieved by the same, she preferred the appeal where compromise took place as revealed from the order dated 07.08.2013. In the said suit, the sale deed dated 16.05.1997 was 17/19 M/s. [ENTITY] Vs. Sh. [ENTITY] in question. To counter the defendant to that effect, counsel for the plaintiff relied upon the judgment dated 05.06.2012. Counsel for the defendant pleaded that the order dated 07.08.2013 passed by the Delhi High Court in [CASE NUMBER] is the result of the collusion between the plaintiff and [ENTITY], therefore, the plaintiff cannot take the benefit of the same. Firstly, perusal of the record reveals that [ENTITY] filed an application u/[SECTION] of [ACT] to be impleaded as the defendant in the present suit, which was dismissed. Not the least, the defendant had appeared and deposed on behalf of [ENTITY] as her witness in [CASE NUMBER]. This implies that both the said parties had the knowledge of the litigation pending against each other. Above all, the entire dispute of ownership raised by the defendant in his WS is based upon the knowledge derived by him [ENTITY]. This shows that [ENTITY] was not only asserting her rights in the said property and hotly contesting the cases to establish the same but also helping the defendant to defend his case. Therefore, it can be held that there was no collusion between the plaintiff and [ENTITY]. Rather, it appears to be other way round. Secondly, the [CASE NUMBER] was a separate proceeding. Thirdly, even if it is presumed so for the sake of arguments only, then the question arises how the defendant is affected by the same because the plaintiff claimed the possession of second floor of the said property from [ENTITY] while he claimed the possession of ground floor from the defendant.
27. Counsel for the defendant also pleaded that since the matter is at the stage of plaintiff's evidence, hence, the present application filed at very belated stage is not maintainable. Counsel for the defendant has failed to cite any provision of law which debars the plaintiff to file the present 18/19 M/s. [ENTITY] Vs. Sh. [ENTITY] application at this stage.
28. In view of the foregoing judgments and discussions, it is held that the defendant was the tenant under the plaintiff w.r.t. to the suit premises; and the tenancy has duly been terminated. Despite that the defendant has failed to vacate the suit premises. Therefore, the plaintiff is entitled for the decree of possession.
29. In view of the foregoing discussions, the plaintiff is held entitled to the preliminary decree of possession. Therefore, the defendant is directed to handover the possession of the three bed rooms with two attached bath rooms, drawing cum dinning room, kitchen, servant bath room with front lawn and back yard except garage on the ground floor of the property bearing no. A447, Defence Colony, New Delhi as shown red in the site plan to the plaintiff within 60 days from today. A preliminary decree is directed to be drawn up. The application is disposed off accordingly Announced in Open Court today, ([ENTITY]) On 21st Day of January, 2014. ADJ(Central07)/Delhi 21.01.2014 19/19 M/s. [ENTITY] Vs. Sh. [ENTITY]