Delhi District Court
Umesh Prasad vs Dinesh Prasad on 3 September, 2024
CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
Civil Suit No. : 1545/2019
CNR No. : DLSE03-002219-2019
In the matter of:
1. Shri Umesh Prasad
S/o Sh. Bhangu Nath Thakur
2. Smt. Sharda Devi
W/o Sh. Umesh Prasad
Both R/o A-2/435, J.J. Colony,
Madan Pur Khadar, Badarpur,
New Delhi-110044 ... Plaintiffs
VERSUS
Sh. Dinesh Prasad
S/o Sh. Bhangu Nath Thakur
R/o A-2/435, First Floor, J.J. Colony,
Madan Pur Khadar, Badarpur,
New Delhi-110044 ... Defendant
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Date of Institution : 12.09.2019
Final arguments heard on : 27.07.2024
Judgment pronounced on : 03.09.2024
Decision of the suit : Decreed
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CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad
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SUIT FOR POSSESSION
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JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by Sh. Umesh Prasad and Smt. Sharda Devi (hereinafter referred to as the "plaintiffs") seeking possession of the property i.e. built up room on the first floor in property bearing no. A- 2/435, First Floor, J.J. Colony, Madanpur Khadar, Badarpur, New Delhi-110044 (hereinafter referred to as the suit property) from Sh. Dinesh Prasad (hereinafter referred to as the "defendant").
PLAINT
2. It is stated in the plaint that plaintiff no.1 was residing in Jhuggi No.D-193, Dr. Ambedkar Nagar Camp, Nehru Place, New Delhi. The plaintiff no.2 is wife of the plaintiff no. 1. It is submitted that as per the policy of the then Government DDA demolished the jhuggi of the plaintiff no.1 and allotted him property bearing no.A-2/435, J. J. Colony, Madanpur Khadar, New Delhi measuring 12½ sq. mtrs. vide Allotment Letter dated 20.01.2001. It is averred that the plaintiff no.1 built up ground floor and first floor on the suit property from his own pocket and started residing therein alongwith his family members. The (Neetu Nagar) Digitally signed by JSCC-ASCJ-GJ/South East NEETU Delhi: 03.09.2024 Page 2 of 30 NEETU NAGAR NAGAR Date:
2024.09.03 16:39:41 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad defendant requested the plaintiffs to provide a shelter in their house. Plaintiff no.1 being real brother of the defendant gave the first floor of the suit property to him and the defendant assured to vacate the same as and when the plaintiffs ask him to do so. Therefore, the defendant started residing at the first floor of the suit property as a permissive user. 2.1 It is further submitted that the plaintiffs asked the defendant to vacate the suit property in the month of February 2014 as the plaintiffs were in dire need of the same for himself and his family members. However, the defendant always sought time to vacate the same on one pretext or other. The defendant flatly refused to vacate the suit property in the last week of December 2014 in order to grab the same by illegal tactics. It is claimed that the defendant has no concern with the suit property and he has no right, title or interest therein. 2.2 It is further stated that on 09.01.2015, the plaintiffs sent a legal notice to the defendant thereby demanding vacant possession of the first floor of the suit property within 15 days from the date of receipt of the notice but despite service thereof, he has neither replied to the same nor vacated the suit property. 2.3 It is further stated that on 06.05.2015, the plaintiff no.1 made complaint to the SHO P.S. Jaitpur, Badarpur, New Delhi but necessary action has not been taken by the police. The plaintiff no.1 filed a suit for eviction against the defendant titled (Neetu Nagar) JSCC-ASCJ-GJ/South East NEETU Delhi: 03.09.2024 Page 3 of 30 NAGAR Digitally signed by NEETU NAGAR Date: 2024.09.03 16:39:47 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad as " Umesh Prasad Vs. Dinesh Prasad & Ors. " wherein the Director, DDA Vikas Sadan, INA Delhi (defendant no.2 therein) clearly stated in its written statement as under:-
"as per the record being maintained by the answering defendant Shri Umesh Prasad i.e. plain- tiff was relocated on plot no. A-435, J.J. Colony, Madanpur Khadar, Delhi in lieu of his jhuggi no. D-193 when it was demolished on license fee basis on the term of condition mentioned in demand no- tice issued to the plaintiff. It is further submitted that the DDA is hardly concerned within the in- stant suit."
2.4. It is further stated that the plaintiff no.1 could not file the proper court fees of the said suit and the plaint was re- jected under Order VII Rule 11 (b) CPC vide order dated 09.08.2019. It is further stated that on 02.01.2018, the plaintiffs again requested the defendant to vacate first floor but he de- clined. Hence,the instant suit seeking for decree of possession thereby directing the defendant to handover/deliver actual physi- cal possession of the suit property.
SUMMONING OF DEFENDANT AND CHAIN OF SUBSEQUENT EVENTS
3. Upon receipt of the plaint, summons of the suit for settlement of issues were directed to be issued to the defendant (Neetu Nagar) JSCC-ASCJ-GJ/South East Digitally Delhi: 03.09.2024 Page 4 of 30 signed by NEETU NEETU NAGAR NAGAR Date:
2024.09.03 16:39:52 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad vide order dated 01.10.2019. The defendant was duly served with the summons and filed written statement on 23.01.2020.
WRITTEN STATEMENT
4. Written statement has been filed on behalf of defendant wherein various preliminary objections were taken on the ground of barred by limitation; barred by res-judicata; suit not valued properly and lack of cause of action. It is submitted that the Defendant called his elder borther i.e. plaintiff No.1 who was residing in his native village and provided job as well as accommodation to him. It is averred that the Defendant was the sole owner of Jhuggi No. D-193, Dr. Ambedkar Camp, Nehru Place, New Delhi wherein the defendant had been living for a long time and the allotment has been done in favour of the Defendant only.
4.1 It is further claimed that the suit property was built up by the Defendant from his own funds and he is the sole and lawful owner thereof. It is averred that no kind of notice has been sent by the plaintiffs to the defendant. No complaint was registered by the plaintiff on 06.05.2015 in PS Jaitpur, Delhi. Rest of the averments of the plaint have been denied in toto. It has been prayed for dismissal of the suit.
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2024.09.03 16:39:57 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad REPLICATION
5. Replication was filed on behalf of the plaintiffs wherein they denied the averments of the written statement and reaffirmed the contents of the plaint.
ISSUES FRAMED
6. On the basis of the pleadings of the parties, the following issues were framed vide order dated 23.01.2021:-
(i) Whether the suit of the plaintiff is barred by res-judicata? OPD
(ii) Whether the suit of plaintiff is not maintainable for want of proper court fee? OPD
(iii) Whether the plaintiff is entitled to decree of possession of property no. A-2/435, First Floor, JJ Colony, Madandpur Khadar, Badarpur, New Delhi as shown Red colur in the site plan against defendant? OPP
(iv) Relief.
EVIDENCE OF PLAINTIFFS
7. Plaintiffs, in support of their case examined themselves as PW1 and PW-2 who have placed on record their affidavits in evidence vide Ex.PW1/1 and Ex. PW2/1 respectively and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. PW1/A(colly) Copy of allotment letter no. F-7 (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East Delhi: 03.09.2024 Page 6 of 30 NAGAR Digitally signed by NEETU NAGAR Date: 2024.09.03 16:40:06 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad (OSR) (1642)/2001/ND/D-15/LM/SEZ/ 513 dated 20.01.2022, cheque of Rs. 5000/- dated 20.02.2001 in favour of DDA, copy of Aadhar Card, copy of PAN card of plaintiff no. 1 i.e. residential proof of the plaintiff.
2. Mark PW1/B Legal notice dated 03.01.2015
3. Mark PW1/D Copy of order dated 09.08.2019 passed by Sh. Jay Thareja, Ld. ASCJ, SE, Saket Court
4. Ex. PW1/E Site plan of the suit property
5. Ex. PW1/F (colly) Photograph of the suit property 7.1 Plaintiffs also examined Sh. Pawan Kumar, official from DDA as PW-3 who brought the summoned record. PW1, PW2 and PW3 were duly cross-examined on behalf of the defendant. Thereafter, evidence on behalf of the plaintiffs was closed vide order dated 09.08.2023.
EVIDENCE OF DEFENDANT
8. Thereafter, defendant examined himself as DW-1 who has placed on record his affidavit in evidence vide Ex. DW1/A and relied upon the following documents:-
(Neetu Nagar) JSCC-ASCJ-GJ/South East NEETU Delhi: 03.09.2024 Page 7 of 30 NAGAR Digitally signed by NEETU NAGAR Date: 2024.09.03 16:40:11 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad Sl. Exhibits/Mark Details of Documents No. 1 Ex.DW1/1 (OSR). Copy of employment registration certificate 2 Ex.DW1/2 (OSR). Copy of BSES application dated 07.03.2005 3 Ex.DW1/3 (OSR). Copy of LIC receipt 4 Ex.DW1/4 (OSR). Copy of Agent License 5 Mark A Copy of Family Register 6 Ex.DW1/6 (OSR). Copy of Birth Certificate dated 21.04.2006 7 Ex.DW1/7 (OSR). Copy of Ration Card 8 Ex.DW1/8 (OSR). Copy of Ration Card No.077004777747 9 Ex.DW1/9 (OSR). Copy of Gas Book 10 Mark B Copy of voter list Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 8 of 30 NAGAR Date:
2024.09.03 16:40:16 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad 11 Ex.DW1/11 (OSR). Copy of ID No.37 12 Ex.DW1/12 (colly) Copy of Adhaar Card (OSR).
13 Ex.DW1/13 (colly) Copy of Voter IDs (OSR).
14 Ex.DW1/14 (OSR). Copy of police clearance certificate 15 Mark C. Copy of Gram Pradhan Letter 16 Ex.DW1/16 (OSR) Copy of Vaccination Card 17 Mark D Copy of Insurance Bond 18 Ex.DW1/18 (OSR). Copy of Gas Connection Letter 19 Ex.DW1/19 (OSR). Copy of e-pechan card 20 Ex.DW1/20 (OSR). Copy of Driving License 21 Ex.DW1/21 (OSR). Copy of Birth Certificate of Jyoti 22 Ex.DW1/22 (OSR). Copy of Result cards (Neetu Nagar) Digitally JSCC-ASCJ-GJ/South East signed by NEETU Delhi: 03.09.2024 Page 9 of 30 NEETU NAGAR NAGAR Date:
2024.09.03 16:40:21 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad 23 Ex.DW1/23 (OSR). Copy of Roll Numbers of Neha issued by CBSE 24 Ex.DW1/24 (OSR). Copy of Bills of House Hold Articles 25 Ex.DW1/25 (OSR). Copy of proposal form issued by consumer credit company 26 Ex.DW1/26 (OSR). Copy of DVD Bill 27 Ex.DW1/27 (OSR). Electricity Bill 8.1 DW1 was duly cross-examined on behalf of the plaintiff.
8.2 Thereafter, no witness has been examined on behalf of the defendant. The evidence on behalf of the defendant was closed vide order 23.07.2024.
ARGUMENTS
9. This court has carefully perused the evidence on record in light of the pleadings of the parties and considered the submissions of the learned counsel for both the parties who have argued as per their respective cases but their arguments are not (Neetu Nagar) JSCC-ASCJ-GJ/South East NEETU Delhi: 03.09.2024 Page 10 of 30 NAGAR Digitally signed by NEETU NAGAR Date: 2024.09.03 16:40:27 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad being reproduced for the sake of brevity and shall be dealt hereinafter.
APPRECIATION AND FINDINGS
10. The issues are being adjudicated as under:-
ISSUE NO.(iii) "Whether the plaintiff is entitled to decree of possession of property No. A-21435, First Floor, JJ Colony, Madanpur Khadar, Badarpur, New Delhi as shown Red colour in the site plan against defendant? OPP"
11. This issue is being taken up first. The onus to prove this issue was on the plaintiff. The plaintiff has proved the allot- ment letter of the suit property in his favour bearing No. F-7 (1642) /2001/ND/D-151/IM/SEZ/513 dated 20.01.2001 vide Ex. PW1/A. The said letter is also duly proved by PW3 who has brought the summoned record i.e. Allotment cum Demand Letter in the name of Sh. Umesh Prasad Thakur, Provisional allotment and demand letter carrying photographs, Voter ID, attested pho- tographs and signatures of Sh. Umesh Prasad Thakur, application for submissions of documents addressed to Deputy Director, Land Management, South East, DDA, affidavit submitted by Sh. Umesh Prasad Thakur, Ration Card, demand draft bearing Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 11 of 30 NAGAR Date:
2024.09.03 16:40:32 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad no.008568 for Rs.5,000/- drawn on Central Bank of India, Kalkaji Branch dated 19.02.2001 and Affidavit of demolition of Jhuggi no. D-193, Dr. Ambedkar Camp from Sh. Umesh Prasad Thakur and proved the same vide Ex. PW-3/A (Colly). Hence, the title of the plaintiff Sh. Umesh Prasad qua the suit property stands established.
12. The possession of the defendant in the first floor of the suit property is not disputed. It is also stands admitted on behalf of the defendant during his cross examination that he is not hav- ing any title document in his favour. All the documents that have been proved on record by the defendant at maximum can be termed as proof of possession and not proof of any right, title or interest in the suit property.
13. It is contended on behalf of the defendant that the suit property was allotted in his name but there is no document to prove the same. It has been suggested to PW-1 during his cross- examination by learned counsel of the defendant that property bearing no. D-193, Ambedkar Camp, Nehru Place was in the name of defendant. However, no document pertaining to the said property bearing no. D-193 has been placed on record by the de- fendant.
14. The next contrary plea taken by the defendant is that the defendant has also equally contributed towards construction of the suit property at first floor and occupying the same as Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 12 of 30 NAGAR Date:
2024.09.03 16:40:38 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad owner thereof but there is not an iota of evidence to prove the same. Merely for the reason that electricity meter has been in- stalled in the name of the defendant with respect to first floor of the suit property does not show by any means that the defendant has contributed in the construction of the suit property. The pleadings of the defendant are completely silent as to the total ex- penditure incurred in the construction and specific details related thereto. The defendant has also not proved any bills relating to construction of the relevant period.
15. Surprisingly, it has been suggested by the defendant to PW2 that a family meeting had taken place in the village whereby it was agreed that the defendant would not be asked to vacate the suit property which has been denied by PW2. No such family member has been brought in the witness box to depose so. Meaning thereby that defendant is taking wavering stands. It stands admitted by the defendant himself that the suit property has been allotted in the name of the plaintiff. He has voluntarily deposed that his name was there in ration card but his name was struck off by the plaintiff and documents have been prepared by way of forgery whereas the suit property was purchased by him. However, except bald statements, the defendant has nothing to prove. Further, the defendant did not make any complaint to DDA regarding allotment of the suit property in the name of plaintiff till date to any authority. DW-1 has specifically admitted (Neetu Nagar) Digitally signed by JSCC-ASCJ-GJ/South East NEETU Delhi: 03.09.2024 Page 13 of 30 NEETU NAGAR NAGAR Date:
2024.09.03 16:40:44 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad that he along with the plaintiff and his family members were re- siding in Jhuggi number D-193, Dr Ambedkar, Camp, Nehru Place, New Delhi. The defendant further has not specifically pleaded any date on which his possession had become adverse. Meaning thereby that the defendant has miserably failed to prove any right, title or interest in the suit property. The possession of the defendant in the suit property thus can be treated as permis- sive occupation or maximum that of "gratuitous licensee" since he has no colour of right to remain in possession of the suit prop- erty and has no answer to the plaintiff's claim that he should va- cate the suit property.
16. It is also equally well settled the position of a licensee after termination becomes unlawful and the licensee is not enti- tled to any injunction restraining the licensor from evicting him as unlike a tenant a licensee does not have judicial possession and the possession always remains with the licensor and what was granted is a privilege in terms of the licence, which in the ab- sence of such a grant becomes unlawful.
17. In Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal on 6 May, 2022, Hon'ble Supreme Court observed as under:-
"16. In a later judgment reported as Conrad Dias of Bombay v. Joseph Dias of Bombay4, the father filed a suit against his son for injunction restrain-
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ing the defendant from entering or remaining in the suit premises. It was held that the son who is residing with the parents in the house cannot claim any legal character much less, the character of a li- censee as defined in Section 52 of the Easements Act. He is residing simpliciter as a member of the family and nothing more and nothing less. It was also held that the son has not claimed either ten- ancy or a licence and, thus, he has no legal charac- ter or status, except staying in the house as a mem- ber of the family. In view of the findings recorded, the appeal preferred by the son was dismissed."
(emphasis supplied)
18. To sum up, the present suit has been filed for the pur- pose of eviction of the defendant who has been admitted in the suit property by way of permissive user. Hence, there arises a cause of action in favour of the plaintiffs and against the defen- dant and the defendant is liable to vacate the suit property.
19. It is next urged that the defendant never received any termination notice. The Hon'ble Delhi High Court in Sh. Shivraj Yadav & Ors. vs Dr Arun Nirula on 2 August, 2022 observed as follows:
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2024.09.03 16:40:56 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad "7.4. Qua the issue of termination of license, ad-
mittedly, no notice seeking specific termination of license has been sent by the Plaintiff to the Defen- dants. Be that as it may, even assuming the notice of terminating license was not served upon the de- fendants, filing of eviction suit under law itself is notice to quit on the licensee. This Court places re- liance to the decision of Hon'ble Supreme Court of India wherein it has been observed in Nopany In- vestment Pvt. Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728 as under:"
(emphasis supplied)
20. Also, it has been held by Hon'ble Delhi High Court in Nitin Jain Vs. Geeta Raheja that:-
"However, even if, one were to assume that the le- gal notice dated 25.01.2011 was not served upon the appellant/defendant, the position as it obtains in law today, is that, once a suit is filed for posses- sion, the mere fact that no notice to quit and/or to vacate a demised premises is given will not inhibit a court from passing a decree of possession if, there is no other impediment in law, as the institu-
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tion of the suit is an expression of the intention to seek possession."
(emphasis supplied)
21. In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant ratio of termination of licence. Therefore, I have no hesitation to hold that no notice to quit was necessary under Sec- tion 106 of the Transfer of Property Act in order to enable the plaintiff to get a decree of eviction against the defendant. Re- liance in this regard can also be placed on case law titled as V. Dhanapal Chettiar Vs. Yesodai Ammal AIR 1979 SC 1745"
22. Accordingly, this issue is decided in favour of plain- tiff and against the defendant.
ISSUE NO. (i) "(i) Whether the suit of the plaintiff is barred by res-judicata? OPD"
23. The onus to prove this issue was placed on the de- fendant. Before proceeding further, let us first discuss the legal position with regard to res judicata. Section 11 of the Code of Civil Procedure,1908 (in short "CPC") deals with res judicata and same reads as under:-
"11.Res judicata.
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No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined ir- respective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
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Explanation IV.-- Any matter which might and ought to have been made ground of defence or at- tack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the pur- poses of this section, be deemed to claim under the persons so litigating .
1[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, is- sue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that de- cree.
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Explanation VIII.-- An issue heard and finally de- cided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
24. To determine whether a suit is barred by res judi- cata, it is necessary that (i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in is- sue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit;
25. Admittedly, the plaint of the previous suit between the same parties on the basis of same cause of action was rejected under Order VII Rule 11 CPC due to non-payment of court fees. Meaning thereby that the said suit was not decided on merits. Hence, it cannot be said that the issues in the former suit were adjudicated and finally decided by the court competent to try the subsequent suit. Since this important ingredient of section 11 CPC is not fulfilled herein, hence, principle of res judicata is not attracted in the present facts and circumstances.
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26. It is also requisite to reproduce Order VII Rule 13 CPC which is most relevant. Same reads as under :-
"13. Where rejection of plaint does not preclude presentation of fresh plaint.--The rejection of the plaint on any of the grounds hereinbefore men- tioned shall not of its own force preclude the plain- tiff from presenting a fresh plaint in respect of the same cause of action."
27. Hence, Order VII Rule 13 CPC itself stipulates fil- ing of fresh suit even if the plaint is earlier rejected under Order VII Rule 11CPC.The contention of the learned counsel of the de- fendant that the present suit is barred by res judicata is thus to- tally meritless.
28. Accordingly, issue no. (i) is decided in favour of the plaintiffs and against the defendant.
ISSUE NO.(ii) "Whether the suit of the plaintiff is not maintainable for want of proper court fee? OPD"
29. The onus to prove this issue was placed on the de- fendant. Before proceeding further, let us first discuss the legal position with regard to payment of court fees and whether the present suit for possession was permissible in law.
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30. Section 7 of the Court Fees Act, 1870 deals with computation of fees payable in certain suits. The plaint has to be examined minutely in order to ascertain the true nature of the suit. The suits for injunction are governed by Clause-IV(d) of Section 7 of Court Fees Act, 1870 which provides that the plain- tiff is entitled to put his own valuation. Further, in terms of Sec- tion 8 of Suit Valuation Act, the jurisdictional value shall be equal to value of court fee. In case of suits for recovery of im- movable property from encroacher, same will be governed by Section-7(v)(e) of the Court Fees Act, 1870 and the value shall be equal to the market value of the property. Further, a suit for mandatory injunction suit can be filed if there is no unreasonable delay in case of licensor licensee relationship. Reliance in this regard can be placed on case law titled as Sant Lal Jain versus Avtar Singh, AIR 1985 SC 857. Therefore, Section-7(iv)(d) of Court Fees Act 1870 will apply. Value will depend on the discre- tion of the plaintiff though not less than the fee prescribed. The plaintiff, thus, cannot put a valuation so as to make the court fee less than Rs.13/-. This is because the Punjab Government had amended the Court Fee Act by inserting a proviso in Clause-IV which says that court fee cannot be less than Rs.13/-. This amendment was extended by the Central Government to Delhi. Being ad-valorem, the Jurisdictional value shall be the same. However, if there is unreasonable delay in filing the suit, a suit Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 22 of 30 NAGAR Date:
2024.09.03 16:41:36 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad for possession needs to be filed. Reliance in this regard can be placed on case law titled as Joseph Severance versus Benny Mathew (2005) 7 SCC 667). As such, Section-7(v)(e) of Court Fees Act, 1870 will apply. Value will be equal to the market value of the immovable property.
31. In this regard, observations in case law titled as Raj Khullar versus Anil Kapur and Ors pronounced on 03.10.2013 passed by Hon'ble High Court of Delhi are relevant and same are reproduced as under:-
"14. Reference may be had to the judgment of the Hon'ble Supreme Court in the case of Sant Lal Jain versus Avtar Singh (supra) where the Hon'ble Supreme Court approved the judgment of the High Court in the case of Milka Singh vs Diana, AIR 1964 J&K 99 and held as follows:-
"6. ..... In Milkha Singh v. Diana, it has been ob- served that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Digitally (Neetu Nagar) signed by JSCC-ASCJ-GJ/South East NEETU NEETU NAGAR Delhi: 03.09.2024 Page 23 of 30 NAGAR Date:
2024.09.03 16:41:42 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad Fazal Ali, J. as he then was) speaking for the Divi- sion Bench has observed:
"After the termination of licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under s. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has al- ways been held to be maintainable.
.... where a licenser approaches the court for an in- junction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunc- tion on the ground that the licenser had not been diligent and in that case the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act."
Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
Delhi: 03.09.2024 Page 24 of 30 2024.09.03 16:41:49 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad "8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property in-
stituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the prop- erty as a licensee and seek his remedy separately in case he has acquired title to property subsequently through some other person." (emphasis supplied)
32. In Padmavati Mahajan versus Yogender Mahajan and Anr decided on 27.08.2008, it was held as follows:-
"29. I may however note, two objections which were raised in the written statement but with re- gard to which no issues were framed. The first contention in the written statement is with regard to maintainability of the Suit for mandatory injunc- tion and the second contention is with regard to the court fees. I have quoted in detail the cross exami- nation of the defendant no.1. In his cross examina- tion he has admitted that he had shifted to the Property in question in his capacity as a son of his Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.03 Delhi: 03.09.2024 Page 25 of 30 16:42:02 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad parents and then had voluntarily stated that he was also a partner in the Partnership Firm. His claim as a benami owner has been rejected. Occupation of the defendant no.1 therefore was a permissive oc- cupation or maximum as that of a gratuitous li- censee. The defendant no.1 does not have any right in law to reside in the Property contrary to the wishes and desire of the plaintiff. The Suit for mandatory injunction is therefore maintainable in view of the decision of the Supreme Court in Joseph Serverence versus Benny Mathew re- ported in (2005) 7SCC 667 and decision in Delhi Gate. Services Pvt. Ltd versus Caltex (India) Ltd. reported in AIR 1962 P&H."
33. The Hon'ble Supreme Court of India in case titled as Bharat Bhushan Gupta versus Pratap Narain Verma on 16 June, 2022, observed as under with regard to court fees:-
"9.1. It remains trite that it is the nature of relief claimed in the plaint which is decisive of the ques- tion of suit valuation. As a necessary corollary, the market value does not become decisive of suit val- uation merely because an immovable property is Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 26 of 30 NAGAR Date:
2024.09.03 16:42:12 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad the subject-matter of litigation. The market value of the immovable property involved in the litiga- tion might have its relevance depending on the na- ture of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed."
34. It is also desirable to refer to the relevant passage from the decision in Maria Margarida Sequeira Fernandes and Ors. Vs. Erasmo Jack De Sequeria (D) Through LRs & Ors. de- cided on 21.03.2012 as under: -
"'65. A suit can be filed by the title-holder for re- covery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requir- ing a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to re- cover possession."
35. Having discussed the legal position, let us revert back to the facts of the present case. It is specifically pleaded by the plaintiffs that they had orally requested the defendant to va- cate the suit property firstly in the month of February, 2014 but the defendant did not vacate the same and thereafter, legal notice dated 09.01.2015 was issued to the defendant to vacate the suit Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 03.09.2024 Page 27 of 30 2024.09.03 16:42:19 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad property. It is further pleaded that earlier suit for eviction was filed only by plaintiff no. 1 and the plaint was rejected on 09.08.2019 and thereafter when the defendant did not evict the suit property on request made by plaintiff on 02.01.2018, the plaintiff was compelled to file the present suit. This is a case where the plaintiff had filed a suit for possession against his real brother who is the defendant herein. However, the defendant mis-
erably failed to show his title in the suit property. The earlier suit was filed immediately after giving of legal notice dated 09.01.2015 being filed on 16.07.2015. Admittedly ,the plaint in the said suit has been rejected vide order dated 09.08.2019. Thereafter, the present suit has been immediately filed on 12.09.2019. The plaintiff has filed the present suit for possession instead of mandatory injunction to direct the defendant/licensee to remove himself from the suit property. To my mind, there is no unreasonable delay in filing of present suit. Even if it is con- sidered that there is any delay in filling the present suit, the li- censer can bring a suit for possession which then will be gov- erned by Section 7(v) of the Court Fees Act, 1870. In view of the above discussion, such a suit is maintainable. The present suit was thus required to be valued at the market value of the property in dispute and same has been done by the plaintiff as the first floor of the suit property has been valued at Rs. 2.50 Lacs and the court fees affixed is Rs. 4,784/-. Proof to the contrary is not Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 03.09.2024 Page 28 of 30 NAGAR Date:
2024.09.03 16:42:24 +0530 CS SCJ 1545/19 Umesh Prasad Vs. Dinesh Prasad placed on record by the defendant. The onus to prove that the plaintiff has undervalued the suit lied heavily on the defendant but there is nothing on record to prove the same except for bald averment. Hence, this issue is decided in favour of the plaintiff and against the defendant.
36. It is also to be noted that an application was moved on behalf of the defendant under Order VII Rule 11 CPC after the final arguments were heard stating therein that the present suit is barred by limitation as three years have already lapsed from the date of filing of first suit. It is trite law that once a licensee al-
ways a licensee. The license has been terminated vide notice dated 09.01.2015. The present suit has been filed on 12.09.2019. There is no specific pleading with regard to adverse possession raised by the defendant so as to attract Article 65 of the Limita- tion Act by dint of which the prescribed period is 12 years when possession of title by adverse possession became adverse to the plaintiff. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into title. Hence, the present suit is filed within limitation. Since the grounds of lack of cause of action, undervaluation, bar of limita- tion stand already rejected being meritless, therefore, in view of above reasoning, the application moved on behalf of defendant under Order VII Rule 11 CPC also stands dismissed. The plain-
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(Neetu Nagar) signed by
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Delhi: 03.09.2024 Page 29 of 30 NEETU NAGAR
NAGAR Date:
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tiff has been successful in proving his case on the basis of pre- ponderance of probability.
RELIEF
37. Resultantly, the present suit is decreed in favour of the plaintiffs and against the defendant. Defendant is directed to handover the vacant and peaceful possession of the suit property i.e. built up room on the first floor in property bearing no. A- 2/435, First Floor, J.J. Colony, Madanpur Khadar, Badarpur, New Delhi-110044 to the plaintiffs within two months from today
38. Costs of the suit be awarded in favour of the plaintiffs.
39. Decree sheet be prepared accordingly.
40. File be consigned to record room after due compliance.
Digitally
Announced in the open signed by
NEETU
NEETU NAGAR
court today i.e. 03.09.2024 NAGAR Date:
2024.09.03
(This judgment contains 30 pages 16:42:37
+0530
signed by the undersigned)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Delhi: 03.09.2024 Page 30 of 30