Delhi District Court
Smt. Savitri Devi vs Smt. Meena Choudhary on 22 September, 2021
IN THE COURT OF MS. KIRANDEEP KAUR:CIVIL JUDGE-05:
CENTRAL DISTRICT:TIS HAZARI COURTS:DELHI
CS No. 595570/2016
Smt. Savitri Devi
Wd/o Shri Siri Nath Khandelwal
R/o L-46, 2nd Floor,
Lajpat Nagar-II,
New Delhi. ...Plaintiff
Versus
Smt. Meena Choudhary
W/o Sh. Dara Singh
R/o 3671, Gali Lohe Wali,
Charkhewalan, Chawri Bazar,
Delhi-06. ....Defendant
SUIT FOR POSSESSION AND MESNE PROFITS
Date of institution : 11.07.2014
Date of final arguments: : 13.09.2021
Date of final decision : 22.09.2021
JUDGMENT
1. Vide this judgment, the present suit filed by plaintiff against the defendants seeking decree of possession of portion of the 1st floor, the mezzanine floor and the roof thereon of property bearing no. 3739, Gali Charandas, Mohalla Dassan, Charkhewalan, Delhi-06 and mesne profits shall be decided.
2. Brief facts of the case, as per the amended plaint, are as follows:
(a) Sh. Nathi Mall Khandelwal was a tenant in respect of a portion of the 1st floor, the mezzanine floor and the roof Savitri Devi Vs. Meena Choudahry Pg. no. 1 of 15 thereon of property bearing no. 3739, Gali Charandas, Mohalla Dassan, Charkhewalan, Delhi-06 (hereinafter referred to as 'suit property') at a monthly rent of Rs.100/- excluding all other charges.
(b) Sh. Nathi Mal Khandelwal died leaving behind a widow Smt. Maya Devi Khandelwal and a son namely Sh. Siri Nath Khandelwal who thus became the tenant in the said tenanted portion.
(c) Smt. Usha Pandey claiming herself to be the owner of the said tenanted premises filed an eviction petition under Section 14 (1) (e) DRC Act against Smt. Maya Devi Khandelwal and Sh. Siri Nath Khandelwal being eviction petition no.341/80, which was decided by the court of Sh. P.K. Saxena, the then Additional Rent Controller, Delhi vide judgment dt. 05.02.2000.
Sh. Siri Nath Khandelwal died during the pendency of the said petition and some of his heirs including the plaintiff herein were substituted and impleaded in the said petition.
(d) Defendant is now claiming to have purchased the premises which were in the tenancy of Shri Nathi Mal Khandelwal. After the decision of the petition no. 341/80, Smt. Maya Devi Khandelwal died and the plaintiff herein came into exclusive possession of the tenanted premises.
(e) On 08.06.2014, the defendant in the absence of the plaintiff forcibly dispossessed the plaintiff from the premises in dispute and took forcible possession of the same illegally and unauthorizedly. The defendant took away all the articles of the plaintiff which were lying in the premises in dispute. On coming to know about the same Shri Ritesh Khandelwal, the son of the Savitri Devi Vs. Meena Choudahry Pg. no. 2 of 15 plaintiff called the local police at number 100. The defendant told the police that she has some court order and the bailiff has been appointed by the court to take possession of the suit property. However, she failed to produce any copy of such order of the court or of the appointment of the bailiff. On the said representation of the defendant the police refused to interfere or to take any action against the defendant stating that it was a court matter hence they would not interfere in the same.
(f) Defendant thereafter also sent a letter on 20.06.2014 to the plaintiff by speed post with malafide motives. In the said letter, the defendant had referred to some court case. The defendant had always known that the plaintiff had been in possession of the premises in dispute as a tenant being the daughter in law of Sh. Nathi Mal Khandelwal. The plaintiff after the reopening of the courts after summer vacations of the year 2014 on enquiries came to know that no baliff was ever appointed by any court to take possession of the premises in dispute. The defendant had thus made a false assertion before the police on 08.06.2014 that she had been put into possession of the premises in dispute by the bailiff of the court.
(g) The possession of the defendant over the suit premises is illegal, unauthorized and unlawful as the defendant had no right to dispossess the plaintiff from the premises in dispute which are in the tenancy of the plaintiff without due process of law. The defendant is liable to restore the possession of the premises in dispute to the plaintiff and to place the plaintiff in vacant and physical possession thereof.
(h) Defendant is also liable to pay damages for use and Savitri Devi Vs. Meena Choudahry Pg. no. 3 of 15 occupation/mesne profits to the plaintiff for her wrongful occupation of the suit premises @ Rs.5,000/- per month as the said portion can be let out easily at a monthly rental of Rs.5,000/- per month which is prevailing rent in the locality where the premises in dispute is situated. The plaintiff also claimaing damage for use and occupation in the present suit with effect from 09.06.2014 and the defendant is thus liable to pay damages for use and occupation amounting to Rs.5,000/- for the period 09.06.2014 to 08.07.2014. The defendant is also liable to pay damages for use and occupation alongwith the defendant from 01.07.2014.
In this background, the plaintiff sought decree of recovery of possession in respect of a portion of the 1 st floor, the mezzanine floor and the roof thereon of property bearing no. 3739, Gali Charandas, Mohalla Dassan, Charkhewalan, Delhi-06. The plaintiff also sought decree of recovery of Rs.5,000/- against defendant. The plaintiff further sought recovery of damages/mesne profits from 09.07.2014 till the recovery of possession @ Rs.5,000/- p.m. or such higher rate. The plaintiff further sought rate of interest @ 18% p.a. against the defendant.
3. Defendant filed her WS wherein he submits as follows:
(a) The defendant purchased the suit property from one Smt. Usha Rani W/o Sh. Hari Ballab Pandey vide Regd. Sale Deed dt. 10.02.2011 duly registered with the office of the Sub-
Registrar-III vide registration no. 1138, in Book No.I, Vol. No.14034 referred at page nos. 156 to 166 on payment of Savitri Devi Vs. Meena Choudahry Pg. no. 4 of 15 consideration as mentioned in the sale deed.
(b) The vender Smt. Usha Rani duly mentioned in the sale deed that one Smt. Savitri Devi who had undivided share in the suit property being her mother has relinquished her rights in the suit property vide released deed dt. 11.04.1979 duly registered with the office of the Sub-Registrar bearing registration no.1567, Addl. Book No.1, Vol. 3716 at page no. 25 to 26, registered on 13.04.1979.
(c) In the Sale Deed, it was also mentioned that earlier the suit property was in physical possession of one Sh. Nathi imal Khandelwal and after his death her wife Smt. Maya Devi Khandelwal inherited the tenancy alongwith her son. However, it was clearly mentioned in the Sale Deed that after the death of Smt. Maya Devi Khandelwal none of their family member is residing in the suit property, but taking benefit of the same some unauthorized occupant is occupying the suit property.
(d) After purchase of the said property which was lying locked at the time of the purchase of the same one Sh. Satpal Sharma started claiming the right in the property who was residing in the nearby property bearing No.3695, Gali Loha Wali, Charkhewalan, Chawri Bazar, Delhi-110006.
(e) After the settlement of the above dispute Sh. Satpal Sharma did not handover the keys of the property and finding no other option the defendant had to move an application seeking permission to take the possession through Bailiff on breaking open the locks and accordingly the possession of the suit property was taken over.
(f) On reply on merits, defendant submits that the Savitri Devi Vs. Meena Choudahry Pg. no. 5 of 15 plaintiff has deliberately chosen not to mentioned the date of death of Smt. Maya Khandelwal. It is specifically denied that the plaintiff was dispossessed by the defendant on 08.06.2014 as alleged.
Alleging that the suit of the plaintiff is devoid of merit, defendants pray for dismissal of the suit.
4. Plaintiff filed his replication to the WS of the defendants wherein she denied the averments made in the WS and reiterated the averments made in the plaint.
5. On the basis of the pleadings, Ld. Predecessor Judge vide order dated 15.10.2015, framed the following issues:-
(i) Whether the plaintiff is entitled for decree in possession of the suit property as prayed? OPP
(ii) Whether the plaintiff is entitled for recovery of Rs.5,000/-
as prayed? OPP
(iii) Whether the plaintiff is entitled damages/mesne profit from 09.07.2014 till the recovery of possession, if so at what rate?OPP
(iv) Whether the plaintiff is entitled for interest if so at what rate and for which period? OPP
(v) Relief.
6. Smt.Savitri Devi/plaintiff herself stepped into the witness box as PW-1. She tendered her evidence by way of affidavit which is Ex.PW1/A. She relied upon following documents:-
(i) Site Plan as Ex. PW-1/1.
Savitri Devi Vs. Meena Choudahry Pg. no. 6 of 15
(ii) Certified copy of judgment dt. 05.02.2000, Sh. P.K.
Saxena, Ld. ARC as Ex. PW-1/2.
(iii) Letter alongwith list of goods as Mark A.
(iv) Original Envelope as Ex. PW-1/4.
PW-1 was cross-examined by counsel for the defendant. Thereafter, PE was closed in affirmative on 01.07.2019 and matter was then put up for DE.
7. Smt. Meena Choudhary/defendant herself stepped into the witness box as DW-1. She tendered her evidence by way of affidavit which is Ex.PW1/A. She relied upon following documents:-
(i) Copy of Sale Deed dt. 04.02.2011 as Ex. DW-1/1 (OSR).
8. DW-1 was cross-examined by counsel for the defendant. Thereafter, DE was closed on 20.02.2020 and matter was then put up for final arguments.
9. Final arguments heard. Record perused.
My issue-wise finding are as under:
Issue no.1 "Whether the plaintiff is entitled for decree in possession of the suit property as prayed? OPP"
10. The burden of proof of this issue is on the plaintiff. The plaintiff claims that originally the father-in-law of the plaintiff Sh. Nathi Mal Khandelwal was the tenant in the suit property. Sh. Nathi Mal Khandelwal died leaving behind a Savitri Devi Vs. Meena Choudahry Pg. no. 7 of 15 widow Sh. Maya Devi Khandelwal and a son namely Sh. Siri Nath Khandelwal who thus became the tenant in the suit property. The plaintiff inherited the tenancy after the demise of Sh. Siri Nath Khandelwal. The plaintiff has filed the present suit alleging that she was in the possession suit property as a tenant and she was illegally dispossessed by the defendant on 08.06.2014.
11. The law with respect to suit for possession by the person alleging to be in settled possession has been laid down in plethora of judgments. In the case of Rame Gowda (dead) by Lrs. v. M. Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC 769, a three Judge Bench of Hon'ble Supreme Court of India, observed as under:
"8. It is thus clear that so far as the Indian law is concerned the person in peaceful pos- session is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to Savitri Devi Vs. Meena Choudahry Pg. no. 8 of 15 the law of limitation), if the latter has dis- possessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled posses- sion is itself evidence of title. Law presumes the possession to go with the title unless re- butted. The owner of any property may pre- vent even by using reasonable force a tres- passer from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
12. Further in the case of Poona Ram vs Moti Ram (D) Th. Lrs. decided by Hon'ble Supreme Court of India on 29 Janu- ary, 2019 it was held that "The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long pe- riod of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be ob- structed or removed by the true owner even Savitri Devi Vs. Meena Choudahry Pg. no. 9 of 15 by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to de- termine settled possession. Occupation of a property by a person as an agent or a ser-
vant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of ani- mus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.
13. Now, as the onus to prove the that the plaintiff was in settled possession of the suit property as tenant was upon the plaintiff, therefore it has to be culled out from the evidence led by the plaintiff as to whether he has been successful in discharging the same.
14. To substantiate his case, the plaintiff has examined himself as PW-1 and she was cross examined at length by the Ld. counsel for defendant. In order to prove that she was in the possession of the suit property on the date of dispossession, the plaintiff has relied upon the certified Copy of Judgment dated 05.02.2000 in Eviction Petition No. 341/80 which is Ex. PW1/2. The plaintiff states that after the demise of the Sh. Siri Nath Khandelwal, she was impleaded as party to suit as she has inherited the tenancy, therefore, she was in the possession of the suit property. On the contrary, the defendant argued that as per Ex.PW1/2 Ms. Savitri was proceeded ex-parte on 10.01.1994, therefore she cannot rely upon the said document to prove that Savitri Devi Vs. Meena Choudahry Pg. no. 10 of 15 she was in the possession of the Suit property.
15. So whether the plaintiff was in the possession of the suit property on the date she alleges to be dispossessed is disputed fact. Though the plaintiff was impleaded as party to the eviction Petition as per Ex. PW1/2 as she has inherited the tenancy but the same cannot be relied upon to prove that she was in the possession of the suit property as the plaintiff was proceeded Ex-parte. Moreover, the said document pertains to year 2000, the alleged incident of dispossession is of 2014. Therefore, certified Copy of Judgment dated 05.02.2000 in Eviction Petition No. 341/80 which is Ex.PW1/2 is not conclusive proof of the fact that the plaintiff was in the possession of the suit property till 2014. The plaintiff has not filed any document i.e. rent agreement, rent receipt, electricity bill etc to show that she was in the possession of the suit property as a tenant. The relevant extract of the cross-examination of Plaintiff is reproduced as:
" I have shifted to Lajpat Nagar after the defendant took over the possession of the suit property by breaking opening the locks. It is wrong to suggest that after the death of Smt. Maya Devi my mother in law, none of our family member resided in the suit property. It is correct that there is no document on record that any of the family member resided in the suit property after 1996. ...."
"...I had not paid the rent to any person in respect of the suit property but deposited the same in the Court. It is correct that there is no document on record showing that I ever deposited the Savitri Devi Vs. Meena Choudahry Pg. no. 11 of 15 same in the Court"
16. Accordingly, the plaintiff alleges herself to be in possession of the suit property as tenant but she has not placed on record any document to show that she was in the possession of the suit property.
17. The plaintiff has further relied upon the Mark A that is photocopy of the letter along with list of goods. The said letter was sent by the defendant to the plaintiff for taking her goods. The plaintiff states that vide the said letter the defendant has admitted that the goods of the plaintiff were lying in the suit premises. On the contrary the defendant has stated that the letter dated 08.06.2014 was sent under the impression that the person named Savitri Devi was the same, name of whose was mentioned in the sale deed and she has already relinquished her right in the suit property. The defendant was confronted with said letter during her cross-examination wherein she stated that the letter was written by her and was addressed to Smt. Savitri Devi, mother of Sh. Usha Rani. So the said document again does not prove that the plaintiff was in the settled possession of the suit property.
18. The counsel for the plaintiff has also argued that the defendant has failed to stand the cross-examination. It is argued that in the written statement the defendant has stated that the possession of the suit property was obtained from Sh. Satpal Sharma by appointment of a bailiff on breaking open the locks.
Savitri Devi Vs. Meena Choudahry Pg. no. 12 of 15 However in the cross-examination, the defendant stated as following-
"Me, her husband alongwith Sh. Satpal Sharma had taken the possession of the suit property on 08.06.2014. The locks of the suit property was broken by Sh Satpal Sharma saying that he has misplaced the keys of the same..."
"the Court never appointed any Bailiff in respect of the possession of the suit property..."
19. Though the defendant could not stand the cross- examination, but the plaintiff cannot take the advantage of the same. As the burden of the proof is upon the plaintiff to show that she was in settled possession of the suit property as tenant on date of alleged incident of dispossession. However, she has failed to prove the same. It is settled law that the party on whom burden of proof lies must, in order to succeed, establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary's case. He must succeed by the strength of his own right and the clearness of his own proof. In the present case the primary ingredient to be proved by the plaintiff was that she was in settled possession of the suit property as tenant till 2014. The plaintiff has failed to prove her case on the principle of preponderance of the probabilities. As the plaintiff has failed to discharge her burden of proof, accordingly she is not entitled to the relief of the possession.
In view of the above discussion, the Issue No. 1 is decided against the plaintiff and in the favour of the defendant.
Savitri Devi Vs. Meena Choudahry Pg. no. 13 of 15 Issue Nos. 2 to 4 are taken up together.
Issue no.2 "Whether the plaintiff is entitled for recovery of Rs.5,000/- as prayed? OPP", Issue no.3 "Whether the plaintiff is entitled damages/mesne profit from 09.07.2014 till the recovery of possession, if so at what rate? OPP"
and Issue no.4 "Whether the plaintiff is entitled for interest if so at what rate and for which period? OPP"
20. The onus of proving these issues is upon the plaintiff. In light of findings on Issue no.1, it is held that the plaintiff has failed to discharge her burden of proof as she has failed to prove that she was in settled possession of the suit property on the date of alleged incident of dispossession, therefore, she is not entitled to the relief of the possession. Accordingly, the plaintiff is not entitled to any relief prayed for.
Accordingly, all these issues are decided against the plaintiff.
Relief
21. In view of the above discussions, in view of findings on Issue Nos.1, 2, 3 & 4, the court is of the considered view that the plaintiff could not prove its case on the balance of preponder- ance of probabilities.
22. Accordingly, the suit of the plaintiff stands dismissed.
Savitri Devi Vs. Meena Choudahry Pg. no. 14 of 15
23. The parties shall bear their own costs. Decree sheet be prepared accordingly.
24. File be consigned to Record Room after due Digitally signed compliance. by KIRANDEEP KAUR KIRANDEEP Date:
KAUR 2021.09.22
Pronounced in the open court 16:28:29
+0530
on 22.09.2021.
(Kirandeep Kaur)
Civil Judge-05/Central/
THC/Delhi.
Present judgment consists of 15 pages and each page is signed by me.
Savitri Devi Vs. Meena Choudahry Pg. no. 15 of 15