Delhi District Court
Cs No. 6616159/16 Sheela Devi vs . Vikas Mohan & Ors. on 22 November, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
1st Suit CS No. 616159/16
Smt. Sheela Devi (since deceased)
Through LRs
(i). Smt. Vijay Sharma
W/o Late Ashok Sharma
R/o Welcome Group Housing Society
Plot No. 05, D3/3, Sector-3 Dwarka
New Delhi
(ii). Smt. Veena Sharma
W/o Sh. Rajesh Sharma
R/o Flat No. 36,
Lakshmi Vihar Apartments,
H-3, Vikas Puri, New Delhi
(iii). Smt. Kiran Prabhakar
W/o Sh. Sunil Prabhakar
R/o N-117, Jalvahyan Vihar,
3rd Floor, Sector-25,
Noida
(iv). Smt. Neelam Sharma
W/o Sh. Bhushan Sharma
R/o 39/29, 2nd Floor
Old Rajinder Nagar,
Delhi-110060
(v). Renu Singh
W/o Sh. Jagdish Singh
R/o P.O.Box 797, Muscat Sultanant of Oman
Also at. D-256, West Patel Nagar
New Delhi
(vi). Mrs. Madhu Batra
W/o Sh. Ramesh Batra
R/o 16/545, Joshi Road
Karol Bagh, New Delhi
CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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(vii). Smt. Promila Sharma
W/o Late Sh Vinod Sharma
R/o D-256, West Patel Nagar
New Delhi ...............Plaintiffs
VERSUS
1. Vikash Mohan (since deceased)
Through LRs
1(a). Mrs Kiran Vikas Mohan
W/o Late Sh. Vikas Mohan
1(b). Mr. Amul Vikas Mohan
1(c). Mr. Anshul Vikas Mohan
Both S/o Late Sh. Vikas Mohan
All R/o At Galaxy Heaven Cooperative Soc,
Flat No. 1001, 10th Floor
10th Road JVPD Scheme, Juhu,
Mumbai-400049
2. Sh. Kumar Mohan
S/o Late Sh. Ratan Chand Sharma
2nd Floor, Rukumani Apartment
Raut Lane, Juhu
Mumbai-400049
3. Smt. Sunita Sharma
4. Smt. Adarsh Bala
Both D/o Late Sh. Ratan Chand Sharma]
Both R/o 2nd Floor, Rukumani Apartment
Raut Lane, Juhu
Mumbai-400049 ........Defendants
Date of institution of present suit : 25.03.2009
Date of receiving in this court : 14.03.2016
Date of hearing arguments : 22.10.2018
Date of Judgment : 22.11.2018
SUIT FOR POSSESSION, PARTITION, DECLARATION AND
PERMANENT INJUNCTION
CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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*****AND*****
2nd Suit CS No. 616355/16
In Re:-
Vikas Mohan (since deceased)
Through LRs
(a). Mrs Kiran Vikas Mohan
W/o Late Sh. Vikas Mohan
(b). Mr. Amul Vikas Mohan
(c). Mr. Anshul Vikas Mohan
Both S/o Late Sh. Vikas Mohan
All At Galaxy Heaven Cooperative Soc,
Flat No. 1001, 10th Floor
10th Road JVPD Scheme, Juhu,
Mumbai-400049
VERSUS
Sheela Devi (since deceased)
Through LRs
1(a). Smt. Promila Sharma
W/o Late Sh Vinod Sharma
1(b). Gaurav Sharma
1(c). Mohit Sharma
Both S/o Late Vinod Sharma
All R/o D-256, West Patel Nagar
New Delhi
2. Smt. Vijay Sharma
W/o Late Ashok Sharma
R/o Welcome Group Housing Society
Plot No. 05, D3/3, Sector-3 Dwarka
New Delhi
3. Smt. Veena Sharma
W/o Sh. Rajesh Sharma
R/o Flat No. 36,
Lakshmi Vihar Apartments,
H-3, Vikas Puri, New Delhi
CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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4. Smt. Neelam Sharma
W/o Sh. Bhushan Sharma
R/o 39/29, 2nd Floor
Old Rajinder Nagar,
Delhi-110060
5. Smt. Kiran Prabhakar
W/o Sh. Sunil Prabhakar
R/o N-117, Jalvahayan Vihar,
3rd Floor, Sector-25,
Noida
6. Renu Singh
W/o Sh. Jagdish Singh
R/o P.O.Box 797, Muscat Sultanant of Oman
Also at. D-256, West Patel Nagar
New Delhi
7. Mrs. Madhu Batra
W/o Sh. Ramesh Batra
R/o 16/545, Joshi Road
Karol Bagh, New Delhi ........Defendants
Date of institution of present suit : 22.07.2009
Date of receiving in this court : 14.03.2016
Date of hearing arguments : 22.10.2018
Date of Judgment : 22.11.2018
SUIT FOR POSSESSION, PERMANENT INJUNCTION &
DAMAGES/MESNE PROFITS
JUDGEMENT
Vide this common judgment two suits titled as "Smt. Sheela Devi Vs. Sh. Vikas Mohan & others" bearing suit No. 616159/16 and another titled as "Sh. Vikas Mohan Vs. Smt. Sheela Devi" bearing suit No. 616355/16 shall stand disposed of. First suit bearing No. 616159/16 has been filed by Smt. Sheela Devi against Sh. Vikas Mohan & others whereas second suit bearing No. 616355/16 has been filed by Vikas Mohan against Smt. Sheela Devi.
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2. For the sake of convenience, through out this judgement Smt. Sheela Devi shall be referred to as plaintiff and Sh. Vikas Mohan shall be referred to as defendant and if need be they shall also be referred to by their respective names. Other defendants in the suit No. 616159/16 filed by Smt. Sheela Devi have been referred to as per their status in the suit No. 616159/16.
Case of the plaintiff in suit titled as "Smt. Sheela Devi Vs. Sh. Vikas Mohan & Ors." bearing No. 616159/16
3. Plaintiff in the present case moved the Court by filing suit for declaration, partition, possession, and permanent injunction against the defendant Sh. Vikas Mohan & others alleging that before the partition (of the country), Late Sh. Sarvan Kumar Sharma the father of plaintiff and her brother Late Sh. Ratan Chand Sharma used to live and work for gain at Lahore, (now in Pakistan). Late Sh. Sharvan Kumar Sharma died before the partition (of the country) leaving behind two legal heirs i.e. plaintiff Smt. Sheela Devi and her brother Sh. Ratan Chand Sharma. After partition, plaintiff and her brother Sh. Ratan Chand Sharma along with their respective families immigrated to India from Lahore. After partition it was declared by the Government of India that the members of the aggrieved families would be compensated in terms of claim and/or be alloted residential houses in India. Accordingly, claim for allotment of residential houses in lieu of plaintiff's family properties left at Lahore were lodged. Pursuant to the said claim Delhi Development Provisional Authority somewhere in the year 1956 alloted the property bearing No. D-256, West Patel Nagar, New Delhi (hereinafter referred to as "suit property") to the plaintiff and late Sh. Ratan Chand Sharma. The suit property consisted of ground floor, first floor and the roof. In accordance with the Scheme and Rules of Government of India, the possession of the residential house was alloted in the name of the head of the aggrieved family. Consequently the said property was alloted in the name of brother of the plaintiff Late Sh. Ratan Chand Sharma, being head of the family.
CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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4. Plaintiff has been residing at the first floor of the suit property since 1956 whereas brother of the plaintiff resided at ground floor of the suit property. The plaintiff has further alleged in the plaint that the allotment letter issued by the DDA bears the signature of the plaintiff being the member of the aggrieved family and also being in possession of the suit property. It was after the death of Late Sh. Ratan Chand Sharma that the defendants Vikas Mohan, Kumar Mohan, Smt. Sunita Sharma and Smt. Adarsh Bala defendant No.1 to 4 respectively, the sons and daughters of Late Shri Ratan Chand Sharma, were in actual physical possession of the ground floor of the suit property. However, plaintiff remained in actual physical possession of the first floor of the suit property since 1956. The plaintiff in the plaint claims that she is legal and lawful owner of the property to the extent of 50% of undivided share. The plaintiff alleges that the defendants have malafide intention to sell the suit property after dispossessing the plaintiff from the portion of the suit property which is in actual physical possession of the plaintiff. She has also apprehension that the plaintiff may be forcibly dispossessed and would be deprived of her legitimate right and share in the suit property.
5. Plaintiff requested defendants to partition the suit property by metes and bounds and to handover the 50% of the share of the suit property to the plaintiff but the defendants refused to adhere to request of the plaintiff. As per the plaintiff on 12.03.2009, the plaintiff received information through reliable sources of intention of the defendants to sell the entire suit property for consideration. Further, on 16.03.2009 when plaintiff confronted the defendants of their intention to sell the suit property, the defendants refused to partition the suit property.
6. Based on the said averments plaintiff has prayed that a decree of declaration be passed declaring that the suit property is a joint family property of the plaintiff and plaintiff has ½ undivided share in the suit property. The plaintiff has also prayed for decree of permanent injunction against the CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 6 of 25 defendants to restrain the defendants from selling, alienating, dispossessing or parting with possession and from creating third party interest and title in the suit property. The plaintiff further prays for decree of possession in respect of ½ specific share in the respect of the suit property by partitioning the suit property by metes and bounds and handover the possession of ½ share of the suit property.
Case of the defendants in case titled as "Smt. Sheela Devi Vs. Sh. Vikas Mohan & Ors." bearing No. 616159/16
7. Defendants have filed written statement refuting the claim of the plaintiff. Defendants have raised preliminary objection primarily on the basis of maintainability of the suit in the present form, absence of locus standi of the plaintiff, suit being time barred, allegations levelled by the plaintiff being false, suppression of material facts, no cause of action, non payment of court fees, non-joinder and mis-joinder of necessary parties and pecuniary jurisdiction.
8. As per the defendants, the present suit is not maintainable in its present form as the plaintiff has no locus standi to file the present suit as she is not having any right, title or interest in the suit property. Plaintiff was a permissive user/licensee purely on temporary license basis without any charges by late Sh. Ratan Chand Sharma (father of the defendants) during his lifetime. Plaintiff alleged to have been in possession of the suit property since 1956, however, the present suit was filed in the year 2009 consequently suit is barred by limitation. As per defendants, suit property was alloted to the father of the defendants and after his death in the year 2005, the defendants and Smt. Usha M. Sharma w/o late Sh. Brij Mohan Sharma, sisters-in-law of the defendants became co-owners of the suit property by operation of law. It is averred that if plaintiff had any right, title or interest in the suit property then the same should have been agitated during the lifetime of her brother/father of the defendants. It has been further averred that plaintiff was having affair with a boy and she ran away from the house with the said boy after stealing jwellery from house. A CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 7 of 25 search was made to find out the plaintiff but of no avail. However after 8-10 years approx plaintiff came back with 2 kids and begged the father of the defendants to keep her and plaintiff was allowed by father of the defendants to use the upper quarter consisting of one room and kitchen as a permissive user purely on license basis without any charges.
9. On merits, the defendants have specifically denied the claim of the plaintiff averred. However, it has not been denied by the defendants that they are in actual physical possession of the ground floor only. It is the case of the defendants that plaintiff was allowed to use the first floor (one room kitchen quarter) as a permissive user on a license by the father of the defendants in early 1960s. The plaintiff has also acted as a caretaker of the entire property after shifting of the defendants to Mumbai. It is also the case of the defendants that the plaintiff has never claimed nor agitated that she is the owner of 50% undivided share during the lifetime of the father of the defendants. It is further claimed by the defendants that defendant No. 1 (Vikas Mohan) has been approved successor-in-interest of property No. D-255-256, Double Storey, West Patel Nagar, New Delhi and the property duly stands transferred in the name of defendant No. 1 (Vikas Mohan) in the record of Land and Development Office, Nariman Bhawan, New Delhi vide letter dated 20.12.2006 issued by the Settlement-cum-Managing Officer, L&DO, New Delhi. The property tax, electricity bills, water bills of the suit property are being paid by defendant No.
1.
10. On the basis of above averments and specific denial made by the defendants in their written statement the defendants have prayed that suit be dismissed with costs.
Case of the Vikas Mohan in the suit filed by him titled as "Sh. Vikas Mohan Vs. Sheela Devi" bearing No. 616355/16
11. Vikas Mohan as plaintiff in his suit approached this court seeking CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 8 of 25 relief of possession, permanent injunction and damages/ mesne profits against the Smt Sheela Devi stating that Late Sh. Ratan Chand Sharma, father of the plaintiff was the absolute owner of the suit property i.e. Double Storey tenement No. 255 and 256, in block No. D, situated at West Patel Nagar, New Delhi alloted by the Land and Development Office, New Delhi vide allotment/file No. L&DO/RPCell/539 dated 04.08.1992. Sh. Ratan Chand Sharma died intestate on 30.01.2005 and after his death, his legal heirs became the co-owners/co-sharer of the said property by operation of law. The other legal heirs namely Sh. Satender Kumar Mohan Sharma, Smt. Sunita Sharma, Smt. Adarsh Bala Khajuria and Smt. Usha M. Sharma w/o Late Sh. Brij Mohan Sharma released their respective shares in the property in favour of the plaintiff vide relinquishment deed dated 12.06.2006. Consequently the plaintiff was appointed successor-in-interest of the said property. Hence, the plaintiff is the absolute owner of the said property.
12. Smt. Sheela Devi, (the defendant in the suit filed by Sh. Vikas Mohan) is the real sister of late Sh. Ratan Chand Sharma i.e. aunt/bua of the Sh. Vikas Moahn, was allowed to use upper quarter No. 256 consisting of one room and kitchen forming part of said property as a licensee purely on temporary basis without any charges in early 60s by Sh. Ratan Chand Sharma, the father of the plaintiff Sh. Vikas Mohan. Vide notice dated 02.06.2009, plaintiff Sh. Vikas Mohan through his counsel terminated the license of Smt. Sheela Devi and called upon her to vacate the suit premises and handover the peaceful vacant possession of the said premises on or before the mid-night of June, 2009 but Smt. Sheela Devi failed to comply with the mandate of the notice. Since the license has been revoked by Sh. Vikas Mohan the status of Smt. Sheela Devi in the said premises is that of illegal/unauthorised trespasser/occupant. Smt. Sheela Devi was allowed to use the said premises as permissive user purely on license basis without any charges. Since Smt. Sheela Devi has no right, title or interest in the suit property, therefore Smt. Sheela Devi is liable to pay a sum of Rs.7,500/- per month to Sh. Vikas Mohan CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 9 of 25 towards use and occupation charges besides being liable to vacate the same. The said amount of mesne profit has been claimed by Sh. Vikas Mohan as per prevailing market rate of rent along with interest on damages @ 15% per annum. Hence, decree of possession, damages/mesne profits and permanent injunction has been prayed for.
Case of Smt. Sheela Devi in suit titled "Sh. Vikas Mohan Vs. Smt. Sheela Devi" bearing suit No. 616355/16
13. Smt. Sheela Devi filed written statement refuting the claim of the Sh. Vikas Moahn raising preliminary objections primarily pertaining to maintainability of the suit; same being barred by limitation; being in suppression of material facts; having no cause of action and non payment of requisite court fees.
14. On merits, Smt. Sheela Devi has specifically denied averments made in the plaint of Sh. Vikas Mohan reiterating the facts stated by her in her own plaint in suit No. 616159/16 titled as "Smt. Sheela Devi Vs. Sh. Vikas Mohan" which is not being repeated herein for the sake of brevity. Apart from the claim of her co-ownership in the property to the extent of 50% share in property bearing No. D-255-256, Double Storey, West Patel Nagar, Delhi, she has also taken the plea of adverse possession stating that as per the averments and submission of Sh. Vikas Mohan made in his plaint, she has become the owner of the first floor of the suit property by adverse possession since she has been in possession of the first floor of the suit property since 1956 and thus has sought dismissal of the suit of Sh. Vikas Mohan.
Replication
15. Smt. Sheela Devi in her own suit did not file replication to the written statement of Vikas Mohan and others but Sh. Vikas Mohan in his suit filed replication to the written statement of Smt. Sheela Devi thereby denying version of Smt. Sheela Devi reiterating his own version of the facts.
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Important stages of proceedings
16. During pendency of both suits both Smt. Sheela Devi and Sh. Vikas Mohan expired and their respective Legal Heirs were brought on record in both suits.
17. Further, after demise of Vikas Mohan his two sisters namely Smt. Sunita Sharma and Smt. Adarsh Bala the defendant No. 3 and 4 respectively in suit No. 616159/16 filed by the Smt. Sheela Devi, separately moved a joint application thereby submitting that they had never engaged a counsel to represent them nor had they authorised any one to file written statement on their behalf in the suit filed by Smt. Sheela Devi. They further prayed that their defense be struck of. Their separate statement to this effect was recorded on 15.02.2018. It is worthwhile to note that in suit No.616159/16 joint written statement was filed by all the defendants therein.
Issues
18. Following issues were framed in case titled as "Sheela Devi Vs. Vikas Mohan" bearing suit No. 616159/16:-
1. Whether the suit of the plaintiff is barred by limitation? OPD
2. Whether the plaintiff has suppressed material facts from the court? OPD
3. Whether the suit is bad for non-joinder and mis-joinder of necessary party? OPD
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction and hence is beyond the pecuniary jurisdiction of this court? OPD
5. Whether the plaintiff is entitled for relief of declaration, as prayed? OPP
6. Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP
7. Whether the plaintiff is entitled for the relief of possession, as prayed?
OPP
8. Relief.
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19. Following issues were framed in case titled Vikas Mohan Vs. Sheela Devi bearing No. 616355/16:-
1. Whether the plaintiff (Sh. Vikas Mohan) is entitled to a decree of possession of upper quarter number D-256, West Patel Nagar, New Delhi? OPP
2. Whether the plaintiff (Sh.Vikas Mohan) is entitled to a mesne profit @ Rs.7,500/- per month with interest from the defendant as claimed? OPP
3. Whether the suit is barred by limitation? OPD
4. Whether the defendant (Smt. Sheela Devi) has become the owner of the first floor of the property in question by way of adverse possession as alleged? OPD
5. Relief Evidence
20. Initially, defendant Sh. Vikas Mohan in his suit bearing No. 616355/16 completed his evidence and thereafter his suit as well as the suit filed by the plaintiff herein i.e. Smt. Sheela Devi were consolidated for the purpose of recording evidence. Subsequently, in suit No. 616159/16 it was got stated by the LRs of Sh. Vikas Mohan through their counsel that evidences led on behalf of Sh. Vikas Mohan in his suit No. 616355/16 be read as evidence of the defendants in the suit No. 616159/16.
21. As noted during pendency both the plaintiff Smt. Sheela Devi and defendant (No.1) Sh. Vikas Mohan had expired and their respective LRs were brought on record. Deceased Sh. Vikas Mohan had already completed his evidence in his suit before his death, however, he was not cross examined as the right of Smt. Sheela Devi to cross examine Sh. Vikas Mohan was forfeited. Smt. Sheela Devi expired even before she could examine herself. Thus on behalf of Smt. Sheela Devi four witnesses were examined i.e. Smt. Kiran Prabhakar as PW-1 who is daughter of deceased Smt. Sheela Devi, Smt. Veena Sharma as PW-2 another daughter of deceased Smt. Sheela Devi, Sh. Anil Kumar as PW-3, Assistant Section Officer, Department of Rehabilitation, CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 12 of 25 Ministry of Home Affairs and Sh. Keshav Chandra Jena as PW-4 from National Archives of India.
22. Vikas Mohan examined himself as PW-1 in his own suit. He also examined Sh. Anil Kumar Gupta, the draftsman as PW-2, Sh. Om Prakash as PW-3, UDC, Office of Sub-Registrar, Janak Puri, Sh. Mangal Singh as PW-4, UDC, RP Cell Section, L&DO Nirman Bhawan and Sh. Swatantra Kumar as PW-5, LDC, MCD, House Tax, Karol Bagh Zone. None of the witnesses on behalf of Vikas Mohan were cross examined. Evidence led by Sh. Vikas Mohan was adopted by his LRs as defence evidence in the suit filed by Smt. Sheela Devi.
Findings
23. After going through the pleadings, evidences, material on record and after hearing respective counsel for the parties, issuewise findings are as under:-
ISSUE No. 1 (in suit No. 616159/16):- Whether the suit of the plaintiff is barred by limitation? OPD
24. Onus to prove this issue is upon Sh. Vikas Mohan. Ld. Counsel for Vikas Mohan has drawn attention of the Court to the "cause of action"
paragraph of the plaint of Smt. Sheela Devi in suit No. 616159/16 to contend that as per her plaint itself the cause of action first arose "when she and her brother made the claim before the government of India" and it further arose when the Government of India allotted the suit property. He further argues that as per Smt. Sheela Devi suit property was alloted in the year 1956 and suit for declaration was got to be filed within three years from the date of accrual of 'first' cause of action. He argued that admittedly as per Smt. Sheela Devi suit property was alloted in 1956 in the name of Sh Ratan Chand Sharma and cause of action arose in 1956, therefore, he argues that any suit for declaration should have been filed within 3 years thereafter. Hence, he contends that suit of the CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors. CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 13 of 25 Smt Sheela Devi is barred even as per her own pleadings.
25. On the other hand Ld Counsel for Smt Sheela Devi has argued that in fact cause of action to file the present suit arose when Sh. Vikas Mohan and others refused to recognise the rights of Smt Sheela Devi in the suit property i.e. when clouds over her title were casts for the first time which happened only after the death of Sh. Ratan Chand Sharma in 2005. He further argued that during the lifetime of Sh. Ratan Chand Sharma, Sh. Ratan Chand Sharma never questioned her right to remain in property nor did he ever denied her right/title in the property. He further argued that even otherwise Smt. Sheela Devi could not have filed the present suit in view of Section 23 of Hindu Succession Act, 1956 which was deleted only w.e.f 20 th December 2005 and therefore she could not have filed suit for declaration and partition of the suit property prior to 20th December 2005.
26. Having heard the rival submissions of the Counsels for parties, it has got to be understood that erstwhile Section 23 of Hindu Succession Act, 1956 created bar on females to seek partition of the dwelling units but it no where barred filing of suit for declaration. If Smt. Sheela Devi was also to be co-owner of the suit property she should have filed the suit for declaration within three years from the date of allotment. If not within three years from the date of allotment then at least from the date of execution of Conveyance Deed in the year 1992. Even if it is held that limitation to file the present suit arose when the disability created by Section 23 of Hindu Succession Act, 1956 was removed w.e.f. 20th December then also suit should have been filed by Smt. Sheela Devi by 20th December 2008 and not on 25.03.2009. Hence, suit filed by the Smt. Sheela Devi is barred by limitation. Accordingly issue No.1 is decided against Smt. Sheela Devi.
ISSUE No. 2 (in suit No. 616159/16):- Whether the plaintiff has suppressed material facts from the court? OPD CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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27. Onus to prove this issue is upon Vikas Mohan. During the course of argument Counsel for Vikas Mohan did not point out as to what was the material fact that Smt. Sheela Devi suppressed. In the written statement except for the contrary pleadings of the parties qua right to occupy the suit property by Smt. Sheela Devi, there is no other material fact which appears to have been suppressed. Vikas Mohan failed to discharge the onus that rest upon him. Accordingly, issue No.2 is decided against the Vikas Mohan and in favour of Smt. Sheela Devi.
ISSUE No. 3 (in suit No. 616159/16):- Whether the suit is bad for non- joinder and mis-joinder of necessary party? OPD
28. Onus to prove this issue is upon the defendant ie. upon Vikas Mohan. In the written statement it has been pleaded by Vikas Mohan that suit of Smt Sheela Devi is bad for non-impleadment of Smt. Usha M. Sharma sister-in- law of Vikas Mohan i.e. wife of deceased brother of Vikas Mohan namely Sh. Brij Mohan Sharma.
29. In suit for partition all the co-owners are necessary party. Admittedly as per Smt. Sheela Devi she and her brother Late Sh. Ratan Chand Sharma were alloted the suit property in lieu of their joint movable and immovable property left in Pakistan and therefore, as per Sheela Devi, she and her brother were co-owner to the extent of 50% share each. Then upon intestate demise of Sh. Ratan Chand Sharma all his legal heirs inherited share of Sh. Ratan Chand Sharma in equal share. Smt. Sheela Devi did not file replication to deny the factum of predeceased son Sh. Brij Mohan Sharma of Late Sh. Ratan Chand Sharma and he leaving behind Smt. Usha M Sharma. Therefore, in this circumstance Sheela Devi was required to implead Smt. Usha M. Sharma as she was necessary party in the present suit. Hence, in this circumstance suit of Sheela Devi was certainly bad for want of necessary party as per the case set up by Smt Sheela Devi herself. Hence, issue No.3 (in suit No. 616159/16) is hereby decided against the Smt. Sheela Devi and in favour of Sh. Vika Mohan CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 15 of 25 and Ors.
ISSUE No. 4 (in suit No. 616159/16):- Whether the suit has not been properly valued for the purpose of court fee and jurisdiction and hence is beyond the pecuniary jurisdiction of this court? OPD
30. Onus to prove these issues upon the defendant Vikas Mohan. It is worthwhile to note herein that plaintiff has filed the present suit before the Senior Civil Judge as he has valued the suit for the purpose of court fee and jurisdiction at Rs.130/- for the relief of partition and possession and for the relief of injunction at Rs.130/- and further for relief of declaration at Rs.200/-. Defendant Vikas Mohan objected to the valuation of the suit property. As per him the suit property had market value of Rs.20,00,000/- which was beyond the pecuniary jurisdiction of the court of Civil Judge. Subsequently, the present suit was transferred to the court of Additional District Judge as the suit filed by the plaintiff herein was pending. Plaintiff in her suit is asking for declaration, partition, injunction. Even if plaintiff is in possession of the suit property plaintiff was required to give market value of the suit property for the purpose of jurisdiction but in the present case plaintiff has valued the suit for the relief of partition at Rs.130/- which is grossly inadequate. Though plaintiff being in possession could not have been required to pay more court fees but she was certainly required to value the suit for the purpose of the jurisdiction at market rate. Thus the valuation of the suit for the purpose of jurisdiction is not correct. However, since it does not have any material effect on the court fees, therefore, the consequence of issue No. 4 even if decided against the plaintiff will not have material effect on the overall outcome and jurisdiction of this court. In any case the material trial of the case filed by the plaintiff has taken place before the court to which even defendant submits to have jurisdiction. Hence, issue No. 4 is decided against the plaintiff but with no effect.
ISSUE No. 5 (in suit No. 616159/16):- Whether the plaintiff is entitled for relief of declaration, as prayed? OPP CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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31. This is the star issue of all the issues framed in both suits. Smt. Sheela Devi claims 50% of ownership in the suit property on the premise that suit property was allotted to the head of the family namely Sh. Ratan Chand Sharma in lieu of family properties that was left behind in Pakistan on partition of the country. It has been her case that father of Smt. Sheela Devi and Late Sh. Ratan Chand Sharma namely Late Sh Sarvan Kumar Sharma used to live and work for gain at Lahore. Late Sh. Sarvan Kumar Sharma expired at Lahore before the partition (of country) leaving behind two legal heirs i.e. Smt. Sheela Devi and her brother Late Sh. Ratan Chand Sharma, the father of Vikas Mohan and others. After migration to India, Smt Sheela Devi and Late Shri Ratan Chand Sharma lodged their claim before the Government of India for the allotment of residential house in lieu of their familly properties left behind at Lahore. It is further her case that in terms of the claim filed by Smt. Sheela Devi and her brother Sh Ratan Chand Sharma, the Delhi Development Provisional Authority somewhere in the year 1956 allotted a suit property. However, as per scheme and rules of the Government of India, the possession of the residential house was allotted in the name of the head of the family.
32. Smt. Sheela Devi examined a witness from National Archives of India PW4 Shri Dr. Keshab Chandra Jena who brought the summoned record i.e. claim settlement file bearing No. P/LH4/21779 containing 27 pages including cover page which contain the certificate of payment of interim compensation, opening sheet in a case with statement of Ratan Chand Sharma and form A, verification of claim, affidavit, Form B, Receipt, Order dated 04.07.1951 passed by Sh. Champat Rai Jain, Claim Officer, Verification with Summary Schedule of Property Claim and other relevant documents regarding settlement of claim. Complete file was exhibited as Ex PW4/1(colly).
33. Perusal of entire Ex PW4/1 (colly) reveals that Sh. Rattan Chand Sharma had lodged claim with Claim Officer for compensation of Rs 9,000/- in respect of a residential house bearing No. 71649 situated at Dabri Bazar, CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 17 of 25 Mohalla Sareen Kucha Jawbacco Wala, Lahore, comprising two floor with 11 rooms. As per statement recorded of Sh Rattan Chand Sharma therein said house was purchased by his father for Rs 5,500/-. It has been further recorded that said house was initially mortgaged with possession with his father for Rs. 3,500/- and subsequently after paying Rs 2,000/- more to the mortgagor, a regular sale deed was executed and registered for Rs. 5,500/-.
34. It is the case of Smt. Sheela Devi that her father expired in Lahore before partition of the country, leaving behind two legal heirs i.e. Smt. Sheela Devi and Sh. Ratan Chand Sharma. Thus, as per Smt. Sheela Devi herself late Sh. Sarvan Kumar Sharma left behind only two legal heirs which mean that his wife had predeceased him, though PW2 Smt. Veena Sharma in her cross examination deposed that both Smt. Sheela Devi and her brother Sh. Ratan Chand Sharma came to India along with their mother Ishwari Devi. But this part of the testimony is liable to be ignored as same is beyond pleadings and a witness cannot set up better case than the original plaintiff Smt. Sheela Devi. It is further her case that after the partition of the Country she and her brother Sh. Ratan Chand Sharma alongwith their respective family migrated to India. This stand of the Smt. Sheela Devi implies that both Smt. Sheela Devi and her brother were married before migrating to India.
35. Hindu Succession Act, 1956 came into operation in the year 1956 whereas father of Smt. Sheela Devi and Sh. Ratan Chand Sharma namely Sh. Sarvan Kumar Sharma expired before 1947 and thus on the day when the succession of the estate of Late Sh. Sarvan Kumar Sharma opened up there was no Hindu Succession Act, 1956 prescribing succession by daughters also in the self acquired estate of Hindu male. As noted above as per Sheela Devi wife of Late Sh. Sarvan Kumar Sharma had predeceased him, therefore, right of residence, maintenance etc. as prescribed under Hindu Women's Right to Property Act, 1937, of wife of Sh. Sarvan Kumar Sharma did not continue upto the date of enforcement of Hindu Succession Act, 1956 so as to get the said CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 18 of 25 right of residence etc. converted into absolute right of ownership in view of Section 14 of the said Act which right could have been inherited by Smt. Sheela Devi along with her brother upon the demise of wife of Late Sh. Sarvan Kumar Sharma. Thus, in the present case when succession opened up there was no law under which could have inherited estate of her father and therefore, Smt Sheela Devi did not have right of inheritance in the estate of her father Sh. Sarvan Kumar Sharma and by the time Hindu Succession Act came into operation inheritance to the estate of Late Sh. Sarvan Kumar Sharma was concluded and Sh. Ratan Sharma had become the absolute owner of the properties of his father left behind by him (father) upon his demise and which Sh. Ratan Chand Sharma left in Lahore at the time of partition of the country.
36. Apart from the above, further perusal of Ex PW4/1 shows that in lieu of his inherited property left in Pakistan he was given on assessment compensation of Rs 6,000/- instead of his claim for Rs 9,000/-. Said compensation was made in money. No evidence came on behalf of Smt. Sheela Devi about the way suit property was alloted. No evidence was led on behalf of Smt. Sheela Devi that suit property was allotted in lieu of claim compensation. Neither the allotment letter was brought on evidence nor the scheme and Rules of the Government of India under which residential unit was to be allotted only to the head of the family came on record. Smt Sheela Devi also not brought on record any evidence that any claim for compensation was filed by her either alone or jointly with her brother as has been set up by her. Hence, Smt Sheela Devi failed to prove that suit property was a joint family property of Smt Sheela Devi and Sh. Ratan Chand Sharma.
In view of the above discussion issue No.5 of suit No. 616159/16 is hereby decided against the Smt Sheela Devi and in favour of Vikas Mohan.
ISSUE No. 6 ( in suit No. 616159/16) :- Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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37. Onus to prove this issue is upon the Smt Sheela Devi. By way of relief of permanent injunction she has prayed that Vikas Mohan and others be restrained from selling, alienating and disposing off or parting with the possession and/or creating any third party interest or title in respect of the suit property. But in view of the findings recorded on above issue No. 5, Smt Sheela Devi is not entitled for the relief of permanent injunction as claimed. Hence, issue No. 6 (in suit No. 616159/16) is hereby decided against Smt Sheela Devi and in favour of Vikas Mohan & others.
ISSUE No. 7 ( in suit No. 616159/16) :- Whether the plaintiff is entitled for the relief of possession, as prayed? OPP
38. Onus to prove this issue is upon the Smt. Sheela Devi. By way of relief of possession Smt Sheela devi is asking for one half of specific portion in respect of the suit property. However, in view of the findings recorded on above issue No. 5, she or her legal heirs are not entitled for one half of the specific portion as claimed by her. Accordingly, issue No.7 is decided against Smt. Sheela Devi and in favour of Sh. Vikas Mohan.
ISSUE No. 3 (in Suit No. 616355/16):- Whether the suit is barred by limitation? OPD ISSUE No. 4 (in Suit No. 616355/16) :- Whether the defendant (Smt. Sheela Devi) has become the owner of the first floor of the property in question by way of adverse possession as alleged? OPD
39. Of all issues framed in suit No. 616355/16 issue No. 3 and 4 are being taken up first and together as they are interconnected as well. Onus to prove these issues is upon Smt. Sheela Devi. As per Smt. Sheela Devi she is in possession of the suit property of suit No. 616355/16 i.e. upper quarter No. 256 forming part of the property No. D-256, West Patel Nagar, Delhi, since 1956. She further claims to be co-owner to the extent of 50% of the property bearing No. D-255, 256 of which suit property of suit No. 616355/16 forms part, as the same was alloted to the head of the family Sh. Ratan Chand Sharma in response to the claim filed by her and her brother Ratan Chand Sharma in respect of the CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 20 of 25 family properties left behind by them in Lahore in Pakistan at the time of partition of the country. However, it has been noted while recording findings on issue No.5 in the suit filed by Smt. Sheela Devi that she could not have inherited property of her father and it was also held therein that Smt. Sheela Devi or her legal heirs are not entitled to be declared co-owner to the extent of 50% in the suit property. Hence, Smt Sheela Devi's or her legal heirs' resistance to the suit filed by Sh. Vikas Mohan on the basis of co-ownership of the suit property is not sustainable.
40. Next ground of the resistance to the suit filed by Vikas Mohan is that Smt. Sheela Devi and for that matter her legal heirs have become owner of the suit property by way of adverse possession as she has been in continuous actual physical possession of the entire first floor of the property since 1956. There is no pleading that she or her legal heirs are having "open and hostile"
possession of the entire first floor of the said property. In order to claim ownership in the property by way of adverse possession, his/her possession must be "hostile" to the true owner and the hostility must be "open" to all including true owner. Thus, two important ingredient of adverse possession is missing in the pleading itself.
41. Further none of the private witnesses on behalf of Smt. Sheela Devi deposed any thing about Smt. Sheela Devi or her legal heir becoming owner of the suit property by way of adverse possession. Two daughters of Smt. Sheela Devi namely Smt. Kiram Prabhakar and Smt. Veena Sharma i.e. PW1 & PW2 in suit No. 616159/16 did not utter a single word that they have become owner by way of adverse possession or how they claim ownership by way of adverse possession. Nothing has been pleaded/testified since when possession of Smt. Sheela Devi became hostile to that of true owner. Nothing has been testified as to when and what was done by them to assert her or their claim of ownership in the suit property in open hostility to the true owner. Mere deposit of house tax in respect of her share is not enough to show hostile possession. It CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 21 of 25 has to bear in mind that law of adverse possession enriches the person in conflict with law against the person who has sided with law, therefore conferring ownership by way of adverse possession calls for stricter scrutiny of the claim. Every ingredient of adverse possession not only must be pleaded specifically but must also be proved with clinching evidence. Mere actual physical and continuous possession of a immovable property is not enough, it has got to be open and hostile to the true owner and the open hostility must be continuous too. Hence, in view of the above reason both issues are decided against Smt. Sheela Devi/her legal heirs and in favour of Vikas Mohan.
ISSUE No. 1 (in Suit No. 616355/16):- Whether the plaintiff (Sh. Vikas Mohan) is entitled to a decree of possession of upper quarter number D- 256, West Patel Nagar, New Delhi? OPP
42. Onus to prove this issue is upon the Sh. Vikas Mohan. Sh. Vikas Mohan examined himself in his suit as PW1 and deposed on the lines of his plaint. He got proved Ex PW1/1(colly) Conveyance Deed in respect of property No. D-255, 256, West Patel Nagar, Delhi along with letter dt 4.08.92 by which Conveyance Deed was forwarded to Sub-Registrar for its registration, by getting it summoned from the office of L& DO through witness PW4 in his suit. He also got proved application dated 17.07.2006 Ex PW4/1(colly) by which he had applied for substitution of title in his favour. He also got proved the letter dt 20.12.2006 Ex PW1/4 from L & DO whereby he was appointed successor-in-interest in respect of the property bearing No. D-255,256, West Patel Nagar, Delhi, consequent upon death of the Ratan Chand Sharma and relinquishment Deed executed by other LRs of Ratan Chand Sharma in his favour. He also got proved the Relinquishment Deed Ex PW1/3 by summoning the original from the office of Sub-Registrar. He also proved the legal notice dt 02.06.2009 Ex PW1/7 whereby he terminated the licence of Smt. Sheela Devi to remain in possession of the suit property and consequent upon Sheela Devi's failure to hand over the possession of the suit property Sh. Vikas Mohan filed the present suit. Sh. Vikas Mohan was not cross examined. In fact none of the witnesses examined on behalf of Sh. Vikas Mohan in his suit were cross CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 22 of 25 examined by Smt. Sheela Devi. Thus, plaintiff successfully proved that he is the sole owner of the suit property and Smt Sheela Devi or her legal heirs have no right to retain the possession of the suit property. Even otherwise it has already been found above that Smt Sheela Devi or her legal heirs have failed to establish any right in the suit property on any ground. In view of the above discussion issue No.1 in the suit filed by Sh. Vikas Mohan is decided in his favour and against Smt. Sheela Devi.
ISSUE No. 2 (in Suit No. 616355/16):- Whether the plaintiff (Sh.Vikas Mohan) is entitled to a mesne profit @ Rs.7,500/- per month with interest from the defendant as claimed? OPP
43. Onus to prove this issue is upon the Sh. Vikas Mohan. Sh. Vikas Mohan in his testimony deposed that Smt. Sheela Devi has allowed to use the said premise as permissive user purely on license basis without any charges. He further deposed that she has no right to remain in the suit property and accordingly, notice dt 2.06.2009 Ex PW1/7 was thereby terminating the license and asking Smt Sheela Devi to vacate the suit property by the midnight of 30 th June 2009 but she did not vacate the same and as such she is in unauthorised occupation of the suit property. He further deposed that he had claimed a sum of Rs 7,500/- per month towards use and occupation charges as per prevailing market rate of rent in the same locality in respect of similar portion. He was not cross examined. Sh Vikas Mohan did not examine any independent witness to prove the prevailing market rate of rent in the same locality in respect of similar portion.
44. Awarding use and occupation charges necessarily and inevitably involves certain amount of guess work because similar property in similar locality may not fetch same rent as many other factors play role in fixing rent with bargaining power of lessor and lessee being the first one. Internal fitting, fixtures, design etc are other factors that play very important role. Hence, even though Vikas Mohan has not been cross examined but his testimony cannot be taken as gospel truth. Thus keeping in mind the long relationship between the CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
CS No. 616355/16 Vikas Mohan Vs. Sheela Devi Page No. 23 of 25 parties, this court is embarking upon difficult task of wild guess work on the basis of experience of life while striking balance to avoid unjust enrichement of either party and considers that interest of justice would be served if Sh. Vikas Mohan is awarded use and occupation charge/damages/mesne profits @ of Rs. 2,000/- per month from the date of institution of suit i.e. w.e.f. 22.07.2009 till the handing over of the actual, physical and vacant possession of the suit property. Plaintiff has also claimed interest at the rate of 15% p.a. on the arrears of damages/mesne profits as determined. Section 34 of CPC grants discretion to award pendente-lite and future interest at its discretion. In the present case since damages/mesne profits were not determined therefore nobody is liable to pay damages till the time amount is quantified. However one is certainly entitled for interest once the amount is quantified. Accordingly, above determined damages/mesne w.e.f 22.07.2009 till the date of decree be paid within one months from the date of decree failing which interest at the rate of 4% per annum till the time same is paid, is to be paid.
Issue No.2 in suit No. 616355/16 stands accordingly disposed of in favour of Sh. Vikas Mohan and against Smt Sheela Devi.
Relief In view of the findings recorded above suit filed by Smt. Sheela Devi against Sh. Vikas Mohan & others bearing suit No. 616159/16, is hereby dismissed.
Suit filed by Sh. Vikas Mohan against Smt. Sheela Devi bearing suit no. 616355/16, is allowed and decree for possession in respect of Upper Quarter No. 256 consisting of one room and kitchen forming part of the property bearing No. D-256, West Patel Nagar, New Delhi as duly shown in red color in the site plan Ex PW1/5, is hereby passed in favour Sh. Vikas Mohan (represented by his LRs) against Smt. Sheela Devi (represented by her LRs).
Decree of damages/mesne profits is also hereby passed in favour Sh. Vikas Mohan (represented by his LRs) against Smt. Sheela Devi (represented by her LRs) thereby awarding damages/mesne profits @ Rs.
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2,000/- per month w.e.f. 22.07.2009 till the actual, physical and vacant possession of the suit property is handed over to the decree holder. Said damages/mesne profit till the date of decree be paid within one months failing which interest at the rate of 4% per annum till the time is same is paid, is to be paid.
A decree of permanent injunction is also hereby passed in favour of Sh. Vikas Mohan (being represented through his LRs) against Smt. Sheela Devi (being represented through her LRs) thereby restraining them from creating third party interest in the suit property in any manner in respect of the above said suit and/or parting with possession of the suit property to third party.
Separate decree sheet be prepared accordingly in each case file, however, in suit bearing No. 616355/16 decree sheet be prepared only upon filling of deficient court fees, if any, on the quantum of damages.
Parties shall bear their own respective cost of the suits. Duly signed judgement be placed in each case files.
Each files be consigned to Record Room after necessary compliance. Digitally signed by HARISH HARISH KUMAR KUMAR Date: 2018.11.22 15:46:38 +0530 (Harish Kumar) Announced in the open Court. ADJ-13 (central)/THC (Judgment contains 25 pages) Delhi/22.11.2018 CS No. 6616159/16 Sheela Devi Vs. Vikas Mohan & Ors.
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