Delhi District Court
Smt. Abhilasha vs Shri Banwari Lal on 8 June, 2018
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
Regular Civil Appeal No. 361/2016
Smt. Abhilasha
W/o Shri Dinesh Kumar
R/o B5, PocketOO,
Amrapali, Avantika
Sector1, Rohini,
New Delhi - 110 085 ................Appellant
Versus
1. Shri Banwari Lal
S/o late Shri Jagnandan Ram
R/o 21/296, Trilokpuri,
Delhi - 110 091
2. Shri DR Gautam
S/o late Shri JR Gautam
3. Shri Bharat Gautam
S/o Shri DR Gautam
4. Shri Atul Gautam
S/o Shri DR Gautam
5. Smt. Lalti Devi
W/o Shri DR Gautam
Respondents No. 25 Residents of
B5, PocketOO, Amrapali, Avantika Sector1, Rohini, New Delhi - 110 085
6. Shri Dinesh Kumar S/o Shri Banwari Lal R/o 25/249, 1st floor, Trilokpuri, Delhi - 110 091 ................Respondents RCA No. 361/2016 1 of 15 Date of institution : 24.11.2016 Date of reserving judgment : 11.5.2018 Date of judgment : 08.6.2018 O R D E R :
The present appeal is directed against the impugned order of the Ld. Trial Court dt. 04.10.2016 passed in Civil Suit No. 7684/2016 titled as Banwari Lal Vs. Abhilasha & ors. vide which the suit was partly decreed for mandatory injunction in favour of respondent No. 1/plaintiff and against the appellant/defendant No. 1 as well as respondent/defendant No. 6, under Order 12 Rule 6 CPC.
2. The respondent No. 1 herein had filed a suit for permanent and mandatory injunction against the appellant and respondents No. 2 to 6 before the Ld. Trial Court. The facts in brief as averred in the plaint are that respondent No. 1/plaintiff claimed himself to be the owner/allottee of property bearing No. 21/296, Trilokpuri, Delhi (hereinafter referred to as the suit property), which is built up to second floor and having half portion covered with tinshed on the third floor, constructed by him with his own funds. Appellant/defendant No. 1 is the daughterinlaw of respondent No. 1/plaintiff and wife of his son i.e. respondent No. 6/defendant No. 6.
Respondents/defendants No. 25 are the parents and brothers of the appellant/defendant No. 1. The marriage between the appellant and respondent No. 6 was performed in February 2003 and they were permitted to reside on the first floor of the suit property as permissive users where they resided till May 2013 with the permission of respondent No. 1/plaintiff.
3. It has been alleged by the plaintiff/respondent No. 1 that for RCA No. 361/2016 2 of 15 two years after the marriage, the appellant and respondent No. 6 maintained him and his wife but thereafter started harassing him on one pretext or the other and even stopped providing food and maintenance to them. They misbehaved, quarreled, abused and harassed him when he demanded their share of electricity and water charges and started compelling him to transfer the suit property in the name of the appellant/defendant No. 1 who also threatened to implicate the entire family of respondent No. 1/plaintiff in false criminal cases.
4. Respondent No. 1/plaintiff further submitted that being fed up of the day to day clashes, he separated the appellant/defendant No. 1 and respondent/defendant No. 6 from the joint family and from the common mess but nothing changed and hence in May 2013, he disinherited respondent/defendant No. 6 as well as the appellant. Accordingly, they both vacated the first floor and started residing in a separated rented premises but put their lock over the first floor of the suit property. It has further been alleged that the appellant/defendant No. 1 regularly visited the suit property at the behest of the other respondents to pressurize respondent No. 1/plaintiff to transfer the suit property in her name and thereafter, she lodged various complaints against him and his family members before various forums. It was claimed by respondent No.1/plaintiff that after the termination of the permissive user and revocation of the license, the appellant/defendant No. 1 and respondent/defendant No. 6 are illegally occupying first floor of the suit property. It is further alleged that they are doing so at the behest of respondents No. 25 and hence a decree for permanent injunction was prayed against all the defendants for restraining them from forcibly RCA No. 361/2016 3 of 15 dispossessing respondent No. 1/plaintiff from the suit property and also from restraining them to forcibly enter into it and not to create any nuisance in the peaceful user of the suit property by him. Similarly, a decree for mandatory injunction was also sought against the appellant/defendant No. 1 and respondent/defendant No. 6, to hand over the vacant peaceful possession of the suit property.
5. All the defendants in the suit contested it. A common written statement was filed on behalf of defendant No. 1 to 5 (appellant and respondents No. 25 herein). Respondent/defendant No. 6 filed a separate written statement. The appellant/defendant No. 1 and respondents No. 2 to 5 denied all the allegations and took a plea that the suit was filed for mandatory injunction though possession was claimed and hence, it was not maintainable. It was further pleaded that the suit property was alloted to respondent No. 1/plaintiff by the DDA and as per law, all the members of the family are owners of the property since they all were removed from the jhuggi and had shifted to the suit property. However, since respondent No. 1/plaintiff was the eldest/karta of the family, therefore, his name was mentioned in the records of DDA and as such , he is not the exclusive owner of the suit property.
6. The said defendants/respondents also took a plea that the suit property is the matrimonial home of the appellant/defendant No. 1 and as such she has every right to reside therein . It was also pleaded that defendant/respondents No. 25 were unnecessarily impleaded in the suit being the parents and brothers of the appellant. It was however, admitted that appellant/defendant No. 1 has filed complaint before the CAW Cell and another, which is pending before the Ld. MM and has also lodged an RCA No. 361/2016 4 of 15 FIR bearing No. 295/2013.
7. Respondent/Defendant No. 6 in his written statement admitted the ownership of the suit property to be that of respondent No.1/plaintiff and further admitted that he had severed ties with him in 2013 and since then he is residing separately in a rented accommodation . He also admitted that he resided in the suit property as a permissive user/licensee of respondent No. 1/plaintiff and that when the suit property was alloted to respondent No. 1/plaintiff, he was not even born . He further stated that his wife/appellant/defendant No. 1 had also filed a complaint under Section 12 of the Domestic Violence Act and a petition under Section 125 Cr. PC against him apart from other cases, as admitted by her in her written statement.
8. Replication was filed by the respondent No. 1/plaintiff to the written statements of the said defendants.
9. Thereafter, an application was filed by respondent No. 1/plaintiff under Order 12 Rule 6 CPC and the appellant/defendant No. 1 as well as respondents No. 25 also filed an application under Order 7 Rule 11 CPC. The Ld. Trial Court vide the impugned order, dismissed the application under Order 7 Rule 11 CPC and allowed the application under Order 12 Rule 6 CPC, decreeing the suit in favour of respondent No. 1/plaintiff and granted the decree of mandatory injunction , directing the appellant/defendant No. 1 and respondent/defendant No. 6 to vacate and hand over the possession of the suit property to respondent No.1/plaintiff, within two months of the decree.
10. After the passing of the said decree, respondent No.1/plaintiff withdrew the relief of permanent injunction against all the defendants in RCA No. 361/2016 5 of 15 the suit vide his statement dt. 08.10.2016 and as such , the suit was finally decreed and disposed of on 08.10.2016 itself.
11. I have heard Shri Sanjay Goel and Shri Praveen Kumar Ld. Counsels for the appellant, Shri P. Ojha with Shri Suresh Kumar - Ld. Counsels for the respondents and have also gone through the Trial Court Record.
12. The appellant has challenged only the part of the impugned order of the Ld. Trial Court vide which the application of the plaintiff/respondent No. 1 under Order 12 Rule 6 CPC was allowed. It has been challenged on various grounds but the main contention is only twofold, i.e. that she never admitted respondent No. 1 to be the absolute owner of the suit property and secondly, that she has every right to reside in the suit property which is her matrimonial home.
13. It was also argued by Ld. Counsel for the appellant that the suit before the Ld. Trial Court was not maintainable since the plaintiff/respondent No. 1 had sought possession in the garb of mandatory injunction and had not paid proper court fees. In my opinion , this position is well settled. Even the Ld. Trial Court had taken care of this aspect and placed reliance upon the judgment in Ajab Singh Vs. Shital Puri AIR 1993 Allahabad 138, Jagdish Vs. Brijlal (2007) 145 PLR 398 and Puran Mal Modi Vs. Rajasthan Investors Pvt. Ltd. 2005 (1) RCR (Rent) 496 (Raj.), wherein it was held by the Courts that a licensor can seek possession of the suit property by a suit for mandatory injunction , after revoking the license.
14. The Ld. Trial Court also relied upon the judgment in Ramesh Kumar Handoo & anr. Vs. Binay Kumar Basu (RSA No. 286/2007 dt.
RCA No. 361/2016 6 of 15 19.11.2007 passed by Hon'ble Mr. Justice Pradeep Nadrajog). In that case as well, the plaintiff in the suit was a perpetual lessee of the suit land on which the building was constructed and the defendants were his daughter and soninlaw. He had filed a suit for mandatory injunction seeking directions against the defendants to vacate the suit property. The Trial Court decreed the suit granting mandatory injunction in favour of the plaintiff and directing the defendants to vacate the suit property. The order was upheld in the first appeal. In the second appeal, the Hon'ble High Court concurred with the decision of the first appellate Court who had relied upon the judgment of the Hon'ble Apex Court in Joseph Severance & ors. Vs. Benny Mathew & ors. JT 2005 (8) SC 509, wherein it was held that "A suit for mandatory injunction alleging continued occupation by a licensee after license was revoked, was held to be maintainable". The Hon'ble High Court reiterated that "A suit for mandatory injunction against a licensee would be maintainable". However, the observations made in the said judgment by the Hon'ble High Court are relevant for the present appeal which are as under :
"A child resides in the house of his parents under permissive possession and not strictly as a licensee".
It was also held that "No rights akin to the rights of a licensee are available to the child".
15. The Court also observed on the strength of the said judgment of the Hon'ble Apex Court that as licensee becomes trespasser in the suit property after termination of his license only after a reasonable time is given to him to vacate the suit property, which expires but then left the concept of reasonable time on the facts of each individual case.
16. Thus, it leaves no doubt in the mind of this Court that the suit RCA No. 361/2016 7 of 15 for mandatory injunction was maintainable for evicting the defendants No. 1 and 6 in the suit, considering the relationship between them i.e. defendant No. 6 being his son and defendant No. 1 - his daughterinlaw, i.e. wife of defendant No. 6.
17. It was further argued by Ld. Counsel for the appellant that the appellants and answering respondents No. 2 to 5 have never admitted any fact in their written statement and had rather denied the plaintiff/respondent No. 1 to be the owner of the suit property. It has been claimed that the DDA had alloted the land to all the members of the family but the name of respondent No. 1/plaintiff was mentioned in the court records being the 'karta'. The Ld. Counsel relied upon the judgment in M/S Jeewan Diesels & Electrical Limited Vs. M/S Jasbir Singh Chadha (HUF) & anr. (2010) 6 SCC 601. The Hon'ble Apex Court while referring to various precedents held that in order to pass a judgment on admissions by the defendant, such admissions should be clear and unambiguous. However, it was also observed by the Hon'ble Court in para 13 as under :
"13. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question , mainly, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent".
Hence, the facts of each and every case and the pleadings of the parties have to be analyzed by the Court to arrive at a decision whether there is any clear and unambiguous admission or not.
18. There are sometimes pleadings which are cleverly drafted so as to camouflage the admissions and sometimes the pleadings/denials can be contrary to law and therefore, the Courts are not bound to accept the same and reject the application under Order 12 Rule 6 CPC.
RCA No. 361/2016 8 of 15
19. Order 8 Rule 2 of the CPC lays down that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation , release, payment, performance, or facts showing to illegality.
20. Similarly, Rule 3 to Rule 5 of Order 8 require that denial should be specific and should not be evasive. Hence, the Court can look into the merits of denial of a fact and the grounds on which such denial has been made. If such denials are mere formal and the reasons for the denial are against the settled principles of law, they can be outrightly rejected since the purpose of Order 12 Rule 6 CPC is to provide expeditious relief to the plaintiff and to enable him to obtain speedy judgment.
21. In the instant case, the appellant and respondents No. 25 denied that respondent No. 1/plaintiff is the owner of the suit property. They have claimed that it was alloted by the DDA to all the members of the family. It has been admitted by the appellant and said respondents that the property stands recorded in the name of respondent No. 1/plaintiff in the records of the DDA but only because he was the 'karta' of the family. The date of allotment of the suit land on which construction was made, has not been denied. Similarly, though it was denied that the plaintiff/respondent No. 1 raised construction upon it from his own funds but it has not been stated that in the alternative who raised the construction nor it has been claimed that any of the defendants to the suit contributed towards the said construction .
RCA No. 361/2016 9 of 15
22. As per the documents filed by respondent No. 1/plaintiff which have not been disputed, the land beneath the suit property was alloted to respondent No. 1/plaintiff in the year 1976. It has been pleaded by respondent/defendant No. 6 that he was not even born by that time. Hence, there is no question of the property being alloted to him since he was not even the member of the family at that time and no one could have apprehended about his birth at the time of the allotment, what to say of his marriage with the appellant and therefore, there is no question or the allotment having been made in favour of the existing members of the family of respondent No. 1/plaintiff. The appellant has further failed to show any law, though pleaded that the suit was barred in law.
23. As already observed, the appellant in the plaint before the Ld. Trial Court had not denied that the construction was raised by the respondent No. 1/plaintiff but in the appeal raised a new ground that he raised the construction from the joint family funds, without giving details of any such funds. Thus, the denial by the appellant and respondents No. 2 to 5 in respect of the ownership of the suit property in favour of respondent No. 1/plaintiff is not only evasive, farce, contrary to law but also only for the sake of denial and without any substance which cannot be accepted by any Court of law and therefore, is no denial in the eyes of law. It would only mean that there was a tacit admission of the said facts of ownership and construction on part of the appellant and respondent No. 2 to 5. Respondent No. 6 has already made clear admissions in this regard. Hence, I do not agree with the contention of Ld. Counsel for the appellant that there were no admissions on part of the appellant and respondents No. 2 to 5 and therefore, hold that the application under Order 12 Rule 6 CPC RCA No. 361/2016 10 of 15 was maintainable.
24. The other ground on which the present appeal has been filed and which was agitated before the Ld. Trial Court as well as in this appeal is that the suit property is the matrimonial home of the appellant and as such she has every right to reside therein . The Ld. Trial Court discarded this plea while relying on various pronouncements, such as Errington Vs. Errington and Woods (1952) 1 KB 290, wherein it was held that a daughterinlaw in the house of his fatherinlaw is merely a licensee in respect of said premises and nothing else. The Court further relied upon the judgment in Smt. Shumita Didi Sandhu Vs. Mr. Sanjay Singh Sandhu & ors. 2007 (2) FJCC 236, wherein it was held that a daughter inlaw has no legal right to stay in the house which belongs to her parentsinlaw. Only the husband has the legal and moral obligation to provide residence to his wife. Therefore, a wife can claim right of residence only against her husband and not her parentsinlaw. This principle was followed in Master Ryan through his mother Mrs. Ridhima Juneja Vs. PN Juneja & sons (HUF) 2009 (163) DLT 144.
25. Thus, it is clear that a daughterinlaw cannot claim a legal right of residence in the property owned by her parentsinlaw. It was further argued that she has a right in the suit property, being a shared household under Section 17(1) of the Domestic Violence Act. Even that provision has been clarified by the Hon'ble Apex Court in SR Batra & anr. Vs. Taruna Batra (2007) SCC 169, wherein it was held as under :
"As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the RCA No. 361/2016 11 of 15 house which belongs to their joint family of which the husband is a member".
26. This view has been followed in a catena of judgments of our own High Court, such as, Barun Kumar Nahar Vs. Parul Nahar http://indiankanoon .org/doc/163730213/; Prem Prakash Dabral Vs. Smt. Shikha Dabral & anr. (RSA 190 of 2011 dt. 22.1.2014); and Sudha Mishra Vs. Surya Chand Mishra (RFA No. 299 of 2014 dt. 25.7.2014). In all these cases, it was held that if the property in question is not a shared household, the wife/daughterinlaw has no legal right to stay in the same.
27. Ld. Counsel for the appellant placed heavy reliance on a judgment in Navneet Arora Vs. Surender Kaur & ors. 213 (2014) DLT 611 DB . However, the facts of the said case were different and would not apply to the facts of the instant case. The daughterinlaw claiming right of residence in the said case was a widow but was residing with her deceased husband in the house of her inlaws till the time of his death and even till the date of decision, in a joint family. Hence, in such circumstances, the right of residence was granted to her.
28. A close reading of the said judgment would show that it is also of no help to the appellant. The Hon'ble Court after referring to dictionary meaning of "joint family" and "household" distinguished the judgment in SR Batra's case (supra) on the ground that in the said judgment, it was observed that the daughterinlaw Taruna Batra had shifted to the residence of her parents owing to matrimonial dispute with her husband and was thus, no longer in possession of the said suit portion of the suit property and therefore, the question of protecting her possession would not arise, whereas in the said case, the daughterinlaw continued RCA No. 361/2016 12 of 15 residing in the matrimonial home even after the death of her husband and shared a common mess.
29. In the instant case, the appellant and respondents No. 2 to 5 have admitted that the appellant along with respondent No. 6 have shifted to a rented home in May 2013. Respondent No. 6 has clearly admitted this fact. It has been pleaded by the appellant in her written statement before the Ld. Trial Court that :
"It is further submitted that on 01.6.2015 when the defendant No. 1 came to her matrimonial home/suit property from her rental home, she found the plaintiff and his wife has locked the room of defendant No. 1 by putting the second lock upon the lock of defendant No. 1.......".
30. On one hand, she had not even remotely denied the fact asserted by the plaintiff in the corresponding para 12 of the plaint that in May 2013, upon a consensus and after he disinherited respondent No. 6, he along with the appellant vacated the first floor and shifted to a rented house. On the other hand, the above pleading clearly show that she had admitted of her shifting to a rented house with respondent No. 6. It also shows that for two years, i.e. from May 2013 to 01.6.2015, she never visited the suit property and therefore, the suit property ceased to be a shared household of the appellant/defendant No. 1. It was never a joint family property of which her husband was a member.
31. Similarly, it was pleaded by the plaintiff in para 10 of the plaint that he separated defendants No. 6 and 1 from the joint family with the separation of kitchen in order to maintain dignity and honour of the family in the society, at first floor. In the corresponding para in the written statement, the appellant simply denied these facts but never insisted that she and respondent No. 6 continued to share the common mess with RCA No. 361/2016 13 of 15 respondent No. 1.
32. It is, thus, clear that in May 2013, appellant and respondent No. 6 separated from the suit property and started residing separately in a rented house after respondent No. 1/plaintiff disinherited them and therefore, as per the judgment in SR Batra's case (supra) or even as per the case of Navneet Arora (supra), the suit property ceased to be a shared household of the appellant. Hence, the appellant cannot claim any right in the suit property only because she went there, after marriage. It has already been held in various judgment and observed herein above, that the matrimonial home of a lady is where her husband resides and not where her parentsinlaw reside. Admittedly, the husband of the appellant, i.e. respondent No. 6 is still residing separately in a rented house and for all purposes, that would be her matrimonial home where she can claim the right of residence. Thus, the Ld. Trial Court arrived at a right conclusion in granting mandatory injunction in favour of respondent No. 1/plaintiff and against the appellant/defendant No. 1 as well as respondent/defendant No.
6.
33. It was also argued that the suit before the Ld. Trial Court was collusive between respondent No. 1 and respondent No. 6 and also that respondent No. 6 was not a necessary party since he was already residing separately at the time of filing of the suit. The suit was filed on 13.7.2015 whereas respondent No. 6 had already separated in May 2013. He himself is facing various litigations filed by the appellant and therefore, there is no question of any collusiveness in the filing of the suit. It is also to be pointed out that respondent No. 1/plaintiff has specifically alleged in his plaint that the appellant had been visiting the suit property on the RCA No. 361/2016 14 of 15 instigation of respondent No. 6 for asking for partition and their share in the suit property. It has also been pleaded by respondent No. 1/plaintiff that though the appellant and respondent No. 6 had vacated the first floor and took all their belongings in May 2013, but put their lock upon it and thus, did not hand over the vacant possession . In such circumstances, respondent No. 6 was a necessary party to the suit.
34. In view of the above discussion, I am of the opinion that the ld. Trial Court had rightly allowed the application of respondent No. 1/plaintiff under Order 12 Rule 6 CPC and had decreed the suit for mandatory injunction in his favour directing the appellant and respondent No. 6 to vacate the suit property within two months. It is an admitted fact that respondent No. 6 has been residing in a rented accommodation ever since May 2013, where the appellant had also initially shifted and therefore, the period of two months was sufficient for vacating the suit property. Hence, I find no infirmity, illegality and incorrectness in the impugned order of the Ld. Trial Court dt. 04.10.2016 which is hereby affirmed. Consequently, the appeal stands dismissed with no order as to cost. The order dt. 28.3.2018 staying the execution before the Ld. Trial Court stands vacated.
Trial Court Record be returned to the Ld. Trial Court along with a copy of this order. Appeal file be consigned to Record Room.
ANNOUNCED IN OPEN COURT Digitally signed by
ON the 8th day of June 2018 SANJAY SANJAY SHARMA
Location: Delhi
SHARMA Date: 2018.06.08
15:17:35 +0530
(SANJAY SHARMAI)
Addl. District Judge02 (East)
Karkardooma Courts, Delhi
RCA No. 361/2016 15 of 15