Delhi District Court
Sh. Swaran Singh vs Sh. Jagdish on 19 January, 2018
IN THE COURT OF JSCCASCJGJ, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 6315/2016
Sh. Swaran Singh
S/o Late Sh. Samliya Ram,
R/o 26/397398, Trilokpuri,
J.J. Colony, Delhi110091. ... Plaintiff
Versus
1. Sh. Jagdish
S/o Sh. Swarn Singh
2. Smt. Meena
W/o Sh. Jagdish
Both R/o H.No.26/398, Ground Floor,
Trilokpuri, J.J. Colony, Delhi110091.
3. Sh. Rajpal
S/o Sh. Swarn Singh,
4. Smt. Beena @ Guddo
W/o Sh. Rajpal,
Both R/o H.No.26/398, First Floor,
Trilokpuri, J.J. Colony, Delhi110091. ... Defendants
SUIT FOR MANDATORY INJUNCTION AND
RECOVERY OF DAMAGES
DATE OF INSTITUTION : 18.12.2015
DATE OF FINAL ARGUMENTS : 28.11.2017
DATE OF DECISION : 19.01.2018
JUDGMENT
1. The plaintiff has filed the present suit against the defendants seeking reliefs of mandatory injunctions and recovery of damages. The exact prayer made by the plaintiff, in the plaint, is reproduced below: Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 1 of 15"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass:
(a) A decree of Mandatory injunction in respect of portion occupied by Defendant No.1 and Defendant No.2 i.e. Ground floor of property bearing No.26/398, Ground Floor, (area 25 Sq. yds.) Trilokpuri, Delhi 110091 and on 2nd floor(total area 25 Sq. yds. Plus 25 Sq. yds.=50 Sq. yds.) (built jointly by covering roof of both the adjacent properties) i.e. property bearing No.26/397 & 398, Trilokpuri, Delhi110091 as shown in the RED COLOUR in the site plan attached with the plaint in favour of the Plaintiff and against the Defendant No.3 and 4 thereby directing them, their family members, agents, associates, legal heirs etc. to handover the vacant and peaceful physical possession of the above said portions occupied by the Defendant No.1 and Defendant No.2 to the Plaintiff and remove their household articles from the suit premises;
(b) A decree of Mandatory injunction in respect of portion occupied by Defendant No.3 and Defendant No.4 i.e. first floor of property No.26/398, Trilokpuri, Delhi110091 as shown in the GREEN COLOR in the site plan attached with the plaint in favour of the Plaintiff and against the Defendant No.3 and 4 thereby directing them, their family members, Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 2 of 15agents, associates, legal heirs etc. to handover the vacant and peaceful physical possession of the above said portions occupied by the Defendants No.3 and Defendant No.4 to the Plaintiff and remove their household articles from the suit premises;
(c) Pass a decree of recovery of damages for the use and occupation of the above said premises @ Rs.30,000/ per month against the Defendants No.1 and Defendants No.2 and pass a recovery of damages for the use and occupation of the said premises against the Defendant No.3 and 4 @ Rs.10,000/ per month w.e.f. 02.12.2015 till the date of vacation and delivery of the actual vacant peaceful possession of the suit premises to the Plaintiff. The Plaintiff undertakes to pay the requisite court fees on the said amount as and when so directed by the Hon'ble court.
(d) The cost of the suit pay also be awarded in favour of the Plaintiff and against the Defendants;
(e) Pass any other or further relief(s) which this Hon'ble Court deems fit and proper, in the interest of justice may also kindly be awarded in favour of the Plaintiff and against the Defendants."
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint that the plaintiff is the absolute Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 3 of 15owner of property built upon 26/397 and 26/398, Trilokpuri, Delhi110091 (henceforth 'suit property'); that the defendants no.1 and 3 are the sons of the plaintiff; that the defendants no.2 and 4 are the daughters in law of the plaintiff; that the defendants no.1 and 2 reside at the ground floor and second floor of the suit property, as licensees of the plaintiff; that the area of the suit property, in possession of the defendants no.1 and 2 has been shown in red colour in the site plan filed along with the plaint; that the defendants no.3 and 4 reside at the first floor of the suit property, as licensees of the plaintiff; that the area of the suit property, in possession of the defendants no.3 and 4 has been shown in green colour in the site plan filed along with the plaint; that the defendants no.1 and 3 are employees of EDMC earning handsome salaries; that the defendants harass and abuse the plaintiff; that on account of misconduct of the defendants, the plaintiff had disowned the defendants from inheriting all his movable and immovable properties by publication of notice in the newspaper 'Maha Medha' on 07.06.2014 and sent an intimation thereof to the SHO PS Mayur Vihar; that on account of misconduct of the defendants, the plaintiff had also served legal notice dated 16.11.2015 upon the defendants, terminating the license of the defendants to reside at the suit property and calling upon the defendants to vacate the suit property; that pursuant to service of legal notice dated 16.11.2015, the defendants have no right to reside at the suit property and that as such, the plaintiff is entitled to the reliefs of mandatory injunctions and recovery of damages, as prayed for.
3. Upon service of summons for settlement of issues of this suit, only the defendants no.1, 2 and 4 have contested this suit by filing Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 4 of 15separate written statements.1 In the joint written statement of the defendants no.1 and 2 and in the written statement of the defendant no.4, it is interalia pleaded that the plaintiff has filed the present suit as a counter blast to the complaint of molestation made by Ms. Sonia, daughter of the defendant no.3, against the plaintiff; that the plaintiff is not the owner of the suit property as it was allotted by the DDA under Jhuggi Jhopri Removal Scheme in 1976, on license basis; that the plaintiff has intentionally and deliberately not made the Delhi Urban Shelter Improvement Board (henceforth 'DUSIB'), the government department entitled to deal with the suit property, a party to this suit; that the plaintiff has concealed from this Court that Sh. Sandeep and Smt. Bharti, son and daughter in law of the defendants no.1 and 2 are residing on the second floor of the suit property; that all the expenses of construction of the suit property were borne by the defendants no.1 to 4 and the son and daughter in law of the defendants no.1 and 2; that the defendants no.1, 2 and 4 are not the licensees of the plaintiff qua the suit property; that the defendants no.1, 2 and 4 have never harassed or abused the plaintiff and that as such, the plaintiff is not entitled to the reliefs of mandatory injunctions and recovery of damages, as prayed for.
4. In the replication qua the written statements of the defendants no.1 and 2, the plaintiff has denied the contents of the said written statement and reiterated and reaffirmed the contents of the plaint. In respect of the written statement of the defendant no.4, the plaintiff has not to filed any replication.
1 Despite grant of opportunity, the defendant no.3 has not filed any written statement.
Civil Suit No. 6315/2016 Page No. 5 of 155. On the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 20.09.2016: "1. Whether the plaintiff is entitled for the relief of Mandatory injunction as prayed in prayer clause (a) and (b) ? OPP
2. Whether the plaintiff is entitled for the damages / mesne profits ? If yes, at what rate and for what period ? OPP
3. Whether the plaintiff is neither the owner of the suit property nor the allottee of the same by DDA ?
OPD
4. Relief, if any."
6. During trial conducted before the Ld. Predecessor Judges, two witnesses viz. PW1 Sh. Swaran Singh and PW2 Sh. Virender Kumar were examined in support of the case of the plaintiff and two witnesses viz. DW1 Sh. Jagdish and DW2 Sh. Virender Kumar 1 were examined in support of the case of the defendants no.1 and 2. Despite grant of opportunity, the defendant no.4 had not lead any evidence. The testimonies of PW1 Sh. Swaran Singh and PW2 Sh. Virender Kumar, DW1 Sh. Jagdish and DW2 Sh. Virender Kumar are not being discussed, at this stage of this judgment, for the sake of brevity.
7. I had heard Sh. Jitender Kumar Khullar, Ld. Advocate for the plaintiff and Sh. Pritam Singh, proxy Advocate for the defendants no.1 and 1 The same person, Sh. Virender Kumar was examined as a witness by both the parties.
Civil Suit No. 6315/2016 Page No. 6 of 152 on 28.11.2017. The issue wise findings, in this case are as follows:
ISSUE NO.3
8. In respect of issue no.3, the case of the plaintiff is that he is the owner of the suit property because he had purchased the suit property from Smt. Krishna Devi vide GPA, agreement to sell, Will etc. dated 14.03.1997. Per contra, the case of the defendants is that the plaintiff is not the owner of the suit property because the suit property was allotted by DDA under Jhuggi Jhopri Removal Scheme in 1976 and the allottee thereof had no authority to transfer the suit property to any other person, including the plaintiff and because all the expenses of the construction of the suit property were borne by the defendants.
9. In my view, the finding qua this issue can be given by referring to the testimony of Sh. Virender Kumar, who was examined as PW2 Sh.
Virender Kumar, on behalf of the plaintiff and as DW2 Sh. Virender Kumar, on behalf of the defendants no.1 and 2, by referring to the law laid down in the judgment of the Hon'ble High Court of Delhi in Wazirpur Bartan Nirmata Sangh v Union of India & Ors., 103 (2003) DLT 654 and by referring to the Order no. F.234(7)/UD/BSUP/2012/1727017281 dated 20.06.2013, issued by the Project Officer, Department of Urban Development, Government of NCT of Delhi.1
10. From the testimony of Sh. Virender Kumar, who was examined as PW2 Sh. Virender Kumar, on behalf of the plaintiff and as DW2 Sh.
1 A copy of the said Order has been placed on the judicial file.
Civil Suit No. 6315/2016 Page No. 7 of 15Virender Kumar, on behalf of the defendants no.1 and 2, it is clear that the land underlying the suit property was allotted by the JJ Cell of DDA in 1976 to Sh. Bhim Singh and Smt. Meena vide possession slip no.897, Ex.DW2/A (OSR) and possession slip no.898, Ex.DW2/B (OSR) respectively. In Wazirpur Bartan Nirmata Sangh v Union of India & Ors., 103 (2003) DLT 654, the Hon'ble High Court of Delhi has held that the properties which were allotted by DDA under Jhuggi Jhopri Removal Schemes/ReSettlement Schemes are non transferable by the allottees, because the allottees are only licensees qua such properties. In Order no. F. 234(7)/UD/BSUP/2012/1727017281 dated 20.06.2013, issued by Project Officer, Department of Urban Development, Government of NCT of Delhi, a scheme has been enunciated for the allottees of properties in 45 JJ Resettlement Colonies including Trilok Puri, for getting their properties freehold.
11. Since, the land underlying the suit property belongs to DDA, since Sh. Bhim Singh and Smt. Meena, the original allottees of the land underlying the suit property had no authority to transfer the said land to any person including the plaintiff and since, after obtaining possession of the suit property vide title documents, Ex.PW1/A (colly) (OSR), the plaintiff has not got the suit property converted into a freehold property as per Order no. F. 234(7)/UD/BSUP/2012/1727017281 dated 20.06.2013, issued by Project Officer, Department of Urban Development, Government of NCT of Delhi, the plaintiff cannot be held to be the owner of the suit property. Thus, the issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff is not the owner of the suit Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 8 of 15property.1 ISSUE NO.1
12. In respect of issue no.1, the case of the plaintiff is that the plaintiff is the owner of the suit property; that by serving legal notice dated 16.11.2015 upon the defendants, the plaintiff had terminated the license of the defendants no.1 and 2 to reside at the ground floor and second floor of the suit property and the license of the defendants no.3 and 4 to reside at the first floor of the suit property and that upon termination of the license of the defendants to reside at the suit property, the defendants have no right to reside at the suit property. Per contra, the case of the defendants is that the plaintiff is not the owner of the suit property; that the defendants had never received the legal notice dated 16.11.2015 and that since, the defendants had borne all the expenses of construction of the suit property, the defendants cannot be directed to vacate the suit property, at the instance of the plaintiff.
13. In my view, the finding qua this issue can be given without any elaborate reference to the evidence lead by the parties. In respect of the plea of the defendants that since the plaintiff is not the owner of the suit property, the defendants cannot be directed to vacate the suit property, at the instance of the plaintiff, I find that the said plea is untenable because as per the law laid down in Sachin and Anr. v Jhabbu Lal and Anr., AIR 2017 Delhi 1, in order to succeed in this suit, the plaintiff was only required 1 No finding is required to be given qua the status of the plaintiff as an allottee of DDA in respect of suit property because no party to this suit has claimed that the plaintiff is an allottee of DDA in respect of the suit property.
Civil Suit No. 6315/2016 Page No. 9 of 15to prove that in contrast to the defendants, the plaintiff has superior rights qua the suit property and the plaintiff has done so, by proving 1 the title documents, Ex.PW1/A(Colly) (OSR), existing in his favour.
14. In respect of the plea of the defendants that they had never received the legal notice dated 16.11.2015, Ex.PW1/E(OSR) and therefore, their license to reside at the suit property was never terminated, I find that the said plea is untenable because the postal receipts, Ex.PW1/F(Colly) have not been challenged by the defendants and because the defendants have not led any credible evidence to rebut the presumptions provided Section 114, Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897. In regard to this finding, reference is craved to the law down in Sukumar Guha v Naresh Chandra Ghosh and Anr., AIR 1968 Cal 49, Ganga Ram, v Phulwati, AIR 1970 Allahabad 446 and Om Parkash Bahal, v A. K. Shroff, AIR 1973 Del
79. In all the said judgments, the Superior Courts have observed that mere denial of receipt of documents sent by way of post, does not amount to rebuttal of the presumptions provided under Section 114, Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897. Further, I find that the said plea of the defendants is untenable because even if it is believed that the defendants had not received the legal notice dated 16.11.2015, Ex.PW1/E(OSR), the license of the defendants to reside at the suit property definitely stands revoked, since the date, when the defendants had received the summons for settlement of issues of this suit. In regard to the said finding, reference is craved to Section 61 of the 1 In this regard, it is noteworthy that neither in the their written statements nor during trial, the defendants have disputed the execution of title documents, Ex.PW1/A (Colly)(OSR), in favor of the plaintiff.
Civil Suit No. 6315/2016 Page No. 10 of 15Easements Act, 1882, wherein is stated that revocation of a license can be express or implied.
15. In respect of the plea of the defendants that since, they had borne all the expenses of construction of the suit property, they cannot be directed to vacate the suit property, at the instance of the plaintiff, I find that the said plea is untenable because in support of the said plea, the defendants have not filed any documentary evidence viz. construction bills etc.1, because in their written statement and by way of the testimony of DW1 Sh. Jagdish, the defendants have not explained which part of the suit property was built from the funds of each of the defendants and because even if it is believed that the defendants had borne the expenses of construction of the suit property, the said bearing of expenses by the defendants does not give any right to the defendants to reside at the suit property, against the wishes of the plaintiff. In regard to the latter reason, reference is craved to the law laid down in Virender Kumar & Anr. v Jaswant Rai & Anr., RSA No.46/2011 decided by the Hon'ble High Court of Delhi on 10.03.2011, 2011 SCC OnLine Del 1258. In the said judgment, it has been observed by the Hon'ble High Court of Delhi that since a child lives in the house of his parents, as a permissive user, any construction of part of the property done by the child does not confer any right upon the child to continue to reside at the property, without the consent of the parents.1 1 The defendants have also not disclosed the source of their funds, which were allegedly applied in the construction of the suit property.
2 The said principle was initially laid down in the judgment of the Hon'ble high Court of Delhi in Ramesh Kumar Handoo v Binay Kumar Basu, RSA No.286/07, decided on 19.11.2017.
Civil Suit No. 6315/2016 Page No. 11 of 1516. Since, the title documents, Ex.PW1/A(Colly) (OSR) prove that in contrast to the defendants, the plaintiff has better title qua the suit property and since, all the pleas of the defendants qua denial of the relief of mandatory injunction to the plaintiff have been found to be untenable, the issue is decided in favour of the plaintiff and against the defendants. It is held that the plaintiff is entitled to a mandatory injunction to the effect that the defendants no.1 and 2 be directed to handover the vacant possession of ground floor and second floor of the suit property, as shown in red colour in the site plan, Ex.PW1/B, to the plaintiff and the defendants no.3 and 4 be directed to handover the vacant possession of the first floor of the suit property, as shown in green colour in the site plan, Ex.PW1/B, to the plaintiff.
ISSUES NO.2
17. In respect of issues no.2, the case of the plaintiff is that the plaintiff is entitled to recover damages at the rate of Rs.30,000/ per month, from the defendants no.1 and 2 and damages at the rate of Rs.10,000/ per month from the defendants no.3 and 4 w.e.f. 02.12.2015, because the plaintiff had duly revoked the license of the defendants to stay in the areas of the suit property, in their respective possession, by serving legal notice dated 16.11.2015 upon the defendants. Per contra, the case of the defendants no.1, 2 and 4 is that they are not liable to pay any damages to the plaintiff.
18. In respect of this issue, none of the parties have lead any credible ocular or documentary evidence. During his testimony, the plaintiff Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 12 of 15viz. PW1 Sh. Swaran Singh has nowhere justified the quantum of damages claimed from the defendants. Likewise, during his testimony, the defendant no.1 viz. DW1 Sh. Jagdish has conspicuously not made any deposition regarding the quantum of damages sought by the plaintiff. Therefore, keeping in view the law laid down in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105, the relationship of the parties, the difference in the areas, in the respective possession of the defendants and prevalent market rents qua properties like the suit property, it is held that the plaintiff shall only be entitled to recover damages/mesne profits at the rate of Rs.10,000/ per month from the defendants no.1 and 2 and damages at the rate of Rs.3,330/ per month from the defendants no.3 and 4 w.e.f. 02.12.2015 and till the handing over vacant possession of the ground floor and the second floor of the suit property by the defendants no.1 and 2, to the plaintiff and the handing over vacant possession of the first floor of the suit property by the defendants no.3 and 4, to the plaintiff.
19. In view of the aforesaid finding, the issue no.2 stands decided, in favour of the plaintiff and against the defendants.
RELIEF
20. As a net result of the aforesaid findings, the present suit is decreed in favour of the plaintiff and against the defendants. It is directed that a decree of mandatory injunction and recovery of damages be passed in favour of the plaintiff and against the defendants, directing the defendants no.1 and 2 to handover the vacant possession of ground floor and second floor of property built upon 26/397 and 26/398, Trilokpuri, Civil Suit No. 6315/2016 Swaran Singh v Jagdish & Ors.
Page No. 13 of 15Delhi110091, as shown in red colour in the site plan, Ex.PW1/B, to the plaintiff, directing the defendants no.3 and 4 to handover the vacant possession of the first floor of property built upon 26/397 and 26/398, Trilokpuri, Delhi110091, as shown in green colour in the site plan, Ex.PW1/B, to the plaintiff, directing the defendants no.1 and 2 to jointly and severally pay damages to the plaintiff at the rate of Rs.10,000/ per month, with effect from 02.12.2015, till the handing over of ground floor and second floor of property built upon 26/397 and 26/398, Trilokpuri, Delhi110091, as shown in red colour in the site plan, Ex.PW1/B, by the defendants no.1 and 2 to the plaintiff and directing the defendants no.3 and 4 to jointly and severally pay damages to the plaintiff at the rate of Rs.3,330/ per month, with effect from 02.12.2015 till the handing over of first floor of property built upon 26/397 and 26/398, Trilokpuri, Delhi 110091, as shown in green colour in the site plan, Ex.PW1/B, by the defendants no.3 and 4 to the plaintiff.
21. Before parting of this judgment, it is clarified that the plea of the defendants that Sh. Sandeep and Smt. Bharti, son and daughter in law of the defendants no. 1 and 2 reside at the second floor of the suit property has not been considered in this judgment because it was found to be ex facie meritless. If, the said persons were residing at the second floor of the suit property, they would have certainly appeared as witnesses on behalf of the defendants no. 1 and 2 and resisted this suit. Also, it is clarified that the plea of the defendants that DUSIB is a necessary party to this suit has not been considered in the judgment because it was found to be exfacie meritless, in view of the provisions of DUSIB Act, 2010.
Civil Suit No. 6315/2016 Page No. 14 of 1522. The parties to this suit shall bear their own costs. The Reader shall prepare the decree sheet, as per the aforesaid findings, after supply of additional Court fees by the plaintiff. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Jay Thareja)
today on 19.01.2018 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Civil Suit No. 6315/2016
Swaran Singh v Jagdish & Ors.
Page No. 15 of 15