Delhi District Court
Kusum vs Brahamanand on 29 August, 2023
1
KUSUM VS. BRAHAMANAND
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 03,
SHAHDARA DISTRICT, KKD COURTS, DELHI
Civil Suit No :- 894/2021
Date of Institution: 27.09.2021
Date of Decision : 29.08.2023
Smt. KUSUM
W/O LATE VIR SINGH
R/O H. NO. B-2/266
GALI NO. 23, HARSH VIHAR
DELHI-110093
...............Plaintiff.
V.s.
Sh. BRAHAMANAND
S/O Sh. KHIMMAN
R/O C-1/636, GALI NO. 22
C-BLOCK, HARSH VIHAR,
DELHI-110093
.............Defendant.
SUIT FOR PERMANENT & MANDATORY INJUCTION
AND DAMAGES
Civil Suit No: 894/2021 KUSUM
VS. (Vivek Kumar Agarwal)
BRAHAMANAND CJ03/KKD/Delhi
2
KUSUM VS. BRAHAMANAND
JUDGMENT :-
1. The present suit has been filed by the plaintiff against the defendant seeking the relief of permanent injunction restraining the defendant/his family members/agents/servants/heirs from creating any third party interest in the property bearing no. C-1/636-A, Gali No. 22, C-Block, out of Khasra No. 20, Village Mandoli, Delhi-93, ad measuring 33 sq. yards, comprimising of one room, drawing room, one bathroom and one kitchen at the ground floor and one toilet on the first floor (herein after called as suit property). Again, decree of mandatory injunction has been sought directing the defendant/his family members/ agents/associates etc., to hand over the vacant and peaceful possession of the suit property to plaintiff and a decree for recovery of damages/mense profit @ Rs.15,000/- p.m. for use and occupation of the suit property w.e.f. from October, 2021 till actual vacation of the suit property and any other relief as deemed fit by the court in favor of plaintiff.
Case of Plaintiff :-
2. In brief, the case of the plaintiff is that plaintiff is owner of the suit property and the defendant being real younger brother of the plaintiff was permitted to reside in the suit property as a licensee/permissive user without any license fee. That plaintiff had purchased the suit property from its previous owner vide G.P.A, Deed of will, agreement to sell and payment receipts, affidavit all dated 07.01.2020 and had raised the construction over the suit property from her own funds. That the electricity connection of the suit property is also in the name of the plaintiff. That defendant requested the plaintiff to allow him to stay in the suit property for a period of two months in the first lock down period and defendant also assured to Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 3 KUSUM VS. BRAHAMANAND vacate the suit property within a short period and he was allowed to reside as a permissive user. That when plaintiff requested the defendant to vacate the suit property, the defendant requested for some more time and did not vacate the property. That plaintiff had applied for regularization of the title qua the said suit property before the DDA and at the time of inspection of the suit property by the officers of the DDA, the defendant started quarreling with the plaintiff and her family members and falsely implicated them in a frivolous case vide FIR no. 735/2020, P.S. Harsh Vihar and thereafter, plaintiff also lodged an FIR no.736/2020 P.S. Harsh Vihar. That the license of the defendant was revoked by the plaintiff after registration of the FIR and a legal notice dated 03.03.2021 was also served upon the defendant, but he did not vacate the suit property. That On 22.09.2021, the defendant threatened the plaintiff that he will create third party interest in the suit property and will not vacate the same. That plaintiff is left with no other option than to file the present suit.
WS of Defendant :-
3. Upon summons being issued, defendant appeared through his counsel and filed WS. Preliminary objections were taken stating that plaintiff has not come to the court with clean hands and has concealed material facts and that same is liable to be dismissed being devoid of merits and no cause of action. It is submitted that suit property is a land of Gaon Sabha and same does not belong to the plaintiff, as alleged by her. It is denied that plaintiff is the owner of the suit property. That the ownership documents produced by the plaintiff are forged and fabricated. In reply of merits, all the other averments of plaint are denied. Defendant had stated some additional submissions stating that he along with his family has been living in the Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 4 KUSUM VS. BRAHAMANAND suit property permanently. That he along with his friend namely Sh. Harphool Singh had invested a total sum of Rs. 11,36,666/-on 23.04.2013 regarding purchase of the suit property, but the executant Sh. Deepak Jain executed the documents in favor of defendant and his partner namely Sh. Harphool Singh for property ad- measuring 33 sq yards, which was already constructed upto ground floor and another property ad measuring 37 sq yards which is situated in the Harsh Vihar, Delhi. That the said amount was paid by the defendant in partly in cash and through cheque. That property measuring 37 sq. yards at Harsh Vihar was sold by the plaintiff and his associates namely Sunil Kumar, Sanjay Bansal and Inderjeet out of which Rs. 5,00,000/- were received by the defendant from Amit Kumar and same was handed over to said Sunil Kumar bearing cheque no. 000020 and 000021 both dated 05.12.2019 for Rs. 2,50,000/- each. That prior to this amount of Rs.6,36,666/- was already paid in the said property measuring 36 sq. yards and now the said property was sold by the plaintiff and her other associates namely Sunil and Sanjay Bansal on 04.09.2019 to one Sh. Shiv Kumar but the deal was not finalized and earnest money was returned by the plaintiff and her associates to said person on 04.01.2020. That possession of the suit property was handed over three years back on the pretext of the payment of the money. That the plaintiff and her associates refused to return the amount of Rs. 11,36,666/- and that the said property is in physical possession of the present plaintff and her other partners and they intentionally transferred the property in their names with the intention to commit fraud with the defendant. That the defendant told the plaintiff and her other associates that if they wanted to vacate the said property, they had to return the money of the defendant and her partner, however they were not ready for the same and rather they threatened the defendant on 30.12.2019, 03.01.2020 and 04.01.2020 to sell the property to some other third person. That the photocopy of Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 5 KUSUM VS. BRAHAMANAND the registry of the suit property was in the possession of the defendant and his partner. That the defendant lodged the complaints to Commissioner of police on 06.01.2020, ACP on 06.01.2020 and SHO dated 05.01.2020. Lastly it is prayed that suit may be dismissed with cost.
EXAMINATION OF DEFENDANT UNDER ORDER X CPC:-
4. The defendant was also examined under Order X Rule 1 and 2 CPC on 03.11.2022, in which defendant stated that one Sunil, R/o Maujpur Delhi was the owner of the suit property and that he had allowed the defendant to reside in the suit property since 2017. that he had not paid any rent or licence fee to Sunil and that he had paid Rs.11,36,666/- towards sale consideration of the suit property, as same was purchased by him along with Sunil from one Trivedi in the year 2013.
That documents of the plaintiff were forged.
ISSUES :-
5. In view of pleadings of both the parties and in view of the order dated 03.11.2022, following issues were settled :-
1. Whether the suit property is land of Gaon Sabha or owned by Sunil Kumar along with defendant? (OPD)
2. Whether the plaintiff is the owner of the suit property?(OPP)
3. Whether the defendant is a licensee of the plaintiff?(OPP)
4. Whether plaintiff is entitled to decree of permanent injunction, as prayed for? (OPP) Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 6 KUSUM VS. BRAHAMANAND
5. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? (OPP)
6. Relief.
Plaintiff's Evidence:-
6. To prove her case, plaintiff examined four witnesses in total. She herself appeared in to the witness box as PW1 by tendering her affidavit Ex. PW1/A and also tendered some documents from Ex. PW1/1 to Ex. PW1/16 including Site plan, GPA dated 07.01.2020 executed by Sunil Kumar and Sanjeev Bansal in favor of plaintiff, agreement to sell dated 07.01.2020 executed by Sunil Kumar and Sanjeev Bansal in favour of plaintiff, affidavit dated 07.01.2020 Sunil Kumar and Sanjeev Bansal in favor of plaintiff, receipt dated 07.01.2020, possession letter executed by Sunil Kumar and Sanjeev Bansal in favour of plaintiff dated 07.01.2020, will dated 07.01.2020 executed by Sunil Kumar in favour of plaintiff, Will dated 07.01.2020 executed by in Sanjeev Bansal in favour of plaintiff, GPA dated 23.04.2013 executed by Deepak Jain in favor of Sunil Kumar and Sanjay Bansal, agreement to sell dated 23.04.2013 executed by Deepak Jain in favor of Sunil Kumar and Sanjay Bansal, possession letter dated 23.04.2013 executed by Deepak Jain in favor of Sunil Kumar and Sanjay Bansal, will dated 23.04.2013 executed by Deepak Jain in favor of Sunil Kumar and Sanjay Bansal, affidavit dated 23.04.2013 executed by Deepak Jain in favor of Sunil Kumar and Sanjay Bansal, electricity bill of the suit property and application made by plaintiff in PM UDAY Yojana. Again, two summoned witnesses from concerned Police stations were examined as PW2 and PW3, who proved the FIR no. 736/20, PS Harsh Vihar and Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 7 KUSUM VS. BRAHAMANAND FIR No. 735/20 PS Harsh Vihar as Ex.PW2/A and Ex.PW3/A respectively. The executant of the document in favor of plaintiff namely Sanjay Bansal was examined as PW4. All the witnesses were duly cross examined on behalf of the defendant. Thereafter, PE was closed vide separate statement of plaintiff dated 1.04.2023.
Defendant's Evidence:-
7. To prove his case, defendant examined himself as DW1 by tendering his affidavit as Ex.DW1/A. Again, he also examined two other witnesses namely Harphool Singh and Shiv Kumar as DW2 and DW3 by tendering their affidavit as Ex.DW2/A and DW3/A respectively. All three witnesses were duly cross examined on behalf of plaintiff and thereafter, DE was closed by separate statement of defendant dated 02.06.2023.
8. The contentions raised by the Ld. counsel for plaintiff have been heard. The counsel for defendant failed to advance any oral arguments, however some judgments as well as written submissions have been filed on behalf of defendant. All the said judgments relied upon by counsel for defendant and written submissions and the material available on record in the file has been carefully and minutely perused. My issue wise findings with reasons thereof are as under :-
ISSUE NO. 1 :-
9. The onus to prove this issue was upon the defendant only. In the written arguments, all the submissions have been made with respect to the question on the Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 8 KUSUM VS. BRAHAMANAND ownership of the plaintiff in the suit property and nothing has been submitted with respect to the ownership of the Gaon Sabha or the ownership of the defendant along with one Sunil in the suit property. By going one step further if the evidence led by the defendant is also appreciated it is to observe that defendant has examined three witnesses as DW1 to DW3 and no single document has been placed on record on behalf of the defendant to prove that suit property is owned by the Gaon Sabha or by the defendant along with one Sunil. Interestingly said person namely Sunil himself has not been examined on behalf of the defendant. Again, in his cross examination, defendant has duly admitted that suit property was owned by Sunil Kumar and Sanjay Bansal and that he was not aware of suit property was sold by Sunil Kumar and Sanjay Bansal to the plaintiff. Again, DW2 in his affidavit has stated that defendant and he had invested the total sum of Rs.11,36,666/- and nothing is stated what documents for transfer of ownership were executed in their favor. In his cross examination, he has further admitted that suit property was sold by Sunil Kumar and Sanjay Bansal to the plaintiff. He further stated that he along with defendant had filed a suit for recovery of money against Sunil Kumar and Sanjay Bansal. Again, DW-3 also in his affidavit reiterated the version of DW2, however, in his cross examination, he stated that he had given the earnest money to Sunil Kumar and Sanjay Bansal for purchase of the suit property and that he was refunded the said amount. Accordingly, none of the witnesses examined on behalf of the defendant have proved the case of the defendant regarding his ownership in the suit property in any manner. Even otherwise, the ownership of a property cannot be proved by way of oral evidence and therefore it is concluded that defendant has no right in the suit property. Even if the defendant had invested any money with respect to the suit property with Sunil Kumar and Sanjay Bansal, he has already filed a suit for recovery of money Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 9 KUSUM VS. BRAHAMANAND against them. Accordingly, Issue no.1 is decided against the defendant and in favor of plaintiff.
ISSUE NO.2:-
10. The burden to prove this issues was upon the plaintiff only. It has been argued by ld. Counsel for plaintiff that to discharge her burden the plaintiff has placed on record the document Ex.PW1/2 to Ex.PW1/8, which were executed in her favor by Sunil Kumar and Sanjay Bansal for transfer of the title in the suit property and plaintiff has also placed on record the previous chain of documents executed in favor of Sunil Kumar and Sanjay Bansal by Deepak Jain, i.e. Ex.PW1/9 to Ex.PW1/14. That the execution of documents Ex.PW1/2 to Ex.PW1/8 has been duly proved by one of the executant namely Sanjay Bansal examined as PW4. That the defendant as well as DW4 in their cross examination have not denied the execution of the said documents in favor of plaintiff and rather stated that they were not aware of the same. On the other hand, DW2 has duly admitted that Sunil Kumar and Sanjay Bansal had sold the suit property to the plaintiff. That defendant has also admitted in his cross examination that he had already filed a suit for recovery of money against Sunil Kumar and Sanjay Bansal and therefore, defendant has no right in the suit property in any manner.
11. On the other hand, in the written submission filed on behalf of defendant, ownership of the plaintiff in the suit property has been challenged on the ground that the documents including GPA/SA/Will agreement do not convey title and do not amount to transfer. In this regard reliance is placed upon the landmark judgment of Supreme Court titled as 'Suraj Lamp & Industries Pvt. Ltd. Vs. Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 10 KUSUM VS. BRAHAMANAND State of Haryana & Anr in SLP (c) No. 13917/2009'and also on the judgments of Hon'ble High Court of Delhi titled as 'Asha M. Jain Vs. Canara Bank 94 (2001) DLT, 841; Shri Ghela Ram Vs. Shri Brahm Pal & Ors. RSA No. 90/2006 and Vineeta Khanna & Anr. Vs. Rajeev Gupta & Ors.'
12. It is observed that undoubtedly the title in a property is transferred by execution of registered sale deed as provided under Section 54 of TPA r/w Section 17 (1) of the Registration Act. At the same time judicial notice can be also taken of the fact that there has been a long prevalent practice in Delhi and other adjoining areas that the documents including GPA/SA/Will along with affidavit, possession letter and receipt of money are executed for sale of a property. The effect of these documents for sale was discussed at length by Hon'ble Supreme court in the landmark case of Suraj Lamp (supra) and it was concluded that these documents except in the case of bonafide transaction do not convey any ownership. The scope of said judgment was further discussed by Hon'ble High Court of Delhi and Justice Valmiki Mehta in the case of Shri Ramesh Chand vs Suresh Chand & Anr. on 9 April, 2012 after referring to relevant paras of judgment of Suraj Lamp, observed as follows:-
"A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 11 KUSUM VS. BRAHAMANAND unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."
It was further observed as:-
" There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:-
"Section 202. Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest Illustrations
(a) A gives authority to B to sell A‟s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 12 KUSUM VS. BRAHAMANAND of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney."
The facts of the said case were similar to the present case, wherein the plaintiff had sought mandatory injunction against the defendants for possession along with mesne profits on the basis of the documents including GPA/SA/Will along with affidavit and receipt. Suit was decreed by the Trial court and the appeal against the said judgment was also dismissed by Hon'ble High Court of Delhi. Again, similar were the facts of the case titled as Vasudha Gupta vs Delhi Development Authority & Ors on 24 September, 2014, wherein Hon'ble High Court of Delhi again distinguished the applicability of the judgment of Suraj Lamp & Industries Pvt.Ltd's case (supra) and it was observed that if the said judgment is taken in proper perspective, it cannot be deemed to have nullified all the genuine transactions which have been entered into between the two parties; that was neither the purpose of law nor of the court. It is further observed that other judgments of Ho'ble High Court of Delhi as relied upon on behalf of the defendant are not applicable in the facts of the present case. As observed in the judgment of Shri Ramesh (supra), the judgment of Asha M.Jain (supra) was already overruled by Hon'ble Supreme Court in case of Suraj Lamp (supra). Again, the judgment of Ghela Ram (supra) is also not applicable in the facts of the present case, as in the facts of the Said case the documents including GPA/SA and receipt were found to be suspicious and again the judgment of Vinita Khanna (supra) pertain to some colloboration agreement and not to the documents in question in the present case.
13. In view of this legal position, let me appreciate the documents relied upon by the plaintiff. The documents Ex.PW1/2 to Ex.PW1/8 include the GPA, Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 13 KUSUM VS. BRAHAMANAND agreement to sell, affidavit, receipt, possession letter and two separate Wills executed by Sunil Kumar and Sanjay Bansal in favor of the plaintiff. The execution of these documents is not specifically denied on behalf of defendant and rather on the contrary, the defendant has clearly admitted the signatures of the executants namely Sunil Kumar and Sanjay Bansal on the documents Ex.PW1/2 to Ex.PW1/8 and interestingly, DW2, who was the alleged partner of the defendant while doing some investment in the suit property, himself admitted that suit property was sold to the plaintiff by Sunil Kumar and Sanajy Bansal. Again, plaintiff has also examined one of the executants of the said document namely Sanjay Bansal as PW4 who specifically deposed about the execution of the said documents from Ex.PW1/2 to Ex.PW1/8 by him along with Sunil Kumar and nothing contrary could be extracted in his cross examination.
14. It is further observed that a civil case is adjudicated on the standard of the evidence of the preponderance of probabilites and accordingly, it can be safely concluded that in the present case, the execution of documents Ex.PW1/2 to Ex.PW1/8 in favor of plaintiff has been duly proved by the plaintiff. Now, with respect to the effect of these documents, it is observed that the document Ex.PW1/2 is the GPA executed by Sunil Kumar and Sanajy Bansal in favor of plaintiff with respect to suit property vide which right was created in favor of plaintiff and if the said document is read with the document Ex.PW1/3, which is the agreement to sell and the document Ex.PW1/5, which is the receipt of money; it can be concluded that by way of said GPA, the plaintiff was given an interest in the property, which was the subject matter of the GPA/agency and therefore, in view of Section 202 of Indian Contract Act and as enumerated in the judgment of Sh. Ramesh (supra) said Agency, in the absence of an express contract, cannot be Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 14 KUSUM VS. BRAHAMANAND terminated. Moreover, the principal/executant of GPA examined as PW4 has already deposed in favor of plaintiff. Accordingly, it can be concluded that though the plaintiff is not the absolute owner of the suit property in the strictest sense, however, she has the irrevocable interest in the suit property, whereas, on the other hand, defendant has no right in the suit property.
Issue no.2 is decided accordingly, in favor of plaintiff and against the defendant.
ISSUE NO.3:-
15. It is observed that the case of plaintiff is that she was given the possession of the suit property on 07.01.2020 by way of the document Ex.PW1/6, which is the possession letter of the suit property, which was executed by Sunil Kumar and Sanjay Bansal in favor of plaintiff and it was only thereafter that plaintiff had allowed the defendant, who is the younger brother of the plaintiff to reside in the suit property during the period of first lockdown. On the other hand, defendant has vehemently denied the same, however at the same time, he has made contradictory claims with respect to the fact how he came into possession of the suit property. In para no. 4 of additional submisisons of his WS, it is stated that possession of the suit property was handed over about three years back and at the same time, he had stated that property is in physical possession of the plaintiff. The WS is dated 01.10.2022 and accordingly, even if it is taken that defendant was allegedly handed over the possession in September/October 2019, same is further contradictory to his statement recorded under Order X CPC on 03.11.2022, wherein, he stated that he was allowed to preside in the suit property by Sunil since 2017. Again, in his affidavit of evidence, the averments of his WS have been copied without any Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 15 KUSUM VS. BRAHAMANAND change, whereas, his affidavit is dated 22.05.2023 and he has again repeated the fact that he has handed over the possession about 03 years back. Again, defendant also failed to examine said Sunil to corroborate his version. Again, witness examined on his behalf as DW3 also failed to support him and rather he stated that he did not know by whom the possession of the suit property was handed over to the defendant and that he also could not say if plaintiff had allowed the defendant to reside in the suit property. Accordingly, the entire story of the defendant with respect to the fact, how he came into the possession of the suit property, is self contradictory as well as un-corroborated from any other corner and rather on the other hand, the version of plaintiff in this regard is duly corroborated by the document Ex.PW1/6, which has been duly proved as discussed above. Again, the version of plaintiff is further corroborated from the testimony of the partner of said Sunil namely Sanjay Bansal/PW4, who deposed in his cross examination that defendant was never in possession of the suit property under his ownership.
16. I view of the aforesaid discussion, it is clear that version of plaintiff is much more reliable than the version of defendant and consequently, on the standard of preponderance of probabilities, it can be safely concluded that defendant has been the licensee of the plaintiff in the suit property as being the permissive user and therefore, Issue no.3 is decided in favor of plaintiff and against the defendant.
ISSUE NO.4:-
17. In view of the findings of issue no.1 and 2, it is clear that defendant has no right in the suit property and on the other hand, plaintiff has duly vested interest in the suit property and therefore, defendant or his family members/agents etc., have Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 16 KUSUM VS. BRAHAMANAND no right to create any third party interest in the suit property. Issue no.4 is decided accordingly, in favor of plaintiff and against the defendant.
ISSUE NO. 5:-
18. It is observed that the law with respect to the eviction of a licensee from a property was discussed at length by Hon'ble Apex Court in the landmark case of 'Sant Lal Jain Vs. Avtar Singh 1985 AIR 857', wherein it was held that after termination of the license, the licensee is under clear obligation to surrender his possession to the owner and he fails to do so, there was no reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under the provision of SRA. The said legal position was reiterated and discussed at length again by the Full Bench of Hon'ble Apex Court in the case of 'Maria Margadia Sequeria Vs. Erasmo Jack De Sequeria dated 21.03.2012' and it was categorically held that none acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades, such person would not acquire any rights or interest in the said property.
19. Now, in the present case, as observed in the findings of issue no.3, defendant is the licensee/permissive user of the plaintiff in the suit property. It is further observed that as per the case of plaintiff, she had already issued a legal notice dated 03.03.2021 to defendant for termination of license, however, same has not been proved during the evidence, however, at the same time, it is also pertinent to mention that the legal position in this regard is settled by the judgment of Hon'ble Supreme Court in the case of 'Nopani Investment Pvt. Ltd. Vs. Santokh Singh dated 10.12.2007' that service of summons of the suit for eviction amounts to Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 17 KUSUM VS. BRAHAMANAND notice of termination. Accordingly, it is clear that in all the eventualities, the license of the defendant in the suit property has been already terminated and consequently, in view of the legal position, as discussed above, it can be safely concluded that defendant is certainly under obligation to handover the vacant possession of the suit property to the plaintiff and he can be compelled for the same by way of mandatory injunction. Issue no.5 is decided accordingly, in favor of the plaintiff and against the defendant.
ISSUE NO. 6 RELIEF :-
20. It is further observed that plaintiff has also claimed the relief of mesne profits/damages for the use and occupation of the suit property by the defendant since October 2021 @ Rs.15,000/- per month, however, the plaintiff has failed to lead any substantial evidence that the prevailing rate of rent for suit premises is about Rs. 15,000/. At the same time judicial notice can be taken of the fact that the amount of rent for various properties in and around Delhi has been rising staggeringly. In this regard, I also seek reliance from the authority of Hon'ble High Court of Delhi titled as "Vinod Khanna & Ors. vs. Bakshi Sachdev (deceased) through LRs & Ors." AIR 1996 (Delhi) 32, wherein it was observed that the judicial notice can be taken of the fact about increase of rents in the premises in and around Delhi, which is a city of growing importance being the capital of the country, which is a matter of public history. Again, in case of "Sh. M.R. Sahni vs. Mrs. Doris Randhawa" 2008 (104) DRJ 246, Hon'ble High Court of Delhi while reiterating the steep increase in the rentals in Delhi, again emphasized that in Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi 18 KUSUM VS. BRAHAMANAND relation to determination of mesne profits, there is always some element of guess work.
21. In the facts of the present case, after considering the location of the property, I am of the view that the suit property could have easily fetched the average amount of Rs.8000/ as monthly rent of the suit property to the plaintiff. It is further observed that as discussed in the findings of Issue no.5, license in the suit property stood terminated on service of summons in the present suit and perusal of file provides that same were served upon the defendant on 05.02.2022.
Accordingly, it is held that plaintiff is entitled for damages/mesne profits @ Rs.7000/- p.m. from the defendants w.e.f. 06.02.2022 till the date of vacant possession of the suit property.
In view of findings of all the above issues, the suit of the plaintiff is hereby decreed with costs and following reliefs are granted to the plaintiff:-
i) the defendant will vacate the suit premises and will handover the vacant possession of the same to the plaintiff within 01 month from the date of decree;
ii) That defendant/his agents/legal representatives etc are permanently restrained from creating any third party interest in the suit property;
iii) That defendant will pay the mesne profits/damages @ Rs.8000/- p.m. to be calculated from 06.02.2022 till the date of vacation of the suit premises;
Civil Suit No: 894/2021 KUSUM
VS. (Vivek Kumar Agarwal)
BRAHAMANAND CJ03/KKD/Delhi
19
KUSUM VS. BRAHAMANAND
22. Suit is hereby decreed, however, the plaintiff is directed to file the court fees payable for aggregate amount of mesne profits as per Sec. 11 of Court Fees Act.
Decree sheet be prepared thereafter only. File be consigned to Record Room after due compliance Digitally signed by VIVEK VIVEK KUMAR KUMAR AGARWAL Pronounced In Open Court: AGARWAL Date:
2023.08.31 14:43:35 +0530 Dated: 29.08.2023 (Vivek Kumar Agarwal) Civil Judge-03 Shahdara, KKD Courts, Delhi Note :- This Judgment contains 19 pages and all the pages have been checked and signed by me.Digitally signed
VIVEK by VIVEK KUMAR KUMAR AGARWAL AGARWAL Date: 2023.08.31 14:43:48 +0530 (Vivek Kumar Agarwal) Civil Judge-03 Shahdara,KKD Courts,Delhi 29.08.2023 Civil Suit No: 894/2021 KUSUM VS. (Vivek Kumar Agarwal) BRAHAMANAND CJ03/KKD/Delhi