Delhi District Court
Ram Prasad vs Madan Lal(Since Deceased) on 9 September, 2011
IN THE COURT OF RAKESH KUMARIII, ACJ/ARC(WEST),
TIS HAZARI, DELHI
Original C.S. NO. 47/92
M. No. 61/2006
Date of Institution : 15.01.1992
Date of Judgment : 09.09.2011
RAM PRASAD
S/o Sh. Munshi Ram,
R/o J77, Srinivaspuri,
New Delhi110065. ... Plaintiff
VERSUS
1.MADAN LAL(Since deceased) Through his legal heirs
(i) SMT. RAMESHWARI DEVI W/o Late Sh. Madan Lal R/o I1st/61, Lajpat Nagar, New Delhi.
(ii) SH. HANSRAJ SHARMA S/o Late Sh. Madan Lal R/o 1007, Sector7, Urban Estate, Karnal.
(iii) SH. HEMRAJ SHARMA S/o Late Sh. Madan Lal R/o I1st/61, Lajpat Nagar, New Delhi.
(iv) SMT. SUSHMA SAROCH W/o Sh. Anand Kumar R/o 404/F, First Floor, SectorC, N1, SIDCO, Aurangabad, Maharashtra.
(v) SMT. SUNITA SHARMA W/o Sh. Vinod Kumar, M. No. 61/2006 Page 1 of 30 R/o I39/A, Garwali Mohalla, Laxmi Nagar, New Delhi.
2. SH. MANOHAR LAL S/o Sh. Munshi Ram Mechanic, CPWD, Servant Qr. No.S/59, Hindon Airport, Ghaziabad.
3. SH. KRISHAN GOPAL S/o Sh. Munshi Ram, R/o II/6162, Lajpat Nagar, New Delhi. ... Defendants J U D G M E N T
1. By filing the present suit plaintiff Ram Prasad (since deceased) is seeking decree of mandatory injunction against Defendant in respect of property bearing I1/62, Lajpat Nagar, New Delhi (hereinafter would be referred to as suit property), more specifically shown as blue in the site plan, recovery of Rs.36,000/ towards mesne profit by illegal occupation of suit property by the Defendant, future mesne profits @ Rs.2000/ against the Defendant till vacation of the suit property and also prayed for costs of the suit on the ground that plaintiff is owner/landlord suit property. Defendant no. 1 to 3 are real brothers of the Plaintiff and have been residing in the property in question being licensee and the Plaintiff does not want to allow to be remain in the suit property in as much as the property in question bona fidely require for himself M. No. 61/2006 Page 2 of 30 as well as for the member of his family who are dependent upon him for their residence. Despite request made by the Plaintiff to his brother to vacate the suit property, Defendant have not vacated the same. It is not out of place to mention here that the Defendants earlier filed suit against the Plaintiff on 16.11.1997 which was dismissed by the Hon'ble High Court, Delhi vide order dated 18.01.1982 holding that Defendant have no right in the tenanted premises and that Plaintiff was exclusive owner of the suit property as such plaintiff had been no longer interested in continuing occupation of the Defendant in the suit property, hence issued legal notice dated 10.05.1982 to the Defendant to vacate the suit property and also calling upon them to pay market rate of damages. Despite said notice, Defendant failed to vacate the suit property and sent reply dtaed 21.10.1982 through is counsel Sh. D.P. Sharma as such status of the Defendant after revocation of their license is that of unauthorize occupant, therefore, are liable to be evicted from the suit property and also prayer for damages as per market rate made. In respect of damages plaintiff gave up part of the damages and are claiming only Rs.36000/ from the Defendant.
Defendants have filed their written statement to the present suit in which they have taken preliminary objection;
Suit is liable to be stayed under section 10 CPC keeping in view RFA No. 4/1982 against judgment of Hon'ble High Court is pending, plaint of the Plaintiff is liable to be dismissed on the ground of suppressi veri s Defendants are not the licensee in the suit property as falsely alleged but Defendants are coowner and joint owner of the property in question alongwith Plaintiff on the ground that before partition of the country plaintiff and Defendants were in service in Lahore (Pakistan). Upon migration plaintiff and Defendants, their M. No. 61/2006 Page 3 of 30 mother Smt. Swarna Devi and other brother Sh. Som Raj came to Delhi as rehabilitated refugee who came from Pakistan Government of India constructed houses in the large scale and allotted them to the refugee on monthly rent. Criteria for allotment of houses was that if family consisted of five person, then, they were entitled for allotment of quarter of approximately 100 sq. yds. In case members exceeded five, then, they were entitled two quarters of 100 sq. yds. approximately. On the relevant time, application for allotment of quarter, member of family members are as under:
(i) Ram Prasad
(ii) Smt. Nirmala Devi (plaintiff wife)
(iii) Smt. Swarna Devi (mother)
(iv) Sh. Som Raj (brother)
(v) Sh. Madan Lal @ Madan Gopal (brother)(defendant no. 1)
(vi) Sh. Manohar Lal (brother)(defendant no. 2)
(vii) Sh. Kishan Gopal (brother)(defendant no. 3) Accordingly, property in question was allotted to joint family on monthly rent of Rs.36/ with ownership right after expiry of 12 years subject to payment of costs of suit property on installation basis. So as such, property in question was purchased out of joint income of the Plaintiff and the Defendants yet plaintiff being younger brother allotment of the same as well as lease deed was got executed by the plaintiff in his name and some time in the year 1961 joint family acquired another built up property bearing No. J77, Srinivas Puri, New Delhi measuring 80 sy. yds. out of joint funds in the name of Plaintiff wife for the benefit of joint family. So both the properties are joint family properties in which Defendants have coshare. In order to maintain and M. No. 61/2006 Page 4 of 30 look after, it was decided between the parties that Plaintiff will shift in property bearing No. J77, Srinivas Puri, New Delhi where he is still residing and Defendants alongwith mother of the parities and deceased brother Som Raj would reside in the property in question. Mother of parties died in the year 1973, plaintiff intention became bad as price of the property in local area hiked. Subsequently, difference and dispute between the parties on the joint family properties started, therefore, Defendants had filed suit against Plaintiff which was dismissed on 18.01.1982 by Hon'ble High Court and against that order an appeal in the Hon'ble High Court is pending. Therefore, despite that this fact concealed by the plaintiff with oblique motive, hence there is no cause of action to file the present suit against the Defendant. Lastly prayer for dismissal of the suit is made with costs.
2. Reply to the written statement also field by the Plaintiff and reiterated the contents of the plaint and denied the averments made in the written statement. It is specifically denied in respect of objections that Plaintiff has concealed any material fact, however, it is submitted that there is no stay granted by the Hon'ble High Court in RFA and it is also matter of record.
3. Upon completion of pleadings following issues were framed on 25.05.1992 and were recasted on 06.10.2004 as under;
(i) Whether suit is liable to be stayed under section 10 CPC as alleged in para1 of preliminary objections ? OPD
(ii) Whether Defendants are licensee in the suit premises, if so whether Plaintiff is entitled to recover possession of the suit property from them ? OPP M. No. 61/2006 Page 5 of 30
(iii) Whether suit of the Plaintiff is time barred ? OPD
(iv) Whether suit is properly valued for the purpose of court fee and jurisdiction ?OPP
(v) Whether suit property is joint family property of the parties? OPD
(vi) Whether Plaintiff is entitled to mesne profits for use and occupation of suit property by the Defendants and if so, at what rate and for which period? OPP
(vii)Whether the Defendants have become owner of 3/4 th share of the property by adverse possession?OPD
(viii)Relief.
4. Before proceeding further it is not out of place to mention here that earlier suit was filed by the Defendants against the Plaintiff which was dismissed by Hon'ble High Court vide order dated 18.01.1982. The said judgment was challenged by filing, RFA which was admitted on 09.03.1982 during pendency of appeal, Ram Prasad (plaintiff herein) on 15.01.1992 filed the present suit against his three younger brothers for mandatory injunction seeking removal from the suit property and recovery of mesne profits. That appeal was dismissed on 09.11.2000. Defendants filed SLP against earlier order dated 09.11.2002 before Hon'ble Supreme Court of India which was also dismissed. Consequently, present suit filed by the plaintiff has been revived vide order dated 05.12.2001. Further, vide order dated 04.07.2011, Hon'ble Supreme Court of India imposed costs of Rs.2,00,000/ to be paid to the plaintiff (as observed in para 57 of the order) but instead of comply the order, the Defendant preferred to deposit the costs in registry of Hon'ble High Court of M. No. 61/2006 Page 6 of 30 Delhi which reflected how the respect of order of Hon'ble Supreme Court of India, has been given/paid by the Defendant. it is not out of place to mention that the Hon'ble Supreme Court of India, in para no. 59 specifically directed not to consider the observation made in order but the Defendants have no change and still try to linger on the matter or disobey all order of courts by one pretext or other. It is well settled law that who does not come in the court with clean hand, he is not entitled for any relief from the court simply the reason that one who does not respect the court, he should not be given any relief being cheater or wrong doer.
In respect of contentions and averments made in the plaint, Plaintiff examined Sh. Ashok Kumar who is son of Ram Prasad as PW1 and closed his evidence on 10.02.2005. Defendants in respect of their case, examined Sh. Kishan Gopal (defendant no. 3) as DW1 and closed their evidence vide dated 23.10.2009.
5. I have heard counsel for parties and perused the case file. My issuewise finding are as under:
6. ISSUE No.1
(i) Whether suit is liable to be stayed under section 10 CPC as alleged in para1 of preliminary objections ? OPD Initially this issues was framed on 25.05.1992 in terms of averments made in the preliminary objections no. 1. On that time, RFA(OS) No. 4/1982 was pending before Hon'ble High Court, Delhi. Therefore, proceedings in the M. No. 61/2006 Page 7 of 30 present suit were stayed under section 10 CPC vide order dated 20.07.1992 by Ld. ADJ. On 09.11.2010, RFA was dismissed by Hon'ble High Court against that order SLP 3740/01 of the Defendant was filed which has been dismissed vide order dated 16.03.2001 by Hon'ble Supreme Court of India, hence suit was revived vide order dated 05.12.2001. So, I am of the considered view that this issue has become redundant.
7. ISSUE NO.2
(ii) Whether Defendants are licensee in the suit premises, if so whether Plaintiff is entitled to recover possession of the suit property from them ? OPP Onus to prove the said issue was upon the plaintiff.
In order to prove this issue, plaintiff examined his son Sh. Ashok Kumar by filing affidavit of evidence and deposed that he is one of the legal heirs of the plaintiff Ram Prasad who had expired on 26.09.2003 and he alongwith other legal heirs have been impleaded as plaintiff. It is specifically deposed that he has been assisting his late father in the proceeding in the suit and has contested all the litigation instituted earlier by the Defendant as such fully conversant with the facts of the case and reproduced all the contents of the plaint in his examination, he proved conveyance/lease deed dated 31.10.1964 as it is admitted by the Defendant in his written statement that property in question are in the name and in favour of Ram Prasad who is father of the PW1.
M. No. 61/2006 Page 8 of 30
Bare perusal of affidavit of PW1 shows that PW1 specifically deposed that all three Defendants were/are real brothers of his father Ram Prasad and his father after purchase of property in question had permitted them to live therein as a licensee but during the cross examination, no question on this aspect has been put. Moreover/surprisingly even did not put up his defense by putting any suggestion that they are not the licensee. However, during cross examination, PW1 denied the suggestion that Defendants have been claiming to be owners of the property in question since 1959 and deposed that "his father Ram Prasad gave a legal notice for vacating the premises in the year 1966", but during cross examination no question in respect of legal notice dated 10.05.1982 which was not only mentioned in the plaint but also deposed in para11 of the affidavit, has been put up, hence I declare that the legal notice dated 10.05.1982 is proved as PW1/6 collectively that Defendant despite receiving of legal notice or after termination of license, Defendant did not vacate the property in dispute. It is not out of place to mention that PW1 specifically deposed that his father served another notice dated 21.10.1991 which is Ex.PW1/8 collectively but no cross examination on this aspect has also been asked.
On this testimony, Counsel for plaintiff contended that keeping in view of document Ex.PW1/3 which is judgment of Hon'ble High Court vide dated 18.01.1982, Ex.PW1/4 dismissal of appeal by Hon'ble High Court dated 09.11.2000 Defendants have failed to prove upto Hon'ble Supreme Court of India that they have been residing in capacity of 3/4th portion of the suit property as joint owner or coowner. Further Defendant during course of their M. No. 61/2006 Page 9 of 30 evidence have failed to prove any right, title or interest in the suit property. Document Ex.DW1/1 to Ex.DW1/29 proved their possession merely as a licensee only.
On the other hand, Counsel for defendant contended that they entered into the suit property in their own right and not as a licensee with further submission that Hon'ble High Court of Delhi while deciding RFA dated 09.11.2000 observed categorically finding that "the allotment of two units was made to the plaintiff Ram Prasad because of largeness of the family" and reproduced the finding i.e. instant document is photocopy of noting from the file of the office of Settlement Commissioner dealing with the application Ex.PW1/1 and it reflected that legibility of Ram Prasad (plaintiff herein) for the allotment of two unites was confirmed because of the number of family members being his four brothers, wife, mother and himself."
"From evidence on record, one fact became clear that Ram Prasad as a refused and displaced person took advantage of the practice prevalent in the concerned department and projected that the members residing thus were more and he was entitled to two units. Keeping in view these observations, it is clear that allotment of two units to the plaintiff, hence they were in possession (defendant herein) and at page no. 17 and 26 of the judgment of RFA as categorically observed by Hon'ble High Court that occupancy rights of the (Defendant herein) are to be decided in the present suit. As such, there is no question arise that plaintiff permitted the Defendant to live in the suit property as a licensee.
M. No. 61/2006 Page 10 of 30
Upon this contention of Defendant which he pointed out, it appears that Counsel for defendant has not apprised the entire observation which was made by the Hon'ble High Court of Delhi in RFA. From bare perusal of RFA of page no. 16 and page no. 17, it was observed that "Ram Prasad (plaintiff) thus obtained allotment of two dwelling units i.e. 61 & 62, IBlock, Lajpat NagarI, New Delhi. Can these circumstances alone by obtaining allotment in his name falsely projecting largeness of family, will make other member of family entitled to lay claim for rights, title or interest therein and it was further observed by Hon'ble High Court that answer obviously in the negative.
So I am of the considered view that despite specific deposition of the plaintiff in his examination in chief by way of affidavit that all three Defendants were/are real brothers of his father Ram Prasad and his father after purchase of property in question had permitted them to live therein as a licensee but no cross examination has been done regarding title, right or interest of the Defendant over the suit property and moreover Defendant during the course of their evidence in chief have also failed to prove any right, title or interest in the suit property and the documents Ex.DW1/1 to Ex.DW1/29 only proved the factum of their possession which can be said that they have been residing in the suit property being licensee only but certainly not as owner.
Other leg of this issue is whether plaintiff is entitled to recover possession from the Defendant. It is contended that plaintiff is entitled to recover possession from Defendant on the ground (a) plaintiff Ram Prasad has been held to be exclusive owner of the suit property as per judgment of Hon'ble High Court at page14 (last line of Ex.PW1/3 and at page26 3rd line from top M. No. 61/2006 Page 11 of 30 of Ex.PW1/4) which is read as under : "There is no evidence on record to prove any motive for giving transaction benami colour, parties are real brother, thus relationship does not show that transaction was benami one. All the title deeds were in the custody of Defendant (plaintiff herein) who produced the same on record. Besides filing the present suit, Defendant has produced on record rent receipt Ex.PW1/24 to Ex.PW1/30 showing payment of rent of Lajpat Nagar property by him. The entire conduct shows that Defendant (plaintiff herein) was dealing with the property as exclusively belonging to him and in the present case Defendant license was terminated/revoked by Plaintiff through the document Ex.PW1/6 and Ex.PW1/8.
Upon this submission reliance placed on the case title Sant Lal Jain Vs. Avtar Singh, AIR 1985 SC 857 wherein it has been held that "after termination of the license, licensee is under obligation to surrender his possession to the owner and if he failed to do so, we do not see any reason why licensee cannot be complelled to discharge his obligation by way of mandatory injunction under section 39 of Specific Relief Act and further relied upon other judgment titled Joseph Severance & ors Vs. Benny Mathew & ors., 2005 (III) Civil Court Cases 781 (SC) wherein it has been held by Hon'ble Supreme Court of India that "The correct possession in law is that the licensee may be the actual occupant but licensor is the person having control or the possession of the property through his license even after termination of license. the licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case the licensee cannot be treated as a M. No. 61/2006 Page 12 of 30 trespasser. It would depend upon the facts of the particular case.
But there may be cases where after termination of revocation of license, the licensor doe not take prompt action to evict the licensee from the premises. In such an event the exlicensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of trespasser the moment the license come to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable.
Further pointed out the definition of licensee in section 52 of Easement Act, 1882, it is clear that licensee has no interest in the property and his possession for enjoyment of his right is no judicial possession, but only an occupation. (AIR) 1984 Kerala 224.
On the other hand, it is contended by the Defendant that it has come up on record that the Defendant entered into possession of the suit property in the year 1952 in their own rights whereas Plaintiff acquired title, right of ownership in the year 1964. The Defendant and their family members are residing in the suit premises in their own rights and there is no question of Plaintiff having permitted them to occupy the premises. As above mentioned, the Defendants are basis or subject for allotment of the second unit. In fact, Rehabilitation Department had given Defendant occupation and possession of M. No. 61/2006 Page 13 of 30 the suit property to rehabilitate their large family in this way there is no question of plaintiff permitted the Defendant to live in the suit property as a licensee and also relied upon the same judgment i.e. 2005 (III) CCS 781 (SC).
Upon this contention I have to turn again to the testimony of the parties as well as their cross examination. Plaintiff no. 1 who is son of Plaintiff examined himself as PW1 and reproduced contents of plaint and specifically deposed that property in question had been purchased by his father and Defendants have permitted to live therein as a licensee but during cross examination, no question on this aspect had been put up that how Defendants have been residing in the suit property as a owner or how they have any right or how they claim title over the suit property. No suggestion has been put up that they are not the licensee. Moreover during cross examination of PW1, he remained firmed that Defendants were asked first time to vacate the premises in the year 1964 and through legal notice dated 10.05.82 their license has been terminated which is EX.PW1/6 and this fact also admitted in the written statement. The Defendants said to my father that they will vacate the suit property, however they did not vacate the same and instituted one suit in the year 1977 and remained firm on the point that "I do not know whether Defendants are residing in the suit property since 1959 and denied the suggestion that Defendants had been claiming to be owner of the suit property from 1959 especially when the present suit has been filed by the plaintiff against Defendants seeking mandatory injunction to vacate the premises. So, after taking into consideration the facts and circumstances of the present case, I am of the considered view that the facts and circumstances of the case are identical to the judgment relied upon by the plaintiff i.e. AIR 1985 SC 857 wherein it M. No. 61/2006 Page 14 of 30 has been further held that "The suit is in fact for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property for which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied merely because he had couched the plaint in the form of mandatory injunction and during cross examination of DW1 admitted that "It is correct that suit property consists of accommodation as shown in Ex.DW1/P, here it is admitted that all the documents of Defendant Ex.DW1/1 to Ex.DW1/29 are relates to the address of the suit property.
He further admitted during cross examination that he is in possession of only one room of the suit property shown in EX.DW1/P. After the death of of Madan Lal, his son Hem Raj is residing in one room, kitchen and toilet with his family. No other family member of Sh. Madan Lal is residing in the suit property. My brother Manohar Lal is residing in Himachal Pradesh. His son Surender is residing with his family in one room and also admitted that his brother Ram Prasad (plaintiff) was head of the family in the year 1952, however, denied the suggest that neither I nor Manohar Lal nor Madan Lal have any legal right, title or interest in the suit property but failed to lead or produce any cogent evidence. Further, DW1 deposed that it is wrong to suggest that suit property was owned exclusively by the plaintiff Ram Prasad or that Ram Prasad had allowed his brother (defendant) to live in the suit property as licensee but unable to establish that at what capacity they have been residing in suit property, especially when they failed to establish the fact of co ownership/right upto Hon'ble Supreme Court of India in earlier suit. From the document Ex.DW1/1 to EX.DW1/29, only reflects that Defendants are M. No. 61/2006 Page 15 of 30 possession of premises and in the cross examination of DW1, he has admitted the portion in which he resided and portion of other Defendants, which certainly does not form or create any right to the Defendants.
In the light of judgment of SC AIR 1985 SC 857 plaintiff is very much entitled for mandatory injunction and successfully established the fact that the property are exclusively in control and in possession of the Plaintiff and the Defendants being licensee only in the possession in the suit property upto the extension of their portion as a occupant and not as a owner. Hence this issue is decided in favour of plaintiff and against the Defendants. 8. ISSUE NO. 3
(iii) Whether suit of the Plaintiff is time barred ? OPD Whether suit of the plaintiff is time barred ? OPD Since this issue is legal issue and it is contended by the plaintiff that the limitation period to file the present suit is governed under article 65 of Limitation Act which provides prioed of 12 years for possession of immovable property or in the interest therein based on title. The limitation start running when the possession of the Defendant begun to become adverse to the plaintiff and in the instant case there has been no denial of the title of the plaintiff by the Defendant disputed till 16.03.2001 when SLP of the Defendant was dismissed by Hon'ble Supreme Court of India Ex.PW1/5 resulting into filing of the present case on 15.01.1992 after dismissed the suit of Defendant on 18.01.82. M. No. 61/2006 Page 16 of 30
Before filing the suit, legal notice/termination of license dated 10.05.1982has been sent, which is Ex.PW1/6 collectively and reply thereto dated 21.10.1982 EX.PW1/7 and relied upon judgment AIR 1984 (SC) 930 wherein it has been held that "mere termination of license of licensee does not enable the licenser to claim adverse possession unless and until he set up a hostile titled to that of officer after termination of his license that enable the licensee to claim title by adverse possession, but there must be some overt act on the part of licensee to show that he is claiming adverse possession so even though after termination of the license of the Defendant in the present suit was initially terminated on 10.05.1982 through Ex.PW1/6, the present suit had been filed on 15.01.92 cannot be alleged to be barred by limitation as limitation period is 12 years.
9. On the other hand, it is contended by the Defendant that during cross examination of PW1 who himself admitted that orally notice of revoking of license of the Defendant was given by his father in the year 1964 and the legal notice was given in the year 1966. In para 6 of evidence of PW1, it is stated that Plaintiff insisted upon the Defendant in the year 1964 to vacate the suit premises and on contrary para6 wherein the alleged termination of the notice dated 10.05.1982 was sent to the Defendant, as such limitation of the present suit i.e. in the present nature is the suit for mandatory injunction would be governed by resjudari article 113 of Limitation Act in which prescribed limitation period of 3 years and not governed by article 65 of Limitation Act and relied upon judgment also 2010 V AD Delhi 271 and AIR 1986 Delhi 236.
10. Bone of contention of Defendant is that the present suit is barred by limitation as plaintiff first time asked the Defendant to vacate the the premises M. No. 61/2006 Page 17 of 30 in 1966 as well as 10.05.1982 when cause of action accrued in his favour and limitation period for the suit of mandatory injunction is three years and not 12 years as contended by the plaintiff. From bare perusal of the judgment which was relied upon the Defendant, the facts and circumstances of those judgments are identical different from facts and circumstances of the present case. The first judgment i.e. AIR 1986 Delhi 236 relates to alteration by the tenant in the demised premisessuit for declaration of alteration being unauthorised and mandatory injunction. Suit filed after expiry of 3 years of alteration is barred but the present case relates to licensee, similarly second judgment i.e. 2010 V AD Delhi 271 is also not applicable in as much as the suit of Defendant has been dismissed on 18.01.82, RFA dismissed in 09.11.2000 and SLP has been dismissed in 16.03.2001.
It is not of place to mention here that in the plaint, in para6 it is specifically averted by the plaintiff that "plaintiff had no longer interested in continuing occupation of the Defendant in the property as a licensee and as such was constrained to serve a legal notice dated 10.05.1982 to vacate the suit property and also calling upon them to pay market rate of damages but in the corresponding para of WS, in para 7 of preliminary objection Defendant himself admitted that "admittedly plaintiff asked the Defendant to vacate the suit property by notice dated 10.05.1982 which was suitably replied by the Defendants claiming ownership right in the suit property alongwith property No. J77, Sri Niwas Puri, New Delhi thereby denying claim of plaintiff". Further corresponding para6 on merits of WS to para 6 of the plaint, there is no as such objection has been taken and specifically averted by the Defendant that they had ever been asked to vacate the premises in the year 1966 and they M. No. 61/2006 Page 18 of 30 themselves admitted regarding service of legal notice dated 10.05.1982.
11. It is well settled law that parties cannot be permitted to file documents contrary to his pleadings. Cases remain pending for long and the parties cannot be permitted to enter into a roving and fishing inquiry and to lead evidence inconsistent with the case set up in their pleadings. If the same were to be permitted, it will frustrate very essence of the pleading as held by Hon'ble High Court of Delhi in AIR 2009 Delhi 54. Further, it was held in the case 166 (2010) DLT 629 that "the sole purpose of pleading is to bind the parties to stand. When plaintiff makes certain allegations, the Defendant is supposed to disclose his defence to each and every allegations specifically and state true facts to the court and once facts are stated by both the parities, the court has to frame issue and ask the parties to lead evidence. It is well settled law that the parities can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond the pleadings. If parties are allowed to lead evidence beyond pleadings then, the sacrosancy of pleadings come to an end and the entire purpose of filing pleadings also stands defeated. Other purpose behind this is that no party can be taken by apprise and new fact cannot be brought through evidence which have not been stated by the Defendants in their WS. The law provides a procedure for amendment of pleadings and if there are any new facts which parties wanted to bring on record, parities can amend pleadings, but without amendment of pleadings, parities cannot be allowed to lead evidence beyond pleadings. Further Hon'ble High Court of Delhi rule out in case 1998 VII AD (Delhi) 409 that "from the perusal of the several provisions of CPC referred to here in above, the position emerge is as follows: M. No. 61/2006 Page 19 of 30 O.VI which applies to the pleading generally and would include plaint or WS both, has rule 7 which restrained any party taking in the pleadings a stand which may be in consistent with the previous pleadings of that party the only exception is by way of amendment, Order VI Rule 17 which confers jurisdiction on the court to permit any alteration or amendment in the pleadings implies the existence of a negative rule. No party can alter or amend his pleadingplaint or WS expect by leave of the court and in such a manner and on such terms as may be just in the opinion of the court. Rule 9 of order 8 restrains any pleading subsequent to the WS of a Defendant being filed except by the leave of the court and again upon such terms as the court thinks fit. The exceptions are two (i) a pleading filed by way of defense to set off or counter claim, and (ii) a written statement or additional written statement required to be filed by the court. So I am of the considered that there is no specific pleadings by the Defendants in their WS that he had ever been asked to vacate the premises in the year 1966. The ground taken during cross examination which is not part of the pleadings by either of the parties, hence, cannot be considered in the absence of any cogent evidence in this regard that Defendant had ever been asked to vacate the premises in the year 1966 or to produce the alleged legal notice in 1966 or reply thereto, if any especially when they admitted themselves in the corresponding para of WS that they served upon legal notice dated 10.05.82.
So, I am of the further considered view that in view of judgment of Hon'ble Supreme Court of India reported as AIR 1985 SC 857, instant suit had also been filed on 15.01.1992 it cannot be said to be barred by limitation under section 113 of Limitation Act which is otherwise not applicable at all in the M. No. 61/2006 Page 20 of 30 present case and keeping in view judgment reported as AIR 1984 SC 930, wherein it has been held that after termination of license the limitation period is 12 years and very much maintainable in the shape of mandatory injunction as observed "it is possible that licensor may not file an action for the purpose recovering possession of premises from the licensee after termination his license but that itself cannot enable the licensee to claim title by adverse possession mere continue of unauthorise possession even for a period of 12 years is not enough. So, I am agree with the contention of Counsel for plaintiff that even though the license of Defendant was initially terminated on 10.05.82 by means of Ex.PW1/6, Suit filed on 15.01.92 cannot be alleged to be barred by limitation. Further more, the Defendants till dismissal of their SLP on 16.03.2001 which is Ex.PW1/5 have been claiming themselves as coowners in the suit property. It has been held in AIR 1985 SC 857 that "Even if there is some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not driven to file another round of suit within all attendant delay, trouble and expenses. Hence this issue is decided in favour of plaintiff and against the Defendant.
12. ISSUE No.4
(iv) Whether suit is properly valued for the purpose of court fee and jurisdiction ?OPP Onus has been casted upon the plaintiff and he in his affidavit of evidence reproduced contents of the plaint and deposed that inspite of service of quit notice Ex.PW1/6, the Defendant did not vacate the suit property resulting into M. No. 61/2006 Page 21 of 30 filing the present suit seeking mandatory injunction and recovery of damages against Defendant. On this testimony, it is contended that Defendants are merely licensee in respect of 3/4th portion of suit property, hence suit for mandatory injunction is maintainable after terminating the license and the relief of mandatory injunction in the present case falls under section 7 (iv)(d) of the Court Fee Fact and as such been properly valued for the purpose of court fee and jurisdiction and relied upon the judgment reported as AIR 1985 (SC) 857 (page no. 859). 2005 (3) Civil Court Cases 781(SC) and judgment 2000(3) Civil Court Cases 136 (P&H).
On the other hand, it is contended by the Defendant that relief sought in the present suit is essential relief for recovery of possession which cannot be covered under the suit for mandatory injunction. Therefore, plaintiff has to value this suit on the basis of market value and provisions of 7(v) (e) of Court Fee Act would be applicable/attracted and relied upon the judgment 156 (2009) DLT 723, 1998(47) DRJ 575 and (1998) IV AD Delhi 917. It is further contended by the Defendant that plaintiff after realising its mistake, application under order 6 rule 17 CPC of CPC was filed wherein plaintiff seeking to add market value of the suit property as Rs.2,90,000/ upon confrontation of the Defendant that value of the suit property is Rs.1,88,50,000/ but admitted in his written statement that value is question of fact. It cannot be established without evidence as to what is market value of the suit property which shall form basis for valuation. In this regard I have gone through judgment filed by both the parties.
It is not out of place to mention here that Defendants claimed themselves M. No. 61/2006 Page 22 of 30 as joint/coowners of the suit property with the plaintiff which leads me that Defendants are not in exclusive possession of suit property and in this regard issue no. 7 had been framed vide dated 06.10.2004. It is held by Hon'ble Supreme Court of India in case reported as 2005(III) Civil Court Cases 781 (SC) that "correct position in law is that the licensee may be actual occupant, but licensor is the person having control or possession of the property through his license after termination of license and in case reported as AIR 1985 SC 857 wherein Hon'ble Supreme Court of India observed that "after termination of license, licensee under a clear obligation to surrender his position to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge his obligation by way of mandatory injunction under section 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has also been held to be maintainable. "Whether licensor approached the court for injunction within reasonable time after license is terminated. He is entitled to the injunction. On the other hand if licensor caused huge delay the court may reason the discretion to grant injunction on the ground that the licensor had not been diligent, and in that case the licensor will have to appreciate the suit for possession which will be governed by section 7(v)(e) of Court Fee Act.
On the other hand in the written arguments Defendant himself has admitted that valued as question of fact which is to be established through evidence. From bare perusal of cross examination of PW1 as well as bare perusal of testimony of DW1 Kishan Gopal (by way of affidavit), despite opportunity accorded to the Defendant and even issues framed on M. No. 61/2006 Page 23 of 30 (25.05.1992), no contrary evidence has been led by the Defendant to establish the fact that the amount/market rate of property in question and moreover to prove that after termination of license, plaintiff has not taken any action against the Defendants for possession, so I am of further considered view in the present facts and circumstances of the case are similar to the case reported as AIR 1985 SC 857 wherein Hon'ble Supreme Court of India further held that, "in the present case it has not been shown to us that appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to discretionary relief. Even if there was some delay we think that in case of this kind attempt should be made to avoid multiplicity of the suit and licensor should not driven to file another round of suit within all attendant delay, trouble and expenses.
It was further observed in this case that the suit is in effect one for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds in possession of the property for which he may be found to be entitled. Therefore, we are of the opinion that appellant should not be denied relief merely because he couched the plaint in the form of a suit for mandatory injunction and ratio of judgment reported as 156 2009 DLT 723 is not applicable to the present facts and circumstances. In this judgment, Hon'ble High Court observed that when a fresh suit is filed before the Trial Court, the Trial Court has to ensure that suit has been filed before the court of proper jurisdiction and if the trial court finds that suit has not been properly, it is obligatory upon the Trial Court to direct the plaintiff to value the suit in accordance with law. No doubt, plaintiff has discretion to M. No. 61/2006 Page 24 of 30 value the suit, further this discretion cannot be exercised in an arbitrary manner so as to violate the provisions of suit value and Court Fee Act.
It is not out of place to mention here that on 23.10.2009 when the application under order 7 rule 11 CPC has been dismissed holding that suit for mandatory injunction is maintainable, in which prayer for rejection of plaint was made on the ground of non filing of court fee on market value of the property, which was confirmed by the Hon'ble High Court vide order dated 01.09.2010 while dismissing the C.M.(Main) wherein it was observed in para21 i.e. "suit was filed in the trial court in the year 1992 and written statement was filed as far back on 15.04.92 on pleading, issue no. 4 was framed with regard to the court fee and jurisdiction. As per record, petitioner (defendant herein) never pressed that the issue no. 4 be treated as preliminary issue. Both parties led their respective evidence. When the suit was fixed before the trial court for final arguments, application in question was filed. It also transpired from the record that petitioner have been moving one application after another though all were dismissed, some of them with costs. Further, in the para24 it was observed in the present case at the time of filing of written statement, the petitioners no where prayed that issue no. 4 be treated as a preliminary issue. On the other hand, both the parties led their respective evidence and now matter is fixed for final arguments. In para25, it was observed that decision of Ashok Choudhary and Renu Nagar are not applicable to the facts of the present case, as matter is fixed for final arguments before the trial court whether petitioner (defendant) can rake up the issue of court fee and jurisdiction. So I find force in the arguments of Counsel for plaintiff that judgment reported as 156 (2009) DLT 723 is not applicable in M. No. 61/2006 Page 25 of 30 which judgment of Ashok Choudhary was relied upon by the Hon'ble High Court in as much as this objection can only be considered at the initial stage of the proceeding and Hon'ble High Court was also of the considered view as per order dated 01.09.2010 that after leading evidence, this issue should be decided on the basis of evidence led by the parties and the ratio of judgment reported as 2005 (2) Civil Court Cases 566 (Rajasthan) is very much applicable to the facts and circumstances in which it was observed that "Since the Hon'ble Supreme court has categorically held that suit for mandatory injunction was maintainable, as such, the court fees payable will also be covered by the nature of the suit which in the instant case is suit for mandatory injunction and as such the court fee which has been paid treating the suit as a suit for mandatory injunction is in accordance with law and no fault can be found with the same".
Further, it is not out of place to mention here that Defendant inspite of taking the objection in the shape of preliminary objections no. 5 the suit is not valued properly for the purpose of court and have failed to lead any evidence as to the value of the suit property for the purpose of court fee and jurisdiction as on 15.01.95. It was further observed by Punjab & Haryana High Court in 2001(1) CCC 439 (P&H) that the decree for mandatory injunction can be passed against the licensee whose possession is permissive. It is not necessary on the part of licensor to file recovery suit for possession by paying court fee on the market value of the property, hence this issue is decided in favour of plaintiff and against Defendants.
13. ISSUE No. 5 M. No. 61/2006 Page 26 of 30
(v) Whether suit property is joint family property of the parties? OPD Onus has been casted upon the Defendant to prove the said issue This issue has become resjudicata between the parties as Hon'ble High Court has already decided the said issue vide its judgment 18.01.1982 Ex.PW1/3 wherein it has been held that Lease Deed and Conveyance Deed both dated 31.10.1964 are in favour of Ram Pershad. These documents go to show that Lajpat Nagar property was acquired by Ram Pershad. It was further held that property in suit were therefore, not joint Hindu Family property and the Defendants had not right in the same on the score and that Defendants were not the joint owners of this property alongwith the Plaintiffs. In R.F.A. Ex.PW1/4 it has been held that there is no evidence on record even to suggest that it was a joint allotment or that there was any intention on the part of the Plaintiffs to treat it a joint allotment. No evidence has been led on this point by th Defendants and contention of plaintiff remained unrebutted and controverted. Hence this issue is decided in favour of plaintiffs and against the Defendants.
14. ISSUE No. 6
(vi) Whether Plaintiff is entitled to mesne profits for use and occupation of suit property by the Defendants and if so, at what rate and for which period? OPP Onus has been casted upon the plaintiff to prove the said issue. M. No. 61/2006 Page 27 of 30 Plaintiff contended that since Defendants have no right, title or interest in the suit property as has been held in the judgment Ex.PW1/3 and Ex.PW1/4. Defendants have not surrendered possession even after dismissal of their SLP vide order dated 16.03.2001 which Ex.PW1/5 and PW1 in his affidavit specifically deposed that rental of the property in question is more than Rs.4000/ but surprisingly during cross examination of PW1 no question has been put up on this point.
15. On the other hand, it is contended by the Defendants that no mesne profits can be awarded as it is barred by order 20 rule 12 CPC and in as much as can only be granted in the suit for possession whereas Plaintiff is praying for decree of mandatory injunction and it can only be awarded against unauthorise occupant. Moreover, plaintiff had not led any evidence to prove rent in the vicinity of the suit property.
Keeping in view judgment reported as AIR 185 SC 857 as well as 2005(3) CCC 781 (SC) wherein it has been held that suit for mandatory injunction is very much maintainable for the vacation of licensee. So, I am of the considered view that it cannot be said that plaintiff is not entitled for mesne profits after dismissal of SLP dated 16.01.92 and the Plaintiff specifically deposed that rental of property is more than Rs.4000/ despite that no cross examination has been done on this point and this depositin remained unrebutted and uncontroverted. Hence, this issue is decided in favour of plaintiff and against the Defendants.
M. No. 61/2006 Page 28 of 30 16. ISSUE No. 7
(vii) Whether the Defendants have become owner of 3/4 th share of the property by adverse possession?OPD Onus has been casted upon the Defendants to prove this issue. No evidence has been led by the Defendants. It is not out of place to mention here that since the Defendants have set up joint ownership with the plaintiff till 16.03.2001 which was turned down by Hon'ble Supreme Court of India as per Ex.PW1/5. Further more during arguments, Counsel for defendants concluded that they have failed to lead the evidence in respect to this issue. So, I am of the considered view that now they turned around and claimed adverse possession in respect of suit property and the deposition in this regard in the affidavit Ex.DW1/A is not reliable and worth mentioning. Hence, this issue is decided in favour of Plaintiff and against the Defendants.
17. RELIEF In view of my finding on issue no. 1 to 7, I am of the considered view that plaintiff has successfully proved his case by oral as well as documentary evidence. Hence, suit of the plaintiff is decreed by way of mandatory injunction in favour of Plaintiff and against Defendants. Accordingly, Defendants are directed to vacate the suit property i.e. H. No. II/62, Lajpat Nagar, New Delhi. Suit of the plaintiff is also decreed for Rs.36,000/ towards arrears of mesne profit and Rs.2000/ per month as prayed towards future M. No. 61/2006 Page 29 of 30 mesne profits from the date of filing of the suit till vacation of the property in favour of Plaintiff and against the Defendants alongwith costs of the suit. Original documents filed by the parties be returned to them after obtaining certified copies of the same against receipts as per rules. File be consigned to record room.
Announced in the open court On this 9th day of September, 2011 (Rakesh KumarIII) ACJ/ARC(West) Tis Hazari, Delhi (Two spare copy attached) M. No. 61/2006 Page 30 of 30