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Delhi District Court

Haji Rehman Ellahi vs Smt. Shaqeela Bano on 17 February, 2012

               IN THE COURT OF HARJYOT SINGH BHALLA
              CIVIL JUDGE-01, SOUTH DISTRICT, NEW DELHI

Suit No. 230/10
Case ID No. 02403C0271872009
In The Matter of:
Haji Rehman Ellahi
S/o Late Sh. Haji Elahi Mehar
R/o H.No. 998, Gali No. 31,
Jafrabad, Delhi - 110053.                                .................Plaintiff

                                       Versus

Smt. Shaqeela Bano
W/o Sh. Rafiq Mohammed
R/o Some Portion at Property bearing Khasra no. 52,
Apposite Kisan Hatt, Ambedkar Colony,
Chhattarpur, Mehrauli,
New Delhi-110074.                                   ..............Defendant

SUIT FOR POSSESSION, MESNE PROFIT/ DAMAGES AND PERMANENT
                        INJUNCTION

Date of Institution                :        04.09.2009
of reserving the Order             :        Oral
Date of pronouncement              :        17.02.2012

JUDGMENT (ORAL):

1 By this judgment I shall dispose of the above suit filed by the plaintiff seeking the relief of ejectment and possession, damages/mesne profits and interest thereupon besides relief of permanent injunction against the defendant.

Brief Averments Culled Out from the Pleadings:

Plaintiff's case as per Plaint:

2 That the Plaintiff is a friend of the father of the defendant.

Plaintiff is the owner of the entire property bearing Khasra no. 52, measuring 300 sq yds situated at Chhattarpur, Ambedkar Colony, Mehrauli, New Delhi-110074 on the basis of GPA, agreement to sell, receipt, Will and possession letter. The father of the defendant had requested plaintiff to give one room, kitchen and bathroom / latrine to the defendant for a short period of time without any charges. The plaintiff accordingly permitted the defendant and her family to live in one room alongwith common latrine and bathroom and one tin shed for kitchen purposes in a portion of the abovesaid property. Property was given on license basis and the portion given to defendant is shown in red colour in the site plan.

3 On 10.04.2009, plaintiff requested the defendant to vacate the property but the defendant showed her inability. Thereafter plaintiff got to know that the Defendant had taken the Electricity connection, Election I-Cards at the suit property without the permission of the Plaintiff. A false complaint was submitted on 25.05.2009 to the Police Station Mehrauli by the defendant to implicate the plaintiff and to grab his property.

4 On 30.05.2009, the Plaintiff orally terminated the permissive use / license of the defendant and requested the defendant to vacate the premises. Defendant threatened the plaintiff of dire consequences. It is averred that earlier a suit was filed by the defendant against the plaintiff seeking injunction against the plaintiff on the ground that defendant was the owner of the suit property. Plaintiff has averred that the defendant may dispose off the suit property or handover the possession of the same alleging to be the owner.

5 Plaintiff got defendant served with legal notice dated 10.08.2009 terminating the license and demanding possession within 15 days. The Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 2 of 19 Suit No. 230/10 notice was returned unserved as the address did not belong to the plaintiff. A corrigendum notice dated 24.08.2009 was again sent to the defendant which was duly served, however, the defendant has continued in possession. 6 Premises are situated in prime location and would easily fetch rent of Rs.5000/- per month and plaintiff should be awarded damages from 26.08.2009 uptill vacant possession is handed over alongwith interest @18% per annum.

7 The cause of action arose for the first time on 30.05.2009 when the license was revoked orally and thereafter on 10.08.2009 and 26.08.2009 on the legal notice being sent and the period stated therein expiring. 8 The suit has been valued for the purposes of jurisdiction and court fees for the relief of possession @90,000/- on which ad-valorem court fees has been affixed. For the relief of Injunction the suit has been valued at Rs.130/-. As far as relief of damages is concerned Plaintiff has only prayed for Damages w.e.f. 26.8.2009 while the suit had been filed on 4.9.2009. Plaintiff has undertaken to pay court fees on damages awarded for the period after the filing of the suit.

Defendants' case as per Written Statement:

9 On 11.11.2010, the defendant had appeared and made a statement recorded by the court in which she has stated that she was only a tenant in the suit property for rent of Rs.200/- per month. 10 The defendant filed her written statement on 08.04.2010. The defendant has taken preliminary objections in the written statement. It has been averred that plaintiff has not approached this court with clean hands. It has been averred that the plaintiff has not valued the suit for the purposes of jurisdiction and court fees properly and the suit property is worth Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 3 of 19 Suit No. 230/10 more than Rs.20 Lakhs.

11 On merits it has been submitted that the husband of the defendant was employed by the plaintiff for looking after the property on salary basis in 1994-95 at salary of Rs.3000/- per month out of which he was depositing Rs.2800/- per month with the plaintiff on the mutual agreement that plaintiff will execute documents transferring 100 sq. yds. of the property to the defendant as and when Rs.3 Lakh would stand paid to the plaintiff. Since the year 1994 onwards, the said amount has been deposited continuously with the plaintiff. When the defendant and her husband requested the plaintiff to execute a document of the 100 sq yds, he refused to execute the same, filed the present suit instead. It has been stated the defendant has been in possession since 1994-95 in part performance of contract and not since 2008 as alleged.

12 The filing of the civil suit by the defendant has been admitted as matter of record. The receipt of notice has been denied and the relationship of licensee and licensor has been denied. The entitlement of plaintiff to claim possession has been denied. It has been denied that the defendant is trying to create third party interest in the suit property.

13 Thus, her stand in the written statement is contrary to the stand taken by her in the statement recorded on 11.11.2010 in court. Replication 14 The contents of the plaint have been denied and those of the written statement are reiterated. It has been averred that the suit for injunction filed by the defendant being suit no. 1067/2009 had been withdrawn and the husband of the defendant had filed another suit bearing no. 1272/09 against the plaintiff.

15 On the basis of the pleadings filed by the parties, the following issues were framed in the suit vide order dated 16.12.2010:

1 Whether the plaintiff is entitled to the relief of possession as prayed for in prayer (i)? OPP. 2 Whether the plaintiff is entitled to decree for damages at the rate of Rs.5000/- per month from 26.8.2009 onwards? OPP.

3 Whether the plaintiff is entitled to permanent injunction as prayed for in prayer (iv)? OPP. 4 Whether the plaintiff is entitled to interest @ 18 % as prayed for ? OPP.

5 Whether the plaint has not been properly valued for the purposes of jurisdiction and court fees? OPD. 6 Whether the plaintiff has come with unclean hands? OPD.

7 Whether the defendant was handed over possession of the property in part performance of oral contract of sale in the year 1994? OPD.

8 Relief.

16 The plaintiff entered the witness box as a witness PW-1. He has reiterated the contents of the plaint in his affidavit by way of evidence. He has exhibited the agreement to sell dated 11.12.1991 Ex. CW 1/1 (PW1/1), the GPA as Ex. CW 1 /2 (PW1/1), affidavit, Will etc. as Ex. CW 1/3 (PW1/3) to Ex. CW 1/5 (PW1/5). The site plan was exhibited as Ex.PW1/6. Legal notice dated 10.08.2009 and proof of service are Ex.PW1/7 to Ex.PW1/10. Corrigendum notice and proof of its service are Ex.PW1/11 to Ex.PW1/13.

The plaintiff has also produced his alleged tenant as a witness i.e. PW-2 who has only given oral deposition by way of his affidavit. Both the witnesses were cross-examined.

17 On behalf of the defendant, the Defendant herself entered the witness box, the witness was cross-examined at length. The defendant also produced five other witnesses. DW4 was a formal witness. All other witnesses filed their evidence by way of affidavits and were cross examined. Defendant exhibited her election I Card Ex.DW1/1, Adhar Card of defendant and her children Ex.DW1/2 to Ex.DW1/5, electricity bill dated 07.09.2009 Ex.DW1/6, I card of her husband Ex.DW1/7, Adhar Card of her husband Ex.DW1/8, reply to RTI application Ex.DW1/9 and DW1/9A, revenue record Ex.DW1/10, envelope dated 02.06.2011 Ex.DW1/10 and police complaint as Mark A&B. 18 I have gone through the record and perused the pleadings and the documents filed. Having examined the issues framed and having sifted the evidence adduced I am proceeding to deliver my issue wise findings. Issue wise findings:

19 Issue nos. 6&7: Whether the plaintiff has come with unclean hands? Whether the defendant was handed over possession of the property in part performance of oral contract of sale in the year 1994? Onus of proving these issues was on the defendant. It is the admitted case of the defendant that plaintiff was the owner of the property and her husband had orally entered into an agreement with the plaintiff to purchase the same in the year 1994. As per written statement, the husband of the defendant had been paying Rs.2800/- per month to the plaintiff. It is this relation which is alleged to have been concealed by the Plaintiff.

20 The case of the plaintiff is that the defendant is a mere licensee in the suit property, whereas, the case of the defendant is that she is in occupation of the property in part performance of contract of sale of property to her husband. The Plaintiff has categorically stated in the plaint and replication that there was no agreement to sell between the parties and defendant was a mere licensee being daughter of friend of defendant. 21 Defendant no. 1 admitted in her cross examination:

"It is correct that I filed a suit for permanent injunction against the plaintiff. The certified copy of the plaint is now Ex.DW1/P1. It is correct that I moved an application for withdrawal of the suit and the same was dismissed as withdrawn. The certified copy of the application and the order is now Ex.DW1/P2 (Colly). It is correct that my husband had also filed a suit for permanent injunction against the plaintiff which was also dismissed as withdrawn after a statement was given by the counsel for the plaintiff. The certified copy of the plaint, statement as well as order is now Ex.DW1/P3 (Colly). I have not filed any receipt of payment of Rs.3 Lakh made to the plaintiff. (Vol. No receipt was given as the parties were like a family). I have no receipt for payment of rent as well. (Vol. No receipt was given). ...

I have not taken any permission for the installation of electricity or for preparation of the election I-Card/ Adhar Card, etc. from the plaintiff. The payment was never made in presence of any witness. (Vol. The entire transaction was based on trust and family relations). ......

Court question: Is it correct that you had made a statement on 11.11.2010 in the court that you are a tenant in the suit property at a rent of Rs.200/-?

Ans: It is correct, however, the money was being deducted from the salary being received as Chowkidar. The money was being paid as a tenant."

22 It is pertinent to note that in her evidence, the defendant has Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 7 of 19 Suit No. 230/10 tried to improve upon her case and incorporated para no. 4, 5, 8, 11, 12, 13 and 14 in her affidavit by way of evidence which were not even part of her written statement without any amendment to the same. 23 The defendant also admitted the plaint of the former suit filed by her against the plaintiff, during her cross examination, and same was exhibited as Ex.DW1/P1. She also admitted that her husband had filed a suit for permanent injunction against the plaintiff which was also dismissed as withdrawn. The copy of the plaint filed by her husband was exhibited as Ex.DW1/P3. She also admitted that she has no written proof for the payment of Rs.3 Lakhs made to the plaintiff. She also admitted that the alleged payment was never made in the presence of any witness. At the same time, she also admitted that she was also a tenant and paying a rent of Rs.200/- to the plaintiff. She also admitted that no rent receipt had been obtained at any stage. She denied the suggestion that she was inducted in the year 2008 only. She also admitted that no permission was taken from the plaintiff for installation of electricity and preparation of election I Card etc. 24 It may not be out of place to note here that the Evidence Act allows full effect to be given to circumstances or conditions of probability or improbability. While deciding an issue of fact the Judges are bound to call into aid their experience in life and can test the evidence placed before them on the basis of probability and improbability. Reliance is placed on the decision in Gopeshwar Dutt vs B. Dutt XVI CWN 265 and Chaturbhuj Pande vs Collector, Raigarh AIR 1965 SC 255.

25 In my view, a person who was put in possession of a property in part performance of contract, and who was paying Rs.2800/- as installments as per agreement, would not be paying rent at the same time. Even Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 8 of 19 Suit No. 230/10 otherwise, it was not even the case of the defendant in her WS that she was a tenant in the property but her case was only restricted to being in possession in part performance of contract. In the entire pleadings the only amount mentioned is Rs.2800/- per month and there is not even a whisper about the rent of Rs.200/- being paid. She never pleaded the existence of tenancy in her favour in the plaint of her prior suit Ex.DW1/P1, whereas her husband had so stated in the plaint of his suit Ex.DW1/P3. However, she failed to explain away the contradiction in her stand.

26 In order to appreciate the evidence of the parties the court has to consider the weight which can be attached to the testimony of any particular witness. The demeanor of witness, the consistencies and inconsistencies in the stand of the witness/party, as well as, any improvements made by a party to the litigation during the course of the trial, etc. are relevant factors which have to be kept in mind while appreciating evidence.

27 In view of the contradictory stand of the Defendant in Ex.DW1/P1, the WS in the present suit, the statement dated 11.11.2010 as well as her cross examination dated 13.12.2011 and the improvements made by her to her stand during the course of the trial, it is difficult to believe that such an amount was paid without obtaining any receipt. The earliest of documentary evidence produced by the Defendant to show her possession over the suit property, viz. Ex.DW1/1, is of February 2009 vintage. All other documents, which have been exhibited by the Defendant, trace their origin to a date subsequent to February 2009. Thus, the Defendant's version also fails the test of probability, besides having failed the test of proof. 28 On the other hand is the unshaken testimony of the Plaintiff on this aspect. During his cross examination the plaintiff denied all suggestions Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 9 of 19 Suit No. 230/10 of execution of oral agreement to sell, induction of Defendant or her husband as chowkidar, deduction of any amount out of salary, or handing over of possession in part performance. The Plaintiff's categorical denial is fortified by his affirmative evidence on oath that the Defendant was merely inducted as a licensee in the year December 2008.

29 It is surprising to note that defendant has not even produced her father as a witness who is stated to be a friend of the plaintiff and the only witness to the oral agreement. Defendant had categorically admitted that:

My father and the plaintiff were familiar to each other. I also know him. I do not know as to whether the suit premises was purchased by the plaintiff. The plaintiff and my father inducted me in the suit property. It is wrong to suggest that the plaintiff inducted me in the suit property as licensee and no license fee was charged. (Emphasis Supplied) Thus, the Defendant failed to produce the best evidence in support of her case, i.e., her father.

30 As far as evidence of the other witnesses produced by the Defendant is concerned, I shall now briefly examine the testimony of these witnesses.

(i) DW3 Sh Umardin admitted in his cross examination that:

I do not know whether the defendant is residing in the suit property in the capacity of tenant or not. It is wrong to suggest that I am witness of the defendant at her instance. It is correct that I am not a summoned witness. (Emphasis supplied) Thus, this witness is not even aware about the capacity in which the Defendant is occupying the property.

(ii) DW2 Sh. Abdul Wahid admitted in his cross examination that:

It is correct that the land was given four years back. (Vol. A panchayat was held four years back whereupon it was decided that the defendant be given the property as she/he has been residing in the suit property for the past seventeen years and that salary was not being paid to her/Rafiq during their stay). ........

This affidavit was prepared today itself by the Advocate for the defendant. I do not know his name. It is wrong to suggest that I am deposing falsely or that I have signed the affidavit without understanding the contents.

Court Question: Is it correct that defendant used to pay to the plaintiff from the deductions made to salary of her husband? Ans: I am not aware.

Court Question: Who had inducted the defendant / Rafiq in the suit property? Ans: The father in law of Rafiq Mohd. had inducted Rafiq and Shakila 17 years back. (Emphasis supplied) This witness is also unable to support the case of the defendant that she was in occupation of the property in part performance of contract or the amount had been paid by the Defendant as alleged. He also does not appear to be an independent witness.

(iii) DW5 Sh. Amresh Singh admitted in his cross examination that:

It is correct that the defendant and her husband has not given any amount to the plaintiff in my presence. I have come to depose before the Hon'ble court on the instructions of defendant and her husband. It is correct that the affidavit by way of evidence is prepared by the counsel of the defendant. The money of Rs.3,02,400/- was not paid in my presence.(Emphasis supplied) This witness is also unable to support the case of the defendant that she was in occupation of the property in part performance of contract or the amount had been paid by the Defendant as alleged. He also Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 11 of 19 Suit No. 230/10 does not appear to be an independent witness.

(iv) DW6 Sh. Islam Ali admitted in his cross examination that:

"Ans: Defendant was not paying rent but was getting money deducted from her salary.

Q: Was the defendant working as a chowkidar at the property?

Ans: both husband and wife were working as chowkidars. When husband used to leave for work defendant used to be a chowkidar.

Approximately above Rs.3,00,000/- was deducted. I was not informed about the fact of payment by defendant or her husband. (Vol. I got to know at the panchayat which was held). It is wrong to suggest that no panchayat was ever held. I do not remember the date of the panchayat. (Vol. It has been a while). ... .... It is correct that I am not a summoned witness. It is correct that defendant and her husband asked me to given evidence in the court. (Vol. because I was a witness at the panchayat). Court question: What is your relation with the defendant? Ans: There is no relation except that a girl from my village is married to the brother of the defendant. I am also a neighbour".

(Emphasis supplied) This witness is also unable to support the case of the defendant. In his enthusiasm the witness has deposed that both Defendant as well as her husband used to work as chowkidar, a fact not even pleaded by the Defendant nor deposed by her husband. This witness has also not been able to establish that defendant was in occupation of the property in part performance of contract or the amount had been paid by the Defendant as alleged. He also does not appear to be an independent witness.

31 In my view the Defendant has not only failed to prove the "Oral Agreement to Sell" but has also failed to prove that she was in possession of the Property even before 2008 and from the year 1994-1995 as alleged by her. At the cost of repetition it may be pointed that of all the documents Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 12 of 19 Suit No. 230/10 produced by her, the oldest is of February 2009 vintage. 32 It is further worth noting that the Defendant has not only taken contrary stand in the pleadings and evidence but has also tried to improve upon her case and in the process lost credibility which could have been attached to her evidence. On the contrary the Defendant has failed to discharge her onus to show that the Plaintiff has come with unclean hands. Thus, both the issues are liable to be decided against the Defendant and in favour of the Plaintiff.

33 Issue no. 1: Whether the plaintiff is entitled to the relief of possession as prayed for in prayer (i)? Onus of proving this issue was on the Plaintiff. Plaintiff has reproduced the relevant contents of his plaint in his Affidavit tendered in evidence. Plaintiff has deposed that as per the request of the father of the defendant, the defendant was permitted to live, in one room alongwith common latrine, bathroom and a tin shed to be used as kitchen, in the suit property as licensee in December, 2008. He has deposed that no license fee had been charged from the defendant. He has also deposed that on 30.05.2009, he orally terminated the license of the defendant. 34 In his cross examination also the witness PW1 remained firm in his stand that he knew the defendant only from past three to four years and she was a licensee without any license fee. He denied the suggestions that he was paying Rs.3000/- to the defendant as defendant was his employee or that Rs.2800/- were being deducted from the salary. I have already decided while recording my findings on Issue No. 6 and 7 that defendant has failed to prove the oral agreement and her case that she was handed over possession of the suit property in part performance of oral contract made with her husband. In view of the unshaken testimony of the plaintiff it stands proved that the Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 13 of 19 Suit No. 230/10 defendant was a mere licensee. As no legal notice is required to evict a licensee, this issue is decided in favour of the plaintiff and against the defendant.

35 Issue no. 2: Whether the plaintiff is entitled to decree for damages at the rate of Rs.5000/- per month from 26.8.2009 onwards? And Issue No. 4 Whether the plaintiff is entitled to interest @ 18 % as prayed for ? Onus of proving both these issues was on the Plaintiff. The plaintiff has deposed in his affidavit that the suit property can easily fetch rent upto Rs.5000/- per month. He has also deposed that the defendant was an unauthorized occupant and only pendente lite damages have been sought. 36 It has already been proved on record that the premises occupied by the defendant measure about 100 sq. yds. In his cross examination, the plaintiff stated that from the remaining portion of the property, which ad measures around 200 sq. yds., he was receiving Rs.10,000/- per month as rent. He has not filed the rent deed but during his cross examination he admitted that he could produce the rent agreement and accordingly he was directed to produce rent agreement on the next date of hearing. However, on the next date of his cross examination he did not produce the lease agreement. His oral evidence as to content of a document cannot be accepted without the document having been produced. (see Section 144 of the Evidence Act).

37 The other witness produced by the Plaintiff to show the prevailing rent in the area, i.e., his alleged tenant PW2, deposed that he was the tenant under the plaintiff and stated that he was paying Rs.10,000/- as rent. However, he admitted in his cross examination that he had not brought any receipt to the court. He also admitted that he has not disclosed the rate Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 14 of 19 Suit No. 230/10 of rent in the income tax return or any documents filed with any government department. In his examination in chief, this witness makes no mention of the lease deed executed between him and the plaintiff about which the plaintiff had deposed in his affidavit. The evidence of this witness as to rate of rent cannot therefore be accepted as the plaintiff as well as the alleged tenant (PW2) both failed to produce the lease deed or any document to show that there was any relationship of landlord and tenant between the plaintiff and PW2. The tenancy stands not proved.

38 The plaintiff has failed to show that the remaining property of about 200 sq. yds. is fetching him rent of Rs.10,000/- per month. In fact, there is no evidence on record to show what would be rent receivable by the plaintiff ordinarily. During the course of arguments, Ld. Counsel for the Plaintiff has relied upon Anant Raj Agencies Properties Vs. State Bank of Patiala, 167 (2010) DLT 138, to contend that judicial notice can be taken of the prevailing rates of rent and damages can be awarded accordingly. 39 I find that in the said case, there was enough material before the Hon'ble High Court of Delhi to take judicial notice of prevailing rate of rent in the area of Connaught Place in view of the earlier decision between the same parties and admissions on part of the defendant of the rent being paid by her of another premises in the same locality. However, that is not the case before me.

40 The suit property is situated in an unauthorized colony and the portion being enjoyed by the defendant only consists of one built up room, latrine, bathroom and tin shed to serve as a kitchen. No evidence as to the kind of construction and condition of the building etc. has been led by the plaintiff. In that view of the matter, this court cannot come to a conclusion that Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 15 of 19 Suit No. 230/10 amount of Rs.5000/- prayed by the plaintiff is prevailing rate of rent in the area. It is pertinent to note that PW2 admitted in his cross examination that there is no sewerage in the area and he volunteered that there is only an open naali for draining the waste water. One can imagine the condition prevailing in such a colony and therefore, rent paid in city cannot be presumed to be paid in kachi colony like Chhattarpur which is situated in the outskirts of the city.

41 To my mind, damages of Rs.1000/- for occupation of the property after the filing of the suit would be sufficient. Issue No. 2 is decided accordingly.

42 Plaintiff has not averred nor led affirmative evidence to prove the grounds on which he is claiming interest @18% per annum on the damages. The issue No. 4 is accordingly decided against the plaintiff. 43 Issue no. 3: Whether the plaintiff is entitled to permanent injunction as prayed for in prayer (iv)? Onus of proving this issue was on the Plaintiff. Even though the Defendant had initially admitted that she was claiming title to the property through the Plaintiff and also admitted in course of the trial that she was a tenant, yet she failed to prove either of her versions. During the course of her evidence she also tried to introduce a completely new case on the basis that Gram Sabha was the owner of the property. Thus, the Plaintiff has been able to show that the Defendant is hell bent on setting up a claim adverse to the plaintiff's title even though the title was not in dispute at the time the pleadings were completed. Plaintiff has demonstrated that the Defendant is setting up a hostile title to suit property, which she has failed to prove in the present case. The Defendant cannot be permitted to now contend that suit property belongs to the Gram Sabha as:

(i) On the basis of the pleadings only limited issues were framed and there was no specific issue framed on the title of the plaintiff or that the Defendant had been inducted by the Plaintiff and the Defendant was only claiming through the Plaintiff. The limited question that remained to be answered was whether the relationship between the parties was that of Vendee-Vendor or whether the defendant was merely a licensee as pleaded by the plaintiff. The parties went to trial with the mindset that they had to lead the evidence only on these issues specifically framed.

The defendant cannot therefore be allowed to raise this plea at this stage.

(ii) It is a settled proposition of law that a party is bound to prove its case as alleged and covered by the issues framed. The principle is borne out from the maxim secundum allegate et probata. It is equally settled that a party should not be allowed to succeed on a case which it has failed to set up except by way of amendment. Reliance is placed upon the decision reported as A. Gangadhar Rao vs. G. Gangarao AIR 1968 AP 291. In that view of the matter the submission raised at the final stage that property belongs to Gaon Sabha is clearly an afterthought and beyond the pleadings of the defendant and argument is liable to be rejected at the outset.

(iii) The Defendant has, therefore, not only tried to withdraw the admission earlier made, but, also tried to address arguments on grounds even beyond the scope of the pleadings and issues framed in a desperate attempt to defeat the claim of the Plaintiff.

In that view of the matter and in view of the fact that Defendant has failed to prove the case set up by her in her WS, Plaintiff is entitled to a decree of Permanent Injunction as prayed for. 44 In view of the conduct of the Defendant as noted above it cannot be said that the apprehension of the Plaintiff is ill founded. Plaintiff is entitled to the relief of injunction to avoid multiplicity of litigation and preservation of the property. This issue is also decided in favour of the Plaintiff and against the Defendant.

45 Issue No. 5: Whether the plaint has not been properly valued for the purposes of jurisdiction and court fees? Onus of proving this issue was on the Defendant. Defendant has not produced any affirmative evidence to prove that the valuation placed by the Plaintiff on record is incorrect and what could be the correct valuation. During the cross examination of Plaintiff he was asked about the value of the suit property to which he pleaded ignorance. However, no suggestion was given to the Plaintiff that the value disclosed in the plaint was incorrect or what the valuation ought to have been. In my view Defendant has not discharged the onus to prove this issue. Issue is accordingly decided against the Defendant. 46 Relief:

The suit is decreed for the relief of possession of the property built on some portion of Khasra No.52, Opposite Kisan Haat, Ambedkar Colony, New Delhi-110074 consisting of one room, latrine bathroom and a tin shed on 100 sq. yrds. of land in the occupation of the Defendant which is adjacent to property no. A-252. The suit is also decreed for relief of pendente lite and future damages @Rs.1000/- per month till the actual possession is handed over. The suit is also decreed for the relief of permanent injunction Haji Rehman Ellahi Vs. Smt. Shaqeela Bano Page 18 of 19 Suit No. 230/10 restraining the Defendant from creating third party interest in the suit property as shown in the site plan.

47 Costs are also awarded in favour of the plaintiff and against the defendant. Defendant is given two months time to vacate the suit property and handover vacant physical possession of the suit property to the plaintiff. 48 Decree sheet be prepared on Plaintiff filing the deficient court fees qua the relief of pendent lite damages which have awarded to him. 49 File be consigned to record room.

Dictated in the open Court                        Harjyot Singh Bhalla,
On 17.02.2012                                 Civil Judge-1, South District,
                                                       New Delhi.




Haji Rehman Ellahi Vs. Smt. Shaqeela Bano                        Page 19 of 19
Suit No. 230/10