Delhi District Court
Hari Shankar vs Maya Devi on 27 May, 2013
1
IN THE COURT OF SH. JAGDISH KUMAR
JSCC/ASCJ/GJ (EAST), KARKARDOOMA COURTS: DELHI
Suit No. 192/08
Unique case ID No. 02402C0489352008
Hari Shankar
S/o Sh. Babu Lal
R/o M/S Babu Lal Coal Depot
E3, Chowk Near Kachipura
Nand Nagari, Delhi93. .....Plaintiff
Versus
Maya Devi
W/o Sh. Vijay Kumar
R/o M/s Babu Lal Coal Depot
E3, Chowk, Near Kachpura
Nand Nagari, Delhi. ...... Defendant
Date of Institution : 09.07.2008
Date of Argument : 27.05.2013
Date of decision : 27.05.2013
SUIT FOR RECOVERY OF VACANT POSSESSION AND PERMANENT
INJUNCTION
JUDGMENT: 1 This is a suit for recovery of peaceful vacant Suit No.192/08 1/16 2 possession and permanent injunction filed by the plaintiff against the defendant. The plaintiff stated that he is the lawful owner of the property M/S Babu Lal Coal Depot E3, Chowk, near Kachipura Nand Nagari, Delhi. It is stated by the plaintiff that he was in urgent need of money in the year 2001 and contacted the defendant for a sum of Rs.21,000/. The defendant has also requested the plaintiff for giving the vacant land in front of the room which was given by the plaintiff. The plaintiff and defendant have executed an agreement dated 09.08.2001. The defendant had given the loan of Rs.21,000/ to the plaintiff and plaintiff has handed over the possession of one room and vacant land. The defendant has constructed a shop at the vacant land in front of the room. It is settled between the parties that defendant will not pay any rent for the room and vacant land and plaintiff will not pay any interest on the loan amount. It was also agreed that the plaintiff will pay the loan amount within one year and after receiving the loan amount, the defendant will hand over the peaceful vacant possession of the land to the plaintiff. Thereafter, after the expiry of one year plaintiff has requested to the defendant to hand over Suit No.192/08 2/16 3 the vacant possession of the room as well as of the shop constructed over the vacant land but the defendant has not returned the possession of one room as well as shop specifically shown in the site plan in red. Thereafter a legal notice dated 25.02.08 was issued to the defendant to call upon her to hand over the vacant possession of the room as well as of the shop but despite receiving the legal notice defendant has not hand over the vacant possession of the room as well as of shop. On these facts plaintiff has filed the present suit and claimed the possession as well as recovery of Rs.2,000/ per month for illegal use and occupation.
2 The summons of the suit were issued to the defendant. After service the defendant has filed her WS and took the preliminary objection that the suit of the plaintiff is not maintainable. The defendant has alleged that plaintiff is not the real owner of the suit property. The suit property was never allotted to the plaintiff while the land allotted to Babu Lal Old Depot is at F1, Block Shopping Centre, Sunder Nagari, Delhi. The application of the plaintiff dated 04.06.77 was returned back by the Suit No.192/08 3/16 4 DDA to the plaintiff with the remarks that no plot is available at Nand Nagri. The defendant stated that the present suit has been filed on the basis of false and frivolous documents. The defendant stated that the property bearing no. F3/23, Nand Nagari, Delhi was allotted in the name of Ravinder Kumar under the JJR Scheme. The plaintiff has manipulated the documents of the suit property and a complaint is also pending against him filed by her. The defendant further stated that plaintiff has misguided her and inducted her to purchase the suit property on 12.05.01. The defendant further stated that she has paid a sum of Rs.20,000/ as earnest money. Thereafter, a new Ikrarnama dated 09.08.2001 was also executed in favour of the defendant in which plaintiff has ensured for execution of the documents for transfer of property. The defendant further stated that she has spent the money on the construction of suit property to the tune of Rs.50,000/.
While replying on merit the defendant has denied that plaintiff is lawful owner of property M/s Babu Lal Coal Depot E3, Chowk, Near Kachipura, Nand Nagri, Delhi. The defendant has Suit No.192/08 4/16 5 also denied that plaintiff was in accute need of money in the year 2001. The defendant stated that she is running a shop at E3, Nand Nagri, Jhuggi, Delhi since last 6 years. Her husband is unemployed and there is no source of income except the said kirana shop.
3 The defendant admitted that on 12.05.01 the plaintiff Hari Shankar had approached her and her husband. He had put a proposal before them as the plaintiff was having a piece of land measuring about 12'x10' and 8'x8' and plaintiff wants to sale the said piece of land, as the plaintiff was facing financial loses. The defendant and her husband has accepted the proposal of the plaintiff Hari Shanker and agreed to purchase the piece of land from the plaintiff at the total consideration of Rs.70,000/. On the same date i.e. 12.05.01 the defendant and her husband had given a sum of Rs.20,000/ in cash to the plaintiff as earnest money of the aforesaid piece of land. Thereafter the plaintiff has executed the Ikrarnama dated 09.08.2001 in favour of the defendant with respect to property bearing no. E3, Nand Nagri, Jhuggi, Delhi. The defendant has denied the execution of any agreement, as Suit No.192/08 5/16 6 such that the plaintiff will hand over the room as well as vacant portion of the land to the defendant and defendant will construct the construction over there. The defendant has also denied the fact that it was agreed between her and the plaintiff that plaintiff will not pay the interest and she will not pay the rent of suit property. Rather she has stated that she has purchased the suit property. The defendant further stated that on 09.08.01 the defendant has also executed the new Ikrarnama on plain paper in favour of the defendant. The defendant alleged that since the year 2001 she is requesting the plaintiff to transfer the suit property in her name but defendant is not executing the sale documents. On these grounds the defendant has sought dismissal of the suit. 4 Replication to the WS of defendant filed by the plaintiff in which the plaintiff has denied the statement made by the defendant. The plaintiff has reiterated and reaffirmed the statement as made in the plaint.
5 On the pleadings of the parties following issues were framed as under: Suit No.192/08 6/16 7
1. Whether the plaintiff is entitled to the relief of possession? OPP.
2. Whether the plaintiff is entitled to the relief of permanent injunction? OPP.
3. Relief.
6 In PE plaintiff examined himself as PW1 and relied upon the documents Ex.PW1/1 to Ex.PW1/18. Shankar Lal, UDC East ZoneB, DUSIB Welcome, Seelampur Delhi examined as PW2 who placed on record the document EX.PW1/1 and PW1/2. Sh. Jagdev is examined as PW3. In DE defendant examined herself as DW1 and relied upon the documents from Ex.RW1/A to Ex.RW1/D. Sh. Vijay Kumar as RW2.
7 I have heard the Ld. Counsel for parties and gone through the record of the case carefully. My issue wise findings is as under: ISSUE NO. 1 Whether the plaintiff is entitled to the relief of possession? OPP.
Suit No.192/08 7/16 8 The onus to prove this issue is on the plaintiff. It is admitted position of the parties that the suit property as shown in the document Ex.PW1/15 in red was handed over to the defendant by the plaintiff. The room was constructed over the suit property measuring 12'x12' and a open land measuring 8'x8' is there being open land. At the land measuring 8'x8' there is shop presently constructed by defendant. There are two contentions raised by the parties before me. One is raised by the Ld. Counsel for plaintiff that the defendant is licensee in the suit property. So, she is liable to handover the peaceful vacant possession of suit property to the plaintiff. The another contention raised by the Ld. Counsel for defendant before me is that defendant has purchased the suit property from the plaintiff and had paid a sum of Rs.21,000/ as earnest money and Rs.50,000/ has to be paid at the time of execution of sale deed. The document Ex.PW3/D1 is admitted by the parties. Vide this document, as per allegations of the plaintiff the suit property was given to the defendant as a licensee and contrary to this the defendant has claimed the purchasing of the suit property vide same document. Since there is no dispute Suit No.192/08 8/16 9 regarding the identity of the suit property. So, the court has to answer only two contentions raised by the Ld counsel of parties as stated above. I am taking first the contention, which has been raised by the plaintiff, whether defendant is a licensee in the suit property. The word licensee has been defined in Sec.52 of the Indian Easmentary Act, 1882, which read as under: "License" defined.Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
To consider, whether the document Ex.PW3/D1 is a license or not. The contents of the document has to be gone into. To constitute a license the licensee should have no right in the suit property except a right to do or continue to do something which would in the absence of said right, be unlawful. After going through the document Ex.PW3/D1 it is clear that the suit property, as shown in document Ex.PW1/15, was given to the defendant Suit No.192/08 9/16 10 against a sum of Rs.21,000/. The defendant was permitted to use the suit property in lieu of a sum of Rs.21,000/. The plaintiff had not to pay any interest on that amount of Rs.21,000/ and the defendant had not to pay any rent of the suit property. The contents of the document creates a right in favour of the defendant. Until and unless the plaintiff did not make the payment of Rs. 21,000/, till then defendant is having right to retain the possession of the suit property. So, the contention raised by the plaintiff on the basis of contents of document Ex.PW3/D1 that defendant is a licensee in the suit property is not acceptable because in case of licensee, the licensee is having the permissive right only as granted by the grantor.
The second contention raised by the defendant is that she has purchased the suit property vide document Ex.PW3/D1 is also not sustainable. Because in view of Sec.54 of T. P. Act as well as in view of Sec.17 of Registration Act a property having value of Rs.100/ and more than should be transfered by a document which must be registered. The agreement to sale is also required to be registered, after the amendment of Sec.17 1A of Suit No.192/08 10/16 11 Registration Act, in the year 2001. The perusal of document Ex.PW3/D1, shows that it is not a document of agreement to sale. Because there is no terms in this document of sale and purchase between the plaintiff and defendant. The document Ex.PW3/D1 is not registered one. It can not be received in evidence in view of Sec.49 of Indian Registration Act, with respect to effect the suit property.
The next question before the court is whether the document Ex.PW3/D1 creates any right in favour of the defendant or not. This document can be received in evidence only to prove the collateral purposes. The terms of the document Ex.PW3/D1 resembles to usufractuary mortgage between the plaintiff and defendant as defined U/Sec.58(d) of T. P. Act. But in view of Sec. 59 of T. P. Act usufractuary mortgage has also to be registered. On this account also document can not be relied upon. The document does not create any right in favour of the defendant with respect to suit property as it is not a registered document.
Now it has been proved on record that document Suit No.192/08 11/16 12 Ex.PW3/D1 can not be received in evidence with respect to affecting the status of the suit property being not registered one. So, in view of the discussions above the plaintiff has to pay a sum of Rs.21,000/ to the defendant and defendant has to hand over the peaceful vacant possession of the suit property. The protection U/Sec.53A of T. P. Act also can not be granted to the defendant because the document Ex.PW3/D1 is not an agreement to sale.
Now question arises on which date the cause of action has arose in favour of the plaintiff and against the defendant. The plaintiff has nowhere stated in the plaint on which date he has shown his willingness to return the amount of the defendant and defendant has refused to receive the same. There is only a general statement that plaintiff had made several requests to the defendant to receive the loan amount but the defendant is not receiving the loan amount. This is only general statement. The plaintiff has stated in the plaint that he has sent a legal notice to the defendant and has also marked the document in his examinationinchief but form the perusal of file there is no such document placed on record Suit No.192/08 12/16 13 by the plaintiff vide which he had sent the legal notice mark B. There is no postal receipts on record. The plaintiff has failed to prove that legal notice was sent to the defendant by any mode. In that eventuality it is safe to accept the date of offering a sum of Rs. 21,000/ and calling upon the defendant, to hand over the possession, as the date of institution of the suit. The reliance can be placed upon the judgment of Hon. Supreme Court in case titled as M/s Nopany Investment P. Ltd., Vs. Santokh Singh (HUF), 2008 (1) RCR (Civil) 270.
It is argued by Ld. Counsel for defendant that suit property pertains to the government and plaintiff can not claim possession of the suit land. The Ld. Counsel for defendant has brought my attention towards the crossexamination of PW2 who has admitted in crossexamination that he has not brought any record of the property M/s Babu Lal Coal Depot E3, Chowk Near Kachipura, Nand Nagari, Delhi. But this argument of Ld. Counsel for defendant is not much helpful for the defendant. The reason identify of the suit property is not disputed by the parties in their Suit No.192/08 13/16 14 pleadings. The suit property was handed over by the plaintiff to the defendant. The PW2 has not brought the document pertaining to the M/s Babu Lal Coal Depot E3, Chowk Near Kachipura, Nand Nagri, Delhi. But this witness does not says that suit property belongs to the Govt. The defendant has not placed on record any documents which proves that suit property pertains to Government. It is between the plaintiff and the government, if the land pertains to the government, to deal with each other. But the defendant can not raise this plea. The plaintiff is having better right in the suit property then the defendant because the possession of the suit land was given to her by the plaintiff. So, I am of the view that plaintiff is entitled for possession of the suit property after returning the amount of Rs.21,000/ to the plaintiff.
The next question arises whether plaintiff is also entitled for damages as claimed in the prayer clause. Though this issue has not been framed. The plaintiff has also prayed for damages in the prayer clause but no issue has been framed on the claim of damages. The plaintiff has never agitated the issues framed by my Ld. Predecessor. He has not got modified the issues. Suit No.192/08 14/16 15 It is also not argued during the course of arguments that plaintiff is entitled for damages to the tune of Rs.2,000/ per month. The plaintiff has retained the money of the defendant and had not paid any interest upon that loan money. It might be possible that plaintiff has not raised the issue of damages as he had also not returned the amount of Rs.21,000/ to the defendant. On merit, the defendant has also constructed over the suit property and invested a sum of Rs.50,000/ as construction as deposed in examination inchief which has also not been denied during the cross examination of defendant/DW1 by putting suggestions. On this ground also compensation can not be granted to the plaintiff. The issue no. 1 is decided in favour of plaintiff and against the defendant.
ISSUE NO. 2
Whether the plaintiff is entitled to the relief of permanent injunction? OPP.
The onus to prove this issue is on the plaintiff. Neither the plaintiff nor the defendant has argued this issue. There is no Suit No.192/08 15/16 16 prayer at all in the prayer clause of the suit. No relief can be granted beyond the prayer as claimed by the parties. So, I am of the view that no finding can be given on this issue. Issue no. 2 is disposed of accordingly.
RELIEF In view of the discussions above the plaintiff is entitled for possession. The suit of the plaintiff is decreed for possession accordingly. The defendant to hand over the peaceful vacant possession of the suit property shown in document Ex.PW1/15 in red, after receiving the sum of Rs.21,000/ Suit is decreed with cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
on 27.05.13) JSCC/ASCJ/GJ (East)
KKD COURTS/Delhi
Suit No.192/08 16/16
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Suit no. 192/08
27.05.13
Present: Proxy counsel for plaintiff.
Counsel for defendant.
Arguments heard.
Put up at 4.00 p.m. for order.
(Jagdish Kumar)
JSCC/ASCJ/G. Judge (East)
27.05.2013
At 4.00 p.m.
Present: Proxy counsel for plaintiff.
Proxy counsel for defendant.
Vide separate judgment the suit of the plaintiff is partly decreed. The plaintiff is entitled for possession. The suit of the plaintiff is decreed for possession accordingly. The defendant to hand over the peaceful vacant possession of the suit property shown in document Ex.PW1/15 in red, after receiving the sum of Rs.21,000/ Suit is decreed with cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/G. Judge (East) 27.05.2013 Suit No.192/08 17/16 18 Suit No.192/08 18/16