Delhi District Court
Ms. Meena Mathur vs Ms. Sushila Devi on 30 November, 2010
1
IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:CENTRAL
ROOM NO.32:TIS HAZARI COURTS :DELHI
CS NO: 888/08
Ms. Meena Mathur
D/o Late Sh. Kanhiya Lal
R/o BG7/146
Paschim Vihar,
New Delhi63 ..... Plaintiff
Vs.
Ms. Sushila Devi
W/o Mr. Rohit Kumar
R/o BG7/146, 2nd Floor
Paschim Vhar
New Delhi63.
Also at
3B/2, Ramesh Nagar
New Delhi15. .... Defendant
DATE OF INSTITUTION : 23.12.2003
DATE OF FINAL HEARING : 30.11.2010
DATE OF JUDGMENT : 30.11.2010
SUIT FOR RECOVERY OF POSSESSION /
EJECTMENT AND DAMAGES / MESNET PROFIT
@Contd/ .....
2
JUDGMENT :
1. This suit is for recovery of possession of second floor of BG7/146, Paschim Vihar, Delhi apart from mense profit and damages with interest.
2. Short case of the plaintiff is that she is owner of entire property no. BG 7/146, Paschim Vihar, New Delhi. The property is said to be consisting of three floors. Ground and first floors are said to be in possession of plaintiff. the second floor of this property is said to be in illegal and unauthorised possession of defendant since Feb 2002. This second floor consists of a room, a kitchen, a toilet and opened terrace as shown in the site plan. It is however alleged that defendant has raised an unauthorised construction and is also not allowing to plaintiff to excess the roof of her house.
3. As per plaint, this entire property was purchased by plaintiff on 28.02.90 from the erstwhile owner Sh. Joginder Dawar by virtue of documents like @Contd/ .....
3agreement to sell, Will and receipt of Rs. 4.50 lacs apart from affidavit. Out of these documents Will and receipt are registered with SubRegistrar. Upon execution of these documents the vacant, physical and peaceful possession of the property was handed over by Mr. Joginder Dawar and his power of attorney namely Sh. Atul Bhambri to the plaintiff. It is case of the plaintiff that Sh. Joginder Dawar had purchased the entire property from its original allottee namely Sh. Anil Arora and Neetu Arora against similar documents like will, agreement to sell and receipt etc. While getting the documents executed in her favour plaintiff also got executed a power of attorney from Mr. Atul Bhambri in favour of Ms. Juli Keswani, sister of plaintiff (now deceased).
4. It is further case of the plaintiff that she had strained relations with her husband as he had adopted Islam and has married an another woman qua which separate litigation was going on between them. After buying this @Contd/ .....
4property since the plaintiff used to remain out of the house for her job from Morning to Evening she allowed her own unmarried sister Ms. Juli Keswani to reside with her. It is her case that the original documents through which she purportedly purchased the property went missing from her house and qua this she suspects involvement of her sister in law (Bhabhi) Smt. Sarojini Israni.
5. Qua this a police complaint was made with PS Paschim Vihar on 06.02.02 alleging therein that Ms. Juli Keswani and Sh. Gulshan Israni misused the plaintiff's paper under a criminal conspiracy with Ms. Sarojini Israni. It is further case of the plaintiff that in Jan'02 her brother Sh. Gulshan and his wife Ms. Sarojini sought her permission to reside in the second floor of the house but the same was declined by the plaintiff. Later on 06.02.02 they again came back to the property and started negotiating with a property dealer for selling the second floor of the house even though they had no @Contd/ .....
5right, title or interest in the same. A quarrel took place at the house and matter was reported to the police as well. On 09.02.02 they again came with some anti social elements. Police was reported again. Finally plaintiff filed a suit for permanent injunction against her brother Sh. Gulshan, his wife Ms. Sarojini and her sister Ms. Juli Keswani, which is still pending trial in the court of Ld. Civil Judge.
6. Plaint narrates several other instances when the above three relatives of the plaintiff tried to take over the possession of the second floor of the house. Thereafter on 14.02.02, defendant herein Ms. Sushila Devi, came to the property alongwith her husband Sh. Rohit Kumar, an SI with Delhi Police and some Gunda elements and started claiming that she is owner of the second floor. She criminally trespassed the property and started collecting construction material. Even though police was called but they did not take any action on the pretext that it is a civil dispute. As per @Contd/ .....
6plaintiff from that day onwards defendant is in unauthorised and illegal possession of the suit property i.e. second floor. Even though matter was reported to police and other higher authorities but no action was taken. In May'02 defendant started raising illegal constructions. MCD took some department election qua the alleged illegal construction. In a fresh suit seeking injunction and declaration qua cancellation of purported titled documents of defendant filed by the plaintiff Ld. Civil Judge restrained the defendant from raising illegal construction. In this backdrop plaintiff issued legal notice to the defendant which was not replied and finally she has constrained to file this suit seeking actual physical possession of the suit property apart from seeking mense profit @ 15,000p.m. from Feb' 02 onwards.
7. Upon service of summons of this suit defendant contested the same by filing a detailed WS. She prayed for dismissal of this suit on the ground @Contd/ .....
7that plaintiff has no locus standi or any right, title or interest. Defendant claims to have purchased the second floor of the property from Smt. Sarojini Israni by virtue of documents like agreement to sell, receipt, affidavit , Will and GPA apart from possession letter. Smt. Sarojini Israni is said to be GPA Holder of Ms. Julie Keswani who in turn said to be GPA holder of Sh. Atual Bhambri. Sh. Atual Bhambri is said to be GPA Holder of Sh. Anil Arora and Ms. Neetu Arora original allottees of DDA. Suit is said to be bad for non joinder of all the above persons. Objection qua valuation and under Order 2 Rule 2 CPC was also taken.
8. On merits defendant denied that plaintiff is owner of entire property of which suit property is a portion. Plaintiff's possession of ground and first floor is also denied and it is claimed that the entire property was in possession of Ms. Julie Keswani. It is pleaded that plaintiff has no right, title or interest in the second floor of the property. As per WS second floor is in occupation of Sh. Kamal Singh and Smt. Urmila as licencees of @Contd/ .....
8defendant. It is admitted that initially the entire property was owned by Sh. Anil Arora and Smt. Neetu Arora under lease deed executed by DDA. They executed the documents of property in favour of Sh. Joginder Dawar & Sh. Atul Bhambri. It is claimed that Rs. 4.50 lacs paid for purchasing the property to Sh. Joginder Dawar and Sh. Atul Bhambri was so paid by Ms. Julie Keshwani and Smt. Sarojini Israni. As per defendant plaintiff manipulated the documents being sister of Ms. Julie. It is denied that Sh. Joginder Dawar or Sh. Atul Bhambri handed over possession of the suit property to plaintiff.
9. As per her plaintiff had no source of income. It is claimed that while executing GPA etc. on 11.02.02 Smt. Sarojini Israni handed over the possession of the suit property to the defendant. It is denied that plaintiff is owner of the entire property or the suit property on a plea that a person become owner only through sale deed or through will or gift. As per defendant she came into possession of the property after paying @Contd/ .....
9consideration and on the basis of alleged executed documents. An FIR was lodged by defendant against the plaintiff with PS Paschim Vihar No. 577/02 (FIR cancelled as per Ld. Counsel for plaintiff however defendant is said to have been summoned as accused on a criminal complaint of plaintiff). Defendant denied that plaintiff is entitled to mense profit of Rs. 15,000/ p.m. With these pleas dismissal of the suit was prayed.
10.Separate replication to this WS was filed wherein plaintiff reiterated its pleaded case and denied the averments of the defendant.
11.Upon completion of pleadings following issues were framed by Ld. Predecessor on 01.04.04.
12. ISSUES
1. Whether the plaintiff has no right, title or interest in the suit property? (OPD)
2. Whether the suit is not maintainable in view of Order 7 Rule 3 CPC? (OPD)
3. Whether the suit is not maintainable in view of Order 2 Rule 2 CPC?
@Contd/ .....
10(OPD)
4. Whether the suit has not been valued for the purpose of court fee and jurisdiction? (OPD)
5. Whether the suit is bad for non joinder or necessary parties ? (OPD)
6. Whether the plaintiff is entitled to decree as prayed for in para 1 of the plaint? (OPP)
7. Whether the plaintiff is entitled to decree for an amount of Rs. 3,30,000/ towards the damages /mense profits? (OPP)
8. Whether the plaintiff is entitled to any interest for damages, if yes, at what rate and for which period? (OPP)
9. Whether the plaintiff is entitled for directions of the defendants as prayed in Para C of the Plaint? (OPP)
10.Relief.
13.To prove her case plaintiff examined herself as PW1 apart from examining PW2 Sh. Yoginder Dawar , PW3 Sh. Atul Bhambri, PW4 Sh. S.K. Verma , UDC from Sub Registrar Office , PW5 Head Constable Kishan Pal, PW 6 Munesh Kumar , PW 7 Head Constable @Contd/ .....
11Sahib Rao on the contrary defendant examined herself as DW1 .
14.I have heard arguments of Ld. Counsel for plaintiff Sh.Diwan Singh Chauhan & Ld. Counsel for defendant Sh. J.C. Mahindru. I have also perused the case file carefully.
15.In her evidence as PW1 by way of affidavit Ex. PW 1/A has proved on record Site plan Ex. PW 1/1, Certified copies of Will and receipt from the office of SubRegistrar Delhi as Ex. PW 1/ 2 and Ex. PW 1/3, Agreement to Sell as Ex. PW 1 /4, Copy of complaint dated 06.02.02 as Ex. PW 1/5, Complaint dated 10.03.02 as Ex. PW 1/6 , Copy of complaint dated 28.03.02 as Ex. PW 1/7, Copy of the Report dated 11.04.03 as Ex. PW 1/8, Public Notice in a daily Hindi Newspaper "Rashtriya Sahara" dated 13.05.02 Ex.PW 1/9, Copy of complaint dated 19.07.02 as Ex. PW 1/10, Postal Receipts as Ex. PW 1/11 to Ex. PW 1/17, Copy of Criminal Complaint dated 22.07.02 as Ex. PW 1/18, Copy of the plaint as Ex. PW @Contd/ .....
121/19, Copy of Show Cause Notice as Ex. PW 1/20, Copy of Will as Ex. PW 1/21, Copy of legal notice dated 16.08.03 as Ex. PW 1/22, postal receipts and UPC as Ex. PW 1/23 to Ex. PW 1/25.
16.In her cross examination she conceded that Ms. Julie Keshwani is her real sister and she has registered Power of Attorney in her favour qua the suit property. She denied the suggestion that by virtue of this GPA executed by Sh. Atul Kumar Bhambri and Ms. Julie can transfer the property in anybody else name. Sh. Atul Kumar Bhambri executed documents in her favour qua the suit property. She also conceded that she has not filed any suit for specific performance qua the suit property. She expressed her unawareness if Ms. Julie executed GPA in favour of Smt. Sarojini , wife of her brother Sh. Gulshan S.Rana. She expressed unawareness if Smt. Sarojini Israni executed registered GPA , will apart from agreement to sell and possession letter in favour of defendant Smt. Sushila Devi. She could @Contd/ .....
13not identify the photocopy of alleged GPA in favour of Ms. Julie as Mark A. She accepted that no sale deed qua the suit property was ever executed in her favour. She accepted that she has placed a carbon copy of the Agreement to Sell and as per her the original was stolen by Smt. Sarojini, qua which complaint dated 06.02.02 Ex. PW 1/5 was lodged. Smt. Sushila Devi is working under Smt. Sarojini in Oriental Insurance Company.
17.She identified a photocopy of Ms. Julie her sister in law Smt. Sarojini from photocopy available on GPA Ex. PW 1/D1purported GPA executed by Ms. Julie in favour of Smt. Sarojini. She did not admit signatures of Ms. Julie. She denied the signatures of Ms. Julie on will Ex. PW 1/D2. She was also shown Ex. PW 1/D3 GPA purportedly executed in favour of Smt. Sushila. As per her it was not executed in her presence. She was also shown Will Ex. PW1/D4 , Receipt as Ex. PW 1/D5 and Agreement to Sell as Ex. PW 1/D6. She conceded that site plan Ex. PW1/1 was prepared without @Contd/ .....
14inspecting the property from inside. As per her defendant did not allow her to see the property and hence draftsman inspected it from outside. She denied that defendant Smt. Sushila is in legal possession of the suit property as she has paid consideration to Smt. Sarojini against execution of documents. She accepted that now Sh. Kamal Singh and Smt. Urmila are occupying the property.
18.She denied that she is in collusion with Ms. Julie and Smt. Sarojini and has extorted money from the defendants. She accepted that her husband Sh. Jitender converted to Islam in 1988 and got married with Ms. Sunita Narula. She accepted the suggestion that no attorney was executed by Sh. Anil Arora or Ms. Neetu Arora . She also denied that defendant was in possession of suit property . As per her defendant forcibly entered into the second floor after breading the locks. Ms. Julie Keshwani expired on 27.08.03 and suit was filed in December 2003. She filed another suit in @Contd/ .....
15July 2002 qua the suit property and had not sought any permission under Order 2 Rule 2 CPC. She conceded that she has not placed any document on record to show the prevailing rent of area. She denied that defendant is owner of the suit property or that she is not entitled to any decree.
19. This witness was reexamined at the stage of rebuttal as well.
20. PW2 is Sh. Yoginder Dawar. He supported the case of the plaintiff while deposing in his affidavit as Ex. PW 2/1 by saying that he sold the built up entire house i.e. BG7/146, Paschim Vihar to the plaintiff for Rs. 4.5 lacs through documents Agreement to Sell , receipt and handed over the vacant possession of the entire house to him.
21.He also accepted the execution of general power of Attorney in favour of Ms. Julie by Sh. Atul Bhambri on the request of plaintiff so that plaintiff can @Contd/ .....
16get the property registered in her name. He reiterated that under the Power of Attorney Ms. Julie was supposed to get the property registered in the name of plaintiff or her nominee. As per him this Power of Attorney does not contain the seal as there was no consideration. In his cross examination he said that he handed over all the original documents to plaintiff. He also accepted that he does not possess GPA in his name to sell the property to any person but he had agreement to sell in his favour from the original vendor. He accepted the GPA in favour of Ms. Julie Ex. PW 1/1 as a witness.
22.Now I shall decide issues individually.
ISSUE NO.5:
23. Whether the suit is bad for non joinder or necessary parties ? (OPD)
24.It is argued on behalf of the defendant that in the case in hand plaintiff should have impleaded Smt. Sarojini Israni from whom the defendant @Contd/ .....
17acquired the property. It is also argued that legal heirs of Miss Julie Keshwani apart from Sh Atul Kumar Bambhri, Sh. Anil Arora and Smt. Neetu Arora should also have been impleaded in this case and this case deserves to be rejected for their non impleadment. I am not in conformity with this plea for the simple reason that in the suit in hand plaintiff is not seeking any relief qua either of the above person. The cause of action of wrongful possession and recovery of mesne profit is only aimed against the defendant who is occupying the property. Once the plaintiff has no grievance qua illegal occupation and claim of mesne profit against any of the above named person, the question of their impleadment does not arise. This issue is accordingly answered in favour of plaintiff and against the defendant.
25.ISSUE NO.3 Whether the suit is not maintainable in view of Order 2 Rule 2 CPC? (OPD) @Contd/ .....
18
26.Defendant has taken an objection that this suit is barred under order 2 rule 2 CPC in so far as plaintiff had sued the defendant in a suit for declaration, permanent and mandatory injunction in the Court of Ld. Civil Judge. The filing of the said suit is not denied by the plaintiff but it is claimed that the suit was subsequently withdrawn with a leave to file it afresh. It is further argued on behalf of plaintiff that there is no legal bar to filing of the present suit under order 2 rule 2 CPC in so far as the earlier suit was based on different cause of action as defendant was raising illegal construction in the plaintiff's property after criminally trespassing over it. While the suit in hand is based on a continuing cause of action which is different from the earlier cause of action. In support of his plea , plaintiff has relied on case titled S.HARPREET SINGH CHAWLA & ANR VS. CEAT LTD.& ANR. 134 (2006) DELHI LAW TIMES 378 DELHI HIGH COURT it has been observed by Hon'ble Delhi High Court observed that:
@Contd/ .....19
Suit for recovery of possession of immovable property and damges or mesne profitsEarlier suit was for damages and subsequent suit for possession and mesne profits, not barred under Order 2 Rule 2 CPC Order 2 of CPC deals with frame of suitsOrder 20 Rule 12, CPC deals with power of Court to pass decree, in suit for recovery of possession of immovable property ad damages or mesne profits Order 2 and Order 20, CPC operate in their respective fields.
27.While dealing with a similar matter where the initial suit filed by the plaintiff was only qua damage while the subsequent was for possession and mesne profit. Hon'ble Delhi High Court ruled that :
1) To understand Order 2 Rule 2 one has to understand what is meant by the expression 'cause of action' and what is meant by the expression 'whole of the claim'.
2) A plain reading of Order 2 Rule 2 shows that mandate of law is that in respect of a cause of action every suit shall include the whole of he claim.
3) Cause of action has been explained or defined by Judges in different opinions. Language may vary but content of each decision is that a cause of action is factual situation, the existence of which, entitles one person to obtain from the other a remedy from a Court of law. Contours of cause of action mean every fact, which, if traversed, it @Contd/ .....20
would be necessary for the plaintiff to prove the same in order to obtain a decree.
4) The expression 'include the whole of the claim' under Order 2 Rule 2 means different relief which a plaintiff would be entitled.
5) A meaningful reading of the two phrases in their textual setting in Order 2 Rule 2 means, as observed by the Privy Council in the report published as Payana Vs. Panna Lana (1914) 41 1A 142 that the rule is directed to secure the exhaustion of relief in respect of a cause of action. As explained, the rule does not require inclusion of different cause of action arising from the same transaction.
6) A guiding factor was highlighted in the report published as Mohd. Khalil Khan vs. Mahbub Ali Miyan, AIR 1949 PC 78 by stating that when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, it has to be seen whether same evidence will maintain both actions.
7) Understood on the aforesaid legal principles, inevitable conclusion is that since right accrues to recover mesne profits each day illegal possession continues, it would be ca cause of continuing cause of action.
8) Faced with the situation, where earlier suit was for damages on account of the lease holding over after expiry @Contd/ .....
21of lease and second suit for possession and mesne profits.
9) Nos 2 in the 3 suit in favour of the plaintiffs and against defendant no.1. I hold that suits are not barred under Order 2 Rule 2 CPC.
28. In case titled SURESH KAKKAR & ORS. VS. MAHENDER NATH KAKKAR & ORS. 152 (2008) DELHI LAW TIMES 56 DELHI HIGH Court it has been observed by Hon'ble High Court that :
The defendant has to establish the precise cause of action upon which the previous suit was filed and since the plea raises a technical bar, it has to be establish satisfactorily and cannot be presumed merely on the basis of inferential reasoning. The plea of a bar under Order 2 Rule 2 CPC can be establish only if the defendant files in evidence the pleadings of the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. This clearly implies that before a plea of the bar under Order 2 Rule 2 CPC cam be upheld, the defendant has to file the pleadings of the previous suit as and by way of evidence to prove to the Court, the identity of the cause of action in the two suits. This automatically implies that before the Court can return a finding or come to a conclusion that the plea of the bar under Order 2 Rule CPC is well substantiated, the Court, as a rule, would have to consider the pleadings in @Contd/ .....22
the previous suit which require to be filed by way of evidence by the defendant. In other words, the Court cannot consider the plea of Order 2 Rule 2 CPC without traveling beyond the averments made in the plaint of the subsequent suit, a limitation which is placed on Order 7 Rule 11 CPC
29.In case titled Dalip Singh Vs. Mehar Singh Rathee and Others, I (2005) SLT (7) SCC 650, Hon'ble Supreme Court observed that the sine qua non for applicability of Order 2 Rule 2 CPC is that a person entitled to more than one relief in respect of he same cause of action has omitted to sue for some relief without the leave of the Court".
Hon'ble Supreme Court further observed that " when an objection regarding the bar to the filing of the suit under Order 2 Rule 2, CPC is taken it is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of the previous suit" It is obvious, that unless the pleadings in the previous suit re looked into the Court cannot come to a conclusion with regard to the bar under Order 2 Rule CPC"
30.In the case in hand as well admittedly defendant had not taken any pain @Contd/ .....
23in either placing or proving the pleadings of earlier case on record. Although defendant has relied on J.D. JAIN & ORS. VS. SHARMA ASSOCIATES & ORS. 167 (2010) DELHI LAW TIMES 766 DELHI HIGH COURT and KHATRI HOTELS PVT. LTD. & ANR. VS. UNION OF INDIA & ANR. 163 (2009) DELHI LAW IMES 226 DELHI HIGH COURT.
31.In my considered view the cited case law only ellucidate the general principals of Order 2 ruel 2 CPC but they are differentiable from the facts of this case in so far as a continuing cause of action was available to the plaintiff for the wrongful occupation of the property. Further more it has come in evidence that defendant is already facing a criminal trial against her for criminal trespass into the suit property. Once it is found that the cause of action to file this suit is a separate and continuous one, it cannot be claimed that it is part and parcel of earlier cause of action qua injunction. Each months/days illegal occupation by a trespasser given rise to a fresh cause of action. As such I see no flaw in the suit in hand as far @Contd/ .....
24as Order 2 rule 2 CPC is concerned. This issue is answered accordingly.
32.ISSUE NO. 2 Whether the suit is not maintainable in view of Order 7 Rule 3 CPC? (OPD)
33.This issue has been framed on the objection of the defendant that there is no site plan available on record. Record shows that site plan Ex.PW1/1 and according to the plaintiff is correctly describes the suit property as on the date of the filing of the suit. As such I see no strength in this objection and same is also accordingly answered. ISSUE NO.4
34. Whether the suit has not been valued for the purpose of court fee and jurisdiction? (OPD) @Contd/ .....
25
35.An objection has been taken that suit property has not been valued properly for the purpose of court fee and jurisdiction. In this regard it is case of the plaintiff that defendant herself claims to have purchased the suit property from Smt. Sarojini Israni for Rs.3 lacs. The plaintiff valued the suit property at Rs.3.30 lacs and as such I find no flaw in this regard. The issue is answered accordingly.
ISSUE NO.1
36. Whether the plaintiff has no right, title or interest in the suit property? (OPD)
37.This issue has been identified on the objection of the defendant that plaintiff has no locus standi to file this suit in so far as he has no right title or interest in the suit property. AS detailed supra, the entire property of which suit property is a portion was initially alloted to Smt. Neetu Arora and Sh. Anil Arora. They purportedly executed two sets of documents of which @Contd/ .....
26first set was in favour of Sh. Yogender Dawar in the form of documents like Agreement to Sell, receipt, Will etc. against consideration. Simultaneously a GPA was executed in favour of one Sh. Atul Bhambri, without consideration. Record shows that this set of documents were not placed or proved on record by either of the parties. The 2nd set of transaction is between Sh. Yogender Dawar / Sh. Atul Bhambri on the one side and plaintiff Smt. Meena Mathur and her sister Ms. Julie on the other side.
38.Sh. Atul Bhambri as first party, Sh. Yogender Dawar as 2nd party jointly executed agreement to sell Ex.PW1/4 in favour of plaintiff. This agreement to sell not only has a mention of payment of consideration of Rs. 4.50 lacs by plaintiff to them but it also has a mention that the vacant and actual physical possession of the entire property under sale has been given to the plaintiff. Further more para 12 of this document also has a mention that first party i.e. Sh. Atul Bhambri has simultaneously executed a general / @Contd/ .....
27special attorney in favour of Smt. Juli Keshwani on same date i.e. 20.2.1990 so that she can complete the formality of sale in favour of plaintiff Smt. Meena Mathur. This document is of utmost significance not only because it talks of transfer of actual physical possession of the entire property , of which the suit property is a portion , to the plaintiff but it is also executed by earlier attorney Sh. Atul Bhambri in favour of plaintiff. This document is witnessed by Sh. Gulshan Israni, who is husband of Smt. Saroj Israni and is also brother of plaintiff and Miss Julie . It also important to observe here that the entire property was got constructed by Sh. Yogender Dawar before he executed the above documents.
39.The 3rd set of transaction took place only qua GPA / SPA and not qua the agreement to sell , cash receipt etc in favour of plaintiff. Miss Julie Keswani (now expired) is shown to have executed a GPA in favour of her sister in law (Bhabi) Smt. Sarojini Israni Ex.PW1/D1 apart from executing a registered Will in favour of Smt. Sarojini Israni Ex.PW1/D2. For the first @Contd/ .....
28time this GPA does not carry the endorsement qua its purpose of execution as was done in the GPA executed by Sh. Atul Bhambri in favour of Miss Julie Keswani. Admittedly this GPA is also without consideration.
40.The 4th set of transaction happened between Smt. Sarojini Israni and the defendant herein when she is shown to have executed a special power of attorney Ex.PW1/2 apart from GPA PW1/D3, receipt , Will and agreement to sell alongwith the possession letter on 11.2.2002.
41.It is admitted case of the both the parties that neither the plaintiff nor the defendant showed any legally valid title document qua the suit property namely duly registered sale deed in terms of Transfer of Property Act which is regularized U/s 17 of Registration Act. On this score neither of the party can be said to b e having any clear title of the suit property. In this regard Hon'ble Supreme Court specifically deprecated the practice of transacting in immovable property is adopted in Delhi in so far as they not @Contd/ .....
29only perputate the illegality in the society but also resulting loss of revenue.
42.In case titled as SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA AND ANOTHER (2009) 7 SCC 263 Hon'ble Supreme Court held " The "power of attorney sales", was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser.
However, the Delhi High Court in a few cases accepted such "power of attorney sales" as creating an "interest" in the DDA flat which was so "transferred" and consequently, protected such interest of the purchaser by issuing injunctions or decrees preventing the vendor from further dealing with the property. This led to a general impression that the "power of attorney sales" were valid recognized modes of transfer and the very purpose of DDA prohibiting transfers and requiring permission on payment of certain difference in price was defeated by this process.
Whatever be the intention, the consequences of SA/GPA/Will transactions are distributing and farreaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government @Contd/ .....
30and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
43.However, as far as locus standi to file the suit is concerned, it is a settled legal proposition that in all suit for possession it is not necessary for a party to have a clearly assailable title. Section 6 of the Specific Relief Act provided special legal redressal to a person whose possession has been disturbed without his/her consent but such a suit has to be maintained within six months of date of dispossession. The date of alleged dispossession in the suit in hand is 6.2.2002 while the suit in hand was filed on 23.12.2003 and as such it was beyond statutory period of six months. In this regard Ld. Counsel for plaintiff has submitted that his suit is concerned under Section 5 of Specific Relief Act read in conjunction with Article 64 of Schedule 1 of Limitation Act.
@Contd/ .....
31Section 5 and 6 of Limitation Act run as under:
44. Section 5 of the Limitation Act - Extension of prescribed period in certain cases: Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Section 6 of The Limitation Act,1963 Legal disability (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that @Contd/ .....
32person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4)Where the legal representative referred to in sub section(3) is, at the date of the person whom he represents , affected by any such disability, the rules contained in su sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed t him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
Article 64 of Schedule I under The Limitation Act,1963 runs as under:
Description of suit Period of Time from which period Limitation begins to run For possession of immovable Twelve years The date of dispossession property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
@Contd/ .....33
45.Above statutory provisions shows that the suit is under 5 of Limitation Act merely on the basis of possessary title within 12 years from the date of dispossession. As far as this aspect is concerned, plaintiff's suit in hand is within limitation .
46.As regard the issue of possessery title is concerned in case title SOMNATH VS. RAJU AIR 1970 SC 8 46 it has been ruled by Hon'ble Supreme Court , " Possessory title is a good title against every body other than lawful owner. Therefore, in an action of ejectment against the wrong doer, prior possession to plaintiff is sufficient title even if the suit was not brought within six months of dispossession.................... the wrong doer (trespasser) can not successfully resist the suit by showing that the title and the right to possession are in a third person...................... the defendants who are mere trespasser can not defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner."
Hon'ble Supreme Court further observed in the above mentioned case that "In our opinion the possession of the plaintiff prior to 1945 @Contd/ .....
34is a good title against all but the true owner. The defendant who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Arriff Vs. Mohamed Ghouse, the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidene of title as owner against the defendant. In Narryan Raw Vs. Dharamchar a bench of the Madras High Court consisting of Bhashaym Ayyanagar and Moore, JJ. held that possession is under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrong doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after th act of dispossession complained of an that the wrong doer cannot successfully resist the suit by showing that the title and right to possession are in a third person.
47.As regard the documentary proof qua the possession is concerned, admittedly the plot over which the suit property is built was initially owned and possessed by Sh. Anil Aroa and Smt. Neetu Arora. They parted @Contd/ .....
35possession to Sh. Yogender Dawar who got the property constructed other than the additional construction carried out allegedly by the defendant . In the 2nd set of documentation done as detailed supra, in the agreement to sell Ex.PW1/4 there is a specific mention that the entire property of which suit property is a portion is transferred to Smt, Meena Mathur plaintiff. AS far as the GPA / SPA executed by Sh. Atul Bhambri in favour of Miss Julie Keswani , admittedly there is no specific mention of either payment of any consideration by her to Sh. Atul Bhambri or qua any mention in the GPA / SPA that she has been given possession of the entire property or any portion thereof, over and above the possession given to Smt, Meena Mathur.
48.At this juncture it would be pertinent to critically analysie the attorney executed by Sh. Atul Bhambri in favour of Miss Julie Keswani so as to ascertain as to whether it was actually a GPA as sought to be made out by defendant or was a mere spl. power of attorney aimed at accomplishing a @Contd/ .....
36specific purpose as Ex.PW2/D1. Perusal of record shows that there are three attorneys available which were executed by Sh. Atul Bhambri in favour of Miss Julie Keswani on the same day. The first two attorneys have title "GPA" while the 3rd was which is also an admitted document is a "Spl. Power of Attorney" in which Sh. Yogender Dawar is also witness. The agreement to sell executed on the same date i.e. 20.2.1990 in favour of plaintiff by the attoner Sh. Atul Kumar Bhambri has a specific mention qua the purpose of execution of these attorneys which is that they are being executed so that Ms. Julie Keswani can execute the sale deed in favour of plaintiff Smt. Meena Mathur. As such the sheer non mention of the purpose in the attorney can not confer any special power on Miss Julie Keswani other than what was desire by the attorner Sh. Atul Bhambri. On on the same day he executed agreement to sell etc. in favour of plaintiff.
49.At this juncture it is argued by LD. Counsel for defendant that the agreement to sell of the plaintiff can not be considered by this court in so @Contd/ .....
37far as they were compulsorily registrable under section 17 of the Registration Act. Although there is no doubt that an agreement transferring possession , is compulsorily registrable when read in conjunction with 53 of TPA and 17 of Registration Act. But this plea as sought to be raised against the plaintiff also goes against the defendant as well in so far as in the alleged agreement to sell through which she claims to have purchased and got possession from Smt. Sarojini Israni is also unregistered. It has already been concluded supra, that as far as legal validity of the rival property documents are concerned, both of them, suffer from their own flaws and drawbacks. Upon finally comparing as to who has the better claim amongst two individual, when one has a Registered General Power Attorney without consideration and without any mention of handing over of vacant possession while the other has a Registered Will and cash receipt apart from unregistered Agreement to Sell with a mention of transfer of possession therein. In both these scenario , in my considered view the @Contd/ .....
38party which has paid consideration has to be given precedent over the party which has simply acquired a power of attorney which does not contain any mention of payment of any consideration.
50.In the case in hand the situation is a bit peculiar in so far as defendant Smt. Sushila Devi is said to have paid some consideration to earlier GPA holder Smt. Sarojini Israni. But admittedly there is nothing on record to show that Sh. Sarojini Israni in turn paid even a single penny to Miss Julie Keswani or for that matter whether Miss Julie Keswani paid even a single penny to Sh. Atul Bhambri. In this scenario since the chain of document held by plaintiff were coupled with respective payment of consideration , they shall definitely have precedence over the documents held by defendant.
51.As concluded supra, not only the plaintiff has been able to establish on record that she had possession of the entire property with her which was given to her not only by Sh. Yogender Dawar but also by Sh. Atul Bhambri @Contd/ .....
39who is predecessor in interest of defendant as well . Plaintiff is also holder of comparatively better documents qua claim to the title of the suit property even though they are not up to the mark as per law of the land. But the rule of preponderance of evidence tilts in favour of plaintiff as far as the suit property is concerned, vis a vis the defendant herein.
52.As such I have no hesitation in concluding that plaintiff thus has locustandi to sue the defendant and the above discussion shows that she is also entitled to decree of possession of the suit property i.e. entire 2nd floor of property no. BG7/146, Paschim Vihar, New Delhi. shown in red in site plan Ex.PW1/1.
Issue no.7 , 8 & 9
53. Whether the plaintiff is entitled to decree for an amount of Rs. 3,30,000/ towards the damages /mense profits? (OPP) Whether the plaintiff is entitled to any interest for damages, if yes, at what rate and for which period? (OPP) Whether the plaintiff is entitled for directions of the defendants as prayed in Para C of the Plaint? (OPP) @Contd/ .....
40
54.Plaintiff has sought mesne profit @15000/ per month from the defendant w.e.f. February'2002 onwards apart from interest @24% per annum pendentlite and till actual realisation of possession. She has admittedly not filed any document on record to show that the suit property is as per plaint consisted of just one room , kitchen and toilet apart from open terrace.
55.In case titled D.C.Oswal vs, V.K.Subbiah AIR 1992 SC 184 ,Hon'ble Supreme Court observed that:
"we would , however, like to add that judicial notice can be taken of the fact that rental has escalated everywhere and appropriate rent in the present case should be raised. . . . . "
In case titled Vinod Khanna vs. Bakshi Sachdeva AIR 1996 Delhi 32 Hon'ble Delhi High Court while dealing with a case where no specific evidence was brought qua current rental which the property could fetch, observed that:
@Contd/ .....41
" However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we can not see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. "
56.It is settled legal proposition that suit property must be having some rental value if not Rs.15000/ as sought to be made out by plaintiff . Since it is just one room, one kitchen and toilet, in my considered view the rental value , 8 years ago in this property can be assessed to Rs.3,000/ per month from 15th February'2002 onwards up to December'2003. From January'2004 it shall be assessed with 10% enhancement each year i.e. 3300/ for the year 2004, Rs.3630/ for the year 2005 so on and so till the date of actual vacation. This issue is answered accordingly. RELIEF
57.In the light of the aforesaid discussion, suit of the plaintiff stands decreed nd with cost. Let a decree of possession of the suit property i.e. entire 2 @Contd/ .....
42floor of property no. BG7/146, Paschim Vihar, New Delhi shown in red in site plan Ex.PW1/1 be passed in favour of plaintiff , decree awarding damages / rent to the plaintiff @3000/ per month from 15th February'2002 onwards up to December'2003. From January'2004 it shall be assessed with 10% enhancement each year i.e. 3300/ for the year 2004, Rs.3630/ for the year 2005 so on and so till the date of actual vacation be also prepared accordingly. Deficient Court fees shall be filed by plaintiff. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON 30.11.2010 (SURINDER S. RATHI)ADJ07 CENTRALDELHI @Contd/ .....
43
CS NO: 888/08 Ms. Meena Mathur Vs. Ms. Sushila Devi 30.11.2010 Pr: Ld. Counsel for plaintiff Sh.Diwan Singh Chauhan advocate Ld. Counsel for defendant Sh. J.C. Mahindru advocate FA heard at length from both the sides and file perused. Vide a separate judgment of the day suit of the plaintiff stands decreed with cost.
nd Let a decree of possession of the suit property i.e. entire 2 floor of property no. BG 7/146, Paschim Vihar, New Delhi shown in red in site plan Ex.PW1/1 be passed in favour of plaintiff , decree awarding damages / rent to the plaintiff @3000/ per month th from 15 February'2002 onwards up to December'2003. From January'2004 it shall be assessed with 10% enhancement each year i.e. 3300/ for the year 2004, Rs.3630/ for the year 2005 so on and so till the date of actual vacation be also prepared accordingly. File be consigned to RR.
(SURINDER S. RATHI) ADJ07:CENTRALDELHI 30.11.2010 @Contd/ .....
44@Contd/ .....