Delhi District Court
Smt. Raghubiri (Sr. Citizen) vs Sh. Manoj on 24 October, 2011
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS: DELHI.
CIVIL SUIT NO. 317 OF 2010
(UNIQUE CASE I.D. NO.02402C0323542010)
SMT. RAGHUBIRI (SR. CITIZEN)
W/O SH. ATAR SINGH PANCHAL
R/O H.NO. F317, GALI NO.6,
GANGA VIHAR,
DELHI110094. ............ PLAINTIFF
Versus
1. SH. MANOJ
S/O SH. ATAR SINGH PANCHAL
2. SH. DEVENDER
S/O SH. ATAR SINGH PANCHAL
3. SMT. MANJU
W/O SH. MANOJ
4. SMT. SUNITA
W/O SH. DEVENDER
ALL RESIDENTS OF
H.NO. F317, GALI NO.6,
GANGA VIHAR,
DELHI110094. ........... DEFENDANTS
Suit No.317/10 Pages: 1/20
Date of institution : 18.11.2010
Order reserved on : 17.10.2011
Date of Decision : 24.10.2011
SUIT FOR POSSESSION, PERMANENT AND MANDATORY
INJUNCTION AND DAMAGES/ MESNE PROFITS
J U D G M E N T :
1. The plaintiff has filed the present suit for possession, permanent and mandatory injunction and damages/ mesne profits against the defendants.
2. The facts of the case, as stated in the plaint, are that plaintiff is the absolute owner and in possession of the property bearing house no. 317, measuring 90 sq. yards in gali no. 6, Ganga Vihar, Delhi94 constructed upto second floor. The property is the self acquired property of the plaintiff purchased in the year 1973 and constructed by the plaintiff from her own funds. The defendants no. 1 and 2 are the sons and defendants no. 3 and 4 are daughters in law of the plaintiff. The husband of the plaintiff is mentally retired person and confined to bed permanently. The plaintiff is in possession of ground floor of the property and the defendants are in possession of the entire Suit No.317/10 Pages: 2/20 first and second floors of the suit property. Defendants are not fulfilling their moral obligations towards their parents and rather are causing immense mental and physical harassment to the plaintiff. They are also having evil eyes on the suit property and want to grab the same by ejecting the plaintiff and transferring it without any right, title or interest therein. The plaintiff is an old age lady of 75 years old and having frail health and is unable to do any work for her livelihood but the defendants are not supporting her and are not providing basic facilities to her. The plaintiff had letout three rooms on rent but the defendants are not allowing her to collect the rent from the tenants and they have been illegally and unauthorizedly collecting the rent from the tenants. Once the plaintiff was asked by the defendants to put her thumb impressions on some paper on the pretext of applying for a separately electricity connection but the plaintiff later on came to know that defendants have prepared some forged documents pertaining to the ownership of the suit property and the original documents are also in the illegal custody of the defendants. The defendants also tried to dispossess the plaintiff by beating her Suit No.317/10 Pages: 3/20 on 08.06.2010 and plaintiff filed a complaint to the police on 09.06.2010. The plaintiff does not want to permit the defendants to continue to live in the suit property and she sent a legal notice dated 13.10.2010 asking them to vacate the suit property under their occupation and returned the original documents of ownership alongwith the documents on which defendants have obtained her thumb impressions but defendants have not complied with the same. The defendants are unauthorized occupants in the suit property and the plaintiff is entitled for damages @ Rs.10,000/ p.m. from them. When the defendants did not comply with the notice, the plaintiff was constrained to file the present suit.
3. Summons of the suit were served on the defendants and defendants have filed joint WS raising preliminary objections that the present suit is abuse of process of law; the plaintiff has no locus standi to file the suit as she has no legal right or interest in the suit property and the plaintiff has not approached the court with clean hands.
On merits, the contents of the plaint have been denied except the relationship between the parties. It has been stated that Suit No.317/10 Pages: 4/20 defendants no. 3 and 4 are the absolute owners of 45 sq. yards each of the suit property vide two GPA and receipts dated 10.04.2000 executed by the plaintiff in their favour. It has also been stated that the plaintiff sold the property after taking a consideration of Rs.60,000/ each from the defendants no. 3 and 4 and handedover the possession of the suit property to them. It has also been stated that the suit property was purchased by the father of defendants no. 1 and 2 from his own funds. It has also been stated that the suit property is only constructed upto first floor and the entire ground floor is in possession of the defendants and one room on the first floor is in possession of the plaintiff and remaining portion on the first floor is in the possession of the tenants. Other contents of the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. Vide order dated 05.03.2011 the defendants were restrained from selling, mortgaging, alienating or creating any third party Suit No.317/10 Pages: 5/20 interest in the suit property till the final disposal of the suit.
6. On 24.03.2011, the following issues were framed :
1) Whether the plaintiff has no locus standi to file the present suit? OPD
2) Whether the defendants no. 3 and 4 are the owners of 45 sq. yards each of the suit property having purchased the same from the plaintiff for valuable consideration? OPD
3) Whether the plaintiff is entitled for the relief of possession as prayed for? OPP
4) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
5) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for: OPP
6) Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and for which period? OPP
7) Relief.
7. Thereafter, the parties were directed to lead their evidence. In support of her case, the plaintiff has examined herself as PW1 and filed her examination in chief by way of affidavit Ex.PW1/1. PW1 has also proved on record the site plan of Suit No.317/10 Pages: 6/20 the suit property as Ex.PW1/A; complaint dated 16.10.2010 as Ex.PW1/C; legal notice as Ex.PW1/D; its postal receipts as Ex.PW1/E (Colly.); photocopy of GPA executed on 14.02.1983 as MarkA; photocopy of Agreement for Sale executed on 14.02.1983 as MarkB; photocopy of Receipt for Rs.4,500/ executed on 14.02.1983 as MarkC; photocopy of electricity bill for September 2004 as MarkD; photocopy of Ration Card dated 21.07.2005 as MarkE and complaint to SHO, P.S. Gokal Puri, Delhi dated 09.06.2010 as MarkF and closed her evidence.
8. Defendant, on the other hand, has examined Smt. Sunita as DW1 who filed her examination in chief by way of affidavit as Ex.DW1/1. DW1 has also proved on record the GPA dated 10.04.2000 as Ex.DW1/A; Agreement to Sell dated 10.04.2000 as Ex.DW1/B; payment receipt dated 10.04.2000 as Ex.DW1/C and Possession Letter as Ex.DW1/D. The defendant also examined Smt. Manju who filed her examination in chief by way of affidavit as Ex.DW2/1. DW2 also relied on the documents Ex.DW1/A to DW1/D. The defendant Suit No.317/10 Pages: 7/20 examined himself as DW3 and filed his examination in chief by way of affidavit Ex.DW3/1. The defendant also examined Sh. Bharat Bhushan as DW4 who filed his examination in chief by way of affidavit as Ex.DW4/1. He identified his signatures on the documents Ex.DW1/A to Ex.DW1/D at points C1 to C4 and D1 to D4. Thereafter, the defendant no.1 closed his evidence.
9. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendants and have perused the record carefully. My findings on the issues are as under : ISSUES NO.1 AND 2 :
10.Both these issues are taken up together as they require common discussion. The onus of proving these issues was on the defendants. It has been argued that the plaintiff has no locus standi to file the present suit as she is not the legal owner of the suit property. It has been argued that the suit property was purchased by the father of the defendants no. 1 and 2. It has further been argued that the defendants no. 3 and 4 had purchased 45 sq. yards each of the suit property from the plaintiff against valuable consideration of Rs.60,000/ each. It Suit No.317/10 Pages: 8/20 has also been argued that the plaintiff had also handedover the possession to defendants no. 3 and 4 at the time of execution of the sale documents. The defendants have placed reliance upon the General Power of Attorney, Agreement to Sell, Payment Receipt and Possession Letter Ex.DW1/A to Ex.DW1/D in favour of defendants no. 3 Smt. Manju and GPA, Agreement to Sell, Payment Receipt, Possession Letter Ex.DW2/A to Ex.DW2/D in favour of defendant no.4 Smt. Sunita in support of their arguments.
11. Ld. Counsel for the plaintiff, on the other hand, has argued that the plaintiff is the legal owner of the suit property and the occupation of the defendants is merely that of permissive users. It has also been argued that the plaintiff in her affidavit by way of evidence has categorically denied the factum of execution of sale documents in favour of defendants no. 3 and 4. She has also denied the receipt of consideration from defendants no. 3 and 4 and has testified that her thumb impressions were obtained by the defendants under misrepresentation that the documents were required for the purpose of obtaining electricity connection. The defendants, on the other hand, have Suit No.317/10 Pages: 9/20 examined DW1 to DW4 in support of their case and have reiterated the facts stated in their WS.
12.Perusal of the documents Ex.DW1/A to DW1/D and DW2/A to DW2/D would show that all these documents are unregistered documents and they are not duly stamped also. Section 54 of the Transfer of Property Act provides that the sale of a property can only take place by execution of the sale deed. Section 17 of the Registration Act further provides that any document transferring title in immovable property of the value of more than Rs.100/ can only be done by registered document. Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. 2011 X AD (S.C.) 365 has held : "SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid Suit No.317/10 Pages: 10/20 substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law. It was further held by Hon'ble Supreme Court that :
"We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales".
Suit No.317/10 Pages: 11/20
13.In view of the aforesaid judgment of Hon'ble Supreme Court of India and also in view of the fact that as per Section 49 of the Registration Act, 1908, the documents relied upon by the defendants are incapable of affecting any immovable property and are also inadmissible in evidence, I am of the considered opinion that the defendants have failed to discharge the onus that defendants no. 3 and 4 have become the owners 45 sq. yards each of the suit property having purchased the same from the plaintiff for valuable consideration or that the plaintiff has no locus standi to file the present suit. The defendants have also failed to produce any evidence to show that the suit property was purchased by their father and not by the plaintiff. Accordingly the issues are decided against the defendants and in favour of the plaintiff.
ISSUE NO.3 :
14. The onus of proving this issue was on the plaintiff. The plaintiff has filed the present suit on the ground that she is the owner of the suit property and defendants were living in the suit property being her sons and daughters in law respectively.
However, the behaviour and attitude of defendants towards the Suit No.317/10 Pages: 12/20 plaintiff and her husband was not proper and respectful and they have been causing mental as well as physical harassment to her. The plaintiff terminated the permissive user of the defendants by legal notice dated 13.10.2010 Ex.PW1/D sent by registered post but the defendants have not vacated the suit property.
15.The defendants had taken the defence that defendants no. 3 and 4 had purchased the suit property from the plaintiff for a valuable consideration of Rs.60,000/ each and thus, the defendants no. 3 and 4 have become owners of 45 sq. yards each of the suit property and the plaintiff was left with no right, title or interest in the same. The defendants in their WS although, denied the plaintiff to be the owner of the suit property and claimed that their father was the owner of the suit property but as noticed above, the defendants have failed to establish their defence. The ownership of the suit property in favour of the plaintiff is established from the fact that defendants no. 3 and 4 themselves claimed to have purchased the suit property from the plaintiff thereby admitting her to be the owner of the suit property. The defendants have not Suit No.317/10 Pages: 13/20 claimed their possession in the suit property in any other legal capacity such as tenant or licencee etc.
16.Hon'ble High Court of Delhi in Neetu Mittal Vs. Kanta Mittal & Ors., 2009 (1) CCC 301 has held that : "the son can live in the house of parents as a matter of rights only if, house is an ancestral house in which the son has a share and he can enforce partition. Where the house is self acquired house of the parents, son, whether married or unmarried has no legal right to live in that house and he can live there only at the mercy of his parents upto the time the parents allowed. Merely because, the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life".
17. In the present case, the plaintiff has proved on record that she had terminated the permissive user of the defendants due to their bad behaviour towards the plaintiff and her husband. Vide notice Ex.PW1/D, she also proved on record the postal receipts as Ex.PW1/E. The defendants have not specifically denied the receipt of legal notice either in the WS or in their evidence.
Suit No.317/10 Pages: 14/20 Hence, the legal notice is deemed to have been served on him.
18.However, the perusal of the plaint shows that the plaintiff has claimed the relief of possession in respect of the suit property shown in red colour in the Site Plan attached with the plaint. The plaintiff in her evidence by way of affidavit has also claimed the same relief. However, the Site Plan Ex.PW1/A relied upon by the plaintiff does not show any portion in red colour of which the possession has been claimed by the plaintiff. The plaintiff was required to mention specific portions in the pleadings as well as site plan regarding which she wants to claim the relief of possession. In the absence of any such portion being shown in the Site Plan, the relief of possession cannot be granted to the plaintiff. The issue is accordingly decided against the plaintiff and in favour of the defendants.
ISSUE NO.4 :
19.The onus of proving this issue was on the plaintiff. The plaintiff has prayed for a relief of permanent injunction stating that the defendants be restrained from selling, transferring, mortgaging, alienating or parting with possession or creating Suit No.317/10 Pages: 15/20 third party interest in respect of the suit property, as shown in red colour in the Site Plan Ex.PW1/A.
20.As noticed in the foregoing paras, the plaintiff has not demarcated any portion of the property in red colour in the Site Plan Ex.PW1/A regarding which the relief of permanent injunction has been claimed by her. Hence, this relief also cannot be granted to the plaintiff. The issue is accordingly decided in favour of the defendants and against the plaintiff. ISSUE NO.5 :
21. The onus of proving this issue was on the plaintiff. The plaintiff has claimed that the defendants had obtained her signatures on the blank documents and they misrepresentation and the same are required for electricity connection. A decree for mandatory injunction has been prayed for, for directing the defendants to handover those documents to the plaintiff which they illegally converted into title documents of the suit property and also the original title documents of the suit property which are in their illegal custody.
22.In view of my findings on the issues no. 1 and 2 herein above, since the defendants have failed to establish that defendants no.
Suit No.317/10 Pages: 16/20 3 and 4 had purchased the suit property for valuable consideration, the defendants are not entitled to retain the documents Ex.DW1/A to DW1/D and Ex.DW2/A to DW2/D and also the original title documents of the suit property with them. Hence, the plaintiff is entitled for the relief of mandatory injunction, as prayed for. The issue is accordingly decided in favour of the plaintiff and against the defendants. ISSUE NO.6 :
23.The onus of proving this issue was on the plaintiff. The plaintiff has claimed damages/ mesne profits from the defendants for illegal use and occupation of the property claiming damages @ Rs.10,000/ p.m. from the date of filing of the suit till the possession of the suit property is handedover to her. The plaintiff has proved the notice for termination of permissive user of the defendants as Ex.PW1/D and the postal receipts as Ex.PW1/E. The defendants have failed to prove their right, title or interest in the suit property and their possession was merely of permissive nature. After the termination of their permissive occupation, they are under a legal obligation to pay mesne profits/ damages to the plaintiff Suit No.317/10 Pages: 17/20 till they do not handover the vacant and peaceful possession of the suit property to the plaintiff.
24.The plaintiff, however, has not examined any other witness except herself for proving the rate of damages and she has simply testified that defendants are causing damages to the plaintiff which comes to Rs.10,000/ p.m., as per the prevailing market rate of the area. However, no witness has been examined to prove the prevailing market rate of rent.
25.The defendant no.2 in her crossexamination has, however, admitted that the portion under her occupation can fetch a rent of Rs.3,000/ p.m. if the same is letout on rent. Defendant no.3 has also admitted that the property in his occupation can fetch a rent of Rs.2,400/, if letout on rent.
26.Hence, even if it is assumed that the plaintiff has not been able to prove that the suit property can fetch a rent of Rs.10,000/ p.m., going by the admissions of DW2 and DW3, it can be safely held that the portion in occupation of defendants no. 1 and 3 can easily fetch rent of Rs.2500/ p.m. Similarly, the portion in occupation of defendant no.2 and 4 which is almost equal in size can also fetch same rent, if letout to the tenants.
Suit No.317/10 Pages: 18/20 Accordingly, I am of the opinion that defendants no.1 and 3 and 2 and 4 can be directed to pay to the plaintiff damages/ mesne profits @ Rs.2,500/ p.m. each for the illegal use and occupation of the suit property. The issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO.7 (RELIEF) :
27. Thus, in view of my findings on the aforesaid issues, the suit of the plaintiff is dismissed qua the relief of possession and permanent injunction. However, the suit of the plaintiff is decreed for the relief of mandatory injunction and damages/ mesne profits. A decree of mandatory injunction is passed in favour of the plaintiff and against the defendants and the defendants are directed to handover the original title documents of the suit property to the plaintiff alongwith the sale documents which were obtained by them from the plaintiff within one month from the date of passing of the decree.
28.The defendants shall also be liable to pay damages @ Rs.5,000/ p.m. to the plaintiff from the date of institution of the suit till the vacant possession of the suit property is handed over to the plaintiff. Defendants no. 1, 2, 3 and 4 shall pay the Suit No.317/10 Pages: 19/20 damages in equal proportion to the plaintiff. The plaintiff shall calculate the Court Fees for the relief of damages and pay the deficiency, if any, within 15 days from today. Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court Dated : 24th October, 2011 (ANIL KUMAR SISODIA) Senior Civil JudgeCumRent Controller (NE) Karkardooma Courts, Delhi.
Suit No.317/10 Pages: 20/20
Suit No.317/10
24.10.2011 :
Present :
Vide separate judgment announced in open court today, the suit of the plaintiff is partly decreed. The suit is dismissed for the relief of possession and permanent injunction and decreed for the relief of mandatory injunction and damages/ mesne profits.
The plaintiff shall calculate the court fees for the relief of damages/ mesne profits and deficiency, if any, shall be removed within two weeks. Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
(ANIL KUMAR SISODIA) SCJCUMRC (NE) KARKARDOOMA COURTS DELHI/24.10.2011.
Suit No.317/10 Pages: 21/20