Delhi District Court
Sh. V.K. Katyal S/O Late Sh. D.D. Katyal vs Sh. Amit Katyal S/O Sh. V.K. Katyal on 20 December, 2014
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE01: SOUTH EAST DISTRICT:
SAKET COURTS: NEW DELHI
C.S. No. 69/13
1. Sh. V.K. Katyal S/o Late Sh. D.D. Katyal
2. Smt. Rajni Katyal W/o Sh. V.K. Katyal
Both are resident of B265, Greater KailashI,
New Delhi 110048 ..... Plaintiffs
Versus
1. Sh. Amit Katyal S/o Sh. V.K. Katyal
2. Smt. Anjali Katyal W/o Sh. Amit Katyal
Both are resident of
2nd Floor of D29, Jangpura Extension,
New Delhi 110014 ..... Defendants
J U D G M E N T
1. This is an application under order XII rule 6 read with Section 151 CPC filed by the plaintiffs /applicants for eviction of the defendants from the portion of the suit premises.
2. Applicants/plaintiffs mentioned in their application that they are the senior citizens who had purchased the suit premises i.e 2nd floor of D29, Jangpura Extension, New Delhi110014 on CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 1 of 19 05.11.2004, out of their own resources. Applicants alongwith their daughter namely Bhawna Katyal have been residing in the aforementioned premises. Defendant no.1 Amit Katyal son of plaintiffs Sh. V. K. Katyal and Smt. Rajni Katyal got married on 17.03.2005 and pursuant thereto, defendants migrated to Sydney, Australia and remained there till December, 2008.
3. When defendants returned back to India, plaintiffs allowed them to reside in the portion of the suit premises, specifically marked in "orange" colour in the site plan annexed with the plaint. Defendant no. 1 Amit Katyal is a building contractor and takes up assignments throughout India. In July, 2012, defendant no.1 Amit Katyal took up an assignment in Dehradun and resides there for some days and after that he returned back to the house of plaintiffs. Plaintiffs were unable to adjust with the habits of late evening out/partying of defendant no. 2 Smt. Anjali Katyal, specially in the absence of defendant no. 1 Amit Katyal. On objections being raised by the plaintiffs, defendant on. 2 Anjali Katyal demonstrated hostile attitude. When plaintiffs raised the said issue with the parents CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 2 of 19 of defendant no. 2, suffered an altercation and rowdy behaviour of the father of defendant no.2. This abnormal and unexpected behavior has taken a toll on the health of plaintiff no. 1 V.K. Katyal. It was pursuant to the said incidence, plaintiff terminated the permissive use of defendants and required them to immediately vacate the premises. Thereafter, applicants /plaintiffs and their daughter have been openly threatened by defendant no.2 and her family members and under these circumstances plaintiffs have shifted with their daughter.
4. Defendant no. 2 filed a written statement on 17.01.2014. Smt. Anjali Katyal i.e defendant no.2 agreed with this fact that plaintiffs are the owners of the property i.e D29, Jangpura Extension, New Delhi but the said property was purchased with the joint family funds and defendant no.1 is one of the coowners/co sharer in the said property alongwith the plaintiffs. Defendant no.2 admitted in her WS that suit property was purchased by the plaintiffs from their own funds and it is absolutely false that entire amount was paid from the accounts of the plaintiffs and the value of the CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 3 of 19 property is much more at the time of filing of present suit.
5. Plaintiff submits that there is nothing on record disclosed by defendant no.2 that any amount whatsoever has been paid by defendant no.1 or any other sources, except the personal resources of the plaintiffs. Registered Sale deed in favour of plaintiffs of the suit property is not in issue or disputed by the defendants. This suit property was purchased one year prior to the marriage of defendants. Defendants have been unauthorisedly in possession of the suit premises whereas the owners of the suit property have been ousted from the suit premises.
6. Reply on the aforesaid application filed by defendant no.2 Anjali Katyal. Defendant no.2 submitted that the present application is not maintainable. At the very outset, it is submitted that recourse to the provisions of Order 12 Rule 6 CPC can only be taken in case where admission of facts has been made but in the present case, no such admission of facts has been made and as such the present application is liable to be dismissed.
7. Defendant no.2 raised the objection that there is a CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 4 of 19 dispute in the matter and issues have to be framed and only by leading the evidence matter can be decided. In these circumstances, the provisions of order 12 rule 6 CPC can not be invoked and the present application is not maintainable.
8. It is further submitted by defendant no.2 that the property in question has always been a shared household as the plaintiffs and the defendants have been living together. Plaintiffs, defendant no.1 and daughter of plaintiff Bhawana Katyal have taken crores of rupees from defendant no.2 with the assurance that she has full right in the property in question. Defendant no.2 also mentioned in her reply that first time by way of present application, plaintiff no. 1 disclosed his address as that of B265, Greater Kailash, PartI, New Delhi but has not disclosed as to under what capacity he is living there.
9. Defendant no.2 submitted that the suit premises is the shared household of the parties but it is not disputed that the defendant is a building contractor and has been moving around due to his work assignments but that does not mean that the parties were CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 5 of 19 not living in the shared household. Defendant no.2 continued to live in the same house and even shared the joint kitchen.
10. It is further submitted by dependent no.2 that the plaintiffs were unable to adjust with the alleged habit of late evening outs/partying of the defendant no.2 as alleged. The plaintiffs are now leveling defamatory statements against the defendants just to malign their reputation and to get rid from her because the defendant no.2 refused to satisfy their illegal demands of extracting money from her as well as from her parents to which the defendant no.2 and her parents had been satisfying their demands from time to time and have got all their proofs to prove this case.
11. It is absolutely false that the defendant no.2 ever demonstrated any hostile attitude towards the plaintiffs or the defendant no.1 or the daughter of the plaintiff. Defendant no.1 had made a statement before the Crime Against Women Cell that he would be staying with defendant no.2 but it was all preplanned and the plaintiffs and defendant no.2 backed out from their assurances.
12. Defendant no.2 submits that no incident ever took place CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 6 of 19 between the parties, the raising of the issue by the plaintiffs with the parents of defendant no.2, does not arise and at no point of time, any altercation or rowdy behaviour was ever shown by the father of defendant no.2. It is absolutely false that any abnormal or any unexpected behaviour had taken a toll on the health of plaintiff no.1. The notice has been issued just to get the divorce of their son from defendant no.2 and to harass her.
13. It is absolutely false that plaintiffs or their daughter have ever been threatened by defendant no.2 or her family members. As regards defendant no.1 is concerned, the plaintiffs and defendant no.1 are already in collusion with each other and the present suit is an outcome of the said collusion. The details are not to be brought into the written statement. The same are to be brought by way of evidence and documents. Thus, the submission made herein is absolutely baseless. Defendant no.2 has filed various statements of account and details of the statement of accounts are yet to be received by her from Austrilia. The suit can not fall under the provisions of Benami Transaction Act. The facts stated in the plaint CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 7 of 19 are to be proved by way of evidence and the facts stated by defendant no.2 are also to be proved by way of evidence and as such the present application is not maintainable.
14. Simply execution of the documents does not permit the plaintiffs to move an application under order 12 rule 6 of CPC. The property is a shared household of the parties and the defendant no.2 is still residing in the said property but the plaintiffs have not disclosed their address till date.
15. Defendant no.2 submits that it is absolutely false that she is in unauthorizedly in possession of the suit premises. It is absolutely false that the alleged owners of the suit property have been ousted from the suit property. It is absolutely false that the plaintiffs are entitled for any damages for the use and occupation of the suit premises. It is absolutely false that no dispute has been raised about the right, title and interest of the plaintiffs in the suit premises.
16. I have heard the arguments raised before me and gone through the record available.
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17. The plaintiffs are parents of defendant no.1 and parents inlaw of defendant no.2. From the arguments and the record, it is revealed that there has been matrimonial dispute going on between the parties wherein a criminal complaint has also been filed against defendant no.1 by defendant no.2. The plaintiffs have filed the present suit for eviction, damages and mesne profit against their son and daughter in law. Notice to both the defendants were issued. Pursuant to the notice, defendant no.1 who is son of the plaintiff appeared through his counsel, however, he had filed an affidavit submitting that he does not want to contest the suit. His affidavit for noncontesting the suit has already been taken on record by my learned Predecessor vide his order dated 16.12.2013. Pursuant to the notice, defendant no.2 also put her appearance through her counsel and filed her WS. Plaintiffs have moved this application submitting that defendant no.2 while filing her written statement admitted that the owners of the property are her inlaws. Perusal of written statement filed by defendant no.2, it reveals that in para 1 of the WS i.e reply on merits defendant no.2 stated that "it is not disputed that CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 9 of 19 the plaintiffs are the owners of second floor of the property bearing no. D29, Jangpura Extension, New Delhi, but the said property was purchased with the joint family funds and the defendant no.1 is one of the coowners/cosharer in the suit property alongwith the plaintiffs". Defendant no.2 further submitted that she had been spending various amounts over the renovation of the property from time to time which the plaintiffs and defendant no.1 had been forcing her to do and after squeezing the huge amount from the defendant no.2. Plaintiffs and defendant no.1 in collusion and in connivance with each other started harassing and humiliating the defendant no.2 by all possible means and methods.
18. Perusal of the saledeed placed on the record by the plaintiffs reveals that the suit property was purchased way back in 2004 prior to the marriage of defendant no.1 & 2. It is admitted fact that the marriage of defendants were solemnized in the year 2005 and it was registered with SubRegistrar on 18.03.2005. In absence of defendant no.1, the version of defendant no.2 remained uncorroborated that the suit property was purchased from the joint CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 10 of 19 family funds and the defendant no.1 is one of the coowners/co sharer in the suit property.
19. In para 5 of reply to the application under Order XII Rule 6 CPC defendant no.2 stated that the property in question has always been a shared household as the plaintiffs and defendants have been living together. It is alleged that plaintiffs, defendant no.1 and the daughter of the plaintiffs Ms. Bhawna Katyal have taken crores of rupees from the defendant no.2 with the assurance that defendant no.2 has full right in the property in question. Nothing has been brought by the defendant no.2 on the record to show that any amount has been advanced towards the plaintiffs as alleged.
20. On this aspect, this court has sought clarification from the parties. In written submissions filed by the defendants in response to the clarification sought, is also not discloses that what amount defendant no.2 has advanced to the plaintiffs. Nowhere in the accounts statement filed by defendant no.2 it is visible that any amount has been transferred towards the bank account of the plaintiffs. All the transfers shown in the accounts statement reveals CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 11 of 19 that these amounts were paid towards the household expenses when the defendant no.1 and 2 were residing in Australia.
21. During the course of arguments Ld. Counsel for defendant no.2 submitted that plaintiffs had been accepting the money from defendant no.2 and that the defendant no.2 was returned only a sum of Rs. 3,00,000/ and that too just before filing of the present suit and this clearly shows that plaintiffs have received various amounts from time to time from the defendant no.2. Now again the query arises as to when the amount was handed over to the plaintiffs by defendant no.2, how much amount was handed over and in which manner the amount was paid to the plaintiffs by defendant no.2. The queries remained unexplained. Merely by saying that plaintiffs have given Rs. 3,00,000/ to the defendant no.2 cannot be justified that the plaintiffs have taken money from defendant no.2.
22. Ld. Counsel for the plaintiffs also drawn my attention towards the order passed in a criminal complaint filed by defendant no.2 against defendant no.1. Perusal of the order reveals that while CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 12 of 19 advancing her arguments, Ld. Counsel for defendant no.2 admitted that there is no documentary evidence reflecting transfer of money at any stage from complainant or her parents to the accused / applicant or his parents. It was further observed in the order that Ld. Counsel for the complainant / defendant no.2 argued therein that a cheque of Rs. 2,00,000/ was issued by the father of the complainant / defendant no2 and on court query as to in whose name that cheque was issued, complainant / defendant no.2 admitted there that the cheque was issued in her own name and not in the name of accused / defendant no.1.
23. The averments, made in the reply of application under Order XII Rule 6 CPC as well as in the written statement filed by defendant no.2, are seem to be after thought and concocted story by defendant no.2 to establish her right in the suit property. In whole of the reply of the present application defendant no.2 has stated that she has contributed in the household expenses. It is rather submitted by defendant no.2 that she has lonely met with all the expenses incurred on the household affairs. It is seen that all these averments CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 13 of 19 pertains to the period when defendants were residing in Australia and where the petitioners were not residing.
24. In para 9 of the reply to the application under Order XII Rule 6 CPC defendant no.2 submitted that she had pleaded various grounds in her written statement and she will file the documents in due course. However, till date no documents has been filed to show that the suit in question has any ownership dispute.
25. Ld. Counsel for defendant no.2 relied upon judgment cited as Preeti Satija Vs. Raj Kumari & Anr. reported as 207 (2014) DLT 78 (DB). The facts of the referred case is different as there was a dispute with regard to the ownership property and also there was a question of Will whether it was probated or not and whether it is proved or not. Herein in this case there is no dispute with regard to the title of the suit property since the property was purchased prior to the marriage of defendants. Ld. Counsel for defendant no.2 also relied upon case titled as Lubeman Addiotives (P) Ltd. & Ors. Vs. Lubrioil Worldwide Inc. reported as 192 (2012) DLT. The facts of this judgment is again different from the CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 14 of 19 facts of the present case as there was a disputed question of facts. Here in the present case, the ownership of the plaintiff was established prior to filing of the suit.
26. Ld. Counsel for defendant no.2 further relied upon judgment of Hon'ble Supreme Court in case titled as Himani Alloys Ltd. Vs. TATA Steel Ltd wherein respondent sought for a decree under Order XII Rule 6 CPC alleging that appellant therein had admitted his liability in the minutes of meeting held on 09.12.2000. Here in the present case, defendant no.2 has admitted the fact of ownership of plaintiffs in her WS which is a part of the pleadings of the present case. Hence, this judgment is also of no help to the defendant no.2.
27. On the other hand, Ld. Counsel for the plaintiffs relied upon judgment titled as Sardar Malkiat Singh Vs. Kanwaljeet Kaur decided by Hon'ble High Court of Delhi in RFA 183/2006 and CM No. 4575/2006 wherein it was held that no moral obligation upon the fatherinlaw to provide residence to daughterinlaw who even otherwise was living separately.
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28. Ld. Counsel for plaintiffs further relied upon case law titled as Varun Kumar Nahar Vs. Parul Nahar reported as 199 (2013) DLT wherein it was held that defendant being a daughterin law has no right to reside in subject property which belongs to her fatherinlaw as said property is not covered by definition of shared household.
29. Ld. Counsel for plaintiffs further relied upon case law titled as Shumita Didi Sandhu Vs. Sanjay Singh Sandhu FAO (OS) 341/2007 wherein it is held that daughterinlaw could not claim any right to stay in the property belonged to her parentsinlaw. Property which neither belongs to husband nor was taken on rent by him, nor was it a joint family property in which husband was a member could not be regarded as a shared household.
30. In case titled S.R. Batra Vs. Taruna Batra case Hon'ble Supreme Court has held as under:
"As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 16 of 19 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant no.2, mother of Amit Batra. Hence it cannot be called a shared household."
31. Here in the case in hand also, the property was solely purchased by the petitioners from their own resources and that too prior to the marriage of the defendants. Defendant no.2 has admitted the factum of ownership in her WS.
32. Defendant no.2 has filed a bunch of account statement wherein the payment have been made by her debit card or the net banking transfers but not a single entry has been shown that the amount has been paid towards the account of plaintiffs. The admission on the part of defendant no.2 is clear and unequivocal CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 17 of 19 admission.
33. In view of the above facts and circumstances as well as settled law on this aspect, I am of the considered view that plaintiffs are the owners of the suit property and they have no legal duty/responsibility to maintain the daughterinlaw under the protection of woman from Domestic Violence Act, 2005 also. Plaintiffs are residing separately from the defendants in a tenanted premises alongwith their daughter. Plaintiffs have every right to live their rest of life in their own house with peace and happiness. Plaintiffs have bonafide requirement of their own house in their twilight days.
Therefore, in view of the clear and unequivocal admission of defendant no.2 and considering the facts and circumstances of the case, application of the plaintiffs under Order XII Rule 6 CPC is allowed and the suit of the plaintiffs is partly decreed, accordingly a decree of possession of property no. D29, Second Floor Jangpura Extension, New Delhi 110014 is passed in favour of the plaintiffs and against the defendants. Defendant no.2 is CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 18 of 19 directed to hand over the physical vacant peaceful possession, as per site plan filed alongwith the suit, which is now being exhibited as Ex.PX, to the plaintiffs within thirty days from today. Parties are to bear their own costs. Application stands disposed off accordingly.
Announced in the open (LALIT KUMAR)
Court on 20.12.2014 ADJ01: South East District
Saket, New Delhi
This judgment contains nineteen pages
and each page bears my signatures.
CS No. 69/13 V.K. Katyal & Ors. Vs. Amit Katyal & Ors Page 19 of 19