Delhi District Court
Savitri Devi vs Kavita on 30 January, 2025
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 93/2016 26280/16
CNR NO. DLSW030004132016
IN THE MATTER OF :
Smt. Savitri Devi
W/o Sh. Puran Singh,
R/o 1684/32, Todarmal Colony, Najafgarh,
New Delhi-110043 ......... Plaintiff.
Versus
Smt. Kavita
W/o Late Shri Yashpal Singh,
R/o 1684/32, Todarmal Colony,
Najafgarh, New Delhi-110043 ........... Defendant
Date of filing : 21.03.2016
Date of Institution : 30.03.2016
Date of pronouncing judgment : 30.01.2025
SUIT FOR RECOVERY OF POSSESSION &
MESNE PROFITS.
JUDGMENT.
By this judgment this Court shall dispose of a suit for
recovery of possession and mesne profits. Before
adjudicating upon the issues framed in the present suit, it
necessary to dwell upon the plethora of pleadings in the
present suit.
1. It is averred that the plaintiff is actual and rightful owner
of the property bearing no.1684/32, Out of khasra No.
32/11, Situated at Village Najafgarh, area Abadi known as
Todarmal Colony, Najafgarh, New Delhi. The said
property is a built up property.
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.30
17:19:46 +0530
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 1 of 37
2. It is averred that the Plaintiff has purchased the above said
property on 03/07/1997 from one Sher Ratan Singh S/0
Shri Basanta Ram, R/o Village Bhabroda, District Rohtak,
Haryana against valuable consideration of Rs. 1,90,000/-
and execution of title documents dated 03/07/1997
including registered Will in her favour. The plaintiff since
then was/is in peaceful possession of the said property and
was enjoying her life with her husband, son Yashpal and
the Defendant. Two sons of the Plaintiff namely Ved and
Vidhur are living out of Delhi with their respective family
members.
3. It is further averred that the defendant is daughter in law of
the plaintiff being wife of her son Shri Yashpal Singh. The
Plaintiff had permitted her son Late Shri Yashpal Singh
during his life time to reside in the above said property on
license basis. After death of Shri Yashpal Singh the
plaintiff has permitted the defendant, being her daughter in
law (widow of his son), to reside in the said property on
license basis. The defendant along with her minor son are
residing and in possession of entire first floor and ground
floor except one room of the said property. The plaintiff is
in use and occupation of one room at Ground Floor in the
above said property. The portion in possession of the
defendant i.e. First Floor and Ground Floor except one
room of the property bearing no.1684, Out of Khasra No.
32/11, Situated at Village Najafgarh, area Abadi known as
Todarmal Colony, Najafgarh, New Delhi is hereinafter
referred as Suit property.
4. It is averred in the plaint that the defendant is a
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.30
17:19:55 +0530
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 2 of 37
quarrelsome lady and after marriage with son of the
plaintiff, she inflicted various cruelties upon the plaintiff
and her family members.
5. It is further averred that on the unfortunate day of 02nd
December 2014, Shri Yashpal Singh (Husband of
defendant), son of Plaintiff, who was aged about 42 years,
has committed suicide due to the cruelty and atrocities
inflicted by the defendant. After his death, the defendant
and her father Ranvir Singh and Sh. Baljeet to grab the
above said suit property of the plaintiff and started
threatening and harassing the Plaintiff and her husband
either to transfer the property in question in the name of
the defendant otherwise they would kill them. They also
threatened to kill the other sons of the Plaintiff also if their
demand is not fulfilled.
6. It is further averred that the Plaintiff and her husband
(aged about 78 Years) were on the mercy of God, as the
defendant, her father and Shri Baljeet, after the death of
their son Yashpal Singh, started abusing, misbehaving,
harassing them and made their life hellish. The defendant,
her father and uncle even threatened the plaintiff that she
will commit suicide and implicate the Plaintiff and her
husband in the said case. The defendant and her father Shri
Ranvir Singh have also threatened that they have some
writing of Late Shri Yashpal Singh and will falsely
implicate the Plaintiff and her husband in the suicide case
of her own son Late Shri Yashpal Singh.
7. It is further averred that the Plaintiff and her husband
having no option lodged a complaint against the defendant
Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2025.01.30
17:20:06
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 +0530
Page no. 3 of 37
(their daughter-in- law), Ranvir and Baljeet before the
SHO, P.S. Najafgarh vide their complaint dated
07/03/2015, but till date no action was initiated by the
police. Thereafter the defendant has enticed/lured Shri
Puran Singh, husband of Plaintiff and also entangled him
into her web, being a young lady, resulting which Puran
Singh, husband of Plaintiff, also started acting at the
instance of defendant. Both of them started beating and
harassing the Plaintiff on one pretext or the other and
started compelling her that if she wants to stay in the
house, she has to transfer her property/house in name of
defendant. They even obtained the thumb impression of
the Plaintiff on various blank papers and stamp papers.
8. It is further averred that the Plaintiff is fully aware that in
case she transfers her above said property in the name of
above named defendant, then after getting the property in
name of defendant they will kill, hence she remained
adamant to not to transfer her property in the name of the
defendant or any other person. The defendant when came
to know that the Plaintiff will not transfer her property in
her name, she along with her father, uncle and started
harassing and torturing the Plaintiff more and more. When
they could not succeed in their malafide aim, they kicked
out the Plaintiff from the house/property owned by
Plaintiff forcibly and have not been allowing her to enter
in the said house.
9. It is further averred that the defendant has got no right and
authority whatsoever to withhold the possession of the suit
property i.e. property bearing no.1684/32, Out of Khasra
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.30
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 17:20:17 +0530
Page no. 4 of 37
No. 32/11, Situated at Village Najafgarh, area abadi known
as Todarmal Colony, Najafgarh, New Delhi, more so when
the defendant is only staying the said premises as a
licensee. Thereafter, the plaintiff has served a legal notice
dated 19/10/2015 through her counsel upon the defendant
thereby terminating the license of defendant to use and
occupy the suit property w.e.f. 30/11/2015 and calling
upon to vacate and handover the peaceful possession of the
suit property to the plaintiff on or before 01/12/2015. The
plaintiff also called upon the defendant that in case of
failure of vacating the suit property on or before
01/12/2015, she will be liable to pay the damages for use
and occupation of the suit property @Rs.500/- per day
w.e.f. 01/12/2015 to the plaintiff. The said legal notice
dated 19/10/2015 is duly served upon the defendant, but
the defendant intentionally and deliberately failed to
comply the said legal notice and sent a false, frivolous and
vague reply dated 23/11/2015 to the said notice.
10.It is further averred that the defendant despite termination
of her license and service of legal notice dated 19/10/2015
failed to vacate the suit property, hence she became a
trespasser/unauthorized occupant, hence she is liable to
pay the charges/damages for the use and occupation of the
suit property @ Rs.500/- per day w.e.f. 01st December
2015. Hence the defendant is liable to pay Rs.25,500/- on
account of the charges/damages @ Rs.500/- per day w.e.f.
01st December 2015 upto 20th January 2016 i.e. date of
filing of present suit. The defendant is also liable to pay
the future damages for the use and occupation of the suit
Digitally signed
by ANKIT
ANKIT MITTAL
Date:
MITTAL 2025.01.30
17:20:25
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 5 of 37
+0530
property @ Rs.500/- per day w.e.f. filing of the suit till the
vacation of the suit property.
11.Hence, plaintiff has filed the present suit with the
following reliefs:
(a) Pass a decree of recovery of possession in favour of the
plaintiff and against the defendant in respect of suit
property i.e. property bearing no.1684/32, Out of Khasra
No. 32/11, Situated at Village Najafgarh, area abadi known
as Todarmal Colony, Najafgarh, New Delhi, more
particularly shown in RED colour in the site plan.
(b) Pass a decree of recovery of Rs.25,500/- (Rupees
twenty thousand five hundred only) on account of recovery
of damages and mesne profit w.e.f. 01/12/2015 up to filing
of suit and exclusive thereafter.
(c) Pass a decree of future mesne profit and damages on
account of use and occupation of the suit property @
Rs.500/- per day from the date of filing of this suit till the
date of vacation of the suit property, on which the plaintiff
undertakes to pay requisite court fee as provided under
Order 20 rule 20 CPC.
(d) Award costs of the suit in favour of the plaintiff and
against the defendant.
12.Written statement was filed on behalf of defendant. In the
written statement, It is submitted that the suit of the
plaintiff is not maintainable in the present form because
the suit property is the shared household property of the
defendant and the defendant and her minor son Master
Jatin is in possession of the suit property being the lawful
shareholder and not being the licencee and thus the suit is
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.30
17:20:35 +0530
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 6 of 37
liable to be dismissed.
13.It is submitted that the suit is bad for non-joinder of
necessary party because Master Jatin who is minor son of
the defendant is also residing in the premises in question
but Master Jatin has not been impleaded as necessary
party.
14.It is further submitted that the plaintiff has no locus-standi
to file the present suit because, the plaintiff is not absolute
owner of the suit property. It is submitted that the suit
property was purchased in the name of plaintiff from the
funds of the joint property and contribution of Late Sh.
Yashpal Singh and thus the plaintiff has no right to seek
the relief of possession against the defendant who is also a
co-owner of the suit property after the death of Sh.Yashpal
Singh. It is further submitted that the plaintiff is a simple
housewife and has no source of income to purchase the
suit property or to construct the suit property and the suit
property was purchased from the joint funds and the
building was also constructed from the joint funds of late
Sh. Yashpal Singh, husband of defendant and Late Sh.
Puran Singh, Husband of plaintiff.
15.It is further submitted that being the widow of deceased
husband the defendant has every right in the suit property
which is matrimonial home of the defendant and the
plaintiff has no right to evict the defendant from her
matrimonial home as the defendant is residing in the said
house since the solemnization of marriage with Sh.
Yashpal Singh and thus the plaintiff cannot evict the
defendant from the suit property and also the plaintiff has
Digitally
signed by
ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.30
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 17:20:42
+0530 Page no. 7 of 37
no right to ask to pay any money for residing in the suit
property. The defendant has been residing in the said
house(Suit Property) as a shared household and is living
there in domestic relationship. Otherwise also the
defendants rights are fully protected under the Protection
of Women from D.V. Act 2005.
16.It is further submitted that after the death of
Sh.Puran/father-in-law of the defendant and Sh.Yashpal
Singh/husband of the defendant, being the head of the joint
family, it is the duty of the plaintiff to provide shelter and
food to the defendant and her minor son. It is further
submitted that the suit property belongs to an Hindu
Undivided Family and the husband of the defendant and
minor son of the defendant were/are also members of the
HUF and thus the defendant and her minor son has a right
to reside in the suit property which is in occupation of the
defendant since the time of marriage of the defendant with
Late Sh. Yashpal Singh and her minor son since his birth.
17.It is further submitted that the simple suit for mandatory
injunction and permanent is not maintainable without the
relief of declaration and possession and is also against the
provision of Section 17 of the Protection of women from
Domestic Violence Act which is a Mandatory Provision.
18.It is further submitted that the suit filed by the plaintiff is
hit by the provisions of Sec.41 (h) of the Specific Relief
Act in as much as an equally efficacious alternative
remedy is available with the plaintiff for satisfaction of
their grievance regarding the issue to file a regular suit for
declaration, partition and possession before the competent
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 8 of 37
court of having jurisdiction.
19.It is submitted that the suit filed by the plaintiff is also hit
by the provisions of the Sec.41 (i) of the Specific Relief
Act in as much as the conduct of the plaintiff is such which
disentitle her to the assistance of this Hon'ble Court. That
the plaintiff with ulterior and malafide motives has filed
the instant suit before this Hon'ble Court in order to cause
undue harassment to the defendant and her minor son and
as such the suit is nothing but a gross abuse of process of
law and this Hon'ble Court and the instant suit filed by the
plaintiff is not maintainable and same is liable to be
dismissed.
20.It is submitted that the suit filed by the plaintiffs has not
been properly valued for the purposes of court fee and
jurisdiction and the same has been grossly undervalued by
the plaintiff as the market value of the suit property is
more than Rs.2,50,00,000/-.
21.It is further submitted that the plaintiff has not come to this
Hon'ble Court with clean hands and is guilty of
suppression and concealment of material facts from this
Court. That the plaintiff has concealed the true and correct
facts from this Hon'ble Court, which are material for the
adjudication and disposal of the suit and has based the suit
on false and frivolous allegations. It is further submitted
that the plaintiff has concealed the facts that the two FIR
has been lodged against the plaintiff one bearing FIR
No.971/2015 dated 17- 12-2015 under Sec.306/506/34 IPC
was registered in P.S. Nazafgarh, Delhi and second on 26-
8-2015 bearing FIR No. 690/2015 under
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 9 of 37
Sec.354B/323/509/506/34 IPS and thus the plaintiff and
her husband have adopted all method to dispossess the
defendant and her minor son from the matrimonial shared
household home.
22.The plaintiff further concealed that facts that in the year
2004-2005, the plaintiff has given the share of Sh.Vidhur
(son of the plaintiff), when Sh.Vidhur shifted to
Chhatishgarh and at that time, the plaintiff and father-in-
law of the defendant had sold the some part of the suit
property and handed over the earned/sale consideration to
Sh.Vidhaur in lieu of share of Sh.Vidhur in the joint
property, but the said facts were never disclosed by the
plaintiff to the defendant and her husband Late Sh.Yashpal
Singh. That only to deprive the defendant and her husband
from the joint properties, the plaintiff has sold the joint
properties one by one without the knowledge of Late Sh.
Yashpal Singh
23.The plaintiff also concealed the facts that it is the plaintiff
herself who has ruined the life of the defendant and her
minor son Master Jatin because due to dishonest,
quarrelsome behavior of the plaintiff, the husband of the
defendant had committed suicide on 2-12-2014.
Hence, no cause of action has ever arose in favour of the
plaintiff and against the defendant for filing the instant
suit. That the suit of the plaintiff is without any cause of
action and same is liable to be rejected under the
provisions of Order 7 Rule 11 CPC.
24.15. That the suit is bad for not paying the court fee on
Rs.2,50,00,000/- (Rupees Two Crore Fifty Lacs) which is
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 10 of 37
the market value of the property in suit and the plaintiff is
liable to pay the court fee ad-valorem on Rs.2,50,00,000/-
as the plaintiff is seeking the relief of possession in the
garb of present suit for mandatory injunction.
25.The contents of the plaint are wrong and denied except that
the suit property is built up property. It is specifically
denied that the plaintiff actual and rightful owner of the
property bearing no.1684/32, out of Kh.No.32/11 situated
at Village Najafgarh, area abadi known as Todarmal
colony, Najafgarh, New Delhi. It is further submitted that
suit property was purchased by the husband of the
defendant in the name of plaintiff from the joint funds of
the joint Hindu Family and thus the suit property is the
shared house-hold property of the plaintiff and defendant.
26.It is specifically denied that the plaintiff had permitted her
son Late Sh.Yashpal Singh during his life time to reside in
the above said property on license basis. It is also denied
that after the death of Sh. Yashpal Singh the plaintiff has
permitted the defendant, being her daughter-in-law (widow
of his son), to reside in the said property on license basis.
It is further submitted that the suit property is the joint and
shared house hold property of the plaintiff and defendant
therefore the question of residence of the defendant being
licencee in the suit property does not arise at all. It is
further submitted that the defendant is residing in the suit
property alongwith his minor as the suit property is the
matrimonial home of the defendant and moreover after the
death of husband of the defendant, the plaintiff is also
socially and morally bound to keep the defendant and his
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 11 of 37
minor son in the matrimonial home.It is further submitted
that as the suit property was purchased by the husband of
the defendant from the joint funds in the name of plaintiff
therefore the suit property is the joint shared house hold
property of the defendant and the defendant and her minor
son are residing in the same being the co-owner/share
holder.
27.It is further submitted that the plaintiff has concocted a
totally false story admittedly, the plaintiff is residing in the
ground floor of the suit property therefore the question of
dispossessing does not arise at all. It is further submitted
that it is the plaintiff herself who has mentally and
physically tortured the defendant since after the marriage
on the ground of insufficient dowry.
28.It is further submitted that the plaintiff has served a vague
legal notice only to make grounds to file the present suit. It
is further submitted that the suit property is the
matrimonial home and shareholder house of the defendant
and her minor son therefore the question of termination of
the license and damages does not arise at all. Therefore,
the suit of the plaintiff may please be dismissed with cost.
29.Issues framed on 04.10.2016 as follows:
1. Whether the suit has not been valued properly for the
purpose of court fee?...OPD.
2. Whether the defendant is co-owner of the suit property
alongwith the plaintiff?...OPD.
3. Whether the plaintiff is entitled to recovery of
possession as per prayer(a) ?...OPP
4. Whether the plaintiff is entitled to recovery of
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 12 of 37
Rs.25,500/- as damages and mesne profits w.e.f. 1/12/2012
till the institution of the suit?..OPP.
5. Whether the plaintiff is entitled to future mesne profits
and damages @Rs.500 per day as per prayer (c) ?OPP
6. Relief.
30.The plaintiff has examined seven witnesses in her support.
PW1 Sh. Vivek Yadav, Junior Assistant from the office of
Sub-Registrar-II, Basai Darapur, New Delhi. He brought
the summons record i.e. registered GPA dt. 3.7.1997, the
copy of the same is Ex.PW1/A(OSR).
31.PW2 Ms. Savitri Devi, plaintiff who tendered the evidence
affidavit vide Ex.PW2/A and cross-examined by ld.
Counsel for defendant at length.
32.PW3 ASI Subhash Chand who was a summoned witness
and brought record i.e. complaint dt. 07.03.2015 vide DD
No. 41A. The copy of the same is Ex.PW3/A (OSR).
33.PW4 is SI Sher Singh, who brought the copy of the order
of destroyed the complaint dt. 12.8.2015 by the order of
DCP,Dwarka District dt.16.8.2019. The same is
Ex.PW4/X(OSR).He has also brought the register
maintained in the office of DCP.
34.PW5 is ASI Rishi Pal who brought the summons record dt.
Ledger entry of complaint made by the plaintiff through
speed post dt.1.9.2015. The same is registered vide diary
no. 1795. The copy of the same is Ex.PW5/A (OSR).
35.PW6 is Sh. Rann Singh who deposed by way of evidence
affidavit vide Ex.PW6/A, and he relied upon the following
documents:
1) Photocopy of deed of agreement dt. 3.7.1997 is already
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 13 of 37
Ex. PW2/3(OSR) bearing thumb impression of Sh. Ratan
Singh at point A', thumb impression of Ms. Savitri at point
B, my signature at point C and signature of Sh. Virender
Rathi at point D.
2) Photocopy of receipt dt. 3.7.1997 is already Ex.
PW2/5(OSR) bearing thumb impression of Sh. Ratan
Singh at point A', and my signature at point B.
36.In the cross-examination he deposed as under:
"It is wrong to suggest that I have deposed falsely at the
instance of plaintiff or that I was introduced as a witness in
the said case later on. It is further wrong to suggest that no
documents were executed relating to the property in
question in my presence or that plaintiff had not purchased
the property in question and had not paid any amount for
purchase of the same from Sh. Ratan Singh in my
presence. Since December 2015, I am residing in the
address given by me today i.e. Ward No. 11, Deolawas,
Jhunjhunun, Rajasthan-333515. The affidavit Ex.PW6/A
was prepared in the office of the counsel of the plaintiff
and which was typed but my address in the same was not
typed (vol- at that time I did not tell the address as
provided by me today in the court). I was residing as a
tenant at the address written in hand in the affidavit
Ex.PW6/A. It is wrong to suggest that I had never resided
in the handwritten address mentioned in the affidavit
Ex.PW6/A. Sh. Ratan Singh and Smt. Savitri Devi had
signed the documents in my presence again said, they had
put up their thumb impression in my presence (vol- after
execution of the agreement to sell and the payment slip/
receipt, I had left as I had some emergency. Sh. Virender
Rathi had signed the documents in my presence. It is
wrong to suggest that Virender Rathi had not signed any
document in my presence. I am higher secondary pass. I
used to put signature. It is correct that GPA Ex.PW1/A and
will Ex.PW1/B does not bear my signature or thumb
impression. I used to sign in Hindi. I had signed only one
page in agreement to sell Ex.PW2/3. It is wrong to suggest
that at point C in Ex.PW2/3 there are no signature of mine
(vol- I used to write my name only). It is correct that at
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 14 of 37
point C in Ex.PW2/3 there is no residential address
including house number, area and city or country. It is
wrong to suggest that I have deposed falsely or that no
dealing or any payment i.e. receipt Ex.PW2/5 was
prepared in my presence or that my name and son of was
got written later on on Ex.PW2/3 and Ex.PW2/5."
37.PW-7 is Sh. R.S. Meena who brought the record as per
summons i.e. certified copy of electricity bill bearing CA
No. 150679685 of dt. 02.12.2021 which is hereby
exhibited as Ex. PW7/1. He also brought the certified copy
of application form of the aforementioned connection in
the name of Smt. Savitri Devi which is hereby exhibited as
Ex.PW7/2 (colly). He also brought the certified copies of
the photocopies of property documents which are
agreement to sell, Will, GPA, affidavit, Receipt all dt.
03.7.1997 which is hereby exhibited as Ex.PW7/3 (colly)
He has also brought other documents which they had
affixed with the application which are electricity bill of
name Azad Singh CA No. 102561553, election card of
Savitri Devi, indemnity bod dt. 22.10.2021 by Savitri Devi
and an affidavit dt. 14.2.2013 by Savitri Devi, all
exhibited as Ex.PW7/4(colly).
38.The defendant has examined two witnesses. DW1 Smt.
Kavita who tendered her evidence by way of affidavit
being Ex.DW1/1 and she reiterated the contents of the WS.
She was cross-examined at length.
39.DW2 is Sh. Ranbir Singh who tendered his evidence
affidavit vide Ex.DW2/A. He was also cross-examined at
length.
40.DE was closed on 05.06.2024 and final arguments were
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 15 of 37
heard.
41.It is well settled principle of law of Evidence that the
burden of proof in civil trial is the obligation on the
plaintiff that the plaintiff would adduce evidence that
proves his claims against the defendant and is based on
preponderance of the probabilities. Under Indian law, until
and unless an exception is created by law, the burden of
proof lies on the person making any claim or asserting any
fact. A person who asserts a particular fact is required to
affirmatively establish it. The Supreme Court in R.V.E.
Venkatachala Gounder V Arulmigu Viswesaraswami &
V.P. Temple & another, VI(2003)SLT307 observed that
whether a civil or a criminal case, the anvil for testing of
'proved', 'disproved' and 'not proved', as defined in Section
3 of the Indian Evidence Act, 1872 is one and the same. A
fact is said to be 'proved' when, if considering the matters
before it, the Court either believes it to exist, or considers
its existence so probable that a prudent man ought, under
the circumstances of a particular case, to act upon the
supposition that it exists. It was further observed by the
Hon'ble Supreme Court of India in A. Raghavamma &
another V Chenchamma & another, AIR 1964 SC 136,
there is an essential distinction between burden of proof
and onus of proof: burden of proof lies upon a person who
has to prove the fact and which never shifts. Onus of proof
shifts. Such a shifting of onus is a continuous process in
the evaluation of evidence. Further, the Hon'ble Apex
Court in the Rangammal V Kuppuswami and others, Civil
Appeal No 562 of 2003 observed that burden of proof lies
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 16 of 37
on the person who first asserts the fact and not on the one
who denies that fact to be true. The responsibility of the
defendant to prove a fact to be true would start only when
the authenticity of the fact is proved by the plaintiff. Thus,
it can be said that the burden of proving the facts rests on
the party who substantially asserts the affirmative issues.
42.Keeping the aforesaid said principles of law of evidence in
the mind, I humbly give my findings issue-wise as under:
43. ISSUE NO.1: Whether the suit has not been valued
properly for the purpose of court fee?...OPD.
The onus to prove the same was upon the defendant,
however no evidence was led on the defendant in respect
of this issue. Therefore, same is decided against the
defendant and in favor of the plaintiff.
44. ISSUE NO.2. Whether the defendant is co-owner of the
suit property alongwith the plaintiff?...OPD.
&
ISSUE NO.3. Whether the plaintiff is entitled to recovery
of possession as per prayer(a) ?...OPP
45.Both the issues are taken up together as they are
interconnected with each other. In order to avoid repetition
and confusion, both issues are decided together. The onus
to prove the issue no.2 is upon the defendant whereas issue
no. 3 is upon the plaintiff.
46.It is relevant to mention the landmark judgment passed by
the Hon'ble Supreme Court of India in the case titled as
"Sant Lal Jain vs Avtar Singh 1985 AIR 857", wherein it is
discussed the scope of relief for eviction in the cases of
licensor-licensee relationship. The relevant paragraphs of
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 17 of 37
judgment is reproduced as under:
".... In K.K. Verma & Anr. v. Union of India & Anr.,(13
Chagla, C.J. presiding over a Division Bench has observed
that in India a landlord can only eject his erstwhile tenant
by recourse to law and by obtaining a decree for
ejectment. In Milkha Singh v. Dvna & Ors.,(2) it has (1)
AIR 1954 Bombay 358 (2) AIR 1964 Jammu & Kashmir
99, been observed that the principle once a licensee always
a licensee would apply to all kinds of licences and that it
cannot be said that the moment the licence it terminated,
the licensee-s possession becomes that of a trespasser. In
that case, one of us (Murtaza Fazal Ali, J.) as he then was
speaking for the Division Bench has observed:
"After the termination of licence, the licensee is under
clear obligation to surrender his possession to the owner
and if he fails to do so, we do not see any reason why the
licensee cannot be compelled to discharge this obligation
by way of a mandatory injunction under s. 55 of the
Specific Relief Act. We might further mention that even
under English law a suit for injunction to evict a licensee
has always been held to be maintainable.
Where a licensor approaches the court for an injunction
within a reasonable time after the licence is terminated, he
is entitled to the injunction...."
47.Hence, it can be said that for availing the relief of
possession in the cases of licensor and licensee, it is
essential to establish the existence of jural relationship
between the parties i.e. licensor and licensee and the
termination of licensee either by lapse of time or by notice
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 18 of 37
served by the licensor.
48.Further, it is relevant to mention Section 101 of the Indian
Evidence Act, 1872 which defines " burden of proof" and
laid down that the burden of proving a fact always lying
upon the person who asserts the facts. Until such burden is
discharged, the other party is not required to be called
upon to prove his case. The court has to examine as to
whether the person upon whom the burden lies has been
able to discharge his burden. Until he arrives at such
conclusion, he cannot proceed on the basis of weakness of
other party. Further, Section 58 of the Indian Evidence Act
contained that no fact need to be proved in any
proceedings which parties thereto or their agents agree to
admit at the herein, or which, before the hearing, they
agree to admit by any writing under their hands or which
by any rule of pleadings enforce at the time they are
deemed to have admitted by their pleadings.
49.The basic premise of the plaintiff's case is that she is the
absolute and lawful owner of the suit property and
permitted the defendant to reside in the suit property on the
license basis. Further, in order to proved her claim of
ownership over the suit property, apart from herself
(PW2), plaintiff also examined PW1 Sh. Vivek Yadav,
junior assistant from the office of Sub- Registrar II, Bassi
Darapur, New Delhi, a summoned witness who brought the
official record of registered WILL and GPA. Further,
plaintiff's side has also examined other formal witnesses
from PW-3 to PW-7 for proving the documentary evidence
brought on record by the plaintiff.
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 19 of 37
50.During examination in chief of the plaintiff, she deposed
the contents of her plaint in her evidence affidavit ie Ex.
PW2/A. Further, plaintiff has also remained fairly
consistent to her version in her cross-examination, since
defendant' side failed to elicit any major contradiction
from her, therefore was unable to impeach her credibility
as witness. Further, plaintiff was also able to establish and
prove her title of the suit property on the basis of
documentary evidence i.e. copy of GPA Ex.PW 1/A, copy
of agreement to sell Ex.PW2/3, copy of affidavit Ex.
PW2/4, and copy of receipt which were executed between
plaintiff and previous seller of the suit property, since it is
admitted by the defendant/DW1 Ms. Kavita in her cross
examination dated 07.11.2023 that plaintiff is lawful owner
of the suit property and title documents of the same are in
the name of plaintiff. Further, it was also admitted by the
defendant that the suit property was purchased by the
plaintiff prior to defendant's marriage with the plaintiff's
son. Also, defendant in her cross examination admitted that
plaintiff gave permission to defendant and her husband to
reside in the first floor of the suit property. Furthermore,
defendant has also admitted that electricity and water
connection of the suit property is in the name of the
plaintiff. Moreover, when the father of the defendant/DW2
Sh. Ranbir Singh entered into witness box, he denied the
specific suggestion that plaintiff was owner of the suit
property, which is in contrast to testimony of the DW1. It
is further admitted by DW2 in his cross- examination dated
05.06.2024 that no title documents were shown to him in
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 20 of 37
favor of his son in law in respect of suit property and his
knowledge stems from verbal statements made by the
family members of the son in law, clearly his knowledge
qua ownership of his son in law is based on hearsay
evidence, which is not admissible in law. It is pertinent to
mention here that even in the pleadings of defendant, it is
admitted to the extent that suit property was purchased in
the name of the plaintiff, however absolute right and title
of plaintiff is contested on the ground that suit property
was purchased from the funds of joint property and
through contribution of her late husband ie Sh. Yashpal
Singh, therefore the plaintiff has no right to seek the relief
of possession against the defendant who is also a co-owner
of suit property after the death of Sh. Yashpal Singh. Thus,
it can be said that plaintiff has been successful prima facie
in establishing her title over the suit property on the basis
of aforesaid documents placed on record by her and
admissions made by the defendant.
51.It is relevant to mention here that defendant's side has
disputed the liability on the ground that plaintiff doesn't
have sole right in the suit property as same has been
purchased from joint funds of HUF and by that virtue,
upon the death of husband of defendant, she became the
co-owner of the suit property. Further, it is well settled
principle of the law of evidence which enjoins upon the
party to prove the fact which he relies on and in that sense,
an obligation is cast upon the party and if he fails to
discharge that obligation, adverse consequences will
follow and will have to face the repercussions of the same.
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 21 of 37
Thus, the onus to prove that suit property is the ancestral
property which was purchased from joint funds was upon
the defendant to prove.
52.Pertinently, defendant has failed to lead any evidence be it
oral or documentary for proving her contention that the
suit property is the purchased from the suit property.
53.At this point, it is relevant to mention the judgment passed
by the Hon'ble Supreme Court of India in the case tilted as
"A. B. Govardhan Vs. P. Ragothaman Civil Appeal Nos.
9975-9976 of 2024 @ SLP (Civil) Nos. 5034-5035 of
2019 wherein it has discussed the principles of
appreciation of Law of Evidence. The relevant paragraphs
are reproduced herein as under:
"...Fact remained that the respondent admitted to having
executed Exhibit P-1 (the Agreement) and that the signature(s) thereon were his, in the Proof Affidavit dated 01.03.2010 as also cross examination dated 08.03.2010. No doubt, he (respondent) has denied its voluntary execution and contended that it was under coercion and threat, but no evidence was brought or led by him to support this plea. The Division Bench opined, correctly, that "It is true that there was no supporting evidence adduced by him to show as to how he was threatened and forced to execute Ex.P1."
Pausing here, we may emphasis that for every fact which is pleaded, there has to be evidence, either oral or documentary, to substantiate the same. A bald averment or mere statement by a defendant bereft of evidentiary material to back up such averment/statement takes such Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 22 of 37 defendant's case nowhere. While deciding a statutory appeal under Section 116A of the Representation of the People Act, 1951 against an order of the Gauhati High Court rejecting an Election Petition, this Court in Kalyan Kumar Gogoi v Ashutosh Agnihotri, (2011) 2 SCC 532 commented that the term 'evidence' is used colloquially in different senses:
"33. The word "evidence" is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc."
54.It is further to relevant mention the landmark judgment of the Hon'ble High Court of Delhi passed in the case titled as "Sagar Gambhir vs Shri Sukhdev Singh Gambhir And Anr." 241 (2017) DLT 98 (DB) wherein the discussed the concept of HUF after the enactment of, "the Hindu Succession Act,1956." The relevant paragraphs are reproduced herein as under:
"6. What is an HUF, how does an HUF come into Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 23 of 37 existence, how can the properties be the properties of HUF and whether ancestral properties are HUF properties are aspects which I have considered in detail in the judgments in the cases of Sunny (Minor) & Anr. Vs. Sh. Raj Singh and Ors., 225 (2015) DLT 211 and Surender Kumar Vs. Dhani Ram and Ors., 227 (2016) DLT 217. In these judgments, I have referred to and relied upon the ratios of the judgments of the Supreme Court in the cases of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and which hold that inheritance of ancestral properties after passing of the Hindu Succession Act, 1956 does not result in the property being held as HUF property and that the property inherited after 1956 is inherited as a self-acquired property. The different scenarios of how an HUF property comes into existence have been dealt with in detail in the judgment in the case of Sunny (Minor) & Anr. (supra) with reference to pre 1956 and post 1956 positions. Also, general and vague averments without specifying what were the ancestral properties inherited and that too without stating that they were inherited by a person before 1956 cannot result in creation of HUF and its properties and which aspect I have dealt in the judgment passed recently titled as Mrs. Saroj Salkan Vs. Mrs. Huma Singh and Ors. The relevant paras of the judgment in the case of Surender Kumar (supra) are paras 4 to 13 and these paras read as under and which also reproduce the ratios of the earlier judgments of the Supreme Court:-
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 24 of 37 "4. Plaintiff claims that as a son of defendant no.1 and as a grandson of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener in the aforesaid suit properties on the ground that the properties when they were inherited by late Sh. Jage Ram were joint family properties, and therefore, status as such of these properties as HUF properties have continued thereby entitling the plaintiff his rights in the same as a coparcener.
5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 25 of 37 and such HUF property therefore which came into existence before 1956 continues as such even after 1956.
In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an „ancestral‟ property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits „ancestral‟ property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 26 of 37 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual‟s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self- acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors.
Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property."
55.Thus, from deducing legal principles from the aforesaid Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 27 of 37 judgment, it can be said that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 28 of 37 action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
56.Hence, it can be said that defendant has miserably failed to prove that suit property was purchased from the funds of HUF and she is co owner by virtue of that fact. That, upon the applying the aforesaid legal reasoning to given factual matrix, admittedly the case of defendant is based upon mere bald assertions which she has failed to substantiate with any sort of evidence be it oral or documentary. Again, defendant/ DW1 has admitted in her cross examination that she has not filed any document which can suggests that the suit property is shared household property or her husband has invested in the purchase of suit property. It is important to mention here that this Court is cognizant of the fact that plaintiff has to stand on its own legs and cannot take advantage of defendant's weakness. Here, in the present case, in view of the aforesaid oral and documentary evidence brought on record by the plaintiff, it stands established beyond doubt that the plaintiff is the owner of the suit property therefore it can be said that defendant has failed to prove that she was the co owner of the suit property with the plaintiff.
57.Further, it was argued on the behalf of the defendant that present suit is not maintainable since defendant being the widow of deceased husband, she has every right to stay in the suit property which is matrimonial home of the defendant, therefore plaintiff has no right to evict her as the defendant is residing in the suit property since the Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 29 of 37 solemnization of her marriage with the son of the plaintiff.
58.It is relevant to mention the judgment passed by the Hon'ble High Court of Delhi in the case titled as, "
Madalsa Sood vs Maunicka Makkar & Anr. on 10 December, 2021 wherein it discussed precisely the same law point, which is being argued on the behalf of the defendant. The relevant paragraphs of the judgment is reproduced as under:
"14. It would be apposite to reproduce the view taken by the Supreme Court in Satish Chander Ahuja (supra) on what would satisfy the need to adopt procedure established by law, to seek the eviction of an "aggrieved person".
"124. Drawing the analogy from the above case, we are of the opinion that the expression "save in accordance with the procedure established by law", in Section 17(2)of the 2005 Act contemplates the proceedings in the court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a competent court. We may further notice that in sub-section (2) the injunction is "shall not be evicted or excluded from the shared household ... save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 30 of 37 household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where the plaintiff can successfully prove before the competent court that the claim of the plaintiff for eviction of the respondent is accepted. We need not ponder for cases and circumstances where the eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement."
(emphasis added)
15. Nor does the right of residence allowed to aggrieved person extend to her insisting on the right of residence in a particular premises. Section 19 of the DV Act provides for an alternate accommodation being given to the aggrieved person of the same level in certain circumstances. In fact even in Satish Chander Ahuja (supra) relied upon by the learned counsel for the defendants, the judgment of a Division Bench of this Court in Eveneet Singh Vs. Prashant Chaudhari 2011 SCC OnLine Del 4651 in para 14 was quoted with approval as under:
"14. It is apparent that clause (f) of sub-section (1) ofSection 19 of the Act is intended to strike a balance between the rights of a daughter-in-law and her in-laws, if a claim to a shared residence by the daughter-in-law Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 31 of 37 pertains to a building in which the matrimonial home was set up belongs to her mother-in-law or father-in-law."
16. The Supreme Court in para 90 of its judgment in Satish Chander Ahuja (supra) further observed as under:
"90. Before we close out discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter- in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court in para 56 adequately balance the rights of both the parties."
(emphasis added)
59.In the light of findings given by the Hon'ble High Court of Delhi, the aforesaid contention raised by the defendant qua her right to stay in the suit property being the matrimonial home is hereby dismissed.
60.Therefore, in the light of discussion in afore-going paras, it can be said that the plaintiff is the owner of the suit property and there is nothing on record to infer that the defendant has any interest, title or claim over the suit property. Further, defendant has claimed the co-ownership on the basis of ancestral property and has submitted that she is staying in the suit property in that capacity. It is Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 32 of 37 relevant to mention that all the contentions regarding the claims of defendant qua ownership in the suit property has already been dismissed in aforementioned paras of the judgment and same has not been repeated here. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner of the suit property and is entitled to the possession of the same and the position of defendant cannot be better than licensee as she has not put any other defence for explaining her possession of the suit property. Since, the license of defendant has been terminated by the legal notice dated 19.10.2015 admittedly served upon her, therefore the plaintiff is entitled to possession of the suit property from the licensee defendant Kavita.
61.Accordingly, issue no. 2 is decided against the defendant and issue no.3 is decided in favour of the plaintiff and against the defendant.
62.ISSUE NO.4: Whether the plaintiff is entitled to recovery of Rs.25,500/- as damages and mesne profits w.e.f. 1/12/2012 till the institution of the suit?..OPP. & ISSUE NO.5: Whether the plaintiff is entitled to future mesne profits and damages @Rs.500 per day as per prayer
(c) ?OPP
63.Both the issues are taken up together as they are interconnected with each other. In order to avoid repetition and confusion, both issues are decided together. The onus to prove aforesaid issues are upon the plaintiff.
64.The status of the defendant as licensee was terminated by Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 33 of 37 the plaintiff vide legal notice dated 19.10.2015, which was admittedly received by the defendant. Further, it was specifically averred in the legal notice that in case defendant fails to vacate the premises on or before 01/12/2015, then she will be liable to pay the damages for use and occupation of Suit property @ Rs. 500/- per day w.e.f 01.12.2015 to the plaintiff. The defendant has failed to show her lawful possession and thus, the plaintiff is entitled to mesne profits/use and occupation charges.
65.At this juncture, it will be appropriate to place reliance upon the judgment passed by the Hon'ble High Court of Delhi in the case of Arya Orphanage Vs. Mr. Alfred G Wuerfel CS(OS) 2439/2001 dated 27.11.2008 wherein it was held that mesne profits are to be determined on account wrongful continuation of occupation after termination of tenancy / license and the same should be computed at the rate which the property might have fetched at the relevant time.
66.The plaintiff has prayed for the amount of Rs. 25,500/- on the account of damages/mesne profits @ Rs. 500 per day from the defendant from the date of filing the present suit till filing the present suit. Further, plaintiff has prayed for future damages for use and occupation of the suit property @ Rs. 500/- ie from the date of filing of present suit till handing over the possession for using/enjoying the suit property unauthorizedly.
67.In the present suit the plaintiff has not led any specific evidence in respect of the calculation done by her for measuring damages @ Rs. 500/-per day in respect of suit Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 34 of 37 property. Plaintiff has simply pleaded and deposed that she is entitled to damages at the rate of Rs. 500/- per day qua the suit property .However, in the case of M.C. Aggarawal Vs. Sahara India 183 (2011)DLT 105, the Hon'ble High Court of Delhi has been pleased to hold that in such circumstances, the court could take resort to the provisions of Section 57 and 114 of the Indian Evidence Act and grant appropriate relief.
68.In the present suit, admittedly the defendant she is residing along with her son in the ground and first floor of the suit property which is situated in the area of Todarmal Colony, Najafgarh, New Delhi. Further, admittedly the plaintiff has filed the present suit against the defendant Kavita only, therefore assessment of amount in respect of use of entire property in the recovery of unauthorised charges from defendant will not be justifiable, since the grandson of plaintiff is another occupant of the suit property, who is also major now. Considering the suit property is being used for residential purpose and prevailing rental rates of properties in nearby areas of the suit property, In the opinion of this Court, the ends of justice will be met if the prayer for damages / mesne profits is allowed at the rate of Rs.200/- per day in respect of suit property from 01.12.2015. I am, therefore, inclined to grant damages / use and occupation charges to the plaintiff at the rate of Rs. 200- per day from date 01.12.2015 till the date of vacation of the suit property by the defendant Kavita.
69.Further, in respect of the claim towards interest on mesne profits, the Hon'ble High Court of Delhi in the case of Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2025.01.30 17:20:59 +0530 Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 35 of 37 Arya Orphanage (supra) was pleased to hold that interest is an integral part of mesne profits and therefore the same has to be allowed in the computation of mesne profits itself. Plaintiff would thus be entitled to grant of interest on mesne profits. I, therefore, grant interest to the plaintiff at the rate of 7% per annum on the mesne profits so granted from the date of filing of the suit till the date of gaining possession from defendant Kavita. This issue is, therefore, decided accordingly in favour of the plaintiff and against the defendant.
RELIEF.
70.In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has proved her case and therefore, she is entitled for the following relief:
(i) Decree of possession is passed in favour of the plaintiff and against the defendant Kavita to vacate the suit property i.e. 1684/32, Out of khasra No. 32/11, Situated at Village Najafgarh, area Abadi known as Todarmal Colony, Najafgarh, New Delhi as mentioned in the red portion of the site plan Ex.PW2/1 within three months from the date of decree.
(ii) The plaintiff is entitled for the decree of damages/mesne profits against the defendant @ Rs. 200/-
per day at the rate of interest 7% per annum from 01.12.2015 till the vacation of the suit property.
(iii) The plaintiff is also entitled for costs of the suit.
71.Decree sheet be drawn accordingly after the payment of deficient court fees, if any. Digitally signed by ANKIT ANKIT MITTAL Date:
MITTAL 2025.01.30 17:21:09 +0530 Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 36 of 37
72.File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN Digitally signed
by ANKIT
ANKIT MITTAL
COURT ON 30.01.2025 Date:
MITTAL 2025.01.30
17:21:16
+0530
(ANKIT MITTAL)
CIVIL JUDGE-01(SW)/DWARKA COURTS
NEW DELHI
Civil Suit No. 93/2016 Judgment dt. 30.01.2025 Page no. 37 of 37