Delhi District Court
Suit No. 118/12 vs Sh. Ram Chander on 30 November, 2013
1
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL JUDGE 6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 118/12
The Delhi Brotherhood Society,
Brotherhood House,
7, Court Lane,
Delhi110054 .................. Plaintiff.
Versus
Sh. Ram Chander,
Brotherhood House,
7 Court Lane,
Delhi110054. .......... Defendant
Date of filing of Suit : 03.06.1999
Date of decision : 30.11.2013
JUDGMENT
1. The brief facts of the case of the plaintiff are that it is a society registered under the Societies Registration Act, 1860 and Father Monodeep Daniel has been the secretary and principle officer of the plaintiff society. He has been duly authorized Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 1 2 and is competent to sign, verify and pursue the present suit.
2. The plaintiff pleaded that the defendant was employed as a domestic servant i.e. 'Dhobi' and he was permitted to reside in the one of the servant quarters of the Brotherhood House. He along with his family is occupying the premises given to him on licence without any charges/fees. The suit premises consists of two rooms measuring 12' 12 ft. and 12'10 ft. respectively. The defendant was also permitted to use the common toilet.
3. The servant quarters of Brotherhood House, 7 Court Lane, Delhi are vested in the plaintiff society and they are entitled to its possession. The defendant is no longer in the service of the plaintiff but he has continued to occupy the premises. The suit premises is required by the plaintiff society for the purpose of running social work and as coordinating room and as training room for activities of plaintiff society. The adjoining quarters have already been vacated by Sh. Rampal, Pamsukh, Prem Singh, Hira Singh, Patras and Budhram. The plaintiff society also requested the defendant to vacate the suit quarter but he refused to vacate the premises. The plaintiff issued a legal notice dated 16.09.1998 and asked the defendant to vacate the Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 2 3 suit premises or on before 31.10.1998. He was also informed that if he failed to vacate the premises then he will be liable to pay Rs.2,500/ per month as mesne profits for the illegal occupation.
4. The plaintiff pleaded that the value of the suit for the purpose of court fees and jurisdiction is Rs. 2,50,000/ which was market value on the date of institution of the suit. Thus, the plaintiff prayed for decree of possession of the servant quarter of Brotherhood House, 7 Court Lane, Delhi and for damages/mesne profits w.e.f. 01.11.1998 till the date of delivery of possession to the plaintiff.
5. The defendant filed the written statement and took preliminary objections. He pleaded that the suit has not been filed, signed and verified by a competent person. No resolution has been passed by the society. Father Monodeep Daniel is neither the secretary nor office bearer of the society and he has not been authorized by the plaintiff. He has also pleaded that the plaintiff has no locus standi to file the suit as it is neither the owner nor in possession of the suit property. He himself is owner of the suit premises. It was gifted to his great grandfather late Khannu Ram in the year 1925 by the British regime as they were pleased by his work. Since then Sh. Khannu Ram Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 3 4 remained in possession of the said premises along with his family. After his death the said property devolved upon his descendants by virtue of inheritance. The British officers issued several appreciation certificates to the father of the defendant Sh. Ram Deen. The defendant is owner in possession of the suit premises. Even otherwise, he has acquired ownership by adverse possession. In the year 1978 the suit property collapsed due to heavy rains and it was reconstructed by the defendant from his own funds.
6. The defendant further pleaded that this court does not have pecuniary jurisdiction to try the suit as the market value of the suit property is not less than Rs. 1 Crore. The suit has not been properly valued for the purpose of the court fees and jurisdiction. He also pleaded that plaintiff has not approached the court with clean hands and is guilty of suppressing facts. Defendant never remained in employment of plaintiff nor this accommodation was given to him. He did not remain as a licensee of the plaintiff. The suit does not disclose any cause of action. The site plan is not correct. The suit is not maintainable in the present form and is barred by limitation.
7. On merits, the defendant denied the averments of the plaint and reasserted Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 4 5 the contents of preliminary objections. He further added that the defendant is owner in possession of two rooms, two latrines, two bathrooms, one Dhobi Ghat and a Mandir. He denied that he was employed as a 'Dhobi' by the plaintiff and pleaded that the defendant charged from the plaintiff for the work he did for the plaintiff. Thus, the defendant prayed that the suit be dismissed.
8. The plaintiff filed replication and denied the averments of the written statement and reasserted the contents of the plaint. The plaintiff pleaded that two latrines, two bathrooms and Dhobi Ghat are available for common use.
9. From the pleadings, following issues were framed :
1. Whether the suit has been properly valued for the purpose of court fees and jurisdiction ? OPP 1(a). Whether the suit has been filed, signed and verified by a competent and authorized person ? OPP
2. Whether the court has the pecuniary jurisdiction to entertain the suit ? OPP 2 (a). Whether the plaintiff society is the owner of the suit property as the property is being vested in the plaintiff society ? OPP Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 5 6
3. Whether the defendant is the owner of the suit property by virtue of it being gifted to Sh. Khannu Ram, the great grandfather of the defendant by the British regime prior to 1925 ? OPD
4. Whether the suit of the plaintiff is being barred by limitation ? OPD
5. Whether the plaintiff is entitled for decree of possession as prayed ? OPP
6. Whether the plaintiff is entitled for any mesne profits? if so, for what period and on what rate ? OPP
7. Relief.
10. In order to prove its case the plaintiff examined Sh. Monodeep Daniel as PW1. This witness tendered his affidavit Ex. PW1/A along with documents Ex. PW1/1 to Ex. PW1/11. The plaintiff also examined Sh. Amos Rajamoney but this witness was partly cross examined as he could not appear for remaining cross examination. The plaintiff examined PW2 Sh. Ram Babu i.e. LDC, Building Head Quarter, MCD, Town Hall, Delhi. PW3 Sh. Ram Pravesh, LDC, Registrar of Societies, Industries Department, Patparganj, Delhi produced the certified copies of rules and regulations and memorandum of association of plaintiff society as Ex. Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 6 7 PW3/1 and PW3/2 respectively. The counsel for the plaintiff closed PE in affirmative on 24.09.2008.
11. The defendant himself appeared as DW1. He tendered his affidavit Ex. DW1/A along with documents DW1/1 to DW1/15. DE was closed vide order dated 29.02.2012.
12. I have heard the arguments of the counsels for both the parties. The counsel for plaintiff argued that the case of the plaintiff has been proved. The resolution has been proved vide which Sh. Monodeep Daniel was authorized to institute the suit. The scope of resolution cannot be restricted. As per section 6 of the Societies Registration Act the designated president or secretary are competent to represent the society. There is no plea of the defendant, that the suit premises is not for religious purposes. All the purposes of plaintiff society are written in memorandum and articles of association, which show that the purpose of the plaintiff society is to use the land in dispute for religious purpose. There is no denial that the value of the suit property is more than Rs. 2.5 lacs. The defendant did not prove his report of valuer. The property vests in the plaintiff and it has never been pleaded that the plaintiff is the Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 7 8 owner of the same. The suit property was transferred to the Indian Church Trustees by the Society for the Propagation of Gospel in foreign parts vide Ex. PW1/2. The plaintiff society was appointed as new trustees by the Indian Charch Trustees vide Deed of Appointment Ex. PW1/3. Thus, it has been proved that the suit property vests in plaintiff. Even otherwise, the register Ex. PW1/5 shows that the defendant was employed by the plaintiff. The defendant merely challenged the register by giving a bald statement that it is forged. The documents showing that the defendant was employed in other school have not been proved and therefore, the defendant was a licencee and by virtue of Section 116 of Indian Evidence Act, he is estopped from denying the title of plaintiff. There is neither any pleading nor any proof of adverse possession of the defendant. Thus, argued that the suit may be decreed.
13. On the other hand the counsel for defendant argued that the suit is on the basis of the resolution Ex. PW1/10 which is dated 02.02.1999 and the notice issued by the plaintiff is dated 6.09.1998, therefore, the said notice is illegal as it is without any authority. Sh. Monodeep Daniel was not the authorized person as his resolution does not give him any power in that regard. The amended plaint has been Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 8 9 signed by another person and there is no other resolution qua said person. He also argued that the plaintiff has failed to prove any document of its ownership. PW1 has failed to prove the case of the plaintiff. However, if the plaintiff is the owner then the defendant is owner by virtue of adverse possession. The plaintiff has not mentioned any date on which it was in possession and was dispossessed. There is no date as to when the property was given on licence to the defendant. No licence or agreement has been placed on record. The letter of appointment of defendant has also not been produced. There is no averment in the plaint that it is a religious place and as such the evidence is beyond pleadings and cannot be read. The property was also rented to the students of DU. The averments mentioned in para 3 of affidavit are beyond pleadings. The register is bogus. Defendant was peon in Mata Jai Kaur School and the signatures on the register were denied. The record of register is only with respect to the period between January 1993 to July 1995. If the defendant would have been a servant of plaintiff then the record from June 1925 onwards should have been produced. The defendant has pleaded and proved that he stopped the plaintiff from going in the property and the plaintiffs also admit that he has raised illegal Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 9 10 construction. Thus, the hostile, open and continuous animus of the defendant has been proved. There is no resolution of termination of defendant. PW1 did not deny that the defendant was working with Mata Jai Kaur Public School. He further argued that in the entire evidence of plaintiff there is no assertion that the suit property is being used for religious purpose. There is no chapel or church for the common public to come and visit. The brotherhood house is only for residence of brothers and nuns. Thus, argued that the suit is liable to be dismissed.
14. I have considered the arguments and gone through evidence on record very carefully. My issue wise findings are as follows: ISSUE NO. 1:
15. Onus to prove this issue was on the plaintiff. The plaintiff has proved its memorandum of association as Ex. PW1/1, the deed of transfer of trust dated 20.10.1960 as Ex. PW1/2 and deed of appointment of new trustees as Ex. PW1/3. In the cross examination of PW1, no suggestion has been put to him that these deeds and memorandum and article of association do not exist. In Traders Syndicate Vs. Union of India AIR 1983 Calcutta 337 it has been held that, " when no cross Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 10 11 examination is preferred to the witness on the point of dispute as stated in examination in chief, then the court can hold that defendant accepted plaintiffs case on the point of entirety. No dispute can be raised in the arguments." Thus, these documents have gone unchallenged.
16. The perusal of the objects of plaintiff society as mentioned in the memorandum and articles of association shows that the main objective of the society is to foster spiritual life of all people and to cooperate with others in fulfilling this purpose. The defendant has not disputed the objectives of the plaintiff society. The perusal of deed Ex. PW1/2 shows that the society for the propagation of gospel in foreign parts was vested with the suit property as a trustee. The schedule II of the said deed shows that the trust property was held for the purpose of promoting the glory of God by the instruction of all people in the Christian faith. The purposes as mentioned in the said schedule were for making provision for ministers of religion of any such churches , maintenance of regular church services according to the faith, doctrine and practices of any such Churches and in witness to the teachings and the requirements of the Christian Faith and Doctrine and in furtherance of such faith and Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 11 12 Doctrine : (a) the extension of education and, (b) carrying on of such work of social welfare.
17. Thus, the perusal of the said documents show that the suit property was always meant to be used for the purposes associated with the propagation of Christianity. Even the counsel for the defendant in his arguments stated that the brotherhood house is used only for the residence of the brothers and nuns i.e. the purpose which has been referred to in the schedule II of Ex. PW1/2. The perusal of the said objective clearly shows that the society has been formed for fostering spiritualism. The term religious purpose cannot be given a confined meaning and scope. Any purpose which is associated purely with the religion will be a religious purpose. Only the construction of a temple or gurudwara or mosque or a church cannot be the sole parameters for associating any purpose as a religious purpose. The purposes ancillary to the main purpose which are maintained and continued with purity also constitute a part of main purpose.
18. At this juncture, I am reminded of a famous quote of a well known poet John Milton used in his poem " On his blindness" . The poet said, " Those who Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 12 13 stand and wait, they also serve." These words hold true in every context. The residence given to an employee for the furtherance of his duties towards the main purpose will also become a part of the main purpose i.e. religious purpose in the present case.
19. The Hon'ble Madras High Court in Rajagopala Naidu vs. Ramasubramania Aiyar and another AIR 1924 Madras 19 (Full Bench) held, "
A temple as such has no market value and for the purposes of Court fees a suit for the recovery of possession of a temple falls under schedule II Article 17(VI) and not under Section 7 (V) (e)."
20. Thus, the suit property which is a part of brotherhood house cannot be valued for the purposes of court fees and jurisdiction. Even otherwise the plaintiff has valued the suit for the purposes of court fees and jurisdiction @ Rs. 2.5 lacs. The valuation of the plaintiff will have to be admitted unless it is arbitrary or proved to be incorrect. In Kamleshwar Kishore Singh vs. Paras Nath Singh and others in Appeal (civil) 7952 of 2001 dated 22/11/2001, the Hon'ble Supreme Court held that, "The Court shall begin with an assumption, for the purpose of determining the Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 13 14 court fees payable on plaint, that the averments made therein by the plaintiff are correct." The defendant did not lead any evidence even in the form of oral evidence saying that the value of the property was more than Rs. 2.5 lacs at the time of institution of the suit. Thus, it has to be concluded that the suit has been properly valued for purposes of Court fees and jurisdiction. Accordingly, this issue is decided in favour of the plaintiff.
ISSUE NO. 2.
21. Onus to prove this issue was on the plaintiff. In Issue No. 1 it has been held that the value of the suit cannot be ascertained and even otherwise the valuation of the plaintiff has not been proved to be arbitrary. As per the valuation made in plaint, this court has the pecuniary jurisdiction to try and dispose of the suit. Accordingly this issue is also decided in favour of the plaintiff. ISSUE NO. 1A.
22. Onus to prove this issue was on the plaintiff. Section 6 of the Societies Registration Act, 1860 provides that the society may sue or be sued in the name of its president, chairman, or principle secretary or trustees. The exact provision is Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 14 15 reproduced below :
" Section 6. Suits by and against societies Every Society registered under this Act may sue or be sued in the name of the President, Chairman, or Principal Secretary, or Trustees, as shall be determined by the rules and regulations of the Society, and, in default of such determination, in the name of such person as shall be appointed by the governing body of the occasion:
Provided that it shall be competent for any person having a claim or demand against the Society to sue the President or Chairman, or principal secretary or the trustees thereof, if on application to th governing body some other office or person be not nominated to be the defendant."
23. The plaintiff has examined PW1 Sh. Monodeep Daniel. This witness proved the memorandum of association as Ex. PW1/1. This document has also not been challenged as no suggestion was given in his cross examination that it is incorrect or it does not exist. The said memorandum of association bears the name of PW1 and his designation as a secretary. PW3 also proved the memorandum of association dt. 27.06.1977 as Ex. PW3/2. He also proved the rules of the plaintiff Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 15 16 society as Ex. PW3/1. PW1 has also proved the resolution dated 02.02.1999 passed by all the members of the plaintiff society vide which PW1 Mr. Monodeep Daniel being a secretary of plaintiff society was authorized to deal with the case of evicting the defendant and to attend to all the matters connected with the said litigation on behalf of the plaintiff society. Thus, the said resolution authorized PW1 to take all the steps as required for evicting the defendant. The authorization included everything that was required to be done by the then secretary Sh. Monodeep Daniel to institute the suit as well as for attending the matter relating thereto. It also ratified the sending of the notice for termination of the license.
24. It is not the case of the defendant the the general body had appointed some other person or they did not authorize the then secretary to take the steps for his eviction. Hence, Sh. Monodeep Daniel being the Secretary of plaintiff society was competent and authorized to institute the suit on behalf of the plaintiff as per resolution Ex. PW1/10.
25. The counsel for the defendant also argued that the amended plaint has been signed by some other person but no such plea was taken in the written statement to Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 16 17 amended plaint. There is nothing on record to substantiate the said argument. Thus, this issue is decided in favour of the plaintiff.
ISSUE NO.2(a)
26. The onus to prove this issue was on the plaintiff. The case of the plaintiff is that the suit property is vested in it. The plaintiff has proved the documentary evidence in the form of deed of retirement and transfer of trust and the appointment of new trustees.
27. In the deed i.e. Ex PW1/3 the society for the propagation of the gospel in foreign parts body incorporated by the royal charter of his late majesty King William XI on 16.06.1701 transferred numerous properties including the suit property to the Cambridge Brotherhood Society for appointing Indian Church Trustees as the trustees. The aforesaid deed also contains an averment that the suit property was vested in the society in the propagation of the gospel in foreign parts as trustee for and on behalf of the mission.
28. The plaintiff also proved the deed of appointment of new trustees dt. 10.02.1962 as Ex. PW1/2. According to this deed the original trustees i.e. Indian Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 17 18 Church trustees appointed Right Revd. E. John, the Revd. A.R. Rajamoney, Revd. C.J.G. Robinson, Revd. K.G. Sharb, Revd. J.D.M. Stuart, Revd. E.S. Nasir & Revd. I.C. Weatherhall all members of Brotherhood Society as new trustees. It is further necessary to note that it has been reorded therein that the Cambridge Brotherhood has been replaced by Delhi Brotherhood Society. Thus, the original trustees nominated and appointed the new trustees to hold the said trust property in place of the original trustees. It was further agreed that the trust properties shall at all times thereafter stand vested, assigned and transferred to the new trustees. Thus, Delhi Brotherhood Society was vested with the suit property vide documents Ex. PW1/2.
29. The plaintiff has also proved the deed of appointment of trustees dated 12.08.1995 vide which besides other new trustees Revd. Monodeep Evan Denial was appointed as new trustees. Thus, these documents show that the plaintiff society had become a trustee of the suit property and suit property vested in it. On the other hand, the defendant has not denied the execution of these documents as mentioned above. The defendant had also not pleaded as to who was the owner of the suit property or in whom the suit property vested before he came into the possession. Though PW1 in his Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 18 19 cross examination could not state as to when the defendant was inducted in the suit property. Moreover, the case of the plaintiff is that defendant was inducted as a licensee and the suit premises was given to him in lieu of his services as a dhobi.
30. The plaintiffs have proved the copy of the salary register for the period between January, 1993 to July, 1995 as Ex. PW1/5 (colly). The perusal of the said register shows that the defendant had continuously signed the said register against receiving his salary. The defendant has simply denied his signatures on the said salary register. In Alva Aluminum Ltd, Bangkok vs. Gabriel India Ltd, 2011(1) SCC 167, the Hon'ble Apex Court has clearly held that, " Heavy onus lies on the party who alleges fraud". Therefore, the burden to prove forgery was very heavy on the defendant. The defendant has not proved any oral or documentary evidence to establish the factum of forgery. There is also no averment that the defendant had filed a complaint before any authority to the extent that his signatures have been forged. The aforesaid act is against the normal conduct of any prudent person. In such circumstances mere bald assertion that his signatures have been forged is not sufficient to prove that the documents Ex. PW1/5 are forged. Hence, the said salary Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 19 20 register shows that the defendant was the employee of plaintiff for some period.
31. The defendant has also filed the record pertaining to his employment in Mata Jai Kaur Public School showing that he was deputed as peon on 08.05.1977. The said fact has not been denied by PW1, but the said witness could not have known about the said service of the defendant. However, it is necessary to note that if any person who is doing the work of dhobi at the same time takes up the job of peon somewhere else then in such circumstances it is not necessary that the previous employer will be aware of it. It is also necessary to note that in paragraph no. 3 of his written statement on merits, the defendant has pleaded that he charged money from the plaintiff for the work he did for the plaintiff. Thus, his defence that he could not have work for the plaintiffs as he was employed in Mata Jai Kaur Public School has been falsified. It is also necessary to note that the defendant admitted that the persons residing in the adjoining servant quarters vacated the premises because they were the employee of plaintiff. It is further necessary to note that the defendant admits that the suit property is situated in brotherhood house having its address as 7 Courtlane, Delhi. Thus, the defendant admits that suit property is a part of brotherhood house which is Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 20 21 vested in plaintiff society. Hence, it has been proved that the defendant was the employee of the plaintiff and he was inducted as a licensee in the suit premises. The defendant being the employee of the plaintiff is estopped u/s 116 of the Evidence Act from denying the title of the plaintiff.
32. Thus, in view of the aforesaid discussion it has to be concluded that the plaintiff has proved to the preponderance of probability that the suit property vests in the plaintiff society. Accordingly, this issue is decided in favour of the plaintiff. ISSUE NO. 3
33. Onus to prove this issue was on the defendant. The defendant had though pleaded that suit property was gifted to his great grand father Sh. Khanu Ram by the British regime prior to the year 1925, but in the evidence the defendant did not assert the said fact. Rather he took a plea that his great grandfather Sh. Khanu Ram had encroached the property illegally much prior to year 1927. The defendant has not produced any document to prove that a registered gift deed was executed in favour of his great grandfather by the British regime. Thus, the defendant has failed to prove that the suit property was gifted to his great grandfather by the British regime. Hence, Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 21 22 this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 4
34. Onus to prove this issue was on the defendant. The defendant in his written statement had taken a contradictory plea. On the one hand he stated that his grandfather Sh. Khanu Ram had become the owner of the suit property by virtue of the gift deed, whereas, on the other hand he pleaded that the defendant has acquired ownership rights by virtue of adverse possession.
35. The law relating to adverse possession has been laid down in detail in Wing Commander Retd. R.N. Dawar Vs. Sh. Ganga Saran Dhama DRJ 1992 (24). The Hon'ble Delhi High Court has held that, "long possession of property is not necessarily adverse possession. A person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what the nature of his possession was and whether the fact of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title is not enough to raise such a plea". Thus in order to establish adverse Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 22 23 possession the defendant had to prove the following essential elements:
(i) Element of hostile possession;
(ii) Allegation and proof as to how and when his adverse possession commenced;
(iii) Nature of his possession; (iv) Knowledge of real owner about his adverse possession.
36. In the present case, the defendant has neither pleaded nor lead any evidence as to when his possession became hostile towards true owner. Thus, one of the key essential ingredients for pleading adverse possession, is that the possession should be open and hostile to the knowledge of true owner. In the entire pleadings and evidence the defendant does not admit the plaintiff to be the owner of the suit property. He has also not disclosed as to who was the original owner against whom his possession was adverse. The fact that defendant had stopped the members of plaintiff society from entering in the premises will not amount to proof of adverse possession. Since the key essential ingredient of plea adverse possession has not been proved, therefore, the defendant has failed to prove that his possession became adverse.
37. Since the defendant has failed to prove his plea of adverse possession, Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 23 24 therefore, article 65 of the Limitation Act does not apply to the facts of the present case. Rather, it has been proved that the defendant was a licensee and his license was terminated w.e.f 01.11.1998. Accordingly, the defendant has failed to prove that the suit has been filed beyond the period of limitation and therefore this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 5
38. Onus to prove this issue was on the plaintiff. In issue no. 2A it has already been held that the suit property vests in the plaintiff and defendant was the licensee.
The plaintiff has proved the legal notice Ex. PW1/7 and the postal receipt Ex. PW1/8. Admittedly, the notice was posted on the correct address. Thus, as per Section 27 of General Clauses Act r/w Section 114 of Indian Evidence Act, the said notice is presumed to have been served on the defendant. Therefore, by way of notice Ex. PW1/7, the license of the defendant was duly terminated w.e.f. 01.11.1998 and the possession of defendant become unauthorized. Thus, the plaintiff is entitled to decree of possession. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 24 25 ISSUE NO. 6
39. Onus to prove this issue was on the plaintiff. The case of the plaintiff is that it is entitled to damages @ Rs. 2500/ p.m. on account of illegal occupation of the defendant w.e.f. 01.11.1998. It is necessary to note that as per case of plaintiff itself the suit property cannot be let out as it is for religious purpose. Therefore, there can never be any rental income of said property, therefore, the estimated rental value of similar property in the same locality cannot ascertained in this case.
40. However, the defendant continued to illegally occupy the suit premises w.e.f. 01.11.98. He enjoyed and used the property for his benefit and he is liable to pay damages qua use of said property. He could not have used the property without paying any penny so as to cause unjust disadvantage to the plaintiff. The defendant cannot be allowed to unjustly enrich himself by taking advantage of his own wrong. In such circumstances, I am of considered opinion that the defendant is liable to pay token amount for using and enjoying the suit premises from 01.11.1998 till handing over the possession of the suit premises.
41. It is again necessary to note that the license of the defendant was without Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 25 26 any license fee, therefore, the damages @ Rs. 1000/ p.m. will be sufficient to meet the ends of justice. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
RELIEF
42. In view of the aforementioned discussion, the suit of the plaintiff is decreed with costs. The decree for possession of the suit premises i.e. servant quarter of brotherhood house, 7, Court Lane, Delhi110054 shown in red colour in site plan Ex. PW1/4 is passed in favour of plaintiff and against the defendant. The suit of the plaintiff is also decreed for damages/mesne profits @ Rs. 1000/ p.m. from 01.11.1998 till delivery of possession. Decree sheet be prepared. It is necessary to note that the decree shall came in operation after filing of deficit court fees. The file be consigned to record room after due compliance.
Pronounced in the open court (Sushant Changotra)
On 30.11.2013 Civil Judge06 (West),Delhi.
Delhi Brotherhood Society Vs. Ram Chandra Suit No. 118/12 26