Delhi District Court
Shri Avinash Chander Tuli vs Shri Rajneesh Tuli on 28 January, 2014
CS No.252/11
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, DELHI.
Civil Suit No.: 252/11.
Unique Case ID No.02401C0517722011.
Shri Avinash Chander Tuli
Son of Late Kundan Lal Tuli
Resident of House No.196,
Ground Floor,
Bhai Parmanand Colony,
Mukherji Nagar, Delhi - 110 009. .....Plaintiff
Versus
01. Shri Rajneesh Tuli
S/o. Shri Avinash Chander Tuli,
R/o. 11247/2, Ist Floor,
Dori Walan, Gali No. 3,
Gaushala Road, Karol Bagh,
New Delhi - 110 005.
02. Mrs. Sonia Tuli
W/o. Shri Rajnesh Tuli,
R/o. 11247/2, Ist Floor,
Dori Walan, Gali No. 3,
Gaushalal Road, Karol Bagh
New Delhi - 110 005. ...Defendants
Date of institution of the suit : 09.11.2011.
Reserved for judgment on : 13.01.2014.
Date of pronouncement of judgment : 28.01.2014.
SUIT FOR POSSESSION AND RECOVERY OF MESNE PROFIT /
DAMAGES.
JUDGMENT
01. This is a suit for possession and recovery of mesne profits / damages filed by the plaintiff.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 1 CS No.252/11
02. Brief facts of the case are :-
(a) Plaintiff is the owner of first floor of property bearing No.11247/2, Dori Walan, Gali No.3, Gaushala Road, Karol Bagh, New Delhi -
110 005 (hereinafter referred as "the suit property"). The plot underneath the said property was initially leased out in the name of the plaintiff vide lease deed dated 27.03.1987 and later on the said property was converted from lease hold to free hold vide conveyance deed dated 01.11.2004. The said property stands mutated in the name of the plaintiff in the records of the offices of Delhi Development Authority and Municipal Corporation of Delhi.
(b) Defendant no.1 is the son of the plaintiff and defendant no.2 is daughter-in-law of the plaintiff and wife of defendant no.1. Defendants are in occupation of first floor of the suit property along with their children for the last many years. The plaintiff had permitted the defendants to stay in the suit property being son and daughter-in-law of the plaintiff as a permissive use and never charged any any license fee from the defendants.
(c) The plaintiff is living separately at the address mentioned in the title of the suit along with his married daughter who has been abandoned by her in- laws. She has got two children aged about 16 years and 6 years and both of them are residing with the daughter of the plaintiff. Defendants have got one son and one daughter and due to maltreatment of defendant no.2, son of the defendants has started residing with the plaintiff. The plaintiff being the grandfather of the son of the defendants, could not refuse his entry in the house of the plaintiff at Mukharjee Nagar, Delhi.
(d) Both the defendants were acting in a very erratic manner and it had become unbearable for the plaintiff to tolerate the defendants. The defendants are apparently in collusion with each other but at Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 2 CS No.252/11 times they behave like enemies of each other. Both the defendants have made the life of the plaintiff and his wife miserable to such an extent that the plaintiff was left with no alternative but to disown both the defendants by taking out a publication in the News Paper on 14.04.2004. A criminal complaint under Domestic Violence Act was filed by the defendants against the plaintiff, his wife and daughter. The wife of the plaintiff could not bear the harassment caused by the defendants individually and / or jointly and had expired on 28.01.2011.
(e) The plaintiff was harassed more vigorously by the defendants after the death of his wife and the defendants have the intention to grab the suit property belonging to the plaintiff. The plaintiff was fed up with the atrocities caused by the defendants who never cared to look after the plaintiff as he is an old man aged about 74 years and is suffering from several ailments / diseases such as High Blood Pressure, Diabetes, Heart Problem and other old age diseases. The plaintiff is unable to tolerate the threats / misbehaviour of the defendants any more.
(f) A notice dated 04.08.2011 was served upon the defendants calling upon them to hand over the vacant and peaceful possession of the suit premises to the plaintiff. The defendants had failed to comply with the said notice. However, defendant no.2 had sent a frivolous reply containing all incorrect and false averments.
(g) The defendants had been pressurising the plaintiff to transfer the suit property in their joint name or in the individual name of both the defendants in equal share. The defendants have got no right whatsoever to force the plaintiff to transfer/gift the property in the name of the defendants. They also threatened the plaintiff for implicating him in false criminal case. The plaintiff has no source Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 3 CS No.252/11 of income and at present one of the daughter of the plaintiff with her two children and one grandson (i.e.son of the defendants) are dependent upon the plaintiff and the plaintiff is finding it extremely difficult to accommodate all of them and to care for their daily needs due to shortage / paucity of accommodation and as such the plaintiff requires the suit property. The defendants are also liable to pay to the plaintiff use and occupation charges for the period for which the defendants continued to illegally regain the possession of the suit property.
03. Written statement filed by defendant no.1 wherein it is stated that the suit property was allotted to Sh. Sohan Lal, grandfather of defendant no.1, in lieu of property left in Pakistan during partition between India and Pakistan being HUF property. Plaintiff has no legal right to file the suit against defendant no.1. Ownership of the plaintiff qua the suit property is denied. It is further stated that the property was allotted to the plaintiff as Refugee on account of partition between India and Pakistan and beside property was purchased by the joint business of the family and as a joint asset as HUF and was allotted by the Ministry of Relief & Rehabilitation. The defendant is living since childhood in the said property and acquired his right in the suit property since his birth. Rest of the contents of the plaint are denied. It is further stated that daughter of plaintiff is residing with the plaintiff in a conspiracy with the father in order to grab the share of the defendant. It is further stated that the suit property is not less than Rs.1 Crore and as such this court has no pecuniary jurisdiction to entertain and try the suit.
04. Separate written statement filed by defendant no.2 wherein it is stated that the present suit has been filed in absolute connivance between plaintiff and defendant no.1 solely with a view to oust defendant no.2 and her daughter Divanshi from possession of the suit premises. It is further stated that huge amount of dowry was given in the shape of Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 4 CS No.252/11 cash, goods, assets, gold, jewellery etc. including gifts to near relations and other people of the plaintiff and defendant no.1's family. Huge amount was spent at the occasion of the marriage and other functions as organized by the father of the defendant. It is further stated that divorce petition is pending between both the defendants and she has also admitted that she filed petition under Protection of Women from Domestic Violence Act. It is further stated that the present suit has been filed purely with vindictive attitude. She has further stated that she has suffered all kinds of atrocities committed on her in connivance and conspiracy of the family of the plaintiff. She has further stated that she can not be dispossessed from subject premises being her matrimonial house irrespective of the ownership. Thus, the maintainability of the suit is challenged. She has further stated that ancestor of the plaintiff Sh. Bhagat Ram along with other family members migrated to India and they were having joint family assets and even filed claim for the HUF properties left in Pakistan when migrated to India. The consideration for the subject portion of the property was put from joint family and also certain amount of consideration was adjusted against claim so filed by Sh. Bhagat Ram for the properties which were left in Pakistan at the time of partition of country. The plaintiff also got assistance as Gadgil Assurance from Govt. of India which formed part of the consideration put towards the purchase of the suit property. Therefore, the ownership of the plaintiff is challenged. Rest of the contents of the plaint are also denied.
05. This court by order dated 04.12.2012 framed following issues:
1. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPD.
2. Whether the suit property is HUF or ancestral property ? If so, its effect ? OPD.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 5 CS No.252/11
3. Whether the suit is barred under law ? If so, its effect ? OPD.
4. Whether defendant no.2 can claim and assert her right at the suit property as matrimonial house ? (OPD-2)
5. Whether plaintiff is entitled for decree of possession of the suit property ? OPP.
6. Whether plaintiff is entitled for decree for mesne profits ? If so, at what rate and for what period ? OPP.
7. Relief.
06. Plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW1/A. He was cross examined at length by the defendants. Plaintiff further examined Record Keeper of Sub- Registrar Office, Asaf Ali Road, New Delhi and thereafter by separate statement closed P.E. Defendant no.1 examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/1. Defendant no.2 examined herself as DW2A and tendered her evidence by way of affidavit Ex.DW2A/1. She further proved documents Ex.DW2A/1 to Ex.DW2A/9. Both witnesses were cross examined by ld. counsel for the plaintiff. Defendant no.2 further examined Sh. Vijay Sekhri, her father, who tendered his evidence by way of affidavit Ex.DW2B/1. She further examined official from DDA as DW2C and one Government approved Valuer as DW2D. All the witnesses were cross examined by ld. counsel for the plaintiff. Thereafter by separate statement, ld. counsel for defendant no.2 closed D.E.
07. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved by the parties. My issue-wise findings are:-
Issues No.2.
Whether the suit property is HUF or ancestral property ? If so, its effect ? OPD.
08. Since entire controversy of the present suit revolves around Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 6 CS No.252/11 this issue and therefore I am going to dispose of this issue prior to other issues. During arguments, it is contended by ld. counsel for defendant no.2 that it is admitted case of the plaintiff that he was born on 22.07.1938 i.e. he was hardly 7/8 years when he migrated with Bhagat Ram to India on partition and as such he can not be a refugee, displaced person and/or squatter much less to be entitled to have benefit thereof much less of premises of the Gadgil Scheme announced by Govt. of India, which scheme required certain basic ingredients for entitlements and documents in support thereto. It is further stated that there is no occasion for the plaintiff to be owner thereof as plaintiff was hardly of age of 10/11 at the point of time when the property was allotted. It is further argued that in cross examination dated 01.04.2013, the plaintiff confirmed that he owned no property in Pakistan or he had no property in Pakistan.
It is further stated that the plaintiff obtained documents by fabrication and fraud with malafide intention as the real owner of the property was Sh. Bhagat Ram and so plaintiff is not competent to maintain the present suit. Contents of Ex.DW2/A are similar to the averments made in the written statement of defendant no.2. During cross examination, it is stated by DW2A that the suit property is ancestral property in the name of Bhagat Ram. She never met Sh. Bhagat Ram who was the grandfather of the plaintiff. She met with the father of the plaintiff Sh. Kundan Lal. She has further stated that when she got married, there was only ground floor and first floor in the suit property. There was only one room on the first floor and entire family was living on the ground floor. As on today there are three floors in the property comprising of ground, first, second and third floor. The first floor is in possession of defendant no.2 her husband and her daughter namely Ms. Divanshi Tuli whereas other floors of the property are in possession of different persons who are not part of the family of the parties. The ownership rights of such floors except first floor were transferred in the name of different persons by the plaintiff. She has Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 7 CS No.252/11 admitted that the allotment of the plot underneath of the property was made by DDA. She denied the suggestion that the allotment of the plot was made in the name of the plaintiff but admitted that DDA had executed a perpetual lease deed in respect of the property in the name of the plaintiff. She denied the suggestion that the DDA converted the lease hold rights in respect of the property into free hold in the name of the plaintiff. She was not aware if the suit property was being assessed in the name of the plaintiff in the records of MCD. She denied the suggestion that the conveyance deed in respect of the suit property was executed by DDA in the name of the plaintiff in the year 2004. She further denied the suggestion that the conveyance deed was duly registered in the office of sub-registrar, New Delhi. She has further stated that she is a graduate in Political Science (Hons.), from Hindu College, Delhi University and graduated in the year 1994. She is working as a teacher with Manav Sthali Junior School, Double Storey, Rajender Nagar, New Delhi and she joined the said school in July 2012. She is getting Rs. 20,000/- as salary, as per the salary certificate issued by the school authorities. Prior to July 2012, she was teaching as a primary teacher in Blooms N Blooms, at New Rohtak Road, New Delhi and was getting Rs. 5,000/- as salary. She has further stated that her daughter is studying in Manav Sthali School. R. Block, Rajender Nagar, New Delhi. The plaintiff shifted from the suit property to the address as mentioned in the memo of parties around the year 2005. She has further admitted that her husband was carrying the business of tours and travels in the name and style of "Monarch Tours and Travels" at that time in Channa Market, W.E.A., Karol Bagh, New Delhi. She denied the suggestion that the plaintiff had given a sum of Rs.10 lakh in all at the time when defendant no.1 had started his business. She further denied the suggestion that the said money was given to her and her husband together. She denied the suggestion that the suit property is not her matrimonial home or that she Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 8 CS No.252/11 has no right to live in the suit property. She has admitted that she was not aware about the Gadgil assurance but she denied the suggestion that the suit property is not HUF or ancestral property. She has further stated that during her stay in the matrimonial home, she came to know about the facts of Gadgil assurance from her neighbours as well as from her family members. Affidavit of DW1 is similar to the averments made in the written statement. During cross examination, it is stated by DW1 that the plaintiff sold ground, second, third floor of the suit property in the year 1999. The plaintiff shifted to the address as mentioned in memo of parties in the year 2005. He denied the suggestion that the suit property was allotted to the plaintiff. He has further stated that the plaintiff has got the property free hold by him. DW-1 has stated that he is a graduate. He denied the suggestion that the suit property was self acquired by the plaintiff. He has admitted that the plaintiff has never charged any license fee from him. He has stated that he has written wrong in his affidavit that late Sh. Bhagat Ram was his grandfather. Rather he was his great grandfather. He has admitted that the suit property stands in the name of the plaintiff. He has further stated that he had contributed some amount towards the construction of the suit property twice. He had contributed Rs.5,000/- by cash in the year 1999-2000 and Rs.5,000/- by self cheque drawn on State Bank of India, branch East Park Road, in the year 1987-88. He has further stated that he can not produce any document in support of his evidence. He denied the suggestion that he did not contribute single penny for the construction of the suit property. He has further stated that he and his wife i.e. defendant no.2 reside in the same address. He denied the suggestion that he along with his wife, in collusion with each other, had filed different cases against each other to grab the property of the plaintiff. In cross examination, it is admitted by PW-1 that he belong to Pakistan, District Siyalkot and migrated from there to India in 1947. He denied the suggestion that the suit property Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 9 CS No.252/11 was allotted to him in lieu of ancestral property left in Pakistan, by the Ministry of Rehabilitation. He has admitted that he has already sold the ground floor, second floor and third floor. He has further stated that he has sold the portion as a land. He denied the suggestion that the suit property was initially entered in the name of Sh. Bhagat Ram. He further denied the suggestion that he had later on inherited the same. He has admitted that the water meter was installed in the name of his uncle (Tauji) Sh. Sohan Lal. He has denied the suggestion that the electricity meter is installed in the name of defendant no.1. He denied the suggestion that defendant no.1 is in occupation of the property with his own rights. Here this court observes that defendant no.1 contradicted his pleadings by giving such a suggestion. In pleadings, it is case of defendant no.1 that it is the ancestral property whereas during cross examination defendant no.1 claimed the property with his own rights. His daughter namely Ms. Ritu Anand is not divorced. No proceedings are continued or pending in any court. She is residing with him for the last about four years. He has admitted that her husband is alive and he is having his own business at Hoshiarpur, Punjab and there is a house in his own name at Hoshiarpur, Punjab. His daugher is not working. He denied the suggestion that defendant no.1 has got equal right in the suit property as well as Bhai Parmanand Colony property. He has admitted that he has not given any share to defendant no.1 from sale proceed of ground, first, second and third floor, Karol Bagh property. He denied the suggestion that his married daughter and Ms. Ritu Anand and her two children are not dependent upon him. During cross examination by ld. counsel for defendant no.2 it is further stated by PW-1 that he is claiming the ownership rights of the suit property as the same exists in his name as a conveyance deed in his name. He has purchased the subject property out of his personal self earned resources. He has admitted that his father, uncles and the entire family along with Bhagat Ram who was Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 10 CS No.252/11 the grandfather of the plaintiff, migrated to India on partition in 1947. He also came along with his family to India. He has admitted that in 1947 when his family migrated to India, he was 9 - 10 years old. He has further admitted that Sh. Bhagat Ram got himself registered as refugee with Ministry of Relief and Rehabilitation. He has admitted that Sh. Bhagat Ram after migrating to India started squatting in the subject property and occupied it. He has further stated that he got married in 22.02.1966. It is further stated by PW-1 that he was in the business of leasing/renting of Concrete Mixer and Vibrator. He started working in 1960. He had never been an income tax assessee. He had never got any registration done with any government authorities regarding his business activities. He continued with his business activity till 2002. Initially he used to earn Rs. 500/- to Rs.600/- per month which gradually increased to Rs.6000/- to Rs. 8000/- per month. He applied to DDA for getting the suit property. He applied under Gadgil Scheme for allotment of suit property. He made an application for allotment to DDA under the Gadgil scheme. The Gadgil scheme was applicable to the refugees, displaced persons who migrated to India on partition of India in 1947. He claimed himself to be a refugee as he was paying the damages to DDA since 1947. He had no earning in 1947 as he was hardly 9-10 years old. He has admitted that the damages are in the name of Sh. Bhagat Ram. Later on, it was in his name. He was in occupation of the subject premises in his own right since 1947. PW-1 further stated that he did not apply with any authority to be registered as a refugee after partition in 1947. He did not make any application with any authority as claiming to be a squatter after 1947. He did not apply with any authority except Ex.DW2C/P6 with DDA. The document is perused. This document is copy of a form applied before DDA wherein PW-1 declared himself as a registered refugee and also mentioned details of registration certificate. He has further stated that he had savings of rupees five to six lakhs in 1984 and all his savings are Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 11 CS No.252/11 from his business. He was granted conveyance deed Ex.DW2C/P-5 on the basis of damages, which he paid to DDA. A suggestion was given on behalf of defendant no.2 to the plaintiff that PW-1 was not a squatter, displaced person, refugee. The suggestion was denied. A further suggestion was given that PW-1 manipulated, fabricated and obtained the perpetual sale deed by misrepresenting DDA and obtained the same by playing fraud and deceit and the suggestion was denied. Further suggestion was given that Sh. Bhagat Ram was the owner of the property being a refugee, squatter and a displaced person and the suggestion was denied. A further suggestion was given that Sh. Bhagat Ram was owner and beneficiary of the subject property which was given to him in lieu of compensation for his property left at Pakistan upon partition and in lieu of money he paid and the suggestion was denied. A further suggestion was given that allotment made to PW-1 was by manipulation, fraud and deceit and the suggestion was denied. A further suggestion was given that the conveyance deed in consequence of the perpetual lease deed in favour of PW-1 was also result of the same and the suggestion was denied. A further suggestion was given that the suit property had been allotted as owner and beneficiary to Sh. Bhagat Ram in lieu of his property belonging to family and to the HUF and the suggestion was denied. PW-1 further stated that his wife was not working woman and she had no earning. He has purchased the residential property at Bhai Parmanand Colony, Mukherjee Nagar, Delhi, two-three months prior to shifting on 25.08.2005 from the consideration amount received by him from sale of ground floor of the subject property i.e. Rs14/- lakhs. He purchased Parmanand Colony house for Rs.16/- lakhs. He had purchased the same in the name of his wife. His wife is no more. He is not aware whether defendant no.2 filed a divorce petition. He has admitted that defendant no.2 filed a complaint with Women Cell. He was not aware whether defendant no.2 had withdrawn her divorce petition. He has admitted that it is matrimonial Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 12 CS No.252/11 house of defendant no.2. He has admitted that defendant no.2 had filed a petition against him along with others under Domestic Violence Act. He has further stated that the property got mutated in his name with MCD on the basis of perpetual lease deed. He was not aware whether he had filed any document pertaining to his mutation with MCD on record. A suggestion was given that PW-1 got property mutated with MCD in his name by manipulation, misrepresentation, fabrication, fraud and deceit and the suggestion was denied. A further suggestion was given that neither of defendants is in permissive possession and the suggestion was denied. It is further stated that his daughter Ms. Ritu was staying with him due to his ill health. There is no litigation against her. She was staying with PW-1 since May 2009. He has further stated that PW-1 is suffering from diabetes, swelling in his legs, breathing problem. He is 75 years of age at present. There is no matrimonial dispute between his daughter and her husband or with his family. Upon a specific question put by ld. counsel for defendant no.2 it was replied by PW-1 that he was asked by Choki Incharge, Choki Sidhipura on 28.11.2009 that his grandson did not wish to stay with defendant no.2, so he should take him so he brought his grandson with him. A suggestion was given that his grandson was kidnapped by defendant no.1 in conspiracy and connivance with him and he is holding his grandson illegally. A further suggestion was given that defendant no.2 protested and even wrote letters for return of Master Daksh and the suggestion was denied. He has further stated that his wife died in hospital from Cancer. PW-1 further stated that defendant no.2 harassed him by filing complaint under Domestic Violence Act. Defendant no.2 threatened to sell the property about a year back. He was being pressurised to transfer the house, by defendant no.2, in her name. He has further stated that he had never made any enquiry about financial status of defendant no.2 and her earnings. A suggestion was given that he is under obligation to transfer Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 13 CS No.252/11 the property in their favour. A further suggestion was given that defendants are entitled to remain in possession of the suit property and the suggestion was denied. A further suggestion was denied that defendant no.2 is not financially dependent. A further suggestion was given that defendant no.2 not capable of arranging separate residential accommodation for self and her daughter. A further suggestion was denied that PW-1 has source of income at present. A further suggestion was given that defendant no.2 is occupying the property in her own entitlement and the suggestion was denied. A further suggestion was denied that attitude of defendant no.2 was not cruel towards PW-1 or PW1 still had affection towards defendant no.2. A further suggestion was given on behalf of defendant no.2 which was denied that complaint filed by defendant no.2 under Domestic Violence Act is not false. A further suggestion was denied by PW-1 that he was not hurt by the behaviour of defendant no.2 or he wanted defendant no.2 to continue to remain in possession of the property.
09. PW-2 brought the record in respect of property no.8904- A,Shidipura and the sale deed thereof was exhibited as Ex.PW2/1. PW-2 also brought the record of property no.18-A/1, Doriwalan and lease deed thereof is exhibited as Ex.PW2/2.
10. Another witness on behalf of defendant appeared as DW2B who is father of defendant no.2, who tendered his evidence as Ex.DW2B/1. Contents of Ex.DW2B/1 are similar to the evidence of defendant no.2. He has stated that his grand daughter Ms. Divanshi is in possession of the subject property and premises. During cross examination, he has stated that Sh. Bhagat Ram was the grandfather of the plaintiff and he had never seen Sh. Bhagat Ram. He did not remember the number of sons of Sh. Bhagat Ram. He has further stated that from the survey in the locality he came to know that the property was allotted in the name of Sh. Bhagat Ram. Thus, defendant no.2 is relying Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 14 CS No.252/11 upon hearsay evidence. This piece of evidence can not be trusted. He has further stated that he has not seen any letter in the name of Sh. Bhagat Ram that at the time of survey. He has further stated that his daughter had shown him a photocopy of the allotment made in the name Sh. Bhagat Ram in respect of property during her stay with the plaintiff and other family members. This court here observes that conduct of DW2 and his daughter i.e. defendant no.2 appears to peep into the financial matters of in-laws of defendant no.2. It is not stated by any of the witnesses of defendants that plaintiff or his son i.e. defendant no.1 had ever shown any document to her or supplied any copy of that document to defendant no.2. He has further stated that he did not remember the date of allotment of the photocopy of letter and allotment in the name of Sh. Bhagat Ram. He did not even remember the year of the said allotment. A suggestion was given that there was no such letter of allotment in the name of Sh. Bhagat Ram and the suggestion was denied. A further suggestion was given that this property was allotted by the office of DDA in favour of the plaintiff and the suggestion was denied. Here the court draws adverse inference against DW-2A. It is not the evidence of this witness that he was surely aware about the ownership status of the suit property then how this witness had denied the suggestion. In para 16 and 17 of Ex.DW2B/1 it is stated by this witness that Sh. Bhagat Ram along with his family were resident of village Sangial, Distt. Sialkot, Pakistan, where they were having joint family business and joint assets there. He has further stated that the property was allotted to Sh Bhagat Ram in lieu thereof what was left back at Pakistan. Nothing has been disclosed by this witness how he got knowledge of such facts. The affidavit has been sworn in upon his knowledge then in my considered opinion this affidavit is also incorrect as tendered in evidence as facts or in evidence have to be stated as per the knowledge only of the witness but here this court draws inference that Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 15 CS No.252/11 this witness has not disclosed from the source of knowledge upon which he has sworn in the facts of the affidavit. He denied the suggestion that the property was allotted by the office of DDA in the name of the plaintiff but only upon hearsay, without having ascertained the fact either from DDA or elsewhere. It is not the evidence of DW2B that he got verified any such fact from DDA or elsewhere. He has further denied the suggestion that the lease deed in respect of property was executed by the office of DDA in the name of the plaintiff. Again this court observes that how he has denied this suggestion, has not been disclosed in his affidavit. He further denied the suggestion that the lease deed was executed in the year 1987 by the office of DDA in the name of the plaintiff. Again court observes similar observation as already observed herein-above. He again further denied the suggestion that the property was converted from lease hold to free hold in the name of the plaintiff by means of conveyance deed dated 01.11.2004, by the office of DDA. He has further stated that he is not aware if the property stands in the name of plaintiff in the records of DDA. He has further denied the suggestion that the property is a self acquired property of the plaintiff. He has further stated that he can not give any answer to the question that on what basis he had made a statement that the property was/is a HUF or ancestral property. Therefore, entire evidence made by this witness in Ex.DW2B/1 is a baseless evidence when he did not know the basis upon which he made statement. Therefore, his evidence is not going to help defendant no.2. He also does not know about the other sons of late Sh. Bhagat Ram. He was also not aware about the fact that Sh. Sohan Lal, the other son of Sh. Bhagat Ram, was allotted a separate house by the office of DDA. He is also not able to state that the family of Sh. Sohan Lal is residing in the same area of Gaushala Road, where the suit property is located. He did not know if all the sons of Sh. Bhagat Ram were separately allotted houses/plots by the office of DDA/Ministry of Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 16 CS No.252/11 Rehabilitation. It appears that this witness has come to the court only to make a false affidavit without any verification or to ascertain the facts, only to tell a lie. Without having any basis, this witness has come to this court only to help defendant no.2 to succeed in a false claim against the plaintiff. He has also further stated that he did not know the profession of Sh. Bhagat Ram. He did not know about the nature of business was being carried out by Sh. Bhagat Ram. He further denied a suggestion that Sh. Bhagat Ram had no right in the suit property. Again this court observes that this witness again, without basis, making statement contrary to the records of the case. He has further denied the suggestion that the allotment of plot land was made by the office of DDA in the name of the plaintiff. Again this court observes that on what basis this witness has denied the suggestion, not disclosed. He did not remember about the date, month and year of the death of Sh. Bhagat Ram. A suggestion was given in the last that he was deposing falsely and this suggestion is denied by this witness but this court observes that this witness all along with his testimony made false statement without ascertaining and verifying the correct facts.
11. DW-2C is a summoned witness who brought the record from DDA. He has stated that there is allotment letter issued by DDA in the name of the plaintiff. He has further stated that the said letter was received by the plaintiff. He has further stated that the amount demanded was deposited by the plaintiff vide Challan Ex.DW2C/P2. This is the photocopy of challan bearing date of 11.01.1984. He has admitted that as per the record brought by him, Sh. Bhagat Ram was in unauthorised occupation for which a notice Ex.DW-2A/8 was issued by DDA. He has further admitted that the plaintiff was found eligible for allotment/regularization of the suit property by the office of DDA vide letter dated 13.11.1980. He has further proved perpetual lease deed dated 27.05.1987 as Ex.DW2C/P4. He has further stated that there is Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 17 CS No.252/11 conveyance deed dated 01.11.2004 issued by DDA in the name of the plaintiff and copy thereof is Ex.DW2C/P5.
12. Section 4 (1) of The Benami Transaction (Prohibition) Act, 1988 states :
"4. Prohibition of the right to recover property held benami:-
(1). No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."
Further in D. N. Kalia Vs. R. N. Kalia 178 (2011) Delhi Law Times 294, it was held by Hon'ble High Court :
"12. In any event, even if it is accepted that the mother had purchased the house in dispute in the name of her son as Benamidar the defendant cannot derive any benefit since the plea of Benami transaction is now hit by the provisions of Section 4(1) of The Benami Transactions (Prohibition) Act, 1988, which reads as under:
" 4 (1) No suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."
Learned Counsel for the appellant in order to bring out the case from purview of this provision of law took shelter under Sub Section (3)(b) of Section 4 which reads under :
"4(3) Nothing in this section shall apply-
(a) ...............................................
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 18 CS No.252/11
13. The submission of Mr. Goburdhan was that it is a case of mother and son the son was standing in a fiduciary capacity and also as a trustee qua the mother while holding the property in his own name and, therefore, the plea of Benami was not hit by Section 4(1) of the Act of 1988 in view of the exception provided under Sub-section (3)(b) of Section 4.
This argument also cannot be accepted since it was not even the case of the mother that she had purchased the house in dispute in the name of the plaintiff as a Benamidar and that he was holding that property as a trustee for her or in a fiduciary capacity towards her. Even the defendant had not taken such a plea. In any event, the plaintiff, in whose name his mother had purchased the house in dispute, cannot be said to be the trustee of his mother and it also cannot be said that he was holding that property in fiduciary capacity towards his mother. A similar question had cropped up for consideration before a Learned Single Bench of this Court in which case also the property in question had been purchased by the mother in the name of her son and when that son had sought to take shelter under the provisions of Section 4(3)(b) of the Act of 1988 this Court had taken the view that the son could not be said to be holding the property as a trustee of her mother or in a fiduciary capacity. That decision is reported as 2003(67) DRJ 174, Anil Bhasin V. Vijay Kumar Bhasin & Ors. And the relevant paras of that decision are reproduced below:
15. It is obvious that in view of Section 7 of the Benami Tansaction Act, which repealed Sections 81 and 82 of the Indian Trusts Act, 1882, there cannot be the same concept of trusteeship or fiduciary capacity, or that of the transferee being deemed to be holding for the benefit of the person buying or providing the consideration as was the position prior tot he amendment of 1988.
16. At the same time, there exists, the provisions of Section 4(3)(b) of the Benami Transactions Act, 1988, being in the nature of a privisio excluding from the prohibition, the right to recover property held Benami, in such situations where the person in whose name the property is held, is a trustee or other persons standing in a fiduciary capacity.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 19 CS No.252/11
17. To my mind, the only interpretation which can reconcile all the previsions, is to hold that after the repeal of Sections 81 and 82 of the Indian Trusts Act, 1882, it is only those instances of fiduciary capacity such as property of partnership firm held in the name of one of the partners, or property which Mr. X wanted Mr. Y to buy in the name of Mr. X, but in violation of that instruction, Mr Y has bought the property in his (Y's) own name. In such a case Mr. Y being in fiduciary capacity and a trustee of Mr. X, the previsions of Section 4 (3)
(b) will ensure that prohibition of Benami Transaction does not stand in the way of a legal proceeding by Mr. X to enforce any right in respect of the said property.
18. The distinction is subtle, but significant.
If Mr. X asks Mr. Y to purchase in his own name certain property, of which consideration has been paid by Mr. X, then that is a Benami, transaction. On the other if Mr. X were to ask Mr. Y to buy the property int he name of Mr. X, but for any reason Mr. Y purchase the property in his own name (vioz. Name of Mr. Y), then the relationship of trustee and or fiduciary capacity is available in the former case, but not in the latter case."
14. Similar view was taken by Kerala High Court also in a judgement reported as (1989) 180 ITR 503, titled C. Narayan V. Gangadharan'.
Therefore, the argument of Mr.
Goburdhan in the present case that the plea of
Benami is permissible in view of Sub-section
3(b) of Section 4 of the Act of 1988 stands
rejected."
13. In 'Aarti Sabharwal Vs. Jitender Singh Chopra, 162 (2009) Delhi Law Times 38 where in para 35 Hon'ble High Court held:
'It is plain from Section 4(1) that no suit shall lie to enforce any right in respect of any property held Benami against the person in whose name the property is held. Even if one were to stretch the arguments, Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 20 CS No.252/11 as is sought to be done by the Defendants, the plaintiff cannot claim ownership to the suit properties but only lay claim for recovering maintenance from Defendant no. 1, who according to her is the real owner of such property. Such a prayer in any event cannot be made on account of Section 4 (1), Benami Act......'
14. Thus, in the light of discussion made herein-above it is crystal clear that the suit property in this case exists in the name of the plaintiff. This fact is also not denied by either of the defendants and also admitted by witness brought by defendant no.2 i.e. DW2C. By applying principles and law discussed hereinabove, in this case the property stands in the name of the plaintiff, therefore, any other person can't claim any right akin to the ownership qua the suit property.
15. It is the defence of the defendants that the suit property is part of HUF or ancestral property or the part of the joint family property. It is further the case of defendant no.2 that she as a matter of right, is entitled to live in the property being her matrimonial home. Regarding joint family property or ancestral property or HUF, Hon'ble High Court of Delhi held in Lt. Col. R. R. Chandra Vs. Sandeep Chandra 166 (2010) Delhi Law Times 50, in para 17:
"As it noticed earlier, the onus of proving the preliminary issue was on the defendant. The defendant has not placed any document, whatsoever, on the file of this suit that remotely suggests that the suit property was held by the plaintiff for or on behalf of the members of the HUF. In his cross -examination, on being suggested that he has not produced any documents in support of the allegations the suit property is a joint family property..........."
It was further held by the Hon'ble High Court in the same Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 21 CS No.252/11 judgment :
"19. The evidence placed on the record about the plaintiff's ownership of the suit property, by way of the sale deed, as well as the certificate showing that he discharged the loan secured by him previously for acquiring the asset, clearly establishes his ownership. The Defendant's evidence is entirely oral, and at best speculative and conjectural. At each step, he suggests that the plaintiff is in possession of the documents, and that even his wealth tax returns were with plaintiff. Other than his oral testimony, he did not lead any documentary evidence to establish the claim that the suit property was acquired out of joint family funds. He is the counter-claimant, asserting such state of affairs.
20. In Srinivas V. Narayan, AIR 1954 SC 379, the Supreme Court held that:
i. Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the neucleus from which the property in question have been acquired, the burden shifts to the party alleging self acquisition to establish that property was acquired without hte aid of joint family funds.
ii. The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an interference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value.
21. The above decision was applied in Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 22 CS No.252/11 M. Girimallappa V. R. Yellappagouda, AIR 1959 SC 906. In Rukhmabai V.Laxminarayan, AIR 1960 SC 335, the Supreme Court held that:-
"...there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint family property.
The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."
22. The ratio of the above pronouncements is that there exists a presumption in Hindu Law that a family is joint. However, there is no presumption that property owned by any member or members of the joint family is Hindu Undivided family property. The member asserting so (that the property is joint family property) has to prove by cogent and convincing evidence that he, or other member acquired the asset by investing joint family funds or nucleus. In such event, the onus shifts on those who say that the property is not joint family property, to say so. These issues are not questions of law, but questions of fact to be decided on appreciation of evidence led by the disputing parties."
16. In AIR 1968 SUPREME COURT 1276 titled as G. Narayana Raju (dead) by his legal representative, Vs. G. Chamaraju and others, in para 3 and 6 Hon'ble Supreme Court held:
"3..... It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 23 CS No.252/11 were blended with the joint family estate, the business remains free and separate."
17. In AIR 2003 SUPREME COURT 3800(1) titled as D.S. Lakshmaiah and another Vs. L. Balasubramanyam and another, Hon'ble Supreme Court in para 17 held:
"17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No. 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No., 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of Item No. 1 to be joint family property would fail as rightly held by the first appellate Court.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
18. In a judgment AIR 2007 SUPREME COURT 1808(1) titled as Makhan Singh (D) by LRs Vs. Kulwant Singh, Hon'ble Supreme Court in para 8 and 9 held :
"8. The query was answered in paragraph 18 in the following terms :
"The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
9. The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 24 CS No.252/11 Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K. V .Narayanaswami Iyer case (supra ) is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property."
19. In RFA (OS) NO.99/2009, DECIDED ON 09.04.2010 titled as Sandeep Chandra Vs. R.R. Chandra (Retd.), Hon'ble High Court held in para 17 and 18 of judgment:
17. In Srinivas Vs. Narayan, AIR 1954 SC 379, the Supreme Court held that:
i) Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self-
acquisition to establish that property was acquired without the aid of joint family funds.
ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value.
18. The above decision was applied in M. Girimallappa Vs. R. Yellappagouda AIR 1959 SC 906. In Rukmabai Vs. Laxminarayan, AIR 1960 SC 335, the Supreme Court held that:
"...there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 25 CS No.252/11 property."
20. In CM (M) 225 of 2009 & CM Appl. Nos. 13244 of 09, 6106 of 2010, decided on 21.04.2010 in case titled as Anshumalee Sood Vs. Sudarshana Kumari Blagan Hon'ble Delhi High Court held in para 5 of judgment :
"5. By the impugned order, the learned CCJ held that:
(i) There was no presumption that a property standing in the name of a member of a joint Hindu family was the joint family property. Reliance was placed on the decision in Ms. Rukhmabal v. Lala Laxminarayan, Air 1960 335.
(ii) The mere fact of Shri Mela Ram being a refugee and the suit property having been allotted by the Government of India in lieu of his property left behind by him in Pakistan at the time of partition would not make the suit property ancestral. The applicant had failed to make sufficient averments in support of such claim."
21. In this case also, the case of the defendants was that the plaintiff was a refugee came from Pakistan and the suit property was allotted to him by the Government of India in lieu of the property left behind in Pakistan at the time of partition would not make the suit property as ancestral as claimed by defendants. Thus, the law laid down in this judgment is squarely applicable towards the facts of this case.
22. Further in para 8 of the above referred judgment, the Hon'ble High Court held :
"8. The terms "joint family property‟, "ancestral‟ and "coparcenary"
property are not defined in the Act but have been the subject matter of decisions over the years. Over a hundred years ago in Karsandas Dharamsey v. Gangabai (1908) 10 Bom LR 184 Beaman, J. explained:
"(T)here must have been a nucleus of joint family property before ancestral joint-family property can come into existence. Because the word ancestral connotes descent and therefore of course pre-existence. But because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property, it is not true that there cannot be joint family property without a pre-existing nucleus. For that would be identifying joint family, with ancestral joint family property. The distinctions arising under the case law between the two classes of property thus designated are well enough known, though it would be hard Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 26 CS No.252/11 to find any strictly logical justification for them. Where there is ancestral joint family property, every member of the family acquires by birth an interest in it, which cannot be defeated by individual alienation or disposition of any kind. And this, in my opinion, with respect to any judicial decisions to the contrary is equally true of joint family property... whereas in the case of joint ancestral property, members of the family acquire a right to their shares by birth ex necessitate et vi termini, in the case of merely joint-family property, the Courts have shown a very strong tendency to refuse to draw even a presumption in favour of this peculiar incident... where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents in every respect, as property which is admitted or proved to be ancestral joint family property. Further that this class of property in India differs radically in origin and essential characteristics from the joint property of the English law." (emphasis supplied)
9. Further, it was held that :
"the person alleging that it was joint family property must (in the present state of the law) show that the family was joint in food, worship, and estate, in other words that the members had shown their intention to constitute a joint family, and to hold all their property as joint family property."
10. In Gowli Buddanna v. Commissioner of Income-tax, Mysore, Bangalore AIR 1966 SC 1523 the Supreme Court explained:
"A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners."
11. Reference was made to the judgment of the Judicial Committee in Ceylon Attorney-General of Ceylon v. A. R. Arunachalam Chettiar , I.L.R. (1957) A.C. 540 where it was observed:
"The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word "owner" in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property"
of the undivided family."
12. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors. AIR 1985 SC 716 it was held:
"As observed in Mayne on Hindu Law and Usage (1953 Edn.) the joint and undivided family is the normal condition of a Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 27 CS No.252/11 Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. There can be a joint family without a joint family property. At para 264 of the above treatise it is observed thus:
264. It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body....
For, coparcenary in the Mitakshara Law is not identical with coparcenary as understood in English law: when a member or a joint family dies, 'his right accrues to the other members by survivorship, but if a coparcener dies his or her right does not accrue to the other coparceners, but goes to his or her own heirs". When we speak of a Hindu joint family as constituting a coparcenary we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those person who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation." (emphasis supplied)
13. The position in law from the above decisions is that there is a distinction between a joint Hindu family and joint family property. The existence of the former does not automatically mean that the latter exists. For there to be a coparcenary property it must be established that persons linked by a common descent have a right to the joint property of the coparcenary by birth. In other words, only those persons who acquire by birth an interest in the joint or coparcenary property are stated to be coparceners entitled to enforce such rights. Mayne explains that it is not all persons who trace themselves to a common ancestor who are coparceners but "only those person who, by virtue of relationship, have the right to enjoy and hold the joint property, provided the property has not been partitioned." The burden to show that the property was a joint family property was on the person laying such claim.
23. Thus, in view of the law discussed herein-above, to prove in a case wherein the parties have to establish his/her right over the property as a part of joint family property or HUF, the party has to prove first of all the nucleus of the joint family property or HUF. The party has to establish that there was a nucleus i.e. all earnings of the family Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 28 CS No.252/11 members of the joint family property or HUF would have been pooled and the Karta of the family has to spend out of that nucleus. Thus, nobody can claim any part of the property or earning during the existence of joint family property or HUF claimed of himself or of herself as the entire expenses have to be borne out by the Karta of the family out of that nucleus and that nucleus exists only when the pre-condition of joining or pooling the funds or earnings by all the members of the joint family into that nucleus. In the present case, there is no such case established by either of the defendants. Moreover, it is not the case of DW2A i.e. defendant no.2 that entire family expenses were born out by the plaintiff or she was giving her income to the plaintiff, being a Karta. One can not claim that he who retained his income for himself but claimed the benefits of joint family property or HUF. Especially, it is the case established by both the defendants that earlier they were living with the plaintiff at the suit property. Moreover, it is the case of the defendants that the suit property is a part of ancestral property, which the defendants have miserably failed to prove in as much as DW2C appeared and proved that the suit property exists in the name of the plaintiff only. DW-2C also proved that from the very beginning and till date, title deeds are in favour of the plaintiff. Moreover, DW2C is the witness brought by defendant no. 2 only and who proved the case as per the documents, that the suit property exists in the name of the plaintiff only. Moreover, even if it is assumed that parties to the suit were living jointly at the suit property even then proof of existence of joint family does not lead to a presumption that property held by the plaintiff was joint. Defendants are miserably failed to prove that the property owned by the plaintiff out of the income yielded by any nucleus of joint family. Moreover, as per Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 and also D. N. Kalia Vs. R. N. Kalia(Supra) if the property exists in the name of a person then no such claim or action to enforce any right in respect of Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 29 CS No.252/11 property can be enforced. Moreover, this court already observed that prior to filing of the suit, neither of the defendants claimed any right upon the suit property. In the present case, the defendants tried to claim their right over the suit property in view of Section 4(3) of the Benami Transactions (Prohibition) Act, 1988. But this court observed that the case of the defendants does not cover with the exceptions as mentioned under Section 4(3) of the Benami Transactions (Prohibition) Act, 1988 as it is not established by the defendants that the suit property was held by the plaintiff for the benefit of the coparceners in the family.
24. In the light of entire evidence discussed herein-above and law discussed herein above this court is of the considered opinion that the suit property is self acquired property to the plaintiff. Both the defendants and the witness DW2B made deposition before this court without any basis or verification of records but it appears that only to grab the suit property from the plaintiff. There is nothing on record which shows that there was any nucleus of joint family or HUF or suit property thereof. It is not the case of the defendants that they contributed towards the household expenses to Karta i.e. the plaintiff at any time. Even the Karta has not been disclosed by any of the defendant in their testimonies. It is not the case of defendant no.1 or defendant no.2 that there was any joint stock or pool of funds and they had contributed at any time. It is not the case of either of the defendants that the plaintiff had at any time asked them to contribute for making payments of the expenses to maintain the suit property i.e. either to make payment of repairs, alterations, additions whatsoever or even house tax. It is neither the case of defendants that they contributed towards the house tax or whatever tax levied upon in respect of suit property. Therefore, the defendants could not succeed to establish their right over the suit property as a coparcerner in view of the law discussed herein-above.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 30 CS No.252/11
25. Regarding matrimonial home, in S. R. Batra Vs. Taruna Batra AIR 2007 SUPREME COURT 1118 it was held in para 16:
'There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.'
26. In para 8 of judgment in 'Neetu Mittal vs Kanta Mittal & Ors.' 152 (2008) DLT 691 it was held:
As observed by the Supreme Court, 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow.
Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.' It is further observed in para 9 of this judgment '...........The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 31 CS No.252/11 affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.'
27. In 'Shumita Didi Sandhu Vs. Sanjay Singh Sandhu other" Delhi High Court 2207 (2) F.J. C. C. 236, in para 17 it is stated:
'Learned counsel for the plaintiff, however, submitted that the Supreme Court did not go to the extent of holding that daughter-in-law had no right to stay in the house belonging to parents in-law even if it was matrimonial home. His submission was that in the aforesaid judgment it was not decided as to whether the house in question was a matrimonial home and if it was so, whether daughter-in-law had right to stay in the said house or not. He pleaded that in the absence of autho-ritative pronouncement on this aspect by the Supreme Court, decision in the case of Taruna Batra, (supra) should prevail. I am afraid and it is difficult to read the judgment of the Supreme Court in the manner learned counsel for the plaintiff wants me to read. Ratio of this case is clear, namely, the daughter-in-law has no legal right to stay in the house which belongs to her parents-in- law.' Para 18 of this judgment further states that:
'Legal position which emerges is that the husband has legal and moral obligation to Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 32 CS No.252/11 provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is not dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reason. Obviously, their son, who is only a permissive licencee and staying in the house with his wife cannot claim legal right therein.
28. Our Hon'ble High Court in 'Ajay Kumar Jain Vs. Baljit Kumar Jain' II (2009) DMC 64 (DB) held that:
'Matrimonial home is a place where both the parties i.e. husband and wife seek to reside- object of same is that wife should not be left homeless by any action of husband.' In the same judgment, Hon'ble Divisional Bench of our High Court held in para 9 and 10 that:
'9. The real bone of contention is the suit property. The respondent is adamant that the same is her matrimonial home and she is not willing to shift to another place. On the other hand, it has been pointed out by learned Counsel for the appellant that a suit for partition in respect of the said complete property had been filed by the brother of the appellant as both the appellant and his brother own 50% Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 33 CS No.252/11 share each and preliminary decree had been passed. The question of the mode of division or sale of property was pending consideration before the competent Court and it was in view thereof that the appellant had offered to shift the respondent to another house.
10. Learned Single Judge in the impugned order has laid great emphasis on the fact that both the appellant and the respondent had been originally residing in the suit property being the first floor....'
29. In Sardar Malkiat Singh Vs. Kanwaljit Kaur 168 (2010) DLT 521 in para 15 and 16 it was held:
15. While the legal position is clear that the husband has a legal and moral obligation to provide residence to his wife, and if the house where the wife lived on being wedded, belongs to her husband, it would certainly to be treated as a "Shared household" or a matrimonial home, there is no such obligation on the father-in-law or the mother-in-law to provide residence to the daughter-in-law. It is also clear that if the house in question belongs to the joint Hindu family of which the husband is a member, even that would be termed as a "matrimonial house." In the instant case, no such assertion has been made by the respondent No.1 and as a matter of fact, it is fairly conceded that the house stands in the name of the appellant, her father-in-law. This would not, in my view, vest any right in the respondent No.1 to stay indefinetly in the said house by claiming right of residence.
16. In Vimalben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and Ors., III (2008) SLT 630-III (2008) CLT 147 (SC)-2008 (40) SCC 649, the Supreme Court while observing that the Domestic Violence Act provides for a higher right in favour of a wife, in that, she not only acquires a right to be maintained, but also thereunder acquires a right of residence, clarified that the said right as per the Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 34 CS No.252/11 legislation extends to joint properties in which the husband has a share. In para-18 of the said judgment, it was stated thus:
"18. Maintenance to a married wife during subsistence of marriage is on the husband. It is his personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can only be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the lifetime of the husband his personal liability to maintain his wife can be directed to be enforced against such property."
30. In CS (OS) 2795/2011 titled as Barun Kumar Nahar Vs. Parul Nahar decided on 05.02.2013 Hon'ble High Court observed :
"24. Referring to the decision of the Apex court in the case of S. R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC 169, which has extensively dealt with the legal position regarding the right of a daughter -in-law in a shared household under Section 17(1) of the DV Act, it was held as under: -
"16. There is no such law in India, like British Matrimonial Homes Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.
29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member...
30. No doubt, the definition of "shared household" in section 2(s) of the Act is not happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in the society."
25. In S.R. Batra case (supra), the property in question belonged to the mother-in-law and there also the defence taken by the daughter- in-law was that the said property was a joint family property and therefore she enjoyed a protection under Section 17(1) of Domestic Violence Act, 2005. However, the court took a view that daughter-in- law cannot claim any right in an accommodation which belongs to mother-in-law or the father-in-law as such an accommodation does not satisfy the test of share household accommodation as envisaged under Section 2(s) of the Domestic Violence Act, 2005.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 35 CS No.252/11
26. The aforesaid view was reiterated by this court in the case of Neetu Mittal v. Kanta Mittal reported in 152 (2008) DLT 691 and the relevant Paras of the same are reproduced as under:-
"8. ... 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.
9. Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis- regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 36 CS No.252/11
27. In yet another case Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors. reported in 174 (2010) DLT 79 (DB), the Division Bench of this Court took a view that a property which neither belongs to husband nor is taken on rent by him, nor is a joint family property in which husband is a member, cannot be regarded as shared household and, therefore, the daughter-in-law has no right to claim right to stay in such a property, which belongs to either the father-in-law or mother-in-law. The Hon'ble Division Bench also held that the right of residence which a wife undoubtedly has does not mean right to reside in a particular property and it is only in that property in which the husband has a right, title or interest that wife can claim residence and that too if no other commensurate accommodation is provided by the husband. The following paragraphs from the said judgment are reproduced as under:-
"40. ...the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household".
Clearly, the property which exclusively belongs to the father- in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a "shared household". The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.
41. In the light of the aforesaid principles, the appellant/plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her 'matrimonial home'. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household."
It was further held by Hon'ble High Court in para 30:
"30. In the light of the aforesaid legal position the defendant No.1, being a daughter-in-law of the plaintiff, has no right as against the plaintiff i.e. her father-in-law, to occupy any portion of the subject property, which is his self-acquired property."
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 37 CS No.252/11
31. In Kavita Chaudhary Vs. Eveneet Singh Ex. P. 180/2011 & EA No. 197/2012, decided on 25.04.2012, Hon'ble High Court in para 17 held :
"17....The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household ".
Clearly, the property which exclusively belongs to the father -in-law or the mother-in-law or to both of them in which the husband has no right, title or interest, cannot be called a "shared household". The Hon'ble Division Bench in Sumita Didi (Supra also observed that the right of residence which a wife undoubtedly has does not mean her right to reside in a particular property although such a right in terms of Section 17 of The Protection of Women from Domestic Violence Act is a right to reside in a commensurate property. "
32. In view of the law discussed herein above, I am of the considered opinion that a woman can claim maintenance regarding her residence from her husband only when she is dependent upon her husband for residence. She could not claim for residence in a particular property but it is duty of the husband to provide residence to a wife who is dependent upon him or to make provisions thereof. However the facts of the case as brought before the court herein that defendant no.2 is not dependent upon her father-in-law in any manner as she herself earning a handsome amount from her job as it is her own case that she is working in a reputed school of Delhi.
33. Moreover, the legislature is passed "The Maintenance of Welfare of Parents and Senior Citizen Act, 2007" with an object for the welfare of parents and senior citizens for the rights as provided under the Constitution. This is the intention of the legislature to ensure the welfare of senior citizens but if senior citizens are being thrown out from their houses, as in this case, then definitely they will be the target of the disputes between their son and daughter-in-law. It will be resulted to leave their houses by senior citizens despite of putting their hard earned Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 38 CS No.252/11 life savings in their houses.
34. In this case also, the plaintiff is victim of the harassment of his son and daughter-in-law who have occupied his property without any basis or having any legal right over it. The another worst factor is that father of defendant no.2 i.e. father-in-law of his son, also joined hands to throw away the plaintiff from the suit property. The plaintiff has forced to leave the suit property and started living in his another house. The plaintiff could have earned rent in this age when he is unable to earn and the defendants are not paying any rent to the plaintiff especially defendant no.2, who is earning a handsome salary but does not bother to pay even a single penny of rent to the plaintiff.
35. This court further observes the conduct of both the defendants especially of defendant no.2 who is working and getting handsome salary as a teacher in a reputed school at Delhi i.e Manav Sthali Junior School, Rajender Nagar, New Delhi. She has not brought even the salary slip before the court. It is a matter of fact that every employer whenever pays the salary then also makes the payment towards the house rent allowance. It is not her case that she had ever paid house rent allowance or incurred expenses to maintain the suit property. On the other hand, this court is of the considered opinion that it is very pathetic for the plaintiff who is a senior citizen and is as per the records having age more than 75 years, is suffering due to conduct of both the defendants and the added factor is that father of defendant no.2 also joined hands with defendant no.2 who made statement and deposition before this court without any basis who made the statement contrary to the facts and records of the case, only to mislead this court so that he could illegally help to his daughter to get the suit property. This court further observes that the conduct of DW2B is highly deplorable. In such circumstances, I do not find any merit in the defences made by either of the defendants or their witnesses except the official witness from Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 39 CS No.252/11 DDA i.e. DW2C who has brought the record and as per the record this court came to the conclusion that plaintiff is an exclusive owner of the suit property. Therefore, issue no.2 is answered in favour of the plaintiff and against the defendants.
Issue no.1.
Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPD.
36. Onus to prove this issue was upon the defendant. To prove this issue defendant examined DW2D who is government approved valuer. He has stated that he personally visited the property and assessed its value. Report is Ex.DW2A/1. This is the report prepared by Sharma and Associates. Name of DW2D is also mentioned in the report. According to this report, he has stated that the value of the suit property is Rs.85/- lakh to Rs.90/- lakh. This report was prepared on 31.12.2013 whereas the suit was filed on 11.11.2011. During cross examination he has stated that he prepared the valuation report upon the instructions of defendant no.2. He denied the suggestion that the report was issued at the instance of defendant no.2. He has admitted that he has not annexed site plan along with Ex.DW2A/1. He has further stated that he had not seen the documents before preparing the valuation report. He has admitted that defendant no.2 had not shown even a photocopy of the title documents. He has further stated that he had given valuation report to Sh. Anil Kumar Sharma, who had handed over the same to defendant no.
2. He has further stated that Sh. Anil Kumar Sharma, draftsman is having chamber near Post Office, Tis Hazari Courts. He did not remember from whom he got typed valuation report Ex.DW2A/1. He has further stated that he has mentioned the property to be freehold in part 1 of his valuation report at the instance of defendant no.2. He has further stated that the value of the property as given in part II of his valuation report is based upon his assessment and also on the basis of enquiry Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 40 CS No.252/11 made from the local property dealers. He did not remember the name of any of the property dealer whom he had consulted for assessing the value of the suit property. He has admitted that valuation report is based on oral enquiries and not according to any book. He has further admitted that he has based his valuation report without referring to value of the property given by office of DDA/ L & DO. He has further stated that he has not referred to the circle rate of the properties situated in the area. He is not aware in which category the suit property falls. He could not say whether valuation of the suit property as per the circle rate Rs. 36,300/- per square meter at the time of November 2011. He has further stated that he has not mentioned the cost of land in the valuation report and cost of construction. In such circumstances, when the witness is not aware about the official rates or cost of construction or cost of land and prepared the reports upon the enquiry made by him from local property dealers then his report can not be believed as evidence. The witness could not state about the rate of the suit property in November 2011 when the suit was filed. Therefore, the defendant is not able to discharge the onus to prove this issue and accordingly, this issue is answered against the defendants.
Issue No.3.
Whether the suit is barred under law ? If so, its effect ? OPD.
37. Onus to prove issue no.3 was upon the defendant. Since during disposal of issue no.2, the case law has already been discussed that a lady does not have any right upon any property belongs to her father-in-law and defendant no.1 is not able to prove that he is having any share in the suit property. Therefore, in view of the observations made during disposal of issue no.2, this issue is also answered against the defendants.
Issue No.4.
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 41 CS No.252/11 Whether defendant no.2 can claim and assert her right at the suit property as matrimonial house ? OPD2.
38. Onus to prove issue no.4 was upon defendant no.2. This court during disposal of issue no.2 already made observations that defendant no.2 can not claim or ascertain her right at the suit property as her matrimonial home as suit property belongs solely to her father-in-law i.e. the plaintiff. The case law has already been discussed during disposal of issue no.2 and therefore, this issue is also answered against defendant no.2 in the light of discussions and observations made during disposal of issue no.2.
Issue no.5.
Whether plaintiff is entitled for decree of possession of the suit property ? OPP.
39. Onus to prove this issue is upon the plaintiff. During disposal of issue no.2, this court has already observed that the plaintiff is the sole owner of the suit property and therefore, defendants have no specific right qua the suit property except the permissive use which was allowed earlier by the plaintiff to both the defendants. Therefore, defendants were entitled to live in the suit property only till they had been permitted by the plaintiff to remain in the suit property. Since the plaintiff has already withdrawn the permission by issuing notice Ex.PW1/3 and for which, reply was also sent by defendant no.2 i.e Ex.DW2A/9. Therefore, the plaintiff is entitled for decree of possession in respect of first floor of suit property bearing no.11247/2, Dori Walan, Gali No.3, Gaushala Road, Karol Bagh, New Delhi-110005.
Issue No.6.
Whether plaintiff is entitled for decree for mesne profits ? If so, at what rate and for what period ? OPP.
40. Onus to prove issue no.6 was upon the plaintiff. In para 20 and 21 of Ex.PW1/A it is stated by PW-1 that the market rate of rent for Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 42 CS No.252/11 the similarly situated accommodations is more than Rs.15,000/- per month though he claimed damages / mesne profits / use & occupation charges @ Rs.10,000/- per month w.e.f. 21.08.2011. It is stated by PW-1 that property is built on 140 square yards. It is 100% fully covered up built property on first floor and is situated to main Rohtak Road about 200 yards inside. It is adjacent to Bijli Pahalwan House and Tibia College. This is the biggest plot in the lane and in populated area, close to Karol Bagh and all kinds of facilities are available in the vicinity of the house for having comfortable life. It is categorised as E-class category as per the circle rates and the circle rate must be around Rs.48,000/- to Rs.49,000/- after filing of the suit. He has further stated during cross examination that other properties in the same localities are let out for Rs.15,000/- per month, per floor. He has further stated that he has not seen any lease deed or not placed any document/any lease deed in respect of his submission. He has also stated that he has confirmed this fact from the property dealers M/s. Sachdeva Property Dealer, Dimpy Chaddha etc. DW2D stated that when he visited at the suit property, he found that there were two bed rooms, one large drawing/dining rooms, two toilets, one kitchen and a balcony. Therefore, keeping in view of such facts, especially the size of the suit property and the fact that the suit property is situated near Karol Bagh, this court is of the considered opinion that the plaintiff has successfully discharged the onus to prove this issue. Moreover, it is the case of the defendants, especially defendant no.2, that the suit property is having value more than Rs.80/- lakh to Rs.90/- lakh though the court has not believed upon this piece of evidence of defendant no.2 but one can not go beyond her own admission. If defendant no.2 herself submits valuation of Rs.80/- lakh to Rs.90/- lakh then definitely court can take inference that property could fetch the rent of atleast Rs.15,000/- per month as stated by the plaintiff. Moreover, in Delhi city, in the heart of it, i.e. at Karol Bagh any property could fetch Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 43 CS No.252/11 such rent of Rs.15,000/- per month which comprises of two bed rooms, one large drawing/dining room, two toilets, one kitchen and a balcony and that is too, at first floor, built upon on plot of 140 square yards. The court can take judicial notice of the fact that in the heart of the city i.e. Karol Bagh, rate of rent is more than the outskirts of the city due to easy eccess. Therefore, in my considered opinion, the plaintiff has successfully discharged the onus to prove this issue and accordingly, this issue is answered in favour of the plaintiff and against the defendants with the directions that both the defendants are liable to pay Rs.15,000/- per month jointly and severally from the date of filing of suit till the day they handover the possession of the suit property to the plaintiff, as per the directions passed by this court to the plaintiff. Issue No.7.
Relief.
41. In view of observations made herein-above, a decree of possession in respect of first floor of suit property bearing no.11247/2, Dori Walan, Gali No.3, Gaushala Road, Karol Bagh, New Delhi-110005 is passed in favour of he plaintiff and against the defendants.
42. Plaintiff is also entitled for decree of mesne profits with the directions that both the defendants shall pay Rs.15,000/- per month jointly and severally from the date of filing of suit till the day they handover the possession of the suit property to the plaintiff, as per the directions passed by this court to the plaintiff. Plaintiff shall also be entitled for cost of the suit. Reader is directed to prepare the decree sheet only after payment/affixation of court fees by the plaintiff qua the relief of mesne profits, in accordance with the law. File be consigned to Record Room.
Announced in the Open Court (Jitendra Kumar Mishra)
today on 28.01.2014 ADJ-09, Central,
Tis Hazari Courts, Delhi
28.01.2014
Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 44
CS No.252/11
CS No.252/11
28.01.2014
Present: None.
Vide my separate judgment announced in the open court today, a decree of possession in respect of first floor of suit property bearing no.11247/2, Dori Walan, Gali No.3, Gaushala Road, Karol Bagh, New Delhi-110005 is passed in favour of he plaintiff and against the defendants.
Plaintiff is also entitled for decree of mesne profits with the directions that both the defendants shall pay Rs.15,000/- per month jointly and severally from the date of filing of suit till the day they handover the possession of the suit property to the plaintiff, as per the directions passed by this court to the plaintiff. Plaintiff shall also be entitled for cost of the suit.
Reader is directed to prepare the decree sheet only after payment/affixation of court fees by the plaintiff qua the relief of mesne profits, in accordance with the law.
File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Ts Hazari Courts, Delhi 28.01.2014 Sh. Avinash Chander Tuli Vs. Sh. Rajneesh Tuli & Anr. 45